The Kerala High Court has observed only if a Defense Counsel misuses his liberty by showing gestures or facial expression, so as to make the witness discomfortable then the Special Court is fully empowered to screen the witness from him by adopting appropriate measures otherwise it is not proper.

The Court was considering a Petition filed by an Accused charged with offences punishable 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.

The single-bench of Justice C. Jayachandran observed, "The situation is different, 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."

The Petitioner was represented by Advocate Nirmal S. while the Respondent was represented by Advocate Sunil Jacob Jose.

Facts of the Case

The issue raised in the Petition was one with respect to the procedure while examining a child witness. Two specific reliefs were sought for in this regard. Having regard to the significance of the matter, the Court directed the High Court of Kerala to be impleaded as an additional respondent. The same was done and a counter was placed on record, wherein the “Guidelines for Recording of Evidence of Vulnerable Witnesses, 2024” were issued by the High Court - pursuant to, and in accordance with, the judgment of the Supreme Court in Smruti Tukaram Badade v. State of Maharashtra.

Counsel for the Petitioner submitted 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 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. It was submitted that 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 was, to permit the Petitioner's Counsel to put questions directly to the witness, was sought to be allowed.

As regards the second limb, pertaining to screening the witness even from the Defense Lawyer, the Counsel submitted 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 and the provision only seeks to screen the child witness from the accused; and not from his counsel. The Counsel added 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. He drew Court's attention to clause (3) of the guidelines, wherein the right of the accused for a fair trial is also protected. He pointed out Clause (24) of the guidelines which provides that even a gesture made by a vulnerable witness has to be taken stock of by the Judge concerned.

He pointed out that unless the Counsel would point out that, unless the defense counsel is in a position to see the gesture shown by a child witness, the inference or the impression created by such gesture will not be decipherable to the Counsel, for which reason also, there cannot be any impediment as between the Counsel and the vulnerable witness. Reliance was also placed on clause (21), which enables the Court to act either suo motu or on an application made by the vulnerable witness, prosecutor, counsel etc., to order testimonial aid such as, screens,

On the other hand, Cousel for the Respondent submitted that the embargo contained in Section 33(2) is absolute, as could be seen from the term 'shall', employed therein, wherefore, the 1st relief sought for - to permit the defense counsel to put questions directly to the vulnerable witness - cannot be countenanced at all.

Reasoning By Court

The Court at first inquired as to whether there is any enabling position in the parent Act or in the guidelines, which prevents the defense counsel from seeing the vulnerable witness, and the same was answered in negative. It noted that it is partially in favour of the petitioner, and partially otherwise.

Insofar as the first relief was concerned, that is, to permit the defense counsel to put questions directly to the child witness, the Court observed, ".......the same is specifically tabooed by Section 33(2) of the P.O.C.S.O Act, besides by virtue of clause (21) of the guidelines. It is relevant in this regard to take note that the guidelines have been adopted by the High Court in tune with the directions of the Hon'ble Supreme Court as contained in Smruti Tukaram Badade (supra), and also, in accordance with the new criminal laws, namely, B.N.S, B.N.S.S and B.S.A. Learned counsel for the petitioner, though argued that the term 'shall' employed in Section 33(2) would not indicate its mandatory nature, this Court cannot accept the same."

With respect to the second relief, the Court observed that the placement of screeen is based on past instances where some defense counsel has shown some facial expressions/gestures, which are disquieting to the child witness.

The Court concluded that if a Defense Counsel misuses his liberty by showing gestures or facial expression, so as to make the witness discomfortable then Special Court is fully empowered to screen the witness from him by adopting appropriate measures.

However, it pointed out that the same is illegal except in situations like these.

"Except in situations like the one referred above, as a general rule or as a matter of general practice, it is neither legal, nor proper to screen the vulnerable witnesses from the defense counsel. Such a course can be adopted only as an exception, in circumstances which would warrant the same based on individual facts. By way of clarification, it is held that the benefit is also liable to be extended to the prosecutor as well, who conducts the chief-examination," the Court observed.

The Petition was accordingly allowed.

Cause Title: Abdul Azeez vs. State of Kerala (2025:KER:8272)

Appearances:

Petitioner- Advocate Nirmal S., Advocate Veena Hari

Respondent- Advocate Sunil Jacob Jose, Special Government Pleader, Additional Public Prosecutor Sajuu S.

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Kerala High CourtJustice C Jayachandran

Sheetal Joon