POCSO

The high court issued interim directions to all the police stations for the recording of 164 statement: The investigating officer should preferably be female. The IO shall take immediate steps to take the prosecutrix to a female MM magistrate for the recording of the 164 statement, within 24 hours. In case the time period is…

Para 1, 2, 9; Page 1, 3

The court, in this case, analysed the procedure to record 164 statements of the victim/witness i.e- once the magistrate records a 164 statement, a record of the statement should be sent to the investigating officer and the jurisdictional court. The statement should not be made public. The court also observed that the term “Magistrate” under…

Para 17, 21, 24, 28, 44, 48, 50, 51; Page 8-10, 14-17

While sexual intent under S. 8 POCSO is a question of fact, the Court is entitled to raise the presumption under S. 30 POCSO with regard to the culpable state of mind of the accused when the court is satisfied with the existence of a fact beyond reasonable doubt.

Para 36-37, 42; Page 15, 17

Where foundational facts have been established, the presumption under section 29 POCSO becomes operational and the accused is bound to rebut the presumption.

Para 32; Page 39 & 40.

The presumption clause of Section 29 POCSO is applicable to both the offender and the abettor of the offence. When foundational facts have been established, the accused must discharge the reverse burden cast by Sections 29 and 30 POCSO.

Para 16-17; Page 8

For the applicability of Section 29, the prosecution is required to establish foundational facts on the standard of preponderance of probability and not beyond reasonable doubt. Once prosecution has been able to establish foundational facts based on preponderance of probability then by legal presumption under Section 29 of Act it could be said that prosecution…

Para 63, 66, 123; Page 24, 28, 29, 52

When the prosecution fails to establish a strong preponderance of probability sufficient to raise a presumption under Section 29 POCSO, the negative burden to prove their innocence will not shift to the accused if the defence effectively discredits the prosecution's case, the accused will be discharged of their onus under Section 29 POCSO.

Para 43, 50, 52, 53; Page 5, 6, 7

The duty to rebut the presumption under Section 29 POCSO arising only after the prosecution has succeeded in establishing the foundational facts.The burden to rebut the presumption can be discharged by the accused through effective cross-examination, or by adducing defence evidence or by the accused himself tendering oral evidence. The presumption and the duty to…

Para 27-33; Page 5, 6 & 7

Sections 29 and 30 of the POCSO Act are held to be Constitutional and they do not violate the Fundamental Rights, nor are they contrary to the basic criminal Principles. Presumption under Sections 29 and 30 POCSO would become operational only after the prosecution has established the foundational facts beyond reasonable doubt.

Para 21-31, 35; Page 15-18