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Section 36: Child not to see accused at the time of testifying

Protection of Children from Sexual Offences Act, 2012 • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 2012
Section 35 All 46 Sections of Protection of Children from Sexual Offences Act, 2012 Section 37
Statutory Defined Terms in this Section: (Click any term for official legal definition)
Child Sec 2(1)(d) Special Court Sec 28

Legal Commentary & Landmark Judgments: Section 36

Section 36 of the POCSO Act establishes a mandatory procedural safeguard ensuring that the child victim is not exposed in any way to the visual presence of the accused while testifying, while concurrently preserving the accused's constitutional right to hear the child's testimony and instruct defense counsel.

  • Total Visual Barrier Safeguard: Special Court has a positive statutory duty to ensure that the child does not see the accused at the time of recording evidence, utilizing single-way mirrors, curtains, screens, or video-conferencing facilities.
  • Preservation of Defense Communication: Sub-section (1) explicitly protects the accused's fair trial rights: the accused must be placed in a position to hear the entire testimony of the child and maintain uninterrupted communication with their defense advocate.
  • Frequent Rest Breaks and Anti-Badgering: Sub-section (3) mandates the Special Court to permit frequent breaks for the child during trial and prohibit aggressive, intimidating, or character-assassinating cross-examination questions.
Key Landmark Precedents:
  • Attorney General for India v. Satish (2022) 5 SCC 541: The Supreme Court held that the legislative architecture of the POCSO Act, including Section 36, is designed to eliminate trauma and re-victimization during judicial testimony; child protection mechanisms must be implemented stringently without diluting substantive offenses.
  • Bachpan Bachao Andolan v. Union of India (2011) 5 SCC 1: The Supreme Court directed the creation of child-friendly courtrooms equipped with one-way mirrors, partition screens, separate waiting rooms, and video links to shield vulnerable child witnesses from intimidation by accused persons.
Courtroom Practice & Strategic Litigation Guidance:

In courtroom trial management, object immediately if the accused is kept outside audio range or denied communication with defense counsel during the child's examination. Ensure that defense cross-examination questions are submitted in writing or routed through the presiding judge under Section 33(2) while insisting on accurate transcription.

Section 35 All 46 Sections of Protection of Children from Sexual Offences Act, 2012 Section 37