POCSO Safeguards in Recording Evidence Apply Even After Victim Attains Majority

Source: Gujarat High Court

Why in News? 

Justice Mool Chand Tyagi of the Gujarat High Court decided T v. State of Gujarat & Anr. (2026). The Court set aside the order of the Exclusive POCSO Court, Ahmedabad (Rural), and directed it to record the victim’s deposition in camera under Sections 33(2), 36 and 37 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), even though she had turned 18 by the time the trial began. 

What was the Background of T v. State of Gujarat (2026) Case? 

• An FIR was lodged on 15th March 2026 for offences under the POCSO Act and the Bharatiya Nyaya Sanhita, 2023 (BNS). 
• According to the FIR, the victim girl was about 17 years and 11 months old when the alleged offence was committed. 
• By the time the trial began, she had turned 18. 
• The Exclusive POCSO Court, Ahmedabad (Rural) passed an order that did not follow the POCSO Act’s procedure for recording the victim’s deposition. That order was challenged before the High Court through a Special Criminal Application. 
• Contentions before the High Court:  
  • One side argued that since the victim was now an adult, the petitioner should get an effective opportunity to cross-examine the prosecutrix in accordance with law. 
  • The State argued that the POCSO Court ought to have followed the POCSO Act’s procedure. Its reasoning was that the victim was a minor (about 17 years and 11 months old) at the time of the incident, so the POCSO provisions on recording deposition applied to the trial. 

What were the Court’s Observations? 

On the relevant date for determining age: 

• The Court noted that the FIR was lodged on 15th March 2026, and that the victim was 17 years and 11 months old when the alleged offence was committed. 
• The offence was registered under both the POCSO Act and the BNS. Sections 33(2), 36 and 37 of the POCSO Act therefore applied to the trial. 

On the victim attaining majority before trial: 

• The fact that the victim was over 18 when the trial began does not mean the POCSO Act’s provisions on recording deposition stop applying. 
• The protective procedure under the POCSO Act depends on whether the victim was a child when the offence was committed, not on her age when the trial starts. 

On the impugned order: 

• The order of the Exclusive POCSO Court, Ahmedabad (Rural) was therefore set aside. 

Directions issued: 

• The Exclusive POCSO Court was directed to record the victim’s deposition in camera, in accordance with Sections 33(2), 36 and 37 of the POCSO Act. 
• The petition was disposed of. 

What are the Legal Provisions Governing Recording of a Child Victim’s Evidence under the POCSO Act? 

About: 

• The POCSO Act was enacted to protect children from sexual assault, sexual harassment and pornography. It sets up Special Courts and a child-friendly procedure for reporting offences, recording evidence and conducting trials. 
• Under Section 2(1)(d) of the Act, a “child” means any person below 18 years of age. 

Section 33(2) – Questions to be Put Through the Special Court: 

• When recording the child’s examination-in-chief, cross-examination or re-examination, the Special Public Prosecutor or the counsel for the accused must give their questions to the Special Court. 
• The Special Court then puts those questions to the child. 

Section 36 – Child Not to See the Accused at the Time of Testifying: 

• The Special Court must ensure the child is not exposed in any way to the accused while their evidence is recorded. The accused must still be able to hear the child’s statement and communicate with their advocate. 
• For this purpose, the Special Court may record the child’s statement through video conferencing, single-visibility mirrors, curtains or any other device. 

Section 37 – Trials to be Conducted in Camera: 

• The Special Court must try cases in camera, in the presence of the child’s parents or any other person the child trusts. 
• Where the Special Court thinks the child needs to be examined somewhere other than the court, it may issue a commission under the applicable criminal procedure law.