[POCSO] Bombay High Court's skin to skin judgement will have devastating results: Attorney General KK Venugopal to SC

Attorney General (AG) KK Venugopal told the Supreme Court on Wednesday that the Bombay High Court judgment acquitting a man for an offence under Section 7 Protection of Children from Sexual Offences Act (POCSO), on the ground that the victim was clothed and there was no “skin-to-skin” contact, can have devastating consequences. (Attorney General for India vs. Satish)

The Bench of Justices UU Lalit and Ajay Rastogi heard appeals against the judgment filed by Attorney General (AG) KK Venugopal, State of Maharashtra and the National Commission for Women (NCW).

AG Venugopal submitted that the High Court had misinterpreted Section 7 of the POCSO Act, which defines sexual assault.

"Question arises that if the child is wearing a blouse, and you press the breast, will it prevent an offence under Section 8?" This judgement will be treated as precedent for subordinate courts and the result will be devastating...It will lead to an extraordinary situation," the AG submitted.

The Bench of Justices UU Lalit and Ajay Rastogi was hearing appeals against the judgment filed by Attorney General (AG) KK Venugopal, State of Maharashtra and the National Commission for Women (NCW).

Senior Advocate Geeta Luthra relied on judgments from foreign jurisdictions on skin to skin contact in such cases.

"While penal statutes must be construed strictly, it was apparent that the statute was not only meant to protect only unclothed girl...It is not necessary that the bare skin of minor be touched."

Amicus Curiae Senior Advocate Siddhartha Dave was next to make submissions.

"In the first part of the Section, there are body parts specified. Then, the second part mentions the sexual intent. So, if a man holds a child’s hand and the question is whether it is sexual assault or not, it will be whether there is sexual intent or not," he said.

At this point, the Court observed,

"The applicability of the second part of Section 7 is not to our interpretation. We will skip all other issues. We are restricted to whether skin to skin contact is requirement of the Section."

"My submission is that if you are touching the sexual organs of the child, the sexual intent becomes more easily establishable," Dave replied.

The High Court had on January 19 ruled that pressing the breast of a 12-year-old child without removing her clothes will only fall within the definition of outraging the modesty of a woman under Section 354 of Indian Penal Code (IPC).

Whereas the punishment for sexual assault under Section 8 of the POCSO Act is imprisonment of 3-5 years, the punishment under Section 354 of IPC is imprisonment of 1-5 years.

The apex court had stayed the controversial judgment on January 27 this year, after AG Venugopal mentioned the matter and termed it as a "very disturbing conclusion."

On the last date of hearing, AG Venugopal had pointed out that there were 43,000 offences registered under the POCSO Act in the last one year.

[Read Order Here]