Recording the Child's Statement and Medical Examination
Chapter Ninety-Nine
Syllabus topic 4.2, the Protection of Children from Sexual Offences Act, 2012. Chapter VI of the Act.
Pages 676 to 680 of 699
In one line
The child's statement is taken where he feels safe, by somebody he is not frightened of, in front of somebody he trusts, and never in the presence of the accused.
In exam wording: sections 24 to 27 of the Protection of Children from Sexual Offences Act, 2012 prescribe the manner of recording the statement of a child by the police and by a Magistrate, additional provisions regarding that statement, and the medical examination of the child.
Why the law has this at all
Everything the prosecution has usually comes from the child, and the ordinary way of getting it destroys it.
A child taken to a police station, kept waiting, questioned by a uniformed man across a table, with his abuser somewhere in the building, will either say nothing or say whatever ends the ordeal fastest. And a statement obtained that way is worth little in court even if it is true, because it can be attacked as the product of the setting.
So Chapter VI moves every element of the process. The place: the child's own residence, or a place of his choice. The person: a woman police officer, not in uniform. The company: the parents, or anybody in whom the child has trust or confidence. The time: never overnight at a police station. And the accused is kept away entirely.
The most striking provision is the proviso to section 25(1). Under section 164 of the Code, an accused's advocate may in certain circumstances be present when a statement is recorded. POCSO switches that off. The child gives his statement to the Magistrate without the accused's lawyer in the room.
Some words this chapter uses
As spoken by the child, in sections 25(1) and 26(1), means recorded in the child's own words, not summarised or translated into the language of a police report.
Section 164 of the Code is the Magistrate's power to record confessions and statements; the corresponding provision of the Bharatiya Nagarik Suraksha Sanhita is section 183.
Section 164A of the Code is the medical examination of a victim of rape; the corresponding provision of the Sanhita is section 184.
Section 24: recording by the police
Sub-section (1), place and person. The statement of the child shall be recorded at the residence of the child, or at a place where he usually resides, or at the place of his choice, and as far as practicable by a woman police officer not below the rank of sub-inspector.
Sub-section (2). The police officer, while recording the statement, shall not be in uniform.
Sub-section (3). The police officer making the investigation shall, while examining the child, ensure that at no point of time the child comes into contact in any way with the accused.
Recording the Child's Statement and Medical Examination
Sub-section (4). No child shall be detained in the police station in the night for any reason.
Sub-section (5). The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.
Note the qualification in sub-section (1). The woman police officer of at least sub-inspector rank is required as far as practicable; the place and the other four rules carry no such qualification.
Section 25: recording by a Magistrate
Sub-section (1). If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973, the Magistrate shall, notwithstanding anything contained therein, record the statement as spoken by the child.
Proviso. The provisions contained in the first proviso to section 164(1) of the Code, so far as it permits the presence of the advocate of the accused, shall not apply in this case.
Sub-section (2). The Magistrate shall provide to the child and his parents or his 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.
Sub-section (2) is easily missed and is a real right. Section 207 of the Code is the supply of copies of the police report and the documents accompanying it, which an accused ordinarily receives. POCSO gives the same set to the child and his parents or representative.
Section 26: additional provisions
Sub-section (1). The Magistrate or the police officer shall record the statement as spoken by the child, in the presence of the parents of the child or any other person in whom the child has trust or confidence.
Sub-section (2). Wherever necessary, the Magistrate or police officer may take the assistance of a translator or an interpreter, of the prescribed qualifications, experience and fees.
Sub-section (3). In the case of a child having a mental or physical disability, the Magistrate or police officer may seek the assistance of a special educator, or any person familiar with the manner of communication of the child, or an expert in that field, of the prescribed qualifications, experience and fees.
Sub-section (4). Wherever possible, the Magistrate or the police officer shall ensure that the statement of the child is also recorded by audio-video electronic means.
Section 27: medical examination
Sub-section (1). The medical examination of a child in respect of whom an offence has been committed shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973.
Recording the Child's Statement and Medical Examination
Sub-section (2). In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
Sub-section (3). The examination shall be conducted in the presence of the parent of the child, or any other person in whom the child reposes trust or confidence.
Sub-section (4). Where that person cannot be present for any reason, the examination shall be conducted in the presence of a woman nominated by the head of the medical institution.
Sub-section (1) is the important half and is often stated too weakly. The examination is conducted even though no First Information Report or complaint has been registered. The child's medical evidence is not made to wait on the registration of a case.
A worked example
A complaint reaches the police that a girl of nine has been assaulted.
Where is her statement recorded? At her residence, or where she usually resides, or at a place of her choice, section 24(1). Not at the police station as a matter of course.
By whom? As far as practicable, a woman police officer not below the rank of sub-inspector, who shall not be in uniform, sub-sections (1) and (2).
Who else is present? Her parents, or any other person in whom she has trust or confidence, section 26(1).
She has a hearing impairment. The officer may seek the assistance of a special educator, or a person familiar with her manner of communication, or an expert, section 26(3); and where the language is not hers, a translator or interpreter, sub-section (2).
How is it recorded? As spoken by the child, section 26(1), and wherever possible also by audio-video electronic means, sub-section (4).
The accused is brought to the same place. That breaks section 24(3): the investigating officer must ensure that at no point of time the child comes into contact in any way with the accused.
The recording runs late. She may not be detained in the police station in the night for any reason, sub-section (4).
A television channel asks for her details. The officer shall ensure that her identity is protected from the public media, unless the Special Court directs otherwise in her interest, sub-section (5).
Her statement is later recorded by a Magistrate under section 164 of the Code. He records it as spoken by her; and the advocate of the accused may not be present, proviso to section 25(1).
The chargesheet is filed. She and her parents or representative are given a copy of the documents specified in section 207 of the Code, section 25(2).
Recording the Child's Statement and Medical Examination
Now the medical examination. No First Information Report has yet been registered. It is conducted anyway, in accordance with section 164A of the Code, section 27(1); by a woman doctor, the victim being a girl, sub-section (2); in the presence of her parent or a person in whom she reposes trust or confidence, sub-section (3); and if none can be present, in the presence of a woman nominated by the head of the medical institution, sub-section (4).
Distinctions
| The five rules of section 24 | |
|---|---|
| Place | The child's residence, where he usually resides, or a place of his choice |
| Person | As far as practicable, a woman police officer not below sub-inspector |
| Dress | Not in uniform |
| The accused | No contact in any way at any point of time |
| Night | No detention in the police station at night for any reason |
| Recording by the police, s.24 | Recording by a Magistrate, s.25 | |
|---|---|---|
| Who records | A woman police officer, as far as practicable, not in uniform | The Magistrate, under section 164 of the Code |
| Manner | As spoken by the child, s.26(1) | As spoken by the child, notwithstanding section 164 |
| The accused's advocate | Not in question | May not be present, proviso to s.25(1) |
| What follows | A copy of the section 207 documents to the child and his parents |
| Person present | When | Provision |
|---|---|---|
| Parents, or a person in whom the child has trust or confidence | At the statement | s.26(1) |
| Parent, or a person in whom the child reposes trust or confidence | At the medical examination | s.27(3) |
| A woman nominated by the head of the medical institution | At the examination, where that person cannot be present | s.27(4) |
What this does NOT mean
The woman officer requirement is qualified. Section 24(1) says as far as practicable; the place, the plain clothes, the separation from the accused and the night rule are not so qualified.
The child does not have to come to the police station. The statement is recorded at his residence or a place of his choice.
The accused's lawyer has no right to be present. The proviso to section 25(1) switches off that part of the first proviso to section 164(1) of the Code.
The medical examination does not wait for a First Information Report. Section 27(1) says notwithstanding that none has been registered.
And audio-video recording is not optional where it can be done. Section 26(4) says wherever possible the officer or Magistrate shall ensure it.
Quick revision
- 24: statement at the child's residence, usual residence or place of his choice; as far as practicable a woman police officer not below sub-inspector; not in uniform; no contact with the accused at any point of time; no detention at the police station at night; identity protected from the media unless the Special Court directs otherwise in the child's interest.
- 25: a section 164 statement is recorded as spoken by the child, and the accused's advocate may not be present; the child and his parents or representative get the section 207 documents when the final report is filed.
- 26: recorded in the presence of the parents or a person in whom the child has trust or confidence; a translator or interpreter where necessary; a special educator or expert for a child with a mental or physical disability; and wherever possible, also by audio-video electronic means.
- 27: medical examination even though no First Information Report or complaint is registered, under section 164A of the Code; by a woman doctor for a girl child; in the presence of a parent or trusted person, failing whom a woman nominated by the head of the medical institution.
Recording the Child's Statement and Medical Examination
Test yourself
1. Where is the child's statement recorded? At the residence of the child, or at a place where he usually resides, or at the place of his choice, section 24(1).
2. By whom, and in what dress? As far as practicable by a woman police officer not below the rank of sub-inspector, who shall not be in uniform, section 24(1) and (2).
3. May the child be kept at the police station overnight? No. Section 24(4) forbids the detention of a child in a police station in the night for any reason.
4. May the advocate of the accused be present when a Magistrate records the statement? No. The proviso to section 25(1) makes the first proviso to section 164(1) of the Code inapplicable so far as it permits the presence of the advocate of the accused.
5. In whose presence is the statement recorded? In the presence of the parents of the child or any other person in whom the child has trust or confidence, section 26(1).
6. Must a First Information Report be registered before a medical examination? No. Section 27(1) requires the examination to be conducted in accordance with section 164A of the Code notwithstanding that no First Information Report or complaint has been registered.
7. Who conducts the medical examination of a girl child, and who must be present? A woman doctor, section 27(2); in the presence of the parent of the child or any other person in whom the child reposes trust or confidence, and where that person cannot be present, in the presence of a woman nominated by the head of the medical institution, section 27(3) and (4).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.