Ashish Pandey 
New Delhi:
The Delhi High Court has said in the absence of sexually motivated advances, touching and pressing minor girl’s lips and sleeping next to her cannot attract prosecution for “aggravated sexual assault’ under POCSO Act.
Justice Swarana Kanta Sharma observed the acts might violate her dignity and outrage her modesty but without “overt or inferred sexual intent” would fall short of meeting the legal threshold required to sustain a charge under section 10 of Protection of Children from Sexual Offences Act (POCSO Act).
The judge, however, ruled that there was a clear prima facie case under Section 354 of IPC for ”assault or criminal force to woman with intent to outrage her modesty”.
The court passed the judgement on February 24 while deciding the plea of the uncle of a 12-year-old minor girl against framing of charges under Section 354 IPC and Section 10 of POCSO Act against him.
The court sustained the charge under Section 354 but discharged him under section 10 of POCSO Act.
“Essential ingredients of an offence under Section 354 of the IPC are squarely met. This provision criminalises the use of criminal force or assault against a woman with the intent to outrage her modesty or with the knowledge that such an act is likely to do so,” the court said.
Referring to Supreme Court’s rulings, the court said the top court has repeatedly said modesty, in the context of Section 354 of IPC, must be interpreted in light of the dignity and bodily autonomy of a woman, or a minor girl.
“(However) the victim has not alleged any act of an overtly sexual nature, nor has she suggested in any of her recorded statements – whether before the magistrate, the police or CWC – that she was subjected to sexual assault or that there was even an attempt to commit such an offence… the absence of even the slightest indication of a sexually motivated advance in the statements of the victim negates the foundational requirement of ‘sexual intent’, which is an essential element of an offence under Section 10 of POCSO Act,” it added.
The minor girl, the verdict said, was abandoned by her mother at a young age and lived at a child care institution. She was visiting her family at the time of the incident, it noted.
The verdict observed in a scenario when the child was seeking familial warmth and security, any inappropriate physical contact by a family member in a position of trust was far more than just discomforting – a clear violation of her dignity, bodily autonomy, and modesty.
Even a minimal physical contact, when done with an intent or with the knowledge that it was likely to outrage modesty, was sufficient to invoke Section 354 of IPC, it said.
The court also deprecated the practice of passing “cryptic, non-speaking, proforma orders” by trial courts underlining no reasoning — even in the present case — whatsoever to justify the framing of charges.
“The practice by some sessions courts of passing four line orders on charge – devoid of facts, arguments and analysis thereof and the reason to reach a conclusion as to why charge under a particular section is being ordered to be framed – is not appreciable,” it said.
The court said when a person was at a risk of incarceration for a significant period, judicial orders should not be passed in a mechanical manner and trial courts were expected to provide at least some reasoning to demonstrate application of mind to the facts and arguments placed before them.
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