Tag: pocso

Introduction

The Hon’ble Supreme Court of India in its judgment Attorney General for India v. Satish and another put away the judgment of Bombay H.C. which held that skin-to-skin contact is an essential facet for a crime of sexual assault to be made out under the POCSO Act, 2012. The case emerged out of requests documented by the Attorney General of India, the NCW, and the State of Maharashtra against two decisions of the Bombay court, both composed by Justice Ganediwala. In this article, the writer will feature current realities, entries made, and the judgment given by the Supreme Court of India for this situation.

Background

A 12-year-old minor girl was brought away by a man to his back home under the guise to give guava and afterwards this very nearly 40 years of age man grabbed her, attempted to take off her garments, and limited her in a room. She began crying and yelling and fortunately, her mom acted the hero in time and her cry was heard by a couple of neighbors, who were sufficiently benevolent to affirm. On nineteenth January 2021, a woman judge of the Bombay H.C. gave a decision that, as there was no skin-to-skin contact there was no offense of  “sexual assault” under the POCSO Act, and this episode just sums up “Insulting Modesty of Woman” under the IPC.  Further, the term of detainment was decreased to 1 year from 3 years. Thus, following shock and fights all through the country, on 27th January 2021, this request for the Bombay H.C. was retained by the Supreme Court. Further, the Judge has been downgraded because of passing such silly orders, as the Supreme Court Collegium has removed suggestions to make the appointed authority super durable.

Interpretation By The Cout

The sole explanation given by the woman judge in diminishing the detainment terms to 1 year and holding the individual not blameworthy under the POCSO Act for Sexual Assault is because the appointed authority felt that the base discipline of 3 years under the POCSO Act is unbalanced for the detailed occurrence, and the episode explained above isn’t serious enough in that frame of mind to draw in 3 years of thorough detainment except if there are more serious episodes where there is skin to skin contact. It has additionally been investigated by the academicians that such a silly end to prohibit the above episode of youngster sexual offense as rape for the absence of skin to skin contact under the POCSO Act, can not be arrived at because of any law on the translation of rule nor by straightforward use of rationale. There is positively not a great reason to legitimize this decision.

Judiciary Response On Skin To Skin Contact

A total of 4 appeals were recorded under the steady gaze of the Supreme Court of India by the appellants – Attorney General for India, NCW, State of Maharashtra, and litigant – denounced accused against the judgment dated 19 January 2021 passed by Bombay H.C. holding that skin to skin contact is important to comprise an offense of rape under Section 7 of the POCSO Act. One more allure was recorded by the State of Maharashtra against the judgment of a similar seat dated 15 January 2021 wherein it was held that demonstrations of ‘holding the hands of the minor young lady’, or ‘opening the speed of gasp’ don’t comprise rape under the POCSO Act. The Hon’ble Supreme Court of India heard and discarded every one of the requests together. The translation of the arrangements of the POCSO Act as finished by the Bombay H.C. would devastatingly affect society at large. All the supposed demonstrations of the charge including taking the casualty to his home, eliminating salwar, squeezing bosoms and mouth were acts adding up to ‘sexual assault inside the significance of section 7 culpable with section 8 of the POCSO Act.

The understanding of the word ‘actual contact’, as signifying ‘skin-to-skin contact’ is a restricted understanding that nullifies the very point and object of the POCSO Act. There was no extension for use of the standard of ejusdem generis and it ought not to be applied where it would overcome the actual object of the statute. Section 7 incorporates two sections first, is a demonstration of ‘contacting with sexual purpose the vagina… ‘ and the second, relates to ‘some other demonstration with a sexual plan which includes actual contact without entrance’.

In this way, means the rea-the sexual goal of an individual is the most significant and material thing in the event of the offense of sexual assault. The terms ‘contact’ and ‘actual contact’ in section 7 have been utilized conversely by the legislature. In expressions of sections 29 and 30 of the POCSO Act, the court is expected to assume the sexual aim concerning the blamed and it is for him to demonstrate that he had no such aim or guilty mental state. The attack is supposed to be aggravated in nature. For example, sub-section (m) of section 9 states that whoever commits the offense of sexual assault on a child under 12 years is said to commit the offense of aggravated sexual assault. As mentioned under section 10 of the said act It accommodates discipline for aggravated sexual assault for example detainment of one or the other portrayal for a term which will not be under five years yet which might reach out to seven years, and fine.

Provisions Under POCSO Act

The central concern for the situation connects with the translation of section 7 of the POCSO Act. The Court saw that while deciphering a rule, such a development must be taken on which advances the object of the regulation and forestalls its conceivable maltreatment. The Court likewise saw that the POCSO Act was established to keep youngsters from rape, lewd behavior, and pornography. After breaking down the word reference significance of the words ‘contact’ and ‘actual contact’, the court communicated its concurrence with the accommodation of appellants that the two words have been utilized reciprocally in section 7 by the legislature. The Court concurred with the accommodation made for the sake of denouncing that articulation ‘sexual plan’ in section 7 can’t be bound to any foreordained construction and is an issue of reality to be chosen for each situation. The Court anyway dismissed the accommodation that actual contact in section 7 methods skin-to-skin contact.

Depending on the proverb ‘Ut Res Magis Valeat Quam Pereat’, the court saw that any limited translation which would overcome the object of an arrangement can’t be acknowledged. Deciphering the articulation ‘actual contact’ to imply ‘skin-to-skin contact’ would prompt a ridiculous translation that could never have been the goal of the governing body. Such translation would disappoint the actual object of the resolution and would be exceptionally unfavorable as the demonstrations of contacting the body of the youngster with gloves material or condoms wouldn’t add up to rape under section 7 regardless of whether they are committed with sexual aim. The court saw that it is a settled place that corrective resolutions must be understood rigorously yet it is similarly settled that conditions of a rule ought to be understood concerning the specific circumstance and different arrangements to make a predictable sanctioning of the entire rule connecting with the subject matter. The Court would not make a difference to the standard of lenity and saw that it is a settled recommendation of regulation that the legal equivocalness ought to be summoned if all else fails of translation.

Where the aim of the lawmaking body is clear, the courts can not make vagueness to overcome such a goal. The Court held that there is no vagueness or lack of definition in section 7 to summon the Standard of Lenity. for a term at the very least five years under section 10 of the POCSO Act. Justice Ravindra S. Bhatt in his agreeing judgment directed out the need to decipher the resolution with regards to the conditions that brought about its introduction to the world. In his judgment, the Hon’ble judge depended on the underhandedness rule of understanding of resolutions which gives that courts need to decipher the law in order to stifle the wickedness and advance the cure. He noticed that the judgment given by the Bombay Court will in general proceed with the naughtiness that the Parliament wished to avoid. He likewise noticed that in section 7 of the POCSO Act, the term ‘actual contact’ is of more extensive import than the word ‘contacting’ and isn’t restricted to contact. The articulation ‘some other demonstration’ including ‘actual contact’ may incorporate direct actual contact by the wrongdoer, with some other body a piece of the casualty with the exception of those referenced in the initial segment of section 7 and different demonstrations like the utilization of an item by the guilty party, drawing in actual contact with the person in question.

Indeed, even no contact by the wrongdoer might go under the domain of the saying “some other demonstration”. For instance for a situation where the casualty is constrained to contact oneself. To decide if contact or actual contact is made with sexual purpose, one needs to check out the encompassing conditions. For example, the idea of the relationship with the youngster, the length of contact, its intentionality, and whether there was a genuine non-sexual reason for the contact, spot and direct of the denounced when such leads are significant contemplations. Courts need to remember that sexual purpose isn’t characterized but is subject to the current realities of a case.

Judgment Pronounced By the Court

The Supreme Court of India put away the request passed by the Bombay Court on account of blaming the accused and reestablished the request for the Exceptional Court. The accused was sentenced for the offenses culpable under section 8 of the POCSO Act and sections 342, 354, and 363 of the Indian Penal Code. The accused was ordered to go through detainment for a considerable length of time and a fine of Rs.500/ – and in default thereof to go through basic detainment for one month for the offense under section 8 of the POCSO Act. As the accused was condemned for a significant offense under section 8 of the POCSO Act, no different sentence was forced upon him for different offenses under the Indian Penal Code. The accused was indicted for the offenses under section 354-A (1)(i) and 448 of the Indian Penal Code as and for the offenses under sections 8, 12, and 10 read with section 9(m) of the POCSO Act. The court guided him to go through detainment for a very long time for the offense under section 10 of the POCSO Act and to pay a fine of Rs. 25,000 and in default thereof to languish straightforward detainment for over a half year. No different sentence was forced upon him for different offenses under the Indian Penal Code and the POCSO Act.

Concluding Remarks

For this situation, the Supreme Court of India has given a milestone judgment by switching the questionable decisions passed by the Bombay H.C. which were vigorously scrutinized for being terrible in regulation. In any case, it is lamentable the Court in a nation would pass such a judgment that makes a joke of the law by totally dismissing the regulative history of the POCSO Act and the significant articles that the Demonstration tries to accomplish. To close, it is appropriate to refer to the accompanying perception made by Hon’ble Equity Ravindra S. Bhatt, “It is no important for any appointed authority’s obligation to strain the plain expressions of a resolution, to the point of being indistinguishable and to the mark of its obliteration, subsequently denying the call of the times that youngsters frantically need the confirmation of a regulation intended to safeguard their independence and respect, as POCSO does”.

References

• Attorney General For India v. Satish and another
• Satish v. State of Maharashtra
• Libnus v. State of Maharashtra
• Sneha Rao, ‘Restricting ‘Touch’ Or ‘Physical Contact’ Only To ‘Skin To Skin’ Contact Absurd : Supreme Court Reverses Bombay HC’s POCSO Judgment’, (18 November, 2021), https://www.livelaw.in/top-stories/pocso-skin-to-skin-judgment-supreme-court-bombay-high-court-attorney-general-185784.

This article is written by Saumya Tiwari, student of Graphic Era University, Dehradun.

–Report by Ishika Sehgal

Asaram Bapu, who is currently serving a life sentence, has not been granted respite by the Rajasthan High Court. The High Court denied Asaram’s third request for a stay of the sentence in the case of raping a minor. The court ruled that Asaram cannot be granted bail in light of the seriousness of the accusations. The court further noted that two prior requests for sentence suspension made on behalf of Asaram were denied by the court after arguments had been made, albeit somewhat withdrawn. It further mentioned that Asaram is still being held in detention while a comparable offense trial is being held in Gujarat.

BACKGROUND

The petitioner and a number of other accused are currently being tried in the Court of the Learned Sessions Judge, District of Jodhpur, for offenses under Sections 342, 376(2)(f), 376D, 354A, 370(4), 506, 509/34, 109, and 120B IPC, Sections 23 and 26 of the Juvenile Justice Act, and Sections 5(f)(g)/6, 7/8, and 17 of the POCSO Act. Asaram was convicted of raping a juvenile at an ashram in Jodhpur in 2013 and received a life sentence from a lower court in 2018. In the western Gujarat state, he is also on trial in another rape case.

CONTENTIONS OF APPELLANT

Asaram was represented by Senior Advocate Devadatt Kamat, accompanied by Adv. Rajesh Inamdar requested that the appellant be released on bail due to his advanced age (about 83 years) and severe medical conditions. He claimed that Asaram should be allowed bail because he has been in detention for a long period of time—nearly 9 years and 7 months. In addition, it was claimed the court’s order summoning Mr. Ajay Pal Lamba to appear as a witness under Section 391 of the Criminal Procedure is also being contested and there is no possibility for the appeal to be heard. Further, the offense for which he has been convicted by the special court cannot be prima facie made out.

CONTENTIONS OF RESPONDENT

The Public Prosecutor said that the appeal has been scheduled for hearing on numerous occasions and that the defense attorney has been requesting adjournments while challenging the bail. Consequently, the appellant cannot use the cause for delay, according to the experienced Public Prosecutor.

DECISION

The Gujarat court has repeatedly refused to grant bail to the applicant. The court observed :

“A perusal of the order-sheets of the appeal would indicate that the matter was listed for hearing on more than one
occasions, but adjournments have been sought by the defence for one reason or the other. Two previous applications for suspension of sentences preferred on behalf of the appellant have been dismissed by the court after arguments had been advanced to some extent albeit by way of withdrawal. The appellant continues to be in custody in the trial going on at Gujarat.”

The appeal in the case of Asharam @ Ashumal v. the State of Rajasthan will soon be heard by the court.

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