The main legal point established in the judgment is the application of Section 227 of the Code of Criminal Procedure and the interpretation of Section 15 of the POCSO Act before and after the amendment by Act 25 of 2019.

ORDER :

Petitioner is the second accused in S.C.No.576 of 2018 on the file of Fast Track Special Court, Thrissur, which arose out of crime No. 1727 of 2016 of Thrissur East police station.

2. Crl.M.P.No.142 of 2021 was filed for discharge under Section 227 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The case was charge sheeted for the offence punishable under Sections 376(1), 384 and 509 of Indian Penal Code, Section 66(E) of the Information Technology Act 2000, Section 120 (o) of the Kerala Police Act (in short’ KP Act’), Section 14 of read with 13 and 15 of Protection of Children from Sexual Offence Act, 2012 (in short ' the POCSO Act').

3. The prosecution case is that one day in March 2012, the first accused trespassed into the house of CW1 at Nakheer at Rasal-khaimah in UAE at about 11.00 p.m. during night while CW2, the daughter of CW1 was alone in the house and with the intention and preparation to sexually assault her, knowing that she is a minor girl and promising to marry her committed rape upon her and also copied the sexual abuse with the intention of blackmailing CW1, in the mobile phone. Subsequently, the first accused conspired with the second accused and on 11.05.2016 at 01.36 hours, put SIM card with No. 8136535539 brought by the second accused in the mobile phone of the first accused and through data cable connected with IKON-A 801 tab, activated WhatsApp in the tab and send those video clippings to mobile No. 971506276235 used by CW1. Thereafter, the second accused called to 971506276235 used by CW1 on 11.05.2016 at about 14.45 hours and on 13.05.2016 at about 20 hours and threatened to publish the above video in social media, if he did not pay 6 lakhs Dirham and thereby accused committed offence aforementioned.

4. Pending the proceedings, the first accused died. Hence, petitioner/second accused alone filed the discharge petition. Notice was issued to the respondent and Adv. Renjit George, learned Senior Public Prosecutor appeared on behalf of the respondent.

5. Heard both sides. The learned counsel for the petitioner filed arguments notes also.

6. The function of a Judge while considering an application under Section 227 of the Code is no more res integra. Union of India v. Prafulla Kumar Samal and Anr. (1979 (3) SCC 4) Paragraph 10 is relevant in this context which reads as follows :

“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

7. The function of Judge while considering an application under Section 2