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:
- when does the presumption actually gets triggered and,
- 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
, 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
- Mukut Bihari v. State of Rajasthan (Prevention of Corruption
- 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
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
, 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
, 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
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,
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.
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)
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:
- The judgment fails give due regard to the several judgments by the SC
and various high courts on the issue of invocation of presumption.
- 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
- At that stage the accused person cannot cross examine the prosecution
witnesses which forms the core of disproving the presumption.
- It would also force an accused person to disclose his defence even
before the trial begins and prosecution witnesses are examined.
- 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
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.