The Special Court and the Presumptions
Chapter
Syllabus topic 4.2, the Protection of Children from Sexual Offences Act, 2012. Chapter VII of the Act.
Pages 681 to 686 of 699
In one line
A Court of Session in every district is designated a Special Court, and before it the accused, not the prosecution, carries the burden on the central questions.
In exam wording: sections 28 to 32 of the Protection of Children from Sexual Offences Act, 2012 provide for the designation of Special Courts, the presumption as to certain offences, the presumption of culpable mental state, the application of the Code of Criminal Procedure, and Special Public Prosecutors.
Why the law has this at all
The ordinary rule is that the prosecution proves everything, and the accused need prove nothing. Sections 29 and 30 depart from it, and the departure needs to be explained rather than merely stated.
The reason lies in the nature of the evidence available in these cases. There is rarely an eyewitness; the offence is committed in private, often by somebody with authority over the child. There is rarely a complaint at the time. The child's account may come months later, in fragments, from a witness of eight or ten who cannot give dates. And the one element the prosecution can almost never prove directly is what was in the offender's mind, which sections 7 and 11 make an ingredient by requiring sexual intent.
So Parliament shifted the burden, and then, having done so, fenced it in three ways, and an answer that names the fences is a much better answer than one that merely says "the burden is reversed".
First, section 29 is confined to four sections: 3, 5, 7 and 9. Sexual harassment and the pornography offences are outside it.
Second, the presumption is rebuttable: "unless the contrary is proved", and under section 30 it is expressly "a defence for the accused to prove" the absence of the mental state.
Third, and most importantly, section 30(2) tells us what "proved" means here, and it is a demanding standard: the Court must believe the fact beyond reasonable doubt, and a preponderance of probability is not enough.
Some words this chapter uses
Culpable mental state, by the Explanation to section 30, includes intention, motive, knowledge of a fact, and the belief in, or reason to believe, a fact.
Deemed to be a court of Sessions, in section 31, means the Code applies to the Special Court as it would to a Sessions Court.
Special Public Prosecutor is defined in section 2(1)(m) as a Public Prosecutor appointed under section 32.
Section 28: designation of Special Courts
Sub-section (1). For the purposes of providing a speedy trial, the State Government shall, in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district a Court of Session to be a Special Court to try the offences under the Act.
The Special Court and the Presumptions
Proviso. If a Court of Session is notified as a Children's Court under the Commissions for Protection of Child Rights Act, 2005, or as a Special Court designated for similar purposes under any other law, that court shall be deemed to be a Special Court under this section.
Sub-section (2). While trying an offence under this Act, a Special Court shall also try any other offence with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.
Sub-section (3). Notwithstanding anything in the Information Technology Act, 2000, the Special Court shall have jurisdiction to try offences under section 67B of that Act, in so far as it relates to the publication or transmission of sexually explicit material depicting children in any act, or conduct or manner, or facilitates abuse of children online.
Sub-sections (2) and (3) between them prevent a single course of conduct from being split between courts. Whatever else the accused can be charged with at the same trial, and the child pornography offence under section 67B of the Information Technology Act, all come before the same Special Court.
Section 29: the 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 section 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.
Four points on this sentence.
Which offences. Only sections 3, 5, 7 and 9: penetrative sexual assault, its aggravated form, sexual assault and its aggravated form. Not section 11, sexual harassment, and not sections 13 to 15.
Which modes. Committing, abetting or attempting, so the presumption covers the abettor under section 17 and the attempter under section 18 as well as the principal offender.
What is presumed. That he has committed, abetted or attempted the offence.
And it is rebuttable: unless the contrary is proved, with "proved" bearing the meaning that section 30(2) gives it.
Section 30: the presumption of culpable mental state
Sub-section (1). In any prosecution for an offence under this Act 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.
The Special Court and the Presumptions
Sub-section (2), the standard. 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.
Explanation. "Culpable mental state" includes intention, motive, knowledge of a fact, and the belief in, or reason to believe, a fact.
Section 30 is the section that matters for the offences requiring sexual intent, that is sections 7, 9 and 11. Recall the Explanation to section 11: sexual intent is a question of fact. Section 30 then presumes it, and puts on the accused the burden of disproving it beyond reasonable doubt.
Sections 31 and 32: the Code, and the prosecutor
Section 31. Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973, including the provisions as to bail and bonds, shall apply to the proceedings before a Special Court; and for the purposes of those provisions, the Special Court shall be deemed to be a court of Sessions, and the person conducting a prosecution before it shall be deemed to be a Public Prosecutor.
Section 32(1). The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court, for conducting cases only under the provisions of this Act.
Sub-section (2). A person is eligible only if he has been in practice for not less than seven years as an advocate.
Sub-section (3). Every such person shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973, and the provisions of that Code shall have effect accordingly.
The words "for conducting cases only under the provisions of this Act" in section 32(1) are deliberate. The Special Public Prosecutor is not a general prosecutor who also takes POCSO cases; POCSO work is all he does.
A worked example
A man is prosecuted under section 6 for aggravated penetrative sexual assault.
Which court tries him? The Special Court, that is the Court of Session designated for the district by the State Government in consultation with the Chief Justice of the High Court, section 28(1).
He is also charged with an offence under another law arising from the same facts. The Special Court shall also try it, if he could be charged with it at the same trial under the Code, sub-section (2).
He had also published images of the child online. The Special Court has jurisdiction to try the offence under section 67B of the Information Technology Act, 2000, notwithstanding that Act, sub-section (3).
The Special Court and the Presumptions
What must the prosecution prove? It proves the foundational facts; and then, the prosecution being for an offence under section 5, the Court shall presume that he committed it, unless the contrary is proved, section 29.
How does he displace that? By proving the contrary, and by section 30(2) "proved" means that the Court believes the fact to exist beyond reasonable doubt, a preponderance of probability not being enough.
Change the charge to sexual assault under section 7, where sexual intent is an ingredient. Two presumptions now operate. Section 29 presumes that he committed the offence; section 30 presumes the culpable mental state, which by the Explanation includes intention, motive, knowledge of a fact, and belief in or reason to believe a fact. It is a defence for him to prove that he had no such mental state.
Change the charge to sexual harassment under section 11. Section 29 does not apply, because it names only sections 3, 5, 7 and 9. Section 30 still does, the offence requiring sexual intent.
He applies for bail. The Code applies, including its provisions as to bail and bonds, and the Special Court is deemed to be a court of Sessions, section 31.
Who conducts the prosecution? A Special Public Prosecutor appointed for that Special Court, who has been in practice as an advocate for not less than seven years and conducts only cases under this Act, section 32.
Distinctions
| Section 29 | Section 30 | |
|---|---|---|
| What is presumed | That the accused committed, abetted or attempted the offence | The existence of the culpable mental state |
| Which offences | Only sections 3, 5, 7 and 9 | Any offence under the Act requiring a culpable mental state |
| Rebuttal | Unless the contrary is proved | A defence for the accused to prove he had no such mental state |
| Standard of rebuttal | "Proved" as defined in s.30(2) | Beyond reasonable doubt, not a preponderance of probability |
| Offence | Does section 29 apply? |
|---|---|
| s.3, penetrative sexual assault | Yes |
| s.5, aggravated penetrative sexual assault | Yes |
| s.7, sexual assault | Yes |
| s.9, aggravated sexual assault | Yes |
| s.11, sexual harassment | No |
| ss.13 to 15, pornography offences | No |
| Section 28 | Effect |
|---|---|
| (1) | A Court of Session in each district, designated by the State Government in consultation with the Chief Justice of the High Court; a Children's Court or similar Special Court is deemed to be one |
| (2) | Also tries any other offence chargeable at the same trial |
| (3) | Also tries section 67B of the Information Technology Act, 2000 |
The Special Court and the Presumptions
What this does NOT mean
The presumption does not dispense with the prosecution's case. Section 29 operates where a person is prosecuted for the offence, on the foundational facts being laid.
It does not apply to every offence in the Act. It names sections 3, 5, 7 and 9 only.
It is not conclusive. Both presumptions are expressly rebuttable.
But the rebuttal is not easy. Section 30(2) requires the Court to believe the exculpatory fact beyond reasonable doubt, and expressly excludes a preponderance of probability.
And the Special Court is not a new court. It is a Court of Session designated as such, and is deemed to be a court of Sessions for the purposes of the Code.
Quick revision
- 28: the State Government, in consultation with the Chief Justice of the High Court, designates a Court of Session in each district as a Special Court, for a speedy trial; a Children's Court under the 2005 Act or a similar Special Court is deemed to be one; it also tries any offence chargeable at the same trial, and section 67B of the Information Technology Act, 2000.
- 29: on a prosecution for committing, abetting or attempting an offence under ss.3, 5, 7 or 9, the Special Court shall presume that he did so, unless the contrary is proved.
- 30: where the offence requires a culpable mental state, the Court shall presume it; a defence for the accused to prove the absence of it; "proved" means believed beyond reasonable doubt, and not merely on a preponderance of probability; "culpable mental state" includes intention, motive, knowledge of a fact, and belief in or reason to believe a fact.
- 31: the Code of Criminal Procedure, 1973 applies, including bail and bonds; the Special Court is deemed a court of Sessions and the prosecutor a Public Prosecutor.
- 32: a Special Public Prosecutor for every Special Court, appointed by notification, conducting cases only under this Act, eligible only after seven years in practice as an advocate, and deemed a Public Prosecutor under section 2(u) of the Code.
Test yourself
1. Who designates a Special Court, and how? The State Government, in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designating for each district a Court of Session to be a Special Court, for the purpose of providing a speedy trial, section 28(1).
2. State the presumption in section 29. Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9, the Special Court shall presume that he has committed, abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
The Special Court and the Presumptions
3. Does it apply to sexual harassment? No. Section 29 names only sections 3, 5, 7 and 9; sexual harassment under section 11 is outside it.
4. What is presumed under section 30? The existence of the culpable mental state, in any prosecution for an offence under the Act which requires one; and it is a defence for the accused to prove that he had no such mental state with respect to the act charged.
5. What standard must the accused meet to rebut it? A fact is 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, section 30(2).
6. What does "culpable mental state" include? Intention, motive, knowledge of a fact, and the belief in, or reason to believe, a fact, Explanation to section 30.
7. Who may be appointed a Special Public Prosecutor? A person who has been in practice for not less than seven years as an advocate; he is appointed for every Special Court by notification, conducts cases only under this Act, and is deemed a Public Prosecutor under section 2(u) of the Code, section 32.
The rest of this subject
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