Rajasthan High Court Rules: POCSO Protections Cease When Victim Attains Majority

Jodhpur – In a landmark ruling that could reshape the conduct of trials under the Protection of Children from Sexual Offences (POCSO) Act, 2012, the Rajasthan High Court has held that procedural safeguards, such as routing cross-examination questions through a Special Court, do not apply once a victim attains the age of majority during the pendency of a trial. The judgement, delivered by Justice Farjand Ali on May 27, addresses a pivotal legal question: whether the protective mechanisms under Section 33(2) of the POCSO Act remain applicable when a victim transitions from childhood to adulthood during legal proceedings. This ruling, pronounced in three connected criminal miscellaneous petitions (S.B. Criminal Misc. Petition Nos. 2282/2025, 6206/2024, and 7786/2024), sets a significant precedent for balancing victim protection with the accused’s right to a fair trial.

Background of the Case

The judgement arises from three separate but interconnected petitions challenging orders passed by Special Courts under the POCSO Act. In S.B. Criminal Misc. Petition No. 2282/2025, petitioner Jasaram Pander, accused of offences under Sections 376(D) and 363 of the Indian Penal Code (IPC) and Sections 5(g)/6 of the POCSO Act, sought exemption from Section 33(2)’s requirement to submit cross-examination questions in writing to the court. The petitioner argued that since the victim had attained majority, the procedural safeguard was no longer applicable. The Special Court in Nagaur dismissed this application on February 7, 2025, prompting the petitioner to approach the High Court.

Similarly, in S.B. Criminal Misc. Petitions Nos. 6206/2024 and 7786/2024, petitioner Abdul Haiyat challenged orders dated August 8, 2024, and September 10, 2024, respectively, from a Special Court in Bhilwara. These orders rejected his plea for direct cross-examination of the victim, who had turned 18, and denied an adjournment for cross-examination, closing the opportunity altogether. The petitions collectively raised a common legal issue: whether the protective procedure under Section 33(2) of the POCSO Act, which mandates that questions during examination of a child be routed through the Special Court, continues to apply when the victim becomes an adult.

The court framed the central issue as follows: “Whether the protective procedure prescribed under Section 33(2) of the POCSO Act, 2012, requiring that questions during examination-in-chief, cross-examination, or re-examination of a child be routed through the Special Court, continues to apply once the victim attains the age of majority during the pendency of trial?”

This question, the court noted, has “wider implications on the conduct of trials under the POCSO Act.” To ensure a comprehensive examination, Justice Ali invited submissions from senior counsel and members of the Bar, recognizing the issue’s recurring nature and its impact on child-centric justice and fair trial rights.

Arguments and Submissions

The petitioners argued that Section 33(2)’s safeguards are exclusively for a “child,” defined under Section 2(d) as a person below 18 years. They contended that once a victim attains majority, the rationale for these protections—shielding a child from the trauma of adversarial cross-examination—ceases to exist. Citing the Supreme Court’s ruling in Eera v. State (2017), the petitioners emphasized that “child” refers strictly to biological age, not mental or psychological vulnerability. They invoked the principle of cessante ratione legis, cessat lex ipsa (when the reason for a law ceases, the law itself ceases), arguing that extending child-specific protections to adults would violate the accused’s right to a fair trial under Article 21 of the Constitution.

In contrast, respondents, including the State, argued that the emotional trauma of sexual offences persists beyond childhood, necessitating continued protection under Section 33(2). They cited international jurisprudence and Supreme Court guidelines in Alakh Alok Srivastava v. Union of India, which emphasize child-sensitive procedures to prevent re-traumatization. The respondents contended that the victim’s age at the time of the offence or initiation of proceedings should govern the application of procedural safeguards, not their age at trial.

Court’s Reasoning and Observations

The court’s 58-page judgement meticulously dissects the legislative intent behind the POCSO Act, balancing its child-centric protections with constitutional guarantees of a fair trial. Justice Ali underscored the Act’s dual purpose: protecting children from sexual offences and ensuring a trauma-free judicial process. However, he clarified that procedural safeguards like Section 33(2) are age-contingent and tied to the definition of a “child” under Section 2(d).

“The necessity of the protection under Section 33(2) stems from the unique vulnerability of children during judicial proceedings. However, once the individual crosses the statutory threshold of eighteen years and becomes an adult, the very rationale underpinning the procedural shield falls away,” the court observed.

The judgement relies heavily on the Supreme Court’s decision in Eera v. State (2017), which held that “child” under the POCSO Act refers strictly to biological age. The court rejected the notion of a “former child” category, stating, “To extend the benefit of Section 33(2) to a person who no longer qualifies as a ‘child’ under the Act would be a legal incongruity.”

The court also addressed the respondents’ argument that Section 33(2)’s use of “shall” mandates its continued application. It clarified that “shall” is mandatory only when the witness is a child at the time of testimony. “The word ‘shall’ as employed in Section 33(2) is to be construed as mandatory in application to a ‘child,’ and not as an immutable procedural command irrespective of the witness’s age,” the court held.

The judgement further emphasized the accused’s right to effective cross-examination, particularly under the POCSO Act’s reverse burden of proof (Section 29). “Curtailing or proceduralizing the right of cross-examination by invoking Section 33(2) protections for a now-adult witness constitutes a grave procedural asymmetry,” Justice Ali noted, highlighting that such restrictions could allow a mature witness to anticipate and tailor responses, undermining the adversarial process.

The court also analyzed Section 37, which mandates in-camera trials in the presence of a child’s parents or trusted persons. It held that this provision, too, ceases to apply once the witness attains majority, as it is tied to the psychological dependency of a child. “Requiring an adult to testify under protections meant for children not only borders on the absurd but patronizes their agency, while undermining the procedural symmetry owed to the accused,” the court remarked.

The court allowed all three petitions, setting aside the impugned orders dated February 7, 2025, August 8, 2024, and September 10, 2024. It directed the trial courts to permit direct cross-examination of the victims, who are now adults, subject to judicial oversight to ensure decorum and prevent harassment. The court ordered that the victims in the respective cases be summoned again for cross-examination.

To ensure widespread compliance, the court directed the Registrar General to circulate the judgement to all Special Courts under the POCSO Act. It further mandated that courts trying POCSO cases allow direct cross-examination of victims who have attained majority, unless specific reasons justify continued protections. “The procedural insulation afforded by Section 37 shall only extend until the prosecutrix remains under the age of 18,” the court clarified.

The judgement also cautioned against dilatory tactics, directing trial courts to adhere to statutory timelines under the POCSO Act and reject adjournments without bona fide reasons.

This ruling marks a significant shift in the interpretation of the POCSO Act, clarifying the temporal scope of its procedural safeguards. Legal experts view it as a balanced approach that upholds the Act’s protective intent while safeguarding the accused’s constitutional rights.

However, some child rights advocates express concern that the judgement could expose young adult victims to aggressive cross-examination, potentially causing distress. “The trauma of sexual offences doesn’t vanish at 18. Courts must exercise discretion to protect vulnerable witnesses,” argued a respondent counsel.

The judgement is expected to influence POCSO trials nationwide, prompting courts to reassess procedural safeguards when victims turn 18. It reinforces the principle that while the POCSO Act’s substantive provisions remain applicable based on the victim’s age at the time of the offence, its procedural protections are not perpetual.