By PTI
NEW DELHI: Touching sexual parts of a child’s body or any act involving physical contact with ‘sexual intent’ amounts to ‘sexual assault’ under Section 7 of the POCSO Act as the most important ingredient is sexual intent and not skin-to-skin contact, the Supreme Court said on Thursday.
Quashing the controversial ‘skin-to-skin’ judgements of the Bombay High Court in two cases under the POCSO Act, the apex court said the high court erred in holding that there was no offence since there was no direct physical ‘skin to skin’ contact with sexual intent.
The high court had held that no offence of sexual assault under the POCSO Act was made out if there was no direct skin-to-skin contact between an accused and victim.
The POCSO Act defines sexual assault as when someone “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 apex court said the act of touching any sexual part of the body of a child with “sexual intent or any other act” involving physical contact with sexual intent, could not be trivialised or held insignificant or peripheral so as to exclude such act from the purview of ‘sexual assault’ under Section 7 of the POCSO Act.
“The word ‘Touch’ has been used specifically with regard to the sexual parts of the body, whereas the word ‘physical contact’ has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with ‘sexual intent’ would amount to ‘sexual assault’ within the meaning of Section 7 of the POCSO Act,” the top court said in its 53-page judgment said.
A three-judge bench headed by Justice U U Lalit said any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted.
“Restricting the interpretation of the words ‘touch’ or ‘physical contact’ to ‘skin to skin contact’ would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.
“Skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature,” said Justice Bela M Trivedi, who wrote the judgement on her and Justice Lalit’s behalf.
Justice Bhat, who wrote a separate concurring judgment, said Section 7 of POCSO has to be viewed having regard to the mischief rule, the background and history leading up to the enactment of the legislation.
“The reasoning in the high court’s judgment quite insensitively trivializes – indeed legitimizes an entire range of unacceptable behaviour which undermines a child’s dignity and autonomy, through unwanted intrusions.
“The high court, therefore clearly erred in acting on such interpretation, and basing its conviction of and awarding sentence to the respondents; as it did they were guilty of sexual assault,” Justice Bhat said.
The top court said the very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act.
“As in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act.”
The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child,” the bench said.
It said the law would have to be interpreted having regard to the subject matter of the offence and to the object of the law it seeks to achieve.
The purpose of the law cannot be to allow the offender to sneak out of the meshes of law, the apex court said.
“The Court can not be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and may also have an adverse effect on their mental state.”
“The suffering of the victims in certain cases may be immeasurable. Therefore, considering the objects of the POCSO Act, its provisions, more particularly pertaining to the sexual assault, sexual harassment etc. have to be construed vis-a-vis the other provisions, so as to make the objects of the Act more meaningful and effective,” the bench said.
Justice Trivedi said that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it.
“It is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse. It is also trite that a court should not be over zealous in searching for ambiguities or obscurities in words which are plain,” she said.
The bench said it clearly emerges that the high court fell into error in case of the accused Satish in holding him guilty for the minor offences under Sections 342 (Punishment for wrongful confinement) and 354 (Assault or criminal force to woman with intent to outrage her modesty) of Indian Penal Code and acquitting him for the offence under Section 8 of the POCSO Act.
It quashed and set aside the two judgments of the high court and convicted Satish for the offences punishable under Section 8 of the POCSO Act and under Sections 342, 354 and 363 (Punishment for kidnapping) of the IPC.
In the other case, the apex court convicted the accused Libnus Kujur under Sections 354-A (1)(i) and 448 (punishment for house-trespass) of the IPC as also for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act.
It is, therefore, no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.
The top court’s judgement came on separate appeals filed by the Attorney General and the National Commission for Women (NCW).
The two judgments were passed by Justice Pushpa Ganediwala of the Bombay High Court (Nagpur Bench).
The verdict had said that groping a minor’s breast without skin-to-skin contact cannot be termed as sexual assault as defined under the POCSO Act.
It had said that since the man groped the child without removing her clothes the offence cannot be termed as sexual assault but it does constitute the offence of outraging a woman’s modesty under IPC section 354.
