Criminal prosecutions belong to the State, and in a POCSO case the Special Public Prosecutor conducts the trial. But the Protection of Children from Sexual Offences Act, 2012 recognises that the child and family need representation of their own. Section 40 gives the family or guardian of the child the right to take assistance of a legal counsel of their choice for any offence under the Act — and where the family cannot afford one, the Legal Services Authority must provide a lawyer. Properly understood, the victim's counsel is not a spectator with a vakalatnama: from bail hearings where the victim is entitled to be heard, through trial-stage protections, to compensation and appeals, the role carries defined, enforceable functions.
Why the statute created the role
A POCSO prosecution processes a child through a system built for adults and run by strangers. The prosecutor represents the State's interest in conviction, which usually — but not always — aligns with the child's interests. The child's interests are wider: privacy, protection from intimidation, minimal re-traumatisation in the courtroom, medical and psychological support, compensation, and a family kept informed. Section 40 answers this gap by guaranteeing the family the assistance of counsel of their choice, backed by legal aid where means are lacking. The provision works alongside the machinery of support persons under the POCSO Rules, 2020 — the two roles are complementary, one legal and one welfare-oriented.
The counsel's work, stage by stage
Identity protection deserves constant vigilance: Section 23 POCSO restricts disclosure of the child's identity in any media, and courts insist on anonymisation in orders and filings. The victim's counsel is the natural sentinel for breaches — including inadvertent ones in cause lists, orders and copying processes.
What effective victim representation looks like
| Situation | Counsel's intervention |
|---|---|
| Repeated adjournments prolonging the child's exposure | Invoke the statutory timelines — evidence of the child to be recorded within thirty days of cognizance, trial to be completed within a year, as far as possible — and seek firm scheduling. |
| Aggressive cross-examination touching the child's character | Object through the SPP; questions in cross are to be routed through the Special Court, which must not permit character attacks or repeated, harassing questioning. |
| Family under pressure to settle or turn hostile | Document the pressure, inform the court and IO, seek witness protection measures; hostility procured by intimidation is itself material the court should have. |
| Compensation unaddressed at judgment | Move the Special Court for compensation with quantified needs — treatment, education disruption, relocation — supported by records. |
A note for defence practitioners too
The presence of an active victim's counsel changes the texture of a POCSO proceeding, and defence counsel should account for it: bail applications must anticipate a contested hearing with the victim represented; cross-examination must be prepared within the statutory constraints, which an alert victim's counsel will enforce; and settlement overtures, always fraught in POCSO matters, are scrutinised with an additional set of professional eyes on the record. The system works best — for the innocent accused as much as the wronged child — when every interest in the courtroom is competently represented.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
Who appoints the victim's counsel in a POCSO case?
The family or guardian of the child engages counsel of their choice under Section 40 POCSO. If the family cannot afford a lawyer, the Legal Services Authority provides one free of cost. In Delhi, the DLSA panels include lawyers designated for victim representation in sexual offence matters.
Does the victim's counsel argue in place of the prosecutor?
No. The prosecution remains with the Special Public Prosecutor; the victim's counsel assists — which in practice means being heard on bail and important applications, assisting the prosecutor with material and suggested questions, and independently pursuing the victim's own entitlements such as compensation, protection measures and appeals where the law provides them.
Is the victim entitled to be heard on the accused's bail application?
Yes. The presence and hearing of the informant or victim at the bail stage in serious sexual offence cases is an established requirement, and courts issue notice of bail applications to the victim through the IO. The victim's counsel appears, places the victim's position and any threat perception, and can seek conditions or oppose release.
What about compensation — who pursues it?
The Special Court may award compensation, including interim compensation, to the child, and victim compensation schemes operate alongside. In practice these remedies move when someone moves them: the victim's counsel applies, places the material on need and loss, and follows execution — work the prosecution machinery rarely performs unprompted.