In a recent ruling, the Delhi High Court granted anticipatory bail to a father accused of committing aggravated penetrative sexual assault on his 17-year-old daughter, underscoring that the presumption of guilt under the Protection of Children from Sexual Offences Act (POCSO Act) is not absolute and can be contested.
Justice Amit Mahajan highlighted that while Section 29 of the POCSO Act presumes the guilt of the accused, this presumption does not compel the court to uncritically accept the prosecution’s narrative. “The statutory presumption does not bind the Courts to accept the prosecution’s version as the gospel truth, and discretion in granting bail must be exercised based on the facts of each case,” stated the ruling from May 20.
Section 29 mandates that when someone is prosecuted for offences like penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act, the court shall presume guilt unless proven otherwise. However, Justice Mahajan emphasized that this presumption is subject to the court’s discretion, especially when considering bail.
The case involved a father’s plea for anticipatory bail after being charged under Sections 354, 354B, and 506(II) of the Indian Penal Code (IPC) and Section 10 of the POCSO Act. The Court scrutinized the prosecution’s duty to substantiate their claims with evidence that could justify the presumption of guilt.
“It is the prosecution’s duty to establish a factual foundation for the presumption to operate. Pre-arrest bail should not be granted routinely but must be considered carefully, acknowledging the potential humiliation and disgrace associated with an arrest,” the Court observed.
Justice Mahajan further noted that the prosecutrix’s testimony, if credible, can be sufficient for conviction without requiring corroboration. However, in this instance, the Court pointed out significant delays in filing the FIR and acknowledged the contentious relationship between the victim’s parents, who had lodged multiple complaints against each other.
“The child’s statement must be scrutinized with care, considering children’s susceptibility to influence and the potential for manipulation by one parent in contentious marital situations. Corroborative evidence and surrounding circumstances are crucial in such cases,” the Court noted.
The Court also observed that there was no indication that the accused posed a flight risk or would tamper with evidence. Any concerns could be mitigated with appropriate bail conditions, the Court added.
Consequently, anticipatory bail was granted to the accused father. The legal team for the accused included Advocates Jaideep Malik and Siddharth Soni, while Additional Public Prosecutor Pradeep Gahalot represented the State. Advocates Gayatri Nandwasi and Mudita Sharda appeared for the complainant.
