In a latest, landmark and laudable judgment titled Justin @ Renjith vs Union of India and 3 others in WP (C) No. 15564 of 2017 (U), the Kerala High Court has upheld the constitutional validity of Sections 29 and 30 of the Protection of Children from Sexual Offences Act (POCSO Act) which creates a reverse burden of proof on the accused. A single Bench of Justice Sunil Thomas rejected the arguments that these provisions violated fundamental rights under Articles 14, 20(3) and 21 of the Constitution of India. Very rightly so!

Truly speaking, the Court noted that statutes imposing limited burden on the accused to establish certain facts which are specifically within his knowledge are not rare in Indian Criminal Law. It further held that such provisions cannot be held to be unconstitutional due to the fact that they reverse the burden of proof from the prosecution top the accused if they are justifiable on the ground of predominant public interest. Absolutely right!

To start with, it is first and foremost observed in para 1 that:
Petitioner in W.P(C) is the accused in S.C.No.590 of 2016 of the Additional Sessions Court-I, Thrissur. He faces prosecution for offences punishable under sections 3(a), 5(b), 5(i), 5(m), 5(o), 5(u), 4, 5 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short, POCSO Act), section 23 of Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 201 of Indian Penal Code.

While laying the background, it is then narrated in para 2 that:
The crux of the prosecution allegation was that the petitioner being the caretaker of an orphanage, sexually assaulted three inmates of the orphanage. On the basis of the information laid, Crime No.689 of 2015 was registered by the Koratty Police. After investigation, final report was laid. According to the petitioner, he is absolutely innocent of the crime, that a close relative of the victim had assaulted them and he has been wrongly roped in.

Petitioner challenges his prosecution, mainly on the ground that sections 29 and 30 of the POCSO Act are unconstitutional, infringes his valuable right of defence and violative of Articles 14, 19, 20(3) and Article 21 of the Constitution of India. He prayed for striking down sections 29 and 30 of the POCSO Act as arbitrary and infringing Constitutional provisions.

To put things in perspective, it is then brought out in para 3 that:
In Crl.M.C.No.3104 of 2018, petitioner is the sole accused in S.C.No.1097 of 2017 pending before the Additional District Court (POCSO Court), Ernakulam, for offences punishable under sections 9(e) and 10 of POCSO Act, 2012. The petitioner is a Physiotherapist by profession. The prosecution allegation was that, on 20.06.2016 at about 11.30 a.m, while the first respondent/victim was undergoing physiotherapy in the clinic of the petitioner, the accused made the victim to touch his private part, over his dress. She laid the complaint on 14.11.2016, pursuant to which FIR No.1089 of 2016 was registered by Infopark Police. After investigation, final report was laid and the petitioner is facing prosecution.

Truth be told, it is very rightly remarked in para 69 that:
In the above cases, various High Courts, except the High Court of Bombay in Yogesh Arjun Maral's case (supra) which has expressed a different view, have consistently held that, though the presumption under section 29 of the POCSO Act was a rebuttable presumption, it does not absolve the prosecution of its duty to establish the foundational facts. None of the above courts was of the view that the presumptions under sections 29 and 30 of the POCSO Act violate the Fundamental Rights of the accused.

Quite significantly, it is then rightly observed in para 70 that:
Evaluation of the above judicial pronouncements lead to the conclusion that, statutory provisions which exclude mens rea, or those offences which impose strict liability are not uncommon and that by itself does not make such statutory provisions unconstitutional. Further, Statutes imposing limited burden on the accused to establish certain facts which are specifically within his knowledge, is neither rare in Indian Criminal Law and nor do they, by itself make such statutory provisions unconstitutional.

However, the statutory burden on accused should only be partial and should not thereby shift the primary duty of prosecution to establish the foundational facts constituting the case, to the accused. Such a provision should also be justifiable on the ground of predominant public interest. Hence, sections 29 and 30 of the POCSO Act, do not offend Articles 14 and 19 of the Constitution of India. They do not in any way violate the Constitutional guarantee, and hence not ultravires to the Constitution.

It is quite remarkable that it is then mentioned in para 71 that:
It is stated that Art.21 will be infringed if the right to life or liberty of a person is taken away, otherwise than by due process of law. It has been judicially affirmed that Article 21 affords protection not only against executive action, but also against legislations which deprive a person of his life and personal liberty otherwise than by due process of law.

When a statutory provision is challenged alleging violation under Art.21 of Constitution of India, State is bound to establish that the statutory procedure for depriving the person of his life and personal liberty is fair, just and reasonable. The main contention of the petitioners based on the alleged violation of Articles 20(3) and 21 of the Constitution of India on the ground that the presumption under the POCSO Act imposes a burden on the accused to expose himself to cross examination which amounts to testimonial compulsion and that, it amounts to breach of his right to silence, and that the burden of proof is heavily tilted against him has to be considered in the light of the law laid down by the Supreme Court in Kathi Kalu Oghad's case (supra).

The larger Bench held that the bar under Art.20(3) of the Constitution will arise only if the accused is compelled to give evidence. To bring such evidence within the mischief of Art.20(3), it must be shown that accused was under a compulsion to give evidence and that the evidence had a material bearing on the criminality of the maker. Supreme Court explained that, compulsion in the context must mean duress. The law as explained by the Larger Bench holds the field even now.

As a corollary, it is then laid down in para 72 that:
Hence the presumptions under sections 29 and 30 of the POCSO Act have to be examined on the anvil of tests laid down in Kathi Kalu Oghad's case (supra). While considering similar statutory provisions, Supreme Court, in Veeraswami's case, Ramachandra Kaidalwar's case, Noor Agas case, Kumar Export's case and Abdul Rashid Ibrahim's case has consistently held that the presumptions considered therein, which are similar to sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the foundational facts.

This duty is always on the prosecution and never shifts to the accused. POCSO Act is also not different. Parliament is competent to place burden on certain aspects on the accused, especially those which are within his exclusive knowledge. It is justified on the ground that, prosecution cannot, in the very nature of things be expected to know the affairs of the accused. This is specifically so in the case of sexual offences, where there may not be any eye witness to the incident. Even the burden on accused is also a partial one and is justifiable on larger public interest.

Be it noted, it is then observed in para 73 that, In Noor Aga's case (supra) it was held that, presumption of innocence is a human right and cannot per se be equated with the Fundamental Right under Art.21 of the Constitution of India. It was held that, subject to the establishment of foundational facts and burden of proof to a certain extent can be placed on the accused.

However, Supreme Court in various decisions referred above has held that, provisions imposing reverse burden 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. Hence, prosecution has to establish a prima facie case beyond reasonable doubt. Only when the foundational facts are established by the prosecution, the accused will be under an obligation to rebut the presumption that arise, that too, by adducing evidence with standard of proof of preponderance of probability. The insistence on establishment of foundational facts by prosecution acts as a safety guard against misapplication of statutory presumptions.

What's more, it is then also observed in para 74 that:
Foundational facts in a POCSO case include the proof that the victim is a child, that alleged incident has taken place, that the accused has committed the offence and whenever physical injury is caused, to establish it with supporting medical evidence. If the foundational facts of the prosecution case is laid by the prosecution by leading legally admissible evidence, the duty of the accused is to rebut it, by establishing from the evidence on record that he has not committed the offence.

This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or in the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out the peculiar features of the particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour, or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. Accused may reach that end by discrediting and demolishing prosecution witnesses by effective cross examination.

Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial; except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption.

It would be imperative to mention that it is then laid down in para 75 that:
In POCSO cases, considering the gravity of sentence and the stringency of the provisions, an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence, especially, when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence-oral, documentary or medical.

Needless to say, there is not even a scintilla of doubt that it is then observed in para 76 that:
Legally, the duty of the accused to rebut the presumption arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the sale of preponderance of probability. Once the burden to rebut the presumption is discharged by the accused through effective cross examination or by adducing defence evidence or by the accused himself tendering oral evidence, what remains is the appreciation of the evidence let in.

Though, it may appear that in the light of presumptions, the burden of proof oscillate between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial. Once the recording of prosecution evidence starts, the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross examination and additionally to elicit facts to rebut the statutory presumptions that may arise from the evidence of prosecution witnesses.

Practically, the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumptions arise, with the commencement of trial, progresses forward along with the trial and establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are co-extensive.

In totality, it is then observed in the last para 77 that:
The discussion of above shows that, with the inbuilt safeguards in the Act, the limited presumption do not upset the basic features of criminal law. Tendering of the oral evidence by accused is not mandatory or essential. To that extent, the apprehension of the petitioners that, sections 29 and 30 of POCSO Act violate Art.20(3) of the Constitution is misplaced. In the result,, sections 29 and 30 of the POCSO Act is held to be Constitutional and they do not violate the Fundamental Rights, nor are they contrary to the basic criminal Principles. W.P(C) and Crl.M.C fails and are dismissed.

In essence, the bottomline of this significant ruling is that Kerala High Court aptly and appropriately upholds the constitutional validity of Sections 29 and 30 of the Protection of Children from Sexual Offences Act (POCSO Act) which creates a reverse burden of proof on the accused. It has settled once again all the debate and discussion on this. There can be no denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh