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.
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.
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
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.
A purposive reading of the preamble of the POCSO Act reveals its bifurcated intent. It consists of two different limbs, out of which one is the SUBSTANTIVE LIMB, which aims “to protect children from offences of sexual assault, sexual harassment, and pornography”. The second limb pertains to the PROCEDURAL DOMAIN, which deals with the establishment of Special Courts and their process of work and proceedings.
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 Law | Principle Highlighted |
|---|---|
| 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
In this article, we will be particularly dealing with Section 33(2) of the POCSO Act
Who Is Considered a “Child”?
For a better understanding of this section, you have to first understand that when a person is legally considered a “child”
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.
- Lawyers must submit questions to the Special Court
- The Judge asks those questions to the child
- This procedure aims to prevent trauma and intimidation
- It is a mandatory legal safeguard — not optional
The purpose behind Section 33 is to protect the child’s mental and emotional well-being.
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 (turns 18 years of age or attains majority).
The legal question then becomes:
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?
This raises tension between:
| Interest | Concern |
|---|---|
| Victim protection | Dignity and trauma reduction |
| Accused rights | Fair trial and cross-examination |
To find out the relevant answer, we need to see the construction of the statute and the Intent of the Legislation
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’, and where the protection was age specified, the term ‘CHILD’ has been used [as in section 33(2) of the act].
Legal maxim applied: Expressio Unis Est Exclusio Alterius – The express mention of one thing implies the exclusion of others
Landmark Judgment: Ms. Eera v. State (2017) 15 SCC 133
Facts:
The prosecutrix (“Eera”) was a woman with intellectual disability… The question was whether mental age below 18 could qualify as a “child”.
Judgment:
- “Child” under Section 2(d) means biological age, not mental age
- Only persons under 18 years biologically can get POCSO procedural protections
- After turning 18, protections under Section 33(2) must end
Thus biological age is the sole determinative criterion.
Cessante Ratione Legis, Cessat Lex Ipsa
“When the reason for a law ceases, the law itself ceases.”
Once a child becomes an adult:
- The intent of trauma-reduction no longer applies
- Hence Section 33(2) safeguards cannot continue
- Standard rules of evidence must apply
Can Any Statute Go Beyond the Constitution?
Extending Section 33(2) post-majority would:
- Violate accused’s Fundamental Right to Free & Fair Trial (Article 21)
- Violate principle of Audi Alteram Partem (right to be heard)
India follows the “Rule of Law” — Constitution is supreme. Any law that becomes ultra vires must be void.
Article 21 Violation: Restricting direct cross-examination gives prosecution unfair advantage; adult victims are capable of giving testimony.
“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.”
Audi Alteram Partem
“No man shall be condemned unheard.” Cross-examination is part of natural justice for both sides.
Lawyer’s Views On the Issue
Adv. Umesh Kant Vyas & Adv. Devkinandan Vyas – Rajasthan High Court, Jodhpur
Their view:
- Age correlates with maturity, prudence, intelligence
- Section 118 Evidence Act supports capability-based assessment
- If protections continue after adulthood, accused suffers disadvantage
- Witness may understand the defence strategy and tailor answers
- Cross-examination is crucial to test credibility
Conclusion of submissions:
When a child becomes adult, Section 33(2) benefits should stop — ordinary criminal procedure must apply.
Case Laws and Judgments
Let us now understand the contention of this article from the landmark judgment of the Rajasthan HC, Jassaram Pander v. State of Rajasthan
1. Jassaram Pander v. State of Rajasthan
Facts of the Case
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.
Question of Law Raised
“Whether the protective procedure prescribed under Section 33(2) of the POCSO Act, 2012, requiring that questions during examination-in-chief, cross-examination, or re-examination of a child be routed through the Special Court, continues to apply once the victim attains the age of majority during the pendency of trial?”
Court’s Observation
- POCSO is a sui generis child-rights law, but the strict construction of penal statutes applies.
- The term “child” in Section 33(2) is unambiguous; it means a person below the age of 18 years.
- Once the person attains majority, the rationale behind judicial intermediation in the cross-examination of the victim ceases (“when the reason for a law ceases, the law itself ceases.”)
- The object of Section 33(2) is not to create an impenetrable procedural wall around the witness but to prevent the re-traumatisation of a child during trial.
- Procedural safeguards under the POCSO Act are age-contingent, not perpetual.
Order/Judgment
- The court held that the procedural safeguard embodied in Section 33(2) of the Protection of Children from Sexual Offences Act, 2012, is intrinsically age-contingent and must be confined to those witnesses who fall within the statutory definition of “child” as per Section 2(d) of the Act.
- That while the spirit of the POCSO Act mandates a child-friendly process, the Court cannot extend procedural protections in a manner that contravenes the express legislative scheme or dilutes the rights of the accused enshrined under Article 21 of the Constitution (right to fair trial).
- That the procedural safeguard given under Section 33(2) POCSO ceases to apply once the witness turns a major, i.e. a person who is 18 years or above.
There are a few more judgments of different HCs, but this is the only judgment in which the Rajasthan High Court gave a detailed observation on the issue involved.
2. Anujith v. State of Kerala
In this case, the same issue was raised that the mode of examination prescribed under Section 33(2) POCSO still applies.
The Court ruled that – mode of examination via Section 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).
The issue involved in this case was whether the bar on repeated examination of child witnesses under Section 33(5) POCSO remains absolute once the victim has become an adult.
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 – There should be certain amendments in the procedural sections of the POCSO Act, like Section 33 and 37 and a clause must be added which particularly mentions that the procedural safeguards provided under the section are only for the victim who is a child and are not available for the people who have attained majority.
- A support system should be built, though the victim has now become a major. Still, we should not forget that when the offence was committed, he/she was a minor; now, even the victim has to go through a direct cross-examination. Still, there should be a mandatory presence of counsellors and psychologists during cross-examination so that at the time of the procedure the victim should feel safe and would be free from the re-traumatisation, stress and fear and the mental well-being of the witness can be assured, so that the main essence of the POCSO law (i.e. to protect the best interest of the child) can be preserved.
- Balance between fair trial rights and victim protection
As we have discussed in this article, the POCSO Act consists of two limbs, one is substantive in character, aiming “to protect children from offences of sexual assault, sexual harassment and pornography.” And the second limb is the procedural limb which deals with the manner in which the proceedings will be done.
If we need to balance the fair trial rights of the accused and the protection of the victim then we need to safeguard the substantive limb and make the provisions even stronger to protect the interest of the child but on the other hand we need to keep a liberal view for procedural limb and need to interpret the provisions in a manner that frustrates the ends of substantive justice or impinges upon the foundational rights of the accused.
In this manner, we provide a fair trial and opportunity to secure justice to both the victim and the accused.
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 Section 33(2)] itself mention the term child 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) – Plain text URL: https://www.scconline.com
- Manupatra Database (2023) – Plain text URL: https://www.manupatra.com
- LiveLaw (2024) – Plain text URL: https://www.livelaw.in
- UNICEF, WHO, and NCPCR Reports – Plain text URL: https://www.unicef.org
- PIB, Government of India – Plain text URL: https://pib.gov.in
