Published: 18th November 2021
Skin-to-skin contact not essential for POCSO offence: Supreme Court sets aside Bombay HC order
Venugopal had earlier told the apex court that there were 43,000 offences registered under POCSO Act in the last one year and that it's an outrageous judgement so far as POCSO is concerned
In a landmark verdict, the Supreme Court on Thursday ruled that the most important ingredient of constituting sexual assault under Section 7 of POCSO is sexual intent and not skin-to-skin contact with the victim.
A Bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi set aside the controversial Bombay High Court judgment that held that groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
In its judgement, the Bench said that skin-to-skin contact is not essential for POCSO offence as held by Bombay High Court.
It said that giving a narrow meaning of physical contact to confine it to skin-to-skin contact would defeat the purpose of the POCSO Act and it cannot be accepted.
The Court's order came on petitions filed by Attorney General KK Venugopal, the State of Maharashtra and the National Commission for Women (NCW) against the January 19 judgment passed by the High Court, which held that pressing the breast of a 12-year-old child without removing her top will not fall within the definition of 'sexual assault'.
On January 27, the top court had stayed the operation of the January 19 verdict of the Nagpur bench of the Bombay High Court after Attorney General had mentioned and said the order is "very disturbing" and will set a "dangerous precedent".
Attorney General, NCW, Maharashtra, Youth Bar Association of India while challenging the High Court order in the apex court stated that such observations would have a wide impact on the entire society and public at large.
Seeking to set aside the High Court order the appeals said that the observations made by the High Court were unwarranted and concerned the modesty of a girl child. One of the pleas pointed out that while passing the impugned judgment, the Single Judge recorded the name of the victim child. As per law, the names of victims of certain offences can not be published.
Attorney General of India KK Venugopal had argued that skin-to-skin contact is not expressed as an ingredient to constitute a crime of sexual assault under the POCSO Act.
The High Court judge lacked the sensitivity to appreciate that POCSO Act is meant to prevent sexual offences against children who are unable to defend themselves, AG had said.
Venugopal had earlier told the apex court that there were 43,000 offences registered under POCSO Act in the last one year and that it's an outrageous judgement so far as POCSO is concerned.
"The judge said skin to skin contact is required. This would mean someone can wear a surgical glove and exploit a child and get away scot-free. The accused tried to bring down the salwar and even then bail was granted. This would be a precedent on magistrates in Maharashtra. Better appreciation would be needed for the definition of sexual assault. There are 43,000 POCSO offences in the last one year," AG had said during the arguments.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, while passing judgement on January 19, had held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault. Mere groping will not fall under the definition of sexual assault, the judge had said.
The judge had modified the order of a sessions court, which had held a 39-year-old man guilty of sexual sexually assaulting a 12-year-old girl and sentenced him to three years of imprisonment.
As per the prosecution and the minor victim's testimony in court, in December 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat and then gripped her breast and attempted to remove her clothes.
However, the High Court said since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman's modesty under IPC section 354.
The High Court acquitted him under the POCSO Act while upholding his conviction under IPC section 354. Section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails minimum imprisonment of three years.