IMPORTANT POINT
At the discharge stage, the court must evaluate whether the prosecution's materials establish a prima facie case without considering the accused's culpable mental state, which is to be determined during the trial.

ORDER :

1. This Revision petition has been filed under Section 397 r/w 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’ hereinafter) and the revision petitioner is the sole accused in SC.No. 300/2021 pending before the Special Court for trial of cases under the Protection of Children from Sexual Offences Act (`POCSO Act’ for short), Pathanamthitta. The revision petitioner impugns order dated 01.11.2022 in Crl.M.P.No. 4642/2022 in S.C.No. 300/2021, whereby the petition filed by the petitioner/accused to discharge him under Section 227 of the Code of Criminal Procedure (`Cr.P.C’ for short) was dismissed.

2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor in detail. Perused the order impugned and the relevant documents, including final report and statement of the witnesses.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 7 and 8 of the POCSO Act on the allegation that when the victim boy, aged 12 years, reached the advocate office run by the accused on 10.11.2019 along with witnesses 2 and 3, the accused opened the zip of the pants worn by the victim and caught hold of his penis and made comment that the same is small as that of kids and thereby subjected the victim to sexual assault.

4. It is pointed out by the learned counsel for the revision petitioner that as per Annexure V this Court granted anticipatory bail to the petitioner and the specific case put up by the petitioner was that he was implicated in this crime. He also would submit that the trial court failed to consider the ingredients to attract the offences punishable under Sections 7 and 8 of the POCSO Act while dismissing the application filed by the petitioner seeking discharge and going by the allegations, prima facie, the prosecution case is not made out. Therefore, dismissal of the discharge petition by the Special Court is erroneous and the same would require interference, so as to grant discharge to the petitioner.

5. While opposing discharge, the learned Public Prosecutor would submit that going by the allegations, materials to attract offences under Sections 7 and 8 of POCSO Act are made out, prima facie, warranting framing of charge and trial and therefore, the learned Special Judge rightly dismissed the discharge petition. As such, the said order doesn’t require any interference.

6. In so far as the essentials to be considered while considering the petition under Section 227 of Cr.P.C and while framing charge under Section 228 of Cr.P.C, the law is well settled. In the decision reported in Sandeep G. v. State of Kerala, 2024 KHC Online 586 this Court set out the principle as under, following the Apex Court decisions in this regard.

“(i) Matters to be considered at the time of considering discharge and while framing charge are not aimless etiquette. Concomitantly the same are not scrupulous exertion. Keeping an equilibrium in between aimless etiquette and scrupulous exertion, the trial judge need to merely examine the materials placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of police charge/final report. The trial Judge shall look into the materials collected by the investigating agency produced before the Court, to see, prima facie, whether those materials would induce suspicious circumstances against the accused, so as to frame a charge and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged. But if the court is of the opinion, after such consideration of the materials there are grounds for presuming that accused has committed the offence/s which is/are triable, then necessarily charge shall be framed.

(ii) The trial Judge has to apply his judicial mind to the facts of the case, with reference to the materials produced by the prosecution, as may