The court upheld the dismissal of the discharge petition, affirming that prima facie evidence supported the charges under the POCSO Act and IPC, emphasizing the presumption of culpable mental state.

O R D E R

Dated this the 2nd day of September, 2024 The sole accused in SC No.914/2023 on the files of the Special Court, Perumbavoor for trial of offences under the Protection of Children from Sexual Offences (for short 'the POCSO Act') assails order in Crl.M.P.No.312/2023 in the above case dated 04.12.2023, whereby the learned Special Judge dismissed the petition filed by the petitioner/accused seeking discharge under Section 227 of the Code of Criminal Procedure, 1973 .

2. Here the prosecution alleges commission of offences punishable under Sections 447, 354A(1)(i),506,509 & 294 (b)IPC and under Sections 12 r/w S.11(i) of the POCSO Act. The allegation is that at about 3.50 p.m. on 04.04.2023 the accused trespassed upon the courtyard of the house of CW1, who is a minor, untied his dhothi and put the same on his head; and exhibited his nudity after showing his 'shaddi' (underwear) with sexual intent. Further, he uttered obscene words and also threatened to kill the father of the victim. That apart, he threatened the victim by saying that he would cause her to be beaten by a dog.

3. While canvassing interference in the order impugned, the learned counsel for the petitioner read out the FIS and zealously argued that as far as the offence under Section 11 (i) read with Section 12 of the POCSO Act is concerned, the ingredients are not made out and the statements given under Section 161 or under Section 164 of the victim in no way would suggest the said ingredients, prima facie. Therefore, dismissal of discharge petition finding prima facie case by the trial court is illegal and the same would require interference.

4. Opposing interference in the order impugned, it is submitted by the learned Public Prosecutor that as per Section 11 (i) exhibiting an object or part of the body with intention that such object or part of the body shall be seen by the child, with sexual intent, is an offence. Therefore, prima facie, offences under (i) read with Section 12 of the POCSO Act as well as the offences under the IPC are also made out. As such, discharge petition was dismissed by the trial court rightly and the same would require no interference.

5. In this case, the allegation of the prosecution is that at about 3.50 p.m. on 04.04.2023 the accused trespassed upon the courtyard of the house of CW1, who is a minor, then untied his dhothi and put the same on his head; and exhibited his nudity after showing his 'shaddi'(underwear), with sexual intent. Further he uttered obscene words and also threatened to kill the father of the victim. That apart he threatened the victim by saying that he would cause her to be beaten by a dog.

Section 11 (i) provides as under:

11. Sexual harassment.—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; or

6. On perusal of Section 11 (i) exhibiting any object or part of the body with intention that such object or part of the body shall be seen by the child, with sexual intent, is an offence. Showing private parts or half naked body of a matured man to a minor female victim could not be held at the pre-trial stage that an act done without a sexual intent. In this connection, Section 30 of the POCSO Act is relevant and the same provides as under:

“30. Presumption of culpable mental state.—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defen