Touching minor’s lips is not ‘aggravated sexual assault’ under Pocso Act

New Delhi: Delhi High Court has held that, without sexual advances, touching and pressing a minor girl's lips and lying down next to her cannot be termed as "aggravated sexual assault" under the Pocso Act. Justice Swarana Kanta Sharma, in an order passed last month, decided the plea of the uncle of a 12-year-old minor girl challenging the framing of charges under Section 354 IPC and Section 10 of the Pocso Act against him.
The court said that the acts might violate her dignity and outrage her modesty, but without "overt or inferred sexual intent," they would fall short of meeting the legal threshold required to sustain a charge under Section 10 of the Protection of Children from Sexual Offences (Pocso) Act. However, it upheld his prosecution under Section 354 IPC. The court said there was a clear case under Section 354 of IPC for "assault or criminal force to a woman with intent to outrage her modesty."
The court said the apex court has repeatedly stated that modesty, in the context of Section 354 of IPC, must be interpreted in the light of dignity and bodily autonomy of a woman or 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'... under Section 10 of the Pocso Act," it pointed out.
It further noted that the minor 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. In a scenario when the child was seeking familial security, any inappropriate physical contact was far more than just discomforting, the court said. Even minimal contact, when done with intent or with the knowledge that it was likely to outrage modesty, was sufficient to invoke Section 354 of IPC, it said.
While hearing the appeal against the framing of charges, 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 a charge under a particular section is being ordered to be framed – is not appreciable," it said.