Section 26(1) of the POCSO Act mandates that the statement of a child victim must be recorded in the presence of parents or a person in whom the child has trust, to infuse confidence and ensure the child speaks freely, avoiding trauma.

THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF THE BNSS, PRAYING TO-CALL FOR THE RECORDS IN SPL. C NO. 1188/2025 ARISING OUT OF CRIME NO. 0157/2025) PENDING ON THE FILE OF THE HON’BLE ADDL. DISTRICT AND SESSIONS JUDGE FTSC-III BENGALURU RURAL; SET ASIDE THE PROCEDURAL ACTIONS TAKEN BY THE LEARNED MAGISTRATE DEVANAHALLI DURING THE RECORDING OF THE STATEMENT UNDER SECTION 183 OF THE BNSS IN VIEW OF THE GROSS VIOLATION OF THE MANDATORY PROVISIONS OF SECTION 2691) OF THE POCSO ACT, 2012 IN IMPUGNED ANNX-A DATED 05.11.2025 IN CRIME NO.157/2025.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

ORAL ORDER

The petitioner - complainant is before this Court calling in question an act of the learned Magistrate while recording the statement of the victim – child, aged 2 years and 10 months, contrary to the mandatory provisions of Section 26(1) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act’), in Spl.C.No.1188/2025 (arising out of crime No.157/2025), registered for the offences under Sections 65(2) of the BNS and Sections 3(b), 4(2), 5(n), 5(l) and 6 of the Act.

2. Heard Sri Abhay R.S., learned counsel along with Ms.Ananditha Reddy, learned counsel for petitioners and Sri B.N.Jagadeesha, learned Additional State Public Prosecutor for respondent No.1.

3. Facts in brief, germane, are as follows:

The first petitioner is the mother – complainant and the second respondent is the accused. Respondent No.2 and petitioner No.1 get married on 26.05.2022. A girl child is born from the wedlock. On 26.10.2025, the child is traumatized and is said to have narrated to her mother that while changing the diaper, the father has indulged in acts which would become the ingredients of the offences under the Act. In pursuance of the said narration by the child, a crime in crime No.157/2025 comes to be registered by the first petitioner - mother on 28.10.2025, for the afore-quoted offences. The trial is on.

4. The issue is not with regard to the merit of the matter. The concerned Court examines the child and the statement of the child under Section 183 of the BNSS is recorded on 05.11.2025. The statement recorded is as follows:

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(Emphasis added)

5. Learned counsel for the petitioners submits that the examination of the child is contrary to Subsection (1) of Section 26 of the Act, which mandates that the statement of the child should be recorded in the presence of the parents of the child or any other person in whom the child has trust or confidence. The afore-quoted statement of the child, who at the relevant point in time was 2 years and 10 months, is recorded contrary to the provisions of the Act. There is certain ambiguity in the second paragraph of the afore-quoted statement of the child, which indicates that the statement was recorded in the presence of the mother. However, there is ambiguity.

6. Learned counsel for the petitioners submits based upon this a