Code: Section 36
(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.
Explanation of Section 36 POCSO
Section 36 of the POCSO Act is a critical child protection provision that ensures the child is not traumatized or intimidated by direct interaction with the accused during testimony. The law recognizes the sensitivity of children and mandates the creation of a safe and secure environment for recording their statements.
Key objectives of this section include:
- Preventing the child from seeing or being physically exposed to the accused during testimony.
- Balancing the rights of the accused by ensuring they can hear the child’s statement and communicate with their advocate.
- Allowing the use of modern tools such as video conferencing, one-way mirrors, curtains, or other privacy-protecting devices to achieve the above.
This approach fosters a child-friendly environment in the courtroom while preserving fair trial rights for the accused.
Key Provisions
- Shielding the Child: The child must not come into direct visual contact with the accused while testifying.
- Use of Technology or Barriers: Special Courts may employ video conferencing, one-way mirrors, or curtains to ensure visual separation.
- Right of the Accused: The accused must be able to hear the child’s testimony and consult with their legal counsel during the proceedings.
Illustrations
Illustration 1: Use of Video Conferencing
A 10-year-old child is a victim in a POCSO case. The Special Court arranges for the child to testify from a separate room via live video feed. The accused is present in the courtroom and can hear the testimony and consult with their lawyer, but the child does not see them.
Illustration 2: One-Way Mirror Setup
In another case, the Special Court installs a one-way visibility mirror in the courtroom. The child gives testimony in a protected enclosure, where they cannot see the accused, though the accused and their counsel can hear the statement and observe proceedings.
Illustration 3: Use of Curtains
A courtroom uses a physical curtain barrier to shield the child from the accused while allowing the accused to hear the testimony. The child’s guardian is also present to provide emotional support, as allowed under Section 33(4) of the Act.
Common Questions & Answers on Section 36 POCSO
1. Why is the child protected from seeing the accused?
To prevent further trauma, fear, or intimidation, and to create a safe space for the child to give truthful and confident testimony.
2. Does this violate the accused’s right to a fair trial?
No. Section 36 ensures that while the child is protected, the accused still hears the testimony and can coordinate with their legal counsel, preserving fair trial rights.
3. What methods can be used to prevent visual exposure?
Video conferencing, one-way mirrors, physical barriers like curtains, or any device that serves the purpose of shielding the child while allowing communication flow in the courtroom.
4. Is the use of technology like video conferencing mandatory?
No. It is one of the options available to the Court. The method used depends on the Court’s discretion and available infrastructure.
5. Can the child be accompanied during testimony?
Yes. As per Section 33(4), the Special Court may allow a trusted person, such as a parent or guardian, to be present for emotional support.
Conclusion
Section 36 of the POCSO Act is a child-centric provision that underscores the importance of a safe, non-intimidating environment during judicial proceedings. It ensures that a child victim is protected from further trauma while testifying, without compromising the rights of the accused. Through the integration of protective technologies and thoughtful courtroom arrangements, the law upholds justice and child welfare in tandem.
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