A controversial order from the Bombay High Court in a case involving alleged sexual assault on a minor would mean that "someone can wear a surgical glove and exploit a child and get away scot-free," Attorney General KK Venugopal told the Supreme Court today. Multiple organisations, including the State of Maharashtra and the National Commission of Women, as well as the Attorney General, have challenged the order, contending that it would "set a dangerous precedent for society".
In its judgment of January 19, the Nagpur Bench of the Bombay High Court said groping a minor without "skin to skin contact" cannot be termed as sexual assault under POCSO (Protection of Children from Sexual Offences)".
"Since the man groped the child without removing her clothes, the offence cannot be termed as sexual assault," a single judge bench of Justice Pushpa Ganediwala said while acquitting a-39-year-old man in a case involving alleged sexual assault on a 12-year-old girl.
Sexual assault carries a minimum jail term of three years under POCSO. But the court convicted him on charge of outraging a woman's modesty under the Section 354 of the Indian Penal Code, which carries a minimum jail term of one year.
"The Bombay High Court order will set a precedent. This will have far-reaching ramifications," said Mr Venugopal, adding, "This would mean someone can wear a surgical glove and exploit a child and get away scot-free".
The accused, he said, had tried to strip the child and even then bail was granted.
"This would be a precedent on the magistrates in Maharashtra," he added, pointing out that 43,000 offences were registered under POCSO over the last one year.
On January 27, the Supreme Court had put a freeze on the Bombay High Court order, after the Attorney General mentioned it before the court and was allowed to file an appeal against it.
In the last hearing, the top court had said "looking at the gravity of the controversy, this is a case where accused cannot go unrepresented".
"Nobody appeared in today's hearing to represent the accused. The accused need to be represented in the case," the court said today, directing the Supreme Court Legal Services Committee to provide an advocate.
The next hearing will take place on September 14.
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