Introduction
Child sexual abuse is on the rise all over the world, particularly in our own country, India, which is one of the top five countries in the world in terms of the number of sexual offences involving children. In many ways, Indian criminal law appears inadequate to deal with such a sensitive issue.
Scope of This Article
In this article, we will be specifically dealing with the Protection of Children from Sexual Offences Act 2012
Historical Background And Need For POCSO Act 2012
Before the enactment of the Protection of Children from sexual Offences Act 2012 in India, the scope of protecting children from sexual abuse was very limited . The Indian Penal Code 1860 dealt with child sexual abuse, but terms like modesty and unnatural offence were not clear through the provisions of IPC, and it also did not address the sexual abuse of boys or offer protection for the ‘Modesty’ of male children. At that time, the overall percentage of reports of boys experiencing sexual abuse was much higher than that of girls, which became a major concern and which is now dealt with as a key issue in the POCSO Act.
In 1990 a child abuse racket was busted in goa watching this the state legislation felt the need of enacting an act which specially aims to protect the interest of children from these kinds of offences after which The Childrens Code Draft(2000) was prepared by the goa state commission for women under the leadership of Ms. Shanta Durga Khalap with the help of the references from the international instruments like UN Convention on the Rights of Children(UNCRC) which ultimately led to the formation of The goa children act in 2003
The Goa Children Act 2003
The Goa Children Act 2003 was passed which is a progressive state legislation aimed at protecting the rights safety and welfare of children in the state of Goa. The act defines a person who was below the age of 18 years as a child and provided strict provisions against sexual offences, harmful substances, child pornography and employment of children in hazardous work. It also introduced child friendly procedures for investigation and trial. It became the very first act of its kind and got great appreciation at the state as well as the central level but as it was a state legislation and was not dealing the offences across the Indian sub-continent the rest of the country was dealing with these kind of offences through the IPC specifically sections like (375,354,377) IPC and as the offences related to sexual abuse of child in India increased, we needed stronger child centric legislation
Therefore, it became important to pass an act which protects the children from sexual offences throughout the contrary as a whole.
Offences Against Children (Prevention) Bill 2005
In 2005, The Offences Against Children (Prevention) Bill 2005 was drafted by the Department of Women and Child Development, which addressed different offences like sexual exploitation, economic exploitation, domestic violence, trafficking for prostitution, etc, against children. The bill was never passed into law, but the key provisions were carried forward and became part of the POCSO Act 2012
Hence, the POCSO Act was passed.
The Protection Of Children From Sexual Offences Act 2012
Understanding The Preamble
Let us understand the intention of the act from some part of the preamble of the act, which is also a widely used internal aid for the interpretation of a statute
- An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto
[As we see the very 1st line of the preamble, there is a word mentioned “children” which surely signifies that the law is enacted for a person who is a child or who is a minor (below 18 years of age)]
- AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;
The line which is highlighted here can be clearly interpreted as clearly that all the measures and procedural safeguards prescribed in this act are for a person below 18 years of age who is a child
- AND WHEREAS the law must operate in a manner that the best interest and well-being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;
- AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-
- (a) the inducement or coercion of a child to engage in any unlawful sexual activity
- (b) the exploitative use of children in prostitution or other unlawful sexual practices;
- (c) the exploitative use of children in pornographic performances and materials;
The clear interpretation which can be drawn from this point is that this act talks about the protection of rights of a minor person because it is clearly mentioned (Rights of the Child), so it is clear that the POCSO Act does not provide safeguards to the rights of a major person
- AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.
Two Limbs Of The Act
| Substantive Limb | Procedural Limb |
|---|---|
| Protection from sexual assault, sexual harassment, and pornography | Establishment of Special Courts and procedures for trial |
In this Article, we will be particularly dealing with the procedural section of the POCSO Act, which mainly deals with the Trial Procedure and Cross-examination of Victims
Importance of Cross-Examination
The Cross-examination plays a very crucial role in legal proceedings as it allows for a more thorough and accurate presentation of evidence by enabling the opposing party to test the credibility of the witness and uncover inconsistencies or biases in their testimony
The accused has a fundamental right (under Article 21 , the right of fair trial) to cross-examine a witness under the BSA. Cross-examination is not just a mere formality but a juridical instrument of immense forensic significance. It is a crucial tool for the defence to test the truthfulness and credibility of a witness’s testimony. The BSA retains the core principles of the erstwhile Indian Evidence Act, 1872 , regarding the examination of witnesses. It permits leading questions to be asked during cross-examination and allows for the use of previous statements to contradict a witness.
It is through cross-examination that the defence seeks to probe into the surrounding circumstances of the incident, expose contradictions, omissions, or embellishments, and thereby test the reliability, veracity, and trustworthiness of the witness. It enables the accused to confront the witness with alternate narratives, subtly or directly, thereby introducing the defence theory without prematurely disclosing strategic contours
Case Laws
- State of Rajasthan V. Kashi Ram (2006) 12 SCC 254 — “Cross-Examination is an acid test of the truthfulness of the witness and the veracity of his Statement”
- Kartra Singh V. State of Punjab (1994) 3 SCC 360 — “Fair Trial include the right of the accused to cross-examine the Prosecution witnesses”
“Procedural Law Is The Vehicle Of Justice Not Its Destination”
Section 33(2) Of The POCSO Act
In this article, we will be particularly dealing with Section 33(2) of the POCSO Act
Definition Of “Child” Under Section 2
Section 2 of the POCSO Act defines the term “child”, it states that- “Child means any person below the age of eighteen years.
Section 33(2)
Section 33(2) of the POCSO Act particularly states that
“The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to the Special Court, which shall in turn put those questions to the child.”
Explanation
Under Section 33(2) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, both the prosecution and the defence lawyers are prohibited from directly questioning a child witness in court. This means that during any part of the child’s testimony—whether it’s the main examination, cross-examination, or re-examination—the lawyers cannot speak directly to the child.
Instead, any questions that the lawyers wish to ask must be submitted to the Special Court, and it is the judge who then asks those questions to the child. The idea is to prevent the child from being subjected to intimidating or aggressive questioning that might cause further trauma. This method is a legal requirement—not an optional safeguard—and applies in all cases involving child victims under the POCSO Act.
The purpose behind Section 33 is to protect the child’s mental and emotional well-being. Going through a trial—especially for a child who has faced sexual abuse—can be terrifying. This law ensures that the child does not feel directly attacked or overwhelmed by lawyers asking complicated or inappropriate questions.
Contention
The victim is no longer a “child” as defined by the POCSO Act.
While the offence remains under the POCSO Act, the victim’s status changes (the victim turns 18 years of age or attains majority).
The Legal Question
Whether the protective procedural mandate under Section 33(2) of the said Act continues to apply even after the child attains the age of majority during the pendency of the trial, or should the trial revert to the standard procedural rules of evidence?
The question assumes significance in light of the competing interests of:
- Safeguarding the dignity of a child witness
- Upholding the fundamental right of the accused to a fair trial
To find out the relevant answer, we need to see the construction of the statute and the intent of the legislation.
Statutory Construction and Legislative Intent
If we see the grammatical construction of the POCSO Act 2012 , we find that both the terms “CHILD” and “VICTIM” are used in the Act.
- Where the legislature intended to confer the protection irrespective of age, it used the term ‘VICTIM’
- Where the protection was age specified, the term ‘CHILD’ has been used [as in Section 33(2)]
These choices of the terms are not accidental; rather, they show the specific intent of the legislature. [33]
“The legislature, while crafting the POCSO Act, made a conscious and deliberate choice to extend the exceptional procedural protection of Section 33(2) only to a “child” as defined in Section 2(d) and only in relation to proceedings governed under the Act”
The principle of Expressio Unis est exclusion alterius – the express mention of one thing implies the exclusion of others – applies.
Meaning of “Child” – Supreme Court Interpretation
Landmark Judgment: Ms. Eera Through Dr. Manjula Krippendorf v. State (2017) 15 SCC 133
| Issue | Does the term “child” include a person above 18 years with mental age below 18? |
|---|---|
| Facts | The prosecutrix suffered intellectual disability but was biologically above 18 at the time of offence. |
| Judgment | The Court held that “child” under Section 2(d) refers only to biological age below 18. Mental or intellectual age cannot extend POCSO applicability. |
The Court held that while POCSO is a benevolent legislation, protections cannot be extended to adults as it would distort legislative intent.
The principle laid down mandates that “child” must be understood in its precise, biological sense, both for applicability of the Act and for procedural protections including Section 33(2).
Therefore, when a victim who was biologically under eighteen at the time of the offence attains majority during trial, he or she ceases to be a “child” for procedural application under the Act.
Thus from this judgement we can conclude that biological age is the sole determinative criterion for invoking protections under the POCSO framework.
Conclusion
The procedural safeguards under Section 33(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), are exclusively intended for a “child” as defined under Section 2(d) and cannot be extended to a witness who attains majority during the course of trial.
Section 33(2) mandates that questions during examination-in-chief, cross-examination, or re-examination be routed through the Special Court only while the witness continues to be a child. Once the child crosses the age of 18 years, the protective procedure ceases to apply, and the ordinary rules of criminal trial and evidence law must govern further proceedings.
The Latin legal maxim “Cessante Ratione Legis, Cessat Lex Ipsa” applies, meaning:
“When the reason for a law ceases, the law itself ceases.”
In other words, if the underlying rationale or purpose for a law no longer exists, the law should be interpreted or applied in a way that aligns with that change in circumstance.
Here, the provision u/s 33 POCSO is designed to limit the trauma to the child that results from giving evidence. Once a child becomes an adult, that purpose no longer exists and the law should be interpreted to reflect that change. Thus, the witness should be treated according to standard rules applicable to adult witnesses.
Can Any Statute Go Beyond The Constitution?
Extending Section 33(2)’s procedural mechanism post-majority would disrupt legislative balance and infringe upon the accused’s Fundamental Rights the right to Life and Liberty (right to free and Fair Trial) Article 21, and the principle of audi alteram partem.
Rule Of Law And Constitutional Supremacy
India follows the principle of “RULE OF LAW” which means that law is supreme and no one is above the law and India as a country is governed by the constitution and hence the constitution is the supreme law of the country, every law which is enacted is to be seen that it is not becoming “ultra viers” to the constitution i.e. not going beyond the powers of the constitution or not violating the Constitution in any manner and if a particular law is ultra viers in nature it is should become void.
Article 21 – Fair Trial And Cross-Examination
Art 21- extending section 33(2) post majority hinders fair cross-examination by preventing direct questioning from the victim, which gives strategic advantages to the prosecution which violates the Fundamental Right of the accused Article 21, that is right to life and personal liberty which incorporates the right to fair trial. The rationale behind this is that the person is no longer a child and is legally considered an adult, with a presumed capacity to withstand the rigours of a court proceeding.
“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. Such an approach would infringe the principle of audi alteram partem”
Audi Alteram Partem
Audi Alteram Partem -it is the fundamental rule of the principle of natural justice, it is a Latin maxim which means that “no man shall be condemned unheard”, which also incorporates the right of cross-examination, and it should be given to both the accused and the victim. If the court restricts or disallows meaningful cross-examination of the victim, then the accused loses their chance to test the truthfulness and credibility of a witness’s testimony, which is clearly a violation of the principle of audi alteram partem.
Lawyer’s Views On The Issue
Adv. Umesh Kant Vyas & Adv. Devkinandan Vyas – Rajasthan High Court, Jodhpur
The age has a close correlation with, wisdom, sense, foresight, care, caution, sagacity, sanity, intelligence, which can be defined in one word- as prudence & no discrimination should be allowed regarding this correlation while dealing a human, whether it is an accused or a victim or a witness, because the status of a human as an accused or a witness shall have no effect on the correlation between the age of a person and his prudence.
| Law | Provision |
|---|---|
| Indian Evidence Act, 1872 | Section.118: All persons shall be competent to testify unless the Court considers mental or physical inability to understand & respond. |
| POCSO Act, 2012 | Section 33: Child-friendly procedure including court-mediated questioning |
If the protection provided under sec 33 of POCSO Act, which are designed to limit the trauma to the child that results from giving evidence, are allowed to be continue after that child become adult then it will certainly put an accused to disadvantage as his prior discloser of questions to a witness, who is actually no longer a child but has requisite mental capability, will understand the line of defence and modulate the answers accordingly, as the age and prudence are significantly correlated, where there is reverse burden theory applicable, impeding the right of cross examination in a particular way itself will be against the principle of natural justice , because the Cross-examination plays very crucial role in legal proceedings as it allows for a more thorough and accurate presentation of evidence by enabling the opposing party to test the credibility of the witness and uncover inconsistencies or biases in their testimony.
When a child becomes adult the purpose of law [sec33(2)] providing advantage to limit the trauma to a child will no longer exists and in that situation the law should be interpreted or applied in a way that aligns with that change in circumstance, or potentially even considered void if the reason is no longer applicable & the child witness who turned adult should be treated according to standard rule of law provided for regular witnesses. (written submissions by the advocate in the case)
Case Laws And Judgments
1. Jassaram Pander v. State of Rajasthan
- Facts – The petitioner in this case is an accused under the POCSO Act. Over the period, the victim has attained the age of majority and no longer falls within the definition of a “child” as provided under Section 2(d) of the POCSO Act. Consequently, a prayer has been made that now adherence to the procedure outlined under Section 33(2) of the POCSO Act should not be deemed mandatory.
- Legal Question – Whether Section 33(2) continues post majority?
Court’s Observations:
- POCSO is a sui generis child-rights law, but strict interpretation applies
- “Child” means under 18 – clear statutory meaning
- When majority is attained, rationale for procedural protection ceases
- Section 33(2) is to prevent re-traumatisation, not restrict defence rights
- Safeguards are age-contingent
Order / Judgment:
- Section 33(2) applies only while victim is a child
- Cannot dilute accused’s Article 21 rights
- Protection ceases once witness turns 18
This is the most detailed judgment addressing this issue.
2. Anujith v. State of Kerela
The Court ruled that- mode of examination via sec 33(2) continues even after the victim attains majority because the determinant is the date of commission of offence, not the date of examination (live law, manupatra)
3. Mahammad Ali Akbar v. State of Karnataka
This case does not particularly deal with the procedure under Section 33(2) POCSO, but is related to the subject matter of the article, as it deals with another procedural section of POCSO, which is Section 33 (5)( for a normal understanding, this section bars repeatedly calling of child witness in court).
Judgment:
The court held that the restriction under section 33(5) ceases to operate after the victim has become an adult. (This case shows that the centric approach given under the POCSO Act should not be applied post majority)
Suggestion For Changes
- Statutory rule when the victim turns 18 – add clause that Section 33 protections apply only to minors
- Support system – presence of counsellors / psychologists during testimony to avoid re-trauma
- Balance between fair trial & victim protection – strengthen substantive protection, liberal procedural interpretation
Conclusion
This brings us to the conclusion of this article; this article was all about the question that does the safeguards present in the POCSO act mainly in section 33(2) which prohibits direct cross examination of the victim asserting that direct cross can lead to re-traumatisation of the CHILD should continue even after the victim has crossed the age of majority (18 years of age).
I am of the view that as the ACT [particularly sec33(2)] itself mention the term CHID and the act also defined the term CHILD in section 2(d) means that the act has been made to protect the interest of a minor person, when a person becomes a major he/she does not fall under the category of a child and hence he/she is presumed to have the competence and maturity to participate in standard adversarial proceedings, the special procedure under Section 33(2) should no longer survive because extending the safeguard to a now adult witness would be arbitrary to the foundational rights of the accused and also to the principles of natural justice .
Thus, the right to effective cross-examination must be given to the accused, and the procedural safeguards under Section 33(2) cease to apply once the victim becomes a major.
“Special Law Must Protect The Best Interest Of The People, But Cannot Stand Against The Principles Of Natural Justice”
Bibliography
Statutes:
- Protection of Children from Sexual Offences Act, 2012.
- Indian Penal Code, 1860.
- Indian Evidence Act, 1872.
- Constitution of India, 1950.
Cases:
- State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254.
- Kartar Singh v. State of Punjab, (1994) 3 SCC 360.
- Eera v. State, (2017) 15 SCC 133.
- Jassaram Pander v. State of Rajasthan (Rajasthan HC, 2024).
- Mohammad Ali Akbar v. State of Karnataka, (2022) SCC OnLine KAR 1048.
- Anujith v. State of Kerala (Kerala HC, 2024).
Books & Articles:
- D.D. Basu, Commentary on the Constitution of India (9th ed.).
- Ratanlal & Dhirajlal, The Law of Evidence (26th ed.).
- S.N. Mishra, Indian Penal Code (With the Criminal Law (Amendment) Act, 2018).
- Ratanlal & Dhirajlal, The Code of Criminal Procedure.
Online Sources:
- SCC Online (2024).
- Manupatra Database (2023).
- LiveLaw (2024).
- UNICEF, WHO, and NCPCR Reports.
- Press Information Bureau (PIB), Government of India.
