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The court dismissed the petition. (Representative Image/Getty)
The Kerala High Court (HC) is hearing a case in which the accused is seeking acquittal on the ground that his conduct did not show sexual intent or an intention to outrage the modesty of a minor
The Kerala High Court (HC) recently observed that a man lifting his loincloth, exposing his private parts to a minor and asking the child to measure his penis prima facie constituted sexual harassment under Section 11 of the Child Protection Act. The Sexual Offenses Act (POCSO) and Section 509 of the Indian Penal Code (IPC) deal with insulting the modesty of a woman through words, gestures or conduct.
The bench presided over by Justice A. Badharudeen made the observation while considering the petition of the accused. The minor immediately reported the incident to her mother, but the petitioner was allegedly seen fleeing the scene.
Subsequently, criminal proceedings were instituted against the petitioner. He petitioned the Perumbawal Special Court to be exempted from the case, but it was dismissed. This led him to move the High Court seeking to set aside the order of the special court and stay all proceedings against him.
The High Court said: “The charge is that of raising pudding to show his private parts and then asking the victim to measure his penis. Prima facie, this would also directly attract the provisions of Section 11(1) of the POCSO Act as well as Section 509 of the IPC. However, , the court also emphasized that both the POCSO and IPC provisions require the presence of an element of intention – the former being sexual intention and the latter being the intention to insult modesty. The court therefore clarified that its opinion was prima facie and the guilt or otherwise was subject to trial.
The court also emphasized that under Section 30 of the POCSO Act, the court must presume that the accused is in a guilty state of mind unless the accused can prove beyond a reasonable doubt that he or she does not have a mental state. “The court shall therefore presume that the defendant is in a guilty state of mind, and the defendant must prove that he did not have such a state of mind for the offense alleged by the prosecution,” the court explained.
Finally, the Supreme Court noted: “The question of whether the defendant had the requisite sexual intent is an evidentiary question and the same evidence would be available only during trial.”
The court dismissed the petition and upheld the decision of the special court refusing to release the petitioner.
