Source: Madhya Pradesh High Court

Why in News?

Recently, the Madhya Pradesh High Court in the matter of Prahalad Gujar v. State of Madhya Pradesh, has held that the use of criminal force upon the child to outrage her modesty, is indicative of the sexual intention of the accused, thereby constituting an offence under the Protection of Children from Sexual Act, 2012 (POCSO).

What was the Background of Prahalad Gujar v. State of Madhya Pradesh Case?

• The complainant mother of the prosecutrix along with her husband lodged a report stating that her daughter was playing in the courtyard, the present appellant abducted her (prosecutrix) and took her to his home where the appellant touched the prosecutrix illegally to outrage her modesty.
• After necessary investigation, a charge sheet was filed against the appellant under Sections 363 of the Indian Penal Code, 1860 (IPC) and Section 9 and 10 POCSO.
• The Trial Court convicted the appellant for the aforementioned offences.
• Aggrieved by the decision of the Trial Court, an appeal has been preferred by the appellant before the High Court of Madhya Pradesh.
• Affirming the decision of the Trial Court, the appeal was dismissed by the High Court.

What were the Court’s Observations?

• Justice Prem Narayan Singh observed that the act of taking a child into a closed room, placing her on one's lap, and rubbing her thigh is indicative of the sexual intention of the accused, thereby constituting an offence under the POCSO Act.
• It was further emphasized that what constitutes outraging of female modesty is nowhere defined, but the essence of a woman's modesty is her sex, and the culpable intention of the appellant is the crux of the matter.

What are the Relevant Legal Provisions?

Section 9 of POCSO

• Section 9 of POCSO deals with the aggravated sexual assault. It states that—

(a) Whoever, being a police officer, commits sexual assault on a child—

(i) within the limits of the police station or premises where he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as a police officer; or

(b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child—

(i) within the limits of the area to which the person is deployed; or

(ii) in any areas under the command of the security or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known or identified as a member of the security or armed forces; or

(c) whoever being a public servant commits sexual assault on a child; or

(d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or

(e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or

(f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or

(g) whoever commits gang sexual assault on a child.

Explanation.—when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or

(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or

(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j) whoever commits sexual assault on a child, which—

(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or

(ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or

(k) whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child; or

(l) whoever commits sexual assault on the child more than once or repeatedly; or

(m) whoever commits sexual assault on a child below twelve years; or

(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or

(o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or

(p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or

(q) whoever commits sexual assault on a child knowing the child is pregnant; or

(r) whoever commits sexual assault on a child and attempts to murder the child; or

(s) whoever commits sexual assault on a child in the course of communal or sectarian violence or during any natural calamity or in any similar situations; or

(t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

(u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public;

(v) whoever persuades, induces, entices or coerces a child to get administered or administers or direct anyone to administer, help in getting administered any drug or hormone or any chemical substance, to a child with the intent that such child attains early sexual maturity, is said to commit aggravated sexual assault.

Section 10 of POCSO

• This Section deals with the punishment for aggravated sexual assault.
• It states that whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine.

Section 363, IPC

• This section deals with the punishment for kidnapping.
• It states that whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.