A very insightful guest post by a very seasoned (and reasoned!) advocate practising at the P&H High Court Mr. Ambanshu Sahni who can be reached here

Background: 

There are certain cardinal principles of law most of important of those is “Innocent until proven guilty”. According to this principle the burden of proving the guilt lies on the prosecution. The prosecution must discharge this burden and prove the guilt of the accused beyond reasonable doubt until then the accused is presumed not guilty. Once the prosecution proves its case then the accused gets an opportunity to defend himself and plant doubt in the story of the prosecution. The burden on the accused is lighter in nature. The principle tries to maintain a fine balance between might of the state and liberty of individual. It is presumed that state with all its resources must prove the guilt beyond reasonable doubt.

However, there are certain exceptions to this legal principle in form of statutory exceptions. There are some offences like organized crime, child sexual abuse offences, narcotics and drug trafficking in which the law creates and exception to this principle and imposes the burden on the accused to prove that he/she has not committed such offence. The reason for creating such an exception is clear from the nature of the offences as they are grave in nature. Further, the nature of evidence in the above-mentioned cases is such that they are in possession and control of the Accused thus posing a difficulty in collection of evidence for the law enforcement agencies. Still the legislature and courts have to maintain a fine balance between individual liberty, due process and security of state and larger societal good.

Statutory Presumptions and Foundational Facts

It is seen that prosecution often faces difficulty in proving every link in respect of commission of crime by way of direct evidence. To deal with such a situation statutory presumptions come to the aid of the prosecution. It shifts the onus on the accused to prove that he did not have the culpable mental state at the time of commission of the offence. Since statutory presumptions are reversing the onus of proof that doesn’t mean that the prosecution is discharged from its responsibilities completely.

What are Foundational Facts?

These are the basic facts that must exist before the law allows the court to presume another fact.

Illustration:

Let’s take an example from Section 113B of the Indian Evidence Act, 1872, which deals with the presumption as to dowry death. The section states that if a woman dies due to burns or bodily injury within seven years of marriage, and it is shown that she was subjected to cruelty or harassment by her husband or his relatives soon before her death, the court shall presume that it was a dowry death.

Here, the foundational facts that must be proved before the presumption applies are:

            1.         The woman died under abnormal circumstances (burns, injury, etc.).

            2.         She died within seven years of marriage.

            3.         She was subjected to cruelty or harassment.

            4.         The cruelty or harassment was related to a demand for dowry.

            5.         Such cruelty or harassment happened soon before her death.

Only when these foundational facts are established does the court presume that the husband or his relatives caused the dowry death. The burden then shifts to the accused to rebut this presumption.

Thus, foundational facts act as a trigger—if they are proved, the legal presumption follows. If not, no presumption arises.

The prosecution has to prove foundational facts before the presumption stands attracted. In State of Punjab v. Baldev Singh (1999) 6 SCC 172 held that a presumption is an inference of fact drawn from the facts which are known as proved. The court held that statutory presumption under Section 54 of NDPS act that an accused has committed an offence under the act will only get attracted once prosecution has established the accused was found to be in possession of contraband. 

Whether the presumption can be raised at the stage of quashing under 482 CRPC or 528 of BNSS, 2023?

This question arose in Just rights for children alliance and Ant vs S. Harish and Ors Criminal Appeal Nos 2161-2162 of 2024 (Just Rights for Children case) in relation to Section 30 of POCSO Act^[1]. The court posed a query as to at what stage statutory presumption can be raised.

The general trend of various High courts and the Hon’ble Supreme Court in this regard has been circumspect. The High courts should not act in haste and they should not discard the presumption at the stage of quashing. If the presumption is not raised at this stage it may result in premature quashing of the FIR in serious offence. Quashing of FIR at a pre-trial stage may result in finality without any of the parties getting opportunity to adduce evidence.

The Hon’ble supreme court in Just Rights for children has held that:

 “Once the foundational facts are prima facie established from materials on record, it would be improper for the High Court in quashing petition to conduct an intricate evidentiary inquiry into the facts and ascertain whether the requisite mental elements are present or not. All these aspects should be left to be decided by the trail court which is the appropriate forum for the evaluation of the same, especially where the statutory presumption has been attracted prima facie from the material on record.

If the courts disregard the statutory presumption that would tantamount to picking and choosing the statutory provisions rather than considering it as a whole. If the courts ignore the statutory presumptions and quash the FIR, it would scuttle the trial in a serious offence. The Supreme court in Just Rights of children has held that the presumption is inextricably linked to the offence alone.

The position of law can be summarized as follows: 

Certain grave offenses warrant statutory presumptions that shift the burden of proof to the accused. However, before such presumptions apply, the prosecution must establish foundational facts. The burden of proving foundational facts is proportional to the gravity of the offense. Once foundational facts are proven, the presumption is triggered. This presumption applies not only at the trial stage but also at the quashing stage if foundational facts are prima facie present. High Courts, therefore, must not ignore statutory presumptions in quashing petitions unless foundational facts are entirely absent.

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^[1] Section 30 POCSO, 2012 

Presumption of culpable mental state. 

(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.