Guest Post: Section 29 POCSO Act — From Guilty Presumptions to Proof of Guilt

(This is a guest post by Angad Kamath, a final year law student at NALSAR University of Law)

Presumption literally means “taking as true without examination or proof”. In Kumar Exports v. Sharma Exports (2009 2 SCC 513), the Supreme Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence." In a lawyer’s dictionary, ‘presumption’ can have several meanings – each different from the other. The term is most commonly associated with statutory provisions that require a certain fact to be ‘presumed’ upon proof of other sets of facts – this is also known as a derivative presumption. It can also be used to allocate the burden of proof; the presumption of innocence, in this sense, can be expressed as the right of the accused to shift the onus to prove her guilt on the prosecution. This form of a presumption is described as a foundational presumption; a proposition that the court must initially accept without proof of any fact.

In this piece, I wish to explore the nature of the presumptive clause found in section 29 of the Protection of Children from Sexual Offences Act 2012 [POCSO]. I argue that Courts have failed to look beyond the commonly associated form of presumption, i.e., the derivative presumption in its interpretation of section 29. I further argue that the non-literal interpretation adopted by some courts has rendered the presumptive clause meaningless, effectively reducing it to a standard of proof clause.

Let's begin by constructing a general presumptive clause, giving it the framework of a derivative presumption.

Section XYZ – “If facts A, B, C are proved, then the court shall presume fact D unless the contrary is proved”. Examples of this type of presumptions can be found in section 139 of the Negotiable Instruments Act 1881 [NI Act], section 113B and 114A of the Indian Evidence Act 1872, and section 35 of the Narcotic Drugs and Psychotropic Substances Act 1985.

[General framework formulae: proof of foundational facts occasions separate fact to be presumed – fact presumed can be rebutted]

To further simplify, let us take the example of section 139 NI Act-

“139. Presumption in favour of holder - It shall be presumed, unless is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability."

A bare perusal of the section 139 NI Act would suggest that before the presumption (u/s139) becomes available to the complainant, he must show that he is holding a cheque which is ‘of the nature referred to in section 138’. Hence, the facts to be proved (basic or foundational facts) contained in section 138 are extracted below:

"... Provided that nothing contained in this Section shall apply unless: —

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may, makes a demand for the payment of the said amount of money by giving a notice in writing, to be drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."

Now, a conjoint reading of sections 138 and 139 would make it sufficiently clear that only upon proof of facts provided in clause (a), (b), (c) of s. 138, would the benefit of the presumption (that the cheque was issued in ‘discharge of a whole or in part of any debt or any other liability’) accrue to the complainant.

It can be noticed here that the facts proved and the fact presumed is independent and separate from one another, in accordance with our general framework set out above. The fact presumed is an inference drawn upon proof of independent and separate facts. The presumed fact can be rebutted by leading evidence to the contrary.

Now let’s proceed to examine the framework of the presumptive clause provided for in section 29 of the POCSO Act and compare it with our general presumptive clause:

Section 29 – Presumption as to certain offence

“Where a person is prosecuted for committing or abetting or attenuating 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”

Upon a strict literal interpretation, the presumptive clause in s. 29 can be deconstructed as follows –

• Fact to be established/proved - person prosecuted for committing any offence under section 3,5,7,9
• Fact to be presumed - person has committed the said offences.

Put otherwise, if any person were to be ‘prosecuted’ for any offence under sections 3,5,7,9, then the Special Court shall mandatorily raise the presumption of such person having committed the offence unless any evidence to rebut the presumption can be led. 

But courts have taken extremely divergent stands on the interpretation of the word ‘prosecuted’, which falls under the foundational facts category in our general framework.

A division bench of the Calcutta High Court in a recent decision (27 Feb,2020) held as follows —

“The words appearing in section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross-examination by defence.”

Similarly, the Bombay High Court while examining the effect of the presumption under section 29 POCSO has held —

“It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.” (emphasis supplied)

The position taken by the Calcutta HC and Bombay HC has been similarly adopted by the Madhya Pradesh High Court and Kerala High Court (See, Joy v State of Kerala (2019) SCC Online Ker 783)

On the contrary, in a bail petition filed for offences under POCSO and IPC, the Karnataka High Court, in a bail application, appears to have found favour with the literal interpretation of s. 29 presumptive clause. While denying bail to the accused, the court held as follows — 

“The POCSO Act came into existence in the year 2012. In order to protect children provision has been made under Section 29 of the Act that if once charge sheet is filed and the allegations are available, further the victim statement is recorded, under this factum the Court has to infer the said act has happened by drawing initial presumption. That has to be rebutted only during the course of full dressed trial.”

According to this interpretation, the presumption of guilt is to inferred once the charge-sheet is filed and victim’s statement is recorded, which essentially means, the presumption is raised at a pre-trial stage.

In State v. Tej Kumar @ Tinku the Special Court for POCSO cases (sitting in Delhi) was addressed the following arguments, inter alia, on behalf of the accused -

“ ... that presumption also lies in favour of prosecution in different statues like under Negotiable Instruments Act, NDPS Act, Indian Evidence Act, Prevention of Corruption Act but by the mere fact that some presumption in provided in the statute, complainant/prosecution can not be exonerated from their liability. Rather, it is well settled law that to draw a presumption in favour of complainant under Negotiable Instrument Act, complainant has to prove certain facts.”

Upon a detailed comparison of the presumptive clause found in section 29 of POCSO Act and section 138 NI Act, the court, in line with the Karnataka High Court’s strict literal interpretation concluded as follows –

“But, presumption under Section 29 of the POCSO Act is not similar to the presumption as under Section 139 of NI Act ... To draw a presumption in favour of prosecution, prosecution has to establish that accused is prosecuted for committing or abating (sic) or attempting to commit any of the offences which are mentioned:-(i). under Section 3 of the Act i.e. Penetrative Sexual Assault.(ii). under Section 5 of the Act i.e. Aggravated Penetrative Sexual Assault.(ii). under Section 7 of the Act i.e. Sexual Assault.(iv). under Section 9 of the Act i.e. Aggravated Sexual Assault. Once prosecution is succeeded to establish the aforesaid pre-requisite condition, Special Court is bound to draw a presumption in favour of the prosecution that the said person i.e. accused has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved.Bare perusal of Section 29 of the Act reveals that the initially burden is upon the accused to show that he was not involved in the said case and once he is succeeded to raise a doubt over a prosecution case or to show his innocence by preponderance of probabilities, onus will be shifted upon the prosecution to prove the guilt of accused.”

If one takes a closer look at the presumptive clause under section 29, the requirement of foundational facts to be proved is conspicuous by its absence. As a corollary, it can be concluded that the presumptive clause under section 29 does not accurately fit in the framework of our general presumptive clause. The absence of clear and discernible legislative instruction on this aspect has led some courts to observe that mere prosecution is sufficient for raising the presumption, while others have opined that the literal and restrictive interpretation may render the clause constitutionally suspect. In order to avoid a potential constitutional challenge, some courts have read in the element of foundational facts having to be proved at trial for the presumption to come alive. In this way, courts have proceeded to interpret the textually different presumptive clause under the POCSO Act in the same manner as the general presumptive clauses found in the NI Act, Evidence Act, etc.

By reference to the cases surveyed above, there appears to be a clear conflict in the interpretation of s. 29 POCSO between different courts as regards the following issues –

1. At what stage does the presumption of guilt embedded in section 29 operate? Does it operate from the commencement of criminal prosecution (i.e. at the time of filing charge-sheet or filing complaint before a magistrate) itself or is it confined only to the trial?
2. What are the foundational facts, if any, that are to be proved for the presumption to kick in and reverse burden to apply?

The answer to issue 1 lies in finding the answer to issue 2 – i.e., we must, firstly, identify the foundational facts, if any, which ought to be proved for the presumed fact of guilt to be inferred. I use the words ‘if any’ consciously because the legislature might have preferred to incorporate a foundational presumption of guilt clause (think of the presumption of innocence – it does not require any facts to be proved for it to operate) as opposed to a derivative presumption (the general presumptive framework captured above is an example of a derivative presumption) that we so commonly find in various statutes. [I am not examining the constitutional validity of the literal interpretation in this piece.]

If the trigger for presumption lies in nothing but ‘mere prosecution’ (as literally interpreted by the Karnataka High Court and Delhi District Court), then the presumption of guilt may have a strong bearing on outcome of bail applications filed before the trial stage, apart from other serious consequences at the trial. The serious difficulty of obtaining bail in POCSO matters may just translate to impossibility if presumption arose upon mere prosecution.

With this background, let us grapple with issue 2 — In the case extracts cited above, it can be noticed that the courts having avoided the literal interpretation route have some commonality in their interpretation of section 29 presumptive clause. I have culled out the common features of their interpretive observations below –

• That the prosecution would have to mandatorily bring on record the facts which form the basis of presumption.
• Upon having brought the facts on record, the prosecution must proceed to prove the facts
• Having proved the facts forming the basis of presumption, the presumption is triggered and the burden to reverse the said presumption shifts upon the accused.

In summary, it can be concluded that initial burden has to be discharged by the prosecution, which can be rebutted by accused by adducing evidence to the contrary.

As observed earlier, in their attempt to save it from a constitutional challenge, courts have resorted to interpreting the unique presumptive clause found in section 29 in the same manner in which derivative presumptions are generally interpreted. No doubt, this interpretation holds the field when it comes to the reading of derivative presumptions (where X fact is to be inferred upon proof of Y fact). But before we apply it to section 29, we must be sure of whether or not the said section is of the nature of a derivative presumption or a foundational presumption (like the presumption of innocence), which has still not been authoritatively pronounced by any court, let alone the Supreme Court. Even if we were to assume for the sake of argument that section 29 is a derivative presumption, the courts have so far failed to articulate the finer details of the foundational facts that need to be proved: What constitutes the specific foundational facts, which if proved, will lead to an inference of guilt?

Generally, most courts have held that the trigger for presumption lies in proof ‘of the primary facts constituting the offence’. On the question of standard of proof, which needs to be met by the prosecution, a division bench of the Calcutta HC in Subrata Biswas v. State of West Bengal [(2019) SCC Online Calcutta 1815] has observed –

“A proper interpretation of the said provision in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability.” (emphasis supplied)

With this context, let us now consider if interpretation given to section 29 presumptive clause fits the general notion of a derivative presumption clause.

Three things are now clear. A) That the prosecution will have to discharge the initial burden of proving the foundational facts; B) Foundational facts in the POCSO context are the ingredients of the offence found in section. 3,5,7,9; C) The standard of proof to discharge onus is a mere preponderance of probabilities and not the usual beyond reasonable doubt standard.

Applying this logic, one would realise that if the prosecution is required to prove all the primary facts of the case, then why would a presumptive clause be provided by the legislature in the first place? Generally, if a particular offence has three ingredients to be satisfied – say, X, Y, and Z, a derivative presumption clause would require the prosecution to prove X and Y (foundational facts) upon which the fact Z would be presumed. The function of a derivative presumptive clause, in this manner, is to ‘give the prosecution a very helpful shortcut to proof of the presumed fact’.

We can now compare this with the earlier example of section 139 the NI Act. The complainant is not required to prove the factum of the cheque having been received in discharge of debt or liability if he can establish the foundational facts [Keep in mind that receipt of cheque in discharge of debt is a key element for conviction under s. 138 NI Act]. The burden then shifts on the accused-defendant to rebut the said presumption by leading evidence to the contrary.

Coming back to section 29, the presumptive clause will be rendered meaningless if the prosecution is required to prove of all primary facts of the offence, although to a lesser standard of proof.

What this effectively means is that the courts, in their attempt to save section 29 from a potential constitutional challenge, have read it in such a way that the spirit and underlying essence of the presumptive clause is completely lost. Through its interpretation, some courts have given it an altogether new meaning; the title — ‘presumption as to certain offence’ — has become nothing but a misnomer. Far from being a presumption clause, its functional purpose has been reduced by some to a lowering of the standard of proof required from beyond reasonable doubt to the preponderance of probabilities standard.