Bombay HC’s skin-to-skin contact judgment stayed after AG makes oral mention, describes it as disturbing

The Supreme Court Wednesday stayed the Bombay High Court’s controversial order holding that an act that does not involve skin-to-skin contact, cannot be termed sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

A bench led by CJI SA Bobde also stayed the acquittal of the accused under POCSO and issued notice to the accused.

The order came to be passed by the CJI on an oral mentioning by Attorney General KK Venugopal who submitted that the high court’s order was very disturbing and set a dangerous precedent.

Earlier, the National Commission for Protection of Child Rights (NCPCR), an apex child rights body, wrote to the Maharashtra government urging it to file an appeal against the Bombay High Court’s Nagpur bench order.

The National Commission for Women (NCW) also condemned the order of the High Court and said “The judgment will not only have cascading effect on various provisions involving safety and security of women in general but also put all the women under ridicule and has trivialized the legal provisions provided by the legislature for the safety and security of women”.

The Bombay High Court recently held that the act of pressing the breast of a child in the absence of any specific detail as to whether the top was removed or whether the accused inserted his hand inside the top and pressed her breast, would not fall under the definition of ‘sexual assault’ as provided under the POCSO Act.

Acquitting the accused of sexual assault under the POCSO Act, Justice Pushpa V. Ganediwala said there was no direct physical contact, i.e. skin-to-skin with sexual intent without penetration, by the man, who under the pretext of giving the child a fruit at his house, pressed her breasts and attempted to remove her salwar.

The Court, however, upheld the conviction of the accused under Section 354 (Assault or criminal force to woman with intent to outrage her modesty) of the Indian Penal Code (IPC).

It also maintained the sentence of the accused under Section 342 (Punishment for wrongful confinement) of the Indian Penal Code i.e. six months and fine of Rs.500/.

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