The Supreme Court on Thursday set aside a Bombay High Court ruling that held that “skin-to-skin contact” between an accused person and a minor was necessary to establish a case under the Protection of Children from Sexual Offences Act, commonly known as the POCSO Act, reported Bar and Bench.
The verdict was delivered by a bench of Justices UU Lalit, Ajay Rastogi and Bela M Trivedi that was hearing a batch of petitions against the controversial verdict by the Nagpur bench of Bombay High Court passed on January 19.
In its order, Justice Pushpa Ganediwala of the Nagpur bench 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 man 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”.
On Thursday, the Supreme Court held that sexual intent was the most important ingredient constituting sexual assault under POCSO Act and “skin-to-skin contact” in such incidents was not relevant.
“Construction of a rule should give effect to rule rather than destroying it,” the court said. “The intention of legislature cannot be given effect to unless wider interpretation is given.”
The court said that the purpose of law cannot be to allow offenders to escape justice, reported Live Law. It said that mandating “skin-to-skin contact” would lead to narrow and absurd interpretation.
Justice Bhat delivered a separate but concurrent verdict.
“...the reasoning of the High Court insensitively trivialized, legitimized and normalized behavior which undermines dignity of children,” Bhat said. “The High Court erred in coming to such a conclusion.”
The court also ordered that the accused person in the case has to undergo rigorous imprisonment for three years and simple imprisonment for one month.
Justice Ganediwala, in another verdict, had also ruled 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 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.