SECTIONS 29 & 30 OF POCSO ACT, 2012:
• Section .29: If a person is prosecuted with regard to an offence under sections 3,5,7 and 9 (penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault respectively) of POCSO Act, then section 29 mandates the Special Court to raise the presumption of such person having committed the offence unless an evidence is led to rebut such presumption.
• Section 30: It provides for a presumption as to culpable mens rea of the accused for an offence committed under the POCSO Act until the contrary is proved beyond reasonable doubt.
CHALLENGES TO CONSTITUTIONAL VALIDITY OF IMPUGNED SECTIONS:
• The Constitutional validity of the impugned sections was challenged in two petitions filed by Justin Renjith and Ashly Tomi, who were being investigated for POCSO offences.
• Challenge on grounds of Article 14: The petitioners contended that since there's no provision for reverse burden in case of sexual offences against adults, the same in cases of sexual offences against children is discriminatory and violative of Article 14(Right to Equality).
• Challenge on grounds of Article 20(3): The petitioners argued that Sections 29 and 30 of POCSO Act are operated against the right to remain silent enshrined under Article 20(3) by imposing the burden to prove innocence.
• Challenge on grounds of Article 21: It was also argued that the impugned sections took away the right to be presumed innocent until proven guilty as per Article 21.
DECISION OF KERALA HIGH COURT:
The single judge bench of Justice Sunil Thomas rejected the arguments of the petitioners and upheld the Constitutional validity of sections 29 and 30 of POCSO Act.
The Court observed that:
• The impugned sections are based on intelligible differentia treating the child victims as a class by itself and hence are not violative of Article 14. Also, POCSO Act was enacted following the mandate of Article 15(3) which allows the State to make special provisions for women and children, and therefore, cannot be challenged on grounds of Article 14.
• The Court also quashed the argument for the necessity of mens rea being an essential element of every offence. The Court stated that in certain acts, mens rea is implied by the very nature of the act. The same is explicitly exhibited in sexual acts, and need not be proved separately.
• The right under Article 20(3) could be invoked only when the accused is subjected to duress to give evidence against himself. The term 'com p u l sion' in Article 20(3) refers to duress only as also held by the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghadu.
• The impugned sections do not absolve the burden of prosecution to establish foundation al facts i.e. that the victim is a child; that the alleged incident has taken place; medical evidence to support physical injury, if caused; etc . and the reverse burden kicks in only post the establishment of such facts. Therefore, the right under Article 21 is not per se violated. "The insistence on establishment of foundational facts by prosecution acts as a safety guard against misapplication of statutory provisions"- the Court said.
• The Court added that the reverse burden is justifiable on the ground of predominant public interest. Limited burden on accused to establish specific facts that are exclusively within his/her knowledge are not rare in the Indian Criminal Law.
What do you think about the decision of the Court? Let us know in the comments section below!
