Tag: bombay hc

Introduction

The Bench of Bombay High Court, Nagpur has said last month, that the zip of the pants of the accused being open at the relevant time of the incident or holding the hand of a minor is not to be considered as sexual assault as it is defined under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act (see also: Libnus v. State of Maharashtra).
Justice Pushpa Gandewali on January 15 delivered this judgment, four days after her controversial judgment on “skin-to-skin” contact being a determining factor for sexual assault under the POCSO Act. This judgment was passed on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.

The complaint was lodged by the mother of the girl accusing, that she saw the accused whose pant’s zip was opened and was holding the hand of her daughter. She further testified that her daughter informed her that the appellant/accused removed his penis from the pant and asked her to come to the bed for sleeping.

Section 7 of POCSO Act

Section 7 of POCSO Act states that: “Sexual assault – 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”.

Court’s Ruling

The Court stated that the definition of ‘sexual assault’ is something that is ‘ a physical contact with sexual intention without penetration’. But the court noted that there was no such actual touching of the private parts of the body happenings in this case. The court explains the words “any other act” from the definition as should be interpreted Ejusdem Generis with the beginning portion of the definition (Ejusdem generis is a principle of statutory interpretation which says that meaning of general words which follow a specific word is limited by the meaning of the special words).
So according to the Court holding hands of a minor or unzipping of pants can not be considered as sexual assault and does not fit in its definition. According to POCSO, ‘sexual assault’, when committed against a child aged less than 12 years, it will become ‘aggravated sexual assault’ under Section 9, which is punishable under Section 10.
The Court has however considered the offense of Sexual Harassment under Section 354A(1)(i), which deals with “physical contact and advances involving unwelcome and explicit sexual overtures”, is attracted in the case.
So, therefore the court held that 5 months of imprisonment that the accused already has gone through is enough punishment to suffice.
The court states that “Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose”.

Reported by – Komal Dhore

Introduction:

A recent judgment of the Bombay High Court has taken social media by storm, with netizens raging over the regressive outlook of the court. The case, Satish v State of Maharashtra, revolved around the fact that a 12-year girl was assaulted and groped, yet the Bombay High Court held that “in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault.” This ruling came even after precedents from various other High Courts (in the case of Jagar Singh v State of Himachal Pradesh), including the Bombay High Court ruling that Sexual Assault under Section 7 of POCSO Act, need not be skin to skin, and even the act of touching a minor with sexual intent in their private area would attract the penalty under Section 7.

Section 7 and the outrage

This case saw the relevancy of the POCSO being put into question. It has been stated that skin-to-skin touch is necessary for constituting an offence under Section 7 of the POCSO Act. In the present scenario, groping of child’s breast has not been considered an offence under Section 7.
Section 7 constitutes that, touching of vagina, breasts or any such private area with “sexual intent” is punishable. However, in this case a new concept of skin-to-skin touch has emerged.
It is also to be noted that, the offence has been held punishable under Section 354 of the Indian Penal Code, that is, outraging the modesty of a woman. However, questions are now being raised as to whether it is correct to negate the entire spirit of the POCSO Act.
Questions such as, if the POCSO Act was enacted to safeguard the rights of children specifically, why is the act is not being relied upon in such situations? Section 7 of POCSO provides for rigorous punishment and gives preference to the rights of children. However, keeping reliance on IPC is making this act non-reliable for such cases. Both IPC and POCSO have their own validities and importance. Overlapping of the laws in ways that degrade the other shall not be fruitful for anyone.
Due to extreme public outrage, and the above mentioned valid arguments the Supreme Court on Sunday stayed the Bombay High Court’s order.

Conclusion/Personal Views:

It is important to create a threat in the minds of criminals to make the laws stringent. The relevancy of the laws has to be maintained by the courts, rather than dragging other laws in between. Section 6 and 7 of POCSO are alone relevant and compatible of punishing offenders in scenarios like the present one. It will be awaited to see the further decision of the Supreme Court because the decision here will make a huge difference for future references. This provision is about the safety of children, it cannot be neglected the way it has been done, in this judgement.

Reported by – Sejal Makkad