Statements from mentally disabled victims recorded under Section 164 can serve as examination-in-chief under POCSO Act provisions.

(Order of the Court was made by P.VELMURUGAN, J.)

The Registry of this Court received a letter dated 11.11.2025 in Dis.No.883 of 2025 from the learned Sessions Judge, Special Court for Exclusive Trial of cases under the Protection of Children from Sexual Offences Act, Chennai, making a Reference under Section 395(2) of the Code of Criminal Procedure, 1973 in connection with Spl.S.C.No.144 of 2024. The Reference raises a question of law regarding the treatment of the statement of a victim child who is mentally or physically disabled. The said Reference having been placed before this Bench, the matter is taken up for consideration.

2. The question of law referred for the consideration of this Court reads as follows:

“Whether Section 167(5A)(b) or 183(6)(b) BNSS is applicable to a statement recorded by a Magistrate under Section 25 of the POCSO Act and whether it can be treated as Chief examination statement of a victim child who is mentally or physically disabled?”

3. In the Reference made by the learned Special Judge, the provision was inadvertently mentioned as Section 167(5A)(b) of Cr.P.C. instead of Section 164(5A)(b) of the Code of Criminal Procedure, 1973. Therefore, this Court called for the entire records relating to Spl.S.C.No.144 of 2024 from the trial Court for the purpose of examining the issue involved in the Reference.

4. A perusal of the records shows that the All Women Police Station, Saidapet registered a case in Crime No.3 of 2024 on 18.03.2024 for the offences under Section 451 of the Indian Penal Code and Sections 9(k) and 9(n) of the Protection of Children from Sexual Offences Act, 2012 read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”) and subsequently altered the offences to Section 451 of IPC and Sections 5(k) and 5(n) read with Section 6 of the POCSO Act against the accused. After completion of investigation, the police laid the charge sheet before the Special Court, and the same was taken on file in Spl.S.C.No.144 of 2024. During the course of investigation, the statement of the victim child was recorded by the Magistrate (P.W.6)

under Section 164 of Cr.P.C. and the said statement was marked as Ex.P.10 in Spl.S.C.No.144 of 2024. The victim was examined as P.W.2. In this case, the victim is a mentally disabled child. In order to prove her mental disability, the Doctor who issued the certificate (Ex.P.8) regarding the mental disability of the victim was examined as P.W.5. After completion of the trial, the learned Special Judge made a Reference as to whether the statement recorded under Section 164(5A)(b) of Cr.P.C. corresponding to Section 183(6)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS”) is applicable to the statement recorded by the Magistrate under Section 25 of POCSO Act and whether such statement can be treated as the examination-in-chief of a victim child who is mentally or physically disabled.

5. Before answering the Reference, it would be appropriate to refer to Section 164(5A)(b) of the Cr.P.C., corresponding to Section 183(6)(b) of the BNSS, and also to Section 25 of the POCSO Act, which read as follows:

“Section 164 of Cr.P.C.: Recording of confessions and statements:

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5-A (a) In cases punishable under section 354, section

354-A, section 354-B, section 354-C, section 354-D, sub- section (1) or sub-section (2) of section 376, (section 376-A, section 376-AB, section 376-B, section 376-C, section 376-D, section 376-DA, section 376-DB), section 376-E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in t