[Cites 10, Cited by 0]

Karnataka High Court

Smt Pushpalatha S vs State Of Karnataka on 24 March, 2026

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

                                           -1-
                                                       NC: 2026:KHC:16669
                                                      WP No. 6855 of 2026


                HC-KAR




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 24TH DAY OF MARCH, 2026

                                         BEFORE
                       THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
                         WRIT PETITION NO. 6855 OF 2026 (GM-RES)


                BETWEEN:

                1.    SMT. PUSHPALATHA S.,
                      AGED ABOUT 37 YEARS
                      W/O ADARSH GOWDA B. A.,
                      RESIDING AT NO. 07,
                      RENUKA NILAYA BAICHAPUR ROAD
                      DEVANAHALLI TOWN
                      BENGALURU DISTRICT - 562 110.

                2.    XXXXXX
                      XXXXXX
Digitally
signed by             XXXXXX
SANJEEVINI J
KARISHETTY            XXXXXX.
Location:
High Court of
Karnataka                                                  ...PETITIONERS
                (BY SRI ABHAY R. S., ADVOCATE FOR
                    MS. ANANDITHA REDDY., ADVOCATE)

                AND:

                1.    STATE OF KARNATAKA
                      BY DEVANAHALLI POLICE STATION
                      REPRESENTED BY
                      STATE PUBLIC PROSECUTOR
                                   -2-
                                                 NC: 2026:KHC:16669
                                               WP No. 6855 of 2026


HC-KAR



     HIGH COURT BUILDING, BENGALURU.

2.   MR. ADARSH GOWDA B. A.,
     AGED ABOUT 40 YEARS
     S/O CHIKKA ANJINAPPA
     RESIDING AT NO. 07, RENUKA NILAYA
     BAICHAPUR ROAD, DEVANAHALLI TOWN
     BENGALURU DISTRICT - 562 110.


                                                    ...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1)

      THIS   WP     IS    FILED   UNDER    ARTICLE      226   OF   THE
CONSTITUTION OF INDIA READ WITH SECTION 528 OF THE
BNSS, PRAYING TO-CALL FOR THE RECORDS IN SPL. C NO.
1188/2025 ARISING OUT OF CRIME NO. 0157/2025) PENDING
ON THE FILE OF THE HON'BLE ADDL. DISTRICT AND SESSIONS
JUDGE    FTSC-III        BENGALURU      RURAL;    SET    ASIDE     THE
PROCEDURAL ACTIONS TAKEN BY THE LEARNED MAGISTRATE
DEVANAHALLI DURING THE RECORDING OF THE STATEMENT
UNDER SECTION 183 OF THE BNSS IN VIEW OF THE GROSS
VIOLATION OF THE MANDATORY PROVISIONS OF SECTION
2691) OF THE POCSO ACT, 2012 IN IMPUGNED ANNX-A DATED
05.11.2025 IN CRIME NO.157/2025.

      THIS   PETITION,       COMING       ON     FOR    PRELIMINARY

HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
                                  -3-
                                                NC: 2026:KHC:16669
                                              WP No. 6855 of 2026


HC-KAR




CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA


                             ORAL ORDER

The petitioner - complainant is before this Court calling in

question an act of the learned Magistrate while recording the

statement of the victim - child, aged 2 years and 10 months,

contrary to the mandatory provisions of Section 26(1) of the

Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as 'the Act'), in Spl.C.No.1188/2025

(arising out of crime No.157/2025), registered for the offences

under Sections 65(2) of the BNS and Sections 3(b), 4(2), 5(n),

5(l) and 6 of the Act.

2. Heard Sri Abhay R.S., learned counsel along with

Ms.Ananditha Reddy, learned counsel for petitioners and Sri

B.N.Jagadeesha, learned Additional State Public Prosecutor for

respondent No.1.

3. Facts in brief, germane, are as follows:

The first petitioner is the mother - complainant and the

second respondent is the accused. Respondent No.2 and

petitioner No.1 get married on 26.05.2022. A girl child is born

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from the wedlock. On 26.10.2025, the child is traumatized and

is said to have narrated to her mother that while changing the

diaper, the father has indulged in acts which would become the

ingredients of the offences under the Act. In pursuance of the

said narration by the child, a crime in crime No.157/2025

comes to be registered by the first petitioner - mother on

28.10.2025, for the afore-quoted offences. The trial is on.

4. The issue is not with regard to the merit of the matter.

The concerned Court examines the child and the statement of

the child under Section 183 of the BNSS is recorded on

05.11.2025. The statement recorded is as follows:

:ಕಲಂ ಕಲಂ 183 .ಎ ಎ .ಎ .ಎ . ೕ ಾ ೊಂದ ಾಲ ಯ ಸ ಾ ೇ ೆ

ಃ 05-11-2025 ರ ೊಂದ ಾಲ XXXXX ರವರ ೇ ೆಯನು% ಾ &ಾ'ೕಶರ ೇಂಬರ*+, ಾ &ಾ'ೕಶರು ಾಗೂ ೆರಳಚು/0ಾ12ಯನು% ೊರತು ಪ56 ೇ7ೆ &ಾರು ಇಲ+ ಾಗೂ ಾಲ ೇ ೆ 9ೕಡು1;ರುವ ೊಠ5ಯ*+ ಆ ೆಯನು% ೊರತುಪ56 ೇ7ೆ &ಾರೂ ಇಲ+ ಎಂಬುದನು% >ಾ1?ಪ56 ೊಳ@Aಾ ತು.

                                                                     ತು ಾಲ            ಾನು
         ೇ   ೆ 9ೕಡು
                9ೕಡು ೆ;ೕ ೆ ಎಂದು ೇ ದB ಂದ ಅ ೆಯ ಸ        ಾ ೇ   ೆಯನು% ಪDೆ ರು ೆ;ೕ ೆ.ೆ

                 ನನ0ೆ ಏನೂ ಆFಲ+. ಈ ಹಂತದ*+       ಾಲ ?, ಾ         ೇ ೆಂದು ಾ      ಯ JಂKೆ
         ೋದ    ಾರಣ,   ಾ   ಯ ಸಮNಮ        ೇ   ೆಯನು% ಪDೆದು ೊಳ@Aಾ        ತು. ಮಗುO0ೆ
     ಅಥ2Qಾಗುವ ಾಲ RಾSೆಯ*+ ಾಲ ಯ ಾ                Tೕ ಏ ಾ         ತು ಎಂದು ೇಳAಾF ಾಲ
     &ಾವUKೇ ಉತ;ರ 9ೕ5ರುವU ಲ+.

                                                 NC: 2026:KHC:16669



HC-KAR



     ( ಾ &ಾ'ೕಶರ    ೇಂಬರ*+ ನನ% ಉRÛAೇಖನದಂ ೆ ಗಣಕ ಯಂತ?ದ*+         ೆರಳ@ZÀÄÑ
     XಾಡAಾ   ತು)

                                      ಓ. ೇ. ೇ.ಸ.ಎ. ಒಪ[AಾFKೆ

                                              ¸À»/-
                                          15/11/25
                                 ಅಪರ 6O\ ಜ^_ ಮತು; `ೆ.ಎಂ.ಎa.6.,
                                            Kೇವನಹ @."




                                      (Emphasis added)

5. Learned counsel for the petitioners submits that the

examination of the child is contrary to Subsection (1) of Section

26 of the Act, which mandates that the statement of the child

should be recorded in the presence of the parents of the child

or any other person in whom the child has trust or confidence.

The afore-quoted statement of the child, who at the relevant

point in time was 2 years and 10 months, is recorded contrary

to the provisions of the Act. There is certain ambiguity in the

second paragraph of the afore-quoted statement of the child,

which indicates that the statement was recorded in the

presence of the mother. However, there is ambiguity.

6. Learned counsel for the petitioners submits based upon

this ambiguity, notwithstanding the fact that there was prima

facie medical evidence against the father for having indulged in

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such acts on the child of 2 years and 10 months, he was

enlarged on bail, solely on the score that there is violation of

Section 26(1) of the Act.

7. In that light, to avoid a future circumstance of

projection of an illegality at the fag end of the trial, it is

necessary to nip it in the bud. The statement must have been

recorded by the learned Magistrate under Section 26(1) of the

Act, in the presence of the parents of the child or any other

person in whom the child has trust or confidence. Section

26(1) of the Act reads as follows:

"26. Additional provisions regarding statement to be recorded.--(1) The Magistrate or the police officer, as the case may be, 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."

(Emphasis supplied)

In terms of the afore-quoted Section 26(1) of the Act, the

statement of the child must be recorded in the presence of the

mother. In the case at hand, the absence or presence of the

mother is itself ambiguous, as the concerned Court has

recorded the statement contradictory to each paragraphs.

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8. It is apposite to refer the judgment of the High Court of

Judicature at Madras, in the case of MANIKANDAN v. STATE1,

wherein it is held as follows:

"39. Though such a contention on the face of it looks attractive, however, a perusal of Section 26 (1) of POCSO Act reveals that while recording the statement of a child victim, the presence of the parents of the child or person in whom the child has trust or confidence is made mandatory. Thus there is a clear intent of the Parliament that the presence of parents or any other person alone would infuse trust or confidence in the child to speak about what had happened. Thus, the intent of the Parliament is very clear as is evident from the inclusion of the parents of the child or any other person in whom the child has trust or confidence to be present during recording of statement of the child, as acts which the child victim complains of, which has been spoken to by the child victim to its parents, based on which the criminal machinery had been set in motion is only within the knowledge of the child and, therefore, the child victim would be at ease if the parents of the child victim is present during the recording of the statement.

40. From the above, it transpires beyond a pale of doubt that the Parliament has visualised the scenario that sexual abuse is being perpetrated on a child in seclusion and not in front of any witnesses and, therefore, the child victim, which has spoken about the abuse caused to him/her to their parents, the necessity of the parents to be along with the child infuses confidence in the child victim to speak out freely and detail the happenings while its statement is recorded by the Magistrate.

Therefore, where an offence has been perpetrated on a child victim in confines without any witness, there arises a necessity to record the statement of the child victim by the Magistrate, as the child alone

Crl. A. 181/2023, decided on 28-08-2024.

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is the witness to the offence against him/her, in the presence of its parents or any other person in whom the child has trust or confidence, but where the offence is perpetrated on the child victim for which there is/are eye witness to the said offence, making the examination of child victim with regard to recording its statement would be nothing but causing mental trauma to the child victim once over, which has been the basis on which the Courts have held that the statement of the child victim, which is recorded by the Magistrate would be substantive piece of evidence and there is no necessity to examine the child witness at the time of trial and cross examination on the said statement would suffice."

(Emphasis supplied)

In the light of the afore-quoted judgment and since the

child is now brought back for recording the statement, which is

contrary to Section 33(5) of the Act, it is solely on the folly of

the learned Magistrate. Therefore, to steer clear the

controversy, notwithstanding the fact that the child will have to

be brought back before the concerned Court as a one-off

situation to a one-off problem, I deem it appropriate to permit

such exercise to be done by the concerned Court, only for the

folly of the concerned Court not acting in accordance with law

or not recording the statement in tune with Section 26(1) of

the Act.

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9. For the aforesaid reasons, the following:

ORDER a. The writ petition stands allowed.

b. The statement recorded by the learned Magistrate, Bengaluru, on 05.11.2025, stands quashed.

c. The learned Magistrate shall record the statement of the victim - child in tune with Section 26(1) of the Act, on 28.03.2026, in the presence of the mother, failing which, the matter would be viewed seriously, if any orders are passed prejudicial to the complainant and the victim - child.