The court ruled that while direct questioning of child witnesses by defense counsel is prohibited under Section 33(2) of the P.O.C.S.O Act, the screen obstructing the view of the witness from the defense counsel must be removed to ensure fair trial rights.

JUDGMENT :

C. Jayachandran, J.

“The face is the mirror of the mind, and eyes without speaking confess the secrets of the heart.” - St.Jerome

In the scheme of the Protection of Children from Sexual offences Act and the guidelines in accord therewith, whether a child/vulnerable witness can be screened from the defense counsel is one interesting question which surface for consideration in this Original Petition.

2. The petitioner is the sole accused in S.C.No.37/2023 of the Fast Track Special Court, Kozhikode. He is charged with offences under Sections 452 and 354 A(i) of the Penal Code, and also, under Section 10, read with Section 9(m) of the Protection of Children from Sexual Offences Act (for short, 'P.O.C.S.O Act'). The issue raised in this Original Petition is one with respect to the procedure while examining a child witness. Two specific reliefs are sought for in this Original Petition, which are extracted here below:

“1. Direct the trial court in S.C.37/2023 to permit the counsel for the petitioner/accused to cross examine the survivor (PW1) by putting questions directly in cross examination.

2. Direct the trial court in S.C.37/2023 to remove the screen placed between the survivor and the defense counsel to enable a proper cross examination and fair conduct of trial.”

3. Having regard to the significance of the matter, this Court directed the High Court of Kerala to be impleaded as an additional respondent. The same was done and a counter has been placed on record, wherein the “Guidelines for Recording of Evidence of Vulnerable Witnesses, 2024” ('guidelines', for short) issued by the High Court - pursuant to, and in accordance with, the judgment of the Hon'ble Supreme Court in Smruti Tukaram Badade v. State of Maharashtra [2022 INSC 39] - has been produced.

4. Heard Smt.Veena Hari, learned counsel on behalf of the petitioner; Sri.P.Narayanan, learned Special Government Pleader to D.G.P and Additional Public Prosecutor on behalf of the 1st respondent and Sri.Sunil Jacob Jose, learned counsel on behalf of the 2nd respondent High Court. Perused the records.

5. Learned counsel for the petitioner submits that, though Section 33(2) of the P.O.C.S.O Act stipulates that, questions in cross-examination have to be put through the Special Court, the same is not mandatory. According to the learned counsel, the term 'shall' used in Section 33(2) of the P.O.C.S.O Act is not conclusive, as regards the mandatory nature of the said provision. An impediment/restriction on the counsel to put questions directly to the child witness would impinge upon the right to fair trial of the accused. On such premise, the first relief, that is, to permit the petitioner's counsel to put questions directly to the witness, is sought to be allowed.

6. As regards the second limb, which pertains to screening the witness even from the defense lawyer, learned counsel would submit that the same seriously impinges the salutary right of an accused for fair trial. It was pointed out that neither Section 36, nor the guidelines issued by the High Court prevents screening of the witnesses from the counsel for the accused. The provision only seeks to screen the child witness from the accused; and not from his counsel. Learned counsel would hasten to add that the demeanour of the witness is quite important and relevant for effective cross-examination of witnesses; and, unless the counsel is in a position to see the child witness and his/her demeanour, such right of the accused will be seriously jeopardized. Learned counsel would invite the attention of this Court to clause (3) of the guidelines, wherein the right of the accused for a fair trial is also protected. Clause (24) of the guidelines is pointed out, which provides that even a gesture made by a vulnerable witness has to be taken stock of by the Judge concerned. He shall interpret the same and record the inference thereof. Learned counsel would point out that, unless the defense counsel is in a position to see the gesture