Section 29 of POCSO Act applicable only after trial begins: Delhi High Court

Question over presumption of guilt cropped up when the court was hearing bail plea of a man in a sexual assault case

A view of the Delhi High Court in New Delhi. File

The Delhi High Court has ruled that the presumption of guilt engrafted in Section 29 of the Protection of Children from Sexual Offences (POCSO) Act gets triggered and applies only once trial begins, that is after charges are framed against the accused.

 

Section 29 of the POCSO Act says that when a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case “shall presume” the accused to be guilty.

Proving innocence

This reverse burden on the accused to prove his innocence was incorporated in the POCSO Act keeping in view the low conviction rate of sexual offences against children.

The question of whether the presumption of guilt applies only at the stage of trial or does it also apply when a bail plea is being considered cropped up while hearing the bail plea of a 24-year-old man arrested for alleged sexual assault of a minor.

Justice Anup Jairam Bhambhani clarified that if a bail plea is being considered before charges have been framed, Section 29 has no application. ‘Trial’ commences when charges are framed against an accused and not before that, Justice Bhambhani said.

Only at the stage when charges are framed does the court apply its judicial mind to whether there is enough evidence on record to frame a precise allegation, which the accused must answer, Justice Bhambhani said.

Disclosing one’s defence

“Therefore, it is only once charges are framed that the accused knows exactly what he is alleged to be guilty of; and therefore, what guilt he is required to rebut,” he said, adding an accused cannot be asked to disprove his guilt even before the foundational allegations with supporting evidence that suggest guilt are placed by the prosecution before the court.

“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,” the High Court said.

Justice Bhambhani also set out fresh norms while deciding a bail plea at the post-charge stage. “In addition to the nature and quality of the evidence before it, the court would also factor in certain real-life considerations,” Justice Bhambhani said.

This include whether the offence alleged involved threat, intimidation, violence or brutality. Also the court, hearing the bail would consider, whether the offence was repeated against the victim.