India: A Brief Note On Kerala High Court's Recent Clarification On Application Of Statutory Presumption Under Section 29 Of POCSO Act In Bail Matters

Last Updated: 22 March 2019
Article by Apoorv Sarvaria

Recently, while dealing with an anticipatory bail application filed under Section 438 of the Code of Criminal Procedure ('Cr PC'), the Kerala High Court has, in Joy V.S v. State of Kerala B.A No. 8741 of 2018 (decided on March 5, 2019): 2019 SCC OnLine Ker 783 clarified the usage of statutory presumption under Section 29 of the Act in bail matters by observing that the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') does not mean that the prosecution version has to be accepted as gospel truth in every case.

Brief facts of the case before the Kerala High Court are that the Petitioner who was a psychologist, had conducted a psychological therapy to the victim girl, aged 14 years. The allegations against the Petitioner were that when the Petitioner had conducted counselling sessions in May and June 2018, he had shown the victim video scenes with obscene contents and he caught hold of her hand with sexual intent. There were further allegations that the Petitioner gave the victim girl a stamp, depicting nude picture of a man and woman, and a letter through another girl, who was his patient. The mother of the victim girl gave a complaint to the Child Welfare Committee regarding the acts allegedly committed by the Petitioner on/towards her daughter. The Child Welfare Committee recorded the statement of the victim girl and forwarded it to the District Police Chief, Thrissur (which was ultimately sent to the Nedupuzha police station). Thereafter, the statement of the victim girl was recorded by the police and on the basis of that statement, the criminal case was registered against the Petitioner and he was accused under Sections 7 read with 8, 9(p) read with 10 and 11(iii) read with 12 of the POCSO Act.

During arguments, it emerged that the Petitioner had sent a lawyer notice to the mother of the victim girl claiming his professional fees and it was only more than one month after the date of receipt of the lawyer notice that the mother of the victim girl made complaint to the Child Welfare Committee.

After going through the statements of the victim recorded by the Investigating Officer and recorded by the Magistrate under Section 164 of Cr PC, the High Court observed that the sum and substance of the allegations against the Petitioner in these statements was that the Petitioner showed the victim girl video scenes containing obscene contents and one day, he caught hold of her hand and also made attempt to touch her breast. There was also an allegation that the petitioner sent her a stamp depicting nude photograph and also a letter through another girl.

The Court further noted the unexplained delay in making complaint to the CWC as when the alleged acts were committed by the Petitioner, the parents of the victim girl were abroad and she was living with her grandfather and when the mother of the girl returned from abroad on 17.07.2018, the girl had told her about the acts committed by the Petitioner. Inspite of such disclosure made in the month of July, 2018, by the victim girl regarding the acts committed by the Petitioner, the mother gave the complaint to the Child Welfare Committee only on 22.09.2018. By that time, the Petitioner had sent a lawyer notice to the mother of the victim girl claiming an amount of Rs. 10,00,000/- as professional fees. She had received the lawyer notice on 08.09.2018. Even then, no complaint against the Petitioner was made immediately to the police or to the Child Welfare Committee.

While holding that mere delay in reporting the matter to the authorities may not be fatal to the prosecution, the court noted the significant fact that the complaint was given to the authorities concerned only two weeks after the mother received the lawyer notice from the Petitioner claiming a huge amount as professional fees. The Court observed that this raises suspicion on the prosecution case against the Petitioner. It further observed that one would have expected the mother to report the matter to the authorities concerned much earlier than 22.09.2018 when the victim had disclosed the matter to her in July, 2018.

On the usage of presumption raised under Section 29 of POCSO Act in such cases and also referring to the Supreme Court's observation in State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178, the Kerala High Court observed as under:

"10. This court is not oblivious to Section 29 of the Act which contains a legislative mandate that the court shall presume commission of the offences by the accused unless the contrary is proved. Section 29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the 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. The court shall take into consideration the presumption under Section 29 of the Act while dealing with an application for bail filed by a person who is accused of the aforesaid offences under the Act (See State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178 : AIR 2017 SC 630).

11. However, the statutory presumption under Section 29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true. The courts must be on guard to see that the application of the presumption, without adverting to essential facts, shall not lead to any injustice. The presumption under Section 29 of the Act is not absolute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record materials which would render the prosecution version highly improbable, the presumption would get weakened."

(emphasis added)

Referring to the decision of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Court held that frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention.

The Court further observed:

"12. No doubt, the Act is a landmark legislation to prevent sexual abuse and exploitation of children. The Act intends to protect the children from offences of sexual assault, sexual harassment and pornography. Dignity of the child has been laid immense emphasis in the scheme of the legislation. But, the court cannot turn a blind eye to undisputed facts in a case. The courts shall honour the spirit and intent behind the legislation and at the same time guard against misuse of its provisions."

(emphasis added)

Coming back to the facts of the case, the Court observed that there is no allegation against the Petitioner that he actually touched any private part of the victim girl. It further observed that the custodial interrogation of the Petitioner appeared to be not necessary to have an effective investigation of the case. The prosecution had no case that on getting bail, the petitioner would flee from justice. The Court noted that the Petitioner had got no criminal antecedents. The Court, therefore, found it fit to grant the benefit of pre-arrest bail subject to certain conditions.

The above decision of the Kerala High Court in Joy V.S (supra) assumes significance being clarificatory of the legal position that presumption raised under Section 29 of the POCSO Act should not lead to injustice in appropriate cases, especially in the wake of the recent trend of levying allegations of offences committed under the POCSO Act in matrimonial cases and on relatives or other known persons for ulterior motives only to pressurise the suspects. The trial courts must, therefore, be on guard to see that the application of the presumption, without adverting to essential facts, shall not lead to any injustice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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