New Delhi: The Supreme Court on Thursday quashed the Bombay High Court verdict and said that “skin-to-skin” contact is not necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
A bench of Justices UU Lalit, S Ravindra Bhat and Bela Trivedi observed that sexual intent is important in such cases. It ssaid that restricting ‘touch’ or ‘physical contact’ under Section 7 of POCSO to “skin to skin contact” will lead to absurd interpretations, and will destroy the intent of the Act that was brought to protect children. For instance, it pointed out that going by the HC interpretation, a person who uses gloves etc while groping a child cannot be held liable under the Act.
The purpose of the law cannot be to allow the offender to escape the meshes of the law, the apex court said.
“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench said.
It was hearing the appeals filed by the Attorney General of India, National Commission for Women, and the State of Maharashtra against the judgment of the High Court.
In a separate concurring judgment, Justice Bhat said the HC’s erred in coming to such a conclusion as its reasoning “insensitively trivialized, legitimized and normalized behavior which undermines dignity of children”.
In January this year, the Nagpur bench of Bombay High Court had acquitted a man 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 High Court order was later set aside by the Supreme Court after Attorney General K K Venugopal brought the matter to the court’s notice and said it is “unprecedented” and is likely to “set a dangerous precedent”. “It is a very disturbing conclusion,” the A-G told the bench led by the then Chief Justice of India S A Bobde. The AG and NCW had filed separate appeals.
