IMPORTANT POINT
Discharge of accused – At the stage of considering application for discharge court must proceed on assumption that material which has been brought on record by prosecution is true – Defence of accused is not to be looked into at the stage when accused seeks to be discharged.

JUDGMENT & ORDER (ORAL)

Heard Mr. Alik Das, Learned Counsel

representing the petitioner and also heard Learned P.P. Mr. Raju Datta representing the State.

2. This revision petition under Section 397 read with Section 401 of Cr.P.C. is filed for setting aside the order dated 13.03.2024 passed by Learned Special Judge, Gomati District, Udaipur in connection with case no.Special no.22 of 2023 (POCSO).

3. At the time of hearing, Learned Counsel for the petitioner submitted that the aforesaid case is pending before the Court of Learned Special Judge, Gomati District, Udaipur and before the said Court, the accused-petitioner filed an application for discharging the accused under Section 227 of Cr.P.C on the ground that the victim of this case although has been projected as a minor but from the copy of birth certificate, it appears that she was major on the day of the alleged occurrence of offence. So, no charge can be framed against the accused-petitioner under Section 4 of the POCSO Act. But the Learned Trial Court did not consider the petition and rejected the application of the petitioner-accused and fixed the case for framing of charge.

4. Learned P.P. Mr. Raju Datta representing the prosecution strongly countered the submissions made by Learned Counsel for the petitioner and submitted that there are sufficient materials against the accused-petitioner to frame charge under Section 4 of the POCSO Act in addition to the other charges levelled under IPC and at the stage of framing of charge, there is no scope to consider the application of the accused-petitioner legally. Learned P.P further submitted that during investigation, no such document was submitted stating that the victim of the case was a major one at the time of alleged occurrence of offence. Learned P.P further submitted that it was the duty of the victim to rely upon that document and to submit application to the Court rather the accused-petitioner has come forward with the prayer and moreso, the victim is a Bangladeshi national. So, without verification, there is no scope to rely upon the birth certificate submitted by the accused-petitioner and further submitted that to ascertain the actual age of the victim, the I.O. during investigation arranged for conducting ossification test of the victim from which it appears that she was a minor. So, Learned P.P. prayed for dismissal of the petition filed by the accused-petitioner.

5. I have heard detailed argument of both the sides and gone through the record of the Learned Court below which is called for.

6. In the instant matter, on the basis of suo moto complaint laid by one SI Sandipan Deb of Natunbazar P.S. Amarpur under Gomati District to O/C NTB P.S. under Amarpur Sub-division. The O/C, NTB P.S. registered NTB P.S. case no.40/2023 under Section 366(B)/370/120-B/201/376(3) of IPC and Section 4 of POCSO Act and after completion of investigation, the I.O. has laid charge-sheet against the accused-petitioner vide NTB P.S. C.S. no.38/2023 under Section 366(B)/370/120-B/201/376(3) of IPC and Section 4 of POCSO Act. Accordingly, cognizance was taken by the Special Judge and the case is pending for disposal before the Learned Special Judge, Gomati District, Udaipur.

7. In course of hearing of argument, Learned Counsel for the accused-petitioner submitted that during investigation, the accused-petitioner was released on bail by this Court vide order dated 18.10.2023 in connection with BA/48/2023 and at the time of hearing of bail application, the accused-petitioner submitted the birth certificate of the victim from which it appeared that her date of birth was 12.01.2004 and the birth certificate was issued by the authority of the Government of Bangladesh. However, the I.O. during investigation without relying upon the same proceeded for conducting ossification test of the victim and submitted that the victim was a minor and accordingly, laid charge-sheet under the relevant provisions of law including the POCSO Act.

8. Per contr