I Have Kidney Stones: Grant Me Bail?

• While cancelling the bail order of the Sessions Judge, Hon’ble Justice W. Diengdoh of the Meghalaya HC on 10 December, 2021 in State of Meghalaya vs. Heibormi Dkhar said that “it is obvious that the impugned order is passed without due application of mind and the discretionary power was not exercised judiciously which leaves this Court with no option but to set aside and quash the same”
• The accused in the present case was charged with the kidnapping, rape and murder of a minor. He was therefore charged under Section 364 (kidnapping or abducting in order to murder), 302(punishment for murder) and 201(causing disappearance of evidence of the offence or giving false information to screen offender) of the IPC as well as section 3/4 and 11/12 of POCSO Act.
• The counsel for the accused pleaded that the accused was arrested even though he was not named in the FIR. Also, he suffered from the serious condition of kidney stones which made him need special medical attention which was not possible in jail.
• The counsel for the State argued that though the accused was suffering from kidney stones, the report from the Jail superintendent clearly stated that he was receiving medical attention in the jail itself. Also, the accused lives next door to the victim and if he is released on bail he could threaten the witnesses.
• Another ground raised by the State was that the provision of Section 29 of POCSO (presumption of the guilt of the accused until proven otherwise) was not taken into consideration by the lower court while granting bail.
• On hearing both the counsels, the Hon’ble HC observed-
• “In light of the serious charges against the accused and the materials on record, it appears that the learned Special Court (POCSO) could not have released the accused on such grounds even while exercising its discretionary power since there is no extraordinary circumstances which would endanger the life of the accused if bail is withheld, in as much as, the jail authorities are duty bound to ensure that proper medical facilities are awarded to the inmates”.
• The Court further held that “in bail jurisprudence the concept of granting bail on humanitarian grounds is not so prevalent and the same is not legally tenable which also renders the impugned order passed on this account to fail the scrutiny of law”.

And now, for our question on the above topic–

What section of the POCSO Act creates an exception to the general rule of burden of proof?