Presumption Under Section 29 of POCSO Act Cannot Arise At Stage Before Framing of Charges: Delhi High Court [Read Judgment]

In a significant judgment rendered on September 22, 2020, the Delhi High Court has discussed in detail the legislative intent and applicability of "reverse burden" under Section 29 of the Protection of Children from Sexual Offences Act 2012 (POCSO). The single Bench of Justice Anup Jairam Bhambhani was considering the bail application of a 24-yr-old man, accused of coercing a 17 yr-old girl to have sexual intercourse with him, at the threat of publicizing her private pictures, taken against her consent.The High Court has held that the presumption under Section 29 of POCSO Act is triggered only after commencement of trial, i.e. not before framing of charges Whereas the bail applicant had contended that he should be enlarged on bail since the investigation is complete and the charge-sheet in the matter has been filed, the prosecution had pleaded the application of Section 29 of POCSO to contest bail. Section 29 of the POCSO Act creates a 'presumption of guilt' on the part of the accused if he is prosecuted for committing, abetting or attempting offences under Sections 3, 5, 7 and 9 of the Act. The prosecution argued that since charges have already been framed in the matter, section 29 of the POCSO Act will apply with full vigour, whereby the court must presume the applicant to be guilty of the offences charged till he proves otherwise; and bail must not be given. Findings The Court observed that while hearing a bail application for offences alleged under the POCSO Act, certain very significant factor requires to be addressed, in addition to general principles of granting bail. It noted that while ordinarily there is a 'presumption of innocence' vis-a-vis an accused, Section 29 of the POCSO Act reverses this position. Therefore, the Court proceeded to examine whether the reverse burden of proof shall be factored in while granting bail, or not. To this end, the Court has considered the following questions: 1. Since section 29 says "(w)here a person is prosecuted" for committing an offence inter alia under sections 3, 5, 7 and 9, the special court "shall presume" an accused to be guilty, when can a person be said to be prosecuted? Since the terms 'prosecution' or 'prosecuted' have neither been defined in the POCSO Act nor in the CrPC, the Bench referred to the Black's Law Dictionary 8th Ed. which defines it as "a criminal proceeding in which an accused person is tried." Emphasizing on the word "tried", the Court observed that the phrase "person is prosecuted" appearing in Section 29 actually refers to the stage when "trial commences". To that extent, it held, the word "prosecuted" has been used in the sense of "tried". The Court clarified that at the stage of taking cognizance, "it is the offence and not the offender" that is subject matter of proceedings before the court. Thus, it cannot be said that upto the stage of cognizance, an accused is being prosecuted. As a sequitur therefore, the Court held that a person must be deemed to be prosecuted "only when trial commences" against him. Reliance was placed on Hardeep Singh v. State of Punjab & Ors., whereby the Supreme Court categorically held that the "trial" commences only on charges being framed. Conclusion: a person can be said to be prosecuted only after commencement of trial, i.e. after framing of charges. When and at what stage does the 'presumption of guilt' as engrafted in section 29 get triggered? To answer this question as to when the presumption of guilt gets triggered, the Bench referred to judgments of various High Courts in POCSO cases, holding that "such presumption comes into play only when the prosecution has established facts that form the basis of the presumption." Notably, in Sahid Hossain Biswas v. State of West Bengal, the Calcutta High Court held that before reverse burden is triggered, the prosecution must first establish the "foundational facts" constituting the charge. It said, "In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary. Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour." Similar views were expressed by the High Courts of Bombay and Kerala. In view thereof the Delhi High Court held, "the presumption of guilt engrafted in section 29 gets triggered and applies only once trial begins, that is after...

Presumption Under Section 29 of POCSO Act Cannot Arise At Stage Before Framing of Charges: Delhi High Court [Read Judgment]

Akshita Saxena

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