§ Section 28 (in substance)

(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, designate for each district a Court of Session to be a Special Court to try the offences under the Act: Provided that if a Court of Session is notified as a Children's Court under the Commissions for Protection of Child Rights Act, 2005, or a Special Court designated for similar purposes under any other law, it shall be deemed to be a Special Court under this section.

(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence under this Act, with which the accused may be charged at the same trial.

(3) The Special Court, notwithstanding anything in the Information Technology Act, 2000, 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.

§ Purpose and jurisdiction

• The purpose is speed and specialisation. A designated court, trying only or principally these cases, can develop the expertise and the child-friendly practice the Act requires.

• Every POCSO offence goes to the Special Court. Its jurisdiction is exclusive for offences under the Act.

• It tries connected offences too. Section 28(2) avoids a split trial where the accused is also charged under the BNS or another law.

• It tries child sexual abuse material offences under the IT Act. Section 28(3) brings Section 67B within its jurisdiction.

• Children's Courts. A Court of Session notified as a Children's Court is deemed a Special Court, and under Section 2(20) of the Juvenile Justice Act a Special Court under POCSO serves as a Children's Court where there is no separate one.

§ Section 33(1), read with Section 28

A Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts constituting the offence or upon a police report of such facts.

Why it matters. In the ordinary course, a Sessions case reaches the Court of Session only after committal by a Magistrate, which adds a stage and delay. The Special Court may proceed directly, which serves the object of speedy trial.

§ Section 29 (in substance)

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.

§ Nature and scope

• It is a presumption of law, mandatory in terms: the court shall presume.

• It applies to four offences only: penetrative sexual assault, aggravated penetrative sexual assault, sexual assault and aggravated sexual assault, and to their abetment and attempt. It does not apply to sexual harassment under Section 11, or to the offences in Sections 13 to 15.

• It is rebuttable. The words unless the contrary is proved place a burden on the accused, which is generally understood to be discharged on a preponderance of probabilities.

§ The presumption does not arise in a vacuum

The prosecution must first prove the foundational facts. These are, in substance, that the victim was a child; that an act of the kind charged took place; and that the accused was connected with it.

Only then does Section 29 operate. The courts have consistently held that the presumption is not a licence to convict on an unsupported allegation. If the foundational facts are not established, the presumption never comes into play.

The same is true of Section 30. The presumption of culpable mental state presupposes proof that the accused did the act.

The constitutional basis. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, the Supreme Court upheld reverse burdens in special statutes on the footing that the prosecution must first prove the foundational facts beyond reasonable doubt. The POCSO presumptions are read the same way.

§ Three points on Section 29

• Rebuttal. The accused may rebut the presumption by leading evidence or by pointing to material in the prosecution's own case, such as contradictions in the account, proof of a motive for false implication, or evidence that the act did not occur. The standard is generally taken to be a preponderance of probabilities.

• The presumption of innocence. Section 29 does not abolish it. The accused is presumed innocent until the prosecution proves the foundational facts; only then does the burden shift. The presumption of innocence is, in this sense, displaced only to the extent the statute requires.

• At the bail stage. The weight of authority in the High Courts is that the presumption is a rule of evidence operating at trial once the foundational facts are proved, and does not by itself bar bail. At the bail stage the court considers whether there is a prima facie case, the gravity of the offence, and the risk of tampering or flight.

§ Section 30 (in substance)

(1) In any prosecution for any 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.

(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.

Explanation. In this section, culpable mental state includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.

§ Meaning, burden and foundation

• Culpable mental state covers the four elements in the Explanation: intention, motive, knowledge, and belief or reason to believe. Sexual intent under Sections 7 and 11, and the specific intents in Sections 9(v) and 15, are all within it.

• It applies to every offence under the Act that requires a mental element, not only to the four offences in Section 29.

• The burden on the accused is heavy. Sub-section (2) requires him to prove the absence of the mental state beyond reasonable doubt, not merely on a preponderance. This is a deliberately higher standard than the one generally applied to Section 29.

• Foundational facts again. The presumption arises only once the prosecution proves that the accused did the act; it then attaches the mental element to that act.

What is presumed

That the accused COMMITTED, abetted or attempted the offence

That the accused had the CULPABLE MENTAL STATE

Offences covered

Sections 3, 5, 7 and 9 only

Any offence under the Act requiring a mental state

How rebutted

The contrary is proved

The accused proves he had no such mental state

Standard of rebuttal

Generally, preponderance of probabilities

BEYOND REASONABLE DOUBT, by the express words of s. 30(2)

Foundational facts

The child, the act of the kind charged, and the accused's connection

Proof that the accused did the act

Sexual harassment, s. 11

Does not apply

Applies

§ Section 31 (in substance)

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, including the provisions as to bail and bonds, shall apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session, and the person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor.

After 1 July 2024, the reference to the Code is read as a reference to the Bharatiya Nagarik Suraksha Sanhita, 2023, by Section 8 of the General Clauses Act, 1897.

The special procedure prevails. Where the POCSO Act makes its own provision, as in Sections 33 to 38, the Act governs, and the BNSS fills only the gaps.

§ Section 32 (in substance)

(1) The State Government shall, by notification, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act.

(2) A person shall be eligible to be appointed as a Special Public Prosecutor only if he had been in practice for not less than seven years as an advocate.

(3) Every person appointed as a Special Public Prosecutor shall be deemed to be a Public Prosecutor within the meaning of the Code, and its provisions shall have effect accordingly.

§ The role of the Special Public Prosecutor

• Communicating questions through the court. Under Section 33(2), the prosecutor communicates the questions to the Special Court, which puts them to the child.

• Preparing the child for court, within professional limits, so that the child knows what to expect and is not surprised by the process.

• Guarding the child's dignity, by objecting to aggressive questioning or character assassination under Section 33(6).

• Seeking the protections the Act allows: screens or video links under Section 36, breaks under Section 33(3), an interpreter or special educator under Section 38, and compensation under Section 33(8).