Reference Made To The Statement Of vs . on 25 February, 2026

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    Madras High Court

    In Re: Reference Made To The Statement Of vs . on 25 February, 2026

    Author: P.Velmurugan

    Bench: P.Velmurugan

                                                                                              Crl.Ref.No.1 of 2026
    
    
                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS
    
                                                       DATED : 25.02.2026
    
                                                                 CORAM
    
                                      THE HONOURABLE MR.JUSTICE P.VELMURUGAN
    
                                                                   AND
    
                                      THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
    
                                                       Crl.Ref.No.1 of 2026
    
    
                         In Re: Reference made to the statement of
                                mentally or physically disabled Victim Child.
    
                                                                     Vs.
    
                                  The Sessions Judge
                                  Special Court for Exclusive trial of
                                  Cases under POCSO Act, Chennai - 104                      ...Respondent
    
                         Prayer:-
                         To consider the reference made under Section 395(2) of Cr.P.C. in
                         Spl.S.C.No.144 of 2024 on the file of the Special Court for Exclusive Trial
                         of Cases under POCSO Act, Chennai – 104 as to “Whether Section 167(5A)
                         (b) or Section 183(6)(b) BNSS is applicable to a statement recorded by a
                         Magistrate under Section 25 of the POCSO Act and whether such statement
                         can be treated as the Chief examination statement of a victim child who is
                         mentally or physically disabled?”
    
                                        For Respondent        : Mr. Arun Anbumani
    
    
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                                                                                                 Crl.Ref.No.1 of 2026
    
    
                                                                    ORDER
    

    (Order of the Court was made by P.VELMURUGAN, J.)

    The Registry of this Court received a letter dated 11.11.2025 in

    SPONSORED

    Dis.No.883 of 2025 from the learned Sessions Judge, Special Court for

    Exclusive Trial of cases under the Protection of Children from Sexual

    Offences Act, Chennai, making a Reference under Section 395(2) of the

    Code of Criminal Procedure, 1973 in connection with Spl.S.C.No.144 of

    2024. The Reference raises a question of law regarding the treatment of the

    statement of a victim child who is mentally or physically disabled. The said

    Reference having been placed before this Bench, the matter is taken up for

    consideration.

    2. The question of law referred for the consideration of this Court

    reads as follows:

    “Whether Section 167(5A)(b) or 183(6)(b) BNSS is
    applicable to a statement recorded by a Magistrate under
    Section 25 of the POCSO Act and whether it can be treated as
    Chief examination statement of a victim child who is mentally
    or physically disabled?”

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    3. In the Reference made by the learned Special Judge, the provision

    was inadvertently mentioned as Section 167(5A)(b) of Cr.P.C. instead of

    Section 164(5A)(b) of the Code of Criminal Procedure, 1973. Therefore, this

    Court called for the entire records relating to Spl.S.C.No.144 of 2024 from

    the trial Court for the purpose of examining the issue involved in the

    Reference.

    4. A perusal of the records shows that the All Women Police Station,

    Saidapet registered a case in Crime No.3 of 2024 on 18.03.2024 for the

    offences under Section 451 of the Indian Penal Code and Sections 9(k) and

    9(n) of the Protection of Children from Sexual Offences Act, 2012 read with

    Section 10 of the Protection of Children from Sexual Offences Act, 2012

    (hereinafter referred to as the “POCSO Act”) and subsequently altered the

    offences to Section 451 of IPC and Sections 5(k) and 5(n) read with Section

    6 of the POCSO Act against the accused. After completion of investigation,

    the police laid the charge sheet before the Special Court, and the same was

    taken on file in Spl.S.C.No.144 of 2024. During the course of investigation,

    the statement of the victim child was recorded by the Magistrate (P.W.6)

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    under Section 164 of Cr.P.C. and the said statement was marked as Ex.P.10

    in Spl.S.C.No.144 of 2024. The victim was examined as P.W.2. In this case,

    the victim is a mentally disabled child. In order to prove her mental

    disability, the Doctor who issued the certificate (Ex.P.8) regarding the mental

    disability of the victim was examined as P.W.5. After completion of the trial,

    the learned Special Judge made a Reference as to whether the statement

    recorded under Section 164(5A)(b) of Cr.P.C. corresponding to Section

    183(6)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter

    referred to as “BNSS”) is applicable to the statement recorded by the

    Magistrate under Section 25 of POCSO Act and whether such statement can

    be treated as the examination-in-chief of a victim child who is mentally or

    physically disabled.

    5. Before answering the Reference, it would be appropriate to refer to

    Section 164(5A)(b) of the Cr.P.C., corresponding to Section 183(6)(b) of the

    BNSS, and also to Section 25 of the POCSO Act, which read as follows:

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    Section 164 of Cr.P.C.: Recording of confessions and
    statements:

    …..

    …..

    5-A (a) In cases punishable under section 354, section
    354-A, section 354-B, section 354-C, section 354-D, sub-
    section (1) or sub-section (2) of section 376, (section 376-A,
    section 376-AB, section 376-B, section 376-C, section 376-D,
    section 376-DA, section 376-DB), section 376-E or section 509
    of the Indian Penal Code (45 of 1860), the Judicial Magistrate
    shall record the statement of the person against whom such
    offence has been committed in the manner prescribed in sub-
    section (5), as soon as the commission of the offence is brought
    to the notice of the police;

    Provided that if the person making the statement is
    temporarily or permanently mentally or physically disabled, the
    Magistrate shall take the assistance of an interpreter or a special
    educator in recording the statement;

    Provided further that if the person making the statement
    is temporarily or permanently mentally or physically disabled,
    the statement made by the person, with the assistance of an
    interpreter or a special educator, shall be videographed.

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    5-A(b) A statement recorded under clause (a) of a person
    who is temporarily or permanently mentally or physically
    disabled, shall be considered as a statement in lieu of
    examination-in-chief, as specified in section 137 of the Indian
    Evidence Act, 1872, such that the maker of the statement can be
    cross-examined on such statement, without the need for
    recording the same at the time of trial.

    Section 183 of BNSS Recording of confessions and
    statements.

    …..

    …..

    6 (a) In cases punishable under section 64, Section 65,
    Section 66, Section 67, Section 68, Section 69, Section 70,
    Section 71, Section 74, Section 75, Section 76, Section 77,
    Section 78, Section 79 or Section 124 of Bharatiya Nyaya
    Sanhita, 2023, the Magistrate shall record the statement of the
    person against whom such offence has been committed in the
    manner prescribed in sub-section (5), as soon as the
    commission of the offence is brought to the notice of the police;

    Provided that such statement shall, as far as practicable,
    be recorded by a woman Magistrate and in her absence by a
    male Magistrate in the presence of a woman:

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    Provided further that in cases relating to the offences
    punishable with imprisonment for ten years or more or with
    imprisonment for life or with death, the Magistrate shall record
    the statement of the witnesses brought before him by the police
    officer:

    Provided also that if the person making the statement is
    temporarily or permanently, mentally or physically disabled, the
    Magistrate shall take the assistance of an interpreter or a special
    educator in recording the statement;

    Provided also that if the person making the statement is
    temporarily or permanently, mentally or physically disabled, the
    statement made by the person, with the assistance of an
    interpreter or a special educator, shall be recorded through
    audio-video electronic means preferably by mobile phone;

    6(b): A statement recorded under clause (a) of a person
    who is temporarily or permanently mentally or physically
    disabled, shall be considered as a statement in lieu of
    examination-in-chief, as specified in section 142 of the
    Bharatiya Sakshya Adhiniyam, 2023, such that the maker of the
    statement can be cross-examined on such statement, without the
    need for recording the same at the time of trial.

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    S.25 of POCSO Act: Recording of statement of a child
    by Magistrate:–

    (1) If the statement of the child is being recorded under
    section 164 of the Code of Criminal Procedure, 1973 (2 of
    1974) (herein referred to as the code), the Magistrate recording
    such statement shall, notwithstanding anything contained
    therein, record the statement as spoken by the child:

    Provided that the provisions contained in the first proviso
    to sub-section (1) of section 164 of the Code, in so far as it
    permits the presence of the advocate of the accused, shall not
    apply in this case.

    (2) The Magistrate shall provide to the child and his
    parents or representative, a copy of the document specified
    under section 207 of the Code upon the final report being filed
    by the police under section 173 of that Code.”

    6. A careful reading of Section 164(5A)(b) of the Cr.P.C / Section

    183(6)(b) of BNSS shows that a statement recorded under clause (a) from a

    person who is temporarily or permanently mentally or physically disabled

    shall be treated as a statement in lieu of examination-in-chief, as specified in

    Section 137 of the Indian Evidence Act, 1872 / Section 142 of the Bharatiya

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    Sakshya Adhiniyam, 2023. The maker of such statement can thereafter be

    cross-examined on the basis of that statement without the necessity of

    recording the chief examination again at the time of trial.

    7. Though clause (a) of the above provision refers to certain offences

    under various sections and does not specifically refer to offences under the

    POCSO Act, a reading of Section 25 of the POCSO Act shows the manner in

    which the Magistrate has to record the statement of a child under Section

    164 of the Cr.P.C., namely that the Magistrate shall record the statement of

    the child as spoken by the child. Further, Section 164(5A)(b) of the Cr.P.C.

    does not refer to the age of the person. It only states that where a person is

    temporarily or permanently mentally or physically disabled, the statement

    recorded from such person can be treated as the examination-in-chief and the

    witness can be cross-examined on the basis of that statement without the

    need to record the chief examination again at the time of trial.

    8. The POCSO Act deals with offences committed against children

    below eighteen years of age. While Section 164 of the Cr.P.C. applies to all
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    persons, the provisions of the POCSO Act specifically apply to children.

    Therefore, if the Court is satisfied that the statement recorded under Section

    164 of Cr.P.C. is made by a child who is temporarily or permanently

    mentally or physically disabled, the same may be treated as a statement

    recorded under Section 25 of the POCSO Act, and can be treated as the

    examination-in-chief. The maker of the statement may then be summoned

    only for the purpose of cross-examination, without the necessity of recording

    the chief-examination again during trial.

    9. Accordingly, the Reference is answered to the effect that the

    statement recorded by the Magistrate under Section 164(5A)(b) of Cr.P.C.

    corresponding to Section 183(6)(b) of BNSS is applicable to the statement

    recorded by the Magistrate under Section 25 of the POCSO Act.

                                                                                               [P.V.,J.]     [M.J.R.,J.]
                                                                                                     25.02.2026
    
    
                         ksa-2
    
    
    
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                                                                                        Crl.Ref.No.1 of 2026
    
    
                         To
    
                         The Sessions Judge
                         Special Court for Exclusive trial of
                         Cases under POCSO Act, Chennai - 104
    
    
    
    
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                                                                                      Crl.Ref.No.1 of 2026
    
    
                                                                                P.VELMURUGAN, J.,
                                                                                           AND
                                                                                M.JOTHIRAMAN, J.,
    
                                                                                                  ksa-2
    
    
    
    
                                                                                 Crl.Ref.No.1 of 2026
    
    
    
    
                                                                                           25.02.2026
    
    
    
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