Home » News » SC Stays Bombay High Court Order Stating “Skin-to-Skin Contact Necessary to Constitute Sexual Assault” under POCSO Act

Supreme Court on Wednesday stayed the judgment passed by Bombay High Court dated January 19 which ruled that pressing the breast of 12 year old child without removing her top will not fall within the definition of sexual assault under Section 7 of POCSO Act.

The matter was mentioned before the three judge bench of Chief Justice of India S A Bobde, Justice A S Bopanna and Justice V Ramasubramanian.

Attorney General KK Venugopal made an urgent mention of the case and urged the court to take suo moto cognizance of the judgment. “It is a very disturbing conclusion. Your Lordships should take note of this. I will have a petition filed tomorrow or Your Lordships may take Suo Motu notice. The order will set a dangerous precedent,” submitted AG Venugopal.

“Bombay High Court has apparently acquitted the accused under Section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin-to skin contact. The Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit AG Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under Section 8 of POCSO Act. Issue notice to accused returnable in two weeks,” the apex court ordered.

The top court has issued notice to Maharashtra government and has also granted the permission to AG Venugopal to file an appeal against the January 19 verdict given by Nagpur bench of Bombay High Court which received huge backlash.

Bombay High Court bench comprising Justice Pushpa V Ganediwala acquitted an accused against whom the sexual assault charges were framed under POCSO Act. The High Court ruled that groping a minor’s breast without a skin-to-skin contact does not come under the definition of sexual assault under Protection of Children from Sexual Offences Act (POCSO). The court observed that this act of the accused will only fall under the definition of outraging the modesty of women under Section 354 of Indian Penal Code.

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

Justice Ganediwala stated that the ingredients for constituting the offence of ‘sexual assault’ are that the act must have been committed with sexual intent and it must involve touching the vagina, penis, anus or breast of the child or ‘any other act’ which are similar to the acts specifically mentioned in the provision.

The High Court further opined, “The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure (sic) to that.” The court convicted him under Section 354 and Section 342 of the IPC.

On Wednesday morning, Youth Bar Association of India has also filed an appeal against the Bombay High Court judgment.

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