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IN

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942

WP(C).No.15564 OF 2017(U)

PETITIONER/S:

JUSTIN @ RENJITH
29 YEARS, S/O.GOPI @ OUSEPH, CHINGATTUPURATHU HOUSE,
MALAVANA DESOM, ELANTHIKKARA, PUTHENVELIKKARA
VILLAGE, ERNAKULAM DISTRICT.

BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SMT.P.V.DENCY
SRI.K.J.JOSEPH (ERNAKULAM)
SRI.V.JOHN THOMAS
SRI.JACOB J. ANAKKALLUNKAL
SMT.PREETHY KARUNAKARAN

RESPONDENT/S:

1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF LAW AND
JUSTICE, FOURTH FLOOR, A- WING, SHASTRY BHAWAN, NEW
DELHI, PIN - 110 001

2 SECRETARY,
MINISTRY OF WOMEN AND CHILD DEVELOPMENT, SHASTRI
BHAWAN, NEW DELHI, PIN - 110001

3 CHIEF SECRETARY TO THE STATE OF KERALA,

GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695
001.

4 CIRCLE INSPECTOR OF POLICE,

CHALAKKUDY, THRISSUR DISTRICT, PIN - 680307

R1 BY SRI.SUVIN R.MENON, CGC

R1 BY ADV. SRI.SUVIN R.MENON CGC
R1 BY GOVERNMENT PLEADER
R1 BY SRI.V.MANU SR. GOVT. PLEADER
R3-4 BY SRI.V.MANU, SENIOR GOVT. PLEADER

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

07.10.2020, ALONG WITH Crl.MC.3104/2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942

Crl.MC.No.3104 OF 2018

AGAINST THE ORDER/JUDGMENT IN SC 1097/2017 OF ADDITIONAL

SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) CRIME
NO.1089/2016 OF Infopark Police Station , Ernakulam

PETITIONER/S:

ASHLY TOMI AGED 32 YEARS,

S/O. TOMI C.J., CHIRAMEL HOUSE,
KURIACHIRA, THRISSUR.

BY ADVS. SRI.P.VIJAYA BHANU (SR.)

SRI.AJEESH K.SASI
SRI.C.JAYAKIRAN
SMT.MITHA SUDHINDRAN
SMT.POOJA PANKAJ
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.V.C.SARATH
SRI.VIPIN NARAYAN

RESPONDENT/S:

1 PAVITHRA KAMALA
D/O. CHITHRA KRISHNAN, RESIDING AT 8C, FACE - II,
SILVER LAWN APARTMENT, MAROTTICHODU BHAGAM,
EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT,
PIN - 682 041.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
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R1 BY ADV. SRI.GILBERT GEORGE CORREYA

R1-2 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION
R1 BY ADV. SRI.GEORGIE JOHNY
R1 BY ADV. SRI.NISHIL.P.S.
R1 BY ADV. SRI.A.VELAPPAN NAIR

OTHER PRESENT:
PP SRI.V.MANU

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

07.10.2020, ALONG WITH WP(C).15564/2017(U), THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
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'CR'

COMMON JUDGMENT

Petitioner in W.P(C) is the accused in S.C.No.590 of 2016 of the

Additional Sessions Court-I, Thrissur. He faces prosecution for offences

punishable under sections 3(a), 5(b), 5(i), 5(m), 5(o), 5(u), 4, 5 and 12 of

Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO

Act”), section 23 of Juvenile Justice (Care and Protection of Children) Act,

2000 and Section 201 of Indian Penal Code.

2. The crux of the prosecution allegation was that the petitioner

being the caretaker of an orphanage, sexually assaulted three inmates of

the orphanage. On the basis of the information laid, Crime No.689 of

2015 was registered by the Koratty Police. After investigation, final

report was laid. According to the petitioner, he is absolutely innocent of

the crime, that a close relative of the victim had assaulted them and he

has been wrongly roped in. Petitioner challenges his prosecution, mainly

on the ground that sections 29 and 30 of the POCSO Act are

unconstitutional, infringes his valuable right of defence and violative of

Articles 14, 19, 20(3) and Article 21 of the Constitution of India. He

prayed for striking down sections 29 and 30 of the POCSO Act as

arbitrary and infringing Constitutional provisions.

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3. In Crl.M.C.No.3104 of 2018, petitioner is the sole accused in

S.C.No.1097 of 2017 pending before the Additional District Court (POCSO

Court), Ernakulam, for offences punishable under sections 9(e) and 10 of

POCSO Act, 2012. The petitioner is a Physiotherapist by profession. The

prosecution allegation was that, on 20.06.2016 at about 11.30a.m, while

the first respondent/victim was undergoing physiotherapy in the clinic of

the petitioner, the accused made the victim to touch his private part, over

his dress. She laid the complaint on 14.11.2016, pursuant to which FIR

No.1089 of 2016 was registered by Infopark Police. After investigation,

final report was laid and the petitioner is facing prosecution.

4. Prosecution of the accused is challenged by him contending

that the allegation is baseless, facts disclosed are inherently improbable

and the complaint was highly belated. He challenged the prosecution on

the specific ground that, sections 29 and 30 of the POCSO Act were

unconstitutional, since it takes away the valuable defence available to the

accused. It was contended that, in the light of presumptions available

under sections 29 and 30 of the POCSO Act, virtually the accused is

defenceless, that he is called upon to adduce negative evidence and is

thus compelled to tender evidence and expose him to cross examination

which may incriminate himself. It was hence contended that the

provisions are violative of Articles 14, 19, 20(3) and 21 of the Constitution
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of India. It was also contended that, the above sections are ultravires the

Constitution and hence liable to be stuck down.

5. Since WP(C) and Crl.M.C raises identical questions of law,

touching on the Constitutional and statutory validity of sections 29 and 30

of POCSO Act, both sides were heard in extenso and both the matters are

disposed of by this common judgment.

6. Mr.John S. Ralph, learned counsel for the writ petitioner

contended that every accused is entitled to Constitutional right to a fair

trial guaranteed under Article 21 of the Constitution. Specific provisions

are incorporated in the Code of Criminal Procedure and the Evidence Act,

which are intended to ensure that, accused gets a reasonable opportunity

for a fair trial. The mandatory presumptions under sections 29 and 30 of

the POCSO Act impose restrictions on the discretion of the trial court and

it casts a very heavy burden on the accused to prove certain facts. The

accused is liable to rebut the presumptions by mounting the box and

thereby he is exposed to self incrimination. It was further contended that,

the life and liberty of a person can be restricted only by procedure

established by law, which must be fair, just and reasonable.

7. It was further contended that, section 29 of the POCSO Act

was in contravention of right of fair trial guaranteed under Article 21 of

the Constitution of India and was hit by Article 13(2) as ultravires to

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Constitution and hence void. It was further contended that, Section 30 of

the POCSO Act creates a presumption against the accused and a reverse

burden in the matter of defence. The argument was that in a prosecution

under the POCSO Act, accused was under an obligation to prove beyond

reasonable doubt that he had no culpable state of mind, which according

to the counsel was a fact which is a manifestation of mind, not

perceivable by visible indicators and establishing it by cogent evidence in

a court of law will be a near impossibility. It was also argued that,

sections 29 and 30 of the POCSO Act cumulatively creates a reverse

burden of proof on the accused, which was contrary to the basic and well

guarded tenents of criminal jurisprudence, the principle of presumption

of innocence of accused, right to silence available to accused and the

principle that prosecution has to establish the guilt of the accused beyond

any reasonable doubt. It was contended that the accused is virtually

defenceless and conviction is most likely in almost all cases of POCSO

Act, by virtue of sections 29 and 30 of the Act.

8. Mr.Revi Krishnan, learned counsel appearing for the accused

in Crl.M.C.No.3100 of 2018, reiterated all the contentions set up by the

writ petitioner and further contended that, both the presumptions under

the POCSO Act were unconstitutional, since it took away the Fundamental

Right of fair trial available to the accused. The wording of section 29 of

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the Act was directly at the teeth of the rigor of Article 21 of the

Constitution and run against the various procedural safeguards

contemplated under the Cr.P.C and the Evidence Act, it was argued.

According to the learned counsel, though the safeguards coupled with the

Constitutional guarantee ensure right to fair trial, but the mandatory

presumptions under sections 29 and 30 of the POCSO Act impose a

restriction on the above right. To substantiate this contention, learned

counsel relied on the decision reported in Nikesh Tara Chand Shah v.

Union of India ((2018)11 SCC 1).

9. Mr.Suvin Menon, learned ASG and Mr.V.Manu, learned senior

Government Pleader contended that the statute is a unique one, intended

to effectively tackle the malice of child abuse. It was contended that,

rigorous provisions are incorporated in the Statute having regard to the

gravity of offence, young age of the victim involved, increasing incidents

of child abuse, impact of abuse on the psychological and physical well

being of the victim child, the mental trauma which the child and family

undergoes and the likely absence of direct eye witnesses to such

incidents. Considering these facts, special provisions have been

incorporated by the Parliament in its wisdom after taking note of the

sensitive nature of the crime and effective safeguards are provided in the

matter of investigation and trial, keeping in mind the well being of the
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victim child. It was contended by both the counsel that, such

presumptions are not unknown to law and identical provisions are

available in several other statutes also. It was contended by the learned

ASG that, challenge to a statutory provision on the ground of

unconstitutionality should be grounded on an initial presumption of the

Constitutionality of the Statute and not otherwise. It was further

contended that POCSO Act was intended to give effect to Article 39(f) of

the Constitution as empowered by Art.15(3) of the Constitution of India.

A challenge of that Statute on the ground that it takes away or abridges

or is inconsistent with the rights conferred under Articles 14 and 19 of

Constitution of India, is not sustainable in the light of saving clause under

Article 31-C of the Constitution of India. It was hence contended that the

only ground of challenge available can be infringement of Articles 20 or

21 of the Constitution. It was contended that, above statutory provisions

are not ultravires the Constitution or the guarantee of fair trial available

to an accused. It was contended that, there was no restriction on the

Fundamental Rights. The accused is not entitled to any Fundamental

Right to be presumed to be innocent, except that, he is entitled to a right

of fair trial. To substantiate it, learned ASG relied on the decisions

reported in K.Veeraswami v. Union of India (1991 KHC 1162), Abdul

Rashid Ibrahim v. State of Gujarat (2000)2 SCC 513, Sarbananda

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Sonowal v. Union of India (2005) 5 SCC 665, Childline Foundation

and Another v. Alan John Waters (2011)6 SCC 261, Nanit Sharma v.

Union of India (2013)1 SCC 745 and Sher Singh @Partapa v. State

of Haryana (2015 KHC 4020).

10. Mr.Manu referred to the decisions reported in Om Narain

Agarwal and Others v. Nagar Palika, Shahjahanpur and Others

1993(2) SCC 242), Hindustan Latex Ltd. v. Mariamma (1994 KHC

308), Anoop M S v. State of Kerala (2017(1) KHC 499)State of

Bombay v. Kathi Kalu Oghad (1961 KHC 343), Andhra Pradesh

Grain and Merchants Association v. Union of India (1970 KHC

238), Mohan Krishna B. v. Union of India and Ors. (1996 KHC

2784), P N Krishna Lal and Ors. v. Govt. of Kerala and Ors.

(1995(1) KLT 172(SC), Chandran and Ors. v. State of Kerala and

Ors. (AIR 2011 SC 1594), Swastik Oil Industries v. State of Gujarat

and Anr. ((1978)19 GLR 1117), State of M.P. v. Narayan Singh and

Another (1989 KHC 953), K.Veeraswami v. Union of India and Ors.

(supra), Noor Aga v. State of Punjab and Ors. (JT 2008(7) SC 409),

Federation of Obstetrics and Gynaecological Societies of India

(FOGSI) v. Union of India and Ors. (2019 KHC 6528)

11. Mr.Gilbert Correya, learned counsel for the first respondent in

Crl.M.C.No.3104 of 2018 supporting the prosecution contended that the

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statutory provision was valid. It was contended that, none of the

statutory or Constitutional Rights available to the accused was infringed

by the above provisions. Learned counsel referred to the significance of

Constitutional Rights and how it was well guarded in a criminal trial.

12. In the light of the rival contentions advanced by all the

counsel, the crucial question that arises is whether sections 29 and 30 of

the POCSO Act satisfy the procedure established by law as contemplated

under Article 21 of the Constitution of India. Ancillary question is

whether the shifting of burden from the prosecution to accused limited to

the presumptions contained in sections 29 and 30 of the POCSO Act was

permissible in the light of Article 20(3) of the Constitution of India.

13. Since the contention of the petitioners was that, sections 29

and 30 of the POCSO Act take away the valid defences available to the

accused and there is substantial shifting of burden of proof to accused

and whether it was an unusual and unique procedure contrary to the

settled legal principles, it has to be considered whether similar provisions

are available in other statutes. It has also to be analyzed whether the

concept of mens rea should be an essential ingredient of such crimes and

whether any provision which declares an act done without even an iota of

criminal intent as offence, would stand Judicial scrutiny.

14. Section 138A of the Customs Act, 1962 provides for a

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presumption regarding culpable state of mind. It was provided that, in

any prosecution of an offence under the above Act, which requires a

culpable state of mind on the part of the accused, the court shall presume

the existence of such mental state, but it shall be a defence for the

accused to prove the fact that he had no such mental state with respect to

the act charged. Culpable mental state includes intention, motive or

knowledge of a fact or belief in or reason to believe a fact. Identical

presumptions regarding culpable mental state is available in section 10(c)

of the Essential Commodities Act. Section 278E of the Income Tax Act,

1995 also provides for a presumption regarding culpable mental state.

Under section 64 of the Kerala Abkari Act, presumption is available in

certain types of prosecution, that the accused person has committed an

offence in respect of any liquor or intoxicating drug, if it is established

that accused was in possession of such items, which he is unable to

account. Presumption regarding culpable mental state is available under

section 35 in a prosecution under the NDPS Act. Section 54 of the above

Act, provides that, if the accused is found in possession of a contraband,

possession of which he fails to account satisfactorily, a presumption that

the accused has committed an offence under the Act can be drawn,

unless and until the contrary is proved. Certain presumptions are

available under section 21 of the Terrorist and Disruptive Activities

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(Prevention) Act (TADA), Section 20 of the Prevention of Corruption Act,

1988 and under section 57 of the Wild Life (Protection) Act 1972. Under

the Negotiable Instruments Act, 1881, presumptions regarding negotiable

instruments are available under section 118 of the Act as well as under

section 139 of the Act. Evidently, there are several statutes which

envisages certain presumptions available to the prosecution, similar to

sections 29 and 30 of the POCSO Act.

15. The general principle of Criminal Law provides that mens rea

or guilty mind is an essential ingredient of every offence. The legality of

section 10(c) of the Essential Commodities Act came up for consideration

before a Single Bench of Gujarat High Court in Swastik Oil Industries

v. State of Gujarat and Anr. (supra). In that, it was contended that

whenever a Statute creates an offence, the element of mens rea must be

read into the Statute, unless a contrary intention is expressed or implied.

It was argued by the accused that, as a general rule, every crime requires

mental element and unless the language of the statute in unmistakable

language either expressly or by necessary implication excludes it, proof of

the existence of such mental element is a sine-qua-non to a conviction.

Referring to the statutory provisions, it was held by the learned Single

Judge that, it was not unusual for the legislature to impose strict liability

in relation to offences which are not truly criminal. In determining

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whether or not such a liability is intended by the legislature, regard shall

be had to the language of the statute, to the nature of the mischief sought

to be curbed, the character of the offence and protection of public

interest. Having regard to the ultimate objective of the Essential

Commodities Act and the legislative intent, it was held by the learned

Single Judge that it was difficult to hold that mens rea was an essential

element of the offence under section 6A of the Act, which was only a quasi

criminal offence.

16. The above view is completely in consonance with the earlier

decision of the Supreme Court in Nathulal v. State of M.P.(1966 KHC

368), wherein an identical question came up. In that, the dealer in

foodgrains was prosecuted on finding him in possession of certain items

without license. It was contended by the accused that he stored the said

grains, after applying for a license and was on a belief that license would

be issued to him. The learned ADM found on evidence that appellant had

no guilty mind and consequently acquitted him. This was reversed by the

Division Bench of the High Court holding that in such prosecution, the

idea of guilty mind is different from a case of theft and he had only

contravened the provisions of the statute. The Court relied on the

presumption provided under section 7(2) of Essential Commodities Act

which provided that, the person who stores any foodgrains in excess
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quantity shall be deemed to store foodgrains for the purpose of sale,

unless the contrary was proved. Supreme Court held that having regard

to the object of the Act, namely, to control among others, trade in certain

commodities, in general public interest, it cannot be said that the object

of the Act would be defeated if mens rea was read as an ingredient of the

offence. The provisions of the Act do not lead to any such exclusion. It

was held that, it would be legitimate to hold that a person commits an

offence under section 7 of the Act, if he intentionally contravenes any

order made under section 3 of the Act. Hence, the Court set aside the

conviction on the ground that he did not therefore intentionally

contravene the provisions of section 7 of the Act. Justice Shah, in his

separate judgment held that, an offence under section 7 of the Essential

Commodities Act involves a guilty mind as an ingredient of the offence. It

was held that, normally full definition of every crime predicates a

proposition, expressly or by implication, as to the state of mind and if the

mental element of any conduct alleged to be a crime is absent in any

given case, the crime so defined is not committed. It is pertinent to note

that in State of M.P. v. Narayan Singh and Another (supra) the

decision in Swastik Oil Industries v. State of Gujarat and Anr. (supra)

was referred to and approved. However, it is worthwhile to note that, in

none of the above cases, the Constitutional validity of any statutory

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provision was challenged.

17. According to the learned counsel for the petitioners, mens rea

is an essential ingredient of every offence and if the ingredient of mens

rea is not established in any crime, there cannot be any conviction.

Sections 29 and 30 of the POCSO Act runs contra to the above principle,

it was argued. The apprehension of the petitioners was that by virtue of

section 29 and 30 of the Act, the rigour of mens rea was diluted and

accused charged for an offence under POCSO Act can be punished, if

proof of commission of act was established, even if mens rea was not

established.

18. To substantiate the above contention, the learned counsel

referred to the Division Bench decision of the Andhra Pradesh High Court

in Mohan Krishna B. v. Union of India and Ors. (supra). In the above

case, two questions were raised with regard to the prosecution under

section 138 of the Negotiable Instruments Act. First question was,

whether mens rea was a necessary ingredient of a criminal offence. The

contention was that section 138 of the Negotiable Instruments Act

dispensed with that indispensable ingredient and hence the section was

arbitrary, being violative of Articles 14, 19(1), 20 and 21 of the

Constitution of India. The next question that arose was, whether

presumption incorporated under section 139 of the NI Act was violative of

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the Constitutional guarantee of an accused person under Article 20(3) of

the Constitution of India. Regarding the question of mens rea, it was

contended by the learned Standing Counsel for the Union, supporting the

statute that mens rea can be excluded and such exclusion may be

necessary, considering the object of the statute. Whenever mental

element was statutorily excluded, such exclusion need not necessarily be

explicit, but can be by necessary implication also. The Division Bench

considered the question whether the legislation creating a penal offence

by excluding mens rea as a necessary ingredient was arbitrary and

therefore, violative of Article 14 of the Constitution. Division Bench

referred to the one of the earliest decision, that had come up before the

Queens Bench in Sherras v. De Rutzen (1895)(1) QB 918). In that

case, the licensee of a public house was convicted under section 16(2) of

Licensing Act, 1872 for having supplied unlawfully liquor to a police

constable on duty. The Queens Bench held that, there was a presumption

that mens rea, an evil intention, or a knowledge of the wrongfulness of

the act, was an essential ingredient in every offence; but that

presumption was liable to be displaced either by the words of the statute

creating the offence or by the subject mater with which it deals and both

must be considered. It was held that, the exclusion of the word

“knowingly” from the section was to shift the burden of proof as a result
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of which the defendant has to prove that, he did not have guilty

knowledge which was necessary to constitute an offence. In the above

case, conviction was set aside on the view that the appellant did not have

the guilty mind which was necessary to constitute an offence. This

principle was reiterated later in Brend v. Wood ((1946)62 TLR 462) as

well as in Harding v. Price (1948)(1) KB 695). It was noted by the

Division Bench of the Andhra Pradesh High Court that, although guilty

mind was the necessary ingredient of every offence, it can be displaced

either by the words of the statute creating the offence or by the subject

matter with which the offence deals and both these aspects must be

considered by the court. According to the Division Bench, same was the

position in India also. Applying the above principle, it was held that,

section 138 of the Negotiable Instruments Act excludes mens rea by

creating liability. Ultimately it was concluded that the absence of mens

rea in Section 138 of the Negotiable Instruments Act for fastening

criminal liability was not arbitrary and not violative of Art.14 of the

Constitution of India.

19. The same view was followed in P N Krishna Lal and Ors. v.

Govt. of Kerala and Ors.(supra). In that case, the accused faced

prosecution under the Kerala Abkari Act, with the aid of presumptions

under sections 57A and 57B of the Abkari Act. Under Section 57A(4)(b),
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it was provided that, where a person was prosecuted for an offence under

subsection (3) for being in possession of any liquor or intoxicating drug in

which any substance referred to in subsection (1) was mixed, the burden

of proving that, he did not know that such substance was mixed with such

liquor or intoxicating drug, shall be on the accused.

20. It was held that the question of intention bears no relevance to

an offence under section 57A of the Abkari Act and equally of culpability

or negligence. According to the Honourable Judges, mixing or permitting

to mix noxious substance or any other substance with liquor or

intoxicated drug or omission to take reasonable precaution or being in

possession without knowledge of its adulteration for the purpose of unjust

enrichment would be without any regard for loss of precious human lives

or grievous hurt. The legislature has noted the inadequacy and deficiency

in the existing law to meet the menace of adulteration of liquor etc and

provided for new offences, and the question of intention was not relevant

for the above consideration.

21. An appreciation of these expositions of law leads to a

conclusion that, mens rea may not be absolutely essential in all the

offences and the Statute may make exceptions, having regard to the

peculiar nature of the offence by diluting the above principles explicitly or

by necessary implication. Partial burden can also be fastened on the

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accused in cases where there are special facts falling within the

knowledge of the accused. That by itself will not make the provisions

unconstitutional or violative of any International Conventions.

22. Reference to the penal provisions under Chapter II of the

POCSO Act clearly shows a distinction between the definition of sexual

harassment under section 11 of the Act and the definitions of other

offences under the Act, namely, sexual assault, aggravated sexual assault,

penetrative sexual assault and aggravated penetrative sexual assault. In

the case of sexual harassment under section 11, if any act mentioned

therein is committed with a sexual intent it will constitute a sexual

harassment. Evidently, mens rea is statutorily made an important

constituent of sexual harrassment. On the other hand, such an element of

mens rea is not incorporated in the offences of sexual assault (S.7),

aggravated sexual assault (S.9), penetrative sexual assault (S.3) or

aggravated penetrative sexual assault (S.5). Evidently, the distinction is

not without any reason. In the case of sexual harassment, those acts

mentioned in S.11 includes certain acts, which may be done by a person

innocuously and without sexual intent and it is possible that such acts

may be misunderstood to be acts of sexual harassment, unless sexual

intent is made an important ingredient of the offence. This being the

position, Statute demands the existence of a mental state of mind or

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sexual intent as an essential condition precedent for an offence under

section 11 of the POCSO Act. However, in the case of all other offences

under the Act, sexual intent is not statutorily an important ingredient.

Such offences involve varying degree of physical interference on the

victim or penetrative act, which if done, by itself explicitly exhibits a

sexual intent and hence, mens rea is implied in the conduct of the

agressor itself. Hence it need not even be specifically established by the

prosecution. Hence Parliament has consciously omitted the ingredient of

sexual intent from the above offences, since that mental element is

implied in the very nature of the crime. Hence the contentions of the

learned counsel for the petitioners that, mens rea is not made as an

important ingredient of offence and hence the Act is contrary to the basic

tenents of criminal jurisprudence is not sustainable.

23. The objects and reasons of the POCSO Act indicate that it is

intended to protect children from offences of sexual assault, sexual

harassment and pornography and also to provide for establishment of

special Courts for the trial of such offences. It is specifically mentioned in

the object that, it was passed on the mandate of Art.15(3) of the

Constitution, which empowers the State to make special laws for children.

The convention on the Rights of Child adopted by the General Assembly of

United Nations on 20.11.1989, laid down a set of standards to be followed

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by public in securing the best interest of the child. India being a party to

the convention was under an obligation to give effect to the Declaration.

It was for that purpose, POCSO Act was brought into force.

24. Both sides extensively referred to the various clauses of the

above Convention on Rights of Child, which was intended to protect the

interest of the children and to create an environment conducive for the

proper and healthy upcoming of the child. Hence, the various provisions

of the POCSO Act has to be interpreted, having regard to the object of the

Statute and the malady it aims to remedy.

25. Among the various clauses of the Convention, Articles 16, 19,

34 and 39 are relevant. They read as follows:

Art.16 :

1. No child shall be subjected to arbitrary or unlawful interference

with his or her privacy, family, home or correspondence, nor to

unlawful attacks on his or her honour and reputation

2. The child has the right to the protection of the law against

such interference or attacks.

Art.19:

1. States Parties shall take all appropriate legislative,

administrative, social and educational measures to protect the

child from all forms of physical or mental violence, injury or abuse,

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neglect or negligent treatment, maltreatment or exploitation,

including sexual abuse, while in the care of parent(s), legal

guardian(s) or any other person who has the care of the child.

(2) Such protective measures should, as appropriate,

include effective procedures for the establishment of social

programmes to provide necessary support for the child and for

those who have the care of the child, as well as for other forms of

prevention and for identification, reporting, referral, investigation,

treatment and follow-up of instances of child maltreatment

described heretofore, and, as appropriate, for judicial involvement.

Art.34:

States parties undertake to protect the child from all forms of

sexual exploitation and sexual abuse. For these purposes, States

Parties shall in particular take all appropriate national, bilateral

and multilateral measures to prevent:

(a) the inducement or coercion of a child to engage

in any unlawful sexual activity

(b) The exploitative use of children in prostitution

or other unlawful sexual practices

(c) The exploitative use of children in pornographic

performances and materials.

Art.39 :

States Parties shall take all appropriate measures to

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promote physical and psychological recovery and social

reintegration of a child victim of any form of neglect, exploitation,

or abuse; torture or any other form of cruel, inhuman or degrading

treatment or punishment; or armed conflicts. Such recovery and

reintegration shall take place in an environment which fosters the

health, self-respect and dignity of the child.

26. Article 15(3) of the Constitution of India empowers the State

to enact special laws for children. Article 15 provides that, State shall not

discriminate against any citizen on grounds only of religion, race, caste,

sex, place of birth or any of them. Article 15(3) provides an exception

that nothing in the article shall prevent the State from making any special

provision for women and children. Article 39 incorporates certain

directive principles of state policy which are also relevant in this regard.

Article 39(e) provides that, State shall direct its policy towards securing

the health and strength of workers, men and women, and the tender age

of children are not abused and that citizens are not forced by economic

necessity to enter avocations unsuited to their age or strength. Article

39(f) provides that, children are given opportunities and facilities to

develop in a healthy manner and in conditions of freedom and dignity and

that childhood and youth are protected against exploitation and against

moral and material abandonment. Part IV of Constitution which declares

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the Directive Principles of State Policy mandates that the directive

principles are fundamental in the governance of the country and it shall

be the duty of the State to apply those principles in making laws. POCSO

Act, as discernible from its statement of objects and reasons is a

legislation introduced to give effect to the Directive Principles of State

Policy and also to discharge the mandate of the Constitution of India and

the international convention.

27. The gravamen of the contention of the petitioners was that

Sections 29 and 30 of the POCSO Act, in so far as it takes away the

valuable defences available to the accused, and creates presumptions

against accused imposes a reverse burden of proof and hence are void.

These two provisions are challenged on the ground that, they are

ultravires the Constitution in so far as it violates Articles 14, 19, 20(3) and

21 of the Constitution.

28. Before delving into the various rival contentions, it is essential

to refer to sections 29 and 30 of the Act, which read as follows:

29. Presumption as to certain offences: -

Where a person is prosecuted for committing or abetting

or attempting to commit any offence under sections 3, 5, 7 and
9 of this 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.

30. Presumption of culpable mental state:

(I) In any prosecution for any offence under this Act

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which requires a culpable mental state on the part of the

accused, the Special Court shall presume the existence of such
mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the
act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is 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.

29. According to the learned counsel for the petitioners, sections

29 and 30 of the POCSO Act by reason of the presumptions, imply a

distinct and separate procedure for recording evidence which are

unknown to criminal jurisprudence. It was contended that, a distinction

is made between the accused involved in POCSO cases and accused who

are involved in other identical offences charged under various provisions

of IPC or other penal statutes. The distinction based on the age of the

victim alone is irrational and makes a fictional distinction between two

classes, which has no rational nexus with the object sought to be

achieved. Such a distinction of the accused is contrary to Article 14 of

the Constitution of India, that the classification was not based on any

intelligible or rational differentia and the classification has no nexus with

the object sought to be achieved, which was to punish the guilty. It was

contended that, if an act alleged against the accused in a POCSO case is

attributed to an accused who has committed it on an adult, the latter is

tried without the aid of presumptions and the burden of proving the case
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is heavier on the prosecution than in the trial of an accused in POCSO

case. In the former case, the trial starts from an initial premise that the

accused is guilty, whereas no such presumption is drawn in the case of an

accused who is involved in identical offences under the other statutes.

30. Replying to this, learned Government Pleader contended that,

it was trite and settled law that, Articles 14, 15 and 16 supplement each

other and that, clause (3) of Art.15 was an exception to Article 14 and

clause (1) and (2) of Article 15 of Constitution. It was contended that,

validity of a law even apparently offending Article 14 can be upheld, if it

falls within ambit of clause (3) of Article 15.

31. To supplement the above contention, learned Government

Pleader referred to the decision reported in Om Narain Agarwal and

Others (supra) wherein it was held that, Clause (3) of Art.15 itself was

an exception to Art.14 and clauses (1) and (2) of Art.15 of the

Constitution. Under Art.14, a duty is enjoined on the State not to deny

any person equality before law and the equal protection of laws within the

territory of India. Art.15(1) provides that, the State shall not discriminate

against any citizen on grounds only of religion, race, caste, sex, place of

birth or any of them. Art.15(2) provides that no citizen shall on ground

only of religion, race, caste, sex, place of birth or any of them, be subject

to any disability, liability, restriction or condition. Art.15(3) provides an

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exception that, it shall not prevent the State from making any special

provision for women and children. It implies that, in case a special

provision is made for women, same would not be violative on the ground

of sex, which is prohibited under clauses (1) and (2) of Article 15 of the

Constitution.

32. To supplement the above contention that a law is valid if it

falls within the ambit of Article 15(3) of the Constitution, even if it offends

Art.14, the learned Government Pleader relied on the decisions of the

Division Bench of this Court in Hindustan Latex Ltd.(supra) and Anoop

M.S's case (supra).

33. Since POCSO Act was implemented to achieve the mandate

under Article 15(3) of the Constitution for providing special protection to

children, POCSO Act cannot be challenged on the ground that it offends

Article 14 of the Constitution. Further, treating the child victims as

constituting a class by itself, is based on an intelligible differentia, and is

meant to achieve the object of the Statute. Hence the statutory provisions

do not offends Article 14.

34. The next limb of contention advanced by the accused was

based on Article 20(3) of the Constitution. According to the learned

counsel, Article 20(3) of the Constitution provides for protection in

respect of conviction for offences which ensures that, no person accused

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of any offence shall be compelled to be a witness against himself. The

scope and ambit of Article 20(3) of the Constitution was elaborately

considered by the Constitution Bench of the Supreme Court in State of

Bombay v. Kathi Kalu Oghad (1961 KHC 343). It was held that the

bar under Art.20(3) of the Constitution will arise only if the person is

compelled to give evidence. Supreme Court held that in order to bring

the evidence within the mischief of clause 3 of Art.20 of the Constitution,

it must be shown not only that the person making the statement was an

accused at the time he made it and that it had a material bearing on the

criminality of the maker of the statement, but also that he was compelled

to make that statement. Compulsion, in the context must mean what in

law is called duress. Supreme Court concluded that the compulsion is a

physical, objective act and the state of mind of the person making the

statement, except where the mind has been so conditioned by some

extraneous process as to render the making of the statement involuntary

and, therefore extorted. It was held that, the mere asking by a police

officer investigating a crime against a certain individual to do a certain

thing is not compulsion within the meaning of Art.20(3) of the

Constitution.

35. The question whether presumptions similar to sections 29 and

30 of the POCSO Act, impose an absolute liability on the accused, or a

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reverse burden of proof and whether it offends his right of defence came

up for consideration in Chandran and Ors. v. State of Kerala and Ors.

(supra). In that, the accused faced prosecution for offence under sections

302 and 307 IPC for mixing noxious substance with liquor resulting in

death of several persons. Scope of section 57A of the Kerala Abkari Act

and the question of intention also came up. It was held that, it was the

cardinal rule of criminal jurisprudence that the burden of proof in relation

to any offence and to establish all facts constituting the ingredients of the

offence beyond reasonable doubt would lie upon the prosecution. If there

is any reasonable doubt, the accused is entitled to the benefit of it. At no

stage of the prosecution case, the burden to disprove the fact would rest

on the defence. However, exceptions have been provided in sections 105,

106 and 113(a) of the Evidence Act, which also raises a presumption

about abetment of suicide. Similarly, section 114A of the Evidence Act

raises presumption of absence of consent in a rape case. Several statutes

also provide burden of proof on the accused. Referring to the other

decisions, it was indicated that, providing exceptions or to place partial

burden on the accused was not violative of Universal Declaration of

Human Rights or even International convention on civil and political

rights.

36. The above issue was again considered by a two Judges Bench
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of the Supreme Court in Andhra Pradesh Grain and Merchants

Association's case (supra). In that section 16(1)(a) of the Food

Adulteration Act was challenged on the ground that, it amounted to

unreasonable classification. The presumption incorporated in section

16(1)(a) of the Food Adulteration Act was that, every trader charged with

an offence was imposed with the burden of proving that he was not guilty

of the offence charged by establishing facts which are within his

knowledge.

37. It was held by Supreme Court that in considering whether

absolute liability amounts to imposing unreasonable restrictions, the

Court has to strike a balance between the individual right and public

interest. It was also held that the Act does not infringe the guarantee of

Art.20(3) of the Constitution. It was held that, a vendor charged with an

offence under the Act is not compelled to be a witness against himself.

The provision has been made with a view to secure formal evidence of

facts.

38. This issue came up for consideration before the 5 Judges

Bench of the Supreme Court in K.Veeraswami's case (supra). One of the

contention raised in the above case was regarding the nature of offence

created under 5(1)(e) of the PC Act, 1947. It was contended that under

section 5(1)(e) of the Prevention of Corruption Act, 1947, reverse liability

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was imposed on the accused to establish his innocence. Supreme Court

referred to its earlier decision in State of Maharashtra v. Wasudeo

Ramachandra Kaidalwar (1981(3) SCC 199). In that case, Supreme

Court held that the terms and expressions appearing in section 5(1)(e) of

the Act were the same as those used in the old section 5(3) of same Act.

39. Section 5(1)(e) of the PC Act, provided that if a public servant

was in possession of pecuniary resources or property disproportionate to

his known sources of income, for which the public servant cannot

account, he is liable for punishment. Interpreting the scope of the

provision, Supreme Court held that, the provision contained in section

5(1)(e) of the Act was a self contained provision. The first part of the

section casts a burden on the prosecution and the second on the accused.

When section 5(1)(e) uses the words, 'for which the public servant cannot

satisfactorily account', it is implied that the burden is on such public

servant to account for the sources for the acquisition of disproportionate

assets.

40. After analyzing the above provision the Supreme Court held;

“to substantiate the charge, the prosecution must prove

the following facts before it can bring a case under

section 5(1)(e), namely (1) it must establish that the

accused is a public servant, (2) the nature and extent of

the pecuniary resources or property which were found in

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his possession, (3) it must be proved as to what were his

known sources of income I.e. known to the prosecution,

and (4) it must prove, quite objectively that such

resources or property found in possession of the accused

were disproportionate to his known sources of income.

Once these four ingredients are established, the offence

of criminal misconduct under section 5(1)(e) is complete,

unless the accused is able to account for such resources

of property. The burden then shifts to the accused to

satisfactorily account for his possession of

disproportionate assets. The extent and nature of burden

of proof resting upon the public servant to be found in

possession of disproportionate assets under section 5(1)

(e) cannot be higher than the test laid by the Court in

Jhingan case, (V.D.Jhingan v. State of U.P.(1996(3) SCR

736) : AIR 1996 SC 1762) i.e, to establish his case by a

preponderance of probability.

In K.Veeraswami's case (supra), doubt was raised by the accused

regarding the correctness of law laid down in Ramachandra Kaidalwar

Case (supra). Rejecting that contention, it was held that, the decision did

not require any reconsideration. It was held that, as per the

interpretation, there is useful parallel found in section 5(3) and clause (e)
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of section 5(1). Clause (e) creates a statutory offence which must be

proved by the prosecution. It is for the prosecution to prove that the

accused or any person on his behalf, has been in possession of pecuniary

resources or property disproportionate to his known sources of income.

When that onus is discharged by the prosecution, it is for the accused to

account satisfactorily for the disproportionality of the properties

possessed by him.

The Supreme Court also held that,

“this procedure may be contrary to the well known

principle of criminal jurisprudence laid down in Woolmington

v. Director of Public Prosecutions, (1935 AC 462) that the

burden of proof is always on the prosecution and never shifts

to the accused person. But Parliament is competent to place

the burden on certain aspects on the accused as well and

particularly in matter “specially within his knowledge”.

(S.106 of the Evidence Act). Adroitly, as observed in Swamy

case, 1960(1) SCR 461 : 1960 CriLJ 131 (at p.469) and

reiterated in Wasudeo case, 1981 (3) SCC 199 : 1981 (3)

SCR 675 (at p.683 : SCC p. 205), the prosecution cannot, in

the very nature of things, be expected to know the affairs of

a public servant found in possession of resources or property

disproportionate to his known sources of income. It is for

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him to explain. Such a statute placing burden on the

accused cannot be regarded as unreasonable, unjust or

unfair. Nor it can be regarded as contrary to Art.21 of the

Constitution as contended for the appellant. It may be noted

that the principle reaffirmed in Woolmington case (1935 AC

462) is not a universal rule to be followed in every case. The

principle is applied only in the absence of statutory provision

to the contrary (See the observation of Lord Templeman and

Lord Griffiths in Rig. v. Hunt (1986(3) WLR 1115, 1118,

1129)”.

41. Another decision, referred to by both sides which was directly

on the issue, though, in relation to another statute was Noor Aga v.

State of Punjab and Ors. (MANU/SC/2913/2008) . In that case, the

legality of section 35 and 54 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 was challenged on the ground that it imposes a

reverse burden on the accused and hence was unconstitutional and

against the human rights ethos.

42. The accused in Noor Aga's case contended that the provisions

of section 35 and 54 of the NDPS Act being draconian in nature imposing

reverse burden on an accused and, thus, being contrary to Art.14(2) of

the International Covenant on Civil and Political Rights ensuring that an

accused shall be deemed to be innocent until proved guilty, must be held

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to be ultravires Articles 14 and 21 of the Constitution of India. It was

further argued that, the burden of proof under the Act being on the

accused, a heightened standard of proof in any event was required to be

discharged by the prosecution to establish the foundational facts .

43. The above contention was considered in detail by the Supreme

Court. It was held that, Presumption of innocence was a human right

as envisaged under Article 14(2) of the International Covenant on Civil

and Political Rights. It, however, cannot per se be equated with the

Fundamental Right and liberty adumbrated in Article 21 of the

Constitution of India. It, having regard to the extent thereof, would not

militate against other statutory provisions, which, of course, must be read

in the light of the Constitutional guarantees as adumbrated in Articles 20

and 21 of the Constitution of India.

44. The Court proceeded to hold that the Act contained draconian

provisions. It must, however, be borne in mind that the Act was enacted

having regard to the mandate contained in International Conventions on

Narcotic Drugs and Psychotropic Substances. Only because the burden of

proof under certain circumstances was placed on the accused, the same,

by itself would not render the impugned provisions unconstitutional, it

was held.

45. The Court further held that a right to be presumed innocent,

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subject to the establishment of certain foundational facts and burden of

proof, to a certain extent, can be placed on an accused. It must be

construed having regard to the other international conventions and

having regard to the fact that it has been held to be constitutional. Thus,

a statute may be constitutional but a prosecution thereunder may not be

held to be one. Indisputably, civil liberties and rights of citizens must be

upheld. Fundamental Right is not absolute in terms, it was held.

46. The Court held that the provision for reverse burden is not

only provided under special Acts like the present one, but also under the

general statutes like the Indian Penal Code. The Indian Evidence Act

provides for such a burden on an accused in certain matters, as, for

example, under section 113A and 113B thereof. Supreme Court noticed

that, having regard to the factual scenario involved in cases, e.g., where

husband is said to have killed his wife when both were in the same room,

burden is shifted to the accused. It was the consistent view of Supreme

Court that 'reason to believe', as provided in several provisions of the Act

and as defined in Section 26 of the Indian Penal Code was essentially a

question of fact.

47. The view of the Court was that constitutionality of a penal

provision placing burden of proof on an accused, must be tested on the

anvil of the State's responsibility to protect innocent citizens. The issue

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of reverse burden vis-a-vis the human rights regime must also be noticed.

The approach of the Common Law was that it was the duty of the

prosecution to prove a person guilty. This common law principle was

subject to Parliamentary Legislation to the contrary. The Court noted

that, in Article 11(1) of the Universal Declaration of Human Rights (1948),

it was stated that everyone charged with a penal offence has the right to

be presumed innocent until proved guilty according to law. Similar

provisions have been made in Article 6.2 of the European Convention for

the protection of Human Rights and Fundamental Freedoms (1950) and

Article 14.2 of the International Covenant on Civil and Political Rights

(1966).

48. Supreme Court noticed that in Seema Silk & Sarees and Anr. v.

Directorate of Enforcement and Ors. (2008(226) ELT 673 (SC), the

Constitutionality of Sections 18(2) and 18(3) of the Foreign Exchange

Regulation Act, 1973 were questioned on the ground of infringing the

'equality clause' enshrined in Article 14 of the Constitution. The Court

held that, a legal provision does not become unconstitutional only

because it provides for a reverse burden. Referring to Hiten P. Dalal v.

Bratindranath Banerjee (2001 CriLJ 4647) and M.S.Narayan Menon v.

State of Kerala (2006 CriLJ 4607), it was held that the question as regards

burden of proof is procedural in nature.

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49. According to the Court, the presumption raised against the

accused was a rebuttable one. Reverse burden, as also statutory

presumptions, have been envisaged in several statutes as, for example,

the Negotiable Instruments Act, Prevention of Corruption Act, TADA etc.

Presumption is raised only when certain foundational facts are

established by the prosecution. The accused in such an event would be

entitled to show that he has not violated the provisions of the Act.

Evidently, any presumption has to emanate on establishment of certain

foundational facts and presumption cannot arise from a vacuum.

50. Supreme Court held that, provisions imposing reverse burden,

however, must not only be required to be strictly complied with but also

may be subject to proof of some basic facts as envisaged under the

statute in question. The provisions of section 35 of the NDPS Act as also

Section 54 thereof, in view of the decisions of this Court, therefore,

cannot be said to be ex facie unconstitutional.

51. According to the learned counsel for the accused, in Noor

Aga's case (supra) the present contention regarding constitutionality of

the Statute was not raised and consequently, Supreme Court did not get

an opportunity to look into those aspects. On the other hand, learned

ASG and learned Public Prosecutor specifically contended that, all the

legal points were considered by the Supreme Court in that case and it
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directly applied to the facts of this case. Analysis of the above

precedents indicate that, judicial view is consistent that the procedure of

reverse burden even if to a limited extent is justifiable. It is available in

several other statutes, and such statutes have survived the test of

challenge.

52. Regarding interpretation of statutes in the nature of the

POCSO Act, which has a sociological content, Supreme Court had

suggested for a purposive construction in M/s.Eera, through Dr.Manjula

Krippendorf v. State (Govt. of NCT fo Delhi) and Anr. (AIR 2017 SC 3457)

the Supreme Court held that,

“to highlight Legislative intention and purpose of

legislation regard being had to fact that context has to be

appositely appreciated. It is foremost duty of Court while

construing provision to ascertain intention of legislature,

for it is an accepted principle that legislature expresses

itself with use of correct words and in absence of any

ambiguity or resultant consequence does not lead to any

absurdity, there is no room to look for any other aid in name

of creativity. Method of purposive construction to be

adopted keeping in view text and context of legislation,

mischief it intends to obliterate and fundamental intention

of legislature when it comes to social welfare legislations..

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….... Legislative intention must be gatherable from text,

content and context of statute and purposive approach

should help and enhance functional principle of

enactment.”

53. Same view was aired by another two Judges Bench of the

Supreme Court in Independent Thought v. Union of India and

Another ((2017) 10 SCC 800) and K.B.Nagur, M.D. (Ayurvedic) v.

Union of India ((2012)4 SCC 483) . Though, in the context of a

different statute, Supreme Court held that the construction in such type

of statutes should be preferred which makes the machinery workable.

54. According to the learned counsel for the accused, Art.21 of the

Constitution which enshrines an essential and valuable Fundamental

Right, steps in the interference in the life and liberty of a person

otherwise than by due process of law. According to the learned counsel,

due process of law as provided under the statute should be tested against

Arts.14, 19 and 21 of the Constitution. To support this contention,

learned counsel relied on the decision in Nikesh Tarachand Shah v.

Union of India and Another ((2018)11 SCC 1). With reference to the

significance of Art.21, it was held that,

“Art.21 was the repository of a vast number of

substantive and procedural rights post Maneka Gandhi,

(1978)1 SCC 248). The decision in Maneka Gandhi case

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has substantially infused the concept of due process in

our constitutional jurisprudence. True, our Constitution

has no “due process” clause. But after the decision in

Maneka Gandhi case, Art.21 affords protection not only

against the executive action but also against the legislation

which deprives a person of his life and personal liberty

unless the law for deprivation is reasonable, just and fair.

The procedure for depriving a person of his life and personal

liberty must be eminently just, reasonable and fair and if

challenged before the court, it is for the Court to determine

whether such procedure is reasonable, just and fair and if

the court finds that it is not so, the Court will strike down

the same.”

55. In the above case, Section 45 of the Prevention of Money

Laundering Act, 2002 was challenged on the ground that, it was violative

of Art.21 of the Constitution. It provided that, no person accused of

offence punishable for more than three years under any of the offence in

part A of the schedule shall be released by the Court unless the Public

Prosecutor was given an opportunity to oppose and unless, where Public

Prosecutor opposes, the Court was satisfied that there are reasonable

grounds for believing that the person is not guilty of such offence and that

he is not likely to commit any offence while on bail. Analyzing the scope
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of this protection, Supreme Court held that,

“section 45 was a drastic provision which turns on its head

the presumption of innocence which is fundamental to a

person accused of any offence. Before application of a

section which makes drastic inroads into the fundamental

rights of personal liberty guaranteed by Art.21 of the

Constitution, the Court must be doubly sure that such

provision furthers a compelling State interest for tackling

serious crime. In the absence of any such compelling

State interest, the indiscriminate application of the

provisions of Section 45 will certainly violate Art.21 of the

Constitution. Provisions akin to Section 45 have only been

upheld on the ground that there is a compelling State

interest in tackling crimes of an extremely heinous

nature.”

56. Ultimately, Supreme Court held that section 45(1) of the

Prevention of Money Laundering Act, 2002 insofar as it imposed two

further conditions for release on bail was unconstitutional as it violated

Art.14 and 21 of the Constitution. Supreme Court had noted that though

there are provisions akin to section 45 in other statutes also, their

Constitutionality had been upheld on the ground that, there was a

compelling State interest in tackling crimes of extremely serious nature.

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However, restrictions under the Prevention of Money Laundering Act

could not satisfy the test of predominant State interest in tackling crime

of extremely serious nature. In the case of POCSO Act, the principle laid

down in Nikesh Tarachands Case (supra) clearly will not apply in the case

of POCSO Act due to the predominant state interest in tackling crimes

against child, which are of extremely horrendous nature.

57. The scope of presumptions under the various statutes had

come up before the Honourable Supreme Court in Kumar Exports v.

Sharma Carpets ((2009)2 SCC 513), Abdul Rashid Ibrahim

Mansuri v. State of Gujarat (supra) and Sher Singh @ Partapa v.

State of Haryana (2015 KHC 4020). In Kumar Exports case (supra),

the question of presumption under the Negotiable Instruments Act,

sections 138 and 139 came up for consideration before the Supreme

Court. Analyzing the scope of the Statute, vis-a-vis the presumption

incorporated therein, it was noticed by the Supreme Court that in a

significant departure from the general rule applicable to contracts,

Section 118 of the NI Act provided certain presumptions to be raised. It

also lay down some special Rules of evidence relating to presumptions

which were justifiable since the NI passes from hand to hand on

endorsement and it would make trading very difficult and negotiability of

the instrument impossible, unless certain presumptions are incorporated.

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Legally, Supreme Court indicated that application of presumptions can

apply if certain essential preconditions are satisfied, required under that

Act and the provisions of the Evidence Act, thereby the persons against

whom presumptions are raised are not prejudiced.

“Applying the definition of the word, “proved” in

Section 3 of the Evidence Act to the provisions of Sections

118 and 139 of the Act, in a trial under Section 138 of the

Act a presumption will have to be made that every

negotiable instrument was made or drawn for consideration

and that it was executed for discharge of debt or liability

once the execution of negotiable instrument is either proved

or admitted. As soon as the complainant discharges the

burden to prove that the instrument was executed by the

accused, the rules of presumptions under sections 118 and

139 of the Act help him shift the burden on the accused.

The presumptions end only when the contrary is proved by

the accused, that is, the cheque was not issued for

consideration and in discharge of any debt or liability.”

58. Referring to the standard of proof required for rebuttal, it was

held by the Supreme Court that rebuttal does not require proof beyond

reasonable doubt. Something probable has to be brought on record, so

that burden of proof can be shifted to the complainant by producing

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convincing circumstantial evidence. Supreme Court explained as follows,

“the accused in a trial under Section 138 of the Act has

two option. He can either show that consideration and debt

did not exist or that under the particular circumstances of the

case the non existence of consideration and debt is so

probable that a prudent man ought to suppose that no

consideration and debt existed. To rebut the statutory

presumptions an accused is not expected to prove his defence

beyond reasonable doubt as is expected of the complainant in

a criminal trial. The accused may adduce direct evidence to

prove that the note in question was not supported by

consideration and that there was no debt or liability to be

discharged by him. However, the court need not insist in

every case that the accused should disprove the non-existence

of consideration and debt by leading direct evidence because

the existence of negative evidence is neither probable nor

contemplated. At the same time, bare denial of the passing of

the consideration and existence of debt, apparently does not

serve the purpose of the accused. Something which is

probable has to be brought on record for getting the burden of

proof shifted to the complainant. To disprove the

presumptions, the accused should bring on record such facts

and circumstances, upon consideration of which, the court

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may either believe that the consideration and debt did not

exist or their non-existence was so probable that a prudent

man would under the circumstances of the case, act upon the

plea that they did not exist. Apart from adducing direct

evidence to prove that the note in question was not supported

by consideration or that he had not incurred any debt or

liability, the accused may also rely upon circumstantial

evidence and if the circumstances so relied upon are

compelling, the burden may likewise shift again on to the

complainant. The accused may also rely upon presumptions of

fact, for instance, those mentioned in Section 114 of the

Evidence Act to rebut the presumptions arising under sections

118 and 139 of the NI Act.”

59. In Abdul Rashid Ibrahim Mansuri (supra), 3 Judges Bench

analyzed the presumption regarding the culpable state of mind of an

accused under section 35 of the NDPS Act. It was held that, if it is

established prima facie that accused was in possession of contraband,

burden of proof is on him to prove that he had no knowledge about the

contents of such substance held in a bag or packet. The standard of

proof was delineated in subsection (2) as “beyond reasonable doubt”. If

the court, on an appraisal of the entire evidence does not entertain doubt

of a reasonable degree that he had real knowledge of the nature of

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substance concealed in the gunny bags, then the appellant is not entitled

to acquittal. However, if the court entertains strong doubt regarding the

accused's awareness about the nature of the substance in the gunny bags,

it would be a miscarriage of criminal justice to convict him of the offence

keeping such strong doubt un-dispelled. Even so, it is for the accused to

dispel any doubt in that regard. The burden of proof cast on the accused

under section 35 can be discharged through different modes. One is that,

he can rely on the materials available in the prosecution evidence. Next

is, in addition to that, he can elicit answers from prosecution witnesses

through cross examination to dispel any such doubt. He may also adduce

other evidence when he is called upon to enter on his defence. In other

words, if circumstances appearing in prosecution case or in the

prosecution evidence are such as to give reasonable assurance to the

Court that appellant could not have had the knowledge or the required

intention, the burden cast on him under Section 35 of the Act would stand

discharged even if he has not adduced any other evidence of his own

when he is called upon to enter on his defence.

60. In Sher Singh's case (supra) the scope of the presumption

under section 304B of the Indian Penal Code in the context of section

113A and 113 of the Evidence Act, 1872 came up for consideration. It

was held that,

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“in section 113 of the Evidence Act, Parliament has,

in the case of a wife's suicide, “presumed” the guilt of the

husband and the members of his family. Significantly, in

section 113B which pointedly refers to dowry deaths,

Parliament has again employed the word “presume”.

However, in substantially similar circumstances, in the

event of a wife's unnatural death, Parliament has in section

304B “deemed” the guilt of the husband and the members

of his family....... Art.20 of Constitution while not affirming

the presumption of innocence, does not prohibit it, thereby,

leaving it to Parliament to ignore it whenever found by it to

be necessary or expedient. A percutaneous scrutiny

reveals that some legal principles such as presumption of

innocence can be found across a much wider legal system,

ubiquitously in the Common Law system, and restrictively

in the Civil Law system, it seems to us that the

presumption of innocence is one such legal principle which

strides the legal framework of several countries owing

allegiance to the Common Law; even international Law

bestows its imprimatur thereto. Art.11.1 of the Universal

Declaration of Human Rights, 1948 states - “everyone

charged with a penal offence has the right to be presumed

innocent until proved guilty according to law in a public

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trial at which he has had all the guarantees necessary for

his defence.” Art.14(3) of the International Covenant on

civil and political Rights, 1966, assures as a minimum

guarantee that everyone has a right not to be compelled to

testify against himself or to confess guilt. Art.6 of the

European Convention for the Protection of Human Rights

and Fundamental Freedoms, firstly, promises the right to a

fair trial and secondly, assures that anyone charged with a

criminal offence shall be presumed innocent until proved

guilty according to law. We may immediately emphasize

that the tenet of presumed innocence will always give way

to explicit legislation to the contrary. The presumption of

innocence has also been recognized in certain

circumstances to constitute a basic human right.

Parliament, however, has been tasked with the

responsibility of locating myriad competing, if not

conflicting, societal interests. It is quite apparent that

troubled by the exponential increase in the incidents of

bride burning, Parliament thought it prudent, expedient

and imperative to shift the burden of proof in

contradistinction to the onus of proof on to the husband

and his relatives in the cases where it has been shown that

a dowry death has occurred. The inroad into or dilution of

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the presumption of innocence of an accused has, even de

hors statutory sanction, been recognized by Court in those

cases where death occurs in a home where only the other

spouse is present; as also where an individual is last seen

with the deceased. The deeming provision in section 304B

is, therefore, neither a novelty in nor an anathema to our

criminal law jurisprudence.”

61. In the interpretation of various provisions, the Courts have

held consistently that wherever such presumption are provided under the

statute against the accused, it does not absolve the duty of the

prosecution to establish the foundational facts. In Naresh Kumar v.

State of Himachal Pradesh (AIR 2017 SC 3859) , Supreme Court held

that the presumption against the accused of culpability under section 35

and under section 54 of the NDPS Act to explain possession satisfactorily,

are rebuttable. It does not dispense with the obligation of prosecution to

prove the charge beyond all reasonable doubt. The presumptive provision

with reverse burden of proof, does not sanction conviction on basis of

preponderance of probability. Section 35(2) provides that a fact can be

said to have been proved if it is established beyond reasonable doubt and

not on preponderance of probability. To hold that, the right of the

accused to a fair trial could not be whittled down under the Act, Supreme

Court relied on the decision in Noor Aga's case (supra). In the above
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case, on facts, Supreme Court found that prosecution failed to establish

the foundational facts beyond all reasonable doubt and consequently, the

accused was acquitted.

62. The question of reverse burden in the context of sections 35

and 54 of the NDPS Act again came up for consideration in Gangadhar

@ Gangaram v. State of Madhya Pradesh (2020(5) KLT 294 (SC).

Explaining the scope, Supreme Court held that the presumptions of

culpability against the accused under sections 35 and 54 of the Act to

explain possession satisfactorily, are rebuttable. It does not dispense with

the obligation of the prosecution to prove the charge beyond all

reasonable doubt. The presumptive provision with reverse burden of

proof, does not sanction conviction on basis of preponderance of

probability. It was further held that the stringent provisions of NDPS Act

does not dispense with the requirements of the prosecution to establish a

prima facie case beyond reasonable doubt after investigation, only after

which the burden of proof shall shift to the accused. It was held that the

gravity of the sentence and the stringency of the provisions will therefore

call for a heightened scrutiny of the evidence for establishment of

foundational facts by the prosecution.

63. The operational field of the presumptions, specifically under

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the POCSO Act have come up for consideration before the various High

Courts in India. In David v. State of Kerala (2020(5) KLT 92) , learned

Single Judge of this Court had occasion to consider the scope of

presumption and the duty of the prosecution, to establish the foundational

facts. It was held that the standard of proof of innocence that is expected

from the accused in a case under the POCSO Act was only on the

touchstone of preponderance of probability. Section 30 of POCSO Act

clarifies that the culpable state of mind on the part of accused was to be

proved by the accused beyond reasonable doubt and not merely on the

preponderance of probability, such requirement was absent in section 29

of the POCSO Act. In Yogesh Arjun Maral v. State of Maharashtra

(2016(1) Bom CR(crl) 474), the learned Single Judge was skeptical

about the presumption under section 29 of the POCSO Act and held the

view that it was contrary to the basic and normal principles of criminal

jurisprudence. The Honourable Judge held that the terms of the said

section was very wide and a plain reading thereof indicates that the said

provision is contrary to the basic and normal principles of criminal

jurisprudence. It was opined that the ambit and scope of the presumption

enacted by section 29 and its true meaning would certainly need a

detailed discussion in an appropriate case.

64. However, the above view of the learned Single Judge does not
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appear to be in consonance with the settled legal principles. Honourable

Supreme Court in Nikesh Tarachand Shah's case (supra) had observed

that such presumptions are justifiable in larger state interest and was not

unknown to the criminal jurisprudence. It has also been reiterated that it

does not absolve the prosecution of its duty to establish the foundational

facts of the prosecution beyond all reasonable doubts.

65. In Ragul v. State (Crl.Appeal.No.391 of 2016) learned

Single Judge of the Madras High Court had occasion to consider the

scope of the presumptions under the POCSO Act, at the instance of the

accused who challenged the conviction . It was held that section 29 of the

POCSO Act has to be strictly construed in as much as penal consequences

are involved. It was held that, Section does not say that it was irrebutable

presumption and in this context, it can be safely concluded that the

presumption to be drawn under the provision is a rebuttable presumption.

The Court proceeded to consider whether the prosecution has put forth

and established the foundational facts to draw presumption under section

29 of the POCSO Act.

66. In Navin Dhaniram Baraiye v. The State of Maharashtra

(2018 CriLJ 3393) learned Single Judge of the High Court of Bombay

held the view that section 29 of the POCSO Act imposes a duty on the

accused to prove the contrary and in case he fails to do so, presumption

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would operate against him leading to his conviction under the provisions

of the POCSO Act. It was held that there was no dispute that no

presumption is absolute and every presumption is rebuttable. Section 29

would come into operation only when the prosecution is able to establish

the facts that would form the foundation for the presumption under

section 29 of the POCSO Act. Otherwise, all that the prosecution would

be required to do was to file a charge sheet against the accused under the

provisions of the said Act and then claim that the evidence of the

prosecution witnesses would have to be accepted, as gospel truth and

further that the entire burden would be on the accused to prove to the

contrary. Such a position of law or interpretation of the presumption

under section 29 of the POCSO Act cannot be accepted as it would clearly

violate the Constitutional mandate that no person shall be deprived of his

liberty except in accordance with procedure established by law. It was

held that, once the foundation of the prosecution case was laid by leading

legally admissible evidence, it becomes incumbent on the accused to

establish from the evidence on record that he has not committed the

offence or to show from the circumstances of a particular case that, a

man of ordinary prudence would most probably draw an inference of

innocence in his favour. The accused may achieve such an end by leading

defence evidence or by discrediting prosecution witnesses through

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effective cross examination or by exposing the patent absurdities or

inherent infirmities in their version by an analysis of the special features

of the case. However, the aforesaid statutory presumption cannot be read

to mean that the prosecution version was to be treated as gospel truth in

every case. The presumption does not take away the essential duty of the

Court to analyze the evidence on record in the light of the special features

of the particular case, e.g., patent absurdities or inherent infirmities in

the prosecution version or existence of entrenched enmity between the

accused and the victim giving rise to an irresistible inference of falsehood

in the prosecution case while determining whether the accused has

discharged his onus and established his innocence in the given facts of a

case. To hold otherwise, would compel the Court to mechanically accept

the mere ipse dixit of the prosecution and give a stamp of judicial

approval to every prosecution, howsoever, patently absurd or inherently

improbable it may be. It was held that, if prosecution is successful in

laying the foundational facts, the presumption is raised against the

accused and he can rebut the same either by discrediting the prosecution

witnesses through cross examination, demonstrating that the prosecution

case is improbable and absurd or the accused could lead evidence to

prove his defence, in order to rebut the presumption. In either case, the

accused is required to rebut the presumption on the touchstone of

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preponderance of probability.

67. In Sahid Hossain Biswas v. State of West Bengal

((2017)2 CALLT 243(HC)) the same view was expressed by a learned

Single Judge of Calcutta High Court. According to the learned Judge,

statutory presumptions under the POCSO Act creates an exception to the

ordinary rule of innocence available to the accused in a criminal trial and

puts the onus on the accused to rebut the presumption and establish his

innocence. Regarding the operational field of presumption, it was held

that, once the foundation of the prosecution case is laid by leading legally

admissible evidence, it becomes incumbent on the accused to establish

from the evidence on record that he has not committed the offence or to

show from the circumstances of a particular case that a man of ordinary

prudence would most probably draw an inference of innocence in his

favour. The accused may achieve such an end by leading defence

evidence or by discrediting prosecution witnesses through effective cross

examination or by exposing the patent absurdities or inherent infirmities

in their version. However, the aforesaid statutory presumption cannot be

read to mean that the prosecution version was to be treated as gospel

truth in every case. The presumption does not take away the essential

duty of the Court to analyze the evidence on record in the light of the

special features of a particular case.

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68. The same view was expressed by the Division Bench of the

Honourable High Court in Subrata Biswas and Ors. v. The State

(MANU/WB/1440/2019).

69. In the above cases, various High Courts, except the High

Court of Bombay in Yogesh Arjun Maral's case (supra) which has

expressed a different view, have consistently held that, though the

presumption under section 29 of the POCSO Act was a rebuttable

presumption, it does not absolve the prosecution of its duty to establish

the foundational facts. None of the above courts was of the view that the

presumptions under sections 29 and 30 of the POCSO Act violate the

Fundamental Rights of the accused.

70. Evaluation of the above judicial pronouncements lead to the

conclusion that, statutory provisions which exclude mens rea, or those

offences which impose strict liability are not uncommon and that by itself

does not make such statutory provisions unconstitutional. Further,

Statutes imposing limited burden on the accused to establish certain facts

which are specifically within his knowledge, is neither rare in Indian

Criminal Law and nor do they, by itself make such statutory provisions

unconstitutional. However, the statutory burden on accused should only

be partial and should not thereby shift the primary duty of prosecution

to establish the foundational facts constituting the case, to the accused.

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Such a provision should also be justifiable on the ground of predominant

public interest. Hence, sections 29 and 30 of the POCSO Act, do not

offend Articles 14 and 19 of the Constitution of India. They do not in any

way violate the Constitutional guarantee, and hence not ultravires to the

Constitution.

71. It is stated that Art.21 will be infringed if the right to life or

liberty of a person is taken away, otherwise than by due process of law. It

has been judicially affirmed that Article 21 affords protection not only

against executive action, but also against legislations which deprive a

person of his life and personal liberty otherwise than by due process of

law. When a statutory provision is challenged alleging violation under

Art.21 of Constitution of India, State is bound to establish that the

statutory procedure for depriving the person of his life and personal

liberty is fair, just and reasonable. The main contention of the petitioners

based on the alleged violation of Articles 20(3) and 21 of the Constitution

of India on the ground that the presumption under the POCSO Act

imposes a burden on the accused to expose himself to cross examination

which amounts to testimonial compulsion and that, it amounts to breach

of his right to silence, and that the burden of proof is heavily tilted

against him has to be considered in the light of the law laid down by

the Supreme Court in Kathi Kalu Oghad's case (supra). The larger
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Bench held that the bar under Art.20(3) of the Constitution will arise only

if the accused is compelled to give evidence. To bring such evidence

within the mischief of Art.20(3), it must be shown that accused was under

a compulsion to give evidence and that the evidence had a material

bearing on the criminality of the maker. Supreme Court explained that,

compulsion in the context must mean duress. The law as explained by the

Larger Bench holds the field even now.

72. Hence the presumptions under sections 29 and 30 of the

POCSO Act have to be examined on the anvil of tests laid down in Kathi

Kalu Oghad's case (supra). While considering similar statutory

provisions, Supreme Court, in Veeraswami's case, Ramachandra

Kaidalwar's case, Noor Agas case, Kumar Export's case and Abdul

Rashid Ibrahim's case has consistently held that the presumptions

considered therein, which are similar to sections 29 and 30 of the POCSO

Act do not take away the primary duty of prosecution to establish the

foundational facts. This duty is always on the prosecution and never

shifts to the accused. POCSO Act is also not different. Parliament is

competent to place burden on certain aspects on the accused, especially

those which are within his exclusive knowledge. It is justified on the

ground that, prosecution cannot, in the very nature of things be expected

to know the affairs of the accused. This is specifically so in the case of

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sexual offences, where there may not be any eye witness to the incident.

Even the burden on accused is also a partial one and is justifiable on

larger public interest.

73. In Noor Aga's case (supra) it was held that, presumption of

innocence is a human right and cannot per se be equated with the

Fundamental Right under Art.21 of the Constitution of India. It was held

that, subject to the establishment of foundational facts and burden of

proof to a certain extent can be placed on the accused. However,

Supreme Court in various decisions referred above has held that,

provisions imposing reverse burden must not only be required to be

strictly complied with but also may be subject to proof of some basic facts

as envisaged under the Statute. Hence, prosecution has to establish a

prima facie case beyond reasonable doubt. Only when the foundational

facts are established by the prosecution, the accused will be under an

obligation to rebut the presumption that arise, that too, by adducing

evidence with standard of proof of preponderance of probability. The

insistence on establishment of foundational facts by prosecution acts as a

safety guard against misapplication of statutory presumptions.

74. Foundational facts in a POCSO case include the proof that the

victim is a child, that alleged incident has taken place, that the accused

has committed the offence and whenever physical injury is caused, to

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establish it with supporting medical evidence. If the foundational facts of

the prosecution case is laid by the prosecution by leading legally

admissible evidence, the duty of the accused is to rebut it, by establishing

from the evidence on record that he has not committed the offence. This

can be achieved by eliciting patent absurdities or inherent infirmities in

the version of prosecution or in the oral testimony of witnesses or the

existence of enmity between the accused and victim or bring out the

peculiar features of the particular case that a man of ordinary prudence

would most probably draw an inference of innocence in his favour, or

bring out material contradictions and omissions in the evidence of

witnesses, or to establish that the victim and witnesses are unreliable or

that there is considerable and unexplained delay in lodging the complaint

or that the victim is not a child. Accused may reach that end by

discrediting and demolishing prosecution witnesses by effective cross

examination. Only if he is not fully able to do so, he needs only to rebut

the presumption by leading defence evidence. Still, whether to offer

himself as a witness is the choice of the accused. Fundamentally, the

process of adducing evidence in a POCSO case does not substantially

differ from any other criminal trial; except that in a trial under the

POCSO Act, the prosecution is additionally armed with the presumptions

and the corresponding obligation on the accused to rebut the

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presumption.

75. In POCSO cases, considering the gravity of sentence and the

stringency of the provisions, an onerous duty is cast on the trial court to

ensure a more careful scrutiny of evidence, especially, when the evidence

let in is the nature of oral testimony of the victim alone and not

corroborated by any other evidence-oral, documentary or medical.

76. Legally, the duty of the accused to rebut the presumption

arises only after the prosecution has established the foundational facts of

the offence alleged against the accused. The yardstick for evaluating the

rebuttable evidence is limited to the sale of preponderance of probability.

Once the burden to rebut the presumption is discharged by the accused

through effective cross examination or by adducing defence evidence or

by the accused himself tendering oral evidence, what remains is the

appreciation of the evidence let in. Though, it may appear that in the

light of presumptions, the burden of proof oscillate between the

prosecution and the accused, depending on the quality of evidence let in,

in practice the process of adducing evidence in a POCSO case does not

substantially differ from any other criminal trial. Once the recording of

prosecution evidence starts, the cross examination of the witnesses will

have to be undertaken by the accused keeping in mind the duty of the

accused to demolish the prosecution case by an effective cross

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examination and additionally to elicit facts to rebut the statutory

presumptions that may arise from the evidence of prosecution witnesses.

Practically, the duty of prosecution to establish the foundational facts and

the duty of accused to rebut presumptions arise, with the commencement

of trial, progresses forward along with the trial and establishment of one,

extinguishes the other. To that extent, the presumptions and the duty to

rebut presumptions are co-extensive.

77. The discussion of above shows that, with the inbuilt

safeguards in the Act, the limited presumption do not upset the basic

features of criminal law. Tendering of the oral evidence by accused is not

mandatory or essential. To that extent, the apprehension of the

petitioners that, sections 29 and 30 of POCSO Act violate Art.20(3) of the

Constitution is misplaced.

In the result,, sections 29 and 30 of the POCSO Act is held to be

Constitutional and they do not violate the Fundamental Rights, nor are

they contrary to the basic criminal Principles.

W.P(C) and Crl.M.C fails and are dismissed.

Sd/-

SUNIL THOMAS

Sbna JUDGE
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APPENDIX OF WP(C) 15564/2017

PETITIONER'S EXHIBITS:

EXHIBIT P1 CERTIFIED COPY OF THE FINAL REPORT IN

590/2016 ON THE FILE OF ADDL SESSION COURT-
I, THRISSUR

EXHIBIT P2 CERTIFIED COPY OF THE FIR IN CR.761/2015 OF

ELOOR POLICE STATION

EXHIBIT P3 TRUE COPY OF THE COMMON ORDER OF KERALA

STATE HUMAN RIGHTS COMMISSION IN HRMP
NOS.6260/2015, 6318/2015, AND 6750/2015
DATED 11.11.2015

EXHIBIT R2 A A COPY OF THE JUDGMENT DATED 25.01.2017 OF

GAUHATI HIGH COURT IN CRIMINAL REFERENCE
(TAKEN UP) NO.1 OF 2015
 WWW.LIVELAW.IN

W.P(C).15564/17 & Crl.M.C.3104/2018

67

APPENDIX OF Crl.MC 3104/2018

PETITIONER'S EXHIBITS:

ANNEXURE A TRUE COPY OF THE FINAL REPORT IN CRIME NO.

1089/2016 OF INFO PARK POLICE STATION,
KOCHI CITY.

ANNEXURE B TRUE COPY OF THE COMPLAINT PREFERRED BY THE

1ST RESPONDENT HEREIN BEFORE THE INSPECTOR
GENERAL OF POLICE, ERNAKULAM RANGE.

ANNEXURE C TRUE COPY OF THE F.I.R. IN CRIME NO.

1089/2016 OF INFO PARK POLICE STATION,
KOCHI CITY.