ANUJITH Vs. STATE OF KERALA

JUDGEMENT

(1.) Can the mode of examination contemplated under Sec. 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 1/12/2023 and she was cross-examined on 3/6/2024. 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 4/12/2023. According to the petitioner, the protection under Sec. 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 Sec. 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 Sec. 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 Sec. 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.