Tag: #SexualAssault

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.

Case Number

Criminal Appeal No. 329/2021

Equivalent Citation

2021 SCC OnLine SC 230

Bench

• Justice S Ravindra Bhat
• Justice AM Khanwilkar

Decided On

March 18, 2021

Relevant Act/Sections

• Section 376 of the Indian Penal Code, 1860
• Section 506 of the Indian Penal Code, 1860

Brief Facts & Procedural History

The petition was filed by Advocate Aparna Bhat and eight other lawyers in response to an unjustified order issued by the Madhya Pradesh High Court on July 30, in which the accused of sexual assault was ordered to visit the victim’s home on the occasion of Raksha Bandhan with Rakhi and be tied by her as a condition of bail. The accused, who is a neighbour of the complainant Sarda Bai, entered her house on April 20, 2020, and attempted to sexually harass her, prompting the filing of (hereafter referred to as IPC). After the case was investigated, a charge sheet was filed. Under section 438 of the Code of Criminal Procedure, the accused filed an application for anticipatory bail (hereafter referred to as Cr.P.C.) The accused was granted bail by the Madhya Pradesh High Court on the affliction that he and his wife visit Sarda Bai’s house on the occasion of Raksha Bandhan on August 3, 2020, with a package of sweets and ask her to tie the Rakhi to him with the pledge that he will protect her to the best of his ability in the future. The accused was also directed to hand up Rs. 11,000 as a gesture of gift given by brothers to their sisters as part of the customary Raksha Bandhan rites, which the petitioners have challenged before the Hon’ble Supreme Court.

The petitioner filed a writ plea in the Supreme Court of India against the Madhya Pradesh High Court’s order. The following prayers were included in the petition:

1. The Supreme Court directed the High Courts and trial courts not to make such observations in situations of rape and sexual assault which would trivialize the anguish endured by the victim and impair their dignity.
2. The courts should not aim at compromises such as encouraging marriage between the accused and the prosecutrix and it should not be considered a judicial remedy. Compromises like this go against a woman’s honour and dignity. The petitioner cited the case of State of Madhya Pradesh v. Madanlal¹ in support of his claim.
3. The appellants further urged that no judge make any remarks or observations in the ruling that would reflect their prejudices and harm the woman’s dignity.
4. In circumstances of sexual assault, no such restriction should be imposed that permits the applicant to see the complainant or her family members. The court was requested to provide gender sensitization directives for the bar and bench, as well as law students.
5. Also, under Sections 437 and 438 of the Cr. P.C, the court was asked to set instructions on legally feasible bail terms.

Issues before the Court

• Can a compromise be struck between the accused and the victim in such instances?
• Is it acceptable for courts to issue such orders, and if so, what effect will such judgments have on society?
• Do such directions constitute to conduct of the trial in an unfair manner?
• Can the accused be permitted to meet the survivor or any of the members of her family?
• What, most importantly, should be the guidelines that courts should follow when granting bail and anticipatory bail?

Decision of the Court

In rape and sexual assault cases, the court clarified that no compromise can be made or even considered under any circumstances because it would be against her honour. Courts and other law enforcement authorities are intended to be neutral agencies and are tasked to guarantee the fair conduct of the trial by preserving impartiality and neutrality. And such techniques in rape and sexual assault trials would shatter rape survivors’ faith in the court’s impartiality. The court also noted that women’s status and society’s attitude toward them are both poor, and they suffer greatly. They are already experiencing numerous problems in their life for being a woman in our culture.

Judgements set precedents that the entire society adopts at different stages: By judicial decree, orders such as tying Rakhi on the accused’s wrist transform the molesters into brothers, reducing and degrading the charge of sexual harassment. Therefore, the use of reasoning/language which lessens the offence and seeks to belittle the victim is notably to be avoided under all circumstances. The law does not allow or condone such behaviour, in which the survivor may be traumatized several times or forced into some form of non-voluntary acceptance, or be pushed by circumstances to accept and condone behaviour that is a major violation.

The petitioners urged that the High Court’s decision should be overturned. The petitioners argued that Sections 437 (3)(c) and 438(2)(iv) of the CrPC permit courts to impose whatever condition they see proper in the public interest, but that the conditions must be consistent with the other provisions. When considering cases of rape and sexual assault, the court in Ramphal v. State of Haryana² concluded that compromise is irrelevant. The petitioner also requested that no judgement or order be passed by the court that could affect the dignity of women or the fair and unbiased conduct of trials, citing several cases where the apex court has rejected the idea of compromise on the grounds that it is antithetical to the woman’s honour and dignity and that it disparages and downgrades otherwise heinous crimes, implying that such offences are remediable by the judicial system.

The intervenors’ counsel argued that the court had the competence to impose sanctions under Sections 437(2) and 438. Requirements come in a broad variety of forms, and the court cited a number of cases in which judges imposed specific conditions for granting bail.

In its order, the Supreme Court framed various guidelines. These are as follows:

1. Contact between the accused and the complainant should never be allowed as a condition of bail, and if bail is granted, the complainant should be informed as soon as possible, along with a copy of the bail order being delivered to her within two days.
2. Bail conditions must precisely adhere to the stipulations of the Cr.P.C., and the order shall not represent patriarchal attitudes toward women.
3. Any offer to the accused and victim for a compromise, such as getting married or mandating mediation, should be ignored since it is outside the court’s authority.
4. The court has ordered a module as part of every judge’s basic training to ensure that judges are sensitive while considering cases involving sexual offenses and to minimize ingrained societal bias and sexism.
5. The National Judicial Academy has also been urged to integrate gender sanitization as soon as feasible in the training of young judges.
6. Similarly, the Bar Council of India has been mandated to incorporate gender sanitization in the LL.B. curriculum and as a mandatory topic in the All-India Bar Exam syllabus.

The Supreme Court commended the petitioner for his insightful ideas and overturned the Madhya Pradesh High Court’s bail terms. The court has established certain criteria in this regard. It also agreed to the recommendations for a gender sensitization curriculum in law schools, as well as for the bar exam and introduction training for newly appointed judges.

Conclusion

The victims of sexual abuse have always been blamed on Indian society. Women have been questioned repeatedly about their behavior, clothing choices, attitude, and when they plan to leave their homes. During trials, judges have frequently reinforced this practice by questioning the victim and making remarks that stereotype particular behaviors and threaten to disrupt the trial. With the Supreme Court openly criticizing such behavior on the part of the courts, hope for judicial reform has been reignited. Gender sensitization seminars will also aid in raising awareness of the issue among legal professionals.

By delivering this order, the Supreme Court has established a significant precedent for courts to follow in dealing with sexual assault victims in the future. Discussing the faults of a patriarchal culture has set an example for its enormous audience. This will go down in history as a significant step toward women’s independence. It is hoped that if the standards are followed, we will not see such arbitrary conditions in judicial orders in the future.

Almost certainly that judges assume the most essential part as the educator, as the defender, and as the watchman, and anything they say turns into the points of reference that is then trailed by lower courts in their decisions, and consequently it turns out to be vital for the judges to take the most extensive level of care while offering any expression which influences the actual premise of legal executive and confidence of individuals. In cases connected with the assemblage of ladies and particularly in sexual offenses cases, even little mistakes either as a judgment or any assertion made by courts might prompt genuine offense against the survivors. There have been different examples of orientation related cases as of late when courts have believed the victim to make split the difference by permitting the accused to marry her or as in the present case by requesting him to get Rakhi tied on his wrist by the victim or by making some other split the difference as the court might coordinate. Such translations are horrendous in nature and show the quality of judges towards the ladies yet as it is said Judiciary is a self-recuperating process, present judgment by Supreme Court validated the explanation. Outlining the guidelines for orientation sterilization and adding it to the curriculum of LLB will assist the legal advisors with instilling the impartial and nonpartisan quality towards the ladies which will most likely assist the victims in fair direct preliminary with practically no dread on their part.

Intentional or otherwise, such comments by trial courts and high courts should be avoided at all costs. Judicial stereotyping is another term for this. When judges attach specific attributes to someone based on their gender, religion, caste, or race, this is known as judicial stereotyping. Judges often reinforce hazardous prejudices as a result of this, rather than questioning them as they are intended to. Because of the vast audience that court declarations serve; such remarks can have a greater social impact. Stereotyping also has the potential to undermine the judge’s impartiality, obstructing a fair trial. Creating rape myths or an idealized picture of a sexual assault victim also undermines the incident’s credibility and the harm suffered by survivors of sexual assault who do not fit the public image of a chaste lady.

Women are underrepresented in the legal profession, and women lawyers frequently experience discrimination and discriminatory remarks. As a result, in order to assure gender-biased-free judgments, the first step should be to create an equal environment within the institution and raise awareness about the issue. The answer to these ills comes from public discourse and keeping organizations with the potential to make a difference responsible. Such sexist judgments should be condemned and held up as an example of what is not acceptable behavior.

Citations:

1. (2015) 7 SCC 681
2. 2019 SC 1716

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

A single-judge bench of Justice P Velmurugan of the Hon’ble Madras High Court while hearing a woman’s appeal against the acquittal of a man charged with sexually assaulting her two-year-old daughter said that the woman’s statement was recorded, and the English term “semen” was incorrectly spelled out as “semman” in Tamil which means red soil color. By taking advantage of that mistake, the accused was successful in securing acquittal in the Trial Court.

The case dates back to 2017 when the mother left her two-year-and-nine-month old daughter with a neighbor while she went grocery shopping. After shopping, when they got home, the child refused to eat and started crying, claiming she was having pain in her private parts. When the girl’s mother checked her clothes, she discovered white stains on her body and undergarments. She took her to the hospital, where it was determined that the child had been sexually assaulted.

The neighbor was charged under the Protection of Children from Sexual Offenses (POCSO) Act. Following the trial, a POCSO Court acquitted the accused citing the prosecution’s failure to prove the case beyond a reasonable doubt. However, The Police Report clearly stated that the woman said “semen” and spotted a “white color fluid” on the child’s private parts. The English word “semen” was misunderstood as “semman” in Tamil, according to the Court.

The Court observed that “The Trial Courts sometimes do not apply their minds; instead of exercising their discretionary power to order a re-investigation or to summon relevant records they only look for a proof beyond a reasonable doubt. With the exploitation of such procedural flaws, the accused gets the benefit of the doubt. In circumstances like these, a high value cannot be placed on the technical basis of proof.”

The Court, setting aside the decision of the Trial Court, held the accused guilty of section 9 of the POCSO act punishable under Section 10 of the Act. It further stated that in cases of child abuse, the onus of rebutting an accusation falls on the accused.

-Report by VANESSA RODRIGUES

The Jharkhand High Court, while hearing a bail application in a sexual assault of a minor case, gravely criticized the investigating authority and the officers of the case for defiance of judicial orders.

The victim, who shall remain nameless, was a 13-year-old minor girl who was sexually assaulted by the petitioner and the victim had neither been made a charge sheet witness nor was presented before the court, despite judicial orders which instructed them to do the same.

The learned counsel representing the petitioner submitted that the victim of the case was not a charge sheet witness and had not even been examined yet. He further stated that despite several letters written to the Superintendent of Police, Sahebganj, and the DIG, Dumka, the petitioner is rotting in custody for more than 3 years and the victim is not being examined.

The court stated that it is really surprising why the Investigating officer has not made the victim a charge sheet witness, despite the case being registered under POCSO Act and the victim is a 13-year-old minor girl. Further, the court found that the Trial Court has sent several letters to the Superintendent of Police and also to the Director-General of Police, Jharkhand asking to produce the victim in front of court but the said letters yielded no response and no actions were taken.

The court concluded that prima facie the acts of the Investigating officers and authorities cannot be said to be bonafide since leaving out the main person as a witness in the charge sheet and continuous defiance of court orders are bound to arise questions and suspicions. The court feels that the officers, by not responding to judicial orders, have committed contempt of Court.

The court ultimately stated that an affidavit should be filed by the Director-General of Police, Jharkhand personally within 3 weeks after making proper inquiry and verification.

-Report by Anuj Dhar