[POCSO Act] Lying Very Close To Minor Victim Amounts To 'Outraging Modesty' But Not 'Aggravated Sexual Assault' If No Overt Sexual Intent: Delhi HC

The Delhi High Court has held that pressing lips of a minor victim and lying very close to her may amount to offence of outraging her modesty under Indian Penal Code but the same may not amount to offence of aggravated sexual assault under POCSO Act if overt sexual intent is absent.

“The act of touching and pressing lips or lying down next to the victim, though may result in violation of a woman's dignity and lead to outraging of her modesty, but absent any overt or inferred sexual intent, the said acts would fall short of meeting the legal threshold required to sustain a charge under Section 10 of POCSO Act,” Justice Swarana Kanta Sharma said.

The Court was dealing with a plea moved by an accused challenging the trial court order framing charges against him for the offences under Section 354 (outraging modesty of a woman) of the Indian Penal Code, 1860 and Section 10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012.

The petitioner, paternal uncle of a 12 year old girl, was accused of touching and pressing lips of the minor victim and sleeping or lying down next to her. The minor was abandoned by her mother when she was four years old. It was alleged that the petitioner engaged in inappropriate conduct during the victim's four-day visit to her grandmother's house.

Partly allowing the plea, the Court upheld framing of charges against the accused under Section 354 of IPC but discharged him for the offence under Section 10 of POCSO Act.

The Court observed that the act of touching and pressing the lips of a girl child, especially in the absence of any plausible justification, falls well within the ambit of criminal force as defined under Section 350 of IPC.

“Even a minimal physical contact, when done with the intent to or with the knowledge that it is likely to outrage modesty, is sufficient to invoke the provision of Section 354 of IPC,” the Court said.

However, for the POCSO charge, the Court observed that presence of sexual intent is the determining factor in distinguishing an act of mere physical force from an act that constitutes sexual assault under the POCSO Act.

The Court noted that the victim had not alleged any act of an overtly sexual nature, nor had she suggested in any of her recorded statements that she was subjected to sexual assault by the petitioner or that there was even an attempt to commit such an offence.

“Therefore, in this Court's considered opinion, no offence under Section 10 of POCSO Act is made out against the petitioner based on the material placed on record and the nature of allegations leveled by the victim,” the Court said.

While concluding, the Court observed that the impugned order passed by the trial court framing charges against the accused was entirely non-speaking wherein it was concluded that a prima facie offence under Section 10 of POCSO Act was made out against the petitioner. However, the Court said that it failed to assign any reason or explanation as to how the said conclusion was reached by the Judge.

“There is no gainsaying that reasons in a judicial order provides clarity not just to the accused, but also to the appellate or revisional courts, which may later be called upon to examine the correctness of the order. The absence of any reasons in an order on charge would undoubtedly affect the ability of higher courts to understand as to what weighed in the mind of a judge, whose order is under challenge, while arriving at a particular decision, such as framing charges against an accused in the present case,” the Court said.

It noted that large number of orders on charge were being received which were cryptic, non-speaking, proforma orders in every case, whether relating to sexual assault or otherwise. Observing that practice by some Sessions Courts of passing four line orders on charge is not appreciable, the Court said:

“Arguments are addressed by the counsels to support their cases at the particular stage(s) of trial and according to the stage of trial, the trial Court is expected to deal with the arguments and pass a reasoned order thereon, accepting or rejecting their contentions. The arguments however cannot be simply washed away as if not advanced by the counsel concerned,” the Court said.

Title: MRP (IDENTITY WITHHELD) v. STATE (NCT OF DELHI)

Citation: 2025 LiveLaw (Del) 290

Click here to read order