Rajasthan High Court: In separate criminal miscellaneous petitions involving common question of law as to ‘whether the procedural safeguard under Section 33(2) of the POCSO Act, 2012, which requires that questions during examination be routed through the Special Court, continues to apply once the victim attains the age of majority during the pendency of trial,’ a single-judge bench of Farjand Ali, J., quashed the orders passed by the Special Courts in all three petitions and held that “the procedural mechanisms of Section 33(2) must be confined to those who continue to remain children at the time of their testimony. Once that status changes, so must the procedure.”
Factual Matrix
The core issue arose in three separate criminal miscellaneous petitions are —
In S.B. Criminal Misc. Pet. No. 2282/2025, the petitioner challenged the trial court’s rejection of his application seeking exemption from the procedural safeguard under Section 33(2) of the POCSO Act. The complainant had lodged an FIR and stated that his 16-year-old daughter who had gone missing was later found and claimed that she was sexually assaulted by the petitioner and others. Though the victim was a minor at the time of the offence, she attained majority during the trial.
In S.B. Criminal Misc. Pet. No. 6206/2024 and 7786/2024, similar issues arose where the victim turned 18 before trial testimony. The petitioner was denied permission for direct cross-examination and later denied adjournment for cross-examination.
Common Question of Law
Whether the procedural safeguard under Section 33(2) of the POCSO Act, 2012, which requires that questions during examination be routed through the Special Court, continues to apply once the victim attains the age of majority during the pendency of trial?
Petitioners’ Contentions
The petitioners contended that the procedural safeguards under Section 33(2) of the POCSO Act are applicable only while the person qualifies as a “child” under Section 2(d), i.e., below 18 years of age and once the prosecutrix attains majority, the rationale behind shielding her from direct cross-examination ceases, and continued application of such procedures violates the accused’s right to a fair trial under Article 21 of the Constitution of India.
The petitioner cited Eera v. State, (2017) 15 SCC 133, where it was emphasized that “child” must be interpreted strictly in the biological sense, not based on mental or emotional maturity. It was contended that the mandatory intermediation of the Court for cross-examination post-majority results in “procedural asymmetry” in a trial already burdened with the presumption of guilt under Section 29 of the POCSO Act.
State’s Contentions
However, the State argued for continuation of protection and stated that the object of Section 33(2) is to minimize the trauma to victims of sexual offences and to shield them from adversarial cross-examination regardless of whether they have crossed the age of majority. It was contended that psychological trauma does not disappear on attaining 18 years, and victims who were minors at the time of the offence should continue to receive such protections to prevent re-victimization. It was further argued that a purposive interpretation of the POCSO Act is necessary and advocated that “the protection should continue through all stages of judicial process” if the victim was a child at the time of offence.
Court’s Observation
Constitutional and Jurisprudential Backdrop
The Court extensively examined the POCSO Act’s purpose and described it as a “sui generis legislative instrument crafted to address the acute vulnerability of children”, which has its root in Article 15(3) of the Constitution of India and India’s obligations under the UN Convention on the Rights of the Child. The Court noted that the POCSO Act aims not only to penalise offences but to ensure that children are not further traumatized by the justice process.
“The Act’s preambular objectives and structural provisions—including the establishment of child-sensitive Special Courts—underscore the legislature’s intention to secure not only conviction for child-related sexual offences but also to ensure that the criminal justice process itself does not inflict secondary trauma upon child victims. It is this dual focus on accountability and protection that renders the POCSO framework both remedial and progressive in character.”
The Court recognised that the Act’s procedural regime is remedial and protective in nature, designed to establish a child-sensitive legal framework. However, the Court also emphasised that the POCSO Act is not an ordinary penal statute, but its procedural privileges cannot override the fair trial rights of the accused indefinitely.
Interpretation of Section 33(2) — Age-Bound Procedural Safeguard
The Court recognised the dual objectives of the POCSO Act, i.e., protection of children and establishment of child-friendly procedures. However, it clarified that procedural safeguards like those under Section 33(2) are not absolute and must be interpreted strictly within the contours of the statutory text.
Referring to the statutory language, the Court noted that “from a plain reading of Section 33(2), it is evident that the provision explicitly refers to ‘questions to be put to the child,’ thereby reinforcing the requirement to consider the definition of ‘child’ as per Section 2(d) of the Act.”
The Court strongly relied on the doctrine that “prudence and age are juridically interconnected,” and once the statutory threshold of eighteen years is crossed, the basis for special procedural protection evaporates.
“The calibration of criminal liability in such contexts hinges not merely on biological age but also on psychological capacity, yet only within clearly demarcated statutory limits. Hence, jurisprudential coherence demands that the attainment of biological majority must also serve as a cut-off point for child-specific procedural privileges, unless a statute explicitly provides otherwise.”
The Court held that “Section 33, being primarily aimed at shielding the vulnerabilities of childhood, loses its functional justification once those vulnerabilities cease to exist with the passage into adulthood.”
Victim Protection v. Fair Trial Rights
The Court acknowledged the potential trauma victims may endure even after attaining majority; however, it firmly held that the right of the accused to fair and effective cross-examination under Article 21 is paramount, especially in light of the reverse burden of proof under Section 29 of the POCSO Act.
The Court rejected the idea of continuing protection post-majority on equitable or humanitarian grounds and held that it would amount to “judicial legislation.” The Court emphasised that “the procedural safeguard under Section 33(2)… is procedural in nature and not intrinsic to the ascertainment of guilt or innocence.” The Court further asserted that continuing such protection would infringe on the right to a fair trial,
“Requiring the accused to pre-disclose their line of cross-examination through a Special Court, in such circumstances, gives an unfair strategic advantage to a now-prudent witness who may adapt their responses accordingly, thereby violating the principles of natural justice and the right to a fair defence.”
The Court stated that the requirement of questions to be routed through the Court even when the witness is now an adult result in “procedural asymmetry” and “curated, cautious replies”, thereby weakening the defence’s ability to elicit spontaneous truth.
“Curtailing or proceduralizing the right of cros-sexamination by invoking Section 33(2) protections for a nowadult witness—who no longer retains the psychological or cognitive vulnerabilities of a child—constitutes a grave procedural asymmetry. It not only impairs the effectiveness of the defence but also risks violating the principle of audi alteram partem, thereby encroaching upon the fundamental right to a fair trial under Article 21 of the Constitution of India.”
Court’s Decision
The Court held that —
- The procedural safeguard under Section 33(2) of the POCSO Act ceases to apply once the victim attains majority, even if the offence was committed when the victim was a child.
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The right of the accused to a fair and effective cross-examination, especially under the reverse burden of proof regime in Section 29, must be protected.
The Court quashed the orders passed by the Special Courts in all three petitions and remanded back the matters to the concerned trial courts with directions to permit direct cross-examination of the prosecutrix, subject to regular evidentiary norms. The Court also vacated the stay on the trial proceedings which was imposed earlier.
[Jasaram Pander v. State of Rajasthan, S.B. Criminal Misc. Pet. No. 2282/2025, 6206/2024, and 7786/2024, Decided on 27-05-2025]
Advocates who appeared in this case :
Mr. Vineet Jain, Sr. Advocvate with Mr. Abhishek Purohit, Mr. Umesh Kant Vyas (Shirmali), Mr. Divik Mathur, Mr. Gajendra Singh Butati, Mr. Vichitra Singh, Shri Krishan Chaudhary, Mr. Tananjay Pramar, Mr. B.S. Mertia, Mr. Sanjay Bishnoi, Mr. Naresh Rajpurohit, Mr. Ramprakash Dudi, Mr. Karmendra Singh, Mr. Ankur Mathur and Mr. Rajak Khan Haider, Counsel for the Petitioners
Mr. Deepak Chaudhary, AAG, Mr. N.K. Gurjar, AAG, Mr. Vikram Rajpurohit, Dy.G.A., Mr. Yuvraj Sonal, Mr. Vishal Sharma, Ms. Advaita Sharma, Mr. Piyush Sharma, Mr. Mrinal Khatri, Ms. Deepti Sharma and Ms. Sapna Vaishnav, Counsel for the Respondent
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