The Protection of Children from Sexual Offences Act (POCSO Act) punishes sexual harassment of minors, and the Kerala High Court has stated that a man displaying his penis to a juvenile and requesting the child to measure it would likely constitute sexual harassment of a minor.
According to Justice A Badharudeen, if such behaviors are intended towards a minor girl, they will also likely constitute an offense under Section 509 of the Indian Penal Code (IPC), which addresses acts committed with the purpose to degrade a woman’s modesty through words, gestures, or acts.
“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 stated.
The Court did point out that the element of intention is required by both the POCSO and IPC provisions—sexual intention in the case of the former, and insulting modesty in the case of the latter.
As a result, the Court stated unequivocally that its findings are only preliminary and that the determination of guilt or innocence in any given instance will be determined at trial.
While examining a petition filed by a man accused of attracting a minor’s attention by removing his dhoti and asking her to measure his penis, the Court made this observation. The petitioner was purportedly observed running from the scene by the time the youngster complained to her mother.
After that, criminal charges were brought against the petitioner. He filed a petition asking to be dropped from the case before the Special Court in Perumbavoor, but it was denied.
This led him to file the current case with the High Court, requesting to void the Special Court’s decision to reject his discharge petition and to halt any legal actions taken against him.
The petitioner’s attorney contended that there was no evidence to support a prima facie case and that the victim’s conduct did not show a sexual motive or an aim to belittle the minor’s modesty.
But after reviewing the minor’s statement detailing the petitioner’s acts, the Court concluded that the petitioner’s activities qualified as sexual harassment in accordance with the POCSO Act and IPC.
The Court further pointed out that, in accordance with POCSO Act Section 30, courts must assume that the accused is mentally accountable unless they can show, beyond a reasonable doubt, that this is not the case.
“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,” the judge stated.
As a result, the Court decided it was appropriate to reject the petition and support the Special Court’s ruling that the petitioner could not be released.
Eldho Paul and Tessy Jose, two counsel, represented the petitioner.
Renjit George, a senior public prosecutor, represented the State in the case.
