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, 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...

POCSO Act | “Child Specific” Procedural Safeguards Can't Be Extended To Victim Who Attains Majority During Trial: Rajasthan High Court

Nupur Agrawal

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