POCSO: Supreme Court reserves verdict in appeal against Bombay High Court 'skin to skin' judgment

The Supreme Court on Thursday reserved orders in appeals against the Bombay High Court judgment acquitting a man for an offence under Section 7 Protection of Children from Sexual Offences (POCSO) Act, on the ground that the victim was clothed and there was no “skin-to-skin” contact (Attorney General for India v. Satish)..Petitions challenging the High Court judgment were filed by Attorney General (AG) KK Venugopal, State of Maharashtra, and the National Commission for Women (NCW)..The Court on Thursday heard submissions by Senior Advocate Sidharth Luthra. Luthra argued that a conviction under Section 7 of the POCSO Act required touch. However, the second part of the provision that stated, “any other person, or does any other act with sexual intent...” needed to be clarified.“The point that I’m trying to make is, we have two words which are very important which need to be considered. Word in Section 7 is “sexual intent” and “physical contact”. So sexual intent will require physical contact.”Luthra placed reliance on a judgment of the Bombay High Court in Bandu Vithalrao Borwar v. State Of Maharashtra where the Court defined sexual intent..Responding to this contention, the Bench of Justices UU Lalit, Ravindra Bhat and Bela Trivedi stated, “What does touch mean, simply a touch? Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that Parliament intended.".Luthra further contended that the provisions under the POCSO Act were very stringent in nature since presumptions under Sections 29, 30 and Section 42 were against the accused. Therefore, he stated, whenever there is ambiguity in law, the rule of lenity would apply."In law, wherever there is ambiguity, the rule of lenity applies even in Indian Law. If there is ambiguity, it must be decided in favour of the accused. Look at this situation, you hold the hand of the child and Sections 29, 30 kick in.".The Bench, however, observed that this contention would be examined on a case-to-case basis and the outcome will depend on the intent with which the touch took place.“If the touch/physical contact is pregnant with sexual intent, then everything falls into place.”Further Justice UU Lalit said, “Tell us, if the backside of a child is groped, will he (the accused) be guilty or not without skin-to-skin contact? You are saying then, no offence will be committed.”.In response to Luthra’s submission that more appropriate provisions under the Indian Penal Code could be attracted in the absence of clarity under the POCSO Act, the Bench affirmed that the situation must be examined from the victim’s perspective and not the perpetrator's, since the child’s privacy and modesty has been violated..Before the Bench closed the matter for arguments, Senior Advocate Geeta Luthra made concluding submissions. She stated that “touch” and “physical contact” are synonyms and there cannot be differentiation in their interpretation..On Wednesday, the Supreme Court had heard detailed arguments made by Attorney General KK Venugopal, who said that the judgment would have "devastating results" as it would be followed by trial courts as precedent..[POCSO] Bombay High Court's skin to skin judgement will have devastating results: Attorney General KK Venugopal to SC.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).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.".[Read Order Here]