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Erroneous interpretation by court

Correctness of the Bombay High Court judgment ( Nagpur Bench) in Satheesh Vs State of Maharashtra in Criminal Appeal 161/ 2020 decided on 19.01.2021 is highly doubted.
The court held that touching a child over her clothes will not attract an offence under the POCSO Act. At the same time it held that it attracts an offence under 354 IPC and convicted the accused thereunder for a period of 1 year.

The judgement has been given in a lackadaisical manner. There are some loopholes in this judgment which need to be discuss- first of all, Section 7 of POSCO Act is gender neutral and applies on both male and female while Section 354 of IPC applies only to women. In other words, in Section 7 of POSCO ACT both girl and a boy can be a victim while in Section 354 only woman can be a victim.

The Bombay High court convicted an accused under section 354 and not under Section 7 of POSCO Act which is completely obnoxious and disgraceful. Suppose a hypothetical situation in which, male child has been harassed or molested physically but without skin to skin touch or rather by wearing gloves than under this precendent in no circumstances accused has been convicted under any of the sections mentioned above because section 354 is for woman's and effect of section 7 will be void because of erroneous interpretation of court that touch means skin to skin contact. This judgment will seed crappy roots for future judgments and it is an erroneous interpretation by Bombay High Court.
Section 7 of the POCSO Act reads as:
Whoever with sexual intent touches the vagina, PENIS, ANUS, or breast of the child…..or any other act with sexual intent which involves physical contact ……is said to commit sexual assault.

The word 'PENIS' denotes sexual organ of a male child and the word 'ANUS' includes an orifice of a male child. In the above case, a man has been found red handed by a mother of a 12 year girl. It is found that man was deliberately pressing the breasts of a girl child. Once the intention has been established it should be consider an act with sexual intent amounting to sexual assault and disrobbing clothes or an skin to skin touch must not be considered as an essential act for physical contact.

POSCO Act is victim oriented statue and the injury cause to victim assumes more importance, we should keep this in mind and not build an escaping way for criminals. Also there is an urgent need to define physical contact as we saw in this case mere presence of a layer of cloth may act as an loophole for an accused. This is just an trending example, we have plethora of noticed and unnoticed cases lying in our society. Filling this loopholes will lead our justice delivery system in a more reliable direction, build trust and faith of peoples, and won't be affected by an individual interpretation.

Opinions are personal.

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