The apex child rights body of the nation, National Commission for Protection of Child Rights (NCPCR), has asked the Maharashtra government on Monday (25 January) to file an urgent appeal against Bombay High Court's recent judgment that an act cannot be termed as sexual assault if there is no "skin-to-skin" contact, reports India Today.
The Bombay High Court had earlier acquitted a 39-year-old man imprisoned for three-years by a trial court under Section 8 of Protection of Children from Sexual Offences (POCSO) for pressing the breasts of a minor.
The judgement has drawn the criticism from child rights bodies and activists across the country.
The court held that an offence cannot be called ‘sexual assault’ if there is ‘no direct physical contact, that is, skin to skin with sexual intent, without penetration.
NCPCR Chairperson Priyank Kanoongo stated that the words "skin-to-skin with sexual intention without penetration" in the judgment also need to be reviewed and the state should take note of this as it seems to be derogatory to the minor victim in the case.
Justice Pushpa Ganediwala from the Nagpur bench of the High Court claimed that the strict punishments of three-five years’ imprisonment for sexual assault under POCSO call for “stricter proofs and stringent allegation.”
“Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The act of pressing of 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 the top and pressed her breast, would not fall in the definition of ‘sexual assault,” Justice Ganediwala was quoted in the report.
However, the concerned offender will be convicted for a solitary year in jail for molestation under Section 354 of the Indian Penal Code (IPC).
The court has, therefore, in the said case, differentiated between the offence of molesting a minor from over her clothes, as opposed to the same action with clothes removed or slipping hands inside the clothes. Using this loophole, offenders can escape more stringent punishments under POCSO as opposed to the IPC.
In the said case, while specific details regarding removal of clothes weren’t clear, public prosecutor M J Khan argued that acts of ‘pressing of breasts’ and ‘attempt to remove salwar’ should fall under the definition of ‘sexual assault’ as per Section 7 and punishable under Section 8 of the POCSO Act.
However, the court claimed that “it was not possible to accept” the prosecutor’s submission and asserted that the “basic principle of criminal jurisprudence is that punishment shall be proportional to seriousness of crime.”
The concerned man was sentenced last February under Section 8 of the POCSO act and under Section 354 in Nagpur against which he appealed.
Now, the High Court has issued a non-bailable warrant against him and stated that other sentences against him will be active concurrently. However, the person will be entitled for a set-off of the time that he has already spent in the custody.
As you are no doubt aware, Swarajya is a media product that is directly dependent on support from its readers in the form of subscriptions. We do not have the muscle and backing of a large media conglomerate nor are we playing for the large advertisement sweep-stake.
Our business model is you and your subscription. And in challenging times like these, we need your support now more than ever.
We deliver over 10 - 15 high quality articles with expert insights and views. From 7AM in the morning to 10PM late night we operate to ensure you, the reader, get to see what is just right.
Becoming a Patron or a subscriber for as little as Rs 1200/year is the best way you can support our efforts.