bail under POCSO Act:
1. Offences in cases of bail under POCSO Act:-
2. The increase in sexual offences against children leads to the enactment of the Protection of Children from Sexual Offences Act, hereinafter referred to as "POCSO". The Act was introduced with the objective of upholding the constitutional mandate enshrined under Section 15(3) of the Indian Constitution. The nature of the law is gender-neutral, and its main concern is welfare at all stages to ensure the best interest and comprehensive development of children.
3. However, the key feature of the Act is the clause relating to presumption under Section 29, which remained a subject of discussion in various judgments pronounced by the courts .
4. What is Section 29 of the Act?
5. Section 29 of POCSO Act Offences for any person committing, abetting or attempting to commit an offence under Sections 3, 5, 7 and 9 of the Act It talks about perception . The language of the clause is as follows:-
6. " Assumptions about certain offences:- Where any person is charged with the commission or abetment or commission of any offence under sections 3, 5, 7 and 9 of this Act. If prosecuted for attempting, the Special Court shall assume that such person has committed or abetted or attempted to commit an offence. Done, as the case may be , until the opposite is proven. "
7. On evaluating the aforementioned bare language, two important questions come to mind, including , but not limited to-
a. When is the estimate really set?
b. What is the impact of Section 29 on bail application?
c. When is the estimate really set?
8. The answer to this question is discussed in a plethora of judicial pronouncements. Considering this issue, various High Courts have opined that after the prosecution has successfully established the ground facts, Section 29 Under estimation will be activated during the test . Since the legal language of the section includes the word ' prosecution', courts have demonstrated the stage of inference .
9. Similarly, in Seema Silk and Saree v. Criminal Appeal No. 860 of the Enforcement Directorate, 2008, the Hon'ble Supreme Court held the same under the Foreign Exchange Act, 1973. When dealing with the question observed that in all cases where the law provides an inverted burden of proof, the initial burden of proving the charges is always the prosecution . And only after the successful discharge of the initial burden by the prosecution, the accused person will be entitled to refute the presumption .
10.In Criminal Appeal No. 406 of Navin Dhaniram Barai v. State of Maharashtra, 2017, the Hon'ble High Court of Bombay held that "it becomes clear that however in the provision It has been said that the court will assume that the accused has committed the crime for which he has committed the crime . He is charged under the POCSO Act, unless proved to the contrary, the presumption will only run on the prosecution, which is earlier. Prove the basic facts against the accused beyond a reasonable doubt. Unless the prosecution is able to prove the basic facts in terms of the charges levelled under the POCSO Act against the accused, Till then, the presumption under Section 29 of the said Act shall not work against the accused.
11. What is the impact of Section 29 on bail application?
12. Generally, the effect of Section 29 depends on two conditions i.e. bail application filed before or after the charge is framed. Dharmendra Singh @ Sahab vs State , Bail Application 1559/2020 , Hon'ble Delhi Court held that "if the charges are framed before the bail application is considered There is no application in Section 29 , and grant or denial bail is to be decided on general and general settled principles . "
13. On the contrary, recently in Badri Nath v. Union Territory of Jammu and Kashmir, Hon'ble High Court of Jammu and Kashmir, Bail Application No . 139/2020 held that" At the time of considering the bail plea of an accused, who has been booked for offences under Sections 3, 5, 7 and 9 of the POCSO Act The estimate under Section 29 of the said Act will also be in vogue at the pre-trial stage .
14. What if charges are framed?
15. In the above judgment in the case of Dharmendra Singh @ Saheb, the Hon'ble Delhi Court while discussing the impact of Section 29 on the bail application filed after the commencement of the hearing "At the stage of considering the bail plea after the allegations have been framed, the effect of Section 29 is only the satisfaction required by the court before granting bail. The limit will be increased. This means that the court will consider the evidence placed by the prosecution along with the charge sheet, provided it is admissible in law, the prosecution. Be more favorable to and evaluate, however, without the need for evidence of evidence, whether the evidence is placed in such a way as reliable or Does it appear prima facie that the evidence will not sustain the weight of the crime? "
16.Conclusion-
17. From the above discussion, it can be understood that the presumption under the POCSO Act flares up not only after the commencement of the trial, but also if it is granted bail. It doesn't have an impact. Nevertheless, as the bail application was filed after the trial began, Section 29 will play an important role in deciding the bail application .