POCSO Act | “Child Specific” Procedural Safeguards Can't Be Extended To Victim Who Attains Majority During Trial: Rajasthan High Court
Rajasthan High Court has ruled that procedural safeguards under Section 33(2) and 37 of the POCSO Act are contingent on the age of the victim, and have to be confined to the statutory definition of “child”. Therefore, once a victim attains the age of majority during trial pendency, these procedural safeguards cease to apply.“While the POCSO Act is indeed a benevolent legislation,...
Rajasthan High Court has ruled that procedural safeguards under Section 33(2) and 37 of the POCSO Act are contingent on the age of the victim, and have to be confined to the statutory definition of “child”. Therefore, once a victim attains the age of majority during trial pendency, these procedural safeguards cease to apply.
“While the POCSO Act is indeed a benevolent legislation, designed to safeguard children from sexual offences, the protective mechanisms embedded therein cannot be extended to adults...Such an approach would Subvert both the legislative intent and the constitutional requirement of parity in procedural fairness, thereby reducing the courtroom into a space of therapeutic justice rather than forensic adjudication.”
Section 33(2) of POCSO requires that the questions during examination-in-chief, cross-examination or re-examination of a child shall be routed through a special court.
Section 37 of POCSO allows for in-camera proceedings wherein child's parents or any other person of the child's confidence were allowed to accompany him/her during proceedings.
The bench of Justice Farjand Ali held that such procedural safeguards must cease to be applicable upon the victim attaining majority unless the Court deems it necessary in the interest of justice and psychological welfare of the witness without causing undue prejudice to the accused's fair trial rights.
“Accordingly, any judicial discretion to extend such procedural safeguards beyond the age of majority must be exercised judiciously and on a case-to-case basis, with a prior competency assessment under Section 118 of the Indian Evidence Act forming the evidentiary foundation for passing any such order…Any contrary interpretation would amount to judicial legislation and would undermine the delicate balance between victim protection and fair trial rights as envisaged under the law.”
The Court was hearing petitions wherein the petitioners (POCSO accused) had sought relaxation of Section 33(2), POCSO, during the proceedings wherein the victims had attained majority during the pendency of the trial on the ground that such procedural safeguards were applicable only to a child and not once the victim had attained majority.
The Court had invited practitioners to render their submissions on the questions, and after considering all the submissions, it allowed the petitions, based on the following reasons.
The Court highlighted that the word used in these procedural safeguards was “child” and not “victim” which reflected legislature's intention to limit these to the former. Where the text was clear, no interpretation was warranted. It was opined that extending the benefit to a person who did not qualify as a “child” would be legal incongruity and procedural overreach.
The Court further referred to the Supreme Court case of Ms. Eera through Dr. Manjula Krippendorf v. State to state that “Child” had to be construed in its strict biological sense, and not mental or intellectual age. Continuation of procedural protections meant exclusively for children would be seen as judicially engrafting mental or psychological criteria into the biological definition that was consciously crafted by the legislature.
It was also opined that the protections under POCSO sought to balance the statutory rights of the child-victim and the fundamental rights of the accused including right to fair trial under Article 21, and right to equality under Article 14. In this light, it was opined that,
“To perpetuate the curtailment of the accused's right to direct cross-examination merely because the incident occurred during the witness's childhood, would amount to procedural overprotection bordering on unconstitutionality… Any contrary interpretation would amount to conferring a perpetual procedural privilege, which is neither contemplated by the POCSO Act nor consistent with principles of fair trial and evidentiary parity.”
The Court further stated that compelling accused to pre-disclose his line of defence under Section 33(2) of POCSO would allow the witness to anticipate, pre-empt and tailor responses, vitiating the core adversarial essence of cross-examination which was more problematic in a statutory regime where the burden of proof was reversed and upon the accused to prove innocence.
“Therefore, the continued application of Section 33 procedural mechanisms to witnesses who have outgrown the category of "child" risks not only diluting the evidentiary efficacy of cross-examination but also jeopardizing the fairness of trial in a legal regime already skewed by presumptions against the accused.”
The Court also stated that irrespective of a graveness of a victim's trauma, importation or perpetuation of a procedural privilege not rooted in statutory text was not justified. It opined that if such perpetuation was accepted solely based on past vulnerability, then there was no rationale behind restricting such procedural protections to cases under POCSO, and not to extend them to all sexual offences.
This reflected that the procedural mandate under POCSO was a special conditional exception contingent upon the witness's status as a child.
Extending this similar logic to the safeguard under Section 37 of the Act, the Court held that, “the witness must depose voluntarily and truthfully, without being subject to tutoring, prompting, or post facto influence—factors which often lurk when undue procedural cushioning is extended beyond necessity. When a witness who has crossed the threshold of legal majority is still surrounded by family members or “support persons” during deposition, the court must be vigilant about the possibility of suggestive cues, both overt and implicit, contaminating the spontaneity and independence of the testimony”.
In this light, the Court held that extending Section 37 to adult witnesses shall not only undermine doctrine of age prudence proportionality but also gravely endangered core values of adversarial justice.
Hence, it was held that to continue these protections beyond the statutory defined scope of a “Child” defined in the strict biological sense would be contrary to legislative mandate and also violative of accused's rights under Article 21 and 14.
The Court highlighted the dual-track interpretative approach inbuilt in POCSO wherein the substantive provisions continued to be applicable even after the victim attained majority, while the child-specific procedural safeguards under Sections 33(2), 33(4)-33(7), 35, 36 and 37 were restricted in their applicability only on “child”.
While carving an exception to this ruling, the Court further ruled that by recording reasons in writing, the Court could extend the benefit of these safeguard, if deemed necessary in the interest of justice and psychological welfare of witness without causing any undue prejudice to the accused's fair trial rights.
“Upon attainment of majority, such safeguards lose statutory compulsoriness and shall not continue as a matter of right, unless specifically ordered by the Court based on case-specific exigencies. Accordingly, any judicial discretion to extend such procedural safeguards beyond the age of majority must be exercised judiciously and on a case-to-case basis, with a prior competency assessment under Section 118 of the Indian Evidence Act forming the evidentiary foundation for passing any such order.”
Accordingly, the petitions were allowed, and expeditious circulation of the order to all the Special Courts, POCSO, was ordered.
Title: Jasaram Pander v State of Rajasthan and other connected petitions
Citation: 2025 LiveLaw (Raj) 192
Counsels for Petitioner(s): Mr. Vineet Jain, Sr. Advocvate Mr. Abhishek Purohit, Mr. Umesh Kant Vyas (Shirmali), Mr. Divik Mathur, Mr. Gajendra Singh Butati, Mr. Vichitra Singh, Shri Krishan Chaudhary, Mr. Tananjay Pramar, Mr. B.S. Mertia, Mr. Sanjay Bishnoi, Mr. Naresh Rajpurohit, Mr. Ramprakash Dudi, Mr. Karmendra Singh, Mr. Ankur Mathur, Mr. Rajak Khan Haider
Counsels for Respondent(s):
Mr. Deepak Chaudhary, AAG, Mr. N.K.Gurjar, AAG, Mr. Vikram Rajpurohit, Dy.G.A., Mr. Yuvraj Sonal, Mr. Vishal Sharma, Ms. Advaita Sharma, Mr. Piyush Sharma, Mr. Mrinal Khatri, Ms. Deepti Sharma, Ms. Sapna Vaishnav