Presumption of guilt under POCSO Act does not mean police case is gospel truth: Delhi High Court

The Delhi High Court recently observed that merely because Section 29 of the Protection of Children from Sexual Offences Act (POCSO Act) provides for a presumption of guilt of the accused, the court is not bound to accept the prosecution's version of events as the gospel truth..Justice Amit Mahajan said that the presumption of guilt is not absolute and is rebuttable and that it does not prevent a court from exercising its discretion to grant bail to an accused. "Merely, because Section 29 of the Act provides for a statutory presumption, the same does not bind the Courts to accept the prosecution version as gospel truth and the discretion in relation to grant of bail is still to be exercised considering the facts of the case," the May 20 ruling stated..Section 29 of the POCSO Act says that when a person is prosecuted for committing (or abetting or attempting to commit) any offence under Sections 3, 5, 7 and 9 of the said Act, the court shall presume that such an accused person has committed (or abetted or attempted to commit) the offence, unless the contrary is proved.Sections 3, 5, 7 and 9 of the Act deal with the offence of penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and touching private parts of minors with sexual intent..The Court was dealing with a plea filed by a father seeking anticipatory bail in a case registered under the POCSO Act on allegations that he had committed aggravated penetrative sexual assault on his 17-year-old daughter.He was booked under Sections 354/ 354B/ 506(II) of the Indian Penal Code (IPC) and Section 10 of the POCSO Act..While dealing with the matter, the Court examined the duty of the prosecution in POCSO cases and the grant of pre-arrest bail in such cases.“It is the duty of the prosecution to first establish facts on the basis of the evidence which would form the foundation for the presumption to operate… It is not in doubt that an order for pre-arrest bail cannot be passed in a routine manner so as to allow the accused to use the same as a shield. At the same time, it cannot be denied that a great amount of humiliation and disgrace is attached with arrest. The purpose of custodial interrogation is to aid the investigation and is not punitive,” the Court observed.Justice Mahajan also stressed that there is no doubt that the mere testimony of the prosecutrix can be sufficient for convicting the accused and that such testimony would not require corroboration to be relied on as long as it inspires confidence..In the present case, however, the Court noted that there has been a delay in the registration of the first information report (FIR) and that the parents of the minor victim have been at loggerheads, having filed multiple complaints against each other. “It has to be kept in mind that in cases where the victim is a child, her statement has to be scrutinized with great care and caution as children can be easily swayed away and are prone to tutoring. It can also be a possibility that the statement is made at the behest of one of the parents. It is the duty of the Court to also examine and analyse other corroborative evidence and circumstances which are important to the case… The possibility of getting such complaint lodged, especially when the parents have history of matrimonial discord, cannot be ruled out. In the present case, as noted above, the parents of the victim have been at loggerheads and have filed multiple complaints against each other," the Court went on to observe. Justice Mahajan further noted that it is not alleged that the accused man was a a flight risk or that he would tamper with evidence if released on bail. Even if such apprehensions arise, they can be taken care of by putting appropriate bail conditions, the Court added. The Court, therefore, granted anticipatory bail to the accused father..Advocates Jaideep Malik and Siddharth Soni appeared for the accused father.Additional Public Prosecutor Pradeep Gahalot represented the State.Advocates Gayatri Nandwasi and Mudita Sharda appeared for the complainant. .[Read Judgment]