By Astha Bhumish Shah 

The Kerala High Court observed that a man raising his dhoti, showing a minor his penis and asking the child to measure it would amount to sexual harassment of a minor which is punishable under Section 11 of the POCSO Act. The Court added that when such actions are directed towards a minor girl, it would also attract the offence punishable under Section 509 of the IPC which deals with acts done with the intention of insulting a woman’s modesty through words, gestures, or acts. However, both provisions require the element of intention – sexual intention in POCSO and intention to insult modesty in IPC. Hence the observations made by the Court is prima facie in nature and the establishment of guilt is a matter which is to be decided during trial. These observations were made while the Court was 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. It was alleged by the petitioner 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 behaviour 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. Therefore, the Court deemed it fit to dismiss the petition and uphold the decision of the Special Court declining to discharge the petitioner. (XXX v. State of Kerala & Ors. – CRL.REV.PET NO. 1084 OF 2023) 

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