Section 36 of THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
Original Text
36. Child not to see accused at the time of testifying.
(1) The Special Court shall ensure that the child is not exposed in anyway to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.
(2) For the purposes of sub-section (1), the Special Court may record the statement of a child through video conferencing or by utilising single visibility mirrors or curtains or any other device.
Visual Summary
🛡️ Victim Protection
The primary mandate is that the child must never see the accused face-to-face while giving testimony to prevent re-traumatization.
⚖️ Rights of Accused
Despite the shield, the accused retains the right to hear the statement clearly and communicate with their lawyer for defense.
🎥 Approved Methods
Courts use Video Conferencing, single-visibility mirrors (one-way glass), or curtains to achieve this separation.
Summary
Section 36 of the POCSO Act addresses a critical aspect of the trial process: the physical environment during the child’s testimony. It recognizes that facing an abuser in court can be terrifying for a child and may prevent them from speaking the truth freely.
The law mandates that the Special Court must ensure the child does not see the accused at any point while recording evidence. However, to maintain the principles of a fair trial, the accused is not removed from the process entirely. The accused must still be able to hear what the child is saying and must be able to instruct their legal counsel. This balance is achieved through technology (like video links) or physical barriers (like curtains or one-way mirrors).
Key Takeaways
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Mandatory Shielding: The Court has a legal obligation to ensure the child is not exposed to the accused. -
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Fair Trial Balance: The accused’s right to hear evidence and defend themselves is preserved. -
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Flexible Methods: The Act allows for various methods (Video Conferencing, Mirrors, Curtains) to suit the infrastructure available. -
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Scope: This protection applies specifically at the time of recording evidence (testifying).
Process Flowchart
Practice Questions
1. Under Section 36, is the accused permitted to see the child while the child is testifying?
2. Does Section 36 prevent the accused from hearing the child’s testimony?
3. Which of the following is NOT mentioned as a method for recording evidence in Section 36?
Answer: D. Face-to-face interaction is prohibited. The Act suggests video conferencing, mirrors, curtains, or other devices.
Related Provisions
Conclusion
Section 36 of the POCSO Act is a cornerstone of child-friendly jurisprudence. By strictly prohibiting visual contact between the victim and the accused, the law acknowledges the psychological vulnerability of the child. It successfully bridges the gap between protecting the victim from intimidation and upholding the constitutional right of the accused to a fair trial through the use of modern technology and courtroom modifications.