POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent”

Supreme Court: In an important ruling on POCSO Act, the 3-judge bench of UU Lalit, Bela Trivedi* and S. Ravindra Bhat**, JJ has set aside the Bombay High Court (Nagpur Bench) judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’.

Case Trajectory

• In the case at hand, the accused had taken the 12-year-old victim to his house on the pretext of giving her guava, tried to remove her salwar and pressed her breast. He then pressed her mouth when she started shouting.
• On 05.02.2020, the Special Court convicted and sentenced the accused-Satish for the offences under Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’) and Section 8 of the Protection of Children from Sexual Offences Act, 2012.
• On 19.01.2021, Bombay High Court’s Nagpur Bench acquitted the accused for the offence under Section 8 of the POCSO Act and convicted him for the offence under Sections 342 and 354 of the IPC, sentencing him to undergo rigorous imprisonment for a period of one year and fine of Rs. 500/- for offence under Section 354 and six months imprisonment and fine of Rs. 500/- for the offence under Section 342 of IPC.
• Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail 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’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion had come from a woman judge.
• This prompted Attorney General for India K. K. Venugopal to approach the Supreme Court wherein he brought to the Court’s notice that the said judgment was likely to set “a dangerous precedent”.
• On 01.2021, the 3-judge bench of former CJ SA Bobde and AS Bopanna and V. Ramasubramanian, JJ had then stayed the said judgment

Justice Bela Trivedi, for herself and Justice Lalit

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”

-Justice Bela Trivedi

Interpretation of Section 7 of the POCSO Act

“The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7.”

Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “Skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature.

“The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act.”

Further, the first part of Section exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, 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, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act.

Why High Court’s “skin to skin” order was erroneous?

The High Court fell into error in case of the accused-Satish in holding him guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO 30 Act. The High Court while specifically accepting the consistent versions of the victim and her mother i.e. informant about the accused having taken the victim to his house, having pressed the breast of the victim, having attempted to remove her salwar and pressing her mouth, had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC.

The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.

The interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. The prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act.

The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. All these acts were the acts of “sexual assault” as contemplated under section 7, punishable under Section 8 of the POCSO Act.

“Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under Section 30 of the said Act.”

Justice S. Ravindra Bhat’s concurring opinion

“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.”

-Justice S. Ravindra Bhat

Not speaking for the sake of speaking, and thereby adding little value to Justice Trivedi’s analysis, Justice Bhat wrote a concurrent opinion, analysing the true import of Section 7 of the POCSO Act.

1. Touching by a person – with sexual intent – of four specific body parts (vagina, penis, anus or breast) of a child, or making a child touch any of those body parts of “such person” (i.e. a clear reference to the offender) or of “any other person” (i.e. other than the child, or the offender).
2. Any other act with sexual intent which involves physical contact without penetration.

“Contact”, which is used in the second limb, has a wider connotation; encompasses – but is not always limited to – ‘touch’. While it is not immediately apparent why the term ‘physical contact’ has been used in the second limb, its use in conjunction with “any other act” (controlled by the overarching expression “with sexual intent”), indicates that ‘physical contact’ means something which is of wider import than ‘touching’. Viewed so, physical contact without penetration, may not necessarily involve touch. The “other act” involving “physical contact” may involve: direct physical contact by the offender, with any other body part (not mentioned in the first limb) of the victim; other acts, such as use of an object by the offender, engaging physical contact with the victim; or in the given circumstances of the case, even no contact by the offender (the expression “any other act” is sufficiently wide to connote, for instance, the victim being coerced to touch oneself).

“Parliament moved beyond the four sexual body parts, and covered acts of a general nature, which when done with sexual intent, are criminalized by the second limb of Section 7. The specific mention of the four body parts of the child in the first limb, and the use of the controlling expression “sexual intent” mean that every touch of those four body parts is prima facie suspect.”

The idea of ‘contact’ by a person with another through their clothing would hence, imply a physical contact. This is because of a combined operation of Section 2(2) of POCSO and Section 349 of IPC. Crucially, neither Section 7 nor any other provision of POCSO even remotely suggests that ‘direct’ physical contact unimpeded by clothing is essential for an offence to be committed.

The fallacy in the High Court’s reasoning is that it assumes that indirect touch is not covered by Section 7- or in other words is no “touch” at all. That provision covers and is meant to cover both direct and indirect touch.

“The reasoning in the High Court’s judgment quite insensitively trivializes – indeed legitimizes – an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.”

[Attorney General for India v. Satish, 2021 SCC OnLine SC 1076, decided on 18.11.2021]

Counsels:

K.K. Venugopal, Attorney General for India,

Senior Advocate Siddharth Luthra, appearing on behalf of the accused through Supreme Court Legal Services Committee,

Amicus curiae: Senior Advocate Siddhartha Dave

Judgment by*Justice Bela Trivedi and **Justice S. Ravindra Bhat