Kerala High Court Affirms Right of Defense Counsel to Cross-Examine Child Witnesses, Restricts Screening Except in Exceptional Cases

Post By 24law
February 15, 2025

Pranav B Prem

In a significant ruling, the Kerala High Court has held that there are no statutory provisions under the newly enacted criminal laws, the Protection of Children from Sexual Offences Act (POCSO Act), or the Guidelines for Recording of Evidence of Vulnerable Witnesses, 2024, that permit the screening of a child witness from the defense counsel.

Justice C. Jayachandran emphasized that when a special enactment like the POCSO Act prescribes a particular procedure, it must be presumed that the legislature has considered all relevant aspects and consciously decided against screening the child witness from the defense counsel. The Court categorically stated: “It is beyond the cavil of any doubt that there is no statutory provision, which permits screening of the child witness from the defense counsel. No such provision is there in the parent Act/the P.O.C.S.O Act; or in the guidelines (Guidelines for Recording of Evidence of Vulnerable Witnesses of 2024).”

Background of the Case

The High Court was considering an original petition filed by an accused seeking permission to put questions directly to the child witness during cross-examination and to remove the screen placed between the child witness and the defense counsel by the Special Court. The accused was charged under Sections 452 and 354A(i) of the Indian Penal Code (IPC) and Sections 10 read with 9(m) of the POCSO Act. The defense argued that the accused had the right to a fair trial, which included the ability to directly observe the demeanor of the child witness during cross-examination. It was submitted that screening the child witness from the defense counsel was neither mandated under the POCSO Act nor by the 2024 Guidelines issued by the High Court.

Court’s Observations on Cross-Examination and Screening

The Court clarified that while Section 33(2) of the POCSO Act mandates that cross-examination questions be put through the Special Court, the provision does not authorize screening the child witness from the defense counsel. The judgment further elaborated on the importance of cross-examination, stating: “It is upon getting an answer to a question put first, that the second question or the subsequent questions are framed. The demeanour and the witness is quite important and significant to effectively cross-examine a witness. The same situation cannot undergo any change in the legal position, even if the witness is a child witness or a vulnerable witness. To deprive that right of the cross-examining counsel is something which seriously impinges the right to fair trial of the accused, is the opinion of this Court. The same cannot be done, especially in absence of any enabling statutory or other provision.”

The High Court observed that as per Section 36 of the POCSO Act, the screening provision applies only to protect the victim from the accused and does not extend to the defense counsel. The Court highlighted that making screening a general practice, as opposed to an exception, would be contrary to the law and judicial fairness.

When Screening Can Be Justified

While the Court ruled against a blanket screening of child witnesses from defense counsel, it acknowledged that in certain circumstances, if the defense counsel misuses their liberty by making inappropriate gestures or facial expressions that make the witness uncomfortable, the Special Court would be justified in imposing restrictions. The judgment stated: “If a defense counsel misuses his liberty by showing gestures or facial expression, so as to make the witness discomfortable. If such a thing is noticed by the Special Court, at the first instance, this Court is of the opinion that the counsel should be warned, not to indulge in such practice; and if the same is repeated, there cannot be any doubt that the Special Court is fully powerful to screen the witness from the defense counsel by adopting appropriate measures. In that case, the action is justified, not because it is sanctioned by any statutory provision, but on the premise that the defense counsel has misused his liberty.” Thus, the High Court emphasized that screening should be an exception applied only in specific situations where the defense counsel’s conduct warranted such measures.

Directions Issued by the Court

Considering the above findings, the High Court allowed the original petition in part and directed the Special Court to remove the screen placed between the child witness and the defense counsel, while ensuring that the witness remains screened from the accused. The Court also instructed the Registrar (District Judiciary) of the High Court to communicate this ruling to all Special Courts or issue modified guidelines incorporating this legal position.