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Two Judgements Disrobing POCSO Act

Children are one of the most important marginalized group of the society because of their inability to freely express their views and sufferings. Sexual offenses against children are extremely difficult because of the victim's natural weakness and the abuser's ability to overcome them. The need to protect and secure these vulnerable victims led the legislature to introduce the protection of children from sexual offences (hereinafter referred to as POCSO) act, 2012.

The POCSO Act was especially enacted to protect minors and young children. It is meant to serve as their guardian. Consequently, the act provides higher degrees of punishments and other safeguards. As observed in Jagar Singh v State of Himachal Pradesh, it was well-settled that when two interpretations are possible, then the interpretation in favour of the minors should be adopted by the court to meet the ends of justice.1 The act took into consideration the paradigm directed by the Convention on the Rights of the Child which was adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992.2

Last month, Justice Pushpa Ganediwala, sitting additional judge of the Bombay High Court in Maharashtra, had handed down 3 acquittals under the POCSO Act in three separate cases, all within a week which has created a furor on social media. On January 14, In Jageshwar Wasudeo Kawle v. State of Maharashtra, she reversed a conviction order after noting that there was nothing supporting the prosecution's case for rape and the accused was acquitted of the offence punishable under sections 376(2) of Indian Penal Code (IPC), 1860 and Section 5 punishable under Section 6 of POCSO Act, 2012.

On January 15, in the case of Libnus v. State of Maharashtra , the bench held that the act of holding hands of a minor or the zip of the pants of the accused being open at the same time, does not amount to sexual assault as defined under Section 7 of the POCSO Act. On January 19, in Satish Ragde v. State of Maharashtra, the bench ruled that the act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of 'sexual assault' under Section 7 of POCSO. 3
This article will mainly focus on Libnus v. State of Maharashtra and Satish Ragde v. State of Maharashtra.

Libnus v. state of Maharashtra
The Nagpur bench held that holding minor's hands and opening the zip of pants will not come under the definition of sexual assault under POCSO , 2012 and would rather comer under sexual harassment  under Section 534A (i) of the Indian penal code.4

The Court observed that according to the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is essential ingredient. As no actual touching of the private parts of the body happened in the case, the Bombay High Court considered if the act will come under the ambit of the third path of the definition any other act with the sexual intent which involves physical contact without penetration'.

The appellant was not convicted for the aggravated sexual assault under Section 10 of POCSO as well as Section 12 of POCSO in addition to Sections 354A and 448 (House Trespass) of Indian Penal Code but was rather convicted under section 354A of IPC. Section 11 of POCSO defines and Section 12 punishes the offence of sexual harassment . The ingredients of section 354A, IPC does not overlap with section 11 of POCSO, but both the offences shares same name. The judge chose to convict him under 354A (3) which carries maximum prison term of three years with no statutory minimum sentence stipulated thereof . While disposing of the appeal, the Court also noted that the appellant had already served five months imprisonment which was "sufficient" in view of the nature of his act and ordered his release.5

Satish ragde v. state of Maharashtra
The Bombay high court acquitted the accused from the offence of sexual assault under sections 7 and 8 of POCSO Act , 2012. The accused had groped a minor yet the court acquitted him saying that there is unavailability of the specific evidence that could provide whether the top was removed or whether the hand was inserted inside the top. The court held that the mentioned act of the accused does not come under the definition of sexual assault as there was no evidence of physical contact by the accused.

Therefore, the court convicted the accused under sections 342 and 354 (outraging a woman's modesty) of IPC,1860. Indian penal code, 1860 and prescribed the minimum punishment of one year when it could have been stretched to five years rigorous punishment. This ruling had caused an uproar and the Supreme Court stayed the judgment.

Section 7 of POCSO act 2012, provides 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 i.e. skin-to-skin without penetration, is said to commit sexual contact'.

The bench misconceived the interpretation of section 7 of POCSO act 2012. Here 'Physical contact without penetration' is a required element for 'any other act' with sexual intent, Thus making physical contact not a necessary element where an accused has touched the vagina, penis, anus or breast of the child with sexual intent.

This interpretation is supported by the high court of Andhra Pradesh which held that the word or divides section 7 of the POCSO Act, 2012 into two parts, the first deals with touching private parts of a child with sexual intent and the second deals with any other act with sexual intent which involves physical contact without penetration and which also constitutes an offence of sexual assault. In other words, the touching of minor's private part with sexual intent is itself an offence, thus making lack of skin-to-skin contact not an appropriate indicator in deciding the severity of crime. The Karnataka High Court and Delhi High Court held that touching or pressing the breast of a child with sexual intent will complete an offence under section 7 of the POCSO Act.

Accordingly, it was improper on the part of the Bombay High Court to read physical contact as an essential requirement for establishing an offence under section 7.6 The Indian criminal laws failed to explicitly define touching, thus leaving the scope for indefinite interpretations, happened in Satish v Maharashtra. A clear stipulation by supreme court can prevent these kind of misinterpretations in future. . The main concern is that the interpretation of Bombay high court seems to defeat the existence of the POCSO Act.

Reducing physical independence and integrity by making it dependent on the part of the fabric between the attacker and the victim is revolting and also has significant social and legal implications.

Satish v Maharashtra invalidates the sexual abuse of women and children and the interpretation laid down sets a dangerous precedent. if such an interpretation is followed, it is threatening to POCSO Act and it might become redundant as a wide range of sexual criminal activities would be excluded from its ambit due to lack of skin-to-skin contact. The chairperson of National Commission for Protection of Child Rights had asked the Maharashtra government to appeal this decision in the Supreme Court and The Supreme Court has currently stayed the acquittal of the accused under this judgment7. How the Supreme Court accepts the interpretation given by the high court is to be seen.

Conclusion
These judgments of Bombay high court concerning POCSO act, 2012 risks making the law redundant. The premier objective of POCSO act is protection of children from sexual assault and harassment. The principle of proportionality is a major principle in criminal jurisprudence. while judging the seriousness of the offence, the Bombay court has not given much consideration to the fact that the victim, a minor, is entitled to greater protection.

The severe punishment directed under the Act is not because of the severity of the illegal sexual act but because the act is committed in relation to a minor who is more vulnerable. The Act acknowledges the vulnerability of minor victims and provides special protection beyond ipc. One particular concern is that the interpretation of the court appears to defeat the purpose of the POCSO Act.

In making the Act invalid to cases of sexual harassment of a minor and applying the IPC instead, the honorable court appears to have disregarded the legislative history and objectives of POCSO. The interpretation set down by the Bombay High Court, based on an invalid technicality, would reduce the punishment of the crime for perpetrators. Therefore, the given interpretation by the court also goes against the idea of the statute.

References
  1. https://www.legitquest.com/case/jagar-singh-v-state-of-hp/1B467B
  2. https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf
  3. https://www.barandbench.com/news/litigation/POCSO-judgments-supreme-court-collegium-withdraws-recommendation-make-bombay-high-court-judge-pushpa-ganediwala-permanent
  4. https://www.livelaw.in/top-stories/holding-hands-minor-girl-opening-pants-zip-sexual-assault-POCSO-act-sexual-harassment-354a-ipc-bombay-high-court-169006
  5. https://www.livelaw.in/columns/two-tales-of-judicial-indiscretion-recent-controversial-POCSO-decisions-of-bombay-high-court-169135
  6. https://www.theleaflet.in/disrobing-POCSO-act-satish-versus-state-of-maharashtra/#
  7. https://indianexpress.com/article/opinion/columns/bombay-hcs-interpretation-of-POCSO-risks-making-the-law-redundant-7165780/
  8. https://www.barandbench.com/news/litigation/ncw-moves-supreme-court-against-bombay-high-court-judgment-which-ruled-skin-to-skin-contact-necessary-sexual-assault-POCSO

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