Disrobing POCSO Act: Satish versus State of Maharashtra

The Supreme Court has stayed a recent ruling of the Bombay High Court in a case related to sexual assault of a minor. The Bombay High Court had ruled in this case that there was no evidence of the perpetrator disrobing the child when he groped her, and therefore no offence under the POCSO Act was made out. VITI BANSAL explains why the Bombay High Court ruling goes against settled law and policy. 

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THE Bombay High Court, in Satish v. State of Maharashtra recently acquitted an accused from the offence of “sexual assault” under sections 7 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The accused had groped a child aged 12 years, yet the Bombay HC held that the act, “in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

Consequently, the court convicted the accused only under section 354 of the Indian Penal Code, (IPC), 1860.

PHYSICAL CONTACT

The Bombay HC held “physical contact without penetration” is an essential ingredient for an offence under section 7 of the POCSO Act.

Section 7 of the Act says 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 comma before “or does any other act” means that “physical contact without penetration” will only apply to the category of “any other act”. The relevance of a comma in interpreting a statute has been confirmed by the Supreme Court in Dr MK Salpekar v. Sunil Kumar Shamsunder Chaudhari. The case related to interpretation of section 13(3)v of the CP and Berar Letting of Houses Rent Control Order, 1949, which says, “…the tenant has secured alternative accommodation, or has left the area for a continuous period of four months and does not reasonably need the house;”

The counsel contended in this case that the phrase, “and does not reasonably need the house” is a condition for both situations—where the tenant has secured alternative accommodation as also where he has left the area for four months. The Supreme Court disagreed, and held that the comma before or is applicable only when the tenant “has left the area for a continuous period of four months”.

The Andhra Pradesh High Court has held that touching a private part of a minor with sexual intent is an offence in itself. Even the Karnataka High Court and Delhi High Court have held that touching a child with sexual intent completes an offence under section 7 of the POCSO Act. Therefore, it was improper on the part of Bombay High Court to read skin-to-skin contact as an additional requirement.

Similarly, in Satish v Maharashtra, the comma and or after “any other person” indicates that the phrase “physical contact without penetration” will only govern the situation where the actions of the accused fall within “any other act” with sexual intent. “Physical contact” is thus not a distinct requirement where an accused has touched the vagina, penis, anus, or breast of the child with sexual intention.

This interpretation is supported by the Andhra Pradesh High Court which has held that the word “or” divides section 7 of the POCSO Act into two parts, the first dealing with touching private parts of a child with sexual intent and the second dealing with any other act with sexual intent which involves physical contact without penetration and which also constitutes an offence of sexual assault. In other words, touching a private part of a minor with sexual intent is an offence in itself. Even the Karnataka High Court and Delhi High Court have held that touching or pressing the breast of a child with sexual intent will complete an offence under section 7 of the POCSO Act. Therefore, it was improper on the part of the Bombay High Court to read “physical contact” as an additional requirement for establishing an offence under section 7.

MEANING OF TOUCH

The Bombay High Court rightly notes the two essential ingredients required to be proved for a case to fall afoul of section 7: 1) sexual intent; and 2) touching of the vagina, penis, anus, or breast of the child. With respect to the second ingredient, the court found that without any evidence of disrobement or skin-to-skin contact, an offence under section 7 is not made out.

This understanding of “sexual assault” marks a perverse shift away from the existing understanding of the courts in India.

The court also found touching the minor victim’s breasts without proof of disrobement is a “minor offence” punishable under section 354 of the IPC. The court prescribed the minimum punishment, a one-year sentence of rigorous imprisonment. Such interpretations would leave minor boys remediless, as section 354 of the IPC is only available for female victims.

The High Court of Himachal Pradesh in Jagar Singh v. State of Himachal Pradesh, negated the requirement of skin-to-skin contact to invite section 7 of POCSO Act. Section 7 does not provide for the act of touching a naked vagina, naked penis, naked anus or naked breast of the child.

The court clarified that even touching the vagina, penis, anus or breast of the minor child while the minor is wearing clothes is sufficient to attract the provision.

A similar understanding is reflected in previous judgements of the Delhi, Madhya Pradesh, and even Bombay High Courts, where the act pressing the breasts of minor victims is seen to constitute the offence of “sexual assault” under the POCSO Act without disrobement as a requisite.

The Indian criminal laws fail to explicitly define “touching”, thereby leaving the scope for ludicrous interpretations, like in Satish v Maharashtra. In the United Kingdom, section 79(8) of the Sexual Offences Act, 2003, defines touching to include touching (a) with any part of the body, (b) with anything else, (c) through anything, and in particular, includes touching amounting to penetration. A clear stipulation of similar nature in the Indian codes can prevent farcical interpretations in the future.

SEVERITY OF CRIME

In any case, the distinction between skin-to-skin contact, and contact without disrobing, is uncalled for. Such interpretations trivialise sexual contact with minors. The court also found touching the minor victim’s breasts without proof of disrobement is a “minor offence” punishable under section 354 of the IPC. The court prescribed the minimum punishment, a one-year sentence of rigorous imprisonment when the maximum punishment could fetch five years in prison.

This interpretation is the result of a differential classification of an offence based on a crude understanding of its “proportionality”. In cases of groping of minor girls, the courts have charged the accused simultaneously under section 354 of the IPC and section 7 of POCSO. In Lok Prasad Limboo v. State of Sikkim related to similar charges, the sentences under the IPC and POCSO were carried out parallelly.

The High Court of Kerala, in Geetha v. State of Kerala set aside a bail order granted by a sessions judge, as it disparaged the severity of a sexual crime on the mere instance that the touch was through the dress of the victim. Therefore, the lack of skin-to-skin contact is not an appropriate indicator of the severity of a crime.

The Indian criminal laws fail to explicitly define “touching”, thereby leaving the scope for ludicrous interpretations, like in Satish v Maharashtra. In the United Kingdom, section 79(8) of the Sexual Offences Act, 2003, defines touching to include touching (a) with any part of the body, (b) with anything else, (c) through anything, and in particular includes touching amounting to penetration. A clear stipulation of similar nature in the Indian codes can prevent farcical interpretations in future.

CONCLUSION

Reducing bodily autonomy and integrity by making it contingent on a piece of cloth between the assaulter and the victim is revolting and also carries larger socio-legal implications. Satish v Maharashtra invalidates the sexual abuse of women and children and would dissuade them from reporting such crimes.

The POCSO Act is especially enacted to protect minors and young children. It is meant to serve as their guardian. Sexual offences against children are intrinsically severe due to the inherent vulnerability of the victim and the ability of an abuser to overpower them. Consequently, the act provides for higher degrees of punishments and other safeguards. As observed in Jagar Singh, it is well-settled law that when two interpretations are possible, then the interpretation in favour of the minors should be adopted by the court to meet the ends of justice.

The interpretation given by the Bombay High Court, based on an invalid technicality, would reduce the crime and affix lesser punishments on perpetrators. Furthermore, minor boys would be left remediless in a similar situation, as section 354 of the IPC is only available for female victims. Therefore, the present interpretation by the court also goes against the stated objectives of the statute.

A narrow interpretation of sexual assault undoes the years of work done by child rights and women’s rights groups and desperately needs to be revisited soon.

(Viti Bansal and Keshav Somani are undergraduate students at Gujarat National Law University. The views are personal.)

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