Presumption of Section 29 of POCSO Act applicable at even the pre-trial stage: J&K High Court

Presumption of Section 29 of POCSO Act applicable at even the pre-trial stage: J&K High Court

Where the material on record prima facie establishes the foundational facts – Statutory presumption under Section 29 would come into operation even at the pre-trial stage when the bail application of an accused is under consideration.

While differing with the observation of the Ld. Single Judge of Delhi High Court in the case of Dharmander Singh vs State (Government of NCT of Delhi) reported in 2020 SCC Online Del 1267, the Hon’ble High Court of J&K vide its judgment dated 11.12.2020 delivered in the case of Badri Nath vs Union Territory of J&K has held that the term used in the Section is “prosecuted” and not “tried”, therefore, in terms of the definition of the term prosecuted in the Black’s Law Dictionary and also the connotation given to it by the Hon’ble Supreme Court in the case of Thomas Dana vs State of Punjab reported in AIR1959 SC 375, prosecution begins with the presentation of challan before a Court. Therefore, the presumption of Section 29 is attracted after the presentation of the challan before a court and not after the trial is commenced.