[POCSO] Accused's Culpable Mental State Cannot Be Considered At Pre-Trial Stage: Kerala High Court Dismisses Discharge Plea

The Court was considering whether culpable mental state under the POCSO Act could be considered at the time of discharge or quashment of the proceedings against the accused.

Justice A. Badharudeen observed that the culpable mental state of the accused cannot be considered to discharge or to quash proceedings against the accused when prosecution materials prima facie make out the alleged offences warranting framing of charge and trial.

“After trial, when the prosecution discharges its initial burden to prove the commission of the offence/s, with essentials to constitute the same, then a reverse burden is cast upon the accused to prove that he has no `culpable mental state' to commit the offence with sexual intent. Therefore, `culpable mental state' is a matter which cannot be considered at the pre-trial stage, viz., (i) in a proceedings for quashment of the crime and (2) at the time of discharge. However, quashment or discharge can be considered at the pre-trial stage, if the prosecution materials do not constitute offences alleged by the prosecution.”

The revision petitioner is an advocate, aged 80 years. He is alleged to have committed sexual assault on the victim boy aged 12 years when he reached the office of the accused.

The allegation is that the accused opened the zip of the victim boy and caught hold of his penis, thereby committing sexual assault under Section 7 and punishable under Section 8 of the POCSO Act.

His application for discharge was dismissed by the Special Court and he preferred the present revision petition before the High Court.

The Court stated that touching the penis of a child with sexual intent attracts an offence under Section 7, punishable under Section 8 of the POCSCO Act.

The prosecution alleged that the revision petitioner's act of holding the penis of the victim and commenting on its size was an overt act done with sexual intent. On the other hand, the revision petitioner stated that there was no sexual intent.

The Court stated that Section 30 of the POCSO Act provides that there is a presumption of culpable mental state of the accused before trial. It stated that the accused can give his defence to prove that he had no culpable mental state to commit an offence with sexual intent during the trial after the prosecution discharges its initial burden.

The Court went on to state that the prosecution has made out prima face case against the accused and discharge cannot be allowed. It thus observed that whether the accused had a culpable mental state or required sexual intent to commit alleged offences is a matter of evidence to be considered at the trial stage and not at the pre-trial stage.

As such, the revision petition is dismissed and held that the dismissal of the discharge petition of the accused is justified.

Counsel for Petitioner: Advocate Thomas George

Counsel for Respondents: Senior Public Prosecutor Renjit George

Case Number: Crl.R.P.No.818 of 2022

Case Title: P.C. Varghese Muthalali v State of Kerala

Citation: 2024 LiveLaw (Ker) 538