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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SUNIL THOMAS, J.
Justin @ Renjith S/o Gopi @ Ouseph – Petitioner
Versus
Union of India Rep. by the Secretary, Ministry of Law and Justice – Respondent
W.P. (C) No. 15564 of 2017, Crl. M.C. No. 3104 of 2018
Decided On : 07-10-2020
Protection of Children from Sexual Offences Act, 2012 -Sections 3(a), 5(b), 5(i), 5(m), 5(o), 5(u), 4, 5 and 12 ;; Juvenile Justice (Care and Protection of Children) Act, 2000- section 23 ;; Indian Penal Code- Section 201- 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- 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
Statement of facts:
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 section 23 of Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 201 of Indian Penal Code
Finding of the court:
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-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.
Result: W.P. (C) and Crl. M.C. fails and are dismissed.
Based on the provided legal document, here are the key points regarding the constitutionality of Sections 29 and 30 of the POCSO Act:
1. Constitutional Validity of Presumptions * Holding: Sections 29 and 30 of the POCSO Act are held to be Constitutional. They do not violate Fundamental Rights (Articles 14, 19, 20(3), and 21) nor are they contrary to basic criminal principles. (!) (!) (!) (!) (!) * Reasoning: The presumptions are rebuttable and do not absolve the prosecution of its duty to establish foundational facts beyond reasonable doubt. The shifting of burden is justified by the predominant public interest in protecting children and is consistent with other statutes like the NDPS Act and Negotiable Instruments Act. (!) (!) (!) (!) (!) (!) (!) (!)
2. Mens Rea and Strict Liability * Implied Mens Rea: While mens rea is an essential ingredient for sexual harassment (Section 11), it is implied in the nature of the act for offences like sexual assault and penetrative sexual assault (Sections 3, 5, 7, 9). The omission of explicit mens rea does not render the Act unconstitutional. (!) (!) (!) * Strict Liability Exception: Statutes excluding mens rea or imposing strict liability are not uncommon and are not unconstitutional if justified by the object of the statute and public interest. (!) (!) (!) (!) (!)
3. Article 20(3) and Right to Silence * No Compulsion: The apprehension that Sections 29 and 30 violate Article 20(3) (right against self-incrimination) is misplaced. The right against self-incrimination is triggered only by "compulsion" or "duress" to give evidence, which is not present here. (!) (!) (!) (!) (!) * Voluntary Testimony: Tendering oral evidence by the accused is not mandatory. The accused has the choice to testify or rebut the presumption through cross-examination or other evidence. (!) (!) (!) (!)
4. Burden of Proof and Foundational Facts * Prosecution's Duty: The primary burden of proof lies with the prosecution to establish foundational facts (e.g., victim is a child, incident occurred, accused committed the act) beyond reasonable doubt. Only after this is established does the burden shift to the accused to rebut the presumption. (!) (!) (!) (!) (!) (!) (!) (!) * Standard of Rebuttal: The accused need only prove their innocence on the touchstone of "preponderance of probability," not beyond reasonable doubt. (!) (!) (!) (!) (!) (!) (!) * Co-extensive Duties: The duty of the prosecution to prove foundational facts and the duty of the accused to rebut presumptions are co-extensive; establishing one extinguishes the other. (!) (!)
5. Safeguards and Judicial Scrutiny * Careful Scrutiny: Due to the gravity of sentences and stringency of provisions, the trial court has an onerous duty to ensure careful scrutiny of evidence, especially when it relies solely on the oral testimony of the victim without corroboration. (!) (!) * Rebutting Methods: An accused can rebut the presumption by discrediting prosecution witnesses, exposing absurdities or infirmities in their version, proving enmity, or adducing defence evidence. (!) (!) (!) (!)
6. Legislative Intent and International Obligations * Special Protection: The POCSO Act is a special law enacted under Article 15(3) of the Constitution to give effect to the Convention on the Rights of the Child and Directive Principles of State Policy. (!) (!) (!) (!) (!) * Purposive Construction: The Act must be interpreted purposively to achieve its objective of protecting children, considering the absence of eye-witnesses and the psychological impact on child victims. (!) (!) (!) (!)
7. Precedents Cited * The judgment relies on several Supreme Court decisions to uphold the validity of reverse burdens and presumptions in other statutes, including: * K. Veeraswami vs. Union of India (Prevention of Corruption Act) (!) (!) (!) * Noor Aga vs. State of Punjab (NDPS Act) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) * Nikesh Tara Chand Shah vs. Union of India (Money Laundering Act) (!) (!) (!) (!) (!) * Kumar Exports vs. Sharma Carpets (Negotiable Instruments Act) (!) (!) * Abdul Rashid Ibrahim vs. State of Gujarat (NDPS Act) (!) (!) * Sher Singh @ Partapa vs. State of Haryana (Section 304B IPC) (!)
JUDGMENT :
SUNIL THOMAS, J.
1. 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.
2. 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.
3. 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 11.30a.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.
4. Prosecution of the accused is challenged by him contending that the allegation is baseless, facts disclosed are inherently improbable and the complaint was highly belated. He challenged the prosecution on the specific ground that, sections 29 and 30 of the POCSO Act were unconstitutional, since it takes away the valuable defence available to the accused. It was contended that, in the light of presumptions available under sections 29 and 30 of the POCSO Act, virtually the accused is defenceless, that he is called upon to adduce negative evidence and is thus compelled to tender evidence and expose him to cross examination which may incriminate himself. It was hence contended that the provisions are violative of Articles 14, 19, 20(3) and 21 of the Constitution of India. It was also contended that, the above sections are ultra-vires the Constitution and hence liable to be stuck down.
5. Since W.P. (C) and Crl. M.C. raises identical questions of law, touching on the Constitutional and statutory validity of sections 29 and 30 of POCSO Act, both sides were heard in extenso and both the matters are disposed of by this common judgment.
6. Mr. John S. Ralph, learned counsel for the writ petitioner contended that every accused is entitled to Constitutional right to a fair trial guaranteed under Article 21 of the Constitution. Specific provisions are incorporated in the Code of Criminal Procedure and the Evidence Act, which are intended to ensure that, accused gets a reasonable opportunity for a fair trial. The mandatory presumptions under sections 29 and 30 of the POCSO Act impose restrictions on the discretion of the trial court and it casts a very heavy burden on the accused to prove certain facts. The accused is liable to rebut the presumptions by mounting the box and thereby he is exposed to self incrimination. It was further contended that, the life and liberty of a person can be restricted only by procedure established by law, which must be fair, just and reasonable.
7. It was further contended
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