Presumption U/S 29 Of POSCO Act Would Come Into Play Even At Pre - Trial Stage: J&K High Court Differs From Delhi HC’s view

OVERVIEW

· Recently, the HC of Jammu and Kashmir held that the assumption of guilt against the defendant under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) would apply even during the pre-trial stage.

• Justice Sanjay Dhar while rejecting the bail of accused in a POCSO Case stated a opposing opinion to the Delhi High Court judgment in Dharmander Singh vs. State (Government of NCT of Delhi), which says that presumption of guilt against the accused under Section 29 of the POCSO Act can only be accepted by the court on the beginning of the trial.

• It is assumed that the Jammu & Kashmir HC did not agree with the Delhi HC's opinion because this would lead to a "mini-trial".

• The "evidence in support of the allegations, and not proof of evidence" is main focus here.

• In response and on reference to the "reasonable, just and fair" argument of the Delhi HC, the J & K HC maintained that the same can be taken cared of even at a pre-trial stage before the charges are filed.

DEFINTION PRESCRIBED BY DELHI HC

Delhi HC defining "Prosecuted" in interpretation of Section 29, the term "prosecuted", concluded that it meant the same as the term "tried". The position here is that the prosecution is started at the beginning of the trial.

DEFINITION PRESCRIBED BY JAMMU AND KASHMIR HC

The J&K High Court held that the term "prosecute" does not mean the same thing as the beginning of the trial but can be safely stated that the prosecution of an accused begins with the appearance of challan before a Court i.e., before the actual beginning of the trial.

J&K HC's POINT OF VIEW

• Jammu and Kashmir HC provided the reasons that if the Legislature were to impose such a presumption on the accused at the commencement of the trial, the word "trial" would be used instead of "prosecute" under Section 29.

• The J & K HC protected the right of the accused to present his/her defence to rebut the presumption by the accused contradicting the foundational facts presented by the investigative agencies.

• the presumption of guilt against the accused under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) would come in to play even during the pre-trial stage Justice Sanjay Dhar while rejecting the bail of accused in a POCSP Case passed a contrary opinion to the Delhi High Court judgment in Dharmander Singh vs. State (Government of NCT of Delhi), which maintained that the presumption of guilt against the accused under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) can only be adopted by the court on the commencement of the trial.

• The understanding of the Delhi HC was that the presumption cannot be adopted till the "prosecution has established facts that form the basis of the presumption".

• The J & K HC cited State of Bihar vs. Rajballav, (2017) 2 SCC 178 keeping that presumption of innocence of the accused is not applicable when there is a contrary statutory provision recommending a presumption of guilt on the accused under POCSO.

• The J&K High Court held that even in the absence of a charge, at a pre-trial stage, the accused can very well contradict the foundational facts that support the presumption led by the investigative agencies.

DELHI HC's POINT OF VIEW

• According to the Delhi HC, this could be done only after the charges are framed.

• Thereafter, the accused would be given the opportunity to rebut the established facts and the charges to contradict the presumption.

• The Delhi HC thought that the presumption under Section 29 cannot be triggered before the charges are framed because this would lead to a "mini-trial" prior to the actual trial takes place; thus, defeating the purpose of the actual trial.

• The Delhi HC went on to quote the judgement of Maneka Gandhi vs. Union of India & Anr, 1978 SCR (2) 621 maintaining that 'law' under Article 21 of the Constitution is not mere lex but "implies, due process both procedural and substantive" which must be "reasonable, just and fair".

• The Delhi HC expanded principles of Article 21 to the presumption of innocence of the accused and commented upon the consequences of pre-trial detention.

• The court took a prima facie view like in any bail application, before or after the filing of the charge sheet.

• The presumption could thus be adopted by the courts against the accused before the charges were framed.

• Delhi HC quoted authorities to hold that in case there are two statutory interpretations, the one that is constitutionally valid and in favour of the accused must be considered..

DO YOU THINK POINTS HIGHLIGHTED BY J&K HIGH COURT IS JUSTIFIABLE? MENTION YOUR VIEWS IN THE COMMENTS BELOW!