The Supreme Court stayed the controversial judgment of Justice Pushpa Ganediwala from Nagpur Bench of Bombay HC which ruled that an act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of sexual assault under Section 7 the Protection of Children from Sexual Offences Act (POCSO).
Attorney General KK Venugopal mentioned that matter submitting that “it is a very disturbing conclusion” and order was stayed by a Bench headed by Chief Justice of India, SA Bobde . The Apex court thus ordered,
“Bombay High Court has apparently acquitted the accused under Section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin-to skin contact. Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit AG Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under Section 8 of POCSO Act. Issue notice to accused returnable in two weeks.”
Bombay High Court’s Observations and Order
Court was considering the question whether pressing of the breast without removing the top of the child would fall within the definition of sexual assault defined under Section 7 of the POCSO Act.
The Section 7 of the Act states for Sexual Assault, “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.“ The Court concluded that the necessary ingredients for constituting the offence was that the act must have been committed with sexual intent and it must involve touching the vagina, penis, anus or breast of the child or ‘any other act’ which are similar to the acts specifically mentioned in the provision.
“The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis.’ The act should be of the same nature or closure (sic) to that”, the Court opined.
The Court further ruled,
“Section 7 of the POCSO Act, defines sexual assault and the minimum sentence provided is three years and Section 354 of the Indian Penal Code, which is related to outraging the modesty of a woman, prescribes minimum sentence of one year. In the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fit into the definition of the offence as defined in Section 354 of the Indian Penal Code”.