Delhi HC Lays Down Significant Factors That Should Be Considered While Hearing an Application or Bail in POCSO Cases [READ JUDGMENT]

The Delhi High Court laid down a landmark judgment on September 22, 2020, regarding the legislative intent and applicability of “reverse burden.” This was discussed with respect to Section 29 of the Protection of Children from Sexual Offences Act, 2012.

Section 29 of the Protection of Children from Sexual Offences Act, 2012 reads, “where a person is prosecuted for committing or abetting or attempting to commit any offence under section 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”.

Hon’ble Justice Anup Jairam Bhambhani presided over the case. He considered the bail application of the 24-year-old accused who was alleged to have coerced a 17-year-old girl to engage in sexual intercourse with him. He threatened the victim to publicize her private pictures that were taken against her consent.

The defendant contended that he should be enlarged on bail. This is because the charge sheet has been filed and the investigation was complete. However, in retaliation, the prosecution contented the application of Section 29 of POCSO, 2012.

In the current case, the Court has raised the following questions:

• “Since section 29 says "(w)here a person is prosecuted" for committing an offence inter alia under sections 3, 5, 7 and 9, the special court "shall presume" an accused to be guilty, when can a person be said to be prosecuted?”

The court held that the phrase, “person is prosecuted” in Section 29 of the Act refers to the period when “trial commences”. Thus, the court opined that the term “prosecuted” has been used in place of “tried”

• “When and at what stage does the 'presumption of guilt' as engrafted in section 29 get triggered?”

The court held that the presumption of guilt under Section 29 will only be applicable since the trial begins, i.e. once the charges are framed against the accused. It cannot be applied before that

• “Does the presumption apply only at the stage of trial or does it also apply when a bail plea is being considered?”

The court opined that the application of Section 29 in all proceedings must be at a stage before the framing of charges, would mean that “the accused must prove that he has not committed the offence "even before he is told the precise offence he is charged with".

Stating that the same shall do "violence to all legal rationality," the Court opined that the presumption under Section 29 cannot arise before charges are framed.”

• “Does the applicability or rigor of section 29 depend on whether a bail plea is being considered before or after charges have been framed?”

As illustrated earlier, the court opined that the application of Section 29 will begin only after the trial is commenced.

The bench has further held that certain real-life conditions would also be taken into consideration. These factors are:

“The age of the minor victim: the younger the victim, the more heinous the offence alleged;

• the age of the accused: the older the accused, the more heinous the offence alleged;
• The comparative age of the victim and the accused: the more their age difference, the more the element of perversion in the offence alleged;
• The familial relationship, if any, between the victim and the accused: the closer such relationship, the more odious the offence alleged;
• Whether the offence alleged involved threat, intimidation, violence, and/or brutality;
• The conduct of the accused after the offence, as alleged;
• Whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;
• Whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail: the more the access, the greater the reservation in granting bail;
• The comparative social standing of the victim and the accused: this would give insight into whether the accused is in a dominating position to subvert the trial;
• Whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence: an innocent, though unholy, the physical alliance may be looked at with less severity;
• Whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged;
• Whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;
• Other similar real-life considerations.”

 [READ JUDGMENT]