Kerala High Court deems raising a dhoti and asking a minor to measure a penis as a prima facie POCSO offense. The Court clarified that these observations are preliminary. Guilt or innocence will be determined during the trial. Each case’s specifics will be evaluated in court.
Kerala: Recently, the Kerala High Court ruled that a man raising his dhoti, exposing his penis to a minor, and asking the child to measure it constitutes prima facie sexual harassment of a minor, which is punishable under Section 11 of the Protection of Children from Sexual Offences Act (POCSO Act).
Justice A. Badharudeen further indicated that such actions directed at a minor girl could potentially be considered an offense under Section 509 of the Indian Penal Code (IPC). This section deals with acts intended to insult a woman’s modesty through words, gestures, or actions.
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The Court stated,
“Lifting of dhothi to show his private part and then asking the victim to measure his penis, are the allegations. The same would squarely attract Section 11(1) of the POCSO Act as well as under Section 509 of IPC, prima facie,”
The Court also noted that both the POCSO Act and IPC require proof of intent: sexual intent for POCSO and intent to insult modesty for the IPC.
The Court emphasized that its observations purely preliminary and that determining guilt or innocence is a matter to be resolved during the trial.
These observations made while reviewing a petition from a man accused of attracting the attention of a minor by lifting his dhoti and asking her to measure his penis. The minor promptly reported the incident to her mother, but by that time, the petitioner reportedly fled the scene.
Criminal proceedings initiated against the petitioner, who subsequently sought dismissal of the case by filing a petition with the Special Court in Perumbavoor. When this petition was dismissed, the petitioner approached the High Court to overturn the Special Court’s decision and to halt all proceedings against him.
The petitioner’s counsel argued that there was no prima facie case and that the actions described by the victim did not demonstrate sexual intent or an intention to insult the minor’s modesty.
However, after examining the minor’s statement about the petitioner’s actions, the Court concluded that his behaviour amounted to sexual harassment under both the POCSO Act and the IPC.
The Court also referred to Section 30 of the POCSO Act, which requires courts to presume a culpable mental state until the accused can prove otherwise beyond a reasonable doubt.
The Court clarified,
“So culpable mental state on the part of the accused shall be presumed by the Court and it is for the accused to prove that he had no such mental state with respect to the charge for the offence in the prosecution,”
As a result, the Court decided to dismiss the petition and uphold the Special Court’s decision to deny the petitioner’s discharge.
The petitioner represented by advocates Eldho Paul and Tessy Jose, while Senior Public Prosecutor Renjit George appeared on behalf of the State.