The single Bench of Justice Anup Jairam Bhambhani was considering the bail application of a 24 year old man, who is accused of coercing a 17 year old girl to have sexual intercourse with him and having consensual relationship, at the threat of publicizing her private pictures against her consent to embarrass her. Whereas the bail applicant had contended that he should be enlarged on bail since the investigation is complete and the charge-sheet in the matter has been filed, the prosecution had pleaded the application of Section 29 of POSCO to contest bail. Section 29 of the POSCO Act creates a ‘Presumption of guilt’ on the part of the accused if he is prosecuted for committing, abetting or attempting offences under Section 3,5,7 and 9 of the Act. It was submitted that evidence was not been recorded in courts by reason of the pandemic thus stated the detention of accused unfair and unwarranted. On another, opposing to grant of bail, the prosecution argued that since charges have alrady been framed in the matter. Section 29 of the POSCO Act will apply with full vigour, whereby the court must presume the applicant to the guilty of the offences charged till he proves otherwise; and as record clearly showed that the complainant was minor and question of physical relationship being consensual does not arise. It was submitted that while having sexual intercourse continuously with that girl and made her position worse and thus bail must not been given. Afterwards, the court observed that while hearing a bail application for offences alleged under the POSCO Act, certain very significant factor requires to be addressed, in addition to general principles of granting bail. It was noted that while ordinarily there is a ‘presumption of innocence’ via-a-vis an accused, Section 29 of the POSCO Act reverses this position. Section 29 of the POSCO Act creates a ‘presumption of guilt’ on the part of the accused if he is prosecuted for committing, abetting or attempting certain offences. It added that if a bail plea is considered at any stage ‘’prior to framing of charges”, then Section 29 has no application since upto that stage an accused is not being prosecuted. The POSCO Act was enacted to specifically address sexual offences against children and to establish Special Courts for trail of such offences and secondly presumption has been provided that the accused in case of sexual assault has committed the offence unless proved contrary.
Justice Bhambhani was of the opinion that if the accused is asked to disclose his defence or to adduce evidence in his defence even before the prosecution has marshaled its evidence, the same would be “anathema to fundamental criminal jurisprudence. Thus the court was in factors were that there was age difference of 4-5 years and also both were at an age when a reciprocal physical relationship between two was not so young. It was appeared to be very little to support any allegation of serious violence or injury that would betray brutality in the offence alleged. Thus it was held that even though trial had commenced and charges had been framed against the accused, the court allowed the bail plea as the complainant and the bail applicant were at an age when reciprocal physical relationship between them was not so young. Further, there was no element of brutality in the allegations and it was not a case where the accused had tried to threaten the complainant between the registration of FIR.