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 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 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026
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) 3 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 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: 4
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 “Section 164 of Cr.P.C.: Recording of confessions and statements:
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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.5
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 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.
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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:
6
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 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.7
https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 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 8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 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 9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 12/03/2026 12:06:07 pm ) Crl.Ref.No.1 of 2026 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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