Defense Counsel Can't Be Precluded From Cross-Examining Child Witness Unless He Misuses Liberty & Makes Child Uncomfortable: Kerala HC

Justice C. Jayachandran observed that it must be presumed that the legislature has considered all the relevant aspects and consciously decided not to screen the vulnerable witness from the defense counsel.

Court 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).”

The Court further stated that the Special Court would be empowered to screen the child witness from the defense counsel if the defense counsel exhibits uncomfortable gestures and facial expressions, despite being warned. It thus clarified that screening the child/vulnerable witness from the defense counsel should only be used as an exception, and not as a general rule.

Court 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.”

In the facts of the case, the High Court was considering an original petition filed by the accused seeking permission to put questions directly to the child witness in cross examination. The accused also sought for the removal of the screen placed between the child witness and defense counsel by the Special Court.

The accused was charged with offences under Sections 452 (house trespass) and 354 A(i) (sexual harassment) of the IPC, Sections 10 (punishment for aggravated sexual assault) read with 9(m) (aggravated sexual assault on a child below twelve) of the POCSO Act.

The Counsel for the petitioner submitted that it was not mandatory for the accused to put questions to the child witness through the Special Court. It was also submitted that any restriction or impediment on the Counsel to ask questions directly to the witness infringes the right of the accused to have a fair trial. It was also argued that the POCSO Act does not provide for screening the defense counsel from the child witness, nor is it included in the guidelines issued by the High Court. It was stated that this was crucial for the defense counsel to observe the child witness's demeanour and gestures to conduct an effective cross-examination.

The Court, referring to Section 33(2) of the POCSO Act that prohibits direct examination of the victim by the defense counsel, stated that the provision has "specifically tabooed" it. The High Court also took note of the newly enacted criminal laws and the guidelines issued by the High Court (Guidelines for Recording of Evidence of Vulnerable Witnesses of 2024) pursuant to the judgment of the Apex Court in Smruti Tukaram Badade v State of Maharashtra (2022).

Considering all the above, the Court concluded that the use of the term 'shall' in Section 33 (2) indicates a mandatory requirement, and that the provision specifically stipulates that questions to the victim shall only be put by the defense counsel through the Special Court and not directly.

Further, the Court observed that screening the victim from the defence counsel would cannot survive the test of law. It stated that Section 36 of the POCSO Act only warrants screening the accused from the victim and not the defense counsel.

The Court further elucidated on the significance of cross examination and stated that a vulnerable/child witness cannot be screened from defence counsel without an enabling provision. It stated that defense counsel does not mechanically come up with definite questions. It was stated that cross examination is a slow and gradual process and that is why it was referred to as the art of cross examination. The Court added that to expand the line of cross examination, the defense counsel has to observe the demeanour of the witness.

Court added, “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.”

As such, the original petition was disposed of with a direction to the Special Court to remove the screen between the survivor/victim/child/vulnerable witness and the defense counsel for effective cross examination.

Counsel for Petitioner: Advocates Nirmal S, Veena Hari

Counsel for Respondents: Advocate Sunil Jacob Jose, learned Special Government Pleader to D.G.P and Additional Public Prosecutor P Narayanan, Senior Government Pleader Sajju S

Case Title: Abdul Azeez v State of Kerala

Case No: OP(CRL.) NO.630 OF 2024

Citation: 2025 LiveLaw (Ker) 108