This article is authored by Nidhi Bajaj, of Guru Nanak Dev University, Punjab. The article deals with the landmark judgement of the Supreme Court of India which set aside the skin-to-skin judgment of Bombay High Court and held that sexual intent is the main ingredient of offence of sexual assault in Section 7 of the POCSO Act.
In its judgment Attorney General for India v. Satish and another(2021), the Hon’ble Supreme Court set aside the judgment of Bombay High Court which held that skin to skin contact is a prerequisite for an offence of sexual assault to be made out under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The case arose out of appeals filed by the Attorney General of India, the National Commission for Women and the State of Maharashtra against two judgements of the Bombay High court, both authored by Justice Ganediwala. In this article, the author will highlight the facts, submissions made and the judgment given by the Supreme Court in this case.
Filing of appeals
Four Appeals were filed before the Supreme Court by the appellants – Attorney General for India, National Commission for Women, State of Maharashtra and appellant – accused Satish against the judgement dated 19 January 2021 passed by Bombay High Court (Satish v. the State of Maharashtra) holding that skin to skin contact is necessary to constitute an offence of sexual assault under Section 7 of the POCSO Act.
Another appeal was filed by the State of Maharashtra against the judgement of the same bench dated 15 January 2021 (Libnus v. the State of Maharashtra) wherein it was held that acts of ‘holding the hands of the minor girl’, or ‘opening the zip of pant’ do not constitute sexual assault under the POCSO Act. The Hon’ble Supreme Court heard and disposed of all the appeals together.
Facts: Satish v. State of Maharashtra (2021)
The victim, aged about 12 years had gone out to obtain Guava when the accused, a man residing in the neighbourhood took her to his house under the pretext of giving her Guava and then pressed her breast and tried to remove her salwar. When the victim shouted, the accused pressed her mouth. The informant in the case was the mother of the victim who lodged a complaint against the accused. The Special Court convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code, 1860 and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
The accused filed an appeal against the said order and judgment in the Bombay High court. In appeal, the High Court acquitted the accused under Section 8 of the POCSO Act and convicted him for a minor offence under Sections 342 and 354 of the IPC. Justice Ganediwala of Bombay High Court made the following observations in her judgment, “The act of pressing of breast of the child aged 12 years, in the absence of any specific details as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”
Facts: Libnus v. State of Maharashtra (2021)
In this case, the accused was charged with the offence of aggravated sexual assault. The victim was a girl aged 5 years and her mother was the informant in the case. When the mother and father of the victim were not at home, the accused Libnus came to their house asking for the father of the victim. On finding out that both parents of the child were out, he held the hands of the victim, lowered her pants and thereafter unzipped his pants and showed his penis to her and then asked her to lay down on the wooden cot. A complaint was lodged against the accused for offences under Sections 354-A (1)(i) and 448 of the IPC and Sections 8, 10 and 12 read with Section 9(m) and Section 11(i) of the POCSO Act. The Special court convicted and sentenced the accused-Libnus for offences punishable under Section 448 and 354-A (1)(i) of IPC and Sections 8 and 10 read with Section 9(m) and 12 of the POCSO Act. Aggrieved by the said order and judgment, the accused filed an appeal before the Bombay High court.
The High Court in the appeal filed by the accused-Libnus set aside the conviction for the offences under Sections 8 and 10 of the POCSO Act and upheld the conviction for the offences under Sections 448 and 354-A(1)(i) of IPC read with Section 12 of the POCSO Act. While interpreting Section 7 of the POCSO Act, the High Court relied on the principle of ejusdem generis to hold that the expression ‘any other act’ in the definition of ‘sexual assault’ under Section 7 of the Act encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned. The acts of ‘holding the hands of the prosecutrix’ or ‘opening the zip of the pant’ not being of the same nature or closure do not fit in the definition of ‘sexual assault’.
Submissions on the behalf of Appellants
Following submissions were made on the behalf of Appellants:
- The interpretation of the provisions of the POCSO Act as done by the Bombay High Court would have a devastating effect on society at large.
- All the alleged acts of the accused including taking the victim to his house, removing salwar, pressing breasts and mouth were acts amounting to ‘sexual assault’ within the meaning of Section 7 punishable with Section 8 of the POCSO Act.
- The interpretation of the word ‘physical contact’, as meaning ‘skin to skin contact’ is a narrow interpretation that defeats the very purpose and object of the POCSO Act.
- There was no scope for application of the principle of ejusdem generis and it should not be applied where it would defeat the very object of the statute.
- Section 7 includes two parts-first, is an act of ‘touching with sexual intent the vagina…’ and second, pertains to ‘any other act with sexual intent which involves physical contact without penetration’. Thus, it is clear that mens rea-the sexual intent of a person is the most important and material thing in case of offence of sexual assault.
- The words ‘touch’ and ‘physical contact’ in Section 7 have been used interchangeably by the legislature.
- In terms of Sections 29 and 30 of the POCSO Act, the court is required to presume the sexual intent on the part of the accused and it is for him to prove that he had no such intent or culpable mental state.
Submissions on behalf of accused
Following submissions were made on the behalf of accused:
- While relying on the case of Bandu Vithalrao Borwar v. State of Maharashtra(2016), the Learned Senior Advocate appearing for the accused submitted that the expression ‘sexual intent’ can not be confined to any predetermined format or structure and as the POCSO Act defines the term ‘sexual assault’, the definitions of words ‘assault’ or ‘criminal force’ as given under IPC cannot be imported into the POCSO Act.
- The first part of Section 7 i.e. the act of touching of private parts of the child may not require skin to skin to contact but the second part i.e.“ the other act with sexual intent which involves physical contact without penetration” requires ‘skin to skin’ contact which is to be proved by the prosecution.
- The presumptions under Sections 29 and 30 make it difficult for an accused to prove his innocence and so any interpretation other than strict interpretation would expand the offence which would go against the constitutional objective of Article 21.
- The Advocate for the accused invoked the ‘Rule of Lenity’ which requires the court to resolve an ambiguity in a criminal statute in favour of the accused by doing a strict or narrow interpretation.
- Lastly, there are a lot of contradictions in the oral evidence of informants and it would be risky to convict the accused on such sketchy evidence.
Important Legal provisions of POCSO Act
The Protection of Children from Sexual Offence Act, 2012 has been enacted to protect children from the offences of sexual assault, sexual harassment and pornography.
Section 7 defines ‘sexual assault’ as touching of the private parts (vagina, penis, anus or breast) of the child with sexual intent or making the child touch a person’s private parts or doing any other act with sexual intent which involves physical contact without penetration.
Section 8 provides ‘Punishment for sexual assault’ i.e. simple or rigorous imprisonment which shall not be less than three years but which may extend to five years, and fine.
Section 9 enumerates the cases where sexual assault is said to be aggravated sexual assault. For instance, clause (m) of Section 9 provides that whoever commits sexual assault on a child below twelve years is said to commit aggravated sexual assault.
It provides for punishment for aggravated sexual assault i.e. imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and fine.
The main issue in the case relates to the interpretation of Section 7 of the POCSO Act.
Analysis by the Supreme Court
- The Court observed that while interpreting a statute, such a construction has to be adopted which promotes the object of the legislation and prevents its possible abuse. The Court also observed that the POCSO Act was enacted to prevent children from sexual assault, sexual harassment and pornography.
- After analysing the dictionary meaning of the words ‘touch’ and ‘physical contact’, the court expressed its agreement with the submission of appellants that both words have been used interchangeably in Section 7 by the legislature.
- The Court agreed with the submission made on the behalf of accused that expression ‘sexual intent’ in Section 7 cannot be confined to any predetermined structure and is a question of fact to be decided in each case. The Court however rejected the submission that physical contact in Section 7 means skin-to-skin contact. Relying on the maxim ‘Ut Res Magis Valeat Quam Pereat’, the Court observed that any narrow interpretation which would defeat the object of a provision cannot be accepted. Interpreting the expression ‘physical contact’ to mean ‘skin-to-skin contact’ would lead to an absurd interpretation that could not have been the intent of the legislature. Such interpretation would frustrate the very object of the statute and would be very detrimental as the acts of touching the body of the child with gloves cloth or condoms would not amount to sexual assault under Section 7 even if they are committed with sexual intent.
- The Court observed that it is a settled position that penal statutes have to be construed strictly but it is equally settled that clauses of a statute should be construed with reference to the context and other provisions so as to make a consistent enactment of the whole statute relating to the subject matter.
- The Court refused to apply the rule of lenity and observed that it is a settled proposition of law that the statutory ambiguity should be invoked as a last resort of interpretation. Where the intention of the Legislature is clear, the courts can not manufacture ambiguity in order to defeat such intention. The Court held that there is no ambiguity or obscurity in Section 7 so as to invoke the Rule of Lenity.
Judgment of Hon’ble Supreme Court
A three-judge bench of the Supreme Court consisting of Justice Bela M. Trivedi, Justice U.U. Lalit and Justice S. Ravindra Bhatt heard the case and disposed of the five appeals. The majority judgement was authored by Justice Bela M. Trivedi on behalf of herself and Justice U.U Lalit and Justice Ravindra S. Bhatt delivered his concurring opinion separately.
Justice Bela M. Trivedi and Justice U.U. Lalit gave the following judgement:
- The most important ingredient for constituting the offence of sexual assault under Section 7 of the POCSO Act is ‘sexual intent’ and not skin-to-skin contact.
- The High Court erred in holding the accused-Satish guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court was wrong in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.
- Construing Section 7 of the POCSO Act on the basis of the principle of ‘ejusdem generis’ is wholly misconceived. Such a principle should be applied only as an aid to the construction of the statute and should not be applied where it would defeat the very legislative intent. Where the specific words used in the section exhaust a class, then it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words and such is the case with Section 7 of the POCSO Act.
- The fact that the accused took the victim to his house, lied to the mother of the victim about her whereabouts etc. having been proved by the prosecution entitled the Court to raise a presumption about the culpable mental state of the accused under Section 30 of the POCSO Act. The accused has failed to rebut such presumption and hence, sexual intent under Section 7 of the Act stands proved. Also, the act of accused of pressing breasts, removing salwar and of using force to press mouth having been proved, constitute sexual assault, punishable under Section 8 of Act.
- In the case of accused Libnus, the High Court has committed a grave error in holding that acts of “holding the hands of the prosecutrix” or “opened the zip of the pant” do not come under the definition of sexual assault. The Court held that such acts constitute sexual assault under Section 7 and the fact that the victim was below 12 years of age, the accused is guilty of commission of aggravated sexual assault under Section 9(m) of the Act and is liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act.
Justice Ravindra S. Bhatt’s opinion
- Justice Ravindra S. Bhatt in his concurring judgement pointed out the need to interpret the statute in the context of the circumstances that resulted in its birth. In his judgement, the Hon’ble judge resorted to the mischief rule of interpretation of statutes which provides that courts have to interpret the law so as to suppress the mischief and advance the remedy. He noted that the judgment given by Bombay High Court tends to continue the mischief that the Parliament wished to avoid.
- He also noted that in Section 7 of the POCSO Act, the term ‘physical contact’ is of wider import than the word ‘touching’ and is not limited to touch. The expression ‘any other act’ involving ‘physical contact’ may include direct physical contact by the offender, with any other body part of the victim except those mentioned in the first part of Section 7 and other acts such as the use of an object by the offender, engaging physical contact with the victim. Even no contact by the offender may come under the purview of the expression “any other act”. For example in a case where the victim is coerced to touch oneself.
- To determine whether touch or physical contact is made with sexual intent, one has to look at the surrounding circumstances. For instance, the nature of the relationship with the child, the length of contact, its purposefulness and whether there was a legitimate non-sexual purpose for the contact, place and conduct of the accused before and after such conduct are all relevant considerations. Courts have to keep in mind that sexual intent is not defined but is dependent on the facts of a case.
Order by the Supreme Court
The Supreme Court set aside the order passed by the Bombay High Court in the case of accused Satish and restored the order of the Special Court. The accused was convicted for the offences punishable under Section 8 of the POCSO Act and Sections 342, 354 and 363 of the IPC. The accused-Satish was directed to undergo rigorous imprisonment for three years and a fine of Rs.500/- and in default thereof to undergo simple imprisonment for one month for the offence under Section 8 of the POCSO Act. As the accused was sentenced for the major offence under Section 8 of the POCSO Act, no separate sentence was imposed upon him for the other offences under the IPC.
The accused-Libnus was convicted for the offences under Sections 354-A (1)(i) and 448 of the IPC as and for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act. The court directed him to undergo rigorous imprisonment for five years for the offence under Section 10 of the POCSO Act and to pay a fine of Rs. 25,000 and in default thereof to suffer simple imprisonment for six months. No separate sentence was imposed upon him for the other offences under the IPC and the POCSO Act.
In this case, the Supreme Court has given a landmark judgement by reversing the controversial judgements passed by the Bombay High Court which were heavily criticised for being bad in law. However, it is unfortunate the High Court in a country would pass such a judgment that makes a mockery of the law by completely disregarding the legislative history of the POCSO Act and the important objects that the Act seeks to achieve. To conclude, it is pertinent to mention the following observation made by Hon’ble Justice Ravindra S. Bhatt, “It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does”.
- Attorney General For India v. Satish and another(2021), Supreme Court of India
- Satish v. State of Maharashtra (2021) Bombay HC
- Libnus v. State of Maharashtra (2021), Bombay HC
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