Understanding Liberty: A Student’s Guide to BNSS Bail Jurisprudence

 The concept of bail represents the most significant intersection between criminal procedure and constitutional law. In the Indian legal landscape, this field has undergone a profound transformation with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This guide serves as a curriculum roadmap for students to navigate the shift from a discretion-heavy past toward a future defined by the "Constitutionalization of Bail."

1. The Bedrock of Freedom: Article 21 and the Constitution

Every statutory provision regarding bail must be interpreted through the lens of Article 21 of the Indian Constitution. This article is not merely a legal clause but the foundation upon which the entire architecture of personal liberty is constructed.

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Under which circumstances the court can not convict accused based on presumption under Section 29 of POCSO Act?

 Similar question was posed before Learned Single Judge of this Court in case of Ramprasad v/s State of Maharashtra MANU/MH/1943/2018. Learned Single Judge was dealing with an appeal filed by the convicted accused. While interpreting the nature of presumption under Section 29 of the said Act, it is observed :--

" Thus the presumption that operates under Section 29 of the Protection of Children from Sexual Offences Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that the foundational facts of the prosecution case have been established " (para 29).{Para 85}

86. On facts it was observed :--

" In fact for the presumption to operate, as observed earlier, it is necessary that the foundational facts are established by the prosecution, which in the present case, does not appear to have been done by the prosecution " (para 27)

• Conclusion

88. In nutshell, the trial court simply cannot be convict the accused on the basis of the presumption. Because the Court cannot start with only on the basis of the presumption. However presumption will come into picture only when foundational facts are established. That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 and 9 of the POCSO Act are committed. One may not find such wordings in the section itself. But the Constitutional Courts have interpreted similar provisions relating 'presumptions' en-grafted in various Acts. This interpretation of the provisions of relevant Acts is arrived at after considering those provisions of Acts on one hand and presumption of innocence on the other hand. It is interpreted presumption of innocence is human right though not a fundamental right.

89. In this case, foundational facts are not proved. I have already observed the evidence on the basis of statement under Section 164 of the Code can not be considered. So also on the basis of admitted medical case papers, we cannot draw an inference about involvement of the culprit/accused. Hence trial court was wrong in taking recourse to the presumption under Section 29 of the Protection of Children from Sexual Offences Act.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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Whether general presumption of innocence of accused is applicable if there is contrary presumption of guilt in POCSO Act?

while making a general statement of
law that the accused is innocent, till proved guilty, the provisions of
Section 29 of POCSO Act have not been taken into consideration, which
reads follows:
“29. Presumption as to certain offence: 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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1141 OF 2016
STATE OF BIHAR 
V
RAJBALLAV PRASAD 
Dated:NOVEMBER 24, 2016.
Citation:(2017)2 SCC 178

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When accused can seek acquittal on ground of incorrect framing of charge on the ground of prejudice?

 When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial :

(a) The accused has the freedom to maintain silence during investigation as well as before the Court. The accused may choose to maintain silence or make  complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law;

(b)     Right to fair trial

(c)     Presumption of innocence (not guilty)

(d)     Prosecution   must   prove  its   case 

  beyond   reasonable  doubt.

21. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. `Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence.

The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the  rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the Court.

Supreme Court of India

Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011

Bench: B.S. Chauhan, Swatanter Kumar

 REPORTABLE

Citation;(2011)8 SCC300,2011 CRLJ4399

Read full judgment here; click here

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