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Presumption U/S 29 Of POCSO Act Would Come In To Play Even At Pre-Trial Stage: Jammu and Kashmir High Court Differs From Delhi HC's View

Akshay Gudinho
28 Dec 2020 4:07 PM GMT
Presumption U/S 29 Of POCSO Act Would Come In To Play Even At Pre-Trial Stage: Jammu and Kashmir High Court Differs From Delhi HCs View
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The High Court of Jammu and Kashmir has recently held that the presumption of guilt against the accused under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) would come in to play even during the pre-trial stage Justice Sanjay Dhar while rejecting the bail of accused in a POCSP Case passed a contrary opinion to the Delhi High Court judgment in...

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The High Court of Jammu and Kashmir has recently held that the presumption of guilt against the accused under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) would come in to play even during the pre-trial stage 

Justice Sanjay Dhar while rejecting the bail of accused in a POCSP Case passed a contrary opinion to the Delhi High Court judgment in Dharmander Singh vs. State (Government of NCT of Delhi),  which 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.

Defining "Prosecuted"

In interpreting Section 29, the Delhi HC on reference to the meaning of the term "prosecuted", concluded that it meant the same as the term "tried". The position here is that the prosecution is initiated at the commencement of the trial. This is the main point that the Jammu and Kashmir High Court differed with the Delhi HC. The  Jammu and Kashmir High Court held that the term "prosecute" does not mean the same thing as the commencement of the trial and, as such, "it can safely be stated that the prosecution of an accused begins with the presentation of challan before a Court." i.e. before the actual commencement of the trial.

The reasons in support of its judgment given by the Jammu and Kashmir HC were that if the Legislature were to impose such a presumption on the accused at the commencement of the trial, the word "trial" would be used instead of "prosecute" under Section 29. Section 54 of the Narcotics and Psychotropic Substances Act, 1985 (NDPS Act) was reproduced by the Jammu and Kashmir High Court to indicate the legislative intent behind presuming the guilt of the accused at the commencement of the trial under the NDPS act, which is not the case under the POSH Act.

When can the presumption be adopted?

On reference to a plethora of Supreme Court and High Court authorities, the Delhi High Court concluded the trial commences when the charges are framed against the accused:

"…in essence, the position is that to rebut a presumption, first, the presumptive proposition must itself be formulated based on relevant and credible material; and second, the accused must know what presumption he has to rebut. …….. At the very least, the charges should have been framed by court against the accused under one or more of those sections for the presumption to arise; and mere implication by the police is not enough.

51. Only when the trial court frames charges, does it form a prima facie opinion that there is a case for the accused to answer and defend…..So, the presumption under section 29 cannot arise before charges are framed."

The Delhi HC held that the presumption under Section 29 cannot be triggered before the charges are framed because this would lead to a "mini-trial" before the actual trial takes place; thus, defeating the purpose of the actual trial. This is because the accused would be given an opportunity to rebut the presumption before the charges are filed. The Delhi HC gave an example of adopting the presumption at the registration of the FIR, which would in effect provide the accused an opportunity to rebut the presumption before charges are even filed, prejudicing the actual trial and becoming an "anathema to fundamental criminal jurisprudence".

The Delhi HC went on to quote the judgement of Maneka Gandhi vs. Union of India & Anr, 1978 SCR (2) 621 maintaining that 'law' under Article 21 of the Constitution is not mere lex but "implies, due process both procedural and substantive" which must be "reasonable, just and fair". The Delhi HC went on to expand the principles of Article 21 to the presumption of innocence of the accused and commented upon the consequences of pre-trial detention.

In support of its argument that the presumption under Section 29 cannot be adopted before the charges are filed, the Delhi HC provided authorities where courts have held that during bail applications the courts must have a prima facie satisfaction in relation to the charge and not a conviction beyond a reasonable doubt establishing the guilt of the accused. The "evidence in support of the allegations, and not proof of evidence" is key here.

In response and on reference to the "reasonable, just and fair" argument of the Delhi HC, the J & K HC maintained that the same can be taken cared of even at a pre-trial stage before the charges are filed. The court would analyse the material provided by the investigative agencies and establish whether "the foundational facts that would give rise to the presumption in terms of Section 29 of the Act are, prima facie, in existence." The J & K HC even defended the right of the accused to present his/her defence to rebut the presumption by the accused contradicting the foundational facts presented by the investigative agencies. It appears that the J &K HC did not concur with the Delhi HC's opinion that this would lead to a "mini-trial".

The understanding of the Delhi HC was that the presumption cannot be adopted till the "prosecution has established facts that form the basis of the presumption". According to the Delhi HC, this could be done only after the charges are framed. Thereafter, the accused would be given the opportunity to rebut the established facts and the charges to contradict the presumption. The Delhi HC view was that a trial where the court takes a prima facie view of the matter before the framing of charges would, in effect, be a "mini-trial" rendering the right of the accused to defend any possible charge a nugatory and thus violating his right under Article 21 of the Constitution:

"Applying section 29 to bail proceedings at a stage before charges are framed, would in effect mean that the accused must prove that he has not committed the offence even before he is told the precise offence he is charged with, which would do violence to all legal rationality."

The Jammu and Kashmir High Court held that even in the absence of a charge, at a pre-trial stage, the accused can very well contradict the foundational facts that support the presumption led by the investigative agencies. The court, here, would take a prima facie view like in any bail application, before or after the filing of the charge sheet. The presumption could thus be adopted by the courts against the accused before the charges were framed.

On the basis of the statutory interpretation, the Delhi HC cited authorities to hold that in case there are two statutory interpretations, the one that is constitutionally valid and in favour of the accused must be adopted. The J & K HC, on the other hand, cited State of Bihar vs. Rajballav, (2017) 2 SCC 178 maintaining that presumption of innocence of the accused is not applicable when there is a contrary statutory provision prescribing a presumption of guilt on the accused under POCSO.


CASE: BADRI NATH vs. UNION TERRITORY OF J & K TH. POLICE STATION BARI BRAHAMANA [BAIL APPLICATION: 139 OF 2020]

CORAM: Justice Sanjay Dhar

COUNSEL: Adv. Pranav Kohli & Dy. AG Adv. Aijaz Lone

Click here to Download Order

[Read Order] 


CASE: DHARMANDER SINGH vs. THE STATE (GOVT. OF NCT, DELHI) [BAIL APPLICATION: 1559 OF 2020]

CORAM: Justice Anup Jairam Bhambani

COUNSEL: Adv. Vagisha Kochar, APP for State Adv. Neelam Sharma

Click here to Read/Download Order


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