By Kawanpreet Kaur

The Kerala High Court held that the mode of examining a victim through the Special Court (intermediary) in a POCSO case as per Section 33 (2) of the POCSO Act remains unchanged even if the victim attains the age of majority during the trial. Section 33 (2) of the POCSO Act prohibits direct examination of the victim. It mandates that the Special Public Prosecutor or the defence counsel shall give their questions to the Special Court, which will then ask those questions to the child victim during the examination.

It was alleged that the accused committed rape and other sexual offenecs on a minor girl. He submitted that he was entitled to cross-examine the victim directly during the trial since she had attained the age of majority and was no longer a child. Since the victim was a major, Section 33(2) of the POCSO Act did not apply. The accused relied on the cases of Manu Dev v. xxxx (2023) and Unnikrishnan R. v. Sub Inspector of Police, Kurathikadu Police Station and Another (2018) which stated that the purpose of fair trial would be defeated if questions were not put to the witnesses directly.

The Court observed that POCSO Act is a comprehensive legislation enacted to protect children from sexual abuse. The Special Courts follow child-friendly procedures for recording evidence since cross-examination of a child has to be gentle, non-confrontational and must avoid explicit or graphic details. It noted that the legislative intent is to ensure that a victim of sexual abuse testifies feeling safe and to avoid cross-examination being another bout of trauma for the victim. The Court stated that the provisions of the POCSO Act cannot be interpreted to fluctuate based on the date of examination and if the date of examination of the victim becomes a relevant factor to determine the mode of examination, then the accused might tactically delay the trial to alter the mode of examination of the victim. Thus, the Court held that it is not the date of examination that determines whether the benefit of Section 33(2) of the Act should be accorded or not, but it is the date of commission of offence that determines the said question. The word ‘child’ in section 33(2) of the Act has to be interpreted as ‘the victim’ and therefore the protection under the said provision will continue to remain for the victim, regardless of whether he or she attains the age of majority in the meanwhile. Therefore, the mode of examination contemplated under Section 33(2) of the Act is to be applied notwithstanding the victim crossing the age of eighteen. Accordingly, the Court dismissed the accused’s petition. (Anujith v. State of Kerala- OP(CRL.) NO. 485 OF 2024)

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