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(viii) danger of justice being thwarted by grant of bail.

10 When it comes to offences punishable under a special enactment, such as, POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the said Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and it provides that the provisions of the aforesaid Code including the provisions as to bail and bonds shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions of Cr.P.C including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr.P.C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under:

"....... and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure."

20 From a careful perusal of the definition of the word "prosecute" given in various Law Dictionaries and the connotation given to the said expression by the Supreme Court in the Thomas Dana‟s case (supra), it can safely be stated that the prosecution of an accused begins with the presentation of challan before a Court. Therefore, I respectfully beg to differ with the opinion expressed by the learned Single Judge of the Delhi High Court in Dharmander Singh‟s case (supra), that the prosecution commences with the commencement of trial of a case. 21 The Legislature has used the word „prosecuted‟ in Section 29 of the POCSO Act. If the Legislature intended to bring the presumption contained in Section 29 of the POCSO Act into operation at the commencement of trial of the case, it would have certainly used the word „tried‟ instead of word "prosecuted", as has been done in the case of Section 54 of the NDPS Act, which creates presumption in trial of certain offences under the said Act. For reference, relevant excerpts of Section 54 of NDPS Act are quoted below:

23 In the bail proceedings, even at pre-trial stage, it would open to an accused to highlight the circumstances/material or lack of it to show that foundational facts are not established and in this manner, the right available to an accused under the later part of the provision contained in Section 29 of the POCSO Act would get safeguarded. 24 For the foregoing reasons, I am of the considered opinion that at the time of considering the bail application of an accused, who has been booked for the offences under Sections 3,5,7 &9 of the POCSO Act, the presumption under Section 29 of the said Act would come into play even at the pre-trial stage. The accused, of course, would have a right to bring to the notice of the Court the material or lack of it to show that the foundational facts giving rise to the presumption are prima facie not established in the case.

36 While Section 439 (1-A) incorporated in the Cr.P.C vide Amendment Act No. 22 of 2018 makes the presence of the informant or any other person authorised by him obligatory at the time of hearing of application for bail to a person accused of offences under Section 376(3) or 376 AB or Section 376DA or Section 376DB of IPC, but the offences under POCSO Act are not included in the said provision. Thus, notice to informant in an application for grant of bail to an accused involved in offences mentioned in Section 439 (1-A) Cr.P.C is obligatory, but the law does not provide for issuance of notice to the victim of an offence under POCSO Act at the time of consideration of bail application of the accused which, I think, is needed keeping in view the nature and gravity of offences under the POCSO Act. 37 The Ministry of Women and Child Development, Government of India has, in exercise of powers under Section 39 of POCSO Act, 2012, issued Model Guidelines. Guideline 2.2(ii) is relevant to the context, which is reproduced as under: