Raising dhoti, asking minor to measure penis is prima facie POCSO offence: Kerala High Court

The Kerala High Court recently observed that a man raising his dhoti, showing a minor his penis and asking the child to measure it would prima facie amount to 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 also opined that such actions when directed at a minor girl would also prima facie attract the offence punishable under Section 509 of the Indian Penal Code (IPC) which deals with acts done with the intention of insulting 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.However, the Court also noted that both the POCSO and IPC provisions require the element of intention - sexual intention in the former and intention to insult modesty in the latter.The Court, therefore, made it clear that its observations are of a prima facie nature and the establishment of guilt or otherwise in each case is a matter to be decided at trial..The Court made the observation while considering a petition moved by a man who was accused of getting the attention of a minor by lifting his dhoti and asking her to measure his penis. The minor immediately complained to her mother but by then, the petitioner was allegedly seen fleeing from the scene. Criminal proceedings were subsequently initiated against the petitioner. He moved a petition before the Special Court in Perumbavoor seeking to be discharged from the case but the same was dismissed.This prompted him to approach the High Court with the present petition seeking to set aside the order of the Special Court dismissing his discharge petition and to stay all the proceedings against him. .The petitioner’s counsel argued that no prima facie case was made out and the actions described by the victim did not demonstrate sexual intent or intention to insult the modesty of the minor..However, after going through the statement of the minor narrating the petitioner’s actions, the Court opined that his behavior met the criteria for sexual harassment under the provisions of the POCSO Act and IPC.The Court also noted that as per Section 30 of the POCSO Act, courts are to presume a culpable mental state until the accused can prove its absence beyond reasonable doubt."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 Court explained..Therefore, the Court deemed it fit to dismiss the petition and uphold the decision of the Special Court declining to discharge the petitioner..The petitioner was represented by advocates Eldho Paul and Tessy Jose.Senior Public Prosecutor Renjit George appeared for the State. .[Read Order]