Madrasreserved High Court · 2025

Crl.R.C.No.1329 of 2025This Criminal Revision has been filed as against the order passed in Crl.M.P.No.860 of 2025 in Spl.S.C.No.31 of 2021 dated 16.07.2025 on the file of Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai, thereby allowing the petition filed by the victim under Section 265(3) read with Section 530(iii) of BNSS Act to record her evidence by audio and video conferencing in strict adherence to the Madras High Court Video Conferencing Rules, 2019. 2. The case of the prosecution is that when the victim girl visited India at the age of about 10 years, the petitioner committed sexual harassment. Hence, the complaint.3. On receipt of the complaint, the first respondent registered FIR in Crime No.20 of 2020 for the offence punishable under Section 6 of Protection of Child from Sexual Offences Act, 2012. After completion of investigation, final report was filed and the same was taken cognizance by the Trial Court in Spl.S.C.No.31 of 2021, for the offences punishable under Sections 342, 376AB Sections 5(m) read with 6 of POCSO Act, 2012.4. Pending trial, the second respondent filed a petition seeking permission to record her evidence by audio and video electronic means as per Page 2 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025Video Conferencing Rules, 2019, on the ground that she has been put through severe mental trauma and anxiety. She has various health issues and she has been suffering from severe eczema, ocular health issues and various respiratory issues, for which, she also had to suspend her studies. She has no good health to travel to India. Further, she does not want to travel to India for giving evidence which will traumatize her further. It was allowed and aggrieved by the same, the present revision is filed.5. The learned Senior Counsel appearing for the petitioner would submit that the petitioner is none other than the grand father's brother of the victim. The impugned order permitting the victim to record her evidence through audio and video conferencing means infringes and curtails the right to fair trial enshrined under Article 21 of the Constitution of India. The petition seeking permission itself is not maintainable. The provisions under Section 265 of BNSS deals with trials by Magistrate's Court and lays down procedure for warrant cases which deals with less serious offences. That apart, the said application was filed without any vakalat and as such, whether the said application was filed with the knowledge and consent of the second respondent is in question. In fact, the petitioner obtained the order in Crl.M.P.No.679 of 2025 dated 13.05.2025, thereby directing the physical appearance of the victim Page 3 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025before the Trial Court as witness for effective cross examination. Instead of challenging the said order, the victim came forward with an application seeking permission to record her evidence through audio and video electronic means. Further, now she had attained majority and she is aged about more than 18 years. Therefore, as per the definition of 'child' as contemplated under the POCSO Act, the provisions under Section 33(2) of the POCSO Act will not be applicable to the victim. Further, the victim also failed to prove, with any medical record, to show that she is physically ill and she is unable to appear before the Trial Court for letting in evidence. The physical presence of witness during chief examination is crucial for the Court to observe their demeanour, which is essential for assessing the credibility and truthfulness of the testimony. Therefore, the evidence recorded through video conferencing would deprive the fundamental right of the accused to effectively cross examine the witness and would prejudice his defence. He further submits that according to this Court Rules on video conferencing, 2020, the victim has to obtain permission from Indian Consulate in London for examining the witness through video conference and then, the Trial Court must appoint a Coordinator from the office of Indian Consulate for examining the witness through video conference in London. The examination of witness can be conducted during Court hours and through the designated video conferencing technology. Further, the reference Page 4 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025and exhibition of documents during cross-examination would not be effective and the time gap of exhibition of documents would reveal the defence of the accused even before appropriate questions are put to the witness. Though the victim stated several illness, she is roaming around the world on international tours and photographs were produced to show that she is travelling to Thailand and Malaysia.6. In support of his contention, he relied upon several Judgments of the Hon'ble Supreme Court of India and other High courts.7. Per contra, the learned counsel for the second respondent submitted that the very challenge of the order passed by the Trial Court, thereby permitting the victim to give her evidence through audio and video means itself is nothing but a clear abuse of process of law and only to drag the proceedings. Already the petitioner filed a petition for further investigation under Section 173(8) of Cr.P.C in Crl.M.P.No.1617 of 2022. It was allowed and the same was set aside by this Court. Therefore, the petitioner filed a discharge petition to discharge him from all the charges. It was dismissed by the Trial Court and aggrieved by the same, he preferred a revision before this Court and the same was also dismissed. Therefore, the petitioner filed petitions one after the other to Page 5 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025drag the proceedings. Absolutely no prejudice would be caused if the victim is examined through audio and video means. It is going to be recorded with strict adherence of Madras High Court video conferencing Rules, 2020. He also produced several medical records of the victim before this Court in order to substantiate the ground raised before the Trial Court that she is not physically fit and suffers from various medical issues. Therefore, it is not possible for the victim to be present before the Trial Court for letting in evidence. Therefore, the Trial Court rightly allowed the petition and it does not warrant any interference by this Court.8. The learned Government Advocate (Crl.side) submitted that the Hon'ble Supreme Court of India and the Hon'ble High Court of various States repeatedly held that the victim can be permitted to depose through video conferencing or by way of a close circuit television, to minimize the trauma of a child witness/victim. He further submitted that though the victim now attained majority, while examining the provisions, the Hon'ble Supreme Court of India expanded the scope of the term vulnerable witness, which has already been taken note of in the preceding discussion. It has to be kept in mind that an adult woman, who is a victim of offence of rape or gang rape, would also be now included in the category of vulnerable witness. Further, the victim is now Page 6 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025residing in foreign country. Hence, the Trial Court permitted the victim to let her evidence through video conferencing. However, it must be ensured that she should be examined in the presence of the petitioner and no prejudice would be caused to him.9. In support of his contention, he relied upon the Judgment of the Hon'ble High Court of Delhi in CRL.M.C.9100 of 2023 & Crl.M.A.33976 of 2023, in the case of Vinod Kumar and another Vs State (NCT of Delhi ) and another dated 22.12.2023.10. Heard the learned counsel on either side and perused the materials available on record.11. It is seen that when the victim girl was in bed, the petitioner came to her room and pushed her to lay in the bed and thereafter, he grabbed her boobs. He lifted her top and sucked her boobs. He put his hand down in her pants. At that juncture, the grand mother called her for being fed. Therefore, she had left the said place. The petitioner resides in India and the victim resides in the United Kingdom. Initially in the United Kingdom, the petitioner had informed the said occurrence to her therapist who had then disclosed it to her Page 7 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025family members. Therefore, the complaint was lodged at the Barnet Police Station, London. Thereafter, the victim's father contacted the first respondent and stated that his daughter was sexually abused by the victim's great uncle, when she was 10 years old viz., five years before when his daughter was in India.12. Admittedly, the victim attained majority. She is not a child. It is relevant to extract Section 33(2) of the POCSO Act as follows:-33. Procedure and powers of Special Court:-(2)The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.13. The word 'child' used under Section 33(2) of the POCSO Act, defines under Section 2(1)(d) of the POCSO Act. “Child” means any person below the age of eighteen years. Therefore, it must be construed strictly to denote biological or chronological age and not mental or intellectual age. 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. It would Page 8 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025be legal incongruity to extend the benefit of Section 33(2) to a person who no longer qualifies as a “child” under the POCSO Act.14. The High Court of Rajasthan held in the case of Jasaram Pander Vs State of Rajasthan in S.B.Criminal Misc(Pet.).No.2282 of 2025 held as follows:-“ 44. It is axiomatic that justice must not only be done but must also be manifestly seen to be done. Nowhere is this more critical than in the domain of criminal law, where the presumption of innocence is the bedrock of constitutional and international human rights jurisprudence. Section 29 of the POCSO Act, however, introduces a statutory presumption of guilt for specific offences, thereby placing a reverse burden upon the accused. In such a statutory regime, the right to effective and direct cross-examination of the prosecution witness becomes the principal tool for dislodging the presumption and asserting innocence. Curtailing or proceduralizing this right through mandatory judicial intermediation-even after the witness has attained majority-imperils the fairness of the trial.45. Indeed, compelling the accused to pre-disclose his line of defencto by routing questions through the Special Court-particularly when the prosecution witness has attained majority and thus possesses mature faculties of prudence-effectively allows such a witness to anticipate, pre-empt, and accordingly tailor responses. This procedural intermediation vitiates the core adversarial essence of cross-examination, which is not a mere formality but a juridical instrument of immense forensic significance. Cross-examination serves the indispensable purpose of shaking the credibility of the witness, eliciting concealed truths, and bringing on record facts hitherto undisclosed in the chief-examination. It is through cross-examination that the defence seeks to probe into the Page 9 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025surrounding circumstances of the incident, expose contradictions, omissions, or embellishments, and thereby test the reliability, veracity, and trustworthiness of the witness. It enables the accused to confront the witness with alternate narratives, subtly or directly, thereby introducing the defence theory without prematurely disclosing strategic contours. This process is not only a procedural right but a substantive safeguard woven into the fabric of criminal jurisprudence. It embodies the right to rebut, the right to confront one's accuser, and the right to impeach credibility, which are core to the adversarial model. Judicially enforced mediation of this process, especially when the witness is no longer within the protective threshold of statutory "childhood," disables the spontaneity and unpredictability essential for testing truth. The filtering of questions through the judicial conduit precludes spontaneous reactions and and gives rise to curated, cautious replies, thereby neutralizing the probative efficacy of inconsistencies and stifling the emergence of unrehearsed or suppressed material facts. In a statutory regime such as the POCSO Act, where Section 29 imposes a reverse burden of proof upon the accused, the stakes are constitutionally heightened. The accused is compelled to disprove guilt rather than merely raise reasonable doubt. In such a context, curtailing or proceduralizing the right of cross-examination by invoking Section 33(2) protections for a now-adult 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. The accused is entitled to a trial where procedural advantages do not unduly tilt in favour of the prosecution, and where the truth is allowed to emerge through robust, adversarial confrontation, rather than be concealed beneath the veil of overextended procedural paternalism. The situation becomes all the more precarious in light of Section 29 of the POCSO Act, which imposes a reverse burden of proof upon the accused. In such a framework, the art of cross-examination emerges not merely as a forensic formality, but as Page 10 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025the linchpin of procedural justice. Cross-examination is an adversarial craft-an interactive and strategic technique wherein the sequence, tenor, and phrasing of questions are often contingent on the witness's preceding answers. The elasticity of questioning, calibrated in real-time based on the demeanour, hesitation or elaboration of the witness, forms the bedrock of truth-extraction and credibility assessment. It is through this dynamic process that defence counsel seeks to pierce the veil of rehearsed testimony, unveil omissions, expose contradictions, and elicit previously undisclosed surrounding circumstances that may either support the defence theory or discredit the prosecution's narrative.46. Sections 231 and 242(3) of the Code of Criminal Procedure offer critical procedural safeguards by permitting the deferment of cross-examination where multiple witnesses speak to the same subject matter. This discretionary latitude serves a pivotal function: to forestall the premature disclosure of the defence strategy, particularly in instances where witnesses are interrelated or share convergent narratives. The jurisprudential logic behind such deferment lies in the recognition that a prudent and mature witness, once privy to the defence posture, may recalibrate or tailor testimony in a manner that neutralizes factual inconsistencies and undermines the adversarial balance. This risk becomes especially pronounced when adult witnesses-who no longer embody the vulnerabilities of childhood-continue to enjoy the procedural cloaking afforded by Section 33 of the POCSO Act, which was designed exclusively to shield children psychological trauma of courtroom participation. To extend these child-centric protections to a now-adult witness under the guise of continued vulnerability effectively warps the procedural equilibrium that undergirds a fair trial. While it is constitutionally permissible-indeed, necessary to provide calibrated procedural protection to vulnerable witnesses under the aegis of Article 15(3) of the Constitution, such accommodation must remain proportionate and temporally confined to the period during which vulnerability exists. The legal system cannot afford to perpetuate procedural insulation beyond the age of majority, especially where such protection encroaches upon the core Page 11 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025rights of the accused, including the right to a meaningful and effective cross-examination. Any curtailment of this right beyond its intended statutory or constitutional mandate not only undermines the adversarial structure of the trial but also raises serious concerns under Article 21 of the Constitution, which guarantees the right to a fair and just procedure. A fair trial, as enshrined under Article 21 of the Constitution, is not a one-sided entitlement but a symmetrical guarantee owed equally to both parties to the lis. Integral to this notion is the accused's right to confront and challenge the testimony of the prosecution's witnesses through the mechanism of cross-examination. This right is not a mere procedural formality but a substantive tool designed to test the veracity, credibility, and reliability of the witness's deposition. For this purpose, it is ordinarily impermissible to insist upon advance disclosure of cross examination questions, as the formulation of subsequent queries often hinges upon the tenor, substance, and internal consistency of replies elicited in response to earlier questions. One of the cardinal objectives of cross-examination is the revelation of truth through spontaneous and unanticipated inquiry-a process inherently frustrated when the defence is compelled to script its examination in advance. Judicial responsibility, therefore, does not lie in shielding adult witnesses from such engagement but in facilitating a process that best uncovers the factual substratum of the case. Indeed, the judiciary is vested with a proactive mandate to aid in the discovery of truth-a duty reflected in statutory provisions such as Section 311 of the Code of Criminal Procedure and Section 165 of the Indian Evidence Act, which empower the court to summon or recall any witness and to pose any question, at any stage, necessary to elicit a just adjudication. These provisions reinforce the inquisitorial facet of an otherwise adversarial process and impose a positive obligation on the court to ensure that justice is not merely done but is seen to be done. This obligation becomes all the more imperative in prosecutions under the POCSO Act, which prescribes exceptionally stringent penalties-including rigorous imprisonment for twenty years, life imprisonment, and even incarceration for the remainder of the natural life of the convict. In such cases, where the liberty Page 12 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025of the accused is at grave risk, procedural shortcuts and evidentiary insulation beyond what the statute authorizes cannot be justified under the garb of benevolence. Therefore, the continued application of Section 33 procedural mechanisms to witnesses who have outgrown the category of “child” risks not only diluting the evidentiary efficacy of cross examination but also jeopardizing the fairness of trial in a legal regime already skewed by presumptions against the accused. Judicial prudence, hence, demands a doctrinally coherent and constitutionally balanced approach that restricts such special protections to the temporally and biologically defined class for whom they were originally intended.”15. Thus, in the curtailment of the right of cross-examination beyond its intended statutory or constitutional mandate not only undermines the adversarial structure of the trial but also raises serious concerns under Article 21 of the Constitution, which guarantees the right to a fair and just procedure. It is not a one-sided entitlement but a symmetrical guarantee owed equally to both parties to the lis. The accused has a right to confront and challenge the testimony of the prosecution's witnesses through the mechanism of cross-examination. This right is not a mere procedural formality but a substantive tool designed to test the veracity, credibility, and reliability of the witness's deposition. One of the cardinal objectives of cross-examination is the revelation of truth through spontaneous and unanticipated inquiry-a process inherently frustrated when the defence is compelled to script its examination in advance.Page 13 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 202516. That apart, the victim failed to prove that she had some medical illness and she is advised not to travel anywhere. Though she has some illness, there is no record to show that she is not advised to travel. In fact, some of the photographs produced by the learned Senior Counsel for the petitioner shows that the victim girl is travelling to several countries. 17. In view of the above, this Court finds infirmity in the order passed by the Trial and is liable to be set aside. Accordingly, the order dated 16.07.2025 passed in Crl.M.P.No.860 of 2025 in Spl.S.C.No.31 of 2021 on the file of Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai is hereby set aside. The victim is directed to be present before the Trial Court to let in evidence physically.18. Accordingly, this Criminal Revision Case is allowed. Consequently, connected Miscellaneous petitions are closed.10.09.2025(½)Internet:YesIndex:Yes/NoSpeaking/Non speaking orderPage 14 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025mnPage 15 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1329 of 2025G.K.ILANTHIRAIYAN. J,mnTo 1. The Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.2. The Inspector of Police, W-8, All Women Police Station, Thirumangalam, Chennai.3. The Public Prosecutor, High Court, Madras.Crl.R.C.No.1329 of 202510.09.2025Page 16 of 16