Kerala High Court
Abdul Azeez vs State Of Kerala on 31 January, 2025
O.P.(Crl.) No.630 of 2024
- 1 -
2025:KER:8272
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 31ST DAY OF JANUARY 2025/11TH MAGHA, 1946
OP(CRL.) NO.630 OF 2024
CRIME NO.641/2022 OF CHEVAYUR POLICE STATION, KOZHIKODE
AGAINST S.C.NO.37 OF 2023 OF FAST TRACK SPECIAL COURT,
KOZHIKODE
PETITIONER/ACCUSED:
ABDUL AZEEZ, AGED 52 YEARS, S/O.MOHAMMED,
VELLACHALIL HOUSE, PARANNUR P.O., NARIKUNI,
KOZHIKODE, PIN - 673585.
BY ADVS.
NIRMAL.S
VEENA HARI
RESPONDENTS/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
(THROUGH S.H.O,
CHEVAYOOR POLICE STATION), PIN - 682031.
*ADDL.R2 THE HIGH COURT OF KERALA,
REPRESENTED BY THE
REGISTRAR (DISTRICT JUDICIARY).
*ADDITIONAL R2 IS SUO MOTU IMPLEADED VIDE ORDER
DATED 17/12/2024 IN OP(CRL)NO.630/2024
O.P.(Crl.) No.630 of 2024
- 2 -
2025:KER:8272
BY ADVS.
SUNIL JACOB JOSE
P.NARAYANAN, SPL. G.P. TO DGP AND ADDL. P.P.
SAJJU.S., SENIOR GOVERNMENT PLEADER
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
31.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(Crl.) No.630 of 2024
- 3 -
2025:KER:8272
'C.R'
JUDGMENT
Dated, this the 31st day of January, 2025
"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
- 4 -
2025:KER:8272
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
- 5 -
2025:KER:8272
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
- 6 -
2025:KER:8272
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 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
- 7 -
2025:KER:8272
vulnerable witness. On such premise, learned counsel would
seek the second relief also to be allowed. In this regard,
reliance is placed upon the judgment of a learned Single
Judge of this Court in Unnikrishnan R. v. Sub Inspector of
Police and others [2018 SCC OnLine Ker 4642]. Relying upon,
Asha Ranjan v. State of Bihar [(2017) 4 SCC 397], learned
counsel would submit that the basic right of an accused for
fair trial cannot be compromised, while balancing the
protection being extended to a vulnerable witness.
7. As regards the first relief, learned counsel for the
2nd respondent High Court would submit 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. Section 33 speaks of the special
procedure and powers of the Special Court. When there is a
peremptory direction in the form of Section 33(2) that
questions has to be put through the Special Court, the same
can only mean that the stipulation thereof is compulsory,
- 8 -
2025:KER:8272
rather mandatory. Learned counsel would point out that the
same embargo is put to the prosecutor as well, while putting
questions during examination-in-chief.
8. Coming to the second limb, learned counsel would first
invite the attention of this Court to a report called for by
the 2nd respondent from the learned Special Judge, Fast
Track Court, Kozhikode, where the accused is facing trial in
S.C.No.37/2023. The learned Sessions Judge has stated that a
screen is placed between the accused and the
victim/vulnerable witness and it is so placed, that even the
defense counsel could not see the witness. It was stated
that in a given situation, if the defense counsel seeks to
see the witness answering, the same will be permitted.
Learned counsel then invited my attention to the guidelines
issued by the High Court, which was produced along with the
counter. It was first pointed out that the guidelines were
issued in accordance with the directions of the Hon'ble
Supreme Court in Smruti Tukaram Badade (supra), as also, the
new criminal laws, namely, the Bharatiya Nyaya Sanhita, 2023
(for short, 'B.N.S'), Bharatiya Nagarik Suraksha
- 9 -
2025:KER:8272
Sanhita, 2023 (for short, 'B.N.S.S') and the Bharatiya
Sakshya Adhiniyam, 2023 (for short, 'B.S.A'). Clause 3(a)(i)
of the guidelines stipulates that a vulnerable witness
includes any child witness or a witness, who has not
completed 18 years of age. As per clause (5), there cannot
be any inference of any prejudice to be drawn from the
special measures adopted in the guidelines. The guidelines
goes to the extent of acclimatizing the vulnerable witnesses
by permitting a visit to the Court by virtue of clause (10).
Coming to the relevant clause (17), where a duty is cast to
provide a comfortable environment to the child witness,
learned counsel would point out that permission is granted
only for the accused, as also, his counsel to have a frontal
or profile view of the vulnerable witness, while deposing
before the Court; and not vice versa. If the vulnerable
witness, choose to look at the accused person or their
counsel, the same is permissible in terms of clause 17(iv)
of the guidelines. 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,
- 10 -
2025:KER:8272
one-way mirror, curtains or other devices to be placed in
the Court room, in such a manner that the vulnerable witness
cannot see the accused/opposite party while testifying; and
at the same time, ensuring that the opposite party/accused
is in a position to hear the statement of the vulnerable
witness. To a specific query put by this Court 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, the answer was in the negative.
Learned counsel would, however, hasten to add that an
objection as to a screen being put between the defense
counsel and the vulnerable witness was never raised before
the trial court and that the same is raised for first time
in this Original Petition. For that reason, it may not be
compulsory for this Court to answer that question, or for
that matter, to allow relief no.(2), is the submission made.
9. Learned Special Government Pleader to D.G.P and
Additional Public Prosecutor would submit that the language
employed in Section 33(2) is couched in mandatory terms,
which permits of no exception, whatsoever. Learned counsel
- 11 -
2025:KER:8272
would rely upon a judgment of the Bombay High Court in
Dnyandeo Bhujang Dahiphale v. State of Maharashtra and
another [2023 SCC OnLine Bom 1672] to point out that, where
the counsel for the accused had agreed before the trial
court to put a screen between the counsel and the vulnerable
witness, a challenge in this regard at the appellate stage
was repelled by the Bombay High Court. Reference in this
regard was made in paragraph no.11 of the judgment. Learned
counsel would rely upon another judgment of the Bombay High
Court in Osban Fernandes v. State [2020 SCC OnLine Bom 845],
wherein the procedure adopted to keep the vulnerable witness
behind a curtain, so that she is not exposed to the accused
persons was approved and favoured by the High Court of
Bombay. Learned counsel also invited the attention of this
Court to Section 308 of the B.N.S.S, especially to the
proviso therein, to point out that the Court has been given
ample power to safeguard the interest of a victim of rape or
other sexual offence, in such a manner that such woman is
not confronted by the accused, simultaneous with ensuring
the right of cross-examination of the accused. Learned
counsel would also submit that, having regard to the
- 12 -
2025:KER:8272
protective measures as available in the parent Code, in the
guidelines and also in the new provisions of the B.N.S.S, it
will not go foul of law in an appropriate case, if the court
choose to screen the vulnerable witness, even from the
defense counsel.
10. Having heard the learned counsel appearing for the
respective parties, this Court is partially in favour of the
petitioner, and partially otherwise. Insofar as the first
relief is concerned, that is, to permit the defense counsel
to put questions directly to the child witness, 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.
- 13 -
2025:KER:8272
Having regard to the special enactment - the name of which,
itself, speaks of Protection of Children from Sexual
Offences Act - where protection is extended not merely from
sexual offences, but also with respect to the procedure for
trial and dispensation of justice, it cannot be held that
the term 'shall' is used with any other purpose, but to
indicate the mandatory character of the provision. When it
is specifically stipulated that questions shall be put
through the Special Court by virtue of an enabling
provision - in deviation from the practice in other cases -
the only possible conclusion is that the special safeguard
is mandatory; and not otherwise. In the circumstances, the
relief no.(1) sought for in the Original Petition will stand
declined.
11. Now, coming to the second relief - about which this
Court is inclined in favour of the petitioner - it requires
to be noticed from the report called for from the Special
Judge concerned that, as a matter of practice, a screen is
put so as to block the vision of the child witness even from
the defense counsel. The relevant portion of the report is
- 14 -
2025:KER:8272
extracted here below:
"I may most humbly submit that in my court a
practice is being followed in which when the
child witness who is the victim enters the box,
a screen will be placed in front of her/him so
that the accused cannot see her and she cannot
see the accused and counsels at the time of
giving evidence. It is true that by placing
such a screen the counsel for accused is also
not in a position to see the victim. Such a
practice has been followed due to some
incidents in which counsels for accused made
certain facial expressions which resulted in
making the child witnesses discomfort and it
resulted in denying them child friendly
atmosphere in the court. In order to avoid such
situations and to make a child friendly
atmosphere I also continued to follow the said
practice which has already been followed by my
learned predecessor. But whenever, the counsels
for the accused insist to see the victim during
examination, permission will be granted and no
impediment is there for the counsel to come
forward and see the child from a comfortable
distance..."
12. The reason stated is based on certain past instances,
where some defense counsel has shown some facial
- 15 -
2025:KER:8272
expressions/gestures, which are disquieting to the child
witness. The learned Special Judge would hasten to add that
in a given situation, if permission is sought for to see
the witness, the same is also being allowed.
13. Having considered the above practice being
followed - at least in the Special Court which is in seizin
of the instant Sessions Case S.C.No.37/2023 - this Court is
of the opinion that the same cannot survive the test of
law. What ought to have been an exception, has been made
the rule; and what ought to have been the rule is made an
exception, is the impression which this Court gathers from
the report of the learned Special Judge. 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. Section 36 of
the P.O.C.S.O Act contemplates screening only from the
accused and not from his counsel. When a special enactment
is made and a special procedure is prescribed, which is in
deviation from the procedure applicable to other types of
- 16 -
2025:KER:8272
cases, all necessary matters relevant should be presumed to
have been considered by the legislature and the legislature
consciously took a call not to screen the vulnerable
witness from the defense counsel. Nor is there any
provision to do so in the guidelines issued by the High
Court - which was one issued pursuant to the judgment of
the Hon'ble Supreme Court in Smruti Tukaram Badade (supra),
and also, in tune with the new criminal laws. Learned
counsel for the 2nd respondent/High Court or the learned
Special Government Pleader to D.G.P and Additional Public
Prosecutor, could not point out any provision of the
B.N.S.S, which enables the screening of the child witness
from the defense lawyer concerned.
14. Dilating on the significance of cross-examination, a
Constitution Bench of the Supreme Court in State of M.P v.
Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623], held,
as far as back in 1961, that depriving an opportunity to
cross-examine a witness would violate the principles
of natural justice. Relying on that decision, as also,
on other cases, the Supreme Court in Ayaaubkhan
- 17 -
2025:KER:8272
Noorkhan Pathan v. State of Maharashtra and Others
[(2013) 4 SCC 465] held thus:
"30. The aforesaid discussion makes it evident
that, not only should the opportunity of cross-
examination be made available, but it should be
one of effective cross-examination, so as to meet
the requirement of the principles of natural
justice. In the absence of such an opportunity,
it cannot be held that the matter has been
decided in accordance with law, as cross-
examination is an integral part and parcel of the
principles of natural justice."
In Kartar Singh v. State of Punjab [(1994) 3 SCC 569],
the Supreme Court held that jurisprudentially,
cross-examination is an acid test of the truthfulness
of the statement made by a witness on oath in
chief-examination. Now, coming to a fundamental aspect of
criminal jurisprudence vis-a-vis the cross-examination, it
is not as if that a defense counsel come with a definite
set of questions and puts it to the witnesses,
mechanically. It is a slow and gradual process through
which a counsel would elaborate and expand his line of
cross-examination; and that is why, it is often called the
- 18 -
2025:KER:8272
art of cross-examination. 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.
15. 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
- 19 -
2025:KER:8272
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. 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.
16. In the circumstances, the second relief sought for is
only to be allowed. There will be a direction to the
learned Special Judge to remove the screen between the
survivor/victim/child/vulnerable witness and the defense
counsel, so as to enable proper cross-examination, but
ensuring that such witness is adequately screened from the
accused.
- 20 -
2025:KER:8272
17. Taking into account the possibility of the above
referred practice continuing in some other Special Courts
also, this Court directs the Registrar (District Judiciary)
of the High Court to communicate this judgment to the
Special Courts; or in the alternative, to issue modified
guidelines incorporating the gist of the dictum laid down
herein.
O.P.(Crl.) is allowed in part, as above.
Sd/-
C.JAYACHANDRAN, JUDGE
ww
- 21 -
2025:KER:8272
APPENDIX OF OP(CRL.) 630/2024
PETITIONER'S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE F.I.R NO.0641/2022
DATED 08.10.2022 OF THE CHEVAYOOR POLICE
STATION ALONG WITH F.I.S.
ANNEXURE A2 TRUE COPY OF THE 164 STATEMENT OF THE
SURVIVOR DATED 10.10.2022.
ANNEXURE A3 TRUE COPY OF THE EXAMINATION IN CHIEF OF
PW1.
RESPONDENTS' EXHIBITS:
EXHIBIT R2(A) A TRUE COPY OF THE NOTIFICATION NO.D1-
7/17562/2022 DATED 21/12/2024 ALONG WITH
THE AMENDED GUIDELINES.
EXHIBIT R2(B) A TRUE COPY OF THE COVERING LETTER
NO.A4-463/2025 DATED 13/1/2025 OF THE
DISTRICT JUDGE, KOZHIKODE ADDRESSED TO
THIS RESPONDENT ALONG WITH THE REPORT OF
THE SPECIAL JUDGE, FAST TRACK SPECIAL
COURT, KOZHIKODE.
