Mumbai: The Bombay High Court in an April 8 order observed that the presumption of guilt against a person accused of certain sexual offences under the Pocso (Protection of Children from Sexual Offences) Act of 2012 is not absolute. It granted bail to a hairstylist who was behind bars since June 2023 for allegedly molesting a three-year-old.
Justice Milind Jadhav, sitting singly to decide bail matters, said such presumption would come into play only when the prosecution is able to bring on record facts that would form its foundation.
“Otherwise, all that the prosecution would be required to do is to raise some allegation against the accused and to claim that the case projected by it is true,” said the Judge, adding that the court has to be “on guard to see that the application of presumption without adverting to the essential facts shall not lead to injustice.”
“The presumption under Section 29 of the Pocso Act is not absolute,” the HC said in its bail order to the accused.
The section establishes a legal presumption of guilt for individuals prosecuted under sections 3, 5, 7, and 9 of the Act, thus placing the burden on the accused to prove innocence. His lawyer, Aniket Nikam, said the medico-legal report left the final opinion ‘blank’ and stated that the FIR was due to a “misunderstanding.” Prosecutor Rajeshree Newton and advocate Vishwatej Jadhav for the complainant opposed his bail plea.
The FIR against the accused, filed by the child’s mother, said he used to reside with them in Mumbai for a few years and would babysit the child. The mother, who initially suspected a sexual assault, later redacted her statement, saying her daughter fell and scratched herself.
The HC said his bail plea, in the “totality of preceding circumstances,” deserved consideration. The HC invoked a 2019 Supreme Court judgment which, after analysing section 29 on presumption, said it “does not mean that the prosecution version has to be accepted as gospel truth in every case.”