The Supreme Court on Wednesday stayed the Bombay High Court's controversial order acquitting an accused, which had stated 'skin-to-skin' contact necessary to be classified as sexual assault under the POCSO Act. Attorney General KK Venugopal said the order would set a dangerous precedent.
The Bombay High Court had recently modified a sessions court order that held a man guilty of a minor's sexual assault, ruling that groping a child without "skin-to-skin contact with sexual intent" does not amount to the offence under the Prevention of Children from Sexual Offences (POCSO) Act. The judgement was passed on January 19, the detailed copy of which was made available on Sunday.
Breaking: Supreme Court stays Bombay High Court order acquitting accused in POCSO Act which had said skin to skin contact necessary for sexual assault under POCSO Act.#POCSO #SupremeCourt #BombayHighCourt
— Bar & Bench (@barandbench) January 27, 2021
Justice Pushpa Ganediwala, hearing the case for the Nagpur Bench of the court, had held that act of groping the 12-year-old girl's chest and attempting to strip her would amount to molestation under Section 354 of the IPC (outraging a woman's modesty). The revised sentence punished the accused with one year's imprisonment for the less graver offence.
The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act and under IPC section 354. The sentences were to run concurrently.
"The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault," it said.
The POCSO Act defines sexual assault as when someone "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 court, in its verdict, held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.
After the news broke, experts bodies and women rights organisations condemned the move.
The International Planned Parenthood Federation (South Asia) reacted to the ruling with grave concern on Monday. The IPPF had said that the judgment is "deeply flawed" in its understanding of child sexual abuse and "fails to take into account the power hierarchy when an adult person abuses his/her authority over a child/minor".
"We are concerned about the judgement of the Indian court and believe it fails to take into account that child sexual abuse occurs when a person uses his/her power over a child or youth," the IPPF had said in its statement.
The National Commission for Women had also said it will challenge the judgement in the Supreme Court. "This judgment will not only have a cascading effect on various provisions involving safety and security of women in general but also subject all women to ridicule," National Commission for Women (NCW) Chairperson Rekha Sharma had said.