This appeal challenged the constitutionality of presumptions in the POCSO Act. Upholding the lower court, the High Court held that the Act's safeguards align with constitutional rights and do not compel the accused to testify.
The writ appeal was dismissed as the appellant failed to establish jurisdictional error or legal infirmities justifying interference.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 8TH DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943
WA NO. 1651 OF 2020
[AGAINST THE JUDGMENT DATED 07.10.2020 IN WP(C) NO.15564/2017]
APPELLANT/PETITIONER:
JUSTIN @ RENJITH, AGED 32 YEARS, S/O. GOPI @ OUSEPH, CHINGATTUPURATHU HOUSE, MALAVANA DESOM, ELANTHIKKARA, PUTHENVELIKKARA VILLAGE, ERNAKULAM DISTRICT, PIN - 683 594.
BY ADVS. SRI. V.JOHN SEBASTIAN RALPH SMT. PREETHY KARUNAKARAN SRI. V.JOHN THOMAS SRI. B.DEEPAK SRI. VISHNU CHANDRAN SRI. RALPH RETI JOHN SMT. KEERTHANA SUDEV SMT. APPU BABU
RESPONDENTS/RESPONDENTS:
BY ADV SRI. SUVIN R. MENON, CGC BY ADV. SRI. V. MANU, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 8th day of December, 2021
S. Manikumar, CJ
By the impugned judgment dated 07.10.2020, a learned Single Judge of this Court dismissed both the Writ Petition (C) No.15564/2017, as well as Crl.M.C No.3104/2018, holding that with the inbuilt safeguards in the Protection of Children from Sexual Offences Act, 2012, the limited presumption do not upset the basic features of criminal law; tendering of oral evidence by the accused is not mandatory or essential, and to that extent, the apprehension of the petitioners that Sections 29 and 30 of the PoCSO Act, 2012 violate Article 20(3) of the Constitution of India is misplaced. Relevant portions of the said judgment read as under:
“70. Evaluation of the above judicial pronouncements lead to the conclusion that, statutory provisions which exclude mens rea, or those offences which impose strict liability are not uncommon and that by itself does not make such statutory provisions unconstitutional. Further, Statutes imposing limited burden on the accused to establish certain facts which are specifically within his knowledge, is neither rare in
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Indian Criminal Law and nor do they, by itself make such statutory provisions unconstitutional. However, the statutory burden on accused should only be partial and should not thereby shift the primary duty of prosecution to establish the foundational facts constituting the case, to the accused. Such a provision should also be justifiable on the ground of predominant public interest. Hence, sections 29 and 30 of the POCSO Act, do not offend Articles 14 and 19 of the Constitution of India. They do not in any way violate the Constitutional guarantee, and hence not ultra vires to the Constitution.
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to be considered in the light of the law laid down by the Supreme Court in Kathi Kalu Oghad's case (supra). The larger Bench held that the bar under Art.20(3) of the Constitution will arise only if the accused is compelled to give evidence. To bring such evidence within the mischief of Art.20(3), it must be shown that accused was under a compulsion to give evidence and that the evidence had a material bearing on the criminality of the maker. Supreme Court explained that, compulsion in the context must mean duress. The law as explained by the Larger Bench holds the field even now.
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incident. Even the burden on accused is also a partial one and is justifiable on larger public interest.
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offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out the peculiar features of the particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour, or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross examination. Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial; except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption.
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In the result, sections 29 and 30 of the POCSO Act are held to be Constitutional and they do not violate the Fundamental Rights, nor are they contrary to the basic criminal Principles.
W.P(C) and Crl.M.C fail and are dismissed.”
Inspector of Police, Chalakkudy, Thrissur District, 4th respondent, charge-sheeted the appellant in FIR No.586/2016 dated 30-06-2016 arising out of Crime No.689/2015 on the file of Koratty Police Station, registered under Sections 3(a), 5(h), (I), (m), (o), (u), II(iii), 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012, Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and Section 201 of the Indian Penal Code, 1860. Said matter is pending as S.C. No.590/2016 on the file of the learned First Additional Sessions Court, Thrissur.
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2017 before the writ court, mainly on the ground that the presumption drawn under Sections 29 and 30 of the Protection of Children from
Sexual Offences Act, 2012 is unconstitutional.
Delhi, respondent No.2, has filed a counter affidavit dated 03.07.2017, inter alia , contending as under:
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the averments in the Writ Petition made on the basis of his knowledge and the averments made on the basis of his belief
III) As regards the averments in paragraph 10 of the Writ Petition, it is submitted that it is improper for the petitioner to assume that he will be convicted even without a trial, by virtue of Sections 29 and 30 of the POCSO Act. 2012. It is also submitted that the Protection of Children from Sexual Offences Act. 2012. is a special law that was brought to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. In this Act, any person below the age of 18 years is considered as a child. This Act was enacted after Inter-Ministerial and wide consultations with other stakeholders. Sections 29 and 30 were incorporated in the Protection of Children from Sexual Offences Act, 2012, in view of the greater vulnerability and innocence of children. These provisions place the burden of proof on the person being prosecuted for the serious offences of child sexual abuse. However, to maintain the balance of justice, Section 22
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provides for preventing misuse of law. Deterrence in the form of punishment has also been provided for making false complaints or providing false information with malicious intent. It is also submitted that Parliament legislated POCSO Act to ensure that child abuse is treated as strict liability offence so that the victim does not face further burden of proving mens rea of the accused. The child is to be protected from further victimization, liable to occur during the process of establishing the guilt of the abuser. Hence, under this Act, accused is considered guilty till proven otherwise.
IV) Relying on a Division Bench judgment of the Gauhati High Court in Crl.Ref. (Taken Up) No.1/2015 dated 25.01.2017, 2nd respondent has submitted that the issue as to the constitutionality of the provisions of the POCSO Act, 2012, the court answered that Section 29 of Protection Children from Sexual Offences Act, 2012 is constitutional. Copy of the Judgment dated 25.01.2017 is marked Exhibit R2(a). The Hon'ble Court made it clear that a bare reading of Section 29 of POCSO Act, 2012 makes it clear that the presumption raised against the accused is a rebuttable one. The court further held that it is well settled that reverse burden as also statutory presumptions can be raised in statutes.
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VI) As regards grounds (F) to (X) of the writ petition, it was contended that in view of the greater vulnerability and innocence of the children, the POCSO Act takes the version of child into account and deems it fit to charge the accused in cases of sexual assault on child, unless proved contrary. It is pertinent to mention that a young child may not be worldly wise and mature to protect her/his interest and withstand police and legal prosecution to claim Justice properly in such sensitive and hurtful cases. The psychological trauma which is a confirmed byproduct in such instances may further enhance the vulnerability and mental agony of the child. It is also a considered fact that young children may not make undue allegations in such sensitive matters at their tender age. It is also stated that at the age of puberty and adolescence, children are often very shy and conscious of their sexuality and may not be able to discuss the abuse in public domain. Therefore, the Act provides them the necessary protection under
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Sections 29 and 30 and puts the onus for proving otherwise on the accused.
VII) As regards the interest of the accused, it was contended that Sections 29 and 30 provide them a chance to prove their case contrary to the allegation. Hence, the averment of the petitioner that balance of justice is unduly tilted in favour of the child is not correct. Section 30 of the POCSO Act, 2012 speaks about the existence of mens rea or the culpable mind, on the part of the accused whenever it is so required under the provisions of POCSO Act. This culpable mental state of the accused includes intention, motive, knowledge of a fact, and the belief in, or reason to believe a fact. It is open for the accused to prove that he was not having such intention, motive, knowledge or belief, as was required to prove the offence. Thus, adequate chance and opportunity to defend has been provided to the accused.
VIII) Inviting the attention of this Court to Section 22 of the POCSO Act, 2012, which, for preventing misuse of Law, 2nd respondent has contended that the said provision provides deterrence in the form of punishment, for making false complaints or providing false information with malicious intent. It is evident that the Act is absolutely balanced with the aim to provide necessary protection to the abused
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child, especially during the traumatic period of seeking legal course after suffering the abuse at a tender age. Hence, it is contended that Sections 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 are constitutional. In the present case, petitioner has sought for quashing the final report on the basis of an order reportedly passed by the State Human Rights Commission. Since the subject matter is sub judice in the Special Court and the court has taken cognizance of the offence, petitioner has ample opportunity to prove the case. In such circumstances, the 2nd respondent prayed for dismissal of the writ petition.
respondent No.4, has filed a counter affidavit dated 13.07.2017, inter alia, contending as under:
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premature, apart from being not maintainable in law.
B) The 4th respondent further contended that as regards the averments in paragraphs 1 to 4 of the writ petition, Crime No.689 of 2019 was registered by the Koratty Police, on the basis of the statement of victim boy, then aged 9 years (CW1 in Exhibit-P1 final report) to the effect that he and his siblings (CWs2 and 3) were physically and sexually assaulted by the petitioner, while they were staying at Mariyapalana Society at Poolan, wherein the petitioner was the caretaker. The investigation of the case was later taken over by the Inspector of Police, Chalakkudy. As per Order No.D1/33201/2015/R dated 21.06.2015 of the District Police Chief, a special team was constituted under the leadership of the Inspector of Police, for investigating the case. The statement of the victim witnesses were recorded, in terms of Section 164 of the Cr.P.C.
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Exhibit-P1 final report was again assaulted by a relative of the petitioner named Jomy Thomas while he was staying at Eloor. The same was revealed during the investigation of the crime. A report in that regard was forwarded to the Eloor Police Station, upon which Eloor Police has registered Crime No.761 of 2015 against the said Jomy Thomas.
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petition, as well as grounds (B) and (D) are, therefore, not sustainable in law.
G) As regards the contentions raised in grounds (F) to (X) of the writ petition, touching upon the constitutional vires of Sections 29 and 30 of the PoCSO Act, 4th respondent has contended that it is trite law that only because the burden of proof is placed on the accused, a provision of law will not be rendered unconstitutional. He has also contended that it is no more res integra that the constitutionality of a penal provision placing burden of proof must be tested on the anvil of the State's responsibility to protect innocent citizens (hapless child victims in the case of POCSO Act). Presumption of innocence, though a human right, cannot be equated with fundamental right and liberty under Article 21 of the Constitution. Even a fundamental right is not an absolute right.
H) The 4th respondent has further contended that the ordinary rules of criminal law of presumption of innocence of the accused and the burden being on the prosecution, to establish the guilt, are not absolute rules, departure from which will violate Article 21 of the Constitution of India. Exceptions become imperative to meet the needs of the times. The common law principle of the duty of the
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prosecution to prove a person guilty is subject to parliamentary legislation to the contrary. The constitutional vires of Section 30 the Narcotic Drugs and Psychotropic Substances Act, which is in pari materia with Section 30 of the PoCSO Act and Section 54 of the NDPS Act, similar to Section 29 of the PoCSO Act, was upheld by the Hon'ble Apex Court in Noor Aga v. State of Punjab reported in (2008) 16 SCC 417.
statutory provisions, and various decisions cited by the rival parties, writ court dismissed the writ petition and criminal miscellaneous petition by the impugned judgment, the relevant portions of which are extracted above.
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quash Exhibit-P1 final report in Crime No.586/2016 dated 30-06-2016 on the file of Koratty Police Station, Thrissur. The same has not been touched upon in the judgment of the learned Single Judge.
(C) Learned Single Judge has also failed to consider the fact that upon investigation, it has been revealed that the petitioner has not committed any offence and the same has been reported before the Kerala State Human Rights Commission. After submitting the report before the SHRC, the Police are estopped from filing a charge sheet against the petitioner before the Criminal Court. It is apparent that the Final Report has been filed by the police only to see that no criminal as well as civil prosecution would be initiated against the Police by the petitioner on the ground that the valuable fundamental rights of the petitioner have been infringed by the registration of crime and the illegal incarceration that followed it.
(D) Learned Single Judge has failed to take notice of the fact in the proceedings before the Kerala State Human Rights Commission, it was concluded that the injuries sustained by the victim were caused subsequent to his departure from the orphanage. The evidence of medical witnesses corroborates the same. It is also to be noted that the State has not challenged the order passed by the State Human Rights Commission. Learned Single Judge has erroneously held that statutes imposing limited burden on the accused to establish certain facts which are specifically within his knowledge, is neither rare in Indian Criminal law and nor do they by itself make such
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statutory provisions unconstitutional. This reasoning is flawed due to the fact that unlike the statutes that were referred to by the learned Single Judge, presumption cast under Section 30 of the POCSO Act can be drawn immediately when the offence is charged, and fulfillment of no precondition is required for the same. This is a striking deviation from the other statutes relied upon; though inculcating reverse presumption, the same need not be disproved beyond reasonable doubt or require the establishment of certain mandated foundational facts before the presumption can come into play. Hence, the reasoning of the learned Single Judge that only a limited burden is put on the accused is wrong.
i) There exists presumptions under u/ss. 118(a) and 139 of the Negotiable Instruments Act, 1881. These presumptions operate in relation to the notion that, " every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration ;” (Section 118 (a), Negotiable Instruments Act, 1881). Moreover, “ the holder of the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability .” (Section 139, Negotiable Instruments Act, 1881)
(E) Nevertheless, it has to be noted that the presumptions created under Sections 118(a) and 139 of the Negotiable Instruments Act need only be rebutted on the threshold of preponderance of probabilities and the said presumptions need not be disproved beyond reasonable doubt. Moreover, for the presumptions to come into play, there exists a precondition that must be fulfilled, i.e., proving the execution of the Negotiable Instrument. The
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two aspects mentioned above are absent in the PoCSO Act. The same position of law was reflected in Bharat Barrel & Drum Co. v. Amin Chand Payrelal , reported in AIR 1999 SC 1008. In this case, the Hon’ble Supreme Court held that the presumption under Section 118(a) is rebuttable if the defendant can prove the non-existence of consideration by raising a probable defense. Furthermore, it was laid down that the burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstance upon which he relies. Again, in Rangappa v. Sri. Mohan , (AIR 2010 SC 1898), the Hon’ble Supreme Court held that the presumption drawn under Section 139 of the NI Act is of a rebuttable nature and it is open to the accused to raise a defense that wherein the existence of the legally enforceable debt can be contested, Subsequently, the Court stated the settled position that when an accused has to rebut the presumptions under Section 139, the standard of proof for doing so is that of "preponderance of probabilities.”
ii) Furthermore, the operation of presumptions drawn under the PoCSO Act and NDPS Act differ with regard to its initiation. Section 54 of the Narcotic Drugs and Psychotropic Substances Act lays down that, "In trials under this Act, it may be presumed, unless and until the contrary is provided, that the accused has committed an offence under this Act in respect of the possession of which he fails to account satisfactorily”. The presumption
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drawn from Section 54 only comes into play when the accused cannot satisfactorily account for the possession. Hence, there is a precondition before presumption can be drawn by the court and the same is absent in relation to the PoCSO Act.
Moreover, even if the presumptions under Sections 35 and 54 of the NDPS Act are drawn, it does not dispense with the duty of the prosecution to prove all charges against the accused beyond reasonable doubt, which is not required for trials under the PoCSO Act. The same position of law is reiterated by the Hon'ble Supreme Court in Gangadhar alias Gangram v. The State of Madhya Pradesh [AIR 2020 SC 3656]. In this case, it was held that, "presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof does not sanction conviction on the basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The right of the accused to have a fair trial could not be whittled down under the Act was considered by the Hon'ble Supreme Court in Noor Aga v. State of Punjab, [(2008) 16 SCC 417], as it was held thus:
“The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the
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requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. Gravity of the sentence and stringency of the provisions will, therefore, call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.”
(F) Prevention of Corruption Act, 1988 is yet another Act relied on by the learned Single Judge, while passing the impugned judgment. The presumption under this Act operates in Section 20. It lays down as under:
"Section 20 - Presumption Where Public Servant Accepts Any Undue Advantage :
Where, in any trial of an offence punishable under Section 7 or under Section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11."
As far as the presumption under Section 20 is concerned, it can only be drawn upon fulfillment of the precondition that it is proved that the public servant accused of an offence has accepted or obtained or attempted to obtain any undue advantage from any person. Furthermore, this presumption need only be rebutted in the threshold of preponderance of probabilities. This position of law with regard to the presumption can be seen reiterated in Narendra Champaklal Trivedi & Anr v. State of Gujarat [AIR 2020 SC 3656]. It is also settled in law that there is a
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statutory presumption under Section 20 of the Act, which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted by other than the motive or reward as stipulated under Section 7 of the Act. It is obligatory on the part of the court to consider the explanation offered by the accused under Section 20 of the Act and the consideration of the explanation has to be on the anvil of preponderance of probabilities. It is not to be proven beyond all reasonable doubt. It is necessary to state here that the prosecution is bound to establish that there was an illegal offer of bribe and acceptance thereof. The same has to be founded on facts. In this context, we may refer to the decision in M. Narsinga Rao v. State of A.P. [(2001) 1 SCC 691], wherein a threeJudge Bench referred to Section 20 of the Act and stated that the only condition for drawing the legal presumption under Section 20 is that during trial, it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept the gratification."
It is true that there is a presumption under S. 64 of the Abkari Act which reads as follows :
“In prosecutions under Ss. 5, 55-B, 56-A, 57, 58, 58-A and 58-B it shall be presumed until the contrary is proved, that the accused person has committed an offence under
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that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily;"
The precondition required for bringing the presumption into play is that the foundational fact of possession has to be established coupled with the fact that the explanation provided by the accused in relation to such possession must be deemed to be unsatisfactory. ( K.R.Sooraj v. Excise Inspector, Ernakulam And Ors. [2002 Cri L] 4744])
(G) All the statutes relied upon by the learned Single Judge require a precondition of certain foundational fact to be proved before the Court can draw the presumption, which is not the case for presumptions operating under Section 30 of the POCSO Act. Moreover, the presumptions embedded in the Negotiable Instruments Act need only be disproved upon the preponderance of probabilities, whereas, the presumptions drawn under Section 30 of the POCSO Act have to be disproved beyond reasonable doubt. Therefore, the reasoning of learned Single Judge that presumptions drawn under the PoCSO Act is similar to other Acts, which were relied upon, is erroneous.
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has been specifically brought on by the Parliament as certain aspects come within the exclusive knowledge of the accused and more so, in cases of sexual offences, there may not bean eyewitness to the incident. However, this line of interpretation works both ways. In an allegation of committing a sexual offence under this Act, there may not be any eyewitnesses or external circumstances that can prove the innocence of the accused. Hence, he is forced to mount the box to present his version. Unless the accused does so, presumptions drawn under Section 30 will lead to his conviction. The words 'any other act' in Section 7 of the PoCSO Act is so vague and hence, it can be misused against a person. An allegation that involves 'any other act', coupled with the reverse presumption and presumption of culpable mental state is a ticket to the gallows for the accused.
(I) Learned Single Judge has made an error of law in coming to the finding that presumption drawn under the PoCSO Act, 2012 can be rebutted by adducing evidence with the standard of proof of preponderance of probabilities. According to the appellant, this goes against the very wording of Section 30(2) of the PoCSO Act, 2012, which lays down that, “For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by preponderance of probability”. The presumption has to be disproved beyond reasonable doubt and as long as this provision remains, it will be interpreted in the same manner.
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(J) Learned Single Judge has erroneously laid down that the foundational facts in a PoCSO case include the proof that the victim is a child, that the alleged offence has taken place, that the accused has committed the offence, and wherever physical injury is caused, to establish it with supporting medical evidence. If it is established that the alleged offence has taken place, then there is no need to resort to the presumption under Section 29 of the PoCSO Act. Similarly, where it has been established that the accused has committed the offence, there is no need to draw presumption under Section 30, with regard to the culpable state of mind of the accused. In a case where, it is established that the accused has committed the offence alleged there will also be no need of taking defence for the same.
(K) Learned Single Judge has failed to address the problem of drawing the presumption in the POCSO Act to an IPC offence that is charged and tried along with it. A further problem that arises with the presumption is that, whenever an offence of penetrative sexual assault is charged, it would also automatically attract the offence of rape defined under the Indian Penal Code (IPC). The IPC or any other law in force that concerns a sexual offence, does not provide for any reverse presumptions except presumption as to the absence of consent in a prosecution for rape. Hence, wherein an IPC offence is charged along with an offence under the Act, the reverse presumption is transported to the IPC offence, thereby violating the presumption of innocence the accused was
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entitled to under the Cr.P.C. The accused will also be presumed to be guilty of all other IPC offences charged
(L) Learned Single Judge has omitted to consider the fact that statutes by medium of which presumptions are drawn; themselves provide the foundational facts which are needed to be proven so as to enable the Court to draw a presumption against the accused. A classic example of this would be Section 114 A of the Indian Evidence Act, 1872. In this Section, it is provided that in a case of rape, for the Court to take a presumption that the victim did not consent to sexual intercourse, the following foundational facts have to be established:
Only upon fulfillment of these foundational facts which have been provided for in the provision through which presumption is drawn, can such presumptions be drawn against the accused. This aspect of foundational facts is completely missing in the POCSO Act. In the absence of any foundational facts in the statute, the court cannot legislate.
(M) Relying on the decision in Hussein Haji Abraham Umarji v. State of Gujarat and Ors. reported in AIR 2004 SC 3946, appellant has contended that while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed to be necessary.
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The legislative casus omissus cannot be supplied by judicial interpretive process.
(N) Relying on the decision in Babita Lila and Ors. v. Union of India (UOI) (AIR 2016 SC 4061), appellant has further contended that it is a trite law that there is no presumption that a casus omissus exists and a court should avoid creating a casus omissus where there is none. It is a foundational Rule of interpretation that courts would not fill the gaps in a statute, their functions being jus dicere non facere i.e. to declare or decide the law. Hence, the establishment of the same by the learned Single Judge would tantamount to judicial legislation and is unsustainable in law.
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child and the same will come under the ambit of Section 7 by virtue of the presumptions attached to it under Section 29 and Section 30.
(P) Learned Single Judge has failed to consider the aspect of abetment as provided in Section 29 of the PoCSO Act, 2012. The presumption under Section 29 is for committing or abetting or attempting to commit an offence. Section 107 of the IPC provides for abetment of a thing and Section 108 defines abettor. Hence, when a person is tried for abetment of an offence, as defined in Sections 3, 5, 7 and 9, the presumption under Section 29 is drawn against the accused and what the prosecution needs to establish is, only a statement of a person, who deposes that such person was asked to commit an offence punishable under the aforementioned sections. Drawing the presumption under Section 29 in such an instance would be against the principles of fair trial. Abetment of any other act which involves physical contact without penetration (Sections 7 and 9) would also be vague and ambiguous since any act could come under the purview of those sections.
(Q) Learned Single Judge has failed to consider the contention raised that there has been no legislative discussion about the incorporation of the presumptions in the Act. The notes on clauses which ought to have explained in detail, the various provisions contained in the PoCSO Bill, reveal that the impugned provisions as to presumptions are incorporated in the Act, without any legislative discussions whatsoever which shows that the
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presumptions are a cut-paste from other statutes without legislative discussions.
clear that the subject issue raised by the appellant revolves around Sections 29 and 30 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as PoCSO Act, in short). The pinpointed contention advanced by the learned counsel for the appellant is that consequent to the presumption provided under Sections 29 and 30 of the Act, 2012, virtually the appellant, who is the accused in the Calender Case in question, would not be in a position to take up the contentions in the proper and correct legal perspective, and thereby, seriously prejudicing the right of the appellant to defend himself in a legal proceeding. Sections 29 and 30 of the PoCSO Act, 2012 are extracted hereunder:
“ 29. Presumption as to certain offences .-
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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.”
“ - 30. Presumption of culpable mental state (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
Explanation.-- In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.”
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conditions of freedom and dignity.
Children, to which India is a signatory, on 11.12.1992, required the State Parties to undertake all appropriate national, bilateral, and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.
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the children, both as a victim as well as witness, need to be protected and further felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
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of brutal assault and sexual violence. Sections 29 and 30 of the PoCSO Act, 2012 would have to be viewed in the said background with all seriousness, and by providing a purposive and strict interpretation to the provisions contained there under .
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Constitution of India.
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Substances Act, 1985, etc. It does not mean that the adjudicating court has concluded that the accused is guilty of the offences, but it only presumes in accordance with the fiction of law created, and that it reverses burden of proof on the accused rather than the normal procedure adopted in the matter of trial of criminal cases by the prosecution obligating the prosecution to prove the case against he accused beyond reasonable doubt.
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witnesses, taking up the all the contentions available, on law and on facts. Thus, the accused is entitled as of right, to rebut the presumption through cross examination of the prosecution witnesses itself, without mounting the box. There is no compulsion to the accused to mount the box merely because a presumption is made available under law in favour of the prosecution.
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discharge an initial burden with respect to commitment of crime by an accused person.
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under Sections 3, 5, 7 and 9 of the PoCSO Act, 2012 and on being satisfied that the prosecution has made out a case, to prima facie think that the accused has committed or abetted or attempted to commit the offence in contemplation of the Act 2012, then the Special Court shall presume that such person has committed or abetted or attempted to commit the offence. Same is the case with Section 30 of the PoCSO Act, 2012, because sub-section (1) of Section 30 states that in any any prosecution for any offence which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
28. Going through Sections 29 and 30 of the PoCSO Act, 2012, it is clear that law is made by the Parliament as a deterrent measure to prevent from being violated, the body, mind, soul, and innocence of the children, at a gullible young age, and with the intention of making it clear in public, that law declares it is stringent in nature, and thus, prevent anyone from committing any manner of assault on a child and
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thereby eradicate the menace from the society. The significant feature insofar as Section 30 is concerned, as contained under sub-section (2) of Section 30, is that, it clearly specifies that for the purpose of Section 30, a fact can be said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
29. The explanation to Section 30 makes it further clear that the culpable mental state prescribed therein includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. Therefore, it is clear that the Parliament thought it fit to make safety vaults, in order to ensure that the evidence is appreciated by the adjudicating court, taking into account the gravity of the offence and punishment to be imposed. That apart, it is with the intention of ensuring that an adjudicating court is appreciating the evidence available before it, in order to arrive at the conclusion that there is proof against the accused beyond reasonable doubt, taking into account all the attendant circumstances, including the presumption in question. Therefore, one cannot say that merely because presumption is
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available under Sections 29 and 30 of the PoCSO Act, 2012, adjudicating court would be carried away by the presumption as a conclusive proof, in order to find the guilt of the accused.
30. Even though it is contended by learned counsel for the appellant that under Article 20(3) of the Constitution of India, there is a clear prohibition contained from compelling an accused to be a witness against himself, we are of the view that merely because a presumption is provided under law, that cannot be termed as a situation where the accused is compelled to mount the box. The significant feature of Article 20(3) of the Constitution of India is a situation where the prosecution compels the accused as a witness in a case against him. That said presumption of law, which is an acceptable proposition as per the Indian Evidence Act, 1872, and special laws, is after all a mechanism to tackle various situations in the matter of adjudicating a lis, and it can never be said to be interfering with the fundamental rights guaranteed under Article 20(3) of the Constitution of India.
31. It is also a settled position that an accused in a case is entitled
as of right, to participate in the trial proceedings, in accordance with
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the procedure prescribed under law, and no prejudice would be caused to him to exercise his rights and adduce convincing evidence, right from the cross examination of the prosecution witnesses. If the accused is able to establish that the presumption under law available to the prosecution is rebutted, then the prosecution is duty bound to adduce proper evidence and establish before the court that the accused has committed the offence beyond reasonable doubt. Further, the provisions of Section 30 of the PoCSO Act, 2012, as we have pointed out above, make it clear that court is duty bound under the Act to see that a case is established beyond reasonable doubt, in order to find the guilt of the accused.
32. Going through the decisions relied on in the impugned judgment, viz., State of Bombay v. Kathi Kalu Oghad (1961 KHC 343); Andhra Pradesh Grain and Merchants Association v. Union of India (1970 KHC 238); State of Maharashtra v. Wasudeo Ramachandra Kaidalwar [(1981) 3 SCC 199]; K.Veeraswami v. Union of India (1991 KHC 1162); Noor Aga v. State of Punjab and Ors. [JT 2008 (7) SC 409]; Seema Silk & Sarees and Anr. v.
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Directorate of Enforcement and Ors. [2008 (226) ELT 673 (SC)]; Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513]; Chandran and Ors. v. State of Kerala and Ors . (AIR 2011 SC 1594); K.B.Nagur, M.D. (Ayurvedic) v. Union of India [(2012) 4 SCC 483]; Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra) and Sher Singh @ Partapa v. State of Haryana (2015 KHC 4020); M/s.Eera, through Dr.Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Anr. (AIR 2017 SC 3457); Independent Thought v. Union of India and Another [(2017) 10 SCC 800]; Naresh Kumar v. State of Himachal Pradesh (AIR 2017 SC 3859); Yogesh Arjun Maral v. State of Maharashtra [2016(1) Bom CR(crl) 474]; Ragul v. State (Crl.Appeal.No.391 of 2016); Sahid Hossain Biswas v. State of West Bengal [(2017) 2 CALLT 243(HC)]; Navin Dhaniram Baraiye v. The State of Maharashtra (2018 CriLJ 3393); Gangadhar @ Gangaram v. State of Madhya Pradesh [2020 (5) KLT 294 (SC)]; David v. State of Kerala [2020 (5) KLT 92], and Nikesh Tarachand Shah v. Union of India and Another [(2018) 11 SCC 1], it is clear that the learned Single Judge has taken into account the principles of
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law laid down by the Hon’ble Supreme Court, as well as this Court, in various decisions, in order to arrive at the conclusion.
33. The pros and cons, and intrinsic aspects of presumption in law were also taken into account by the learned Single Judge, relying upon various provisions of the relevant statutes, and arrived at the conclusion that the case projected by the appellant that Sections 29 and 30 of the PoCSO Act, 2012 violate Article 20(3) of the Constitution of India is misplaced.
34. It is also well settled in law that the fundamental rights guaranteed under Part III of the Constitution of India are subject to reasonable restrictions that may be imposed by the State against its citizens. Thus, the fundamental rights guaranteed under the Constitution are not absolute, but subject to the rights and powers of the State to impose reasonable restrictions for the fundamental requirement of protecting the rights and liberty of the citizens of this country. Article 21 of the Constitution can never be said to be an exception to the powers conferred on the State to make laws with reasonable restrictions. This we say so, for the reason that merely
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because, under law, presumption is available in favour of the prosecution, that will not, in any manner, take away the protection of life or personal liberty of the accused in a criminal case, since he is entitled as of right to adduce all evidence, so as to prove his innocence, including limiting the evidence to the cross examination of the prosecution witnesses.
35. Moreover, rebuttable presumption in law can never be converted as a conclusive action to find the guilt of the accused, since it is only a legal fiction, provided in favour of the prosecution, thus cautioning the accused to take appropriate steps to protect his interest by rebutting the presumption contemplated under law. This is more so, when the Parliament and State Legislature are conferred with a duty under Part III of the Constitution of India to protect the interest of children, and the duties and obligations created under the Directive Principles of State Policy under Part IV of the Constitution, with the objective of securing a social order for promotion and welfare of the people in which justice, social, economic and political shall inform all the institutions of the national life.
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36. The State is also duty bound under Article 39 of the Constitution of India coming under Part IV, to secure development of children in a healthy manner and in conditions of freedom and dignity and ensure that childhood and youth are protected against exploitation and against moral and material abandonment.
37. The fundamental duties contained under Part IVA of the Constitution of India make it clear that a duty is conferred on the State to abjure violence, and therefore, it can be seen that deterrent provisions are made under laws, on the basis of the safeguards and inbuilt mechanism provided under the Constitution, to ensure welfare, safety, and other progressive measures, in order to have a normal and peaceful life to the citizens of the country, and also to maintain peace and tranquility in the society.
38. The objects and reasons discussed above also would show that after the enactment of PoCSO Act, 2012, amendments were made to certain provisions, to make the severity of the offence more drastic, with the noble objective of achieving the Constitutional targets, goals and intentions, and therefore, viewed from all the angles, it can never
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be said that the presumption provided under Sections 29 and 30 of the Act, is, in any manner, unconstitutional or violative of the prescribed tenets of the criminal justice delivery system, or democratic system, or rule of law prevailing in the country.
Giving due consideration to the material on record, we are of the view that appellant has not made out a case of jurisdictional error or other legal infirmities, justifying interference with the impugned judgment in this intra court appeal. Hence, the appeal fails and accordingly, it is dismissed.
Sd/S. MANIKUMAR CHIEF JUSTICE
Sd/SHAJI P.CHALY JUDGE
Krj
//TRUE COPY//
P.A. TO C.J.
2 issues framed by the court
Whether Sections 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 violate Article 20(3) and Article 21 of the Constitution of India.
Whether tendering oral evidence by the accused is mandatory under the POCSO Act.
Colour shows how this judgement treated each authority
Kathi Kalu OghadExplained¶32
Kathi Kalu Oghad v. State of Gujarat
Gangadhar alias GangramFollowed¶135
Gangadhar alias Gangram v. State of Madhya Pradesh
Independent ThoughtReferred¶239
Independent Thought v. Union of India
Babita LilaDistinguished¶173
Babita Lila and Ors. v. Union of India
4 provisions across 2 enactments
Justin @ Renjith
Union of India
Secretary, Ministry of Women and Child Development
Chief Secretary to the State of Kerala
Circle Inspector of Police, Chalakkudy
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
