Special Law, Regular Bail, Perverse Outcome? Assessing Judicial Prejudice in Bail Proceedings under the POCSO Act: Rajballav Prasad, Dharmander Singh, and the Delhi High Court
Abhiram Nitin*
Volume 17 Issue 2 (2024)
The presumption of innocence is foundational to criminal law and must operate as a safeguard against prejudice during bail proceedings. However, the Indian Supreme Court has historically been inconsistent in clarifying the presumption’s status as a right at bail, and has violated it in its bail jurisprudence, notably by prejudicially considering the seriousness of the alleged offence. Prejudice influenced by considerations of seriousness has also been explicitly legislated into the bail provisions of several of India’s ‘special criminal laws’, further compromising the presumption. In this regard, The Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) stands out, as it is a stringent special criminal law but with regular bail provisions. This paper undertakes to examine whether courts have nonetheless been prejudicial in bail adjudication under the POCSO Act. It finds that decisions of the Supreme Court, Kerala High Court and Delhi High Court (DHC) have erroneously applied the POCSO Act’s ‘reverse-onus’ clause to bail proceedings. The most detailed among these judgements — the DHC’s 2020 judgement in Dharmander Singh v. State (NCT of Delhi) — prompts this paper to undertake a detailed examination of the DHC’s POCSO bail jurisprudence in 2022 and 2023 to gauge the precedential/persuasive effect of Dharmander Singh, as well as general evidence of special prejudice at scale. However, the paper argues that the record reveals no significant special prejudice due to Dharmander Singh, the reverse-onus clause in §29 of the POCSO Act, or the ‘seriousness’ of POCSO offences. Since the presence of such prejudice under a statute with regular bail provisions would aggravate the threat to the proper operation of the presumption of innocence in Indian jurisprudence, the finding of its absence in the DHC’s judgements is welcomed.