SET ASIDE ‘SKIN TO SKIN’ CRITERION IN POCSO CASES, AG URGES TOP COURT
NEW DELHI: Attorney General KK Venugopal told the Supreme Court on Tuesday that making “skin to skin” contact a criterion to establish sexual assault against minors under the Protection of Children from Sexual Offences Act would set a dangerous precedent where a man who gropes a woman after wearing a glove cannot be held guilty.
The AG was addressing the Court in a petition against a judgment of the Nagpur bench of the Bombay high court which acquitted a man for groping a 12-yearold on the reasoning that there was no “skin to skin” contact.
NEW DELHI: Attorney General KK Venugopal told the Supreme Court on Tuesday that making “skin to skin” contact a criterion to establish sexual assault against minors under the Protection of Children from Sexual Offences (Pocso) Act would set a dangerous precedent where a man who gropes a woman after wearing a surgical glove cannot be held guilty and can escape even the minimum punishment of three years prescribed under the Act.
The top law officer was addressing the Court in a petition filed by him against a controversial judgment passed by the Nagpur bench of the Bombay high court on January 19 this year which acquitted a man for groping a 12-year-old on the reasoning that there was no “skin to skin” contact.
At the Attorney General’s instance, the Supreme Court stayed the judgment on January 27 and agreed to consider passing directions under Pocso Act to ensure such reasoning was not adopted by high courts to defeat the purpose of law. The high court’s order provoked widespread outrage.
The A-G emphasised that there were 43,000 Pocso cases reported last year and that the Bombay high court judgment, if used as a precedent, may have serious repercussions on several other trials.
AG Venugopal, addressing the bench of Justices UU Lalit and Ajay Rastogi said: “The intention of the legislature was not to protect the accused but
provide justice to minor victims. While passing this order, the judges (of the Bombay High Court) did not realize the farreaching consequences and the dangerous precedent this case will lay for the entire state.”
Explaining how this “skin to skin” criteria adopted by the High Court was open to misuse, Venugopal said, “If a person using surgical glove feels the entire body of a woman, including her private parts, he will escape the minimum punishable of three years for causing sexual assault under Pocso Act.”
Sexual Assault under Pocso is defined under Section 7 which 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.”
This offence carries a minimum punishment of three years extending up to five years.
The HC judgment in question dealt with sexual assault charge against a 39-year-old man for groping a minor victim through her clothing. The allegation was that on December 14, 2016 the accused, who was a neighbor, took the girl to his house, and groped her.
He was convicted by the trial court but on appeal, the high court said, “Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”
Later, a similar order was passed by the same high court bench in another case involving a Pocso offence where a man who held a minor’s hand and unzipped his pant was said to have done so with no sexual intent and acquitted of assault charges. That judgment was also under challenge by the Maharashtra government along with AG’S petition. The National Commission for Women also filed an appeal against the very judgment challenged by AG.
Commenting on the views taken by the HC, the AG said, “This is an outrageous judgment which is disturbing and should be set aside and punishment to the accused restored.”
The bench appointed senior advocate Siddharth Dave as amicus curiae (friend of Court) to assist in passing orders but realized that nobody represented the accused. The Court directed the Supreme Court Legal Services Authority to assign lawyers from their panel to represent the two accused and posted the matter for hearing on September 14.