Introduction:

In the landmark judgment of Jasaram Pander v. State of Rajasthan and Other Connected Petitions, cited as 2025 LiveLaw (Raj) 192, the Rajasthan High Court, through the bench of Justice Farjand Ali, delivered a pivotal ruling on the temporal applicability of procedural safeguards under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The petitioners, who were facing trial under POCSO, approached the High Court challenging the continued application of procedural safeguards—particularly those enshrined under Sections 33(2) and 37 of the Act—on the ground that the alleged victims had attained the age of majority during the pendency of the trial. Through a well-reasoned and constitutionally grounded judgment, the Court examined the legislative intent, statutory text, jurisprudence, and the balance between victim protection and the accused’s right to a fair trial under Articles 14 and 21 of the Constitution. The ruling drew a clear line between child-specific procedural protections and the broader substantive provisions of the POCSO Act, holding that once a victim crosses the age of 18, the procedural safeguards cease to apply unless the Court specifically records reasons for their extension based on judicial discretion and after conducting a competency assessment under Section 118 of the Indian Evidence Act.

Arguments of the Petitioners:

The petitioners were represented by a robust battery of senior and experienced counsel, including Mr. Vineet Jain, Senior Advocate, alongside Mr. Abhishek Purohit, Mr. Umesh Kant Vyas (Shrimali), Mr. Divik Mathur, and others. The central contention raised was that the POCSO Act is a special statute specifically designed to protect children from sexual offences, and the term “child” is clearly defined under Section 2(d) of the Act as any person below the age of 18 years. The procedural safeguards detailed in Sections 33(2) and 37, such as routing all cross-examination through the Special Court and allowing support persons or family members to accompany the child, were framed keeping in mind the psychological and emotional vulnerabilities of minors. The petitioners argued that continuing these procedural privileges after the victim had become an adult was legally untenable and constituted procedural overreach. They claimed that the language of the statute is unambiguous in using the term “child,” and any deviation would violate the accused’s fundamental right to a fair trial by diluting the adversarial structure of criminal proceedings. They also expressed concern that these extended protections allowed for anticipatory tailoring of evidence by witnesses and compromised the very essence of cross-examination, especially in cases under POCSO, where the burden of proof is often reversed, thereby placing a heavier evidentiary burden on the accused to prove innocence.

Arguments of the Respondents:

On the other hand, the respondents were represented by a team of legal officers led by Mr. Deepak Chaudhary, Additional Advocate General (AAG), along with Mr. N.K. Gurjar, Mr. Vikram Rajpurohit (Deputy Government Advocate), and others. The respondents attempted to defend the continued use of procedural safeguards by citing the continued psychological impact of the offence on the victims, arguing that age alone does not eliminate the trauma experienced during childhood. They contended that the spirit of the POCSO Act, being a welfare legislation, should be interpreted liberally to extend protection beyond the age of 18 if the incident occurred when the victim was a minor. They urged the court to adopt a more expansive interpretation of the term “child” to include mental and emotional maturity, suggesting that procedural safeguards should not be abruptly revoked simply due to the passage of time. The respondents also emphasised the need to avoid secondary victimisation and argued that withdrawal of support persons and direct cross-examination could cause retraumatisation for victims who may still be emotionally vulnerable despite having crossed the statutory age of majority.

Court’s Judgment:

Justice Farjand Ali delivered a meticulous and comprehensive judgment that is likely to influence POCSO jurisprudence for years to come. The court began by acknowledging the benevolent nature of the POCSO Act and reiterated its commitment to victim protection. However, the judgment asserted that such protection must not come at the cost of the constitutional rights of the accused. The court made a critical distinction between the “substantive” and “procedural” aspects of the POCSO Act. While the substantive provisions—such as the definitions of offences and corresponding punishments—would continue to apply irrespective of the victim’s age during trial, the child-specific procedural safeguards must logically and legally cease once the victim becomes an adult. The Court underlined that Section 33(2) explicitly uses the word “child” and not “victim,” indicating legislative precision in limiting its applicability. Since the language was clear, there was no room for judicial interpretation that extended beyond the text. Relying heavily on the precedent set by the Supreme Court in Ms. Eera through Dr. Manjula Krippendorf v. State, the court observed that the term “child” must be construed strictly in its biological sense, i.e., an individual below the age of 18 years, and not based on subjective assessments of mental age or trauma.

The judgment further noted that procedural privileges like routing cross-examination through the judge and allowing parents or confidants to be present in the courtroom were conditional exceptions to the standard adversarial model of justice. The continuation of such exceptions post-majority would, in the court’s view, amount to judicial legislation, infringe upon Article 21 rights of the accused, and compromise the doctrine of evidentiary parity. The court firmly held that adversarial justice—anchored in spontaneity, confrontation, and directness—must not be diluted by extending procedural cushioning unnecessarily. Highlighting the reversed burden of proof in POCSO cases, the court warned that compelling the accused to pre-disclose their defence strategy to a now-adult witness could create a dangerous imbalance and vitiate the sanctity of a fair trial. The bench also raised concerns over potential tutoring and coaching when adult witnesses continue to be accompanied by parents or support persons under the garb of Section 37. Such external influence, whether overt or implicit, was seen as jeopardising the independence and spontaneity of the witness’s testimony. While recognising the severity of trauma in child sexual abuse cases, the court clarified that procedural mechanisms cannot be used perpetually based on past vulnerability alone. Accepting such an approach, the court warned, would create an illogical disparity—favouring victims of POCSO over victims of other sexual offences, and indirectly endorsing a form of therapeutic rather than forensic justice.

The court concluded that the procedural safeguards under Sections 33(2), 33(4) to 33(7), 35, 36, and 37 are designed to serve a specific protective function tailored for children. These provisions cannot be indefinitely extended once the victim turns 18 unless a competent court exercises its judicial discretion and records specific reasons for doing so. Importantly, such an extension must be preceded by a competency assessment under Section 118 of the Indian Evidence Act, which examines whether the witness, now an adult, possesses the intellectual and psychological capacity to understand and respond to questions independently. Therefore, upon attaining majority, the procedural benefits under POCSO do not continue as a matter of right. The Court acknowledged that a narrow exception may be carved out in exceptional cases, but only after ensuring that such continuation does not cause undue prejudice to the accused or infringe on their right to a fair trial. Finally, the Rajasthan High Court allowed the petitions filed by the accused and ordered that all Special POCSO Courts in the state be informed of the ruling for uniform implementation. The court reaffirmed that the legislative design of the POCSO Act was to create an age-based legal distinction for procedural safeguards and that any deviation from this would undermine the rule of law and constitutional protections guaranteed to every citizen, including those accused of heinous crimes.