The Delhi High Court has ruled that in the absence of sexually motivated advances, actions such as touching and pressing a minor girl's lips or sleeping next to her do not amount to "aggravated sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Swarana Kanta Sharma observed that while such acts may violate the girl's dignity and outrage her modesty, they do not meet the legal threshold for Section 10 of the POCSO Act unless there is "overt or inferred sexual intent."
However, the court found a prima facie case under Section 354 of the Indian Penal Code (IPC) for "assault or use of criminal force with intent to outrage a woman's modesty."
The ruling came on February 24 while hearing a plea by the uncle of a 12-year-old girl, challenging the framing of charges under both Section 354 of IPC and Section 10 of POCSO against him. The court upheld the charge under Section 354 but discharged him under the POCSO provision.
It emphasized that Section 354 criminalizes the use of criminal force or assault against a woman with the intent—or knowledge—that it would likely outrage her modesty. Citing Supreme Court precedents, the judgment reaffirmed that modesty, in the context of this provision, must be understood in light of a woman's dignity and bodily autonomy.
The court further noted that the girl, abandoned by her mother at a young age, was living in a child care institution and was visiting her family when the incident occurred. It highlighted that in such circumstances, any inappropriate physical contact by a family member in a position of trust not only caused discomfort but also amounted to a violation of her dignity and bodily autonomy. Even minimal physical contact, if done with the intent or knowledge that it could outrage modesty, would be sufficient to attract Section 354 IPC.
Additionally, the court criticized the practice of trial courts issuing "cryptic, non-speaking, proforma orders" without proper reasoning for framing charges. It stated that when an individual faces the risk of significant incarceration, judicial orders should not be passed mechanically, and trial courts must provide reasoned decisions demonstrating the application of mind to the facts and arguments presented.
