This article has been written by Ria Verma, a student at Symbiosis Law School, Noida. This article aims to differentiate between Section 7 of the POCSO Act and Section 354 of the Indian Penal Code. It also analyzes the court’s interpretation of Satish v. State of Maharashtra.
A recent judgment of Satish v. State of Maharashtra (2020) given by the Bombay High Court was widely disputed. A heated debate took place to determine whether ‘skin-to-skin’ contact would come under the purview of sexual assault. The judgment was then overruled by the Supreme Court.
This article deals with the difference between Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 354 of the Indian Penal Code, 1860. It also throws light upon whether or not a flawed interpretative method was used by the High Court to decide the case and the subsequent judgment interpreting the scope of Section 7 of the POCSO Act given by the Supreme Court.
Assault under the POCSO Act
To deal with the increasing cases of child sexual assault, harassment, and pornography the POCSO Act was enacted in 2012. It is a gender-neutral law, that is, the victim and the accused can either be a male or a female. It is a victim-centered piece of legislation and focuses on protecting children’s interests through every step and stage of the judicial process. They have incorporated child-friendly mechanisms for recording evidence, reporting, investigation, and conducting speedy trials in designated special courts.
Under the POCSO Act, a child is defined as any individual who has attained the age of 18 years. It elucidates different types of sexual abuse such as penetrative and non-penetrative assault, sexual harassment, and pornography.
Section 7 of the POCSO Act
Section 7 of the POCSO Act defines the ambit of sexual abuse against children. It states that “Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”
Conditions for committing the offense of sexual assault under the POCSO Act
From the above provision, four essentials to constitute the offense can be determined:
- Sexual intent of the offender,
- Touching the private parts of the child,
- Making the child touch their private parts or of some other individual,
- Commits any other act that entails physical contact without penetration.
Therefore, establishing the sexual intent of the offender is vital and the other essentials would fall into place.
Assault under the Indian Penal Code
Section 354 of the Indian Penal Code
Section 354 defines assault or criminal force on a woman to outrage her modesty. The Section states that: “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
The offense under this Section is cognizable and non-bailable in nature with the prescribed period of imprisonment and fine, triable by the Magistrate.
Conditions for committing the offense of sexual violence under the Indian Penal Code
Certain conditions need to be fulfilled by the prosecution to establish that the offense has been committed. The three conditions are:
The victim must be a woman
Section 354 expressly states that the aggrieved person must be a woman and the age is not expressly fixed in the provision. Therefore, it is not a gender-neutral offense and in case a man is subjected to assault or criminal force, he would not be entitled to relief under this Section since it would not be considered as an offense.
In the case of Girdhar Gopal v. State (1952), the constitutionality of the Section was questioned as it violates Article 14 (Right to Equality) and Article 15 (the right not to be discriminated against) of the Constitution.
The Court referred to the case of Raning Rawat v. State of Saurashtra (1952), wherein, the ambit of Article 14 was interpreted. The legislature can make certainly reasonable classifications such as treating men and women differently in terms of outraging modesty, by making it assault only when it is committed against women. Therefore, the provisions of the Code cannot be said to have infringed on the rights enshrined under Articles 14 and 15.
In Girdhar Gopal’s case, the Bench stated that the offense could be committed both by a man as well as a woman. The Court further stated that the pronoun ‘he’ used in the provision has to be read together with the definition provided by Section 8 of the IPC, wherein the pronoun ‘he’ refers to both male and female individuals. Therefore, the Section clearly mentions ‘whoever’, and hence, is applicable to everyone. It would not absolve the liability of the offender in case she is a woman.
Assault or use of criminal force against the aggrieved
The onus of proof is on the prosecution to prove whether the accused has committed an act that can be classified as an assault or criminal force against the aggrieved person. The terms ‘assault’ and ‘use of criminal force’ have been defined in Sections 350 and 351 of the Penal Code respectively.
Section 350 defines criminal force as, “Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offense, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”
Section 351 defines assault as, “Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.”
Therefore, by merely reading the provisions it can be inferred that any gesture that causes reasonable apprehension in the mind of another or using force intentionally, would amount to an offense under these provisions.
The act was intentional or done with the knowledge that it would constitute an offense or outrage the modesty of a woman
There are two vital aspects of the Section:
The act must be committed intentionally or with the knowledge that it would outrage the modesty of a woman
The provision clearly states that the primary ingredient of the offense is having the intention to commit the act or having the knowledge that the act would amount to outraging the modesty of an individual. It is important to prove that the accused committed the act with this intention or knowledge. It is not sufficient for the woman to feel that her modesty was outraged. ‘Modesty’ is a subjective term and there is no one definition that fits all. What might be offensive to one individual might not be offensive to the other individual. Therefore, the reaction of the individual is not an essential ingredient.
The terms ‘outrage her modesty’ and ‘intending to or knowing it to be likely that he will thereby outrage her modesty’ clearly indicate that it is the intention or the knowledge of the accused that needs to be scrutinized. The consequent reaction of the victim is not relevant.
The intention and knowledge of the accused cannot be directly ascertained by using the evidence at hand. It is important to look at the facts and circumstances of each and every case. It must be ascertained whether a reasonable man would think that the act committed by the offender was committed with the intention or the knowledge to outrage the modesty of the aggrieved person.
In State of Punjab v. Major Singh (1966), a landmark judgment, the prominent issue raised was whether the accused’s act of injuring the private parts of a seven and half-month-old female would fall under the purview of outraging her modesty. The Supreme Court used the test of ascertaining whether the modesty of the victim was outraged from the perspective of a reasonable man. The provisions of this Section would be applicable when a reasonable man believed that the act committed is sufficient to tarnish the modesty of the victim.
The Court held that despite the victim not having developed a sense of shame and awareness of sex, she possesses modesty from her very birth. Whatever little modesty the victim had, the accused clearly had an intention to tarnish it. Therefore, he was convicted of committing the offense within the ambit of this Section.
Interpreting the term modesty
This particular Section was laid down with the objective of protecting the interests of women and normalizing decent behavior in public. Modesty is used as an attribute of a female, irrespective of the fact whether she is mature or has acquired sufficient understanding of the negative implications of the act.
In Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh (1995), a man slapped a woman on her posterior in front of a crowd. The question raised was whether this act would constitute an offense within this Section. To interpret the word modesty, the Supreme Court referred to the definition of modesty given in the Oxford Dictionary (1993 edition). It defined modesty as “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct; reserve or sense of shame proceeding from indistinctive a version to impure or coarse suggestions”.
The Court stated that the act of blemishing the modesty of a woman must be determined keeping in mind the common notions, that is, the current societal standards. It was held that the act of the offender must be such that it shocked the sense of decency of the woman.
On applying this test to the facts of the case, the Court held that the act of slapping the woman on her posterior would fall within the purview of outraging her modesty, since not only was it an insult to the sense of decency as per the current standards, but also an insult to the dignity of the woman.
Satish v. State of Maharashtra
In this case, the accused lured the victim to his house under false pretexts of giving her guava. He pressed the victim’s breasts while trying to remove her salwar. The question raised before the Court was whether this act would fall under the purview of sexual assault as per Section 7 of the POCSO Act.
An appeal against the Session Judge’s order was heard by a single judge Nagpur Bench of the Bombay High Court. Sections 342 (punishment for wrongful confinement), 354, and 363 (punishment for kidnapping) of the Indian Penal Code were attracted.
According to Section 7 of the POCSO Act, any individual who touches the private parts of a minor or does any other act with sexual intent has committed the offense of sexual assault. The Court acquitted the accused from the charge under Section 7 and upheld the conviction of the accused under Section 354 of the IPC.
A major distinction between the offense in the two statutes is that in Section 354 of the IPC, the wrongdoer is imprisoned for a tenure of one year, whereas as per Section 7 of the POCSO Act, the punishment is of three years. The Court acquitted the accused from Section 7 due to the following three reasons:
- The prosecution did not present the argument that the accused removed the top of the victim before molesting her.
- The punishment must be proportional to the offense committed. Under Section 7, more stringent punishment is given, therefore, cogent evidence is required to be presented.
- It was unclear whether the accused put his hand inside the victim’s top with the objective of molesting her. So, ‘skin-to-skin’ contact would prevent such an act committed from being an offense under Section 7.
Stating these reasons, the Court held that the accused is guilty of outraging the victim’s modesty under Section 354 of the IPC.
It was argued that ‘skin-to-skin’ contact is necessary to constitute the offense of sexual assault under Section 7 of the POCSO Act. In the second part of the Section ‘contact’ was preceded by ‘physical’. Therefore, it can be inferred that skin-to-skin contact is necessary. Further, under Section 354 even touching the clothes would be considered as a criminal force.
The Court asked why there is a difference being made out between ‘touch’ and ‘physical contact’. Why would the legislature use two different terms when their meaning is the same? Can it be interpreted that physical contact is less than touch?
The counsel on behalf of the accused stated that ‘physical contact’ is necessary otherwise day-to-day activities could also be criminalized. Contact is qualified by physical contact, on the other hand, touch is not.
The Court observed that different situations must be relied upon to see if this interpretation is logical. They also stated that there is no need to stretch one’s reasoning and rely on other provisions when the offense has been clearly laid down in one provision.
The Court illustrated this with the help of an example that if an individual pokes another individual with a pen, there is no skin-to-skin contact. No sexual assault can be said to have taken place according to the arguments previously stated. However, the privacy of the child along with the modesty is violated.
The Court finally held that the accused was guilty under Section 342 and 354 of the IPC and sentenced him to rigorous imprisonment for a tenure of one year and a fine of Rs. 500 which was to be paid if the accused defaults to suffer rigorous imprisonment for one month.
Why was the judgment widely disputed
The judgment was widely disputed stating that the Courts used a flawed interpretative method while addressing the issue.
In Jagar Singh v. State of Himachal Pradesh (2014), the High Court of Himachal Pradesh negated the essential of skin-to-skin contact to attract Section 7 of the POCSO Act. The Section does not provide for touching the naked private parts of an individual. Even when the victim is wearing clothes, an act of touching their private parts would be enough to attract the provisions of Section 7.
In the case of Geetha v. State of Kerala (2020), the High Court of Kerala set aside the bail order that was granted by the Session Court Judge on the grounds that the gravity of the sexual crime would not be any less if the touch was through the victim’s dress. Therefore, the absence of skin-to-skin contact would not be a relevant indicator of the seriousness of the crime.
In the United Kingdom, Section 79(8) of the Sexual Offences Act, 2003, defines touching. It includes touching with any body part, through anything. It particularly includes touching amounting to penetration. It can be clearly inferred that despite the victim being clothed, touching any body part would still constitute the ‘touching’. It is imperative that lawmakers take note of this fact and add a similar provision in the Indian statutes to prevent such illogical interpretations in the future.
In Regina v. H (2005), it was held by the England and Wales Court of Appeal held that “where a person is wearing clothing, we consider that touching of the clothing constitutes touching for the purpose of the Section 3 offense” of the Sexual Offences Act, 2003.
The Court’s unwillingness towards punishing the accused under POCSO was on the grounds of stringent punishment of three years as compared to one year under IPC. Section 42 of the POCSO Act talks about alternative punishment and states that when an act is an offense under both IPC and POCSO, the accused, if found guilty, must be punished under the act that awards greater punishment. Therefore, the Court could have punished the offender under both provisions of the POCSO as well as the IPC. Merely reading Section 42 directs the reader’s attention towards the usage of the word ‘shall’ which makes it mandatory for the court to award more stringent punishment. But the Court used the same fact to convict the offender of punishment to a lesser degree.
In Lok Prasad Limboo v State of Sikkim(2019), the victims were minor girls who had been groped. The Sikkim High Court held that the sentence given under both IPC and POCSO should be awarded parallelly.
Under Section 29 of the POCSO Act, the burden of proof is not on the victim but on the accused. When an individual is accused of committing an offense under Sections 3,5,7 and 9 of the POCSO Act, it is necessary that the court assumes that the accused is guilty unless the accused is able to prove his innocence.
In Justin Renjith v. Union of India (2020), the Kerala High Court held the constitutionality of Section 29 on the grounds that the victim is a minor, and the occurrence of the alleged instance once established leaves it to the accused to rebut those claims. Therefore, in the case, it was established that a minor was molested but the Court’s incorrect reasoning of requiring ‘strict proof and serious allegations’ was incorrect since the onus was on the victim to prove the guilt of the accused.
The judgment also leads to a wrong precedent as keeping ‘skin-to-skin’ contact as a requisite and granting immunity to those offenders who inappropriately touch a minor who is wearing clothes. It would cause a gross miscarriage of justice and the intention of the statute, that is, preventing sexual abuses against children, is undermined.
Judgment overruled by the Supreme Court
The Supreme Court in the case of Attorney General for India v. Satish and another (2021), heard the appeals filed by the Attorney General of India, the National Commission of Women, and the State of Maharashtra against the above-discussed judgment of the Bombay High Court.
The bench comprising of Justice Umesh Lalit, Justice S Ravindra Bhat, and Justice Bela M Trivedi held that the entire objective of having an act to protect children from sexual offenses would be destroyed if the interpretation of touch or physical act under Section 7 of the POCSO Act is constricted. The flawed interpretation of the Bombay High Court would not only impose limits on the law to safeguard the citizens from harm but would also overthrow the intention of the legislature in its entirety.
The Supreme Court stated, the reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behavior which undermines a child’s dignity and autonomy, through unwanted intrusions.
The very object of the act would be undermined in case someone touches the sexual or nonsexual parts of the body of a child with gloves, condoms, sheets, or with a cloth. The sexual intent is present but according to the Bombay High Court’s interpretation, it would not amount to an offense of sexual assault under Section 7 of the POCSO Act.
The Supreme Court stated that the most important ingredient for constituting the offense of sexual assault under Section 7 of the POCSO Act is the ‘sexual intent’ and not the ‘skin to skin’ contact with the child. The prosecution is not required to prove a skin-to-skin contact to prove that the offense has taken place.
The Supreme Court held that Section 7 of the POCSO Act would cover both direct and indirect contact, that is, irrespective of whether there was skin-to-skin contact or not, an offense under this section would be constituted. The intention of the offender to touch a child inappropriately is enough to attract the provisions of this section. Therefore, the court clarified and widened the interpretation of Section 7.
Key differences between Section 7 of the POCSO Act and Section 354 of the Indian Penal Code
The case of Satish v. State of Maharashtra makes the distinction between the two Sections even clearer. The key differences between Section 7 of the POCSO Act and Section 354 of the Indian Penal Code are as follows:
Offense punishable under the Section
Section 7 of the POCSO Act deals with intentional assault with sexual intent, whereas Section 354 of the Indian Penal Code deals with outraging the modesty (not the body) of a woman.
Gender of the victim
Section 7 of the POCSO Act is gender-neutral, whereas Section 354 of the Indian Penal Code is women-centric.
Quantum of punishment
Under Section 7 read with Section 8 of the POCSO Act, the offender is punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. On the other hand, under Section 354 of the Indian Penal Code, the offender shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Sexual intent as a pre-requisite
Sexual intent is an essential condition under Section 7 of the POCSO Act whereas, under Section 354 of the Indian Penal Code, the sexual gratification of the accused is irrelevant.
Burden of proof
Under the POCSO Act, the burden of proof is on the accused. Section 29 of the POCSO Act states that “when a person is prosecuted for committing an offense of sexual assault against a minor, the special court trying the case shall presume the accused to be guilty.” On the other hand, under Section 354 of the Indian Penal Code, the burden of proof is the accuser.
The reasoning of enacting a separate statute with the objective of decreasing sexual crimes against children was undermined by the High Court’s interpretative methodology. The judgment could have had far-reaching negative socio-legal implications and it would be common for offenders to take advantage of the fact that privacy, bodily autonomy, and integrity could only be violated when the victim is not wearing clothes. The final decision taken by the Supreme Court was much needed and prevented the gross miscarriage of justice.
Therefore, in the future, similar situations may arise wherein both Section 7 of the POCSO Act and Section 354 of the Indian Penal Code overlap. The key differences between the two Sections must be scrutinized to ascertain what offense has been committed by the accused.
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