CASE ANALYSIS OF BOMBAY HIGH COURTS; SKIN TO SKIN JUDGEMENT

Author-Manorma Singh*

Editor- Tanu Kapoor


INTRODUCTION

In a country like India where cases of sexual assault, sexual harassment, rape and similar type of incidents are increasing day by day, it becomes very important for the judiciary to preserve human rights of the individuals by setting good examples through its pronouncements. This case since the day the judgement has been delivered is in news for all the wrong reasons. According to attorney general K.K. Venugopal if this judgement is not overturned and set out to be a precedent then in future the accused can claim his innocence under section 7 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter alluded to as the “POCSO Act”) by arguing that it is not a sexual assault because there was no direct skin to skin contact 1 . Therefore, stay of the judgement by the apex court was very important as it would have led to a bad precedent.


A SIGH OF RELIEF FROM A BAD PRECEDENT

The Apex Court has stayed the decision of the Bombay High Court's Nagpur Bench conferred on 19th January 2021. In the case of Satheesh Vs State of Maharashtra Justice Pushpa V. Ganediwala has pronounced a controversial judgement wherein she has acquitted the accused or appellant Satheesh Bandu Ragde, under Section 7 (Sexual assault) r/w Section 8 of the POCSO Act and has given a statement that the act of groping a breast of a child, without any skin-to-skin touch and sexual intent, could not be termed as sexual assault under the law.


She observed that when it is not clear that whether the top of the 12 year’s old victim was removed, the act of the accused or appellant doesn’t come under the purview of section 7 of the POCSO Act. The High Court had concluded in the para 18 of the judgement that “The act of pressing of the breast of the child aged 12 years old, 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 accused prior to the appeal to the High Court was convicted for “minimum of three years imprisonment” under Section 8 of the POCSO Act. This ruling has been set aside by the High Court and instead his sentence was reduced to “one year imprisonment” under Section 354 of The Indian Penal Code,1860 (hereinafter alluded to as the “IPC”) which is “Assault or criminal force to woman with intent to outrage her modesty.”


FACTS OF THE CASE

Back in 2016, the girl was doing an errand for her mother when she did not return for a long time her mother started searching for her. She met Satheesh Ragde outside his house and when she asked him about his daughter he told that he did not have any idea. She later found her daughter in Ragde’s house. The girl told her mother that the convict took her to wrongful confinement where he pressed her breasts and tried to remove her salwar. The mother then filed a police complaint against the accused.


INCORRECTNESS OF THE DECISION

In order to determine the correctness of the decision let us analyze the Section 7 of the POCSO Act, 2012 and Section 354 of the IPC, 1860.


Section 7 of the POCSO Act, 2012

Sexual assault – “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 without penetration, is said to commit sexual contact.”

The main elements that can be extracted to determine the sexual assault is:

  1. Sexual intent

  2. Touching of anus, penis, vagina or breast of the child

  3. Physical contact without penetration

The judgement revolves around the interpretation of the word “physical contact” and whether it covers the situation where a person gropes the breast of the child over the clothes? Justice Pushpa V. Ganediwala in the judgement itself through para 26 has clarified her mind, that the sense of "physical contact" as set out in Section 7 can naturally be interpreted as "direct physical contact, i.e., skin to skin with sexual intention without penetration." If this explanation is to be followed then any person who makes the child touch his/hers anus, penis, vagina or breast or touches the child’s private parts hereinabove mentioned with a piece of cloth without any direct skin to skin contact then such person is saved and is protected under POCSO Act. Is it justified at all?


The above section mentions the word “sexual intent” the fact that the accused groped the 12 years old child’s breast shows clear intention of him assaulting the child sexually.


Every judge while interpreting any provision of the statute shall firstly focus on the plain meaning of the provision and then if the meaning is not clear with it then the intent of the legislature shall be focused upon. The best way to gather the intent of the legislature is through preamble. A preamble of any act contains its main aim and objectives which a legislature sought to achieve. In the case of Maharashtra Land Development Corporation v/s State of Maharashtra, 2010 it was held that “the preamble of the act is the guiding light of its interpretation.”


In this matter the term “physical contact” is not clear if plain meaning is given to consideration. Now, let’s read the preamble of POCSO Act which provides that “it is imperative that the law operates in a manner that the best interest and well-being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.” By reading the preamble the intent of the legislature is very clear. It is the duty of a judge that while interpreting a statute it shall keep in mind the intent of the legislature as far as it is not beyond the scope of the Constitution but in this case the judge has totally failed to meet the objective of the legislature.


Section- 354 of the IPC, 1860

Assault or criminal force to a woman with intent to outrage her modesty- “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” This section only talks about the intention and not the sexual intention. The accused has been convicted under this section which means the act of groping a child’s breast does not showcase the sexual intent of the accused, but it shows mere intention to outrage the modesty of a woman. Is this what the judgement talks about and if yes then how is it justified?


Section 7 of the POCSO Act, 2012 is a gender-neutral provision whereas section 354 of IPC, 1860 is solely for women victims. Now here the question arises that if the victim was a male child, for example a person touching the penis of a male child without removing his clothes then what reasoning and judgement would have been given by the Bombay High Court?


CONCLUSION

The reason behind enacting a similar type of statute which already exist is either because of loopholes in the existing statute or some areas are not covered in that statute. The POCSO Act, 2012 was enacted with the same reason that is to protect children from crimes such as sexual harassment, sexual assault and other sexual offenses . There was a need felt to enact a separate law for children under 18 years of age such that processes for reporting, recording and trial keeping should be kept child-friendly for the best interest of the child as earlier the laws like IPC, 1860 the processes were too harsh for them.


The judgement of the Bombay High Court has the capacity to set out a very bad precedent as it is gender discriminatory, the example of which I have already given hereinabove. The legal intention behind the POCSO Act is to preserve the interest of the child in the best possible way but with this judgement the intention of the legislature has been negated and overlooked.


The single judge interpreted the word ‘Physical Contact’ in section 7 of POCSO Act as the direct skin to skin contact. Imagine the situation when every person committing the sexual assault starts to claim protection on the ground that they did not have direct skin to skin contact with the victim. All the lower courts will have to grant them relief as they are bind to follow precedent and the aim of POCSO Act would be destroyed. Thus, the step taken by the Supreme Court to stay the judgement of the Bombay High Court was extremely necessary to avoid the dangerous situations to incur in the future. Also, it is important to reverse the above mentioned judgement to protect the interest of the children.


REFERENCES:-

1. Krishnadas Rajgopal, “Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act”, The Hindu, Publication Date:27 January,2021, Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act - The Hindu, Last Visited:12 February,2021.


2. Criminal Appeal 161/ 2020


3. Apoorva Mandhani, “Supreme Court stays Bombay HC’s ‘no skin touch, no sexual assault’ verdict in POCSO case”, The Print, Publication Date:27 January,2021, Supreme Court stays Bombay HC’s ‘no skin touch, no sexual assault’ verdict in POCSO case (theprint.in), Last Visited:12 February,2021.


4. Krishnadas Rajgopal, “Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act”, The Hindu, Publication Date:27 January,2021, Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act - The Hindu, Last Visited:12 February,2021.


5. Vivek Deshpande, “Sexual assault under POCSO needs skin to skin contact: Bombay HC”, The Indian Express, Publication Date:27 January,2021, https://indianexpress.com/article/india/sexual-assault-under-pocso-needs-skin-to-skin-contact-bombay-hc-7160293/ , Last Visited:12 February,2021.


6. The Protection of Children from Sexual Offences Act, Act no. 32 OF 2012, India code.


7.Jaiyesh Bhoosreddy, “Satish Ragde vs State of Maharashtra: Misconceived interpretation of Section 7 of the POCSO Act contrary to the legislative intent”, The Daily Guardian, Publication Date:27 January,2021, Satish Ragde vs State of Maharashtra: Misconceived interpretation of Section 7 of the POCSO Act contrary to the legislative intent - The Daily Guardian, Last Visited:12 February,2021.


8. CIVIL APPEAL NOS. 2147-2148 OF 2004


9. The Protection of Children from Sexual Offences Act, Act No. 32 OF 2012, India code.


10. The Indian Penal Code, Act no. 45 of 1860, India Code.


*The Author is a 4th year B.A.LLB (Hons) student at Amity Law School, U.P. (Lucknow Campus)


Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.


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