Recently, In a Judgment passed by Justice Pushpa Ganediwala of the Nagpur
bench of the Bombay HC, modifying the order of a sessions court, on 19th January
2021, observed that groping a child's breasts without 'skin-to-skin contact with
sexual intent would amount to molestation under the under the Indian Penal Code
but not the graver offense of 'sexual assault' under the Protection of Children
from Sexual Offenses (POCSO) Act. Further added that Mere groping will not
fall under the definition of sexual assault.
This led to lessening the sentence awarded to, one Satish (a 39-year-old), from
3 years to 1 year of imprisonment for the offense of sexual assault of a 12
year-old-girl. The HC while quashing the Judgment passed by the Trial Court,
acquitted Satish from the stricter POCSO provisions and found him guilty under
Section 354 IPC, instead.
Why IPC and not POCSO
Section 7 of the POCSO Act is Gender-neutral and a person is found guilty for
the offense of sexual assault if he or she, 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.
Section 354 of the IPC specifically talks about a woman and a person is found
guilty if he or she assaults or uses criminal force to any woman, with the
intention to outrage her modesty.
The burden of proof shifts on the accused and he has to, beyond all the
reasonable doubt prove that he is innocent. This makes the POCSO Act more severe
than general IPC provisions.
The punishment under Section 8 of the POCSO Act (three to five years
imprisonment with fine) is graver as compared to the one provided under Section
354 of the IPC (imprisonment time ranges from one to five years with fine) in
the case of sexual assault.
The need for the enactment of the POCSO Act was to protect children from such
offenses of sexual assault, and other related offenses as well as to provide a
child-friendly system for the trial of these offenses.
The judge was of the view that the sentence was too high, so the accused was
convicted under IPC and not POCSO to grant a lower sentence.
You can't unscramble a scrambled egg
The act of pressing the breast of a 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 HC considered, whether the ‘pressing of the breast' and
‘attempt to remove salwar' would fall within the definition of ‘sexual assault'
as defined under Section 7 and punishable under Section 8 of the POCSO Act.
The court interpreted the words "physical contact" while defining sexual assault
as "direct physical contact means skin -to- skin contact with sexual intent
The court held that by touching a child with her clothes, the accused would not
commit an offense under the POCSO Act. Whereas, attracts an offense under
Section 354 IPC. The court clearly disregarded the rudiments of the statutes and
the jurisprudential side of a criminal act.
A simple plain reading of Section 7 of the POCSO Act elucidates that the offense
of groping is covered under the Act devoid of disrobing the victim. The HC
overruled the prosecution's contention that pressing the breast is covered under
Section 7 of the POCSO Act.
A bad Precedent about to set?
In my opinion, the above Judgment is an abominable one that is against the
established practice of law. As stated above a clear reading of Section 7 of the
POCSO defines sexual assault. A touch with a sexual intent does not leave space
in the room for the fact whether it was with or without clothes. A judgment as
to such is inexplicable.
Give them an inch and they'll take a mile: For instance, hypothetically
speaking, if the offender touches the naked body of a child in his/her
undergarments (which is just a thin layer), It is easy to say that the offense
is not punishable under the POCSO Act as there is no skin to skin contact. What
should be taken into consideration is that the touch should be with sexual
intent in order to satisfy his/her sexual desire.
Neither the POCSO Act nor any other laws in India define what touching ‘or'
physical contact is and this ambiguity has facilitated the absurd interpretation
that touching breasts through the clothes worn by the child is not a sexual
Advocate Karuna Nundy finds the verdict deeply troubling
, because we are
saying that if adults come and grope children's genitals and breasts through
clothes, it's not going to be sexual assault.
The interpretation of Section 7 POCSO Act is unsuited as the Act specifies
physical abuse (use of force to sexually assault) and does not mention anything
like skin-to-skin contact.
If this verdict is not overruled, it would lure the criminals in finding
loopholes and getting away with such serious/heinous offenses.
It's not over till it's over
- The National Commission for Protection of Child Rights (NCPCR)
The Chairperson Priyank Kanoongo, asked the Govt. of Maharashtra, to file an
‘urgent appeal' against the Judgment which held that groping a child's
breasts without 'skin-to-skin contact' would not amount to 'sexual assault '
under the Protection of Children from Sexual Offenses (POCSO) Act. In
addition to that, The remark 'skin to skin' with sexual intention without
penetration' also needs to be reviewed and the State should take note of
this as it seems to be derogatory to the Minor Victim".
- The National Commission for Women (NCW)
The Chairperson Rekha Sharma said that The (NCW) will challenge the Bombay
HC Nagpur Bench judgment Satish Ragde v.State of Maharashtra dated
19.01.2021, in the SC. This judgment will not only have a cascading effect
on various provisions involving the safety and security of women in general
but also subject all women to ridicule. It has trivialized the legal
provisions provided by the legislature for the safety and security of women.
Protection of Children from Sexual Offenses Act, 2012 with the sole purpose to
give an address on sexual abuse cases against children, at the same time
safeguarding and protecting the child's interest throughout all stages of the
judicial process. Given light to the current case where the Nagpur bench instead
of convicting the accused under section 7 of the POCSO Act, convicts him under
section 354 IPC.
An erroneous interpretation of Section 7 of the POCSO Act was laid down which
led to the set free the accused of such an offense which should have been dealt
with under the POCSO Act and has now raised some serious controversy. It's a
fact that whenever a suit is instituted under POCSO Act, special legislation,
the same must be dealt with under such special legislation only and not under
IPC as happened here.
The Supreme Court has already stayed the verdict, stating that the HC's decision
would batten down the hatches and put the kibosh on the purpose of the POCSO Act
to penalize sexual delinquents.
As stated in the title itself, a wider scope has been adopted by the Nagpur
bench on January 19, 2021, which has badly traumatized the petitioner's
credence. A more comprehensive approach has been given to section 7 of the POCSO
Act. Henceforth, an accused could take the same ground that there was no direct
physical skin-to-skin contact between them and can claim his innocence under
Molesting and outraging the minor's modesty is a worrying concern. It is beyond
the shadow of a doubt that the child's modesty in the above case has been
outraged which will leave an imprint on the victim's mind and it should be noted
that the judgment passed is both pejorative and derogatory.