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The Supreme Court set aside the Bombay High Court’s decision which held that skin-to-skin touch was necessary for offenses under POCSO. After this decision of the High Court, there was a lot of controversy and three applications were filed against it in the Supreme Court. The Supreme Court, while quashing the High Court’s decision, said that if someone has to touch a child (victim) with sexual intent, then it will be an offense of sexual assault under POCSO, for this it is not mandatory to have skin to skin touch. The Nagpur Bench of the Bombay High Court had held that the offense under POCSO would not be committed unless there was skin-to-skin touch with the child.
Maharashtra Government and Women’s Commission had challenged the High Court’s decision
The Attorney General appealed to the Supreme Court to set aside the Bombay High Court’s decision. Along with this, the National Commission for Women and the Government of Maharashtra had challenged the decision of the Bombay High Court by filing separate applications. The Bombay High Court had held that touching the internal organs of a minor without removing his clothes is not a sexual assault unless there is skin-to-skin touch. During the hearing of the appeal filed against this decision, the Supreme Court had stayed the High Court’s order on January 27 and heard in detail.
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A bench headed by Justice UU Lalit of the Supreme Court, in its important decision, said that if skin-to-skin touch is made mandatory under the POCSO Act, then the very purpose of this law will be lost. This POCSO Act has been enacted to protect children from sexual offenses. It would be a misinterpretation to define skin to skit touch under section 7 of touch or physical touch.
The Supreme Court said that if physical touch is interpreted as skin to skin touch under Section 7 of the POCSO Act, then it will be a narrow interpretation. Such an interpretation would be unreasonable and contrary to justice. The Supreme Court said that if such an interpretation is accepted, then in such a situation, if a person wears gloves or touches children with a wrong intention, then there will be no punishment and it becomes an unjust situation. Will go
Touching with sexual intent is a crime..Skin to skin touch is not mandatory
A bench headed by Justice UU Lalit of the Supreme Court said that if an accused touches the sexual part of a child with sexual intent or does physical touch with sexual intention, then it will be an offense under section 7 of POCSO. The Supreme Court said that it cannot be the object of law to give an opportunity to an offender to escape from the noose of law.
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The Supreme Court said that the purpose for which the law makers have interpreted it is clear but the court cannot make that provision suspicious. The Supreme Court said that it is clear from the interpretation of this POCSO law that if the offender has sexual intention in it, then it is an offense for this it is not mandatory for the child to have skin-to-skin touch. The narrow interpretation of this law would defeat the very purpose of this law which cannot be accepted.
If there is sexual intention in physical touch then it is an offense under POCSO
The Supreme Court said that when any law is made, the use of the law is for the effect, not all this is done to reduce its effect. The top court said that the POCSO Act states that any physical touch with sexual intent is an offence. It is important here that it is a matter of touch or physical touch with sexual intent and not skin-to-skin touch. In this case, the sexual intention is determined by the circumstance. The Supreme Court said that we refer to Section 7 of the POCSO Act and in this way, if the physical contact is with sexual intention, then it will be an offense and it will be an offense under Section 7 of the POCSO Act. If the purpose of the law is being defined and it speaks of sexual intent, then the court cannot generate a message on that provision.
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The Supreme Court set aside the Bombay High Court’s decision with the said remarks. The Supreme Court said that the Bombay High Court judgment was litigating unpleasant and unacceptable behavior towards children. The Supreme Court said that this will be the first time that the Attorney General has appealed on the criminal side. Then Justice S Ravindra Bhatt made it clear that once before the then Attorney General K. Parasaran challenged the Rajasthan High Court’s decision in the Supreme Court in 1985, in which the High Court, while awarding the death sentence, ordered the accused to be hanged in public. On appeal against this decision, the Supreme Court had said that it would be barbaric and it would be a violation of the right to life.
Bombay High Court had given two decisions in this case, both rejected
The Supreme Court said that in one case the accused had told the mother of the victim girl that the victim was not in her house. Then it is alleged that he pressed the internal part of the victim and tried to open her clothes. All this is sexual assault under POCSO. In the second case, the accused caught the girl with sexual intent and tried to open the zip of her pants. Both the cases were declared as offenses under POCSO by the Supreme Court.
The Supreme Court set aside the judgments of the Nagpur Bench of the Bombay High Court in two separate cases. Both the judgments came in January. And in both the cases the accused was acquitted under POCSO. The Supreme Court set aside the High Court’s decision in both the cases and sentenced the accused to three years imprisonment under POCSO in one case and five years to the accused in the other case.
High Court misinterpreted POCSO Act
The Supreme Court said that the High Court had erred in its judgment by saying that the case under POCSO would not be made out as the accused had not done skin to skin touch with the victim. The Supreme Court said that the High Court has misinterpreted Section 7 of the POCSO Act. Such a legal interpretation would defeat the purpose of the law maker and the purpose of the legislation itself. The principle is that if a word is used in law, it is necessary to see its purpose. Section 7 of POCSO states that touching a private part with sexual intent or touching your private part with a child with a sexual intention is a sexual assault and it is an offence. If anyone does physical touch with sexual intention, then it is sexual offense and it is an offense under section 7 of POCSO. In such a situation, the prosecution is not required to prove under the law whether there was skin to skin touch or not. Rather, touch with sexual intent is considered as sexual assault.
POCSO Act designed to protect children from sexual offenses
The Supreme Court said that the main issue of debate was the interpretation of Section 7 of the POCSO Act. The court should look at the purpose of the law. It is the duty of the court to recognize the cause and prevent the misuse of the law to evade it. The POCSO Act was enacted because the existing laws were insufficient to prevent sexual offenses against children. POCSO was created to protect against sexual offenses.
Sexual assault is a matter of offense under section 7 of POCSO. It has two parts. In the first part, it says that if someone touches a sexual part with a sexual intention or does physical touch with a sexual intention, then he will come under the purview of sexual assault and that will be an offense. There is no skin to skin explanation anywhere in this. If the skin-to-skin interpretation is accepted, the purpose of the law will be lost. If physical touch is treated as skin to skin, then it will be a narrow interpretation and the provision made under the POCSO Act will become meaningless.
In this case, Justice UU Lalit and Justice Bela M Trivedi wrote the judgment together while Justice S. Ravindra Bhatt wrote a separate judgment. However, both the judgments were given by one vote. Justice S Ravindra Bhatt, concurring with the decision of his fellow judge, said that the POCSO Act was enacted to protect children from sexual offenses.
What was the argument of the Attorney General
The Attorney General had approached the Supreme Court to set aside the Bombay High Court’s decision in the Skin to Skin Touch case. Along with this, the National Commission for Women has challenged the decision of the Bombay High Court by filing a separate application. At the same time, the Maharashtra government has also supported the stand of the Attorney General. The Attorney General had said that the High Court’s decision would set a dangerous precedent. Does the Judgment mean that if a man sexually abuses a child by wearing surgical gloves, then he should be released? The High Court in its judgment did not see its far-reaching consequences. If a person wears gloves and touches the body of a woman tomorrow, then such a person cannot be punished under the High Court’s decision.
What is this whole matter………
According to the prosecution, the girl’s mother had given a statement before the police that on December 14, 2016, the accused took their 12-year-old girl on the pretext of feeding her something and misbehaved with her. Tried to open her clothes and pressed her inner part on top of the clothes. The trial court convicted the accused under POCSO in the case and sentenced him to three years’ imprisonment. But the High Court modified the order and did not consider the case as sexual assault under POCSO but tampering under Section 354 of the IPC. This incident happened with a 12 year old girl. The High Court had said that without removing the clothes, this case does not constitute sexual assault under POCSO. The Nagpur Bench of the Bombay High Court gave another verdict. In this, the High Court has said that holding the hand of a minor and opening the zip of the pants is not a sexual offense under POCSO.
A lot of discussion after the High Court’s decision
Several organizations had called the Bombay High Court’s decision unexpected and demanded from the Maharashtra government to challenge the decision in the Supreme Court. The National Commission for Protection of Child and the Commission for Women also spoke of appealing. After this the Attorney General raised the matter before the Supreme Court.
Supreme Court stayed the decision of the High Court
A bench headed by the then Chief Justice of the Supreme Court SA Bobde had stayed the order of the High Court. Earlier, Attorney General KK Venugopal raised the matter before the Supreme Court and referred to the order of the High Court court and said that a wrong precedent would be set in the case and in such a situation, the High Court order should be stayed. Venugopal said that the Bombay High Court judgment that says that skin-to-skin touch is necessary for sexual assault, and this decision is surprising and unexpected and will set a wrong and dangerous precedent.
What does POCSO law say
Ajay Digpal, a legal expert and public prosecutor of the High Court, says that any kind of sexual offense committed by children below the age of 18 years comes under the purview of this law. Under this law, both boys and girls below the age of 18 years are protected. Such cases are heard in special courts and a provision of imprisonment up to life has been made for offenses against children. Under this act, children are protected from offenses like sexual assault, sexual harassment and pornography. Under this law made in 2012, a provision has been made for different punishment for different offences.
Section-3 of POCSO Act Penetrative sexual assault is defined under Under this, the law says that if any person inserts a private part in any part of the body of a child or puts any object or private part in the private part of the child or else causes the child to do so to someone else. If it is said or the child is asked to do so with him (the accused), then it will be an offense under section-3 and for this a provision of punishment has been made in section-4. Under this, a provision has been made for the punishment of not less than 7 years and not more than life imprisonment if found guilty.
Wherein Section-7 Sexual assault is defined under According to Advocate Rekha Aggarwal, if a person touches the private part of a child with sexual intent or touches the child for sexual purpose or touches his private part with children, then in such a case, if found guilty, the section- Under 8, a sentence of imprisonment from 3 years to 5 years has been made.
Section-11 In the same way, sexual harassment with children has been defined. Under this, the law says that if a person with a wrong intention shows a gesture of sexual nature in front of children or shows him any private part or is asked to do so or is shown pornography, then in such case If found guilty, there is a provision for imprisonment of up to 3 years.
Provisions Against Pornography In this case, if a person asks children to use pornography, then that is also a serious offense and in such a case there is a provision of punishment up to life imprisonment. If pornography is done while doing a sexual act with children, then in such a case, there can be a minimum of 10 years and a maximum of life imprisonment. On the other hand, in the case of showing the sexual organs of children, for the first time 5 years and for the second time doing so can be punished with imprisonment of up to 7 years.
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