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A perusal of the recent judgement of Bombay HC on POCSO Act
Section 7 of POCSO Act defines Sexual Assault. It states that “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.”
Now consider this example ; A takes B ( who is a 12 year old girl ) to his house and presses her breasts from above the clothes and tries to open her pants. Going by Section 7, is this Act (of A) a sexual assault on B ? Keep your answer in your mind and read the judgement of the Hon’ble High Court of Bombay. The Court in Satish v. State of Maharashtra , where the facts were similar to the above example held that it was not Sexual Assault. It was stated that “pressing of breasts” from above the clothes does not come within the definition of sexual assault under Section 7 of POCSO Act as there was no skin to skin contact. However the accused was convicted under Section 354 of IPC.
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There are a few problems with this judgement
- While POCSO Act is gender neutral, section 354 is not, which means under POCSO Act both girl and a boy can be victims but under Section 354 of IPC only a female can be a victim. Considering this in mind let us assume that the incident in the present case happened with a boy , there would have been no conviction either under POCSO Act or under 354 IPC.
- Going by the logic of the judgement if someone inserts the vagina or anus of a female child when she is wearing a dress, it would also not amount to sexual assault.
The intention of the legislature behind this act was to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for matters connected therewith or incidental thereto. The judgement of the Hon’ble High court overlooked this crucial intention behind the Act.
The model guidelines issued under Section 39 of the POCSO Act, 2012 by the Ministry of Women And Child Development states that “the Act recognises almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child.” To give such an interpretation to the law by the courts would be contrary to securing justice for sexually abused children.
The necessary ingredients that constitute the offence are as follows. Firstly, there must be a sexual intent. Secondly, the vagina, penis, anus or breast of the child should be touched. Thirdly, the child should be made to touch the vagina, penis, anus or breast of the alleged person. Fourthly, any other act which involves physical contact without penetration but with sexual intent.
The main ingredient which needs to be seen here is ‘sexual intent’. In the present case, the accused on the pretext of giving the victim a guava took her to his house where he pressed her breast and attempted to disrobe her. These are proven facts. It can be clearly concluded from the facts and circumstances that there was sexual intent on part of the accused. The second ingredient is also getting fulfilled. As the word ‘or’ is used in the section, so mere fulfillment of second ingredient would suffice the cause of Sexual Assault and hence would attract Section 7.
This judgement received a lot of criticism from retired judges, academics, lawyers, etc. Justice Lokur, former Supreme Court Judge noted; “the judge who delivered the two POCSO Act judgements was a deputy director in the judicial academy. Now I wonder what kind of judicial education she imparted”
A certain section of people are praising the judgement stating examples such as; “What if someone touches the breasts of a minor girl from above the clothes by mistake”. The answer to this is clear and simple. If there is no sexual intent there is no sexual assault. The Delhi High Court in Ravi v. State of Delhi held that holding the hand of the victim with sexual intent amounted to sexual assault. In Ismail M. v. State of Kerala, where the accused used to hug and kiss the minor child after having sexual intercourse with the child’s mother in front of her , the court held that this would come under the definition of sexual assault under Section 7.
Before this, no court has delved into the territory of knowing whether the alleged touch was made from above the clothes or below them. This court by unnecessarily going into the textual interpretation of Section 7 opened a ready made defense for child abusers.
Fortunately, the Supreme Court stayed the acquittal of the accused in respect of offence under Section 8 of POCSO Act, after an SLP was filed and it was argued by the Attorney General that the impugned judgement is likely to set a dangerous precedent.
 Cr Appeal no 161 of 2020, Bombay HC.
 2018 SCC ONLINE DEL 11183.
 2019 SCC ONLINE KER 2787.
Editor: Kanishka Vaish, Senior Editor, LexLife India.