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Thursday, September 23, 2021

‘Skin-to-skin’ ruling: HC order in POCSO case outrageous, A-G tells SC

The judgment “is outrageous and would set a dangerous precedent”, Venugopal told a Bench of Justices U U Lalit and Ajay Rastogi, which is hearing appeals against the January 12 ruling of the Nagpur Bench of the Bombay HC.

By: Express News Service | New Delhi |
Updated: August 25, 2021 4:07:46 am
The Attorney General of India K K Venugopal urged the Supreme Court on Tuesday to reverse the Bombay High Court judgment. (Express File Photo by Tashi Tobgyal)

ATTORNEY GENERAL K K Venugopal on Tuesday urged the Supreme Court to reverse the Bombay High Court ruling which held that if there is “no direct physical contact, i.e. skin to skin”, no offence of sexual assault under Protection of Children from Sexual Offences (POCSO) Act, 2012, can be said to be committed.

The judgment “is outrageous and would set a dangerous precedent”, Venugopal told a Bench of Justices U U Lalit and Ajay Rastogi, which is hearing appeals against the January 12 ruling of the Nagpur Bench of the Bombay HC.

The Supreme Court had stayed the HC order on January 27. The AG and NCW had filed separate appeals.

“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. This is an outrageous order. The accused tried to bring down the salwar and even then bail was granted… The Judge clearly didn’t see the far-reaching consequences,” the AG said. He said that “touching of the breast of a minor even without removing the top amounted to commission of offence of sexual assault under the Act”.

Referring to the facts of the case, he said the minor victim, who was stalked and groped by the accused, raised an alarm, and an FIR was lodged without any delay. Letting off the accused will go against the legislative intent, the AG said, adding that 43,000 POCSO offences were registered in the last one year.

After a brief hearing, the Court adjourned the matter to September 14, as no counsel appeared for the accused.

The Bench directed the Supreme Court Legal Services Committee (SCLSC) “to make available the services of senior advocate or advocates along with the Advocate-on-Record (AoR) to appear on behalf of the accused”.

The case dates back to December 2016, when the 39-year-old accused had lured the 12-year-old girl to his house on the pretext of giving her something to eat. According to the complaint lodged by the girl’s mother, the man pressed the girl’s breast and attempted to remove her salwar. The mother found the girl in the man’s house.

A Sessions Court had convicted the man under Section 8 (punishment for sexual assault) of the POCSO Act and sentenced him to three years in jail.

On January 12, the Nagpur Bench of the Bombay HC modified the decision of the Sessions Court, and convicted him under IPC Section 354 (assault or using criminal force with intent to outrage a woman’s modesty), sentencing him to one year in jail.

The HC said that groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault, as defined under the POCSO Act. It said that since the man groped the child without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC Section 354.

“Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration,” it said. The HC also held the accused guilty under IPC Section 342 (wrongful confinement).

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