Centre opposes Bombay High Court skin contact sexual assault verdict
The Centre on Tuesday told the Supreme Court the much-criticised Bombay High Court ruling that groping a child’s breasts without “skin-to-skin contact” did not amount to sexual assault under the Protection of Children from Sexual Offences Act was “outrageous” and would have “far-reaching consequences” if not quashed.
“For tomorrow, any person who wears a surgical glove and feels the entire body of a woman… without penetration, then the minimum punishment of three years wouldn’t apply to him. This is outrageous. The judge clearly didn’t see the far-reaching consequences,” attorney-general K.K. Venugopal told an apex court bench of Justices U.U. Lalit and Ajay Rastogi.
The Supreme Court had in January stayed the judgment passed by Justice Pushpa Ganediwala, acquitting a man convicted of pressing the breasts of a 12-year-old over her dress. The Centre had rushed to the top court, seeking a stay on the judgment.
When the matter came up for hearing on Tuesday, Venugopal argued that the high court order could not be sustained as the legislative intent of the Pocso Act would be defeated.
He pointed out that in the past one year, 43,000 Pocso-related cases had been filed, indicating that there was a rising trend of sexual assault on children.
“It’s an outrageous judgment so far as Pocso is concerned. She (the judge) said skin-to-skin contact is required, which would result in a person wearing gloves and getting an acquittal,” Venugopal said.
“…The girl was taken by the man, (he) touched her breast and pulled her salwar. (She) yelled. The mother found her daughter and filed a complaint,” the AG said, reading out from the high court judgment.
The Maharashtra government had challenged a similar verdict by Bombay High Court in another case, which was also listed before the top court. In the second case, also heard by Justice Ganediwala, the high court had ruled that an accused opening the zip of his trousers before a five-year-old girl would not amount to sexual assault under the Pocso Act.
The Supreme Court adjourned the two matters till September 14 as the accused persons were not represented by any lawyer despite notices being served on the duo in January.
The court had earlier appointed senior advocate Sidharth Dave as an amicus curiae to assist it in the matter.
The Supreme Court passed the following order: “According to the Office Report dated 23.08.2021, service of show-cause notice is complete in all the matters. However, none has entered appearance on behalf of the accused. Since the accused are not being represented, we direct the Supreme Court Legal Services Committee… to make available services of any Senior Advocate from the Panel of the Committee along with any other Advocate-on-Record to appear on behalf of the accused.
“It may be stated here that there are two sets of accused in these matters. It will be entirely up to the Committee to have different sets of Counsel representing the accused or to have the same set of Counsel representing the cause of all the accused.
“Let the papers be submitted to the Committee today itself to enable it to take appropriate steps in the matter. List all these matters for final disposal on 14.09.2021.”
Justice Ganediwala’s judgments in January had triggered outrage among the civil society and women’s rights organisations.
In the first case, Satish had been handed a three-year jail term by a lower court for sexually assaulting the 12-year-old girl.
But Justice Ganediwala of the Nagpur bench of Bombay High Court had ruled there must be “skin-to-skin contact with sexual intent” for it to be considered sexual assault under the Pocso Act.
“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,” the judge had said.
However, Justice Ganediwala had added that under the Indian Penal Code’s Section 354 (assault or criminal force to outrage a woman’s modesty), “the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty”.
Punishments for sexual assault under the IPC tend to be lighter compared to those for similar offences under the Pocso Act.
In the other case, Justice Ganediwala had acquitted a 50-year-old man of charges under the Pocso Act on the ground that the offence of opening his trousers’ zip before the five-year-old girl did not invite an offence under this law since there was no actual penetration.
A trial court had sentenced the man to five years’ imprisonment under the Pocso Act. The high court had, however, sentenced him to five months in jail for outraging the girl’s modesty.