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