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The court was hearing a case where the accused sought a discharge arguing that his actions did not demonstrate sexual intent or intent to insult the minor’s modesty
The Kerala High Court (HC) has recently observed that a man lifting his dhoti (loincloth), exposing his private parts to a minor, and asking the child to measure his penis would prima facie amount to sexual harassment under Section 11 of the Protection of Children from Sexual Offences (POCSO) Act and also attracts Section 509 of the Indian Penal Code (IPC), which pertains to insulting a woman's modesty through words, gestures, or acts.
The court, presided over by Justice A. Badharudeen, made the observation while considering a petition by a man accused of drawing a minor's attention by lifting his dhoti and asking her to measure his penis. The minor immediately reported the incident to her mother, but the petitioner was allegedly seen fleeing the scene.
Subsequently, criminal proceedings were initiated against the petitioner. He moved a petition before the Special Court in Perumbavoor seeking discharge from the case, but it was dismissed. This led him to approach the High Court to set aside the Special Court's order and stay all proceedings against him.
The High Court stated, "Lifting of dhoti 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.” However, the Court also emphasised 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. Thus, the Court clarified that its observations are prima facie, and the establishment of guilt or otherwise is a matter for trial.
The court also highlighted that under Section 30 of the POCSO Act, courts must presume a culpable mental state unless 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.
Conclusively, the HC noted that “The question as to whether the accused had the required sexual intent is a matter of evidence and the same is available during trial alone,” while dismissing the petition and upholding the Special Court's decision to decline the petitioner's discharge.
Cause Title: XXX v State of Kerala [CRL.REV.PET NO. 1084 OF 2023]
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