RAJASTHAN HIGH COURT
Farjand Ali, J.
Jasaram Pander and Anr. – Petitioner
versus
State of Rajasthan and Anr. – Respondents
S.B. Criminal Misc. (Pet.) No.2282 of 2025 Connected with S.B. Criminal Misc. (Pet.) No.6206 of 2024 and S.B. Criminal Misc. (Pet.) No.7786 of 2024
Decided on 27.5.2025

IMPORTANT POINTS
(1) Examination of child victim – Once individual crosses statutory threshold of eighteen years and becomes adult, very rationale underpinning procedural shield falls away – It would be a legal incongruity to extend benefit of Section 33(2) to a person who no longer qualifies as a “child” under the Act – Transposition from status of a child to that of an adult during trial is not merely biological but has juridical consequences.
(2) Interpretation of Statute – Word “shall”, though prima facie mandatory in tone, does not invariably carry a compulsory connotation.

Headnote:

(A) Protection of Children from Sexual Offences Act, 2012 – Section 33(2) – Indian Penal Code, 1860 – Sections 376(D) and 363 – Examination of child victim – Procedural law is vehicle of justice, not its destination, and must not be interpreted in a manner that frustrates ends of substantive justice or impinges upon foundational rights of accused – Procedural safeguard under Section 33(2), which mandates that all questions posed to child witness during examination be routed through Special Court, is procedural in nature and not intrinsic to ascertainment of guilt or innocence – Necessity of protection under Section 33(2) stems from unique vulnerability of children during judicial proceedings – However, once individual crosses statutory threshold of eighteen years and becomes adult, very rationale underpinning procedural shield falls away – It would be a legal incongruity to extend benefit of Section 33(2) to a person who no longer qualifies as a “child” under the Act – Transposition from status of a child to that of an adult during trial is not merely biological but has juridical consequences, including capacity to withstand adversarial process of direct cross-examination, which is a core component of fair trial principles under Article 21 of Constitution of India. (Paras 30 and 32)

(B) Protection of Children from Sexual Offences Act, 2012 – Section 33(2) – Examination of child victim – While POCSO Act envisions a child-friendly process, it cannot be construed to eclipse cardinal principles of criminal jurisprudence – Right to cross-examine a witness is a critical right vested in accused, forming part of due process guarantee – Procedural routing of questions through Court, though salutary in intent, cannot be imposed rigidly once its statutory preconditions cease to exist – In such a scenario, continuing to insist upon judicial intermediation under Section 33(2) for an adult witness would amount to procedural overreach, and in effect, superfluous formalism divorced from statutory mandate – When a victim, who was biologically under eighteen at the time of offence, attains majority during trial, he or she ceases to be a “child” for purposes of procedural application under the Act – Biological age is sole determinative criterion for invoking protections under POCSO framework, and this clarity must equally inform temporal scope of procedural entitlements under Section 33(2) when witness ceases to be a child in eyes of law. (Paras 33, 36 and 38)

(C) Protection of Children from Sexual Offences Act, 2012 – Sections 33(2) and 37 – Examination of child victim – Object of Section 33(2) is not to create an impenetrable procedural wall around the witness but to prevent traumatization of a child during trial – Compelling accused to pre-disclose his line of defence by routing questions through Special Court, particularly when prosecution witness has attained majority and possesses mature faculties of prudence, effectively allows such a witness to anticipate, pre-empt, and accordingly tailor responses – Cross-examination serves indispensable purpose of shaking credibility of witness, eliciting concealed truths and bringing on record facts hitherto undisclosed in chief-examination – Accused is entitled to a trial where procedural advantages do not unduly tilt in favour of prosecution, and where truth is allowed to emerge through robust, adversarial confrontation, rather than be concealed beneath veil of overextended procedural paternalism – Procedural mandate of conducting trial in camera and in presence of parents or any other person in whom child has trust or confidence, as stipulated under Section 37 of POCSO Act, is likewise contingent upon witness continuing to qualify as a “child” under Section 2(d) of Act – Once witness crosses threshold of majority, application of Section 37 ceases ipso jure, and trial must thereafter proceed in accordance with general procedural framework under Code of Criminal Procedure, unless court independently finds compelling reasons, duly recorded, to continue such arrangements in interest of justice or witness welfare. (Paras 43, 45, 77, 78 and 79)

(D) Interpretation of Statute – It is a well-settled canon of statutory construction that word “shall”, though prima facie mandatory in tone, does not invariably carry a compulsory connotation – Classification of “shall” as mandatory or directory must be discerned not in isolation, but in context of legislative scheme, nature and object of statute, and consequences of construing it either way – Determination of whether “shall” imports compulsion depends upon intention of legislature gathered from statute as a whole. (Para 59)

Result: Criminal Misc. Petitions allowed.