Presumption Of Guilt Under Section 29 POCSO Act Cannot Be Invoked At Anticipatory Bail Stage Before Framing Of Charges: Allahabad High Court

"If a bail plea is being considered before charges have been framed, Section 29 has no application; and the grant or refusal of bail is to be decided on the usual and ordinary settled principles." Allahabad High Court held that the statutory presumption of guilt under Section 29 of the Protection of Children from Sexual Offences (POCSO) Act does not apply at the stage of considering pre-arrest bail before charges are framed by the trial court.

A bench of Justice Jitendra Kumar Sinha observed that requiring an accused to rebut the presumption of guilt during a bail hearing would amount to conducting an impermissible "mini-trial" and violate the fundamental tenets of criminal jurisprudence.

An FIR was registered against Swami Avimukteshwaranand Saraswati and another applicant under various provisions of the Bharatiya Nyaya Sanhita (BNS) and the POCSO Act, alleging penetrative sexual assault on two minor boys. The FIR was lodged at the direction of the Special Judge (POCSO), Prayagraj, acting on an application filed by the first informant under Section 173(4) of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Apprehending arrest, the applicants directly approached the High Court seeking anticipatory bail, which prompted the State to raise preliminary objections regarding the maintainability of the direct approach and the application of the statutory presumption against the accused.

The primary question before the court was whether an application for anticipatory bail can be directly entertained by the High Court under Section 482 of the BNSS without the accused first approaching the Sessions Court. The court was also called upon to determine whether the presumption of guilt under Section 29 of the POCSO Act can be invoked by the prosecution to deny anticipatory bail prior to the framing of charges.

Addressing the preliminary objection regarding maintainability, the court noted that while Section 482 of the BNSS confers concurrent jurisdiction on both the High Court and the Sessions Court, the normal judicial rule dictates that an accused must approach the Sessions Court first. However, relying on the Supreme Court's pronouncement in Manjeet Singh Vs. State of Uttar Pradesh and a five-judge bench decision of the Allahabad High Court in Ankit Bharti Vs. State of U.P., the bench clarified that the High Court can entertain a direct plea in "special or extraordinary circumstances." The court observed that since the FIR in the present case was lodged pursuant to an order passed by the Special Judge (POCSO) acting in a dual capacity as both Magistrate and Sessions Court, as recognized in Harshad S. Mehta Vs. State of Maharashtra, a special circumstance existed to bypass the lower court. "In view of the above, the present application comes within the purview of special / extra-ordinary circumstances, therefore, the preliminary objection of learned Additional Advocate General is not sustainable."

Turning to the core legal issue of the POCSO Act's statutory presumption, the State argued that Section 29 creates a presumption of commission of the offence which should dissuade the court from granting pre-arrest bail, relying on Supreme Court judgments in Sumitha Pradeep and Rajballav Prasad. The High Court rejected this contention, observing that the Supreme Court had not laid down any absolute law stating that Section 29 applies at the pre-arrest bail stage. Adopting the extensive reasoning of the Delhi High Court in Dharmander Singh @ Saheb Vs. The State and its own coordinate bench in Monish Vs. State of U.P., the court reasoned that the presumption cannot be triggered merely by police implication. The bench noted that an accused cannot be expected to disprove their guilt before foundational facts are established and charges are formally framed by the trial court. "If the presumption of guilt is taken to arise even before charges are framed, say when a court is considering a bail application, then the court will have to afford to the accused an opportunity to prove that he has not committed the offence; which would require the court to conduct a mini-trial... No such concept is known to law."

Evaluating the factual matrix of the allegations, the court found significant discrepancies and unnatural conduct that warranted the grant of protection. The bench observed that the FIR alleged the incident took place at the Magh Mela in Prayagraj between January and February 2026. However, subsequent victim statements introduced material improvements, claiming the abuse began in June 2024 at ashrams in Madhya Pradesh and Uttarakhand. Crucially, the court perused educational certificates revealing that one of the victims had attained majority by August 2024, directly contradicting the timeline of minor status presented in the FIR. The court also highlighted the unnatural conduct of the victims, who failed to report the alleged abuse to their parents or legal guardians, choosing instead to confide in a "stranger" serving as the first informant. "The victims not narrating the incident to their natural guardian and narrating the same to the first informant, who is a stranger, is also not consistent with normal course of human conduct and behaviour."

The bench expressed strong disapproval of the media circus surrounding the case, particularly the exposure of the victims. The court noted that the victims were found giving interviews to leading news channels, which constituted a gross violation of the established procedures and confidentiality mandates under the POCSO Act and the Juvenile Justice Act. Furthermore, the court examined the medical evidence, noting the absence of any external injuries on the victims. While the medical officer opined that sexual assault could not be ruled out, the court emphasized that conclusive forensic reports were still pending and that medical jurisprudence suggests signs of penetrative oral assault do not typically survive after a forty-day delay. "The victims were found giving interviews to leading Hindi News Channels, which is highly condemnable and deplorable in the facts and circumstances of the case and not consistent with law and procedure related to POCSO cases."

The High Court allowed the anticipatory bail application, directing that the applicants be released on a personal bond of Rs. 50,000 with two sureties each in the event of their arrest. To ensure a fair investigation, the court imposed strict conditions, explicitly prohibiting the applicants, the victims, and the first informant from giving any media interviews regarding the case during the pendency of the investigation and trial.

Date of Decision: 25 March 2026