Kerala High Court refuses to close POCSO Act case against 80-year-old lawyer

The Kerala High Court recently dismissed a plea to discharge an 80-year-old lawyer from case under the Protection of Children from Sexual Offences Act (POCSO Act)..Justice A Badharudeen observed that the culpable mental state of the accused, which includes intent and knowledge, cannot be reviewed at the pre-trial stage, particularly when the prosecution has made out a prima facie case requiring a 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 judge added..The petitioner, PC Varghese Muthalali, was booked for sexually assaulting a 12-year-old boy. As per the prosecution case, Muthalali, while at his office on November 10, 2019, unzipped the boy’s pants and touched his penis and commented on the size of the victim's genitalia. He was booked for offences under Section 7 (sexual assault) and Section 8 (punishment for sexual assault) of the POCSO Act.Muthalali filed a discharge petition which was dismissed by a special court on November 1, 2022. He then filed a revision petition before the Kerala High Court challenging the special court's order. .The counsel for the petitioner argued that the special court did not adequately consider whether the alleged acts met the criteria for Sections 7 and 8 of the POCSO Act.He contended that the allegations did not establish a prima facie case, thus the discharge petition should have been allowed.However, Senior Public Prosecutor argued that the allegations were sufficient to warrant a trial against him..The Court, after reviewing the facts and contentions, highlighted that Section 30 of the POCSO Act presumes a culpable mental state on the part of the accused which means that while the accused is presumed to have a culpable mental state. He has the opportunity to prove otherwise during the trial, the Court stated.“So 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,” the Court added.It concluded that the prosecution had presented enough evidence to proceed with the trial and the issue of the accused’s mental state should be determined during the trial and not at the pre-trial stage..Consequently, the Court dismissed the revision petition.It directing the special judge to expedite the trial and resolve the case within four months from the date of receipt of the order copy..PC Varghese Muthalali was represented by advocate Thomas George.Senior Public Prosecutor Renjith George appeared for the State..[Read Order]