Supreme Court on Thursday set aside the most controversial POCSO judgment given by Justice Pushpa V Ganediwala which held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Three judge bench of Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela Trivedi noted that restricting the meaning of “touch” to “skin-to-skin” contact would lead to “narrow and absurd interpretation” and destroy the intent of the Act, which was enacted to protect children from sexual offences.
The apex court bench added, “Touching through clothes/sheet with sexual intent is covered in the definition of POCSO. Courts should not be overzealous in searching for ambiguity in words that are plain. Narrow pedantic interpretation that would defeat the purpose of the provisions cannot be allowed.”
The Supreme Court bench was hearing the appeals filed by Attorney General Of India KK Venugopal, National Commission for Women, and the State of Maharashtra.
In a separate judgment, Justice Bhat had observed that the HC’s erred in coming to such a conclusion as its reasoning insensitively trivialized, legitimized, and normalized behavior which undermines the dignity of children.
In January 2021, the Nagpur bench of Bombay High Court had acquitted a man accused of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact does not constitute “sexual assault” under the POCSO Act.
However, the judgment was set aside by the Supreme Court AG KK Venugopal brought the matter to the court’s notice during former CJI SA Bobde’s tenure. He termed the judgment unprecedented and stated that it is likely to set a dangerous precedent.
“If tomorrow, a person wears a pair of surgical gloves and feels the entire body of a woman, he won’t be punished for sexual assault as per this judgment. This is an outrageous order. The accused tried to bring down the salwar and even then bail was granted. The Judge clearly didn’t see the far-reaching consequences. Touching of the breast of a minor even without removing the top amounted to commission of offence of sexual assault under the Act,” AG Venugopal had said.