Mode Of Examination U/S 33(2) Of POCSO Will Be Applicable To Victims Attaining Majority; Can’t Be Cross-Examined Directly: Kerala HC
The Kerala High Court has held that the mode of examination as contemplated under Section 33(2) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) will continue even after the victim has attained the majority.
The Bench of Justice Bechu Kurian Thomas observed, “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 above interpretation is fortified by the prefatory words to the definition clause “unless the context otherwise requires” appearing in section 2(1) of the Act. Hence 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.”
Advocate Prakash Mathew appeared for the Petitioner whereas Public Prosecutor Noushad K.A. appeared for the Respondent.
The Petitioner, an accused in a proceeding under the POCSO and also under the Indian Penal Code, 1860 for sexual offences including the rape of a minor girl, filed a petition seeking directions to the Special Court to permit the defence counsel to cross-examine the victim directly without putting questions to the Court and not to provide the benefit of Section 33(2) of the Act to the victim.
The main question before the Court was whether the mode of examination contemplated under Section 33(2) of the POCSO be extended to a victim who is no longer a child.
The Court said that the statute intends to protect a child who is already a victim of sexual abuse from further mental trauma and to provide remedies for such abuses and a departure from the normal mode of examination was brought in by a legislative mechanism to protect the victim.
It added that the legislative intention to insulate the victim of the offence against aggressive and offensive cross-examination and from embarrassing questions, cannot be overlooked. The insulation from mortifying questions is necessary since the offence relates to sexual abuse and the purpose of such a mechanism is to ensure that the victim is able to testify in a safe, confident and dignified manner. The intention is also to avoid cross-examination being another bout of trauma for the victim, the Court highlighted.
The Court observed, “A perusal of the various provisions of the Act, especially sections 35, 36 and 37 indicates that the scope and extent of protection accorded by the statute is not just to the child, but it is accorded to the child who is a victim. 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. If the protective umbrella under the Act gets removed based on the age of the victim on the date of examination, ingenuous methods could be adopted by the accused to delay the examination of a victim and thereby overcome the rigour of the Statute.”
The Court concluded that if the date of examination is the determinant for applying Section 33(2) of the Act, the law would remain fluid, fluctuating between different dates of examination, therefore, such uncertainty in law could not be permitted.
Accordingly, the Court dismissed the petition as being devoid of merit.
Cause Title: Anujith v. State of Kerala (Neutral Citation:2024:KER:57377)
Appearances:
Petitioner: Advocate Prakash Mathew
Respondent: Public Prosecutor Noushad K.A.
