Bail under Protection of Children from Sexual Offences Act, 2012 vis-a-vis Presumption of Guilt under Section 29 of the Act.

Section 29 of the POCSO Act bring into existence 'Presumption of guilt' vis-a-vis any person prosecuted for committing, abetting or attempting to commit offences under section 3, 5, 7 and 9 of the Act.

Section 29 reads as follows:

29. Presumption as to certain offences:
Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

Two important questions arise:

1. when does the presumption actually gets triggered and,
2. Its effect on grant of bail.

These questions have been succinctly answered by the courts. The author has made an attempt to give a brief overview of the same.

When does the presumption under section 29 of POCSO get triggered?

There is a line of Supreme Court and various High Courts judgments elucidating the stage at which reverse onus clauses becomes effective. In respect of POCSO Act, various High Courts have held that the presumption under section 29 would become operative during the trial after the prosecution successfully establishes foundational facts. Section 29 uses the word 'prosecuted' it is in this context that the courts have demystified the stage of presumption.

A similar reverse burden clause is found in the Foreign Exchange Regulation Act, 1973, the Hon'ble Supreme Court in Seema Silk and Saree v. Directorate of Enforcement, held that in all the cases where a statute provides for a reverse burden of proof, the initial burden of proving the foundational facts always rests on the prosecution, and it is only after it successfully discharges that initial burden, the accused person is called upon to rebut the presumption. It is trite law that prosecution gets to prove its case for the first time only when the trial commences. It is a settled position that trial commences only after charges are framed.

In Noor Aga v. State of Punjab, the apex court restated its earlier view though this time in the context of The Narcotic Drugs and Psychotropic Substances Act which contain a clause akin to section 29 of POCSO, 1985.

The same view was again reiterated by the apex court in the case of:

• Mohan Lal v. State of Punjab (NDPS).
• Bubu v. State of Kerala (Prevention of Corruption Act),
• Mukut Bihari v. State of Rajasthan (Prevention of Corruption Act),
• Kaliyaperumal v. State of T.N. (Dowry Death) and
• Rangappa v. Sri Mohan (Negotiable Instruments Act).

In the context of POCSO Act, High Court of Bombay in Navin Dhaniram Baraiye v. State of Maharashtra, held that mere allegation does not bring the presumption into play and it is only after the foundational facts are proved that the presumption actually becomes operative which is possible only at the stage of trial and not before.

The High Court of Gauhati in Bhupen Kalita v. State of Assam, differentiated between a prima facie view formed while framing charges and a legal presumption of guilt provided under the law, to hold that presumption under section 29 cannot be drawn without there being proper recording of prosecution witnesses. Similar view was taken by another bench of the Guahati High Court in Manirul Islam v. State of Assam, to hold that any reverse burden clause contained in any law would only become operative after the stage of S.228 of Cr.P.C.

Similarly, Calcutta High Court in Sahid Husain Biswas v. State of West Bengal, held that every presumption is rebuttable, and it can be rebutted only, when the prosecution first proves the opposite of which is sought to be rebutted by the accused person.

The same view was restated in Subrata Biswas v. The State, the court observed that asking an accused person to prove his innocence even before the trial commences, would be an anathema to the Criminal Jurisprudence and will also make such a clause constitutionally suspect.

The Kerala High Court in David v. State of Kerala, held that the accused person is asked to enter his defence under section 233 of Cr.P.C, Therefore, the presumption under section 29 of POCSO would only become operative after the prosecution proves the foundational facts under S. 232 of Cr.P.C. The same position was reiterated in Justin @Renjith v. Union of India and Joy v. State of Kerala.

The High Court of Tripura in Sri Kaipeng V. The State of Tripura and Sri Joubansen Tripura v. State of Tripura has also agreed with the view taken in the above cited judgments of various high courts to hold that presumption under section 29 gets triggered at the stage of trial only once the prosecution is able to prove foundational facts.

Bail plea moved before the commencement of trial

It is unanimously held in all the above-mentioned judgments that presumption begins only after the commencement of trial. However, the courts did not consider the impact of this presumption on a bail application.

The High Court of Delhi in Dharmander Singh v. The State (Govt. of NCT, Delhi), explained in great detail, the issue of invocation of presumption under section 29 at the stage of bail before framing of charges and came to the conclusion that if the presumption was to operate at pre-trial stage, then it would amount to conducting a mini trial, and accused would be asked to prove his innocence even before he is told the precise offence he is charged with.

It observed that it would be impossible for the accused person to rebut the presumption without having access to any of the document which the prosecution seeks to rely upon, therefore, Section 29 would have no application when a bail plea is considered before the framing of charges.

Bail plea moved after the commencement of trial

A detailed analysis of this issue finds place in the judgment of Delhi High Court in the case of Dharmander Singh v. The State (Govt. of NCT, Delhi), it held that full-fledged presumption would not begin even after the trial begins but only after the prosecution has marshalled its evidence.

It held as follows:
71�It would be anathema to fundamental criminal jurisprudence to ask the accused to disclose his defence; or, worse still, to adduce evidence in his defence even before the prosecution has marshalled its evidence. Again therefore, even for a stage after charges have been framed, section 29 cannot be applied in absolute terms to a bail plea without doing violence to the 'due process' and fair trial tenets read into Article 21 of our Constitution.

However, a different view was taken by the High Court of Jammu and Kashmir in Badri Nath v. U.T. of J&K, to hold that presumption would get triggered after filing of the charge sheet and the same would govern the bail proceedings.

In my opinion humble the view taken by the J&K High Court is not the correct position of law for the following reasons:

1. The judgment fails give due regard to the several judgments by the SC and various high courts on the issue of invocation of presumption.
2. It also ignores the mandate of section 207 Cr,P.C. which arises at a later stage and it would become impossible for the accused person to rebut the presumption without having access to the documents being relied upon by the prosecution.
3. At that stage the accused person cannot cross examine the prosecution witnesses which forms the core of disproving the presumption.
4. It would also force an accused person to disclose his defence even before the trial begins and prosecution witnesses are examined.
5. Also, it becomes pertinent to note that unlike many statutes which not just contain a reverse burden clause but also provides for stringent conditions on bail, there are not such conditions under POCSO which govern the grant of bail.

Conclusion
The courts through various judicial pronouncements have granted enough procedural safeguards to an accused person regardless of the reverse onus clause provided under S. 29 of the Act. The dust around the invocation of presumption clause seems to have settled after a line of recent judgments by various High Courts. It is now a settled position that presumption under POCSO Act, gets triggered only after the commencement of trial also that it has no bearing on the grant of bail. But a bail plea moved after the trial has commenced, then the contours of S.29 would play a decisive role in grant of bail.