Madras HC Refuses to Force State to File Curative Petition, Issues Detailed POCSO Implementation Directions
A Division Bench declined to compel Tamil Nadu to file a curative petition in a child murder acquittal, holding that litigation decisions are executive discretion, not a duty amenable to mandamus.
A Division Bench of the Madras High Court, comprising Justice G. R. Swaminathan and Justice V. Lakshminarayanan, dismissed a pro-bono writ petition on 27 May 2026 that sought to compel the State of Tamil Nadu to file a curative petition before the Supreme Court in Criminal Appeal Nos. 3633–3634 of 2024. The petition arose after the Supreme Court acquitted an accused who had been convicted of child murder and sentenced to death, a conviction that the Madras High Court itself had confirmed in 2018. The bench held that a decision to file a review or curative petition is a purely discretionary executive act, not a statutory duty enforceable by mandamus. The bench also went on to identify systemic gaps in the implementation of the POCSO Act across Tamil Nadu, issuing detailed suggestions spanning police, healthcare, courts, and juvenile justice infrastructure, and directing the Chief Secretary to constitute a committee to respond within four months.
The Proceedings That Led to This Writ Petition
The underlying criminal case began in February 2017, when the Sessions Judge, Mahila Court, Chengalpet, convicted the accused in S.C. No. 133 of 2017 and imposed the death penalty for child murder. The Madras High Court confirmed that conviction and sentence on 10 July 2018 in Crl. A. No. 234 of 2018 and R.T. No. 1 of 2018.
The accused appealed to the Supreme Court. The petitioner contended that the Supreme Court had, by an order dated 8 April 2019, initially limited its notice only to the question of sentence, leaving the conviction intact. That order was subsequently recalled after the court noticed that the Madras High Court had granted the accused a certificate of leave to file an appeal on 10 July 2018. Once the recall order was passed, the accused was in a position to challenge conviction itself. The Supreme Court ultimately acquitted the accused on 8 October 2025 in Criminal Appeal Nos. 3633–3634 of 2024. A review petition filed as R.T. (Crl.) Nos. 490 and 491 of 2025 was decided on 26 November 2025.
The petitioner, who described himself as an academician, researcher, and lawyer, filed a Right to Information application to the Public Information Officer of the Madras High Court. The response he received stated that no certificate to file an appeal had been granted. Armed with that RTI reply, the petitioner sent a representation on 8 January 2026 to the State of Tamil Nadu, asking it to file a curative petition and take immediate corrective steps. When no action followed, he filed WP No. 18454 of 2026 under Article 226 of the Constitution seeking a writ of mandamus directing the State to prefer a curative petition.
Why the Bench Rejected the Mandamus
Justice V. Lakshminarayanan, who authored the order, set out the constitutional boundaries of mandamus with clarity. A writ of mandamus can be issued only to compel a public authority to perform a statutory duty or a public duty that it is obligated to perform but has failed to execute. The decision to file an appeal, review, or curative petition does not fall within that category.
“A decision to file an appeal, review or curative petition is not a statutory binding duty but a discretionary one.” The bench held that it is entirely for the executive and its legal advisors to decide whether to litigate. A mandamus cannot be issued to dictate how such discretion should be exercised, nor can the court substitute its opinion for the government's if the government does not choose to pursue a matter.
The bench was equally direct on the petitioner's standing: “A citizen, nay, a third party does not possess a vested legal right to force the State of Tamil Nadu to litigate or prefer an appeal.” Merely because the State is the prosecuting agency does not convert the decision to appeal into a duty enforceable in court. The bench added that the State holds no different position from any other litigant in matters of litigation strategy—no court can force any party, including the State, to initiate or continue litigation.
The bench also disposed of the factual premise of the petition. The Additional Public Prosecutor produced the web copy of the order passed in Crl. A. No. 234 of 2018 and R.T. No. 1 of 2018 dated 10 July 2018. A perusal showed that immediately after the judgment was pronounced, counsel for the accused sought and obtained leave to prefer an appeal to the Supreme Court. The bench was satisfied that leave had in fact been granted. The RTI reply of 24 November 2025, which had informed the petitioner that no certificate was granted, was therefore incorrect. That finding dismantled the foundational factual grievance on which the curative petition demand rested.
However, the bench recorded a statement made by counsel for the State that the government had itself already taken a policy decision to file a curative petition. Once that submission was on record, the bench concluded that there was nothing further for it to do on that aspect of the petition and disposed of the writ accordingly.
Systemic Gaps in POCSO Implementation: The Bench’s Observations
The bench did not stop at dismissing the writ. It used the occasion to set out what it described as correctional requirements across every stakeholder involved in implementing laws relating to children. The observations were organised by category: police, healthcare professionals, courts, and juvenile justice boards.
Police. The bench found that DGP circulars, Police Standing Orders, and Madras High Court POCSO Committee resolutions are inconsistently known and unevenly applied. Among the specific concerns: summons and arrests in consensual adolescent relationship cases are carried out without proper supervisory approvals; investigating units lack mixed-gender composition; FIRs are registered against minor boys in consensual cases without adequately informing families of legal consequences; free copies of the FIR are not furnished to children or their parents at the time of first production before the Juvenile Justice Board; procedural safeguards under Sections 10 and 13(1) of the JJ Act and Section 24 of the POCSO Act are erratically followed; and children are mechanically detained in Observation Homes despite Section 12 of the JJ Act making bail the rule. The bench suggested, among other things, mandatory parental presence during enquiry, written and reasoned JJB orders for detention, and confidentiality undertakings from every person to whom a child's identity is disclosed during investigation.
Healthcare. The bench noted that mandatory reporting requirements under Section 19 of the POCSO Act, as interpreted in X v. Principal Secretary, Health & Family Welfare Dept. (2023) 9 SCC 433, are causing pregnant minors in consensual or customary-marriage situations to avoid antenatal care out of fear of police involvement. The bench called for standard consent forms that allow reporting without revealing identifying particulars where legally permissible. It also found that pregnant POCSO victims frequently do not receive timely information about their rights, MTP options, or referral pathways, leading to pregnancies crossing the 24-week threshold that triggers mandatory High Court intervention. The bench recommended a uniform referral mechanism through Legal-cum-Protection Officers and District Child Protection Units. The two-finger test and hymen-related examination persist despite Supreme Court prohibitions in Lillu @ Rajesh v. State of Haryana (2013) 14 SCC 643 and State of Jharkhand v. Shailendra Kumar Rai (2022 SCC OnLine SC 1494); the bench directed strict adherence to NHM Medico-Legal Care Guidelines dated 8 November 2022. Separately, it observed that no clear protocol exists for the medical examination and treatment of male child survivors under the POCSO Act, and called for one to be developed.
Courts. The bench found that charge sheets remain pending for more than four weeks without cognizance being taken; summons are served with very short notice; child victims' evidence is not recorded within the thirty-day window mandated by Section 35 of the POCSO Act from the date of cognizance; certified copies of judgments are obtained differently across districts; and the “Business on Date” feature on the e-courts portal is non-functional in several Special POCSO Courts. The bench also addressed the absence of a coordinating mechanism for filing MTP petitions before the High Court and the inconsistent redaction of identity information in uploaded judgments. It called for a designated DLSA Nodal Officer, uniform certified copy procedures, and a publication protocol for all POCSO court judgments ensuring that survivors' identities cannot be traced.
Child Witness Deposition Rooms. The bench noted that only 18 of 23 districts in Tamil Nadu have Child Witness Deposition Rooms, citing Smruti Tukaram Badade v. State of Maharashtra (2022) 18 SCC 24. It specified that each CWDR should comprise two separate rooms—a waiting area and a deposition room divided by a proper partition with soundproof walls—equipped with video link facilities, painted in calming colours, and with an attached accessible toilet so that children do not have to walk through court corridors.
Juvenile Justice Boards. The bench found that several districts hold JJB sittings only once a week and that Probation Officers do not prepare Special Investigation Reports within the fifteen-day period prescribed under Section 8(3)(e) of the JJ Act. It called for full-time boards, everyday sittings, and a stricter accountability structure for Probation Officers. On compensation and rehabilitation, it noted that compensation is sometimes linked to final testimony or conviction outcome rather than to the harm suffered, contrary to the scheme upheld in Nipun Saxena v. Union of India. It directed that interim compensation under Rule 9 of the POCSO Rules, 2020, should be considered at the stage of FIR registration itself.
Dedicated Courts. The bench pointed to the alarming pendency highlighted in In Re: Judicial Infrastructure 2025 INSC 695 and observed that Special POCSO Courts in several districts presently also function as Designated Children's Courts under the JJ Act, creating dual charge and diffuse attention. It called for separate, exclusive courts for each function.
Direction to the Chief Secretary
The bench directed the Chief Secretary, Government of Tamil Nadu, to constitute a committee comprising Secretaries of the concerned departments. The committee is to address the suggestions set out in the tabular framework annexed to the order. The government's response is to be filed before the Registry within four months of receipt of a copy of the order.
The bench also placed on record its appreciation for the assistance rendered by Ms. Deepika Murali, Advocate for Tulir, an organisation working on child rights.
Order
WP No. 18454 of 2026 was disposed of on 27 May 2026. The bench recorded the State's submission that it had decided to file a curative petition, declined to issue mandamus, and made no order as to costs. The direction to constitute a committee and file a response within four months stands as the operative institutional direction.