This article is written by Nupoor Agarwal, 2nd year BBA LLB (Hons.) student of School of Law, NMIMS, Navi Mumbai during her internship with LeDroit India.
The Bombay High Court in Satheesh Vs State of Maharashtra (Criminal Appeal 161/2020) acquitted the accused under Section 7 read with Section 8 of the POCSO Act and instead found him guilty under Section 354 of the Indian Penal Code, 1860. The accused was found guilty of attempting to remove the victim’s salwar and squeezing her breast. When there was no precise description regarding the 12-year-old victim’s top being removed, Justice Pushpa V. Ganediwala commented that the act of the accused squeezing her breasts would not be considered sexual assault under Section 7 of the POCSO Act. Instead, it would be a violation of Section 354 of the IPC, which punishes outraging a woman’s modesty. The court reasoned that because the victim’s top was not removed, the act did not qualify as sexual assault because there was no direct physical contact, such as skin-to-skin with sexual intent but no penetration.
The court based its decision on the principle of proportionality in terms of punishment, noting that Section 354 carried a minimum prison sentence of one year, whereas Section 8 of the POCSO Act carried a minimum prison sentence of three years, if a person was convicted of sexual assault. The punishment for an offence must be proportionate to the nature of the crime, according to Justice Ganediwala. The court ruled that the accused’s conduct is covered by Section 354 and that the punishment must be commensurate to the crime. Section 354 of the Indian Penal Code states:
“Assault or criminal force to woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
A cursory reading of the provision reveals that it is designed exclusively for a woman, although the POCSO Act was established to protect all children, regardless of sex or gender. As a result, Section 7 is gender-neutral, but Section 354 was created specifically for female victims. This prompts the question: what if the victim in the factual matrix was a minor male? What decision would the Bombay High Court have made in that case? If the victim was a 12-year-old boy and the accused attempted to press his anus while the boy was still dressed, the accused could not be found guilty under Section 354 because the victim was not a woman.
Touching a child’s anus or breasts with sexual intent is prohibited under Section 7. Section 7 covers vaginal, penis, breast, and anus. If a Maharashtra Special Court (POCSO) or a different bench of the Bombay High Court had found an accused guilty under Section 7 for pressing the anus, with sexual intent, of a fully clothed 12-year-old boy, there would be a disparity in the treatment of different private parts of a child’s body under Section 7.
In other words, when a woman’s breasts are stroked while wearing a top, the case is filed under Section 354 for outraging a woman’s modesty, whereas when a boy’s anus is touched while wearing shorts or pants, the case is filed under Section 7 for sexual assault. This can result in not just gender discrimination, but also differential treatment of the breast and anus, making the supply discriminatory in and of itself. How would the courts react if the accused had pressed the anus of a girl with sexual intent while she was clothed? Is that a violation of Section 354 or Section 7? How will Maharashtra’s lower courts (POCSO) cope with such legal entanglements?
This may result in judicial ambiguity and possibly loopholes through which counsel for accused persons in Maharashtra may be able to utilise Satheesh Vs State of Maharashtra as a judicial precedent to argue for acquittal and avoid punishment for sexual assault under Section 8 of the POCSO.
Thus, the decision of the Bombay High Court to acquit a man charged with assault under the Protection of Children from Sexual Offences Act (POCSO) purely on the basis that he groped the kid over her clothes without ‘skin-to-skin’ contact was overturned by the Supreme Court.
The act of touching a sexual part of the body with sexual intent will not be trivialized and will not be excluded under Section 7 of the POCSO Act, Justices U.U. Lalit, S. Ravindra Bhat, and Bela M. Trivedi ruled.
“Whoever, with sexual intent, touches the vagina, penis, anus, or breast of the child, or makes the child to touch the vagina, penis, anus, or breast of such person or any other person, or does any other act with sexual intent that involves physical contact without penetration is said to commit sexual assault,” according to Section 7.
“The purpose of law is not to allow the offender to sneak out of the mesh of law,” wrote Justice Trivedi. Limiting the scope of “contact” to a “narrow and pedantic” definition, the court added, would lead to an “absurd interpretation.”
The SC had questioned the interpretation of touch during the hearings. “What does touch mean, simply a touch? Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that Parliament intended,” the Court noted.
According to the provision, sexual assault includes (a) the existence of sexual purpose, (b) touching or causing a child to touch the accused’s private parts described in the section, and (c) any other conduct with sexual intent including physical contact without penetration.
The Delhi High Court held in Ravi v. State (2018) SCC Online Del 11182 that catching a child’s hand with sexual intent is sexual assault.
In Crime No.503/2014 Of Kumbla v. By Adv. Sri.Kodoth Sreedharan CRL.A.No. 898 of 2015, the Kerala High Court found a salesperson guilty of sexual assault under Section 7 for grabbing the victim and attempting to embrace her after she brought him a glass of water.
The court stated that this action falls under Section 7’s second part, which defines any act done with sexual purpose that involves physical touch. While upholding a conviction for sexual assault under Section 7 read with 8, the Sikkim High Court stated in Damber Singh Chettri v. State of Sikkim MANU/SI/0046/2018 thatmere touch would not result in injury but coupled with sexual intent it would bring home the offence.
The Karnataka High Court held in Nagappa & Nagaraj vs The State of Karnataka Criminal Appeal No.200080/2018 that the accused’s actions of taking the victim on his motorcycle to a land and tying her hands and feet did constitute sexual assault because the accused was attempting to commit rape, despite the fact that the accused was interrupted by another witness and no evidence was presented that the victim’s clothing was removed. What is obvious in all of these decisions is that when attempting to establish a sexual assault offence under Section 7, these jurisdictions place a premium on the presence of sexual intent.
Physical contact by an accused would fall under Section 7 if there was sexual intent. The Bombay High Court, on the other hand, placed an incorrect emphasis on the aspect of physical contact, particularly direct physical touch, i.e., skin to skin contact, despite the fact that sexual intent was not present. The actions of the accused in trying to remove the salwar and pressing the victim’s breasts, as proven by the other referenced examples, reveal a presence of sexual intent, which should draw Section 7.
However, the Bombay High Court did observe that as it could not be made out that the top of the victim was removed, it could not be said that there was direct physical contact without penetration, completely negating the element of sexual intent.
It’s important to remember that POCSO was established under Article 15 of the Indian Constitution, which grants the government the authority to enact specific laws for the protection of children. The phrase “children” is intended to be gender-neutral. The Bombay High Court’s decision could set a dangerous precedent since it considers direct physical contact to be the most important criterion for sexual assault under Section 7, rather than the presence of sexual intent.
Furthermore, it has the potential to lead to gender discrimination and differential treatment of the various private parts described in Section 7, making the rule self-discriminatory. If lower courts take this as precedent, it will put all children in Maharashtra in grave danger, and the legal intent underlying the POCSO Act will be thrown out. Thus, the apex court’s stay of the Bombay High Court’s judgement is critical, and it is even more critical that it be overturned.
