Section 29 of the POCSO Applicable Only After the Framing of Charges: Delhi HC - Synopsis
Tarandeep Singh 24 Nov 2020

The Delhi High Court while considering a bail application in Dharmander Singh @Saheb vs. the State (Govt. of NCT, Delhi)[1] on 22 September, 2020 has discussed in detail the reverse effect of Section 29 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act).

In the case accused (appellant) and complainant became friends on Facebook in 2016, where friendship turns into relationship and entered into sexual intercourse. An F.I.R lodged on 14.10.2018 that accused had made physical sexual intercourse with complainant and captured its video and uploaded on social media for threatening her. The accused forcefully married the complainant in the presence of his mother. Accused keeps on calling the complainant from her maternal home and on refusing he uploaded her photograph as his Display-picture on WhatsApp for threatening her. It was also stated that on 13.10.2018 he stopped his scooty on a running flyover and asked her to disrobe, at which point he also hits her.

The accused has made a request to be enlarged on Bail since the investigation is completed and charge-sheet in the matter had been filed. In contrary, the prosecution pleaded the application of Section 29 under POCSO to contest the bail, arguing that the charges have been framed so Section 29 must be applicable and court must presume accused to be guilty. While hearing both the learned Counsels, the Court observed that this section reverses the ‘Presumption of  Innocence’ existed for every accused.

“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?” Court while answering the question said that the term ‘Prosecution’ and ‘Prosecuted’ has been defined neither in POCSO Act nor in Cr.P.C. The Bench then referred to Black’s Law Dictionary’s 8th Edition, which defines “criminal Proceedings in which an accused person is trialed.” Court clarifies that till the cognizance made it is not right to say accused is prosecuted because that stage is about the offence and not the offender.

Referring to Hardeep Singh vs. State of Punjab & Ors.[2], Court concluded that person can only said to be prosecuted after the commencement of trial i.e. after framing of charges.

While answering the second issue that “When and at what stage the ‘Presumption of guilt’ as engrafted in Section 29 gets triggered?” Bench held that “Such presumptions comes into play only when the prosecution has established facts that form the basis of the presumption.” i.e. accused cannot disprove his guilt before the foundational allegation. “It would be anathema to fundamental criminal jurisprudence to ask the accused to disclose his defense; or, worse still, to adduce evidence in his defense even before the prosecution has marshalled its evidence,” the High Court said. Justice Bhambhani concluded some fresh norms which shall also be considered for hearing post-charge bail application in the matters related to POCSO, which are comparative age of victim and accused, familial relationship they share, if any, whether the offence alleged involved threat, violence, and brutality and whether the offender repeats the offence.

[1] BAIL APPL. 1559/2020

[2] (2014) 3 SCC 92


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