This article is written by Ajay Kumar, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

The Protection of Child from Sexual Offences Act was enacted as a special law to protect children from offences related to sexual assault, sexual harassment and pornography. But what happens when a law specially designed to protect children becomes incapable of fulfilling its objective due to its incorrect application by the judiciary?

Child sexual abuse is both widespread as well as a serious problem in India. It is not something new and has existed since a very ancient time. It hinders the growth of children and affects their thought process; their mental and physical health as well as their behavior. It leaves them in a kind of trauma, which in most of the cases, they must live with for their entire lifespan. In the past few years there has been much activism and public agitation regarding the same, which led the government to frame a law. It came in the form of ‘Protection of Child from Sexual Offences Act’ in 2012. Widely known as POCSO Act, it criminalizes various acts committed with a minor such as harassment, rape, pornography exploitation etc.  Even after almost 9 years of its implementation, most of the child sexual abuse cases go under reported. It therefore becomes necessary that in the cases which are reported, the law laid down in the POCSO act must be given a correct interpretation and should be correctly applied. This will ensure that the aggrieved gets justice and the convict are rightly punished. 

In the recent times, there have been various judgments given by Bombay High Court which are no less than blot to the provisions given under Protection of Child from Sexual Offenses Act. Thus, this article focuses on the incorrect application and interpretation of POCSO act in the light of recent judgments of Bombay High Court.

Relevant case laws

Amongst the recent judgements, where there have been incorrect interpretation and application of the provisions of the act, there are four major cases which got highlighted. 

Satish Ragde vs State of Maharashtra

In this case, a 12-year-old girl was molested by the accused on the pretext of giving her a guava. He then took her to his house and tried to remove her salwar while pressing her breasts. Meanwhile, the mother of the aggrieved found her daughter in the home of the accused and rescued her from there. She then lodged an FIR against the accused. The special court convicted the accused under Section 8 of the POCSO Act and a sentence of three years of rigorous imprisonment was awarded to him. The matter went in appeal to the high court. The question before the high court was whether the act of pressing the breast of a minor without removing her clothes or without making skin to skin contact with her would come within the ambit of Section 8 of the act.

The court, headed by Justice Pushpa Ganedivala, referred Section 7 of the Act which defines the offense of sexual assault against minor. The court interpreted that to constitute the offense of sexual assault, a physical contact that is a skin to skin contact with sexual intent is a necessary ingredient. 

Since this necessary ingredient was missing therefore the court acquitted the accused under POCSO Act on the ground that groping a minor without skin to skin contact does not amount to sexual assault. 

Libnus vs State of Maharashtra

This case is yet another instance of incorrect interpretation and application of POCSO Act. In this case, the mother of the victim (a 5 year old girl) had gone to work and when she returned, she saw that a man was in his house and he was holding the hands of her daughter and he ran away on seeing the mother. The victim told her mother that the man had asked her to sleep with him and he had also unzipped his pants and taken out his penis. 

The lower court in this case convicted the accused under Section 8, Section 10 and Section 11 of POCSO and also under Section 354 A of IPC. On appeal to the High court, the issue before the court was regarding the interpretation of the relevant provisions. The court held that, the act of opening pants zip and holding the hands of victim would not fall under the ambit of the Act and thus he was acquitted under the POCSO Act. However, he was convicted under Section 354A of IPC for sexual harassment. 

Jageshwar Wasudeo Kawle vs State of Maharashtra

In this case, the accused was convicted of the offense under Section 5 and Section 6 of the POCSO Act and under Section 376(2) (n) of IPC, 1860. He was sentenced to 10 years of imprisonment and a fine by the lower court. The victim girl, in this case, was of the age of 17yrs and 9 months. She and the accused were friends and they stayed together for a couple of days at the accused house, as after getting lured on the pretext of marriage, the minor had run away from her house. Later, conducting medical examination it was found that the two had sexual intercourse on various occasions. Thus, he was convicted by lower court. 

On appeal, the court held that there was no other reliable evidence and the mere testimony of the prosecutrix was not sufficient to convict the accused solely on the basis of that. The court also remarked that at the relevant time she was 17 years and 9 months old and thus was just 3 months away from attaining majority. 

Thus, the Court acquitted the accused from charges under POCSO Act. 

Prakash s/o Bhairuram Dhari vs State of Maharashtra

In this case, the accused who was a 50-year old man had raped a 15-year old girl. The family of the two had history of previous animosity as well. Based on the evidences available, the lower court had convicted the accused under Section 363, Section 366 A, and Section 376 of IPC. He was also convicted under Section 4 and Section 6 of the POCSO Act. 

However, on appeal to the High Court, the court held that it is not possible for a 50-year-old man to gag 15-year-old girl and remove her as well as his clothes without any kind of ‘scuffle’. The court opined that if there had been a forcible intercourse between the two, then it would have been preceded by a scuffle but since no injuries of the same could be seen, he was acquitted. 

Incorrect application and interpretation of POCSO Act

In the light of these 4 judgements, it gets easy to construe that how the Bombay High Court has interpreted the Provisions thereof. Let us analyse whether and how such interpretation can defeat the very object of the POCSO Act.

In the first case, the relevant provision in question was Section 7 of the act which provides for ‘Sexual Assault’. It provides that whoever touches the vagina, anus, penis or breast of a child with sexual intent or makes the minor touch these parts of that concerned person or of any other person, or with the sexual intention any act is done which involves physical contact without penetration then these would constitute sexual assault. The court in this case emphasized more on physical contact and gave a literal interpretation. The court failed to understand that this Section is gender neutral and focuses more on the ‘sexual intent’ of the person than the physical contact. Undoubtedly, the act of pressing the breasts of the child and removing her salwar signifies a sexual intent.  Moreover, the interpretation of the court regarding skin to skin contact is erroneous, as then if accused touched the naked body of the victim with gloves then it would not fall under Sec 7. There have been various precedents as well wherein the court did not investigate the fact that whether such sexual acts were done by putting the hands inside the top or whether the victim was disrobed or not. 

Further in the 2nd case, the court made incorrect interpretation and thus incorrect application of the act. In this case the code wrongly interpreted the principle of ‘Ejusdem generis’ in Sec 7 of the Act. The objective of the act is to provide protection to children against sexual offences and it is important that the court must keep the objective of the legislation in mind, while interpreting it. Under Section 7, the word ‘any other act’ is used. And while interpreting the same, the court applied the principle of Ejusdem generis. While applying this principle, the court absurdly interpreted the Section.

This principle has to be applied only in consonance with the intention of the legislation. In the case of State vs Eckhardt, it was even held that this principle should not be applied where it defeats the legislative intent and should be used only for construction purposes. Thus, since the intent of the legislature behind this act was as aforesaid, the words ‘ any other physical act’ shall be construed in such a way that it includes all those acts which involved a physical contact to molest the child.  Moreover, this principle shall not be used in those cases where, certain words exhaust the enumerated class. Here, in this Section the words ‘any others act’ would thus mean touching any other part of the body except those provided. The court also failed to consider the underlying circumstances of the cases such as forcible entry to the house and unzipping pant with a direction to the girl to sleep with him. Moreover, the court interpreted Section 11 and 12 of the Act in highly erroneous way, that though the court acquitted the accused under Section 11 and Section 12 of the POCSO Act, but still it convicted him of Section 354 A (1) (i) of IPC. Both these sections deal with literally the same offence of ‘ sexual harassment’

Further in the 3rd and 4th case, Bombay High Court acquitted the two-rape accused on irrelevant grounds. The court did not consider the age of Children which was 17yrs and 9 months and 15 years respectively. In such cases the burden shifts on the accused to prove that he hasn’t committed the offence however in these cases the court acquitted them on the mere ground that the testimony of the victim was not of sufficient quality to convict the accused. Whereas in such cases the testimony of the child is considered conclusive. However, here also the court did not apply the POCSO Act rightly. In the other case the court interpreted the provision in such a way, that it held, that it is not possible to remove the clothes of both, without a scuffle. Thus, much emphasis was laid on the existence of scuffle between the two. The court incorrectly interpreted the provision although already it has been clarified by the judiciary that lack of physical resistance in such act is not a proof of consent. 

Moreover, if two interpretations are possible then the one which favors the minor must be adopted by the court, which the Bombay High Court in these cases failed to do. Thus, in these 4 latest judgments of the Bombay High Court gross injustice was done while interpreting the provisions of POCSO Act. These were however highly condemned by everyone and were said to set a vague precedent. The judgements were thus stayed by the Hon’ble Supreme Court. 

Conclusion

The main aim behind the act is to provide protection to children from any kind of Sexual harassment. It provides for stringent punishments to people who are found guilty of offence under this Act. In order to ensure that the Provisions of the Act must be interpreted in a constructive manner, it is important to read it along with the objective laid down by the Act. Also, to some extent the stringent provisions provided under this Act helps in getting acquittals, as the court searches for more and more concrete evidences before convicting someone under this act. But if the law makers would have felt any such need, then they would have already provided Provisions regarding that as well. More stringent Provisions would act as a deterrent to others. The judges should be provided with a better judicial training as well, so that they can understand the idea behind such Acts. 

References

1. State of Karnataka vs Noor Ahmmed Fakeersab
2. Jagar Singh vs State of Himachal Pradesh
3. https://www.livelaw.in/pdf_upload/pocso-sexual-assault-bombay-hc-nagpur-bench-judgment-388228.pdf
4. https://theprint.in/judiciary/absurd-interpretation-experts-say-hcs-pocso-order-in-groping-case-wrong-on-many-levels/591873/
5. http://crlreview.in/Section-7-pocso-incorrect-application-of-ejusdem-generis/
6. https://www.hindustantimes.com/mumbai-news/hc-grants-bail-to-25-year-old-booked-for-rape-under-pocso/story-clQBPalA61lnyPZiObsTJP.html
7. https://www.thequint.com/news/law/justice-ganediwala-bombay-hc-shocking-pocso-judgments-broader-problem-judicial-training-justice-lokur#read-more
8. http://crlreview.in/protection-of-children-against-sexual-offences-pocso/
9. https://www.livelaw.in/pdf_upload/pressing-a-childs-breast-without-skin-to-skin-contact-does-not-amount-to-sexual-assault-under-pocso-act-bombay-high-court-388064.pdf
10. http://crlreview.in/a-case-of-sexual-assault-or-outraging-a-womans-modesty/
11. https://www.downtoearth.org.in/blog/health/sexual-assault-under-pocso-act-a-child-rights-perspective-76233
12. http://www.thelexrepository.com/pocso-act-judgment-2021-is-this-justice/

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