In a case under the Protection of Children from Sexual Offences Act, 2012, the statement of the child is usually the heart of the prosecution. Recognising both how fragile and how important that account is, the Act lays down a special procedure for recording it. Sections 24, 25 and 26 of the POCSO Act, read with Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — formerly Section 164 CrPC — govern who records the statement, where, in whose presence, and how. This explainer covers only the statement-recording stage.
Two statements, one protective design
A child complainant in a POCSO case ordinarily gives two formal accounts before trial: a statement to the police during investigation, and a statement to a Magistrate under Section 183 BNSS (formerly Section 164 CrPC). The POCSO Act overlays both with special conditions. The design has two aims that pull in the same direction: to obtain an account that is as reliable and uncontaminated as possible, and to ensure that the process of narrating the incident does not itself become a fresh trauma for the child.
Section 24: the statement to the police
Section 24 fixes the ground rules for the investigating agency:
- Place. The statement is recorded at the residence of the child, or at a place where the child ordinarily resides, or at a place of the choice of the child — not, as a default, at the police station.
- Officer. As far as practicable, the statement is recorded by a woman police officer not below the rank of sub-inspector.
- No uniform. The officer must not be in uniform while recording the statement, so that the encounter feels less intimidating.
- No night detention. No child is to be detained in the police station at night for any reason.
- Away from the accused. The officer must ensure that at no point during recording does the child come in contact with the accused in any manner, and the statement is never recorded in the presence of the accused.
- Identity protection. The officer must ensure that the identity of the child is protected from the public and the media, unless the Special Court directs otherwise in the interest of the child.
The phrase as far as practicable gives the investigation some flexibility — for instance, where no woman sub-inspector is available at the moment of first response — but it is a narrow allowance, not a licence to ignore the norm.
Section 25: the statement before the Magistrate
When the statement of the child is recorded by a Magistrate under Section 183 BNSS, Section 25 of the POCSO Act adds two important modifications:
Recorded as spoken
The Magistrate records the statement as spoken by the child — in the words of the child, not in a summarised or paraphrased official register. This preserves the authentic texture of the account, which matters when the statement is later used to corroborate or contradict the testimony of the child at trial.
No defence advocate at this stage
The provision of the code requiring the presence of the advocate of the accused does not apply when the statement of a child is being recorded. The defence is not shut out of the case — the statement is supplied to the accused with the police report, and the account is tested at trial — but the recording itself happens without the accused or the defence advocate present.
Section 26: the manner of recording
Section 26 addresses how, and in whose company, the statement is taken — at both the police and the Magistrate stage:
- Trusted adult present. The statement is recorded in the presence of the parents of the child, or any other person in whom the child has trust or confidence.
- Communication assistance. Wherever necessary, the Magistrate or police officer may take the assistance of a translator or interpreter, or, in the case of a child with disability, a special educator or a person familiar with the manner of communication of the child.
- Audio-video recording. Wherever possible, the statement is also recorded by audio-video electronic means, creating a contemporaneous record of exactly what was asked and answered.
These are not formalities. A trusted adult steadies the child; an interpreter or special educator ensures the record reflects what the child actually communicated; the recording protects everyone — child, investigator and accused alike — against later disputes about what was said.
Why the safeguards exist
The rationale is twofold. First, reliability: a child questioned in a frightening environment, in uniformed company, or within sight of the accused may say too little, too much, or what the child believes the adults want to hear. Removing those pressures improves the quality of the account the justice system ultimately acts on. Second, avoiding re-traumatisation: the criminal process should not compound the harm of the offence. Repeated, insensitive questioning is itself recognised as a source of secondary harm, and the statute front-loads protections at the very first interactions.
The same philosophy continues into the courtroom — in-camera trial under Section 37, and strict limits on how the child may be cross-examined — which are covered separately on this site under the trial protections available to child witnesses.
What non-compliance means
Breach of these provisions does not automatically render the statement inadmissible or vitiate the trial. Courts examine non-compliance when assessing the weight and reliability of the statement: a statement recorded in the police station at night, by a male officer in uniform, with the accused nearby, will be scrutinised far more sceptically than one recorded in conformity with the Act. Substantial compliance, and a credible explanation for any departure, therefore matter to both sides of a POCSO case.
For the defence, the recording stage is where foundations are laid: departures from Sections 24 to 26 are legitimately explored at trial. For the prosecution and the investigating agency, faithful compliance is the best insurance that the account of the child survives that scrutiny. Either way, understanding this stage is essential to understanding how a POCSO case is actually built.
Frequently Asked Questions
Who records the statement of the child at the police stage?
Section 24 of the POCSO Act requires that the statement be recorded, as far as practicable, by a woman police officer not below the rank of sub-inspector, at the residence of the child or at a place where the child ordinarily resides or a place of choice of the child, and the officer must not be in uniform while recording it.
Can the child be called to the police station at night?
No. Section 24 expressly provides that no child shall be detained in the police station at night for any reason. The scheme of the Act is that the police come to the child, in plain clothes, rather than the child being brought into the intimidating environment of a police station.
Is the lawyer of the accused present when the Magistrate records the statement?
No. Section 25 of the POCSO Act provides that when the Magistrate records the statement of the child under what is now Section 183 BNSS, the provision requiring the presence of the advocate of the accused does not apply at that stage. The defence tests the statement later, at trial, under the protective conditions the Act prescribes.
What happens if these safeguards are not followed?
Non-compliance does not automatically wipe out the statement or the prosecution. Courts treat the safeguards as important indicators of reliability, so a breach is weighed while assessing the evidentiary value of the statement, alongside the rest of the evidence. Serious departures can significantly dilute the weight the statement carries.