Section 40 POCSO: Right of child to take assistance of legal practitioner
Protection of Children from Sexual Offences Act, 2012
Section 40 POCSO at a Glance
Section 40 POCSO entitles a child's family or guardian to a legal counsel of their choice for any POCSO offence, subject to the proviso to section 301 of the Code of Criminal Procedure, 1973. If they cannot afford one, the Legal Services Authority provides a lawyer.
Section 40 POCSO Bare Act Text
40. Right of child to take assistance of legal practitioner.
Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 (2 of 1974) the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act:
Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them.
Section 40 POCSO in Simple Words
Section 40 POCSO gives the family or the guardian of a child the right to legal representation for any offence under the Act. Under the main rule of Section 40 POCSO, subject to the proviso to Section 301 of the Code of Criminal Procedure, 1973 (2 of 1974), the family or the guardian of the child is entitled to the assistance of a legal counsel of the family's or guardian's choice for any offence under POCSO. The Act still refers to the Code of Criminal Procedure, 1973, which the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced from 1 July 2024.
The proviso to Section 40 POCSO protects families and guardians who cannot pay for a private lawyer. If the family or the guardian of the child is unable to afford a legal counsel, the Legal Services Authority must provide a lawyer to the family or the guardian.
When Section 40 POCSO Applies
- The matter relates to any offence under POCSO involving a child.
- The family or the guardian of the child is entitled to the assistance of a legal counsel of the family's or guardian's choice, subject to the proviso to Section 301 of the Code of Criminal Procedure, 1973.
- Under the proviso to Section 40 POCSO, if the family or the guardian of the child is unable to afford a legal counsel, the Legal Services Authority must provide a lawyer to the family or the guardian.
Example of Section 40 POCSO
FAQs on Section 40 POCSO
What is Section 40 POCSO?▼
Section 40 POCSO entitles the family or the guardian of a child to the assistance of a legal counsel of the family's or guardian's choice for any offence under POCSO, subject to the proviso to Section 301 of the Code of Criminal Procedure, 1973. Under its proviso, if the family or the guardian cannot afford a legal counsel, the Legal Services Authority must provide a lawyer.
What happens under Section 40 POCSO if the child's family or guardian cannot afford a lawyer?▼
The Legal Services Authority must provide a lawyer to the family or the guardian. The proviso to Section 40 POCSO makes this legal assistance mandatory when the family or the guardian is unable to afford a legal counsel.
Can the child's family or guardian choose a private lawyer under Section 40 POCSO?▼
Yes. Section 40 POCSO states that the family or the guardian of the child is entitled to the assistance of a legal counsel of choice for any offence under the Act, subject to the proviso to Section 301 of the Code of Criminal Procedure, 1973.
Have questions about Section 40 POCSO?
Ask NyayGuru about your situation and get an answer based on the Protection of Children from Sexual Offences Act, 2012.
Ask NyayGuru →Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.
Sources: Bare Act Text, Protection of Children from Sexual Offences Act, 2012 (India Code) ·