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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ORDER
(Order of the Court was made by P.VELMURUGAN, J.)
The Registry of this Court received a letter dated 11.11.2025 in
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?”2
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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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Crl.Ref.No.1 of 2026“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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Crl.Ref.No.1 of 20265-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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Crl.Ref.No.1 of 2026Provided 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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Crl.Ref.No.1 of 2026S.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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Crl.Ref.No.1 of 2026Sakshya 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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To
The Sessions Judge
Special Court for Exclusive trial of
Cases under POCSO Act, Chennai - 104
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P.VELMURUGAN, J.,
AND
M.JOTHIRAMAN, J.,
ksa-2
Crl.Ref.No.1 of 2026
25.02.2026
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