Facts
The accused was working as a caretaker of an orphanage and was alleged to have sexually assaulted three of the children in the orphanage. The appellant was charged under Sections 3(a), 5(h), (I),(m), (o), (u), II(iii), 4, 6, and 12 POCSO, Section 23 JJ Act, and Section 201 IPC. The appellant argued that it was unconstitutional for the report to have been laid against him, mainly on the grounds of the presumption drawn under Sections 29 and 30 of the POCSO. The appellant had filed a writ petition to this effect and had sought for Sections 29 and 30 to be struck down as unconstitutional. The writ petition was dismissed. The appellant is appealing the same. As per the appellant, the presumption under Section 29 POCSO was violative of Article 21 and therefore contrary to the concept of fair trial. Additionally, Section 29 was unconstitutional since it was hit by Article 13(2). Furthermore, with respect to the presumption of mens rea under Section 30, the appellant argued that the same was violative of Article 20(3) of the Constitution since the accused would be compelled to mount the box.
Judgment
On Constitutionality: The presumption of innocence, though a human right, cannot be equated with fundamental rights and liberty under Article 21 of the Constitution. Even a fundamental right is not an absolute right.​ Presumption under the Act doesn’t assume accused is guilty, it only presumes in accordance with the fiction of law created, and it reverses the burden of proof on the accused rather than the normal procedure adopted in the matter of trial of criminal cases by the prosecution obligating the prosecution to prove the case against the accused beyond reasonable doubt.​ There is a fair chance to rebut presumption​ and it is prevalent in many other laws including the Evidence Act.​ A significant feature insofar as Section 30 is concerned, as contained under sub-section (2) of Section 30, is that it clearly specifies that for the purpose of Section 30, a fact can be 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. On Applicability on Sections 29 and 30: The Court opined that the accused was not compelled to mount the box simply because the reverse burden had been cast on the accused by virtue of the presumption available under a special statute. The accused always had the option of cross-examining the prosecution witnesses, taking up all the contentions available on law and facts. With regard to Section 29, the Court stated that the prosecution had the burden to prove that the accused had committed/abetted/attempted to commit the offence and it was only after that presumption became operational. The same was found applicable to Section 30. Furthermore, Section 30(2) made it very clear that the fact would be proved only when it existed beyond reasonable doubt and not by a preponderance of probability. The Court also observed that rebuttable presumption in law would never be converted to conclusive action to find the guilt of the accused since it was only a legal fiction provided in favour of the prosecution.