Recently, the Kerala High Court held 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 suggested that actions directed at a minor girl could, on the surface, constitute an offense under Section 509 of the Indian Penal Code (IPC). This section addresses acts intended to insult a woman's modesty through words, gestures, or actions.

"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 observed that both the POCSO Act and IPC provisions necessitate the presence of intent: sexual intent in the case of POCSO, and intent to insult modesty in the case of the IPC.

The Court clarified that its observations are purely prima facie and that determining guilt or innocence in each case is a matter to be resolved during the trial.

The Court made this observation while reviewing a petition from a man accused of drawing the attention of a minor by lifting his dhoti and asking her to measure his penis. The minor promptly reported the incident to her mother, but by that time, the petitioner was reportedly seen fleeing the scene.

Criminal proceedings were initiated against the petitioner, who then sought discharge from the case by filing a petition with the Special Court in Perumbavoor. When this petition was dismissed, the petitioner approached the High Court to overturn the Special Court’s decision and to stay all proceedings against him.

The petitioner’s counsel argued that no prima facie case existed and that the actions described by the victim did not indicate sexual intent or an intention to insult the minor's modesty.

However, after reviewing the minor's statement about the petitioner’s actions, the Court concluded that his behavior constituted sexual harassment under both the POCSO Act and the IPC. The Court also referenced Section 30 of the POCSO Act, which requires courts to assume a culpable mental state until the accused can prove otherwise beyond a reasonable doubt.