The groping of a minor cannot be considered sexual assault without "skin-to-skin contact" or if clothes were not removed, a Bombay High Court order said last week, provoking shock and a raging debate. The Supreme Court today put the order on hold, allowing Attorney General KK Venugopal to file a petition against it.
The order was "disturbing" and would create a dangerous precedent, the Attorney General had said.
"Attorney General has brought to our notice the judgement... in which the High Court has apparently acquitted the accused under Section 8 of POCSO on the ground that the accused had no sexual intent in committing the offence because there was no direct physical contact- skin to skin. The Attorney General submitted that the order is unprecedented and likely to set a dangerous precedent," the Supreme Court said.
The top court also put on hold the acquittal under toucher charges of a 39-year-old man whose jail sentence for groping a 12-year-old in 2016 was reduced by the High Court.
The Bombay High Court had passed the controversial order on January 19.
It said groping a minor's breast without "skin-to-skin contact" cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Pushpa Ganediwala said there must be "skin-to-skin contact with sexual intent" for an act to be considered sexual assault, not just groping.
A lower court had sentenced the accused man to three years in jail under POCSO.
According to the girl's testimony in court, the man had taken the girl to his house in Nagpur on the pretext of giving her something to eat. He gripped her breast and attempted to remove her clothes, Justice Ganediwala recorded in her verdict.
But he "groped her without removing her clothes," so the offence could not be termed sexual assault but "outraging a woman's modesty" under Section 354 of the Indian Penal Code, the judge said.
While Section 354 carries a minimum sentence of one year jail, sexual assault under the stringent POCSO Act means at least three years in prison.
The accused man was sentenced under both laws, but the High Court freed him of the more severe charge.
"Considering the stringent nature of the punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required," High Court said.
"The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault," the judge said.
The POCSO Act defines sexual assault as when someone "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". The judge interpreted "physical contact" as "skin-to-skin" or direct physical contact.
"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration," the High Court said in the order that is now under scrutiny.
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