Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

Offences Against Child & Juvenile Offence

Topic:
“Analysis of the Presumptions under the POCSO Act, 2012”

SUBMITTED TO: - SUBMITTED BY: -

Dr. K.A. Pandey Akash Prakhar Verma

Roll No. – 17

B.A. LLB (Hons.)

9th Semester

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 Acknowledgement

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Kumar Askand Pandey for his guidance and constant supervision as
well as for providing necessary information regarding the project & for his support in completing
the project.

I would like to express my gratitude towards the members of Madhu Limaye Library for their kind
co-operation and encouragement, which helped me in completion of this project.

My thanks and appreciations go to my colleague in developing the project and people who have
willingly helped me out with their abilities.

I welcome any criticism and suggestions by the people who go through it, for the improvement of
my future projects.

- Akash Prakhar Verma

Roll No.-17

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 Table of Contents

Introduction ..................................................................................................................................... 4

Noor Aga and the Current Position of Law .................................................................................... 5

Biswas and the Dilution of the Presumption................................................................................... 6

Restoring the Presumption .............................................................................................................. 8

Implications of this Interpretation and Conclusion ....................................................................... 10

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 Introduction

The Protection of Children from Sexual Offences Act, 2012 [hereinafter “POCSO”] was enacted
with a broad objective to prevent the exploitation of children and child sexual abuse. It was also
accompanied by the belief that a strong prosecutorial mechanism is essential for these crimes to
be tackled. To this end, it introduced a slew of measures aimed at simplifying the prosecutorial
burden in cases dealing with this issue, including the establishment of Special Courts to deal with
offences under the Act. Also worth noting are the two presumptions provided under s. 29 and s.
30 of the Act. Under s. 29, when a person is charged under the POCSO, he is presumed to have
committed the offence1. Similarly, s.30 presumes that a person charged under the Act had the
culpable mental state necessary to commit the offence2. While these presumptions can go a long
way in simplifying the burden of the prosecution, it is seen that their application is less than
satisfactory. One of the reasons for this, I believe, is the lack of guidance provided by the higher
judiciary in their interpretation. This lack of guidance then allows a number of other factors to
prevent a meaningful application of the presumptions. These include an entrenched belief in
tenants of criminal law3. The purpose of these presumptions, and the interpretation given by the
Court would, in fact, serve to nullify the presumption under the Act.

In this project, I will argue that the current interpretation of the presumptions under the POCSO
totally nullifies their effect. I will begin by laying down the law on presumptions in general as well
as the interpretations of the presumptions under the POCSO. I will then look at certain alternate
interpretations and try to suggest one that best fits the legislative model of the POCSO.

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The Protection of Children from Sexual Offences Act, 2012, Section 29 reads as follows, “Where a person is
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prosecuted for committing or abetting or attempting 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.”

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The Protection of Children from Sexual Offences Act, 2012, Section 30 reads as follows, “(1) In any prosecution for
any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall
presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no
such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond
reasonable doubt and not merely when its existence is established by a preponderance of probability.

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Judges loath to depart from established principles such as innocent until proven guilty.
 Noor Aga and the Current Position of Law

The current position regarding the validity of reverse onus clauses can be seen in Noor Aga v.
State of Punjab4. This decision dealt with the constitutionality of reverse onus clauses present in
the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter “NDPS”5]. The Court, in
Noor Aga, relied on a number of decisions of its own, to hold that the presumption of innocence
is not an absolute right. The Court held that reverse onus clauses may be valid, though in some
cases, there may be certain qualifications required to give them this validity. Thus, the Court held
that reverse onus clauses are not ex facie unconstitutional. To determine when a reverse onus
clause would be valid, the Court relied heavily on one scholarly article. The Court cites the article
and states that the factors mentioned therein would be the touchstone on which such clauses will
be tested. The relevant extract is as follows,

“In determining whether a reverse burden is compatible with the presumption of innocence regard
should also be had to the pragmatics of proof. How difficult would it be for the prosecution to
prove guilt without the reverse burden? How easily could an innocent defendant discharge the
reverse burden? But courts will not allow these pragmatic considerations to override the legitimate
rights of the defendant. Pragmatism will have greater sway where the reverse burden would not
pose the risk of great injustice – where the offence is not too serious or the reverse burden only
concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency
in the regulatory environment.”

Thus, the test to determine when a reverse onus clause, which presumes the guilt of the accused is
valid is when legitimate rights of the accused are balanced against the pragmatics of proof viz.
how difficult would it be to prove guilt without reverse burden and how easy it would be for the
innocent defendant to discharge the reverse burden.

The Court then dealt with the question of whether foundational facts are required to uphold the
validity of reverse onus clauses. These are facts, which may need to be proven in order to invoke
a presumption. The Court had already opined that any reverse burden clause would constitute an

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Noor Aga v. State of Punjab, (2008) 16 SCC 417. 5
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The Narcotic Drugs and Psychotropic Substances Act, 1985, s. 35; The Narcotic Drugs and Psychotropic
Substances Act, 1985, s. 54.
intrusion into the right to a presumption of innocence of the accused. It held that requiring proof
of foundational facts before invoking the presumption would dilute this intrusion. Dealing with
the question of foundational facts, the Court opined, “Provisions imposing reverse burden,
however, must not only be required to be strictly complied with but also may be subject to proof
of some basic facts as envisaged under the statute in question”(emphasis supplied). It is important
to note the use of the word ‘may’ in the quote above. It is, therefore, possible to argue that if on an
application of the test laid down above, the Court holds that the presumption is valid as is, there
may not be a requirement for further foundational facts to be proven at all.

Finally, with regard to the standard of proof required in cases of presumption, the Court held that
the burden on the prosecution to prove foundational facts would be ‘beyond reasonable doubt’,
whereas the defendant would only have to rebut the presumption on a preponderance of
probabilities. This assertion has recently been upheld by the Supreme Court in the case of Naresh
Kumar v. State of Himachal Pradesh6.

Biswas and the Dilution of the Presumption

Recently, in Sahid Hosain Biswas v. State of West Bengal, the Calcutta High Court had to
interpret the presumptions under the POCSO. The Court stated that there was ‘trite law’ that it is
impossible to prove a negative, in order to hold that, all facts that must be disproved must first be
proved7. This broad statement itself seems to be incorrect as the Supreme Court has clarified that
though proving a negative is difficult, it is not impossible. The High Court does not give any
guidelines as to what the foundational facts in question should be and does not even refer to Noor
Aga. In the absence of any specific mention of foundational facts, it is safe to assume that the
Court meant that all facts that are to be disproved under the presumption must be proved. Reading
this interpretation of the POCSO with the decision in Noor Aga and Naresh Kumar, we have a
situation where all the facts under the POCSO have to be proved beyond reasonable doubt. This is
a patently dangerous interpretation to adopt.

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Naresh Kumar v. State of Himachal Pradesh, 2017 (8) SCC 324. 6
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“A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a
prosecution under the POCSO Act an accused is to prove ‘the contrary’, that is, he has to prove that he has not
committed the offence and he is innocent. It is trite law that negative cannot be proved. In order to prove a contrary
fact, the fact whose opposite is sought to be established must be proposed first.”
To understand why, the scope of facts under the POCSO needs to be seen. There are two major
factors that are usually required to be proved in a POCSO trial. The first is the minority of the
victim. This would be necessary, as it is a prerequisite for a charge under the POCSO. The second,
of course, would be the actual commission of the offence. The consent or otherwise, of the minor
would be irrelevant, as it is not a factor that is required to be proved under the POCSO. The only
facts that need to be proved to secure a conviction under the POCSO are therefore, minority and
commission of the offence. The judgment in Biswas seemingly makes both these factors
foundational facts. The moment these will be proved, the offence will be established. Reading
Biswas and Noor Aga together, we reach a position where the guilt of the accused is proved the
moment the foundational facts are proved. This is unlike other reverse onus clauses. For example,
under the NDPS Act, the presumption shifts after the prosecution proves conscious possession and
recovery of the drugs. The defence has to then disprove that the accused had knowledge of the said
drugs8. In rape cases, the presumption under s. 114-A of the Indian Evidence Act, 1872 would
apply after sexual intercourse is proved. The defence then has to disprove the fact of consent9. In
both cases, there are other ingredients of the offence, which are presumed after the foundational
facts are proven. If the interpretation in Biswas is applied to the POCSO, there will be no
ingredients to be proved after the presumption is triggered. Thus, the presumption under the
POCSO will lose all its meaning.

Thus, in the absence of a Supreme Court decision that interprets the presumption under the
POCSO, it would seem to be a folly to adopt an interpretation, which would completely go against
the spirit of the presumption. As pointed above, other High Courts have applied the presumptions,
though none have interpreted the statutory requirements for the same. The Bombay High Court in
Yogesh Maral v. State of Maharashtra, hinted at the unconstitutionality of these presumptions.
However, it did not examine the merits of the argument as the case before it did not require it to.
This is unfortunate, as it could have provided some sort of guidance as to the application of the
presumption.

8
Dharampal Singh v. State of Punjab, (2010) 9 SCC 608); Bhola Singh v. State of Punjab, (2011) 11 SCC 653 7
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State of Rajasthan v. Roshan Khan, (2014) 2 SCC 476.
 Restoring the Presumption

Given the law as it stands today, it is important to provide clarity on the application of the
presumptions while keeping in mind the purpose of the POCSO. This clarity can be achieved
through three ways. First, it could be argued that they are valid as is. Second, it could be argued
that only one of the two foundational facts in question would be required to be proved before the
presumption is triggered. Finally, we could argue that the current scenario is the only way in which
the presumption can be validly applied.

Having already shown how the third interpretation will nullify the presumption completely, I will
not be discussing it further. The first possibility would mean that an accused is presumed guilty
from the moment he is charged until he proves his innocence on a preponderance of probabilities.
Given that the Court in Noor Aga had shown a certain amount of deference to the presumption of
innocence and expressly rejected such an approach in the context of the NDPS, it is unlikely that
it will accept such a hard-line position10.

I believe, however, that it is possible to argue that the second path can be followed. Here, once the
minority of the victim is proved, the presumption would apply as to the mens rea and the actus
reus. To explain this position, we can apply the test from Noor Aga. Minority is proved under the
POCSO either by certain documents such as bonafide or birth certificates or by medical age
determination tests. These are not difficult for investigation agencies to procure. On the other hand,
requiring the defendant to procure documents of personal nature or in the alternate, compel the
victim to undergo an age determination test would be a tough task. Thus, the balance in proving
the minority of the victim would tilt in favour of the defendant.

The second fact in question here would be the commission of the offence. Here, the situation may
be perceived a little differently. In any of the offences under the Act, the major source of evidence
is from the victims themselves or their family members. In such cases, the defence can easily call
these persons to the stand and examine their claims. The defendants themselves may be placed on
the stand, a practice, which is almost non-existent in these cases. The defendant may also offer

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While it may be impractical, it can be argued that the object and purpose of the Act as well as the difficulty in 8
securing convictions would make the POCSO a fit case to apply such a presumption.
proof of reasons why a false claim may be filed against them or provide an alibi evidence. The
defence can then proceed to prove on a preponderance of probabilities that the offence in question
never occurred. Here, in the absence of any medical evidence, the prosecution usually has to rely
on the sole evidence of the child. On the other hand, the defendant has a relatively easier job at
disproving this fact. Indeed, Courts have been willing to rebut the presumption once applied if the
prosecution testimony can be sufficiently discredited11.

While interpreting the provisions of the Act, it is important to remember the purpose of the Act,
as well as the conditions in which trials under the Act are conducted today. The Act was brought
into force to combat a widely prevalent evil of child abuse. That the State has to do its utmost to
protect the rights of children is evident from its international obligations as well as its constitutional
mandate. The presumption is an enabling provision for the same, and therefore, must be given
effect as such. Children of tender ages have to often wait for extended periods of time to depose
before Courts. Further, in cases of severe PTSD, the child may block the memories from his or her
mind, making testimony at the trial stage difficult. Proving certain offences takes place solely
based on the testimony of the child, which, therefore, becomes a very challenging prospect. This,
in my opinion, makes it a fit case to apply the presumption under the balancing test of Noor Aga.

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Sivakumar v. State of Tamil Nadu, Criminal Appeal No. 307/2015 (Madras High Court). 9
 Implications of this Interpretation and Conclusion

If such an interpretation is taken, it ought to change the way trials proceed in POCSO matters. The
prosecution will have to lead evidence only as to the minority of the victim, after which the
presumption will kick in. In theory, this means that the prosecution will not have to present any
more evidence. The defence will then have to adduce evidence to disprove the prosecution case,
which can be gleaned through the charge-sheet and other contemporaneous documents. Given the
situation of trials in India, I realise it is unlikely that such a widespread change will take place in
the way trials are conducted. The way in which evidence is shared with the defence will have to
undergo a drastic change if the defence is expected to prove innocence on a preponderance of
probabilities. Access will have to be allowed to all documents collected by the prosecution
throughout the course of the investigation. There may also be concerns regarding police preserving
evidence that may later be useful to the defence. At the same time, it must be kept in mind that the
POCSO intends to simplify the prosecution in cases of child sexual abuse. We must not be reluctant
to adopt approaches that fulfil this goal while staying within the constitutional framework. Even if
such a change does not occur, it is essential that our judiciary adopts a more realistic and potent
interpretation of the presumptions under the POCSO. This is crucial in order to ensure that the
legal protection to victims of child abuse is as strong as constitutionally permissible.

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