Culpable Mental State Of POCSO Accused Cannot Be Considered At Pre Trial Stage: Kerala HC
The Kerala High Court observed that ‘culpable mental state’ of the accused in POCSO cases cannot be considered at pre trial stage.
The Court said that quashment or discharge can be considered at the pre-trial stage, only if the prosecution materials do not constitute offences alleged by the prosecution.
The Court was hearing a Revision Petition impugning order where the Petition filed by the petitioner/accused to discharge him under Section 227 of the Code of Criminal Procedure was dismissed.
The bench of Justice A. Badharudeen observed, “…'culpable mental state’ is a matter which cannot be considered at the pre-trial stage, viz., (i) in proceedings for quashing 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.”
Advocate Thomas George appeared for the Appellant and Senior PP Renjit George appeared for the Respondent.
Brief Facts-
The prosecution alleged 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 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 the comment that the same is small as that of kids and thereby subjected the victim to sexual assault.
The Court considered the questions: What are the parameters that would govern `culpable mental state’ under the POCSO Act? and (ii) Is it permissible to consider the question of `culpable mental state’ at the time of discharge or quashing of the proceedings, prohibiting the prosecution to lead evidence and negating the reverse burden of the accused under Section 30 of the POCSO Act?
The Court said that the culpable mental state on the part of the accused shall be presumed by the Court, but it shall be a defence for the accused to prove that he had no such mental state with respect to act/acts charged as an offence/offences in the prosecution. Thus, according to the Court in cases where the overt acts dealt under the provisions are made out, the Court shall presume the culpable mental state of the accused before trial.
The Court also said that 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.
Accordingly, the Court said that the impugned order doesn’t require any interference.
Finally, the Court dismissed the Revision Petition.
Cause Title: P.C. VARGHESE MUTHALALI v. STATE OF KERALA (Neutral Citation: 2024:KER:62763)