Attorney General KK Venugopal on Tuesday urged the Supreme Court to overturn a Bombay High Court decision that held that “skin-to-skin contact” between an accused and a minor was necessary to establish a case under the Protection of Children from Sexual Offences Act, commonly known as POCSO Act, reported Live Law.
“If tomorrow a person wears a pair of surgical gloves and feels the entire body of a woman, he won’t be punished for sexual assault as per this judgment,” Venugopal told the court. “This is outrageous... The judge clearly didn’t see the far reaching consequences.”
A bench of Justices UU Lalit and Ajay Rastogi was hearing a batch of petitions against the controversial verdict by the Nagpur bench of Bombay High Court passed on January 19. Justice Pushpa Ganediwala of the High Court had held that groping a minor’s breast without removing her clothes did not fall into the category of sexual assault defined under Section 7 of the POCSO Act.
She had made the observation while modifying an order by a sessions court that held a 39-year-old man guilty of sexual assault. The accused had allegedly taken a 12-year-old to his house on the pretext of giving her a guava, and had groped her breast and attempted to remove her salwar.
The Supreme Court had stayed the High Court order, saying that the judgement was “unprecedented” and “is likely to set a dangerous precedent”.
In February, the National Commission for Women too filed an appeal against the Bombay High Court verdict. The women’s body said that the interpretation of the ruling that physical contact means “skin-to-skin touch” was perverse and bad in law.
On August 6, the Supreme Court had appointed Senior Advocate Siddharth Dave as an amicus curiae in the case.
On Tuesday, the Supreme Court was hearing petitions filed by Venugopal, the National Commission for Women and the state government of Maharashtra, Bar and Bench reported.
During the hearing, Venugopal said that the Bombay High Court verdict was contrary to the intent with which the POCSO Act had been passed by the legislature. He also pointed out that in the last one year, 43,000 cases had been filed in the country under the law.
Advocate Rahul Chitnis, appearing for the Maharashtra government, said that the state supported Venugopal’s arguments.
The court adjourned the matter for a final hearing on September 14 noting that the accused had no representation. It directed the Supreme Court Legal Services Committee to appoint a lawyer for the accused.
Meanwhile, the Supreme Court is also hearing a separate appeal filed by the Maharashtra government on another Bombay High Court ruling that held that holding a minor’s hands and unzipping one’s pants in front of a minor will not fall under the definition of sexual assault under POCSO Act.
This judgement was also given by Ganediwala in January. The verdict was on a criminal appeal filed against the conviction and sentence given to a 50-year-old man for molesting a five-year-old girl.
Since the offence in the case was against a child aged under 12 years, a sessions court had held that the accused person’s action was “aggravated sexual assault” punishable under Section 10 of POCSO Act. He was sentenced to five years in prison and a fine of Rs 25,000.
In this case too, Ganediwala noted that Section 7 of the POCSO Act states: “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration, is said to commit sexual assault.”
The judge said according to the definition of “sexual assault”, a “physical contact with sexual intent [and] without penetration” is an essential ingredient for the offence.
“The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’...does not fit in the definition of ‘sexual assault’,” the judge had said.