The Bombay High Court has 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 the Protection of Children from Sexual Offences Act, Live Law reported on Thursday. However, such acts would constitute as “sexual harassment” under Section 354-A(1)(i) of the Indian Penal Code, the Nagpur Bench of the court said.

A bench of Justice Pushpa Ganediwala was hearing 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 current case was against a child who is below 12 years, the Sessions Court said the act was “aggravated sexual assault” punishable under Section 10 of POCSO. He was sentenced to five years in prison and the judge imposed a fine of Rs 25,000 with a default simple imprisonment for 6 months.

A complaint was filed by the child’s mother, who said she saw the accused with his pants unzipped and holding her daughter’s hands. The mother also said the child informed her that the man removed his penis from his pants and asked her to come to bed to sleep.

The order was given by the same judge who acquitted a man found guilty of assault under POCSO on the grounds that groping without “skin-to-skin contact” does not constitute as sexual assault. The accused had allegedly taken a 12-year-old to his house on the pretext of giving her a guava, and had pressed her breast and attempted to remove her clothes.

Justice Ganediwala, like in the last order, again 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. As the accused did not touch the private parts of the girl, the High Court said the act would fall under the ambit of the third part of the definition – “any other act with sexual intent which involves physical contact without penetration”.

“The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this court, does not fit in the definition of ‘sexual assault’,” the bench said.

The Supreme Court on Wednesday put on hold the January 19 order passed by Justice Ganediwala after Attorney General KK Venugopal made a special mention in court, saying the High Court decision would set a “very dangerous precedent” to punish sexual offenders.

On January 25, the National Commission for Protection of Child Rights had implored the Maharashtra government to file an urgent appeal against the Bombay High Court’s interpretation of what constitutes as sexual assault of a minor. The children’s rights body said the language of the judgement needed to be reviewed at the earliest as it was derogatory to the minor.

Several activists and child rights bodies had criticised the judgement, terming it “absolutely unacceptable, outrageous and obnoxious”.