HC order ‘bad in law’, say child rights experts

Court acquitted man charged under POCSO Act

Published - January 25, 2021 11:12 pm IST - Mumbai

Child rights experts have termed “bad in law” a recent order of the Nagpur Bench of the Bombay High Court acquitting a man charged under the Protection of Children from Sexual Offences (POCSO) Act. The Bench said, “There is no direct physical contact, i.e. skin to skin, with sexual intent without penetration.”

Justice Pushpa Ganediwala’s 14-page order acquitting the man charged under Section 8 (punishment for sexual assault) of the POCSO Act and convicting him for a “minor offence” under Section 354 (assault or criminal force to woman with intent to outrage her modesty) of Indian Penal Code (IPC) has led to an outcry.

The court held, “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 Abhay Thipsay, retired judge of the Bombay High Court, said, “The order is not sound in law. There is no basis for saying ‘no direct contact through skin to skin’. What if the person was wearing hand gloves or a condom, then can it be said that there was no skin to skin contact. The reasoning is whimsical.”

Justice Thipsay said there was no argument from the appellant’s side on the point of the applicability of Section 8 of the POCSO Act. “The order does not mention any reasoning or rationale for why it could not have been applied. It is a little absurd as there seems to be no basis for the conclusion held by the judge on such a vital issue,” he said.

Pravin Ghuge, former chairperson of the Maharashtra Child Rights Commission, said if a person is held guilty under Section 354 of IPC, then Section 8 of the POCSO Act is applicable. “The entire idea behind the legislation is to protect children and if the courts apply IPC and not POCSO in a case that involves the minor, the purpose of the Act is defeated,” he said.

Uma Subramanian, a child rights activist who works for the NGO Aarambh, said the order was an “absolutely horrible interpretation of the law”. “In the POCSO Act, even an ‘attempt’ towards sexual assault is punished, then how can it be said that there was no ‘sexual intent’ when the man is convicted under Section 354 of IPC?” she asked.

Ms. Subramanian said the judgment was bad in law due to its emphasis on “skin to skin” contact. “How then will one punish all ‘non-touch offences’ like showing pornography, peeping, making gestures? Under which sections would all this fit into?” she asked. The order does not keep in mind the best interest of the child, which is the main objective of the Act, she said.

Santosh Shinde, child rights activist who runs the NGO Vidhyak Bharti, said, the order is advantageous to the accused. “This will pave the way for all those charged under Section 8 of the Act to be acquitted. Therefore, I urge the State government to go in appeal against the order,” he said.

Advocate Kriti Awasti, who fights POCSO cases in Delhi, said Section 8 had been wrongly interpreted. “Once a person is held guilty under Section 354, it shows his sexual intent, which makes Section 8 applicable. There has been no mention of clothes or without clothes in the Act, so the need for ‘skin to skin’ assault is not needed. The interpretation is flawed.”

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