This article is written by Ekata Deb, studying at Brainware University, Barasat and pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho.
Table of Contents
Introduction
This article discusses the implementation of Section 7 and Section 8 of the POCSO Act, 2012 and also narrates the importance of the POCSO act in today’s society. However, in 2021- a very ‘disturbing’ judgment came up in the month of January from Bombay High Court on the matter of Satish v. State of Maharashtra, wherein the court had held that to draw attraction to the offence under Section 7 of the POCSO Act, 2012 i.e. Sexual assault on children, skin-to-skin contact or direct physical contact is very much important, and on the basis of that the accused was acquitted from such a charge and only convicted under Section 354 IPC with a minimum punishment of 1 year along with other charges that had to run concurrently. Such a thing was mainly taken care of in the Bombay High Court order due to the benefit of doubt given to the accused arising upon some ambiguity or contradiction from the prosecution statements as laid down by the golden thread rule of criminal jurisprudence.
However, upon appeal at Hon’ble Supreme Court of India, the then Chief Justice SA Bobde had stayed the Bombay High Court order giving acquittal of the accused person. On 18th November, 2021, upon a case titled Attorney General of India v. Satish and others, the Hon’ble Supreme Court of India gave the final verdict clearly discussing the non-sufficiency of direct physical contact or skin-to-skin contact. The final verdict discusses that if there is the presence of any offending behavior of the perpetrator on a child i.e. any behavior having sexual intent or of similar inappropriate action, accompanied by an indirect touch, i.e no physical or skin-to-skin contact, such an act can attract Section 7 and punishment Section 8 of the POCSO Act, 2012 against the perpetrator. The apex court commented that the main objective of having such an act will get diluted if the court starts to put a strain on the implementation and operation of such statute laws.
Discussion on Section 7 and Section 8 of POCSO Act read with Section 354 of IPC
Section 7 of the POCSO Act, 2012 says 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.”
Section 8 of the POCSO Act, 2012 says “whoever commits a sexual assault shall be 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.”
Section 354 of the IPC, 1860 says. “Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force on 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.”
Importance of interpretation of ‘comma’ in the statute law
In the matter of Dr MK Salpekar v. Sunil Kumar Shamsunder Chaudhari, 1988 AIR 1841, 1988 SCR Supl. (2) 339 Hon’ble Supreme Court of India had already held the importance as well as the relevance of comma in statute law. Not delving deeper into this mentioned case, it is briefly placed that this instant case relates to Section 13(3) v of the CP and Berar Letting of Houses Rent Control Order, 1949. Where the counsel contended that, the phrase, and does not reasonably need the house is a condition meeting both the situations, as in when the tenant securing an alternative accommodation as well as has left the area for four months. The Supreme Court however had chosen to disagree stating the comma before or is applicable only when the tenant had already left the area for a continuous period of 4 months. The punctuation ‘comma’ in the sub-clause after “alternative accommodation” and before the rest of the sentence indicates that the last part of the sub-clause namely “and does not reasonably need the house” governs only the part of the sub-clause. However, this controversy is academic in nature because when a court is called upon to decide whether another building available to the tenant can be treated as alternative accommodation, it has to consider whether the other building is capable of reasonably meeting the requirements of the tenant on vacating the disputed premises. The adjective “alternative” by itself imports this as a condition. And this aspect has been thoroughly gone into by the courts below and necessary findings have been recorded against the appellant.
Similarly in this instance Section 7 of POCSO ACT, 2012, the comma placed before, “or does any other act” hereby clearly states that the physical contact without penetration is going to apply for categories of any other act. Here the fact of the importance of physical contact without penetration i.e. in other ways skin to skin contact with sexual intent was very much arbitrarily showed.
It is also a fact that, in criminal jurisprudence, nothing is an offence that is not specifically prohibited by law. Criminal Statutes are verily constructed upon strict adherence to the golden thread rule of presumption of innocence unless proved guilty until the law specifies the reverse onus of proof. Now that the statutes are definite but if there is an ambiguity, the benefit of doubt goes in favour of the accused, hence in the same way, the Bombay High Court order over the session trial on Satish v. State of Maharashtra seems to not sound that controversial, as the waves had turned out since 19th January, 2021.
However, the Hon’ble Supreme Court had set aside such an order of the Bombay High Court, and the entire legal dichotomy on the importance of sexual intent as a main ingredient over the physical contact to draw an offence under Section 7 of the POCSO Act and the subsequent punishment as mentioned in Section 8 of the POCSO Act.
Briefing of Bombay High Court Judgment
In the matter of Satish v. State of Maharashtra, on a POCSO issue, the Hon’ble Bombay High Court on 19th January 2021 had recently acquitted the accused from the offence of sexual assault under Sections 7 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
In this case, where the accused had caught hold of a child aged 12 years, confined her in his room and tried to outrage her modesty, the Bombay HC held that since such an act of outraging of modesty and touching inappropriately with sexual intent was not clearly citing any specific detail as to whether the salwar was removed or not, and also whether he inserted his hand inside top and pressed her breast, would not fall under the ambit of the offence of ‘sexual assault ‘attracting Section 7 and 8 of POCSO Act, 2012.”
Hence, with all the golden thread rules of the benefit of doubts and presence of ambiguity in the law, the Bombay High Court had verily convicted the accused only under Section 354 of the Indian Penal Code, (IPC), 1860 with only one year of rigorous punishment and a fine of Rs 500/-, in default to suffer one month of rigorous imprisonment. However, the accused was also convicted of other offences u/s 342 IPC i.e. punishment for wrongful confinement of only 6 months of rigorous imprisonment and a fine of Rs 500/-, in default to suffer one month of rigorous imprisonment.
Importance of physical contact v. sexual intent to draw Section 7 of POCSO Act
The Bombay High Court – Nagpur Bench in its ruling in January delivered by Justice Pushpa v. Ganediwala had held that, without any direct physical contact between the minor- prosecutrix and the accused that is when there is no skin to skin contact with sexual intent without penetration the accused would not be held guilty of sexual assault under Section 7 & punished under Section 8 of the POCSO Act, 2012. However, a three bench judge at the Supreme Court of India, by its judgment on 18th November, 2021 has set aside the said Bombay High Court judgment. The matter took its severity at the Apex court, after a day of the Bombay High Court ruling, when the Attorney General of India, K.K. Venugopal mentioned the matter terming the said judgment as ‘disturbing’ before the Supreme Court.
The bench then led by then Chief Justice of India, SA Bobde, stayed the acquittal of the accused under the POCSO Act. With the 18th November, 2021 judgment the Hon’ble Supreme Court of India had set aside the Bombay High Court’s interpretation. The Supreme Court commented that no judge should strain plain words mentioned on the statute that may likely destroy the legislative intent. The Nagpur- single Bench of the Bombay High Court had interpreted that the words physical contact under Section 7 of the POCSO means a direct physical contact that is skin-to-skin contact with sexual intent without penetration.
Discussion of Bombay High Court and final verdict on Satish v. State of Maharashtra
In the case of Attorney General for India v. Satish and another, the Hon’ble Supreme Court of India was hearing the appeals filed by the Attorney General of India, the National Commission of Women and the State of Maharashtra against the judgment of the Bombay High Court. Wherein, the Bombay High Court ruled out that, groping a child’s breasts without having skin to skin contact, that is touching a child’s breast covered by cloth with sexual intent would amount only up to molestation as per Section 354 of IPC, 1860 but never would amount to the grave offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. The single bench Judge of Bombay High Court Justice Pushpa Ganediwala sentenced the 39-year-old man under Section 354 of IPC, 1860 acquitting him from Section 7 and 8 of POCSO, 1860. Also, the quantum of punishment was minimum imprisonment of 1 year citing the benefit of doubt as the minor-prosecutrix being below 12 years could give a valid statement in the eyes of law. Moreover the single bench Bombay High Court had also cited a small contradiction in the words of Salwar and knickers from the mother of the Minor Prosecutrix here in the Prosecution witness no-01.
On 18th November, 2021, the bench comprising Justice Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi held that, if the word touch or physical contact under Section 7 of POCSO is restricted, then it will not just be too absurd but also the same will destroy the entire purpose of having such an act which is to protect the children from facing sexual offences. Hence such a ruling with the absurd interpretation not just limits the operating manual of the law to protect the citizens but also subverts the intention verily. While discussing Section 7 of the POCSO Act, the Apex court held that the Section covers both direct i.e. physical contact and skin-to-skin contact along with indirect contact i.e. without skin-to-skin contact. This is also a fact that the intention of touching a child inappropriately or touching a child with an offending behavior in itself is sufficient to attract Section 7 and Section 8 of the POCSO Act, 2012 against the offender, irrespective of the fact that, whether there was a direct physical contact or not. The Apex court chose to make a note that, “while such reasoning in the High Court Judgment trivializes insensitively the statute along with legitimizing an unacceptable behavior undermining a child’s dignity as well as autonomy by unwanted intrusions.
Conclusion
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC contained in the provisions pertaining to sexual offences, including the provision pertaining to ‘penetrative’ sexual assault contained in Section 375 of the IPC, which provides for the definition of Rape. In contrast, the POCSO Act goes beyond the IPC and provides for a specific provision dealing with the subject of ‘non-penetrative’ sexual assault; however, the same has been disabled by the absurd and redundant interpretation of the single judge, which is also disjointed from the legislative intent of the Parliament, which is evident from the Scheme of the Act itself.
References
- https://indiankanoon.org/doc/158325618/
- https://indiankanoon.org/doc/490863/
- https://main.sci.gov.in/supremecourt/2021/2286/2286_2021_32_1501_31537_Judgement_18-Nov-2021.pdf
- https://www.theleaflet.in/explainer-interpreting-sexual-assault-why-high-court-rulings-continue-to-shock-us-part-i/
- https://factly.in/review-sc-issues-directions-for-expeditious-adjudication-of-claims-related-to-motor-accidents-claims-tribunal/
- https://www.jurist.org/news/2021/01/india-supreme-court-suspends-bombay-high-court-judgment-on-definition-of-sexual-assault/
- https://www.theleaflet.in/disrobing-pocso-act-satish-versus-state-of-maharashtra/
- https://www.legalserviceindia.com/legal/article-4835-two-judgements-disrobing-pocso-act.html
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