The Supreme Court has stayed the controversial ruling of the Bombay High Court which stated that groping without ‘skin to skin’ contact cannot be considered sexual assault as defined under the Protection of Children from Sexual Offences (POSCO) Act.
A Bench headed by Chief Justice of India, SA Bobde, ordered the stay after Attorney General KK Venugopal mentioned that "it is a very disturbing conclusion (by Bombay High Court)."
“Bombay High Court has apparently acquitted the accused under Section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin-to skin contact. Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit AG Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under Section 8 of POCSO Act. Issue notice to accused returnable in two weeks,” the top court ordered as per a news portal.
Bombay High Court
On January 19, Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court held that there has to be “skin to skin contact with sexual intent” for an act to be considered sexual assault. She stated that mere groping cannot be termed as sexual assault.
With this, Ganediwala modified the order of the Sessions Court, which had sentenced a 39-year-old man to three years imprisonment for sexually assaulting a 12-year-old girl.
As per reports, the matter in front of the court was that of the accused Satish, who had taken a girl to his house in Nagpur on the pretext of something to eat in December 2016. Once there, he groped her and attempted to remove her clothes.
The court said that since Satish groped her without removing her clothes, the offence cannot be termed as sexual assault. Instead, this would fall under the offence of outraging a woman's modesty under IPC section 354.
Picture for representational purposes only
It is important to note that section 354 entails a minimum sentence one year imprisonment, while sexual assault under the POCSO Act entails a minimum imprisonment of three years.
“Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,” High Court said.
“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.
With this, the Bombay High Court acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
This judgment sparked a huge controversy on social media, with several netizens expressing their anger.
Abha Singh, Advocate, Bombay High Court, former bureaucrat and social activist, told Her Circle, “It’s an erroneous order. Section 7 of POSCO act talks of sexual intent which is evident from the way the accused took the 12-year-old girl child to his house and tried to disrobe her. Did not tell the mother of the girl when she asked him of her whereabouts. Trial Court had given 3 years punishment. Reducing it to 1 year is gross error of judgment which should be stayed by higher court immediately. Police chargesheet it seems was faulty and had loopholes which were used to the accused's benefit. Skin to skin contact logic is bizarre. Maharashtra must appeal against the order.”
Chairperson of the National Commission for Women, Rekha Sharma, tweeted saying that they will challenge this ruling. In a set of two tweets, she wrote, “@NCWIndia is challenging the Hon’ble Bombay High Court, Nagpur Bench judgement in Criminal Appeal No.161 of 2020, Satish Ragde v. State of Maharashtra dated 19.01.2021,” the first tweet said.
The second one read, “2. This judgment will not only have cascading effect on various provisions involving safety and security of women in general but also put all the women under ridicule and has trivialized the legal provisions provided by the legislature for the safety and security of women.”
Karuna Nundy, Advocate, Supreme Court of India, also tweeted and said, “There has got to be retraining and temporary suspension of judges who pass judgments completely contrary to established law. Judgments like this contribute to impunity in crimes against girls. #NationalGirlChildDay2021 #NationalGirlChildDay.”
Furthermore, National Commission for Protection of Child Rights (NCPCR) Chairperson Priyank Kanoongo wrote to Maharashtra chief secretary, and said that the words “skin-to-skin with sexual intention without penetration” in the judgment need to be reviewed.