Introduction:

In a significant ruling, the Kerala High Court has determined that the method of examining a victim through the Special Court (intermediary) under Section 33(2) of the Protection of Children from Sexual Offences (POCSO) Act remains unchanged even if the victim attains the age of majority during the trial. This decision was made in a case where the petitioner, Anujith, was charged under the POCSO Act and the Indian Penal Code (IPC) for allegedly committing sexual offences, including rape, against a minor girl. The petitioner argued that since the victim had become an adult, he should be allowed to cross-examine her directly, a contention the court ultimately dismissed.

Arguments of Both Sides:

Prosecution’s Argument:

The prosecution maintained that the protection afforded by Section 33(2) of the POCSO Act, which mandates that questions from the defense and the prosecution be routed through the Special Court without direct cross-examination of the child victim, must remain in force regardless of the victim’s age at the time of trial. The core of their argument was based on the intent of the POCSO Act to protect child victims from the trauma of direct and vigorous cross-examination. They emphasized that the psychological impact and the trauma experienced by the victim during the offence as a child necessitate continued protection even if the victim becomes an adult during the trial. The prosecution argued that allowing direct cross-examination after the victim reaches adulthood could lead to tactical delays by the accused, aiming to alter the mode of examination to their advantage.

Defense’s Argument:

The defense, represented by Advocate Prakash Mathew, argued that the victim, now an adult, should no longer be entitled to the protections under Section 33(2) of the POCSO Act. They contended that the legislative intent behind Section 33(2) is to protect child victims from the distress of direct cross-examination. With the victim reaching adulthood, the defense asserted that the rationale for this protection no longer applied. The petitioner cited previous cases, including Manu Dev v. xxxx (2023) and Unnikrishnan R. v. Sub Inspector of Police, Kurathikadu Police Station and Another (2018), to support the argument that a fair trial necessitates direct questioning of witnesses. The defense further argued that the victim’s current status as an adult negated the need for intermediary questioning, and not allowing direct cross-examination would infringe on the accused’s right to a fair trial.

Court’s Judgment:

Justice Bechu Kurian Thomas, delivering the judgment, thoroughly examined the legislative intent and protective measures embedded in the POCSO Act. The court underscored that the POCSO Act is comprehensive legislation designed to shield children from sexual offences and ensure their testimonies are recorded in a safe, child-friendly environment. Justice Thomas emphasized that the trauma of sexual abuse does not dissipate merely because the victim reaches the age of majority. The court noted that changing the mode of examination based on the victim’s age at the time of trial would allow accused persons to manipulate trial timelines to evade protective measures intended for child victims.

The court observed, “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. 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.”

Justice Thomas stated that the protections under Section 33(2) should extend beyond the victim’s age of majority, focusing instead on the victim’s age at the time of the offence. He explained that the word ‘child’ in Section 33(2) must be interpreted as ‘the victim,’ ensuring that the protections continue regardless of the victim attaining adulthood during the trial. This interpretation aligns with the legislative intent of the POCSO Act, aiming to prevent secondary trauma to victims by maintaining child-friendly procedures throughout the trial process.

The court dismissed the petitioner’s argument that he should be allowed direct cross-examination due to the victim’s current adult status. It held that allowing such an exception would undermine the POCSO Act’s protective framework and could incentivize delaying tactics by accused individuals. The court concluded that the special procedures under Section 33(2) of the POCSO Act apply regardless of the victim’s age at the time of examination, provided the victim was a child at the time of the offence.