Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act

Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act

The Supreme Court has stayed a controversial Bombay High Court verdict, which acquitted a man found guilty of assault under Protection of Children from Sexual Offences Act (POCSO) on the grounds that he groped his victim over her clothes and there was no ‘skin-to-skin’ contact between them.

A Bench led by Chief Justice of India Sharad A. Bobde on Wednesday took cognisance instantaneously after Attorney General K.K. Venugopal made a special mention in court, saying the High Court decision would set a “very dangerous precedent” and cripple the intention of POCSO to punish sexual offenders.

On January 19, a Single Judge of the Bombay High Court’s Nagpur Bench created a furore after it acquitted a man under POCSO Act and held that an act against a minor would amount to groping or sexual assault only if there was “skin-to-skin” contact.

The High Court had concluded that mere touching or pressing of a clothed body of a child did not amount to sexual assault.

Mr. Venugopal said that in future, because of the order, an accused could claim innocence under POCSO by arguing that the child he assaulted was clothed and there was no “direct physical skin-to-skin contact” between them.

“The accused was sentenced to the minimum three years’ imprisonment under Section 8 of the POCSO Act. That was set aside by the HC and his sentence was reduced to one year under Section 354 (assault of a women to outrage her modesty) of the Indian Penal Code… This is very disturbing,” Mr. Venugopal submitted

“Mr. Venugopal, do you remember how we took cognisance when the Attorney General mentioned about a judge ordering a public hanging?” Chief Justice asked Mr. Venugopal, who said he did.

The Bench issued notice to the accused and to the State of Maharashtra after registering a case on the basis of Mr. Venugopal’s mentioning.

The National Commission for Protection of Child Rights (NCPCR) had earlier asked the Maharashtra government to urgently appeal the High Court judgment.

Meanwhile, several organisations, including the Youth Bar Association of India, represented by advocate Manju Jetley, also moved the top court against the HC judgment.

The petitioners said they were “badly perturbed” to note that the January 19 verdict contained several observations about the victim child’s modesty, which were both “derogatory and defamatory”. The child was even named in the judgment, the petition said.

“Abuse and outraging the modesty of a child has been a matter of great concern. POCSO Act was enacted to deal with evil and to impart speedy justice. Special courts were formed. The observations [in the January 19 judgment of the HC] have badly shaken the belief of the petitioners and like-minded people,” the petition said.

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