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
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.