Law Web: Whether the presumption of culpable intent U/S 29 of the POCSO Act, 2012 is attracted against the accused at the stage of bail?

Section 29 of the POCSO Act, 2012 creates a presumption

of culpable intent against the accused person. The provision

cannot be read to mean that the accused shall be presumed to

be guilty at the lodgement of the F.I.R. or criminal complaint

till proven innocent at the trial. The presumption of innocence

which is a fundamental tenet of criminal jurisprudence cannot

be turned on its head by a faulty interpretation of the provision.

The prosecution has to establish primary facts after attaining

the required standards of evidence to trigger the presumption

of culpable intent. {Para 67}

IX. b. Conclusions : Sections 29 and 30 of POCSO

Act & bails under the POCSO Act:

94. The consideration of presumption of culpable intent under

Sections 29 and 30 of the POCSO Act and as contemplated in

Rajballav (supra) at the stage of bail shall be governed by the

principles of evidential law as regard presumptions and the

holdings in Tofan Singh (supra), Joy V.S. (supra), Navin

Dhaniram Baraiye (supra), Dharmander Singh (supra) and

Sahid Hossain Biswas (supra) and shall be made in the

following manner:

1. Presumption of culpable intent under Section 29 of the

POCSO Act, 2012 will be attracted only in the manner and

stage discussed earlier in the judgement.

2. Presumption of culpable intent of the accused under

Sections 29 of the POCSO Act, 2012 shall not apply at the

stage of pretrial bails.

ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55026 of 2021

Monish Vs State Of U.P. And 3 Other

Citation No. - 2023:AHC:32270

Author: Hon'ble Ajay Bhanot,J.

Dated: 09.02.2023.

1. The judgement is being structured in the following

conceptual framework to facilitate the discussion:

I Introduction

II Submissions of learned counsels

III Issues arising for consideration

IV Statutory Schemes

V Section 94 of the JJ Act : Case Laws

VI The Two Presumptions:

a. Presumption of correctness of age related

documents u/s 94 of JJ Act, 2015

b. Presumption u/s 29 of POCSO Act

VII Norms of fair trial and presumptions under Section 94

of the JJ Act and Section 29 of POCSO Act &

applicability of the said Act to determine the age of

the victim

VIII Right of Bail:

a. Constitutional perspectives

b. Parameters of bail under the POCSO Act

IX Bails under POCSO Act : Conclusions

a Section 94 of JJ Act, 2015 & bails under

the POCSO Act

b. Sections 29 and 30 of POCSO Act &

bails under POCSO Act

X Order on bail application

I. Introduction:

2. The prosecution case is briefly this. The victim is a minor.

The applicant committed inappropriate sexual acts with her.

The applicant is a major.

3. Shri S. P. Tiwari, learned counsel for the applicant has

assailed the age of the victim as shown in the prosecution case

and has made these submissions:

(i). A false date of birth was got recorded in the school

registers by the parents of the victim to give her an

advantage in life.

(ii). Various documents like Pariwar Register and Aadhar

card which reflect her true age and contradict the

prosecution case have not been produced.

(iii). The pathological report reflects that the victim is 17

years of age.

(iv). The victim is in fact a major. However, no medical

examination to determine her age as per the latest

scientific criteria and medical protocol was got done by

expert doctors as it would falsify the prosecution case.

(v). Inconsistencies in the age of the victim as stated in

the F.I.R., the statement of the victim under Section 161

Cr.P.C., Section 164 Cr.P.C., school certificate and the

age in the pathological report discredit the prosecution

case regarding the victim’s minority.

4. In Ashish Haldhar Vs. State of UP (Criminal Misc. Bail

Application No. 10907 of 2022), it is contended by Shri

Safiullah, learned counsel for the applicant that the age of the

victim as per the radiological/medical report is 18 years.

However, the school certificate records her age 13 years 06

months and 27 days. The victim in her statements under

Sections 161 Cr.P.C. and Section 164 Cr.P.C. has asserted that

she is 18 years of age. The F.I.R. as well as the statement of the

first informant depict the age of the victim as 14 years.

5. Similar discrepancies in respect of the age of the victim are

exist in other connected bail applications as well.

6. Shri Rishi Chaddha, learned Additional Government

Advocate for the State contends that Section 94 of the Juvenile

Justice (Care and Protection of Children) Act, 20151

contemplates that the age depicted in the documents

enumerated therein is conclusive and the same cannot be put to

challenge in bail proceedings. Further, the offence is disclosed

in the F.I.R. which alone is sufficient to trigger the

presumption of guilt under Section 29 of the Protection of

Children from Sexual Offences Act, 20122.

7. A number of members of the Bar submit that these two

larger questions of law crop up regularly in bail applications

under the POCSO Act, 2012. The issue needs to be decided in

order to end the ambiguity in law.

8. The same questions of law arise in all the companion bail

applications.

9. At this stage, the Court requested the members of the Bar to

1 (hereinafter referred to as the “JJ Act, 2015”

2 (hereinafter referred to as the “POCSO Act, 2012)

assist the Court on the questions of law.

10. Apart from the counsels for the applicants, Shri Nazrul

Islam Jafri, learned Senior Counsel assisted by Ms. Nasira

Adil; Shri Vinay Saran, learned Senior Counsel assisted by

Shri Saumitra Dwivedi, learned counsel; Shri Shwetashwa

Agrawal, learned counsel; Shri Rajiv Lochan Shukla, learned

counsel and Ms. Gunjan Jadwani, learned counsel kindly

volunteered to assist the Court.

11. On behalf of the State Shri Rishi Chaddha, learned

Additional Government Advocate for the State has made his

submissions.

II. Submissions on behalf of learned counsel for the

applicants and learned members of the Bar:

12. Learned counsel for the applicant and other members of the

Bar have contended that:

(i). Age of a victim has to be factored in while considering a

bail application under POCSO Act offences.

(ii). The accused can challenge the age of a victim in bail

proceedings.

(iii). Attention is called to the liberal interpretation of the

enquiry under Section 94 of the JJ Act, 2015 by authorities in

point.

(iv). The presumptions under Section 94 of the JJ Act, 2015

and Section 29 of the POCSO Act, 2012 can not prejudice the

rights of an accused at the stage of bail.

(v). A large number of cases under the POCSO Act relate to

runaway couples, and arise from family opposition to such

relationships. In bail application excluding evidence or limiting

the challenge to the age of the victim which is often on the

borderline of majority and at times false, would result in

miscarriage of justice for the accused.

Submissions on behalf of the State by learned AGA:

(i). POCSO Act is a special Act where the legislature has made

stringent provisions to protect the interests of victims who are

minors.

(ii). Section 94 of the JJ Act, 2015 shall be strictly interpreted

and applied at the bail stage to implement the intent of the

legislature.

(iii). The presumption of Section 29 of the POCSO Act, 2012

is triggered at the lodgement of the F.I.R. otherwise its purpose

will be defeated.

(iv). The legislative intent was clearly to restrict the right of

bail considering the gravity of the offences.

III. Issues arising for consideration:

13. Following questions of law thus arise for consideration in

the bail application and the other companion bail applications:

I. Whether at the stage of bail the age of the victim will be

determined in accordance with Section 94 of the JJ Act, 2015?

If not what is the manner of assessing the age of a victim in a

bail application under the POCSO Act when a challenge is laid

to it by an accused?

II. Whether the presumption of culpable intent under Section

29 of the POCSO Act, 2012 is attracted against the accused at

the stage of bail?

IV. Statutory Schemes:

14. The determination of age of a child victim under the

POCSO Act has to be made in accordance with the procedure

for determination of age contemplated in Section 94 of the JJ

Act, 2015 read with Rule 54 (18) (iv) of the Juvenile Justice

(Care and Protection of Children) Model Rules, 20163. The

provisions state thus:

“94. Presumption and determination of age. (1) Where, it is obvious to the

Committee or the Board, based on the appearance of the person brought before it

under any of the provisions of this Act (other than for the purpose of giving

evidence) that the said person is a child, the Committee or the Board shall record

such observation stating the age of the child as nearly as may be and proceed with

the inquiry under section 14 or section 36, as the case may be, without waiting for

further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt

regarding whether the person brought before it is a child or not, the Committee or

the Board, as the case may be, shall undertake the process of age determination,

by seeking evidence by obtaining—

(i) the date of birth certificate from the school, or the matriculation or

equivalent certificate from the concerned examination Board, if available;

and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a

panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined

by an ossification test or any other latest medical age determination test

conducted on the orders of the Committee or the Board:

3 (hereinafter referred to as the “JJ Rules, 2016”)

Provided such age determination test conducted on the order of the Committee or

the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so

brought before it shall, for the purpose of this Act, be deemed to be the true age of

that person.”

Rule 54 (18) (iv) of the J.J. Rules, 2016:

“54. Procedure in cases of offences against children.- (18) (iv) For the age

determination of the victim, in relation to offences against children under the Act,

the same procedures mandated for the Board and the Committee under section 94

of the Act to be followed.”

15. The procedure for determination of age of a child is

provided in Section 34 of the POCSO Act, 2012. The

provision is being extracted hereinunder:

“34. Procedure in case of commission of offence by child and determination of

age by Special Court. (1) Where any offence under this Act is committed by a

child, such child shall be dealt with under the provisions of 1[the Juvenile Justice

(Care and Protection of Children) Act, 2015 (2 of 2016)].

(2) If any question arises in any proceeding before the Special Court whether a

person is a child or not, such question shall be determined by the Special Court

after satisfying itself about the age of such person and it shall record in writing its

reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by

any subsequent proof that the age of a personas determined by it under sub-section

(2) was not the correct age of that person.”

16. Section 49 of Juvenile Justice (Care and Protection of

Children) Act, 20004 read with Rule 12(3) of the Juvenile

Justice (Care and Protection of Children) Rules, 20075 are

reproduced below:

“49. Presumption and determination of age.—

(1). Where it appears to a competent authority that person brought before it

under any of the provisions of this Act (otherwise than for the purpose of

giving evidence) is a juvenile or the child, the competent authority shall

make due inquiry so as to the age of that person and for that purpose shall

take such evidence as may be necessary (but not an affidavit) and shall

record a finding whether the person is a juvenile or the child or not, stating

his age as nearly as may be.

4 (hereinafter referred to as the “JJ Act, 2000”)

5 (hereinafter referred to as the “JJ Rules, 2007”)

(2). No order of a competent authority shall be deemed to have become

invalid merely by any subsequent proof that the person in respect of whom

the order has been made is not a juvenile or the child, and the age recorded

by the competent authority to be the age of person so brought before it, shall

for the purpose of this Act, be deemed to be the true age of that person.”

Rule 12(3) of JJ Rules, 2007:

“12. Procedure to be followed in determination of Age: (3) In every case

concerning a child or juvenile in conflict with law, the age determination inquiry

shall be conducted by the court or the Board or, as the case may be, the Committee

by seeking evidence by obtaining—

(a) (i) the matriculation or equivalent certificates, if available; and in the absence

whereof;

(ii) the date of birth certificate from the school (other than a play school) first

attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a

panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the

medical opinion will be sought from a duly constituted Medical Board, which

will declare the age of the juvenile or child. In case exact assessment of the age

cannot be done, the Court or the Board or, as the case may be, the Committee,

for the reasons to be recorded by them, may, if considered necessary, give

benefit to the child or juvenile by considering his/her age on lower side within

the margin of one year.

and, while passing orders in such case shall, after taking into consideration such

evidence as may be available, or the medical opinion, as the case may be, record a

finding in respect of his age and either of the evidence specified in any of the

clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive

proof of the age as regards such child or the juvenile in conflict with law.”

V. Section 94 of JJ Act : Case Laws:

17. Organic development of legal discourse is a salient feature

of statutory enactments and judicial precedents dealing with

juveniles in conflict with law and child victims of crime. JJ

Act, 2000 read with JJ Rules, 2007 which preceded the current

enactment will aid the understanding of evolution of law, and

assist the interpretation of the extant statutes.

18. While interpreting the scope and purpose of Section 32 of

the Juvenile Justice Act, 1986, a provision in pari materia with

Section 49 of the JJ Act, 2000, the Supreme Court in Bhola

Bhagat v. State of Bihar6 observed thus:

“18. ..when a plea is raised on behalf of an accused that he was a "child"

within the meaning of the definition of the expression under the Act, it

becomes obligatory for the court, in case it entertains any doubt about

the age as claimed by the accused, to hold an inquiry itself for

determination of the question of age of the accused or cause an enquiry

to be held and seek a report regarding the same, if necessary, by asking

the parties to lead evidence in that regard. Keeping in view the beneficial

nature of the socially oriented legislation, it is an obligation of the court

where such a plea is raised to examine that plea with care and it cannot fold

its hands and without returning a positive finding regarding that plea, deny

the benefit of the provisions of an accused. The court must hold an enquiry

and return a finding regarding the age, one way or the other…”

(emphasis supplied)

19. Jitendra Ram v. State of Jharkhand7 clarified that an

unentitled person cannot be dealt with leniently only on the

plea of delinquency advanced by the accused. The issue of

juvenility according to Jitendra Ram (supra) had to be

judged in the facts and circumstances of each case on merits.

20. Rule 22 of the Jharkhand Juvenile Justice (Care and

Protection of Children) Rules, 2003 which is in pari materia

with Rule 12 of the JJ Rules, 2007, was in issue in Babloo

Pasi v. State of Jharkhand8. The Supreme Court in Babloo

Pasi (supra) declined to lay down a universal formula for age

determination, and instead reiterated the need to judge every

case on the basis of materials and evidences before the Court

by holding as under:

“22. It is well settled that it is neither feasible nor desirable to lay down

an abstract formula to determine the age of a person. The date of birth is

6 (1997) 8 SCC 720

7 (2006) 9 SCC 428

8 (2008) 13 SCC 133

to be determined on the basis of material on record and on appreciation of

evidence adduced by the parties. The Medical evidence as to the age of a

person, though a very useful guiding factor, is not conclusive and has to

be considered along with other cogent evidence.”

(emphasis supplied)

21. Evidentiary value of documents like date of birth entry in

school registers and manner of proving medical board opinions

were appraised in the following manner in Babloo Pasi

(supra):

“27. ...Section 35 of the said Act lays down that an entry in any public or

other official book, register, record, stating a fact in issue or relevant fact

made by a public servant in the discharge of his official duty especially

enjoined by the law of the country is itself a relevant fact.

28. It is trite that to render a document admissible under Section 35, three

conditions have to be satisfied, namely: (i) entry that is relied on must be

one in a public or other official book, register or record; (ii) it must be an

entry stating a fact in issue or a relevant fact, and (iii) it must be made by a

public servant in discharge of his official duties, or in performance of his

duty especially enjoined by law. An entry relating to date of birth made in

the school register is relevant and admissible under Section 35 of the Act

but the entry regarding the age of a person in a school register is of not

much evidentiary value to prove the age of the person in the absence of

the material on which the age was recorded.

(emphasis supplied)

29.Therefore, on facts at hand, in the absence of evidence to show on what

material the entry in the Voters List in the name of the accused was made, a

mere production of a copy of the Voters List, though a public document, in

terms of Section 35, was not sufficient to prove the age of the accused.

Similarly, though a reference to the report of the Medical Board,

showing the age of the accused as 17-18 years, has been made but there

is no indication in the order whether the Board had summoned any of

the members of the Medical Board and recorded their statement. It also

appears that the physical appearance of the accused, has weighed with the

Board in coming to the afore-noted conclusion, which again may not be a

decisive factor to determine the age of a delinquent.”

(emphasis supplied)

22. The issue of age determination under the scheme of JJ Act,

2000 read with JJ Rules, 2007 was examined in Jabar Singh

v. Dinesh and another9 in light of Section 35 of the Evidence

Act by stating forth:

“27… The entry of date of birth of Respondent No.1 in the admission form,

the school records and transfer certificates did not satisfy the conditions laid

down in Section 35 of the Evidence Act inasmuch as the entry was not in

any public or official register and was not made either by a public servant in

the discharge of his official duty or by any person in performance of a duty

specially enjoined by the law of the country and, therefore, the entry was not

relevant under Section 35 of the Evidence Act for the purpose of

determining the age of Respondent No.1 at the time of commission of the

alleged offence.”

23. Jabar Singh (supra) also reprised the law laid down in

Jyoti Prakash Rai v. State of Bihar10 and Ravinder Singh

Gorkhi v. State of U.P.11 that age has to be determined under

the said statutes in the facts and circumstances of each case

and upon evaluation of evidence before the Court.

24. In Jitendra Singh (supra) the Supreme Court reiterated its

earlier decisions in Gopinath Ghosh v. State of West

Bengal12, Bhoop Ram v. State of U.P.13, Bhola Bhagat v.

State of Bihar14, and Hari Ram v. State of Rajasthan15 and

did not limit the scope of an inquiry into age determination

after a prima facie case for such inquiry was made out by

stating:

“9.The burden of making out a prima facie case for directing an enquiry has

been in our opinion discharged in the instant case inasmuch as the appellant

has filed along with the application a copy of the school leaving certificate

and the marksheet which mentions the date of birth of the appellant to be 24-

9 (2010) 3 SCC 757

10 (2008) 15 SCC 223

11 (2006) 5 SCC 584

12 1984 Supp SCC 228

13 (1989) 3 SCC 1

14 (1997) 8 SCC 720

15 (2009) 13 SCC 211

5-1988. The medical examination to which the High Court has referred in its

order granting bail to the appellant also suggests the age of the appellant

being 17 years on the date of the examination. These documents are

sufficient at this stage for directing an enquiry and verification of the facts.

10. We may all the same hasten to add that the material referred to above is

yet to be verified and its genuineness and credibility determined. There are

no doubt certain telltale circumstances that may raise a suspicion about the

genuineness of the documents relied upon by the appellant. For instance, the

deceased Asha Devi who was married to the appellant was according to Dr.

Ashok Kumar Shukla, Pathologist, District Hospital, Rae Bareilly aged 19

years at the time of her death. This would mean as though the appellant

husband was much younger to his wife which is not the usual practice in the

Indian context and may happen but infrequently. So also the fact that the

appellant obtained the school leaving certificate as late as on 17-11-2009 i.e.

after the conclusion of the trial and disposal of the first appeal by the High

Court, may call for a close scrutiny and examination of the relevant school

record to determine whether the same is free from any suspicion, fabrication

or manipulation. It is also alleged that the electoral rolls showed the age of

the accused to be around 20 years while the extract from the panchayat

11. All these aspects would call for close and careful scrutiny by the court

below while determining the age of the appellant. The date of birth of

appellant Jitendra Singh's siblings and his parents may also throw

considerable light upon these aspects and may have to be looked into for a

proper determination of the question. Suffice it to say while for the present

we consider it to be a case fit for directing an enquiry, that direction should

not be taken as an expression of any final opinion as regards the true and

correct age of the appellant which matter shall have to be independently

examined on the basis of the relevant material.”

25. Delineating the process of satisfaction to order an enquiry

into juvenility and the ambit of such an enquiry, the Supreme

Court in Abuzar Hossain alias Gulam Hossain v. State of

West Bengal16, set forth thus:

“39.2.For making a claim with regard to juvenility after conviction, the

claimant must produce some material which may prima facie satisfy the

court that an inquiry into the claim of juvenility is necessary. Initial burden

has to be discharged by the person who claims juvenility.

39.3 As to what materials would prima facie satisfy the court and/or

are sufficient for discharging the initial burden cannot be catalogued

nor can it be laid down as to what weight should be given to a specific

16 (2012) 10 SCC 489

piece of evidence which may be sufficient to raise presumption of

juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall

definitely be sufficient for prima facie satisfaction of the court about

the age of the delinquent necessitating further enquiry under Rule 12.

The statement recorded under Section 313 of the Code is too tentative and

may not by itself be sufficient ordinarily to justify or reject the claim of

juvenility. The credibility and/or acceptability of the documents like the

school leaving certificate or the voters’ list, etc. obtained after conviction

would depend on the facts and circumstances of each case and no hard and

fast rule can be prescribed that they must be prima facie accepted or

rejected. In Akbar Sheikh2 and Pawan8 these documents were not found

prima facie credible while in Jitendra Singh10 the documents viz., school

leaving certificate, marksheet and the medical report were treated

sufficient for directing an inquiry and verification of the appellant’s age. If

such documents prima facie inspire confidence of the court, the court may

act upon such documents for the purposes of Section 7A and order an

enquiry for determination of the age of the delinquent.

(emphasis supplied)

48. If one were to adopt a wooden approach, one could say nothing

short of a certificate, whether from the school or a municipal

authority would satisfy the court’s conscience, before directing an

enquiry. But, then directing an enquiry is not the same thing as

declaring the accused to be a juvenile. The standard of proof required

is different for both. In the former, the court simply records a prima

facie conclusion. In the latter the court makes a declaration on

evidence, that it scrutinises and accepts only if it is worthy of such

acceptance. The approach at the stage of directing the enquiry has of

necessity to be more liberal, lest, there is avoidable miscarriage of justice.

Suffice it to say that while affidavits may not be generally accepted as a

good enough basis for directing an enquiry, that they are not so accepted is

not a rule of law but a rule of prudence. The Court would, therefore, in

each case weigh the relevant factors, insist upon filing of better affidavits

if the need so arises, and even direct, any additional information

considered relevant including information regarding the age of the parents,

the age of siblings and the like, to be furnished before it decides on a case

to case basis whether or not an enquiry under Section 7A ought to be

conducted. It will eventually depend on how the court evaluates such

material for a prima facie conclusion that the Court may or may not direct

an enquiry.”

(emphasis supplied)

26. The Supreme Court in Mahadeo v. State of Maharasthra

and another17 applied Rule 12(3)(b) of JJ Rules, 2007 for

17 (2013) 14 SCC 637

determination of age of a victim and held:

“12. …..Under Rule 12 (3) (b), it is specifically provided that only in the

absence of alternative methods described under 12 (3) (a) (i) to (iii), the

medical opinion can be sought for. In the light of such a statutory rule

prevailing for ascertainment of the age of a juvenile, in our considered

opinion, the same yardstick can be rightly followed by the Courts for

the purpose of ascertaining the age of a victim as well.

(emphasis supplied)

13. In the light of our above reasoning, in the case on hand, there were

certificates issued by the school in which the prosecutrix did her Vth

standard and in the school leaving certificate issued by the said school

under Exhibit 54, the date of birth of the prosecutrix has been clearly noted

as 20.05.1990, and this document was also proved by PW-11. Apart from

the transfer certificate as well as the admission form maintained by the

primary school Latur, where the prosecutrix had her initial education, also

confirmed the date of birth as 20.5.1990. The reliance placed upon the said

evidence by the Courts below to arrive at the age of the prosecutrix to hold

that the prosecutrix was below 18 years of age at the time of the occurrence

was perfectly justified and we do not find any good grounds to interfere

with the same.”

27. The ratio in Mahadeo (supra) was followed in the State of

Madhya Pradesh v. Anoop Singh18.

28. However, while applying JJ Rules, 2007 to determine the

age of a victim, the Supreme Court in Jarnail Singh v. State

of Haryana19 took a strict view of the provisions and narrowed

the scope of the enquiry to determine the victim’s age by

holding:

“23.Even though Rule 12 is strictly applicable only to determine the age of

a child in conflict with law, we are of the view that the aforesaid statutory

provision should be the basis for determining age, even for a child who is a

victim of crime. For, in our view, there is hardly any difference in so far as

the issue of minority is concerned, between a child in conflict with law,

and a child who is a victim of crime. Therefore, in our considered opinion,

it would be just and appropriate to apply Rule 12 of the 2007 Rules, to

determine the age of the prosecutrix VW-PW6. The manner of determining

18 (2015) 7 SCC 773

19 (2013) 7 SCC 263

age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted

above. Under the aforesaid provision, the age of a child is ascertained, by

adopting the first available basis, out of a number of options postulated in

Rule 12(3). If, in the scheme of options under Rule 12(3), an option is

expressed in a preceding clause, it has overriding effect over an option

expressed in a subsequent clause. The highest rated option available,

would conclusively determine the age of a minor. In the scheme of Rule

12(3), matriculation (or equivalent) certificate of the concerned child, is

the highest rated option. In case, the said certificate is available, no other

evidence can be relied upon. Only in the absence of the said certificate,

Rule 12(3), envisages consideration of the date of birth entered, in the

school first attended by the child. In case such an entry of date of birth is

available, the date of birth depicted therein is liable to be treated as final

and conclusive, and no other material is to be relied upon. Only in the

absence of such entry, Rule 12(3) postulates reliance on a birth certificate

issued by a corporation or a municipal authority or a panchayat. Yet again,

if such a certificate is available, then no other material whatsoever is to be

taken into consideration, for determining the age of the child concerned, as

the said certificate would conclusively determine the age of the child. It is

only in the absence of any of the aforesaid, that Rule 12(3) postulates the

determination of age of the concerned child, on the basis of medical

opinion.”

29. An accused person could not access protection under JJ

Act, 2000, if the intent was only to cheat justice. Parag Bhati

(Juvenile) through Legal Guardian-Mother-Rajni Bhati v.

State of Uttar Pradesh and another20, cautioned that:

“34. It is no doubt true that if there is a clear and unambiguous case in

favour of the juvenile accused that he was a minor below the age of 18

years on the date of the incident and the documentary evidence at least

prima facie proves the same, he would be entitled for this special protection

under the Juvenile Justice Act. But when an accused commits a grave

and heinous offence and thereafter attempts to take statutory shelter

under the guise of being a minor, a casual or cavalier approach while

recording as to whether an accused is a juvenile or not cannot be

permitted as the courts are enjoined upon to perform their duties with

the object of protecting the confidence of common man in the

institution entrusted with the administration of justice.

(emphasis supplied)

35. The benefit of the principle of benevolent legislation attached to the JJ

Act would thus apply to only such cases wherein the accused is held to be a

juvenile on the basis of at least prima facie evidence regarding his minority

20 (2016) 12 SCC 744

as the benefit of the possibilities of two views in regard to the age of the

alleged accused who is involved in grave and serious offence which he

committed and gave effect to it in a well-planned manner reflecting his

maturity of mind rather than innocence indicating that his plea of juvenility

is more in the nature of a shield to dodge or dupe the arms of law, cannot be

allowed to come to his rescue.”

30. Relying on the ratio of Abuzar Hossain (supra), it was

held in Parag Bhati (supra), that contradictory evidence was

sufficient to cause an inquiry into the issue of age of the

accused :

“36. It is settled position of law that if the matriculation or equivalent

certificates are available and there is no other material to prove the

correctness, the date of birth mentioned in the matriculation certificate has to

be treated as a conclusive proof of the date of birth of the accused. However,

if there is any doubt or a contradictory stand is being taken by the

accused which raises a doubt on the correctness of the date of birth then

as laid down by this Court in Abuzar Hossain (supra), an enquiry for

determination of the age of the accused is permissible which has been

done in the present case.” (emphasis supplied)

31. A discordant view was taken by a two judge Bench of the

Supreme Court in Ashwani Kumar Saxena Vs. State of

M.P.21 which restricted the jurisdiction of the court and

prohibited a detailed enquiry into determination of age in view

of the provisions of JJ Act, 2000 read with JJ Rules, 2007.

32. However, the precedential value of Ashwani Kumar

Saxena (supra) has to be viewed in light of these facts. The

holdings of a three Judge Bench of the Supreme Court in

Abuzar Hussain alias Gulam Hossain Vs. State of West

Bengal22 was not referred to the Supreme Court in Ashwani

Kumar Saxena (supra). Jabar Singh (supra), a coordinate

Bench judgement continues to be good law. Finally an

21 (2012) 9 SCC 750

22 2012 (10) SCC 489

integrated view of the controversy was taken in Sanjeev

Kumar Gupta Vs. The State of Uttar Pradesh and

another23.

33. Sanjeev Kumar Gupta (supra) adopted a liberal approach

and widened the scope of an enquiry determining the age

consistent with the holding in Abuzar Hossain (supra), but

opposed to a more constricted enquiry as contemplated in

Ashwani Kumar Saxena (supra) or Jarnail Singh (supra)

on the following footing:

“15. The above decision in Abuzar Hossain alias Gulam Hossain (supra) was

rendered on 10 October 2012. Though the earlier decision in Ashwani

Kumar Saxena (supra) was not cited before the Court, it appears from the

above extract that the three judge Bench observed that the credibility and

acceptability of the documents, including the school leaving certificate,

would depend on the facts and circumstances of each case and no hard and

fast rule as such could be laid down. Concurring with the judgment of

Justice RM Lodha, Justice TS Thakur (as the learned Chief Justice then was)

observed that directing an inquiry is not the same thing as declaring the

accused to be a juvenile. In the former the Court simply records a prima

facie conclusion while in the latter a declaration is made on the basis of

evidence. Hence the approach at the stage of directing the inquiry has to

be more liberal.”

(emphasis supplied)

34. After extracting Section 94 of the JJ Act, 2015 in Sanjeev

Kumar Gupta (supra) discussed the distinctions between JJ

Act, 2015 and JJ Act, 2000 read with JJ Rules, 2007:

“17...Clause (i) of Section 94 (2) places the date of birth certificate from the

school and the matriculation or equivalent certificate from the concerned

examination board in the same category (namely (i) above). In the absence

thereof category (ii) provides for obtaining the birth certificate of the

corporation, municipal authority or panchayat. It is only in the absence of (i)

and (ii) that age determination by means of medical analysis is provided.

Section 94(2)(a)(i) indicates a significant change over the provisions which

were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of

2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was

23 (2019) 12 SCC 370

given precedence and it was only in the event of the certificate not being

available that the date of birth certificate from the school first attended,

could be obtained. In Section 94(2)(i) both the date of birth certificate from

the school as well as the matriculation or equivalent certificate are placed in

the same category.”

35. Similarly an enlarged scope of the age determination

enquiry under Section 94 of the JJ Act, 2015 was iterated by

the Supreme Court in Ram Vijay Singh v. State of Uttar

Pradesh24:

“16. Apart from the said fact, there is an application submitted by the

appellant himself for obtaining an Arms Licence prior to the date of the

incident. In such application, he has given his date of birth as 30.12.1961

which would make him of 21 years of age on the date of the incident i.e.

20.7.1982. The Court is not precluded from taking into consideration

any other relevant and trustworthy material to determine the age as all

the three eventualities mentioned in sub-section (2) of Section 94 of the

Act are either not available or are not found to be reliable and

trustworthy. Since there is a document signed by the appellant much before

the date of occurrence, therefore, we are of the opinion that the appellant

cannot be treated to be juvenile on the date of incident as he was more than

21 years of age as per his application submitted to obtain the Arms Licence.”

(emphasis supplied)

36. More recently the parameters of enquiry for determination

of age under the JJ Act, 2015 arose for consideration before the

Supreme Court in Rishipal Singh Solanki v. State of Uttar

Pradesh and others25.

37. Rishipal Singh Solanki (supra) first noticed the

contrasting features of the J.J.Act, 2015 and J.J. Rules, 2007:

“29. The difference in the procedure under the two enactments could be

discerned as under:

“29.1. As per JJ Act, 2015 in the absence of requisite documents as

mentioned in Sub-section (2) of Section 94(a) and (b), there is provision

for determination of the age by an ossification test or any other medical

24 Criminal Appeal No.175 of 2021

25 (2022) 8 SCC 602

age related test to be conducted on the orders of the Committee or the JJ

Board as per Section 94 of the said Act; whereas, under Rule 12 of the JJ

Rules, 2007, in the absence of relevant documents, a medical opinion had

to be sought from a duly constituted Medical Board which would declare

the age of the juvenile or child.

29.2. With regard to the documents to be provided as evidence, what was

provided under Rule 12 of the JJ Rules, 2007 has been provided under

sub- section 2 of section 94 of the JJ Act, 2015 as a substantive provision.

29.3. Under Section 49 of the JJ Act, 2000, where it appeared to a

competent authority that a person brought before it was a juvenile or a

child, then such authority could, after making an inquiry and taking such

evidence as was necessary, record a finding as to the juvenility of such

person and state the age of such person as nearly as may be. Sub-section

(2) of Section 49 stated that no order of a competent authority shall be

deemed to have become invalid merely by any subsequent proof that the

person in respect of whom the order had been made is not a juvenile and

the age recorded by the competent authority to be the age of person so

brought before it, for the purpose of the Act, be deemed to be the true age

of that person.

30. But, under Section 94 of the JJ Act, 2015, which also deals with

presumption and determination of age, the Committee or the JJ Board has

to record such observation stating the age of the child as nearly as may be

and proceed with the inquiry without waiting for further confirmation of the

age. It is only when the Committee or the JJ Board has reasonable grounds

for doubt regarding whether the person brought before it is a child or not, it

can undertake the process of age determination, by seeking evidence.

31. Sub-section (3) of Section 94 states that the age recorded by the

Committee or the JJ Board to be the age of the persons so brought before it

shall, for the purpose of the Act, be deemed to be the true age of that

person. Thus, there is a finality attached to the determination of the age

recorded and it is only in a case where reasonable grounds exist for doubt

as to whether the person brought before the Committee or the Board is a

child or not, that a process of age determination by seeking evidence has to

be undertaken.”

38. Thereafter, upon analysis of cases in point Rishipal Singh

(supra) thus sums up the law:

“33.2.3. When an application claiming juvenility is made under section 94 of

the JJ Act, 2015 before the JJ Board when the matter regarding the alleged

commission of offence is pending before a Court, then the procedure

contemplated under section 94 of the JJ Act, 2015 would apply. Under the

said provision if the JJ Board has reasonable grounds for doubt regarding

whether the person brought before it is a child or not, the Board shall

undertake the process of age determination by seeking evidence and the age

recorded by the JJ Board to be the age of the person so brought before it

shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that

person. Hence the degree of proof required in such a proceeding before the

JJ Board, when an application is filed seeking a claim of juvenility when the

trial is before the concerned criminal court, is higher than when an inquiry is

made by a court before which the case regarding the commission of the

offence is pending (vide section 9 of the JJ Act, 2015).

33.3. That when a claim for juvenility is raised, the burden is on the person

raising the claim to satisfy the Court to discharge the initial burden.

However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the

JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94

of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court.

On the basis of the aforesaid documents a presumption of juvenility may be

raised.

33.4. The said presumption is however not conclusive proof of the age of

juvenility and the same may be rebutted by contra evidence let in by the

opposite side.

33.5. That the procedure of an inquiry by a Court is not the same thing as

declaring the age of the person as a juvenile sought before the JJ Board

when the case is pending for trial before the concerned criminal court. In

case of an inquiry, the Court records a prima facie conclusion but when there

is a determination of age as per sub-section (2) of section 94 of 2015 Act, a

declaration is made on the basis of evidence. Also the age recorded by the JJ

Board shall be deemed to be the true age of the person brought before it.

Thus, the standard of proof in an inquiry is different from that required in a

proceeding where the determination and declaration of the age of a person

has to be made on the basis of evidence scrutinised and accepted only if

worthy of such acceptance.

33.6. That it is neither feasible nor desirable to lay down an abstract formula

to determine the age of a person. It has to be on the basis of the material on

record and on appreciation of evidence adduced by the parties in each case.

33.7. This Court has observed that a hyper-technical approach should not be

adopted when evidence is adduced on behalf of the accused in support of the

plea that he was a juvenile.

33.8. If two views are possible on the same evidence, the court should lean

in favour of holding the accused to be a juvenile in borderline cases. This is

in order to ensure that the benefit of the JJ Act, 2015 is made applicable to

the juvenile in conflict with law. At the same time, the Court should ensure

that the JJ Act, 2015 is not misused by persons to escape punishment after

having committed serious offences.

33.9. That when the determination of age is on the basis of evidence such as

school records, it is necessary that the same would have to be considered as

per Section 35 of the Indian Evidence Act, inasmuch as any public or official

document maintained in the discharge of official duty would have greater

credibility than private documents.

33.10. Any document which is in consonance with public documents, such

as matriculation certificate, could be accepted by the Court or the JJ Board

provided such public document is credible and authentic as per the

provisions of the Indian Evidence Act viz., section 35 and other provisions.

33.11. Ossification Test cannot be the sole criterion for age determination

and a mechanical view regarding the age of a person cannot be adopted

solely on the basis of medical opinion by radiological examination. Such

evidence is not conclusive evidence but only a very useful guiding factor to

be considered in the absence of documents mentioned in Section 94(2) of the

JJ Act, 2015.”

39. Social realities and absence of reliable age related

documents on many occasions were underlined in Mukarrab

and others v. State of Uttar Pradesh26.

“10. Age determination is essential to find out whether or not the person

claiming to be a child is below the cut-off age prescribed for application of

the Juvenile Justice Act. The issue of age determination is of utmost

importance as very few children subjected to the provisions of the Juvenile

Justice Act have a birth certificate. As juvenile in conflict with law usually

do not have any documentary evidence, age determination, cannot be easily

ascertained, specially in borderline cases. Medical examination leaves a

margin of about two years on either side even if ossification test of multiple

joints is conducted.

11. Time and again, the questions arise: How to determine age in the absence

of birth certificate? Should documentary evidence be preferred over medical

evidence? How to use the medical evidence? Is the standard of proof, a

proof beyond reasonable doubt or can the age be determined by

preponderance of evidence? Should the person whose age cannot be

determined exactly, be given the benefit of doubt and be treated as a child?

In the absence of a birth certificate issued soon after birth by the concerned

authority, determination of age becomes a very difficult task providing a lot

of discretion to the Judges to pick and choose evidence. In different cases,

different evidence has been used to determine the age of the accused.

22. A reading of the above decision in Darga Ram alias Gunga’s case shows

that courts need to be aware of the fact that age determination of the

concerned persons cannot be certainly ascertained in the absence of original

26 (2017) 2 SCC 210

and valid documentary proof and there would always lie a possibility that

the age of the concerned person may vary plus or minus two years. Even in

the presence of medical opinion, the Court showed a tilt towards the

juvenility of the accused. However, it is pertinent to note that such an

approach in Darga Ram alias Gunga’s case was taken in the specific facts

and circumstances of that particular case and any attempt of generalising the

said approach could not be justifiably entertained.”

40. Clearly the courts do not resist introduction of evidence

beyond the documents enumerated in Section 94 of the JJ Act,

2015 to arrive at the truth and to serve justice the facts and

circumstances of a case so require.

VI. The Two Presumptions:

a. Presumption of correctness of age related documents

under Section 94 of the JJ Act, 2015:

b. Presumptions under Section 29 of the POCSO Act, 2012:

41. The controversy has to seen from another perspective as

well. Section 94 of the J.J. Act, 2015 creates a hierarchy of

documents which corresponds to the degree of reliability. From

a bare reading, the provision envisages that where a document

higher in the said pecking order is available, the documents

lower in the statutory preference shall not be received in

evidence.

42. Such an embargo on receiving evidence is made on the foot

of the concept of presumption of facts. In the context of the JJ

Act, 2015, it means that when a document higher on the

preferential scale of Section 94 of the J.J. Act, 2015 is

produced, it is presumed to be correct and sufficient to

establish the age of the victim. Thus the need for any other

evidence is obviated and reception of further evidence is

proscribed.

43. The second presumption relevant to the current controversy

is engrafted in Sections 29 and 30 of POCSO Act, 2012. The

provision reads as under:

“29. Presumption as to certain offences: Where a person is

prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state. (1) In any prosecution

for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”

44. The concept of presumptions in evidential law is applied

by the legislature to dispense with the proof of certain facts.

The discussion will benefit from judicial precedents which

analyse the first principles of law of presumptions and its

applicability in the context of various statutes.

45. Noticing the presumptions with regard to the culpable

mental state of the accused in NDPS Act, the Supreme Court in

Noor Aga v. State of Punjab (2008) 16 SCC 417 emphatically protected the

norms on fair trial and the rights of an accused by holding:

“57. It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be a substitute for legal evidence.

58. Sections 35 and 54 of the Act, no doubt, raise presumptions with

regard to the culpable mental state on the part of the accused as also

place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable

doubt" but it is ‘preponderance of probability’ on the accused. If the

prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

(emphasis supplied)

59. With a view to bring within its purview the requirements of Section

54 of the Act, element of possession of the contraband was essential so as to

shift the burden on the accused. The provisions being exceptions to

the general rule, the generality thereof would continue to be operative,

namely, the element of possession will have to be proved beyond

reasonable doubt.

60. Whether the burden on the accused is a legal burden or an

evidentiary burden would depend on the statute in question. The

purport and object thereof must also be taken into consideration in

determining the said question. It must pass the test of doctrine of

proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself.” (emphasis supplied)

46. The judgement of Noor Aga (supra) was affirmed by the

majority view in the three Judge judgement rendered by the

Supreme Court in Tofan Singh Vs. State of Tamil Nadu. (2021) 4 SCC 1

47. The presumption of culpable mental state under Section 29

of POCSO Act, 2012 shall now be adverted to. The discussion

will commence with the brief observations made in State of

Bihar Vs. Rajballav Prasad alias Rajballav Prasad Yadav (2017) 2 SCC 178:

“22. Further, while making a general statement of law that the accused is innocent, till proved guilty, the provisions of Section 29 of the POCSO Act have not been taken into consideration, which reads follows:

“29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

48. The conditions precedent for applying the statutory

presumption of culpable intent against an accused were

enumerated after a scholarly foundation by Joymalya Bagchi,

J. in Sahid Hossain Biswas v. State of West Bengal 2017 SCC OnLine Cal 5023.:

“23. A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a prosecution under the POCSO Act an accused is to prove `the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved [see Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562, Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary.

(emphasis supplied)

24. Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, howsoever, patently absurd or inherently improbable it may be.” (emphasis supplied)

49. The time honoured and time tested rule of evidence that no

presumption is absolute, and every presumption is rebuttable

forms the basis of the judgement rendered by Manish Pitale, J.

in Navin Dhaniram Baraiye v. The State of Maharashtra 2018 SCC OnLine Bom 1281, while interpreting the scope of presumption of culpable intent under Section 29 of the POCSO Act :

“18. A perusal of the above quoted provision does show that it is for the accused to prove the contrary and in case he fails to do so, the presumption would operate against him leading to his conviction under the provisions of the POCSO Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the prosecution witnesses would have to be accepted as gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.

(emphasis supplied)

24. The above quoted views of the Courts elucidate the position of law insofar as presumption under Section 29 of the POCSO Act is concerned. It becomes clear that although the provision states that the Court shall presume that the accused has committed the offence for which he is charged under the POCSO Act, unless the contrary is proved, the presumption would operate only upon the prosecution first proving foundational facts against the accused, beyond reasonable doubt. Unless the prosecution is able to prove foundational facts in the context of the allegations made against the accused under the POCSO Act, the presumption under Section 29 of the said Act would not operate against the accused. Even if the prosecution establishes such facts and the presumption is raised

against the accused, he can rebut the same either by discrediting

prosecution witnesses through cross-examination demonstrating that

the prosecution case is improbable or absurd or the accused could lead evidence to prove his defence, in order to rebut the presumption. In either case, the accused is required to rebut the presumption on the

touchstone of preponderance of probability.”

(emphasis supplied)

50. The Kerala High Court in Joy V.S. v. State of Kerala 2019 SCC OnLine Ker 783, highlighted the limitations of the statutory presumption under

Section 29 of the POCSO Act, 2012 in the backdrop of

Rajballav Prasad (supra) by observing:

"10. This court is not oblivious to Section 29 of the Act which contains a legislative mandate that the court shall presume commission of the offences by the accused unless the contrary is proved. Section 29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is

proved. The court shall take into consideration the presumption

under Section 29 of the Act while dealing with an application for bail filed by a person who is accused of the aforesaid offences under the Act (See:

State of Bihar v. Rajvallav Prasad, (2017) 2 SCC 178 : AIR 2017 SC 630).

11. However, the statutory presumption under Section 29 of the Act

does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true. The courts must be on guard to see that the

application of the presumption, without adverting to essential facts,

shall not lead to any injustice. The presumption under Section 29 of the Act is not absolute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record materials which would render the prosecution version highly improbable, the presumption would get weakened. As held by the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention."

(emphasis supplied)

51. The following questions were framed by the Delhi High

Court while determining the scope of Section 29 of the

POCSO Act, 2012 and the stage of its applicability in

Dharmander Singh v. State (Govt. of NCT of Delhi) 2020 SCC OnLine Del 1267:

“41...iii. When and at what stage does the 'presumption of guilt' as

engrafted in section 29 get triggered ? and

iv. Does the presumption apply only at the stage of trial or does it also

apply when a bail plea is being considered ?

v. Does the applicability or rigour of section 29 depend on whether a bail

plea is being considered before or after charges have been framed ?”

52. Bhambhani, J. in Dharmander Singh (supra), summed

up the law in the following manner:

“50. Drawing from the verdict of the Supreme Court and the views taken by

the various High Courts in the above cases, in essence, the position is that

to rebut a presumption, first, the presumptive proposition must itself be

formulated based on relevant and credible material ; and second, the

accused must know what presumption he has to rebut. It is not enough to

say that the accused has been implicated by the police on charges

under sections 3, 5, 7, and/or 9 of the POSCO Act. At the very least, the

charges should have been framed by court against the accused under one or

more of those sections for the presumption to arise; and mere implication

by the police is not enough.

51. Only when the trial court frames charges, does it form a prima facie

opinion that there is a case for the accused to answer and defend. At the

stage of framing charges, the trial court may decide not to frame

charges against an accused under any of the sections mentioned

in section 29 but under some other provision; or, it may not frame

charges against all accused persons under those sections. So, the

presumption under section 29 cannot arise before charges are framed.

(emphasis supplied)

52. If the presumption of guilt is taken to arise even before charges are framed, say when a court is considering a bail application, then the court will have to afford to the accused an opportunity to prove that he has not committed the offence; which would require the court to conduct a mini-trial, even when it is only considering a bail plea. What then would remain to be done during the trial itself ? In the opinion of this court it is not the purport of section 29 that a mini-trial should be conducted at the stage of deciding a bail application. No such concept is known to law. Requiring production and analysis of evidence to form an opinion on the merits of the allegations; and to express a view on such evidence, is certainly not within the remit of a court considering a bail plea.

(emphasis supplied)

53. Reprising the fundamental tenets of criminal jurisprudence

and processual landmarks in constitutional law, Dharmander

Singh (supra) explained the ratio of Rajballav Prasad

(supra) by holding:

“66. That section 29 has been engrafted in the POCSO Act does not mean that the presumption of innocence, which is a foundational tenet of

criminal jurisprudence, is to be thrown to the winds. If section 29 is so

interpreted as to apply it to the stage even before charges are framed, it

would not pass constitutional muster since Article 21 of our Constitution

requires that all substantive as well as procedural provisions must be

reasonable, just and fair, as held inter alia in Maneka Gandhi (supra). Such

interpretation of section 29 would also render the right of the accused to a

fair trial nugatory and dead letter, which would again do violence to the

constitutional guarantee contained in Article 21.

67. Applying section 29 to bail proceedings at a stage before charges are

framed, would in effect mean that the accused must prove that he has not

committed the offence even before he is told the precise offence he is

charged with, which would do violence to all legal rationality.

68. In view of the above discussion and after considering the opinion of

the Supreme Court and the views taken by the other High Courts, this

court is persuaded to hold that the presumption of guilt engrafted

in section 29 gets triggered and applies only once trial begins, that is after

charges are framed against the accused but not before that. The

significance of the opening words of section 29 "where a person is

prosecuted" is that until charges are framed, the person is not being

prosecuted but is being investigated or is in the process of being charged.

Accordingly, if a bail plea is considered at any stage prior to framing of

charges, section 29 has no application since upto that stage an accused is

not being prosecuted.

69. Therefore, if a bail plea is being considered before charges have been

framed, section 29 has no application ; and the grant or refusal of bail is to

be decided on the usual and ordinary settled principles.

70. Now coming to a scenario where a bail plea is being considered at a

stage after charges have been framed, in keeping with the observations of

the Supreme Court in Rajballav Prasad (supra), the presumption of guilt

contained in section 29 would get triggered and will have to be "taken into

consideration".

71. However, the dilemma would remain as to how the presumption of

guilt contained in section 29 is to be applied even after charges have been

framed, when the accused has not been given the opportunity to rebut such

presumption. When section 29 engrafts the presumption of guilt against

the accused, it also affords an opportunity to the accused to rebut the

presumption by proving to the contrary. It cannot possibly be that the court

should invoke half the provision of section 29 while ignoring the other

half, much less to the detriment of the accused. But even after charges are

framed, the accused does not get the opportunity to rebut the presumption

or to prove the contrary by leading defence evidence, until prosecution

evidence is concluded. It would be anathema to fundamental criminal

jurisprudence to ask the accused to disclose his defence; or, worse still, to

adduce evidence in his defence even before the prosecution has marshalled

its evidence. Again therefore, even for a stage after charges have been

framed, section 29 cannot be applied in absolute terms to a bail plea

without doing violence to the 'due process' and 'fair trial' tenets read

into Article 21 of our Constitution.

74. As always, when faced with such dilemma, the court must apply the

golden principle of balancing rights. In the opinion of this court therefore,

at the stage of considering a bail plea after charges have been framed, the

impact of section 29 would only be to raise the threshold of satisfaction

required before a court grants bail. What this means is that the court would

consider the evidence placed by the prosecution along with the chargesheet,

provided it is admissible in law, more favorably for the prosecution

and evaluate, though without requiring proof of evidence, whether the

evidence so placed is credible or whether it ex facie appears that the

evidence will not sustain the weight of guilt.”

54. With the advantage of good authorities, the discussion on

this issue can now be concluded with the following

summation:

1. The presumptions contemplated by law may vary from

statute to statute as regards their nature and manner of

applicability.

3. Application of the presumptions contemplated in

statutes does not preclude the courts from considering

peculiar facts and circumstances of a case, nor do they

compel the courts to accept the prosecution version as a

gospel truth without due application of mind.

2. The stage and manner in which the presumption shall

apply will depend on the statutory scheme, facts and

circumstances of a case and the nature of evidence.

4. All presumptions are rebuttable. A challenge can

weaken or rebut the presumption.

5. The presumptions shall be applied in a manner that they

are consistent with the first principles of fair trial in

criminal jurisprudence and due process in constitutional

processual jurisprudence.

6. The condition precedent for triggering the presumption

is that the primary or foundational facts have to be

established by the prosecution by attaining standard of

evidence which is beyond reasonable doubt and in

accordance with law.

7. Presumptions created in a statute will be attracted by

the following process. In the first instance after the

primary or foundational facts have to be established by

applicable standards of evidence. At this stage, the

accused will be alerted to his right to assail the

presumption. The accused has to be afforded an

opportunity to rebut the presumption. After these

prerequisites are satisfied, the presumption may ripen into

an established fact and made the basis of a judicial finding

upon consideration of evidences in the facts and

circumstances of a case.

7. The manner and stage of triggering the presumption

regarding age related documents under Section 94 of the

JJ Act for a juvenile offender shall differ from the case of

a minor victim and against an adult accused under the

POCSO Act.

8. Prematurely triggering the presumptions under Section

94 of the JJ Act, 2015 and Section 29 of the POCSO Act,

2012 or inappropriately applying them at the stage of bail

will violate the law and cause miscarriage of justice.

VII. Norms of fair procedure in criminal

jurisprudence and presumptions under Section 94 of

JJ Act and Section 29 of the POCSO Act:

55. Fair trial is the right of an accused and defines the

credibility of the criminal justice system. The right of an

accused to fair trial and bail also flows from settled canons of

criminal jurisprudence and constitutional imperative of fair

procedure enshrined in Article 21 of the Constitution of India

(see Maneka Gandhi vs. Union of India34). Also see

Dharmender Singh (supra) which imports holdings on

constitutional processual jurisprudence into criminal trial

34 (1978) 4 SCC 494

procedures and bails to uphold the rights of an accused.

56. Some of the established norms of fair trial distilled from

authorities on criminal and constitutional processual

jurisprudence are these. An accused is innocent till he is

proven guilty in accordance with law. In fact “presumption of

innocence is a human right”. (See Narendra Singh v. State of

M.P35 and Ranjitsing Brahmajeetsing Sharma v. State of

Maharashtra36). The burden of proving the charge against an

accused lies on the prosecution. The prosecution cannot be

relieved of such burden in a casual manner. The standards of

proving guilt in a criminal case is to prove the incriminating

fact beyond reasonable doubt. Full opportunity has to be

afforded to an accused to adduce admissible evidence in his

defence. The courts have a duty to ensure fairness of a trial.

57. Upon appraising evidence in case multiple conclusions can

be drawn, the one in favour of an accused shall be preferred by

the court. Similarly, while interpreting a criminal provision if

more than one view is possible, the court shall adopt the

interpretation favourable to the accused.

58. Juveniles in conflict with law are treated as a separate class

by the legislature. The JJ Act, 2015 is alert to the plight of

juvenile offenders and also addresses issues raised in

prosecution of juveniles. The enactment is reformative in

intent and ameliorative in its content. The JJ Act, 2015 clips

35 2004 (10) SCC 699

36 2005 (5) SCC 294

procedure and limits evidence to shorten the period of trial and

to soften the rigours of criminal prosecution for a juvenile

offender. Such measures are intended to pave the way for the

successful integration of juvenile offenders as responsible

citizens in the society.

59. Adult offenders being prosecuted under the POCSO Act

are not similarly placed by the legislature as juvenile accused.

60. Section 94 of the JJ Act, 2015 was devised for juveniles in

conflict with law but it is also applied to determine the age of

child victims of sexual offences committed by adult accused.

While determining a POCSO victim’s age under Section 94 of

the J. J. Act, 2015, it has to be acknowledged that there is a

difference in the claim of juvenility raised by the accused, and

the claim of minority of a victim set up by the prosecution.

61. Interpretation of the provisions of Section 94 of the JJ Act,

2015 read with Rule 54(18)(iv) of the JJ Rules, 2016 has to be

made in a manner that it does not lead to miscarriage of justice

for adult offenders accused under the POCSO Act. Section 94

of the JJ Act, 2015, abridges the age determination procedure

to benefit juvenile offenders, but its purpose is not to

undermine the rights of adult accused.

62. Under the JJ Act, 2015 age of a juvenile offender is

determined by “seeking evidence only if the Board/Committee

entertains reasonable doubt as to whether person brought

before it is a child or not” [See Rishipal Singh (supra)].

However, the age of a child victim has to be established by

evidence beyond reasonable doubt in the first instance before

charges can be brought home against an adult accused under

the POCSO Act.

63. Benefit of two years margin of error in medical

determination of age is given to juvenile offenders [See para

33.8 Rishipal Singh (supra)]. But such relaxation cannot be

given while considering a medical report determining the age

of a victim in a manner prejudicial to the right of the adult

accused.

64. Section 94 of the JJ Act, 2015 does not lighten the burden

of the prosecution to prove primary facts by adducing evidence

which reaches the standard of “beyond reasonable doubt”. The

primary facts to trigger the presumption in the context of the

age of a victim are the age related documents mentioned in

Section 94 of the J J Act, 2015.

65. Once the said documents are proved “beyond reasonable

doubt” the prosecution may invoke the presumption of

correctness of age recorded therein and contest introduction of

further evidence. However, even at that stage the court may of

its own volition or at the instance of the accused decline such

plea and receive additional evidence to seek out true facts and

serve justice. The courts also have an obligation to ensure that

best evidence is produced at the trial.

66. Rights of an accused to assail the prosecution evidences

relating to the age of the victim or to adduce further evidence

to rebut the prosecution case can not be infringed.

67. Section 29 of the POCSO Act, 2012 creates a presumption