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New Delhi: The Supreme Court on Thursday, November 18, quashed the controversial judgment of the Bombay high court which held that no offence of sexual assault under the POCSO Act was made out as there was no ‘skin-to-skin’ contact between the accused and the victim.
The Supreme Court said that the most important ingredient constituting sexual assault is sexual intent and not skin-to-skin contact with the child.
A bench headed by Justice U.U. Lalit set aside the high court judgment and said the act of touching the sexual part of the body or any other act involving physical contact, if done with sexual intent, would amount to sexual assault within the meaning of section 7 of the Protection of Children from Sexual Offences Act.
The purpose of the law cannot be to allow the offender to sneak out of the meshes of the law, the apex court said.
“We have held that when the legislature has expressed clear intention, the courts cannot manufacture ambiguity in the provision. It is right that courts cannot be overzealous in searching ambiguity,” the bench, also comprising Justices S. Ravindra Bhat and Bela M. Trivedi, said.
Sexual intent is a question of fact which is to be determined from the attendant circumstances, the court said, according to LiveLaw.
“For the interpretation of S.7 of the POCSO Act, we have referred to the dictionary and held that the word touch has been referred to with reference to the special parts of the body whereas the word ‘physical contact’ has been used for any other act, therefore the act of touching the sexual part of the body if done with sexual intent would amount to sexual assault within the meaning of S.7 of the POCSO Act,” Justice Trivedi said.
Section 7 of the POCSO Act 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.”
Justice Bhat delivered a separate concurring judgment.
“The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child. The construction of a rule should give effect to the rule rather than destroy it. Any narrow interpretation of the provision which would defeat its object cannot be accepted. The intention of the legislature cannot be given effect unless a wider interpretation is given,” the bench said.
Attorney General K.K. Venugopal had earlier told the apex court that the controversial verdict would set a “dangerous and outrageous precedent” and needed to be reversed.
The apex court said this is the first time that the Attorney General had filed an appeal on the criminal side.
Senior advocate Siddharth Luthra appeared for the convict in the case as an amicus curiae, while his sister, senior advocate Geeta Luthra, appeared for the National Commission of Women.
“I think this is the first time the Attorney General has challenged a judgment on the criminal side. Also this is the first time brother and sister opposed each other,” said Justice Lalit, according to LiveLaw.
The top court, which was hearing separate appeals of the Attorney General and the National Commission for Women (NCW), had on January 27 stayed the order which had acquitted a man under the POCSO Act.
Two judgments were passed by Justice Pushpa Ganediwala of the Bombay high court’s Nagpur bench, observing that groping a minor’s breast without skin-to-skin contact cannot be termed as sexual assault as defined under the POCSO Act.
The court had said that since the man groped the child without removing her clothes the offence cannot be termed as sexual assault but it does constitute the offence of outraging a woman’s modesty under section 354 of the Indian Penal Code.
The high court had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.
The verdict had controversially further held that mere groping will not fall under the definition of sexual assault.
The POCSO Act defines sexual assault as when someone “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”.
The court had held that this “physical contact” mentioned in the definition of sexual assault must be skin-to-skin or direct physical contact.
(With PTI inputs)