This article is written by Ms Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article critically analyzes the two recent judgments of the Bombay High Court delivered by the same bench in 2021 on the POCSO Act.

Introduction 

The Protection of Children from Sexual Offences Act (hereinafter referred to as POCSO Act), which was passed in 2012, is gender-neutral, recognizing that both boys and girls can be victims of sexual abuse. While the Indian Penal Code does not acknowledge that men can also be sexually assaulted, POCSO is gender-neutral. It considers everybody under the age of 18 to be a child. The Act further broadened the definition of what constitutes a sexual offence against a kid. It broadened the definition of sexual assault to cover both non-penetrative and aggravated penetrative sexual assault, as well as penalties for those in positions of trust, such as public workers, educational staff, and police officers.

Overview of the controversial judgements by the Bombay High Court

The Nagpur Bench of the Bombay High Court delivered two judgments in separate cases of child sexual abuse, Libnus v. the State of Maharashtra (2021) (hereinafter Libnus case) and Satish v. the State of Maharashtra (2021) (hereinafter Satish case), in less than a week in January 2021, that have been heavily criticized by almost everyone as being bad in law. Later in February, the POCSO court in Mumbai also made some controversial remarks in its judgement. Let us discuss these cases in detail:

Satish v. the State of Maharashtra 

The Single Bench of Justice Pushpa V. Ganediwala acquitted a 32-year-old man of charges under Section 7 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), holding that the offence of sexual assault was not made out because there was no “skin-to-skin” contact. Sexual assault is defined in Section 7 of the POCSO as any non-penetrative sexual contact with the victim.

Sexual assault is defined in Section 7 of the POCSO as any non-penetrative sexual contact with the victim. Sexual assault carries a mandatory minimum sentence of three years in jail. The following are the ingredients that make up the offence. To begin, there must be a physical touch that is not penetrated. When a person touches a child’s vagina, penis, anus, or breast, or makes the child touch the vagina, penis, anus, or breast, this is referred to as physical contact. Second, physical contact must be made to be sexual.

The appellant’s conviction under Section 354 of the India Penal Code, 1860 (IPC), which imposes a minimum sentence of one year in jail, was upheld by the Court. Before the Criminal Law (Amendment) Act, 2013, Section 354 stipulated a maximum sentence of two years with no statutory minimum. In this case, the accused-appellant was accused of “pressing the breast” of the 12 – year-old prosecutrix, the fact that the prosecution dutifully demonstrated by adducing both circumstantial and direct evidence.

The Court stated that Section 7 conditions were not met because the survivor’s garments were not removed, and the appellant was unable to remove her underpants because she screamed, and bolted the room from the outside when he sought to do so. The act of the appellant would, at best, be an act of “outraging the modesty of a woman” as defined in Section 354 of the IPC, according to the Court. The judge further stated that the punishment imposed under Section 8 of the POCSO for the offence outlined in Section 7 is “disproportionate” to the gravity of the act and hence upheld the conviction only under Section 354, IPC.

While the Supreme Court’s stay in the Satish case is welcome, the message delivered by the Bombay High Court is still harmful.

Libnus v. the State of Maharashtra

In the Libnus case, the same Bench acquitted a 50-year-old man who had been convicted by the Special POCSO Court for holding a 5-year-old girl’s hand with his pants zip open. The survivor also informed her mother, PW-1, that the appellant had removed her penis from his pants and requested her to sleep with him. In this case, the appellant was found guilty of aggravated sexual assault under Sections 10 and 12 of the POCSO, as well as Sections 354A and 448 IPC.

Because the crime is done in specific “aggravating circumstances”, such as the victim’s tender age or a relationship of trust and confidence between the victim and the abuser, aggravated sexual assault has the same ingredients as Section 7. Section 10 has a five-year minimum sentence. Sexual harassment is defined in Section 11 of the POCSO, and it is punished in Section 12. Although both offences have the same name, the contents of Section 11 of POCSO do not strictly overlap with the ingredients of Section 354A of the IPC.

The appellant’s conviction under Sections 10 and 12 of the POCSO was overturned by the Bombay High Court, which found him guilty under Section 354A of the IPC. In this case, the judge took into account the severe minimum obligatory punishment specified in Section 10 of the POCSO and decided to convict under Section 354A (3) of the IPC, which has a maximum jail term of three years and no statutory minimum sentence. The Court also recognized that the appellant had already served five months in jail, which was “adequate” in light of the nature of his crime, and granted his release.

Meaning of non-penetrative sexual assault

Section 7 of POCSO is titled “sexual assault.” Because the term “assault” is not defined in the POCSO, it must take its definition from Section 351 of the IPC, which states that no physical contact is required for the offence of assault, except “skin-to-skin” contact. The definition of “force” in Section 349 of the IPC simply requires some physical contact with the other’s “body” or even “with anything that that other is wearing, that such contact effects that other’s sense of emotion…”.

Section 350 of the IPC defines intentional use of force as the force used “… to commit any offence.” Interestingly, although the wordings of the title of Section 7 of POCSO includes the word “assault,” the provision’s substance requires physical contact with the victim, implying that force must be used to bring the case within the scope of this section. As a result, notwithstanding the title’s use of the word “attack,” Section 7 refers to the use of unlawful force. The Court has offended both the legislative meaning of “force” and “criminal force,” as well as the long-established judicial interpretation of these expressions, by misinterpreting Section 7 to require “skin-to-skin.”

When comparing Section 7 of the POCSO and Section 354 of the IPC, it is impossible to conclude that what is an offence under the latter is not covered by the former.

Similarly, Section 354A (1)(i) of the IPC, which the Court found to be made out against the appellant in the Libnus case, required “physical contact and advances involving uninvited and explicit sexual overtures,” according to the Court. Both vocal and nonverbal sexual overtures are possible. As a result, what is a crime under Section 354A (1)(i) is also an offence under POCSO Section 7. 

Furthermore, based on the testimony of PW-1, the survivor’s mother, that the appellant had shown his penis to her daughter, the appellant’s behaviour is covered by Section 11/12 of POCSO, and the appellant’s conviction should have been upheld. Holding a child’s hand when the pant zip is exposed falls under the definitions of sexual assault (Section 7, POCSO) and sexual harassment (Section 354A (1)(i)).

While the phrases “physical contact” and “skin to skin contact” have yet to be defined in Indian law, many Indian High Court judgments have underlined how even the tiniest of actions committed with sexual intent can result in a conviction under Section 7. The Delhi High Court, for example, held in Ravi v. State (2018) that grabbing the child survivor’s hand with sexual intent was sexual assault.

The Delhi High Court, without delving into the details of whether the appellant had disrobed the child survivor or inserted his hand under her clothes, held that pressing the child survivor’s breast with sexual intent would amount to sexual assault under Section 7 and dismissed the appeal in Rakesh v. State (2018). The instant judgment, on the other hand, destroys the point of the provision by unnecessarily requesting specifics regarding skin-to-skin contact, and bestows enormous latitude on the criminal to get away with such a heinous act.

The defeat of the purpose of POCSO

Nature of POCSO

In the Satish case, because of the Act’s strict nature, the judge believed that “stricter proof and significant claims are required.” The POCSO is protective legislation that was adopted as a special provision according to Article 15(3) of the Constitution of India, in addition to being a strict law. The POCSO Act is self-contained, comprehensive legislation that protects minors against sexual assault, harassment, and other forms of abuse, according to the statement of objects and reasons and the Preamble of the Act.

In addition to the Act’s goal of protecting children and considering their best interests, the Model Guidelines issued by the Ministry of Women and Child Development under Section 39 of the POCSO Act categorically state that the Act recognizes “almost every known form of sexual abuse against children as punishable.” As a result, excluding a child grasping over his or her garments would be contrary to the legislation’s meaning. Furthermore, in cases of child sexual abuse (CSA), the meaning cannot and should not be reduced to this extent because the minor child’s consent is unquestionably lacking.

Chief Justice Dipak Mishra declared that when reading Section 2(d) of the POCSO Act in Eera through Manjula Krippendorf vs. State (Govt. of NCT of Delhi) and Ors (2017), “the ‘colour,’ ‘substance,’ and ‘context’ of legislation must all be considered when interpreting a social welfare statute. The Judge needed to break free from the constraints of rigid linguistic interpretation and clear the way for the legislative intention’s soul, and in that case, he needed to become a true creative constructionist Judge.”

The Supreme Court stated in the aforementioned ruling, while analyzing the provisions of the POCSO Act, that, “When two interpretations are practically possible, the one that serves to carry out the Act’s beneficent aim should be preferred; aside from that, the said interpretation should not unreasonably enlarge the scope of a provision. As a result, the Court had to exercise caution and caution in adopting a different reasonable reading.”

Availability of more severe punishment

The very purpose of the enactment of POCSO, as its name suggests, was the protection of children from sexual offences. However, The Court appears to be hesitant to impose the more severe punishment prescribed by the POCSO in both judgments, believing that the statutory minimum punishment under Sections 8 (three years imprisonment) and 10 (minimum five years imprisonment) is disproportionate to the gravity of the appellants’ actions. While the constitutionality of minimum mandatory sentences is being questioned in various jurisdictions, a constitutional court cannot avoid its obligation to convict under the appropriate provision of a penal statute without declaring the minimum mandatory sentence unconstitutional, cruel, and degrading.

Article 7 of the 1966 International Covenant on Civil and Political Rights stipulates that everyone has the right to be free from cruel, degrading, and inhuman punishment. In R v. Nur (2015), the Canadian Supreme Court determined the minimum mandatory sentence for firearms offences to be unconstitutional.

Presumption clause not given importance

Sections 29 and 30 of the POCSO establish a presumption of actus reus and mens rea, respectively, based on proving “foundational facts.” This effectively means that if the prosecution can show prima facie the presence of “foundational facts” by adducing cogent and trustworthy evidence, the burden shifts to the accused to prove his innocence by demonstrating the lack of mens rea. Importantly, this reverse duty can only be satisfied if the defendant meets the threshold of “evidence beyond a reasonable doubt,” which is normally borne by the prosecution. 

When a person is prosecuted under Section 7 of the POSCO Act, it is believed that the individual has committed the offence, according to Section 29 of the POSCO Act. Section 30, on the other hand, presumes that the accused was in a responsible mental state when the crime was committed. On a joint interpretation of these laws, it is clear that the accused bears the burden of proof in proving his innocence. Furthermore, Section 30(2) specifies that the accused must disprove these presumptions “beyond a reasonable doubt” rather than by a “preponderance of the evidence.”

The Court’s conclusion that “stricter proof” is required to uphold Satish’s conviction under Section 7/8 of the POCSO since the offence entails a more severe sentence flies in the face of the POCSO’s presumption of guilt. Even if we pretend that the artificial distinction between skin-to-skin touching and groping over garments is a real distinction, the accused must still establish beyond a reasonable doubt that the skin-to-skin touch did not occur. In the Libnus case, too, there is a complete lack of discussion of the issue of reverse onus.

Conclusion

More clear definitions are needed to be added in the statute of POCSO so that such interpretations are not made by the judiciary, which would ultimately defeat the ends of justice. While the desirability, utility, and constitutionality of mandatory minimum jail terms are controversial, no court has the authority to reject to convict an accused of any crime that falls precisely within the four corners of the statutory definition. While a punitive action should be understood strictly, no one who is affected by the plain terms of a penal statute should be let off lightly or penalized unduly for extraneous considerations and misinterpretation of the law. High Court decisions form and unshape the law of the land, and this cannot be done without careful consideration of statutory and case law. We, as a society, undoubtedly deserve better legal and rational judgements.

References 

• https://www.livelaw.in/columns/two-tales-of-judicial-indiscretion-recent-controversial-pocso-decisions-of-bombay-high-court-169135 
• https://www.news18.com/news/india/a-look-at-the-recent-controversial-sexual-assault-rulings-under-pocso-3393152.html 

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