Presumption U/S 29 POCSO Act Comes Into Play Even At Pre Trial Stage: Jammu & Kashmir & Ladakh High Court

The Jammu and Kashmir and Ladakh High Court has observed that presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) comes into play even at the pre-trial stage.

The Bench of Justice Javed Iqbal Wani observed thus as it agreed with a Jugdment of the Coordinate Bench of the High Court [Badri Nath Vs. Union Territory of J&K reported in 2020 (6) JKJ (HC) 255] about the applicability of the presumption under Section 29 of the Act at pre-trial stage inasmuch as while considering a bail application.

It may be noted that Section 29 of the POCSO Act raises a presumption of commission of offences under Section 3, 5, 7 and 9 of the Act against a person who is prosecuted against the same, unless contrary is proved.

The case in brief

Essentially, the Bench was dealing with a bail application filed by a POCSO Accsued Mubarak Ali Wani who has been booked under Sections 363, 376 IPC and Section 3/4 of POCSO Act and the chargsheet in the case has been filed.

It was the case of the accsud that the prosecution case does not disclose the commission of offence either under IPC or POCSO Act against the petitioner and that the investigation conducted is not in accordance with law and norms and involvement of the petitioner is not proved beyond any shadow of doubt.

It was further argued that the evidence including medical evidence does not connect the petitioner with the commission of alleged offence, in view of the opinion of the medical officer who is stated to have said that it cannot be commentedas to whether intercourse has taken place or not.

Importantly, the Defence also argeud that the presumption envisaged under Section 29 of the Act is not available in a case at pre trial stage and therefore, the said presumption cannot be made applicable by this court while considering the instant bail application.

On the other hand, the State argued that that the offences are grave and heinous in nature and that the victim is 15 years old (minor) and that the trial is yet to commence and witnesses yet to appear in the witness box.

Court's observations 

Regarding the argument of the defence that the presumption envisaged under Section 29 of the Act is not available in a case at pre trial stage, the Court referred to the ruling of the HC in the case of Badri Nath to conclude that the presumption is in fact available at the pre-trial stage.

Further, the Court took into account the statement made by the victim under Section 164 Cr.PC on 28.08.2021 and noted that the same, in explicit terms, implicates the petitioner in the commission of offencealong with theco-accused.

Regarding the medical opinion, when the defence argued that the happening of the alleged intercourse was not confirmed, the Court noted that this argument is not attracted at the stage of bail, as it would be gone into by the trial court during the course of trial.

Against this backdrop, the Court, while dismissing the instant bail plea, remarked thus:

"Perusal of the record tends to show that there is material on record prima-faciesuggesting involvement of the petitioner in the alleged offences and having regard to the principles and propositions of law laid down by the Apex court on the subject of bail as noticed above, particularly keeping in view the nature of accusation, severity of punishment so on and so forth, the petitioner is held not entitled to bail at this stage."

In related news, the Delhi High Court had, in Dharmander Singh vs. State (Government of NCT of Delhi) [YEAR 2020] maintained that the presumption of guilt against the accused under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) can only be adopted by the court on the commencement of the trial.

However, the J&K&L HC had disagreed with this view of the Delhi High Court in Badri Nath case.

Case title - Mubarak Ali Wani v. Union Territory through Police Station

Case Citation: 2022 LiveLaw (JKL) 10

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