India: A Brief Note On Kerala High Court's Recent Clarification On Application Of Statutory Presumption Under Section 29 Of POCSO Act In Bail Matters

Last Updated: 22 March 2019
Article by Apoorv Sarvaria

Recently, while dealing with an anticipatory bail application filed under Section 438 of the Code of Criminal Procedure ('Cr PC'), the Kerala High Court has, in Joy V.S v. State of Kerala B.A No. 8741 of 2018 (decided on March 5, 2019): 2019 SCC OnLine Ker 783 clarified the usage of statutory presumption under Section 29 of the Act in bail matters by observing that the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') does not mean that the prosecution version has to be accepted as gospel truth in every case.

Brief facts of the case before the Kerala High Court are that the Petitioner who was a psychologist, had conducted a psychological therapy to the victim girl, aged 14 years. The allegations against the Petitioner were that when the Petitioner had conducted counselling sessions in May and June 2018, he had shown the victim video scenes with obscene contents and he caught hold of her hand with sexual intent. There were further allegations that the Petitioner gave the victim girl a stamp, depicting nude picture of a man and woman, and a letter through another girl, who was his patient. The mother of the victim girl gave a complaint to the Child Welfare Committee regarding the acts allegedly committed by the Petitioner on/towards her daughter. The Child Welfare Committee recorded the statement of the victim girl and forwarded it to the District Police Chief, Thrissur (which was ultimately sent to the Nedupuzha police station). Thereafter, the statement of the victim girl was recorded by the police and on the basis of that statement, the criminal case was registered against the Petitioner and he was accused under Sections 7 read with 8, 9(p) read with 10 and 11(iii) read with 12 of the POCSO Act.

During arguments, it emerged that the Petitioner had sent a lawyer notice to the mother of the victim girl claiming his professional fees and it was only more than one month after the date of receipt of the lawyer notice that the mother of the victim girl made complaint to the Child Welfare Committee.

After going through the statements of the victim recorded by the Investigating Officer and recorded by the Magistrate under Section 164 of Cr PC, the High Court observed that the sum and substance of the allegations against the Petitioner in these statements was that the Petitioner showed the victim girl video scenes containing obscene contents and one day, he caught hold of her hand and also made attempt to touch her breast. There was also an allegation that the petitioner sent her a stamp depicting nude photograph and also a letter through another girl.

The Court further noted the unexplained delay in making complaint to the CWC as when the alleged acts were committed by the Petitioner, the parents of the victim girl were abroad and she was living with her grandfather and when the mother of the girl returned from abroad on 17.07.2018, the girl had told her about the acts committed by the Petitioner. Inspite of such disclosure made in the month of July, 2018, by the victim girl regarding the acts committed by the Petitioner, the mother gave the complaint to the Child Welfare Committee only on 22.09.2018. By that time, the Petitioner had sent a lawyer notice to the mother of the victim girl claiming an amount of Rs. 10,00,000/- as professional fees. She had received the lawyer notice on 08.09.2018. Even then, no complaint against the Petitioner was made immediately to the police or to the Child Welfare Committee.

While holding that mere delay in reporting the matter to the authorities may not be fatal to the prosecution, the court noted the significant fact that the complaint was given to the authorities concerned only two weeks after the mother received the lawyer notice from the Petitioner claiming a huge amount as professional fees. The Court observed that this raises suspicion on the prosecution case against the Petitioner. It further observed that one would have expected the mother to report the matter to the authorities concerned much earlier than 22.09.2018 when the victim had disclosed the matter to her in July, 2018.

On the usage of presumption raised under Section 29 of POCSO Act in such cases and also referring to the Supreme Court's observation in State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178, the Kerala High Court observed as under:

"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. Rajballav 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."

(emphasis added)

Referring to the decision of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Court held that 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.

The Court further observed:

"12. No doubt, the Act is a landmark legislation to prevent sexual abuse and exploitation of children. The Act intends to protect the children from offences of sexual assault, sexual harassment and pornography. Dignity of the child has been laid immense emphasis in the scheme of the legislation. But, the court cannot turn a blind eye to undisputed facts in a case. The courts shall honour the spirit and intent behind the legislation and at the same time guard against misuse of its provisions."

(emphasis added)

Coming back to the facts of the case, the Court observed that there is no allegation against the Petitioner that he actually touched any private part of the victim girl. It further observed that the custodial interrogation of the Petitioner appeared to be not necessary to have an effective investigation of the case. The prosecution had no case that on getting bail, the petitioner would flee from justice. The Court noted that the Petitioner had got no criminal antecedents. The Court, therefore, found it fit to grant the benefit of pre-arrest bail subject to certain conditions.

The above decision of the Kerala High Court in Joy V.S (supra) assumes significance being clarificatory of the legal position that presumption raised under Section 29 of the POCSO Act should not lead to injustice in appropriate cases, especially in the wake of the recent trend of levying allegations of offences committed under the POCSO Act in matrimonial cases and on relatives or other known persons for ulterior motives only to pressurise the suspects. The trial courts must, therefore, be on guard to see that the application of the presumption, without adverting to essential facts, shall not lead to any injustice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions