ORDER : Petitioner is the second accused in S.C.No.576 of 2018 on the file of Fast Track Special Court, Thrissur, which arose out of crime No. 1727 of 2016 of Thrissur East police station. 2. Crl.M.P.No.142 of 2021 was filed for discharge under Section 227 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The case was charge sheeted for the offence punishable under Sections 376(1), 384 and 509 of Indian Penal Code, Section 66(E) of the Information Technology Act 2000, Section 120 (o) of the Kerala Police Act (in short’ KP Act’), Section 14 of read with 13 and 15 of Protection of Children from Sexual Offence Act, 2012 (in short ' the POCSO Act'). 3. The prosecution case is that one day in March 2012, the first accused trespassed into the house of CW1 at Nakheer at Rasal-khaimah in UAE at about 11.00 p.m. during night while CW2, the daughter of CW1 was alone in the house and with the intention and preparation to sexually assault her, knowing that she is a minor girl and promising to marry her committed rape upon her and also copied the sexual abuse with the intention of blackmailing CW1, in the mobile phone. Subsequently, the first accused conspired with the second accused and on 11.05.2016 at 01.36 hours, put SIM card with No. 8136535539 brought by the second accused in the mobile phone of the first accused and through data cable connected with IKON-A 801 tab, activated WhatsApp in the tab and send those video clippings to mobile No. 971506276235 used by CW1. Thereafter, the second accused called to 971506276235 used by CW1 on 11.05.2016 at about 14.45 hours and on 13.05.2016 at about 20 hours and threatened to publish the above video in social media, if he did not pay 6 lakhs Dirham and thereby accused committed offence aforementioned. 4. Pending the proceedings, the first accused died. Hence, petitioner/second accused alone filed the discharge petition. Notice was issued to the respondent and Adv. Renjit George, learned Senior Public Prosecutor appeared on behalf of the respondent. 5. Heard both sides. The learned counsel for the petitioner filed arguments notes also. 6. The function of a Judge while considering an application under Section 227 of the Code is no more res integra. Union of India v. Prafulla Kumar Samal and Anr. Renjit George, learned Senior Public Prosecutor appeared on behalf of the respondent. 5. Heard both sides. The learned counsel for the petitioner filed arguments notes also. 6. The function of a Judge while considering an application under Section 227 of the Code is no more res integra. Union of India v. Prafulla Kumar Samal and Anr. ( 1979 (3) SCC 4 ) Paragraph 10 is relevant in this context which reads as follows : “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 7. The function of Judge while considering an application under Section 227 of Cr.P.C. for discharge was being dealt with in Dilawar Balu Kurane v. State of Maharashtra ( 2002(2) SCC 135 ) Paragraph No.12 of the said judgment is relevant to be extracted which reads thus : “12. 7. The function of Judge while considering an application under Section 227 of Cr.P.C. for discharge was being dealt with in Dilawar Balu Kurane v. State of Maharashtra ( 2002(2) SCC 135 ) Paragraph No.12 of the said judgment is relevant to be extracted which reads thus : “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been property explained the court will by fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)].” 8. In Sajan Kumar v. Central Bureau of Investigation ( 2010 (9) SCC 368 ) Paragraph No.21 the principle that has to be followed while exercising jurisdiction under Sections 227 and 228 Cr.P.C. has been dealt with in detail which reads thus : “21. [See Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)].” 8. In Sajan Kumar v. Central Bureau of Investigation ( 2010 (9) SCC 368 ) Paragraph No.21 the principle that has to be followed while exercising jurisdiction under Sections 227 and 228 Cr.P.C. has been dealt with in detail which reads thus : “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 9. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Others ( 1979 (4) SCC 274 ), the matters to be considered while dealing with Sections 226 and 227 Cr.P.C. has been dealt with, Paragraph No.18 of the said judgment is relevant to be quoted which reads thus : “18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.” 10. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.” 10. In the present case, according to the learned counsel for the petitioner, there is no allegation in the police charge that the second accused restored or possessed or transmitted or did anything with this video and admitted prosecution case is that, it was the mobile phone of the first accused and the first accused send it. The second accused alleged to have made extortion call threatening to publish the video in the possession of the first accused, which first accused transmitted to CW1. So there is no material to infer any storage or possession so far as the second accused is concerned. It is also contended that in order to attract the offence under Section 13 of the POCSO Act, there must have use of child in any form of media for the purpose of sexual gratification. There is no case that the second accused had used the child in any form of media for the purpose of sexual gratification. In order to attract Section 15 of the POCSO Act as it stood before the amendment of 2019 since the alleged offence is on 11.05.2016 and the date of FIR is 12.05.2016 and the final report on 28.06.2018, there should be materials to attract that there was storage for commercial purpose any pornographic material in any form involving a child. So, petitioner cannot be charged under the amended provision which came later. Hence, the role of the second accused at the most, according to the learned counsel would attract the offence under Section 384, 509 IPC and Section 120(o) of the KP Act. 11. It is also contended that there is no allegation of rape under Section 375 as against the petitioner, and hence, the offence under Section 376(1) also will not lie. In the argument notes it is further contended that the alleged incident of rape and video graphing by first accused happened abroad and hence before enquiry and trial sanction is required from the Central Government as provided under Section 188 of the Code. Hence, the issuance of summons itself is illegal according to him. In the argument notes it is further contended that the alleged incident of rape and video graphing by first accused happened abroad and hence before enquiry and trial sanction is required from the Central Government as provided under Section 188 of the Code. Hence, the issuance of summons itself is illegal according to him. But the learned counsel conceded that the said contention with regard to bar under Section 188 of the Code is not pressed. 12. On perusing the impugned order passed by the learned Special Judge, it could be seen that there is clear finding by the Special Judge that offences made out against the petitioner/second accused are under Section 384 and 509 of IPC, Section 120(o) of the KP Act, Section 66(E) of the IT Act and Section 15 of the POCSO Act. In the argument notes as well as at the time of argument, the learned counsel for the petitioner submitted that no observation on merits may be made with respect to the offences under Section 384, 509 IPC, Section 120(o) of the KP Act and Section 66(E) of the IT Act. So I am not discussing those aspects. 13. The only remaining Section which is found to be attracting against the petitioner as per the impugned order is Section 15 of the POCSO Act. The charge as against the petitioner is that first accused conspired with second accused and on 11.05.2016 at 01.36 hours, put sim card with No.8136535539 brought by second accused in the mobile phone of first accused and through data cable connected IKON-A 801 tab activated WhatsApp in the tab and send those video clippings to mobile number used by CW1. But Section 120B has not been incorporated. No witness also cited to prove that sim card with No.8136535539 is brought by second accused. Though CW20 has been cited he only stated that he had taken sim cards to achieve the quota while working as executive of Airtel and sim card (8136835539) might have been so taken in the name of brother Shahir. Further he stated that his neighbour’s son Rashid is his friend. His friend, second accused had been to his house 2 – 3 times and while so he might have taken the said sim card from his house. CW21 stated that CW20 had taken sim card in his name. Further he stated that his neighbour’s son Rashid is his friend. His friend, second accused had been to his house 2 – 3 times and while so he might have taken the said sim card from his house. CW21 stated that CW20 had taken sim card in his name. But he has not used the sim card with number 8136835539. So the statements of CW20 and CW21 may at the most would give a suspicion that second accused might have taken the said sim card, but not any grave suspicion so as to connect him with sim No.8136835539. So as has been held in Sajan Kumar’s case it will entitle him to get a discharge. Further, the role of the petitioner/second accused alleged is that he called from the mobile No. 7356038800 on 11.05.2016 at 14.45 hours and on 13.05.2016 at 20.00 hours to the mobile number of CW1 (971506276235) and demanded 6 lakhs Dirham or else to publish the video in social media. CW18 the owner of sim card No.7356038800 would state, during the early 2016 at a ten shop opposite to technopark, Kazhakkoottom his mobile phone with the above sim number has been lost. But he did not give any complaint in connection with the same. Petitioner is from Thirunavaya, Malappuram District. Prosecution records would not reveal how this sim card came into the hands of petitioner. 14. However, records would show that the sound of the petitioner has been recorded and FSL report is not yet received. Hence discussion above made will not any way inhibit the respondent in prosecuting the matter against the petitioner under other offences. 15. The trial court as per the impugned order, as stated earlier, found that Section 15 of the POCSO Act would be attracted against the petitioner going by the final report. That is not further challenged by the respondent/State also. So the limited question for determination before this Court is as to whether the finding of the Special Court that Section 15 of the POCSO Act would attract against the petitioner is sustainable or not. 16. The POCSO Act, 2012 has been amended as per the Protection of Children from Sexual Offence (Amendment) Act, 2019 (25 of 2019) with effect from 16.08.2019. The incident connecting the present petitioner alleged to have taken place during 2016 obviously before the commencement of the Amendment Act. 16. The POCSO Act, 2012 has been amended as per the Protection of Children from Sexual Offence (Amendment) Act, 2019 (25 of 2019) with effect from 16.08.2019. The incident connecting the present petitioner alleged to have taken place during 2016 obviously before the commencement of the Amendment Act. Hence Section 15 as it stood before the amendment alone would apply to the facts of this case. Section 15 of the POCSO Act before the amendment reads as follows : “Section 15. Punishment for storage of pornographic material involving child - any person, who stores, for commercial purposes any pornographic material in any form involving a child shall be punished with imprisonment of either description which may extend to three years or with fine or with both”. So Section 15 before the amendment by Act 25 of 2019 makes any act of any person punishable if he stores for commercial purpose any pornographic material in any form involving a child. So storage for commercial purpose is one of the basic ingredient for attracting the offence under Section 15 prior to the Amendment. 17. The word “commercial” is not defined under the POCSO Act. The General Clauses Act, 1897 also does not define “commercial or commercial purposes”. 18. The Concise Law Dictionary by P. Ramanatha Aiyyar gives the meaning of “commercial activity” as follows : “The very concept of any activity which can justly be called a commercial activity must imply some investment of capital and the activity must run the risk of profit or loss. Term includes any type of business or activity which is carried on for a profit. Activity relating to or connected with trade and traffic or commerce in general”. 19. The Concise Oxford Dictionary of Current English Sixth edition gives meaning of commercial as engaged in, bearing on commerce; interested in financial return rather than artistry. 20. So, the storage for commercial purpose used under Section 15 can only be taken as in connection with trade or profit. So when the allegation against the petitioner is extortion by demanding 6 lakhs Dirham or else to publish the video in social media definitely will not take in the offence contemplated under Section 15 prior to its amendment. 20. So, the storage for commercial purpose used under Section 15 can only be taken as in connection with trade or profit. So when the allegation against the petitioner is extortion by demanding 6 lakhs Dirham or else to publish the video in social media definitely will not take in the offence contemplated under Section 15 prior to its amendment. After the amendment, Section 15 of the POCSO Act reads as follows : “15 (1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees, and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees. (2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both. (3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both, and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.” 21. From the above, it could be seen that after the amendment, the allegation against the petitioner would have come within the ambit of sub-Section (2) of Section 15 since it takes in any person who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner, at any time except for the purpose of reporting or for use as evidence in court. The act of storing or possessing pornographic material involving a child for transmitting or propagating, displaying or distributing in any manner except for the purpose of reporting or for use as evidence in court will be punishable. So definitely, storing the pornographic material with respect to a child and extorting a person using that material also will definitely come since it is not for the purpose of reporting or for use as evidence in court. But before the amendment, Section 15 takes in only storage of pornographic material for commercial purposes alone. Since the alleged act in the present case is prior to the substitution of Act 25 of 2019, the alleged act of the petitioner/the second accused of storing pornographic material of the child and demanding 6 lakhs Dirham from CW1 for not publishing the same in social media will not come within the purview of Section 15 prior to its amendment. So as rightly contended by the learned counsel, Section 15 of the POCSO Act will not lie as against the petitioner/ second accused. 22. Hence, the impugned order of the Special Judge in Crl.M.P.No.142/2021 is set aside in part with respect to the finding of Section 15 of the POCSO Act alone and in all other aspects the order passed by the Special Judge is hereby confirmed. In the result, the impugned order passed in Crl.M.P.No.142/2021 is modified and Crl.R.P. allowed in part.