SC quashes Bombay HC judgment on ‘skin-to-skin’ contact for sexual assault under POCSO

In a breaking development pertaining to 'skin-to-skin contact' judgment, on November 18 the Supreme Court set aside the controversial Bombay High Court's (Nagpur Bench) order. While upholding the trial court's verdict of convicting the accused, Satish, the Apex Court held that the main ingredient of Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is sexual intent and not skin to skin contact. 

'Sexual intent is main ingredient, not skin-to-skin contact': Supreme Court

A bench comprising Justice UU Lalit, Justice Ravindra Bhat and Justice Bela M Trivedi pronounced the judgment in the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the judgement of the Bombay High Court.

"In the interpretation of section 7 of the POCSO Act, we have referred to dictionary meaning. The word 'touch' is with reference to sexual contact. Physical touch with sexual intent will be sexual assault under POCSO Section 7. The most important ingredient of section 7 is sexual intent and not skin to skin contact," the Bench orally observed. 

"The Act of touching any sexual part of a child with sexual intent cannot be taken away from the purview of section 7 of the POCSO Act," the three-judge bench of the Top Court added.

Bombay HC's 'skin-to-skin contact' POCSO judgment

In the case at hand, Pushpa Ganediwala of the Bombay HC (Nagpur Bench) had ordered held that groping a minor's breasts without the element of skin touching cannot be deemed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act and the misdeed would conclude as molestation. The Attorney General of India, KK Venugopal, along with the National Commission for Women (NCW) had challenged the order on the account of setting a 'dangerous precedent'. 

The Bombay HC had modified the order of a sessions court that had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting the 12-year-old girl. As per inputs of the prosecution and the minor victim's testimony in court, in December 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat. He allegedly then groped her breast and attempted to remove her clothes. However, since he groped her without removing her apparels, the HC did not term the act as sexual assault, instead, it termed it as an offence of outraging a woman's modesty under IPC.

On January 15, Justice Pushpa Ganediwala had also acquitted a 50-year-old observing that holding the hand of a five year old girl and unzipping pants in front of her did not amount to sexual offence under POCSO. As per the court order, the victim's mother testified that her daughter had informed her that the convict "removed his penis from the pant and asked her to come to the bed for sleeping". However, Justice Ganediwala set aside the POCSO charges and directed that the convict should be set free.

Justice Pushpa Ganediwala's permanent stature revoked

Subsequent to a batch of impugned orders by the judge, the Supreme Court Collegium withdrew its recommendation to the Centre to make Justice Pushpa Ganediwala a permanent judge of the Bombay High Court. This came to the fore after recent verdicts pertaining to applicability of POCSO Act drew flak. Justices DY Chandrachud and AM Khanwilkar reiterated their strong reservations regarding her permanent status, despite having approved by the SC Collegium.