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SC quashes Bombay HC ruling that held ‘skin-to-skin contact’ key for sexual harassment

By Ruchi Upadhyay 
Updated Date

New Delhi: The Supreme Court Thursday set aside the Bombay High Court order that held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

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A bench headed by Justice U U Lalit observed that sexual intent is important in such cases and that it can’t be taken away from the purview of the Act. The purpose of the law cannot be to allow the offender to escape the meshes of the law, the apex court said.

The bench also comprising Justices Ravindra Bhat and Bela M Trivedi said that restricting ‘touch’ or ‘physical contact’ under Section 7 of POCSO to “skin to skin contact” will lead to absurd interpretations, and will destroy the intent of the Act that was brought to protect children. For instance, it pointed out that going by the HC interpretation, a person who uses gloves etc while groping a child cannot be held liable under the Act.

“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench said. It was hearing the appeals filed by the Attorney General of India, National Commission for Women, and the State of Maharashtra against the judgment of the High Court.

In a separate concurring judgment, Justice Bhat said the HC’s erred in coming to such a conclusion as its reasoning “insensitively trivialized, legitimized and normalized behavior which undermines dignity of children”.

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In January this year, the Nagpur bench of Bombay High Court had acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact does not constitute “sexual assault” under the POCSO Act.

However, the High Court order was later set aside by the Supreme Court after Attorney General K K Venugopal brought the matter to the court’s notice and said it is “unprecedented” and is likely to “set a dangerous precedent”. “It is a very disturbing conclusion,” the A-G told the bench led by the then Chief Justice of India S A Bobde. The AG and NCW had filed separate appeals.

“If tomorrow, a person wears a pair of surgical gloves and feels the entire body of a woman, he won’t be punished for sexual assault as per this judgment. This is an outrageous order. The accused tried to bring down the salwar and even then bail was granted… The Judge clearly didn’t see the far-reaching consequences,” the AG had said. He said that “touching of the breast of a minor even without removing the top amounted to commission of offence of sexual assault under the Act”.

The case dates back to December 2016, when the 39-year-old accused had lured the 12-year-old girl to his house on the pretext of giving her something to eat. According to the complaint lodged by the girl’s mother, the man pressed the girl’s breast and attempted to remove her salwar. The mother found the girl in the man’s house.

The HC said that groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault, as defined under the POCSO Act. It said that since the man groped the child without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC Section 354.

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The High Court verdict, delivered by Justice Pushpa V Ganediwala, set aside the ruling of a lower court under Section 8 of POCSO applicable to “sexual assault” on children, against convict Satish Bandu Ragde.

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