The Youth Bar Association of India has moved the Supreme Court to appeal the Bombay High Court’s recent “skin-to-skin” judgment that groping the breasts of a girl without “skin-to-skin contact” would not amount to “sexual assault under the POCSO Act.
Advocate Manju Jetley, the special leave petition filed notes that such findings would have a broad effect on the whole community and the public in large and urged the Top Court to set aside/expunge the same.
In the challenged judgment, the Bombay High Court’s Nagpur Bench held that such an act would amount to ‘molestation’ under Section 354 of the IPC and not to “sexual assault” under Section 8 of the POCSO Act.
While the Single-Judge Bench convicted the man under Sections 342 (wrongful confinement) and 354 (outraging the modesty of a woman) of the Indian Penal Code, it went on to note that, in the absence of any clear information as to whether the top was removed or whether he put his hand inside the top and pressed her breast, the act of pressing the breast of a girl aged 12 years does not amount under “Sexual Assault”. The act did not literally involve direct “physical contact” i.e., skin to skin, it could not be termed as “sexual assault” under Section 7 of the POCSO Act.
The petitioners state that the remarks taken by the single judge are “unwarranted” and concern the girl’s modesty.
The Single Judge further claimed that, in passing the impugned judgement, the name of the victim child was reported in paragraph 12, which is adverse and contradictory to the spirit of section 228A of the IPC, which forbids the disclosure of the names of the victims of such offences.
“In addition, the Single Judge held, in paragraph no. 26 of the order under appeal, that “there is no immediate physical touch, i.e., skin to skin for sexual intent without penetration. Petitioner added, such an argument would lead to a dastardly situation which would reduce the prestige of the entire country.
Decision of the Bombay High Court (Nagpur Bench) in Satheesh Vs State of Maharashtra in Criminal Appeal 161/2020 ruled seriously questionable on 19.01.2021.
Interpretation of section 7 of POCSO Act
The tribunal ruled that under the POCSO Act, rubbing a child over her clothing would not attract a crime. At the same time, it maintained that it attracted a crime under 354 IPC and for a term of 1 year conviction to the accused.
A few fundamentals of the laws and the jurisprudential side of a criminal act were ignored by the court. The POCSO Act is, first, a gender-neutral law. But the IPC’s section 354 is female-oriented. In other words, both girls and boys may be victims of the POCSO Act. At 354 IPC, a victim may only be a woman.
Section 7 of the POCSO Act reads as, “Whoever touches the child’s VAGINA, PENIS, ANUS, or BREAST or any other act with sexual intent involving physical contact is said to commit “sexual assault.” The term “PENIS” applies to a male child’s sexual organ and the word “ANUS” involves a male child’s organ.
In a case where the accused approaches a male child’s penis or anus for indecent intent, the perpetrator may be found responsible for punishment. If the Bombay High Court’s opinion is acknowledged, no penalty is necessary since a male victim is not included in section 354 IPC.
Another folly of the decision is that if a person inserts a female child’s vagina or anus while the child is wearing a dress, under the POCSO Act, there would still be no prosecution. If this is stretched into a hypothetical scenario, if the defendant uses a glove to touch a child’s bare body, then the crime cannot come into action under the POCSO Act because there is no skin-to-skin contact.
The supposed crime was nothing but ‘intentional sexual assault’. Therefore, the violation will come from the POCSO Act U/s 7. A sexual harassment should be the only rational consideration of the fact that the accused and child were alone in a room and that the risk of accidental contact is fully ruled out. And until he may prove that he did so accidentally or without any sexual motive, the subject/ accused would be treated as performing the act of sexual purpose.
Section 354 A (1) (i) reads, “Physical contact ” It does not apply to “sexual intent” as in the case of section 7 of the POCSO Act, which offers an explanation that the woman’s body and the damage incurred to it by a man’s touch is the orientation of that specific section. Whatever the motive of the perpetrator, the crime is complete, going by the words of the clause. Nevertheless, it would be a bigger issue whether an accidental contact will make a person liable to be prosecuted under this clause.
A few days earlier, the National Commission for Women (NCW) stated that it will contest the judgment under appeal, arguing that the same would not only have a cascading impact on various laws on women’s protection and protection in general, but would also ridicule all women and trivialize the existing protections for women’s safety and security established by the legislature.
The State Commission, meanwhile, The NCPCR has asked the government of Maharashtra to file an “urgent appeal” against the challenged judgment. In its message, the NCPCR chief emphasized that the name of the survivor seems to have been leaked and the commission is of the opinion that the state should take note of this and take the appropriate measures.
In conclusion, theoretically, under Sec 07 of the POCSO Act and Sec 354 of the IPC, the crime occurs in two separate cases, while often they will literally overlap. In the factual circumstances of the case discussed above, the only possible inference could be that, under Sec 08 of the POCSO Act, the perpetrator is liable to be sentenced with a minimum sentence of three years and not under IPC Section 354.