Pressing, touching minor’s lips per se not POCSO offence: Delhi HC

The Delhi High Court has said in the absence of "sexually motivated" advances, touching and pressing a minor girl's lips and sleeping next to her cannot attract prosecution for 'aggravated sexual assault' under the 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 the Protection of Children from Sexual Offences (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 24 February while deciding on the plea of the uncle of the 12-year-old girl against framing of charges against him under Section 354 IPC and Section 10 of the POCSO Act.

The court sustained the charge under Section 354, but discharged him under Section 10 of the 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 apex 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 — it was 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 whatsoever — like even in the present case — to justify the framing of charges.

"The practice by some sessions courts of passing four line orders on [a] 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.

The court said that 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.