IMPORTANT POINT
The interpretation of 'child' in the Protection of Children from Sexual Offences Act, 2012, extends to victims of sexual offences regardless of their age at the time of examination, ensuring continued protection from aggressive cross-examination.

JUDGMENT :

THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

Can the mode of examination contemplated under section 33(2) of the Protection of Children from Sexual Offences Act, 2012 be extended to a victim who is no longer a child? The aforesaid question arises for consideration in this original petition under Article 227 of the Constitution of India.

2. Petitioner is the sole accused in a proceeding under the Protection of Children from Sexual Offences Act, 2012 [for short, ‘the Act’] and also under the Indian Penal Code, 1860 for sexual offences including rape of a minor girl. The proceeding is pending as S.C. No.770/2023 on the files of the Fast Track Special Court, Punalur. The victim was examined as PW1 on 01.12.2023 and she was cross-examined on 03.06.2024. During the course of the cross-examination, the learned defence counsel requested permission to put questions directly to the victim as it transpired that she had attained the age of majority on 04.12.2023. According to the petitioner, the protection under Section 33(2) of the Act, ought not to be extended to the witness as she had crossed the age of minority and is no longer a child. The Special Court refused to accept the plea of the defence counsel, and hence, this petition seeking directions to the Special Court to permit the defence counsel to cross-examine PW1 directly without putting questions to the court and not to provide the benefit of Section 33(2) of the Act to the victim.

3. Sri. Prakash Mathew Panjikaran, the learned counsel for the petitioner, persuasively submitted that the entire purpose of Section 33(2) of the Act, is to insulate a child from direct and vigorous cross-examination of the defence counsel. According to the learned counsel, the use of the term ‘child’ in the aforementioned provision is indicative of the legislative intention that such protection must be provided only if the person being subjected to examination is below the age of majority, in view of the definition in section 2(d) of the Act. Learned counsel further submitted that the principles of fair trial demand that the exception carved out under the Act while examining a child be accorded only to a child and not to a person, who has crossed the age of eighteen. Learned counsel further relied upon the decisions in Manu Dev v. xxxx (2023 (2) KHC 41) and Unnikrishnan R. v. Sub Inspector of Police, Kurathikadu Police Station and Another (2018 (5) KHC 390) to drive home the contention that cross-examination will be deprived of its very purpose if the questions are not put directly to the witness, especially when the purpose of the provision is only to insulate the child against offensive or aggressive cross-examination.

4. Sri.K.A.Noushad, the learned Public Prosecutor, on the other hand, contended that one of the objectives of the Statute is to insulate the victim of sexual abuse who is a child at the time of the offence from further traumatic experiences. According to the learned Public Prosecutor, reference to Sections 35, 36 and 37 of the Act will clearly indicate the legislative intention and if the request of the petitioner is permitted, the same would offend the intention of the statute.

5. While considering the contentions advanced, it is necessary to bear in mind the objectives and the scheme of the statute under consideration. The Act is a comprehensive legislation, to protect children from sexual offences. A Special Court is created incorporating child-friendly mechanisms, not only for reporting the crime, but also for recording evidence. Section 22 of the Act deals with the special provisions for recording the statement of a victim, section 23 imposes restrictions on asking explicit or embarrassing questions to the victim. The cross-examination of the child should be gentle and non-confrontational and explicit or graphic details should be avoided and be conducted in a child-friendly manner focusing on relevant facts.

6. The term child is defined in section 2(1)(d) of the Act as fol