[S. 33(2) POCSO Act] Mode Of Examination Through Intermediary Remains Unchanged Even If Victim Attains Majority During Trial: Kerala HC

Section 33 (2) of the POCSO Act 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. Section 33 (2) prohibits direct examination of the victim.

Justice Bechu Kurian Thomas observed that the benefit of Section 33(2) to a victim cannot be denied depending upon the date of examination of the victim who faced the trauma of sexual abuse as a child. The Court observed that if the method of examination were based on the victim's age at the time of examination, the accused might use clever tactics to delay the trial.

“Thus, this Court is of the view 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. Thus, the mode of examination contemplated under section 33(2) of the Act is to be applied notwithstanding the victim crossing the age of eighteen.”

The petitioner was the sole accused booked under Section POCSO Act and IPC for allegedly committing sexual offences including rape of a minor girl. The petitioner submitted that he was entitled to cross-examine the victim directly during the trial since she has attained the age of majority and is no longer a child. It was submitted that the legislative intent behind Section 33(2) is to protect child victims from vigorous cross-examination of the defence counsel. It was argued that the victim is no longer a child now and that the benefit under Section 33(2) of the POCSO Act would not apply. Relying upon Manu Dev v. xxxx (2023) and Unnikrishnan R. v. Sub Inspector of Police, Kurathikadu Police Station and Another (2018), it was argued that the purpose of fair trial would be defeated if questions were not put to the witnesses directly.

Thus, the Court considered whether the defence counsel could put questions directly to the victim during the cross-examination if the victim has attained the age of majority during the date of examination.

The Court stated that the POCSO Act is a comprehensive legislation enacted to protect children from sexual abuse. It stated that 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 stated 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. It stated that 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. It said: “The protection or the insulation provided to the victim of sexual abuse by the Act, cannot be defeated depending upon the date of examination of the child.”

Based on the above observation, the Court dismissed the petition.

Counsel for Petitioner: Advocate Prakash Mathew

Counsel for Respondents: Public Prosecutor Noushad K A

Citation: 2024 LiveLaw (Ker) 491

Case Title: Anujith v State of Kerala

Case Number: OP(CRL.) NO. 485 OF 2024

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