SC puts on hold Bombay HC order that stated minor's groping not sexual assault since no "skin-to-skin contact"

Supreme Court of India. File Pic

Supreme Court stayed the acquittal order of the accused in the case where Nagpur Bench of Bombay High Court had said that groping a minor's breast without "skin to skin contact" can't be termed as sexual assault as defined under Protection of Children from Sexual Offences (POCSO) Act, on Wednesday.

A Bench headed by the Chief Justice of India SA Bobde also issues notice to the accused in the case, seeking his response in two weeks.

The Attorney General K.K. Venugopal on Wednesday moved SC challenging a Bombay High Court judgment acquitting a person under POCSO, after he pressed a girl's breast over the dress stating there was no skin-to-skin contact.

The AG submitted before a bench headed by Chief Justice SA Bobde that the judgment is "disturbing and it would set a dangerous precedent".

After a brief hearing in the matter, the top court stayed the January 19 order of the Nagpur bench of Bombay High Court, which acquitted the accused under Section 8 of POCSO.

The bench also issued notice to the accused and allowed the AG to file a special leave petition challenging the High Court order.

"The AG has brought to notice a judgment of Bombay High Court Nagpur bench dated January 19, 2021, in which the court has acquitted the accused under 8 section of POCSO on the ground that the accused had no sexual intent in committing offence...and there was no direct physical contact (skin to skin contact)" said the top court.

The AG submitted that the order in question is likely to set a dangerous precedent. "In these circumstances, we permit the AG to file an appropriate petition against the said order. In the meanwhile we stay the acquittal of the accused so far as offence under section 8 of the POCSO. Issue notice to the accused returnable two weeks," said the top court.

The Bombay High Court had previously ruled that groping without ‘skin to skin' contact is not sexual assault as defined under POCSO Act. The ruling was pronounced by a single judge bench of Justice Pushpa Ganediwala.

Giving the judgment, the Nagpur bench of Bombay HC ruled that there must be physical contact "i.e skin-to-skin contact with sexual intent without penetration" and mere groping would not amount to sexual assault under the POCSO Act. The court opined that touching a minor's chest would not amount to sexual assault unless the accused removed the top worn by the child or slid their hand within the child's garment.

The matter before the court was a criminal appeal filed by a man who was convicted of sexually assaulting a 12-year-old girl by pressing her chest and partially stripping her.

The accused was acquitted under section 8 of the POCSO Act which would attract a minimum punishment of three years. The court convicted him of one year of rigorous imprisonment under Sections 354 (outraging a woman's modesty) and 342 (wrongful confinement) of the Indian Penal Code.

(with inputs from agencies)