Even a minimal level of physical contact, when done with an intention or knowledge that it could outrage modesty, would be enough to invoke Section 354 of IPC, the court clarified.
New Delhi, March 7: The Delhi High Court has ruled that merely touching and pressing the lips of a minor girl or sleeping next to her cannot be considered “aggravated sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act unless there is a sexually motivated intent behind it.
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Justice Swarana Kanta Sharma, while delivering the judgment, stated that such actions might violate the dignity of the minor girl and outrage her modesty. However, in the absence of “overt or inferred sexual intent,” these acts do not fulfill the legal conditions required for a charge under Section 10 of the POCSO Act.
The judge clarified that a prima facie case exists under Section 354 of the Indian Penal Code (IPC), which deals with “assault or criminal force to a woman with intent to outrage her modesty.”
“Essential ingredients of an offence under Section 354 of the IPC are squarely met. This provision criminalises the use of criminal force or assault against a woman with the intent to outrage her modesty or with the knowledge that such an act is likely to do so,” the court ruled.
Background:
The case involved a 12-year-old girl whose uncle was accused under Section 354 of IPC and Section 10 of POCSO Act. The accused had challenged the framing of charges, arguing that his actions did not amount to “aggravated sexual assault.”
After reviewing the case, the Delhi High Court upheld the charge under Section 354 IPC but discharged the accused from Section 10 of the POCSO Act.
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The court emphasized that the Supreme Court has clarified in multiple rulings that modesty, in the context of Section 354 IPC, must be understood in terms of a woman’s dignity and bodily autonomy, including that of a minor girl.
The court noted:
“(However) the victim has not alleged any act of an overtly sexual nature, nor has she suggested in any of her recorded statements – whether before the magistrate, the police or CWC – that she was subjected to sexual assault or that there was even an attempt to commit such an offence… the absence of even the slightest indication of a sexually motivated advance in the statements of the victim negates the foundational requirement of ‘sexual intent’, which is an essential element of an offence under Section 10 of POCSO Act.”
The court acknowledged the difficult circumstances of the minor girl, stating that she was abandoned by her mother at a young age and had been living in a child care institution. At the time of the incident, she was visiting her family.
In such a situation, the court noted:
“The verdict observed in a scenario when the child was seeking familial warmth and security, any inappropriate physical contact by a family member in a position of trust was far more than just discomforting – a clear violation of her dignity, bodily autonomy, and modesty.”
Even a minimal level of physical contact, when done with an intention or knowledge that it could outrage modesty, would be enough to invoke Section 354 of IPC, the court clarified.
The Delhi High Court also criticized some trial courts for issuing brief and non-explanatory orders while framing charges. The court noted that in the present case as well, the lower court had passed an order without providing proper reasoning.
The judge pointed out:
“The practice by some sessions courts of passing four-line orders on charge – devoid of facts, arguments and analysis thereof and the reason to reach a conclusion as to why charge under a particular section is being ordered to be framed – is not appreciable.”
The court stressed that when a person faces the risk of lengthy imprisonment, the trial courts must ensure they provide clear reasoning in their judicial orders. It added:
“The court said when a person was at a risk of incarceration for a significant period, judicial orders should not be passed in a mechanical manner and trial courts were expected to provide at least some reasoning to demonstrate application of mind to the facts and arguments placed before them.”
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