How a Special Court Conducts the Trial
Chapter -One
Syllabus topic 4.2, the Protection of Children from Sexual Offences Act, 2012. Chapter VIII of the Act.
Pages 687 to 693 of 699
In one line
The Special Court takes cognizance without committal, questions the child itself, keeps him from ever seeing the accused, sits in camera, and finishes in a year.
In exam wording: sections 33 to 38 of the Protection of Children from Sexual Offences Act, 2012 prescribe the procedure and powers of the Special Court, the procedure where the offence is committed by a child, the periods for recording evidence and disposal, the rule that the child is not to see the accused, in camera trials, and the assistance of interpreters and experts.
Why the law has this at all
The Act has done everything it can before the trial: the statement was taken at home, the medical examination was done with a trusted person present, the identity was protected. All of that is undone if the child then has to stand in an open courtroom and be cross-examined by the accused's advocate with the accused watching.
So Chapter VIII rebuilds the trial around the child, and each section removes one specific source of harm.
Committal, removed by section 33(1): the Special Court takes cognizance directly, so there is no preliminary proceeding before another court.
Direct cross-examination, removed by section 33(2): the questions go through the Judge.
Sight of the accused, removed by section 36, without taking away the accused's right to hear and to instruct his advocate, which is what makes the arrangement fair rather than one-sided.
The public, removed by section 37: the trial is in camera, in the presence of the parents or a person the child trusts.
Repeated appearances, removed by section 33(5): the child is not to be called repeatedly to testify.
Hostile questioning, removed by section 33(6): no aggressive questioning or character assassination, and the dignity of the child maintained at all times.
And delay, removed by section 35: thirty days for the child's evidence, one year for the trial.
Some words this chapter uses
In camera means not in open court.
Single visibility mirrors in section 36(2) allow one side to see without being seen.
A commission under section 37's proviso is the device from section 284 of the Code of Criminal Procedure, 1973, which this book covers in Module III as section 319 of the Bharatiya Nagarik Suraksha Sanhita.
Section 33: procedure and powers
Sub-section (1), no committal. A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
Sub-section (2), questions through the Court. The Special Public Prosecutor, or the counsel appearing for the accused, shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court, which shall in turn put those questions to the child.
How a Special Court Conducts the Trial
Sub-section (3). The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
Sub-section (4). The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative in whom the child has trust or confidence to be present in the court.
Sub-section (5). The Special Court shall ensure that the child is not called repeatedly to testify in the court.
Sub-section (6). The Special Court shall not permit aggressive questioning or character assassination of the child, and shall ensure that the dignity of the child is maintained at all times during the trial.
Sub-section (7), identity. The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial. Proviso: for reasons to be recorded in writing, it may permit such disclosure if in its opinion it is in the interest of the child.
Explanation. The identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.
Sub-section (8), compensation. In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child, for any physical or mental trauma caused to him, or for his immediate rehabilitation.
Sub-section (9). Subject to the Act, a Special Court shall, for the trial of any offence under this Act, have all the powers of a Court of Session, and shall try such offence as if it were a Court of Session, and as far as may be in accordance with the procedure specified in the Code of Criminal Procedure, 1973 for trial before a Court of Session.
Sub-section (8) is worth noting as a distinct power. Compensation is in addition to the punishment, and is for physical or mental trauma or for immediate rehabilitation; the amount is as prescribed, under section 45(2)(c).
Section 34: an offence by a child, and age
Sub-section (1). Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Sub-section (2). If any question arises in a proceeding before the Special Court whether a person is a child or not, it shall be determined by the Special Court after satisfying itself about the age of that person, and it shall record in writing its reasons for the determination.
How a Special Court Conducts the Trial
Sub-section (3). No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it was not the correct age of that person.
Sub-section (1) is the joint between the two statutes in this module. A boy of sixteen who commits an offence under POCSO is dealt with by the Juvenile Justice Board, not by the Special Court as an accused adult, which is the same rule as section 89 of that Act.
Section 35: the two periods
Sub-section (1). The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence, and reasons for delay, if any, shall be recorded by the Special Court.
Sub-section (2). The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.
Sections 36 to 38: sight, privacy and communication
Section 36(1). The Special Court shall ensure that the child is not exposed in any way 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.
Sub-section (2). For that purpose 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.
Section 37. The Special Court shall try cases in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence. Proviso: where the Special Court is of opinion that the child needs to be examined at a place other than the court, it shall issue a commission in accordance with section 284 of the Code of Criminal Procedure, 1973.
Section 38(1). Wherever necessary, the Court may take the assistance of a translator or interpreter, of the prescribed qualifications, experience and fees, while recording the evidence of the child.
Sub-section (2). If a child has a mental or physical disability, the Special Court may take the assistance of a special educator, or any person familiar with the manner of communication of the child, or an expert in that field, of the prescribed qualifications, experience and fees, to record the evidence.
Section 38 repeats for the trial what section 26 provided for the statement. Both a translator or interpreter and a special educator or expert are available at each stage.
How a Special Court Conducts the Trial
A worked example
The chargesheet in a POCSO case reaches the Special Court.
Must the case be committed to it? No. Section 33(1) lets it take cognizance without the accused being committed, on a complaint or a police report.
By when must the child give evidence? Within thirty days of the Special Court taking cognizance, with reasons recorded for any delay, section 35(1); and the trial completed as far as possible within one year, sub-section (2).
How is the child examined? Counsel on both sides communicate their questions to the Special Court, which puts them to the child, section 33(2). Neither the prosecutor nor the defence advocate questions the child directly.
The defence advocate presses hard on the child's character. The Court shall not permit aggressive questioning or character assassination, and must maintain the child's dignity at all times, section 33(6).
The child is tired. The Court may permit frequent breaks, sub-section (3); and it shall ensure that she is not called repeatedly to testify, sub-section (5).
She wants her aunt with her. The Court shall create a child-friendly atmosphere by allowing a family member, guardian, friend or relative in whom she has trust or confidence to be present, sub-section (4); and the trial is in any event in camera and in the presence of the parents or a person she trusts, section 37.
Can she be made to face the accused? No. The Court shall ensure that she is not exposed in any way to the accused at the time of recording the evidence, using video conferencing, single visibility mirrors, curtains or any other device, section 36; but the accused must be in a position to hear her statement and communicate with his advocate.
She cannot travel to the court. The Court shall issue a commission under section 284 of the Code, proviso to section 37.
She has a speech disability. The Court may take the assistance of a special educator, or a person familiar with her manner of communication, or an expert, section 38(2); and a translator or interpreter where necessary, sub-section (1).
A journalist asks for her school's name. The Court shall ensure her identity is not disclosed at any time during the investigation or trial, and "identity" includes her family, school, relatives, neighbourhood or any other information by which she may be identified, section 33(7). Disclosure is possible only for reasons recorded in writing and in her interest.
He is convicted. The Court may, in addition to the punishment, direct payment of such compensation as may be prescribed for the physical or mental trauma caused to her, or for her immediate rehabilitation, section 33(8).
How a Special Court Conducts the Trial
Change the facts: the offender is himself a boy of fifteen. He shall be dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2015, section 34(1).
His age is disputed. The Special Court determines it, recording its reasons in writing, sub-section (2); and no order is invalid merely because later proof shows the determination was wrong, sub-section (3).
Distinctions
| What the Special Court must do | Provision |
|---|---|
| Take cognizance without committal | s.33(1) |
| Put counsel's questions to the child itself | s.33(2) |
| Permit frequent breaks if necessary | s.33(3) |
| Allow a family member, guardian, friend or relative the child trusts to be present | s.33(4) |
| Ensure the child is not called repeatedly | s.33(5) |
| Forbid aggressive questioning or character assassination, maintain dignity | s.33(6) |
| Ensure the identity is not disclosed, family, school, relatives and neighbourhood included | s.33(7) |
| Direct compensation in addition to punishment | s.33(8) |
| Record the child's evidence in thirty days, finish the trial in one year | s.35 |
| Keep the child from any exposure to the accused, while the accused hears and instructs | s.36 |
| Try the case in camera, with a trusted person present | s.37 |
| Section 26 | Section 38 | |
|---|---|---|
| Stage | Recording the statement | Recording the evidence at trial |
| Translator or interpreter | Wherever necessary | Wherever necessary |
| Special educator or expert | For a child with a mental or physical disability | For a child with a mental or physical disability |
| Section 36, the two halves | |
|---|---|
| For the child | Not exposed in any way to the accused at the recording of evidence |
| For the accused | In a position to hear the statement and to communicate with his advocate |
| Means | Video conferencing, single visibility mirrors, curtains, or any other device |
What this does NOT mean
The accused is not shut out of his own trial. Section 36(1) requires that he be able to hear the child's statement and communicate with his advocate.
Cross-examination is not abolished. It happens, but the questions are put by the Court, section 33(2).
In camera does not mean the child is alone. Section 37 requires the presence of the parents or a person in whom the child has trust or confidence.
The thirty days and the year are differently worded. The evidence shall be recorded within thirty days, with reasons recorded for delay; the trial is to be completed as far as possible within one year.
And a wrong age finding does not undo the trial. Section 34(3) preserves orders notwithstanding subsequent proof that the age determined was not correct.
How a Special Court Conducts the Trial
Quick revision
- 33: cognizance without committal; questions communicated to the Court, which puts them to the child; frequent breaks; a trusted person present; no repeated testimony; no aggressive questioning or character assassination, dignity maintained; identity not disclosed, including family, school, relatives and neighbourhood, save for recorded reasons in the child's interest; compensation in addition to punishment; all the powers of a Court of Session.
- 34: an offence committed by a child goes under the Juvenile Justice Act, 2015; the Special Court determines age with reasons in writing; no order invalid on later proof that the age was wrong.
- 35: the child's evidence within thirty days of cognizance, reasons for delay recorded; the trial completed as far as possible within one year.
- 36: the child not exposed in any way to the accused, while the accused hears and communicates with his advocate; by video conferencing, single visibility mirrors, curtains or any other device.
- 37: trial in camera and in the presence of the parents or a trusted person; a commission under section 284 of the Code where the child must be examined elsewhere.
- 38: a translator or interpreter wherever necessary; a special educator, a person familiar with the child's manner of communication, or an expert for a child with a mental or physical disability.
Test yourself
1. Must a POCSO case be committed to the Special Court? No. Section 33(1) allows the Special Court to take cognizance of any offence without the accused being committed to it for trial, on a complaint of the facts constituting the offence or on a police report.
2. How is the child questioned at the trial? The Special Public Prosecutor or the counsel for the accused communicates the questions to the Special Court, which in turn puts them to the child, in examination-in-chief, cross-examination and re-examination alike, section 33(2).
3. Within what time must the child's evidence be recorded? Within thirty days of the Special Court taking cognizance of the offence, and reasons for any delay must be recorded, section 35(1). The trial is to be completed as far as possible within one year of taking cognizance.
4. Can the child be made to face the accused? No. Section 36(1) requires the Special Court to ensure that the child is not exposed in any way to the accused at the time of recording the evidence, while ensuring that the accused can hear the child's statement and communicate with his advocate; by video conferencing, single visibility mirrors, curtains or any other device.
How a Special Court Conducts the Trial
5. How are POCSO trials conducted? In camera, and in the presence of the parents of the child or any other person in whom the child has trust or confidence, section 37.
6. Can the Special Court award compensation? Yes. In appropriate cases it may, in addition to the punishment, direct payment of such compensation as may be prescribed for any physical or mental trauma caused to the child or for his immediate rehabilitation, section 33(8).
7. What happens where the offence is committed by a child? He shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, section 34(1).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.