The broken compass of POCSO bail jurisprudence: Same crime, different outcomes

Bail under Indian criminal law is not merely a procedural remedy, but also a constitutional guarantee. Article 21 of the Indian Constitution provides for the right to life and personal liberty. Thus, bail is a fundamental right and not merely a concession, reminding the state that liberty should not be forfeited easily.

The landmark judgment of Gurbaksh Singh Sibbia v. State of Punjab is the case that shifted the presumption from jail as the rule to bail as the rule. The Supreme Court made this clear in Satender Kumar Antil v. CBI, in a reaffirmation of this shift, stating that pre-trial detention would have to be an exception. Therefore, the main idea behind bail lies in wrongful imprisonment and preservation of the constitutional guarantee of liberty.

It is, however, a contrasting scenario under the Protection of Children from Sexual Offences (POCSO) Act. The presumptions under POCSO place the entire burden of proof on the accused for the benefit of the victim. The sections delineated in POCSO fail to complement the traditional framework of bail and lead to a presumption of guilt upon the framing of charges. After the charge is framed, the court must now presume that the accused is guilty until proven innocent. This is a dramatic deviation from the general criminal law principle of presumption of innocence.

This creates a new question: should these presumptions come into play in bail proceedings or only in trial? Traditionally, people thought of bail as being granted with the presumption of innocence until proven guilty. POCSO grants these presumptions even prior to the commencement of the trial which, by all means, muddles the whole bail procedure.

For example, Section 29 states that once the charge is framed, the accused is presumed to have committed the offence unless such presumption is rebutted. Certain offences under POCSO, when framed, would seem to confer an automatic presumption of a certain culpable mental state with respect to the accused under Section 30. As such, Section 42A empowers the POCSO Act over and above the CrPC. All these factors go one step further in making it an uphill task for any accused to secure bail under POCSO since the burden of proving innocence is placed on the accused even before the trial goes to court.

This paradoxically means that while the Act is designed to protect children, it, at the same time, jeopardises the presumption of innocence, which is a basic human right granted by the Constitution.

Despite the severity of offences under the POCSO Act, bail is not barred per se. However, judicial discretion in granting or denying bail under POCSO has been markedly inconsistent. Courts have arrived at vastly different conclusions even when faced with similar factual circumstances, creating an unpredictable and fragmented legal landscape.

For instance, in Ravi Kumar v. Union Territory of J&K, the Jammu & Kashmir and Ladakh High Court addressed the issue of indefinite delays caused by the victim’s failure to appear in court. The Court granted bail, emphasising that the mere absence of the victim could not be a reason to keep the accused incarcerated indefinitely. The judgment underscored that the right to a speedy trial includes not only the interest of the victim, but also that of the accused.

Conversely, in Nishu v. Commissioner of Police, Delhi, the Supreme Court was faced with petitions filed on behalf of a girl child who was frequently raped by a group of people. The POCSO provisions, however, were reportedly not invoked against the accused. This disparity highlights a significant inconsistency in how POCSO is applied across cases.

These discrepancies are not merely procedural anomalies—they go to the heart of due process and equality before the law. The same statutory provisions, when interpreted differently in similar cases, suggest a broken compass guiding bail jurisprudence under POCSO. This inconsistency not only affects the lives of the accused, but also dilutes the credibility and deterrent value of the Act.

Take, for example, cases involving a minor girl eloping and engaging in consensual sexual relations with the accused. In such instances, the FIR is often lodged after some time, leading to societal pressures that label the girl a "victim" only later. In such cases, some courts deny bail, heavily relying on the presumption of guilt under Section 29 of POCSO. These courts seem to prioritise this presumption over the constitutional safeguard of personal liberty, as laid down in precedents like Gurbaksh Singh Sibbia and Arnesh Kumar, which advocate for more liberal bail policies.

On the flip side, some courts have taken a broader view, considering bail as a matter of personal liberty under Article 21. They have held that the presumption of guilt is meant for trial and should not be used to pre-emptively deny bail. Applying this presumption at the bail stage can violate the constitutional right of the accused to a fair trial.

Though the POCSO Act introduces strict procedural and substantive safeguards for victims, it does not create an absolute bar on bail. Courts have recognised this nuance, especially when procedural lapses occur.

In Hanumantha Mogaveera v. State of Karnataka, the Karnataka High Court was faced with a situation where the child’s testimony was not recorded within the statutory thirty-day period as mandated by Section 35 of the Act. The Court held that while such non-compliance is regrettable, it does not automatically entitle the accused to bail. This position underscores that procedural safeguards for the victim must be balanced against the rights of the accused.

Similarly, in Mohiddin v. State of Karnataka, the High Court denied bail despite significant delays in the recording of the victim’s evidence. The Court reasoned that procedural delay alone could not dilute the gravity of the allegations or the presumptions under POCSO.

Ordinary criminal law assumes a presumption of innocence until proven guilty, whereas POCSO's Section 29 provides for a presumption of guilt once charges are framed. The Delhi High Court had held in Dharmander Singh @ Saheb v. State,

"That section 29 has been engrafted in the POCSO Act does not mean that the presumption of innocence, which is a foundational tenet of criminal jurisprudence, is to be thrown to the winds. If section 29 is so interpreted as to apply it to the stage even before charges are framed, it would not pass constitutional muster...this court is persuaded to hold that the presumption of guilt engrafted in section 29 gets triggered and applies only once trial begins, that is after charges are framed against the accused but not before that."

The lower courts tend to obfuscate this aspect, applying the presumption of guilt from the instance before filing charges. Thus, even when the accused gets a legal right to liberty, bail is denied as a matter of course whenever POCSO is concerned.

The presumption also implies that minor's consent would be irrelevant under POCSO. Teenage relationships, even though consensual, suffer criminalisation due to the mere fact that the parties concerned belong to different ages. This strict statutory framework doesn't accommodate any facet of the specific case, and therefore the resulting outcome is unjust.

These rulings clarify that while bail is not completely barred under POCSO, the threshold remains extraordinarily high. Procedural defaults by the prosecution or investigation do not easily translate into grounds for release. The courts remain cautious, and rightly so, but the overly stringent approach often results in prolonged incarceration of undertrials, sometimes for years before the trial is concluded. 

At the core of the issue comes the ethical dilemma regarding the protection of victims against the rights of the accused, especially at the bail stage. Can one take the minor's vulnerability to justify what is almost an erosion of the presumption of innocence, or do courts place this constitutional guarantee of liberty highest above all? Finding that balance really is a challenge. Courts should consider the victims' rights paramount, but not encroach over the fundamental rights of the accused. The pre-trial detention of a person, in particular under POCSO, would amount to punishment without a trial, which completely destroys the very essence of justice.

The widening gaps in bail decisions under POCSO call for a uniform, reasoned approach. The courts should strike a balance between the legislative intent of POCSO and the constitutional guarantees of personal liberty.

Even while POCSO is principally aimed at protecting minors, it must be kept in mind that the fundamental rights of the accused must not be compromised. We are accustomed to the presumption of innocence as a rule, and it is imperative that the short-sightedness of any law tampering with this principle at the bail stage must face considerable scrutiny. The future must see a judiciary inching slowly towards a consistent, fair and constitutionally sound approach toward bail, from which true justice may be served for both the law-abiding as well as the accused individual.

S Selvakumari is an advocate practicing at the Supreme Court of India and various other High Courts.

Aditi Shivadhatri is an advocate practicing at the Supreme Court.