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Synopsis

The Kerala High Court has held that the culpable mental state of the accused cannot be considered at the pre-trial stage when the prosecution makes out a prima facie case under the Protection of Children from Sexual Offences (POCSO) Act.

Justice A. Badharudeen, presiding over the court, observed that “`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,”  while hearing a revision petition filed by the accused seeking discharge.

The case involved an 80-year-old advocate, accused of committing sexual assault on a 12-year-old boy under Section 7 of the POCSO Act, dealing with the offence of ‘Sexual Assault’. Sexual Intent is a key ingredient to constitute the offence under the said section. The accused's application for discharge was dismissed by the Special Court, leading to the present revision petition filed before the High Court. The prosecution alleged that the accused opened the zip of the victim's pants and caught hold of his penis, thereby committing sexual assault. The accused, contrarily, claimed that there was no sexual intent and that the act was merely a casual touch.

The court relied on Section 30 of the POCSO Act, which provides for a presumption of culpable mental state of the accused before trial. However, the court emphasised that the accused can give their defence to prove they had no culpable mental state to commit an offence with sexual intent during the trial. “The Court shall presume the culpable mental state of the accused, before 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,” the court noted.

Further, the court referencing the judgment in the case of ‘Sandeep G. v. State of Kerala’, underscored that “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.”

As a result, the court dismissed the revision petition holding that the prosecution had made out a prima facie case against the accused and discharge cannot be allowed.

 

Cause Title:  P.C. VARGHESE MUTHALALI v STATE OF KERALA [Crl.R.P.818/2022]