IMPORTANT POINT
The court established that the dismissal of a discharge petition is justified when the allegations, taken at face value, disclose sufficient grounds for proceeding with trial under the relevant provisions of the IPC and PoCSO Act.

ORDER :

1. This Revision petition under Section 397 r/w 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’ hereinafter), has been filed by the petitioner/sole accused in SC.No. 76/2023 pending before the Special Court for Trial of Cases Relating to Atrocities and Sexual Violence Against Women and Children Act under the Protection of Children from (`PoCSO Act’ for short), Perumbavoor, seeking the following reliefs:

“(a) To set aside Annexure A6 order and allow A5 discharge petition filed by the petitioner.

(b) To stay all further proceedings in SC 76/2023 on the file of Fast Track Court (POCSO) Perumbavoor.

(c) To grant such other reliefs which are deem fit in the facts and circumstances of the case.”

2. Annexure A6 order is passed in Annexure A5 discharge petition, whereby the learned Special Judge dismissed the plea of discharge raised by the petitioner.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor in detail.

4. The learned counsel for the revision petitioner argued at length to convince that, in this matter dismissal of the discharge petition by the Special Court as per Annexure A6 order is illegal, since the plea of discharge sought for under Section 227 of Cr.P.C would have been allowed by the Special Court.

5. Whereas the learned Public Prosecutor strongly opposed the prayer to set aside Annexure A6 order on the specific submission that, in the instant case, the accused herein after making a sound `shu shu’, lifted his dhothi. Thereafter he asked the victim to measure his penis. Therefore, the offences under Section 509 of Indian Penal Code as well as under Sections 11(1) r/w 12 of Protection of Children from Sexual Offences Act (`PoCSO Act’) would squarely attract. Hence, the discharge plea raised by the petitioner definitely would fail.

6. In view of the rival submissions made, I have gone through FIS given by the victim. In the FIS, the victim stated that at about 2.30 p.m on 05.10.2022, while the defacto complainant along with another victim was looking at their phone, the accused made the noise `shu shu’ and both of them looked at him. Then the accused lifted his dhothi. At that time, he had worn a kavi dhothi and check shirt and he had worn trouser also. They got afraid and the defacto complainant called her mother. When her mother, mother’s sister and grandmother reached there, the accused ran away towards the road. According to the defacto complainant, the accused had done this act by standing on the property on the opposite side of the kitchen of the house of the defacto complainant. In the 164 statement given by the victim, the victim repeated the instances narrated in the F.I.S and that the accused asked her to measure penis. Here the prosecution alleges offence punishable under Section 509 of IPC and the ingredients to constitute the said offence are; utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, whoever, intending to insult the modesty of any woman.

7. Coming to Section 11 of PoCSO Act:

“A person is said to commit sexual harassment upon a child when such person with sexual intent:

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child.

(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person.

(iii) shows any object to a child in any form or media for pornographic purposes.

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means.

(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or