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

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....

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

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