DIPAK MISRA, J. - (1.) Leave granted.
(2.) The pivotal issue that emanates for consideration in these appeals, by special leave, pertains to interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act"), and the primary argument of the learned counsel for the appellant is that the definition in Section 2(d) that defines "child" to mean any person below the age of 18 years, should engulf and embrace, in its connotative expanse, the "mental age" of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term "child".
(3.) Before I note the submissions of Ms. Aishwarya Bhati, learned counsel for the appellant, the supporting submissions by the respondent State and the proponements in oppugnation by the learned senior counsel who was engaged on behalf of the accused-respondent No. 2 by the Court as the said respondent chose not to enter appearance, few facts are essential to be noted. The appellant is represented by her mother on the foundation that she is suffering from Cerebral Palasy (R. Hemiparesis) and, therefore, though she is biologically 38 years of age, yet her mental age is approximately 6 to 8 years. In this backdrop, it is contended that the trial has to be held by the Special Court established under the POCSO Act. As the facts would unroll, the mother of the appellant had lodged FIR No. 197 of 2014 at Police Station Defence Colony, New Delhi against the respondent No. 2 alleging that he had committed rape on her mentally retarded daughter and on the basis of the FIR, investigation was carried on and eventually charge sheet was laid for the offence punishable under Section 376(2)(l) of the Indian Penal Code (IPC) before the concerned Judicial Magistrate, who, in turn, committed the case to the Court of the learned Assistant Special Judge/Special Fast Track Court, Saket, New Delhi for trial. Many a fact has been enumerated which need not be stated in detail. Suffice it to mention that the trial commenced and when the question of examination of the appellant came up, various aspects such as camera trial, videography of the trial, absence of congenial atmosphere and many other issues emerged. As the mother of the appellant felt that the trial court was not able to address the same, the victim through her mother, filed a petition under Section 482 of the Code of Criminal Procedure (CrPC) before the High Court of Delhi praying, inter alia, that the matter should be transferred to the Special Court under the POCSO Act as the functional age of the prosecutrix is hardly around 6 to 8 years and there is necessity for trial to be conducted in a most congenial, friendly and comfortable atmosphere and the proceeding should be videographed. The High Court vide order dated 15.06.2015 issued directions for making necessary arrangements for videography of the proceeding as the prosecutrix mainly communicates through gestures. The order passed in that regard read as follows: "Vide order dated 15th September, 2014, the learned ASJ, Special Fast Track Court, Saket had directed that the prosecutrix who is a physically and mentally challenged girl suffering from cerebral palsy will be provided a special educator/interpreter and necessary arrangements be made for videographing the in camera trial at the time of recording of the statement of the prosecutrix. When the evidence of the prosecutrix was sought to be recorded on 15th May, 2015 the learned Judge noted that the concerned officer of the vulnerable witness Court complex submitted that the videographing of the proceedings is not permissible. The learned Additional Sessions Judge has sought necessary directions regarding videography from the learned Sessions Judge (South) in this regard and has listed the matter for 27th May, 2015. It is also informed by the learned APP on instructions from the investigating officer that two doctors of AIIMS have been contacted who will be present on the date when the evidence of the prosecutrix has to be recorded. Learned counsel for the petitioner states that the prosecutrix is terrified by the presence of males and it would be thus appropriate if female doctors/interpreters are available at the time of the evidence of the prosecutrix. Learned APP will file a status report in this regard before the next date. In the meanwhile the learned Sessions Judge (South District) will make necessary arrangements for videography of the proceedings as the prosecutrix mostly communicates through gestures." ;