HC grants bail in POCSO case, says gravity of offence alone can’t deny relief

The high court noted that the POCSO Act provides for trials to be completed within a year, but this is seldom achieved. It also clarified that the presumption of guilt under Section 29 of the Act is not absolute and can be invoked only after the prosecution brings the foundational facts before the court

Mumbai: The Bombay high court has observed that prosecutors opposing bail in cases of prolonged incarceration by citing the seriousness of the alleged offence, need to change their approach. The court made the observation while granting bail to a 26-year-old man accused in a case under the Protection of Children from Sexual Offences (POCSO) Act.

Bombay High Court. Photo by Girish Srivastava/HT 08-01-02

Justice Milind Jadhav, who is currently hearing bail matters, said that in his experience, “public prosecutors oppose bail pleas vehemently even in the cases of long incarceration pending trial under the mistaken impression that the crime in question is serious and, therefore, the court should not grant bail to the accused person. This mindset and approach of the prosecution needs to change.”

The high court noted that the POCSO Act provides for trials to be completed within a year, but this is seldom achieved. It also clarified that the presumption of guilt under Section 29 of the Act is not absolute and can be invoked only after the prosecution brings the foundational facts before the court.

“This court is of the opinion that presumption would come into play only when prosecution is able to bring on record facts that would prima facie form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegation against the accused person and claim that the case projected by it is true,” Justice Jadhav said.

The judge added, “(The) court will have to be on guard to see that application of presumption without adverting to the essential facts shall not lead to injustice since we are at a prima facie stage and trial has not even begun,” it added.

The case involved two accused, one of whom had already been granted bail. The 26-year-old, who remained in custody for over a year after a trial court rejected his bail plea, approached the high court seeking relief.

He was accused of having sexual intercourse with a 14-year-old girl on three occasions after befriending her on social media. The girl’s mother had lodged the complaint.

The high court noted that the girl had admitted a five-and-a-half-month relationship with the accused and that her statement contradicted that of her grandfather, whose phone she had used to communicate with him.

It further noted that the flat where the alleged encounters took place had been under renovation for four years, according to its owner.

Stating the “facts emanating from record which show consensualness of victim (sic)”, the high court granted bail to the accused.