Presumption of guilt in bail matters under the POCSO Act

Presumption of guilt in bail matters under the POCSO Act

The surge in sexual offences against children leads to the enactment of the Protection of Children from Sexual Offences Act, hereinafter referred to as “POCSO”. The Act was introduced with the aim of keeping the constitutional mandate enshrined under Section 15 (3) of the Indian Constitution. The nature of the legislation is gender-neutral, and its main concern is the best interests of children and welfare at all stages to ensure comprehensive development.

However, the striking feature of the Act is the clause relating to the presumption under Sections 29, which remained a matter of discussion in various verdicts pronounced by the Courts.

What is Section 29 of the Act?

Section 29 of the POCSO Act talks about the presumption of guilt for any person alleged to be accused of committing, abetting or attempting to commit offences under Sections 3, 5, 7 and 9 of the Act. The bare language of the Section reads out as: –

“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.”

Upon evaluating the aforesaid bare language, two important questions come into the mind including but not limited to-

  • When the presumption does actually gets set off?
  • What is the effect of Section 29 on bail application?

When the presumption does actually gets set off?

The answer to this question has been discussed in a plethora of judicial pronouncements. While considering this issue, multifarious High Courts have opined that the presumption under Section 29 would become active during the trial once the prosecution successfully establishes foundational facts. Since the legal language of the Section contains the word ‘prosecuted’, therefore the courts have demonstrated the stage of presumption.

Similarly, the Hon’ble Apex Court in Seema Silk and Saree v. Directorate of Enforcement, Criminal Appeal No. 860 of 2008, while dealing with the same question under the Foreign Exchange Act, 1973, observed that in all the cases where legislation provides a reverse burden of proof, the initial burden of proving the allegations always rests upon the prosecution, and only after successful discharge of initial burden by the prosecution, the accused person would be entitled to rebut the presumption.

The Hon’ble High Court of Bombay in Navin Dhaniram Baraiye v. State of Maharashtra, Criminal Appeal No. 406 of 2017 held that “It becomes clear that although the provision states that the Court shall presume that the accused has committed the offence for which he is charged under the POCSO Act, unless the contrary is proved, the presumption would operate only upon the prosecution first proving foundational facts against the accused, beyond a reasonable doubt. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section 29 of the said Act would not operate against the accused.”

What is the effect of Section 29 on bail application?

Generally, the effect of Section 29 depends upon two situations i.e. bail application filed before or after the charges has been framed. In Dharmander Singh @ Saheb v. The State, Bail Application 1559/2020, the Hon’ble Delhi Court held that “If a bail application is being considered before charges have been framed, Section 29 has no application, and the grant or refusal of bail is to be decided on the usual and ordinary settled principles.”

On the contrary, recently the Hon’ble High Court of Jammu & Kashmir in Badri Nath v. Union Territory of J&K, Bail Application No.139/2020 held that “At the time of considering the bail application of an accused, who has been booked for the offences under Sections 3, 5, 7 & 9 of the POCSO Act, the presumption under Section 29 of the said Act would come into play even at the pre-trial stage.

What if the charges have been framed?

In the aforementioned judgement in Dharmander Singh @ Saheb’s case, the Hon’ble Delhi Court while discussing the impact of Section 29 on the bail plea filed after commencement of trial held that “At the stage of considering a bail plea after charges have been framed, the impact of Section 29 would only be to raise the threshold of satisfaction required before a court grants bail. What this means is that the court would consider the evidence placed by the prosecution along with the charge-sheet, provided it is admissible in law, more favourably for the prosecution and evaluate, though without requiring proof of evidence, whether the evidence so placed is credible or whether it ex facie appears that the evidence will not sustain the weight of guilt.”

Conclusion: –

From the above discussion, it can be encapsulated that the presumption under POCSO Act not only gets sparked off after the commencement of trial but also has no bearing on the grant of bail. Nevertheless, a bail application moved after the initiation of the trial, Section 29 would play an imperative role in the adjudication of the bail application.

Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali


Are witnesses protected under the Indian Law?

Are witnesses protected under the Indian Law?

“Witnesses are the eyes and ears of justice.”

                                                                                   -Jeremy Bentham

Undeniably, witnesses play a crucial role in the legal proceedings to meet the ends of justice. Still, the subject of witness protection is not given much priority in India, which is absolutely unfair. It is well known that both the parties to the litigation are well informed that a witness in their case can hold the verdict in their favour, consequently, they either attempted to blackmail that person or bribed to stay quiet or change his/her version in a case. Although there is a lack of a statutory mechanism for the protection of witnesses in India, still there is a mechanism that has been set by the judiciary through its various verdicts from time to time. Before digging into deep, let’s put shine some shine on the basics of the aforesaid concept.

Who is called a witness?

In ordinary language, a witness is a person who has seen the crime happening and he/she is able to express it before the court.  In a legal context, as per Section 118 of the Indian Evidence Act, the witness is defined as a person who is competent enough to understand the questions put forward by the court of law.  Therefore, any person could be a witness if he/she has the ability to understand and answer the questions asked by the court.

According to Black’s Law Dictionary, the term witness has been defined as “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction.”

Who are vulnerable witnesses?

It is often understood that only child comes under the category of vulnerable witness, but the said notion was declined by the Hon’ble Apex Court in Smruti Tukaram Badade v. State of Maharastra and Anr., Special Leave Petition (Crl) No. 4480 of 2019, that term vulnerable witness might not be constrained to the child witness. Broadly speaking, certain people who are not able to testify or give evidence to the court because of some difficulties including mental disorder, physically handicapped, or are unable to cope due to intelligence impairments, and are less than 18 years of age.

Whether a child can become a witness?

The answer to this question is affirmative if the court thinks that a child is able to answer the questions put forward rationally, but he/she must not be a toddler. The Hon’ble Supreme Court in Dhanraj and Ors. Vs. State of Maharashtra 2002(4) R.C.R. (Criminal) 157, held that a child of class VIII who is not very small will be having enough intelligence to understand the facts and answer the questions put forward. Hence, the testimony of the child was heard.

Witness Protection in India: –

This becomes an intense issue in the country. According to the 4th National Police Commission Report, 1980, prosecution witnesses in India are turning hostile due to pressure and coercion by the accused and therefore, a regulation on the exploitation of witnesses is necessary. Consequently, it can be assumed that the state of witnesses in India is not good enough. Similarly, in the case of Mahendra Chawla and Ors. Vs. Union of India and Ors., 2019 (1) R.C.R.(Criminal)268, the Hon’ble Top Court while issuing directions to the Centre, States and Union Territories to enforce the Witness Protection Scheme, 2018, observed as under that: –

It hardly needs to be emphasized that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offenses, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.”

What is the Witness Protection Scheme, 2018?

Being the first legal enactment set up by the Indian Government, the Witness Protection Scheme, 2018 received approval by the Hon’ble Supreme Court on 06th December 2018. The sole objective of the scheme is to protect and safeguard the interests of the witnesses. Besides this, the Scheme provides the Witness Protection Fund, which is created to bear expenses arising out of arrangements made for a witness protection order. For unversed, the witness protection order includes a list of protective measures for the safety of a witness, which is passed by the competent authority. Moreover, the Scheme ensures the complete identity protection of the witnesses along with family members during the investigation.

What are the types of protective measures provided in the Scheme?

Some of the protective measures provided in the scheme are given below: –

  • To make sure that witness and accused are not met each other during investigation and trial.
  • To provide an unlisted mobile number to the witness by contacting a telephone company.
  • To give adequate security to the witness in form of body protection, regular patrolling, and by installing CCTVs cameras outside the witness’s house.
  • To provide the facility of govt. conveyance to attend the court hearing.
  • To hold in-camera trials.
  • To use specially designed courtrooms equipped with software which are sufficient to conceal the identity of the accused for e.g. with options to transform the voice and face.
  • To grant suitable financial aid to the witness from the Witness Protection Fund.
  • Repositioning of the witness based on the Threat Analysis Report.

What is the procedure to get protection under the Scheme?

The process to seek protection is summarized below in steps: –

  • Initially, the witness seeking protection has to file an application before the competent authority of his/her area through the Superintendent of Police along with supporting documents.
  • Thereafter, on receipt of the application, a Threat Analysis Report will be prepared by the Commissioner of Police and the same shall be forwarded to the competent authority within 05 working days.
  • If an imminent threat is found then an interim order for the protection of witness along with family members can be passed.
  • The hearing of the application for protection is held in-camera by the competent authority.
  • Lastly, the implementation of a protection order is made by the head of State/UT Police.

Notably, there are three categories to determine the threat level perception. The Threat Analysis Report contains a perception according to the situation and provides some solutions for the safety of the witness.

What rights are available to the witnesses?

Unquestionably, there is a need for some statutory enactment regarding the safety of the witness, so that witnesses can claim certain rights in order to be protected themselves. However, the multifarious reports presented by Law Commission from time to time as well as the Witness Protection Scheme have identified some privileges that a witness possesses in India, which are enshrined below: –

  • To get a secure waiting place at the time of the court hearing.
  • To obtain information regarding the status of investigation and prosecution of the crime.
  • To be treated with dignity and privacy.
  • To be protected from danger and oppression.
  • To give evidence without disclosing identity.
  • To get a safe place to live and transportation to attend court hearings.

Markedly, it is mandatory for Investigating Officer/Court to apprise each and every witness about the Witness Protection Scheme and the rights granted under the Scheme.

Conclusion: –

The Witness Protection Scheme, 2018 is an appreciable step towards the plight of the witness who may have to undergo a rash path in order to corroborate the case in favour of the victim. Howbeit, this attempt to bring the protection of witnesses under the ambit of law could not be implemented successfully because of a lack of adequate resources in some states. Regardless of this, the enforceability of the protection order has been made limited to only 03 months, which is not enough in cases that involve influential people.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali