News Analysis India

Tag: Bombay HC judge

  • Bombay HC judge who delivered controversial verdicts gets one year fresh term as additional judge

    By PTI
    NEW DELHI: A Bombay High Court additional judge, who had delivered two controversial verdicts in sexual assault cases, was on Friday given a fresh one-year term as an additional judge, instead of two years as recommended by the Supreme Court collegium.

    Justice Pushpa Ganediwala’s fresh tenure would be effective from February 13.

    Her earlier tenure as an additional judge was to end on Friday.

    Last month, the Supreme Court collegium had withdrawn its approval to a proposal for the appointment of additional judge, Justice Ganediwala as a permanent judge of the court following her two controversial verdicts.

    The collegium had recommended that she be given a fresh term as an additional judge for two years.

    But the government issued a notification on Friday saying she has been given a fresh term as an additional judge for one year.

    Instead of asking the collegium to reconsider its recommendation of a fresh two year term, the government decided to extend the period by only one year, sources pointed out.

    Additional judges are usually appointed for two years before being elevated as permanent judges.

    The decision was taken after the judge faced flak for her interpretation of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

    Justice Ganediwala recently acquitted a man accused of groping a 12-year-old girl’s breast because he did not make skin-to-skin contact and days earlier, ruled that holding the hands of a five-year-old girl and unzipping the trousers do not amount to “sexual assault” under the POCSO Act.

    On January 27, the Supreme Court stayed the Bombay High Court order acquitting the man after Attorney General K K Venugopal said the order would set a dangerous precedent.

    The collegium headed by Chief Justice S A Bobde, at a meeting held on January 20, had okayed the proposal for making Justice Ganediwala a permanent judge.

    Besides the CJI, justices N V Ramana and R F Nariman are part of the three-member collegium, which takes decisions with regard to high court judges.

  • Opening pant’s zip not sexual assault under POCSO, says controversial HC Judge who gave ‘skin-to-skin contact’ ruling

    By PTI
    NAGPUR: The Nagpur bench of the Bombay High Court has ruled that holding the hands of a minor girl and opening of the zip of pants does not fall under the purview of ‘sexual assault’ or ‘aggravated sexual assault’ of the Protection of Children from Sexual Offences (POCSO) Act.

    The observation was made by a single bench of Justice Pushpa Ganediwala on January 15 while passing an order on an appeal filed by a 50-year-old man challenging a sessions court’s order convicting him for sexually assaulting and molesting a five-year-old girl.

    The convict, Libnus Kujur, was in October 2020 convicted under sections 354-A (1)(i) (outraging modesty) and 448 (house-trespass) of the IPC and sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POCSO Act.

    He was sentenced to five years in jail.

    In her judgement, Justice Ganediwala noted that while the prosecution has established that the accused entered the house of the victim with an intention to outrage her modesty or sexually harass her, it has not been able to prove the charge of ‘sexual assault’ or ‘aggravated sexual assault’.

    The high court noted that the definition of “sexual assault” under the POCSO Act says that there has to be “physical contact with sexual intent without penetration”.

    “The acts of ‘holding the hands of the prosecutrix (victim)’, or ‘opened zip of the pant’ as has been allegedly witnessed by the prosecution witness (mother of the victim), in the opinion of this court, does not fit in the definition of ‘sexual assault’,” Justice Ganediwala said.

    The high court further said that the facts of the present case are not sufficient to fix the criminal liability on the accused (Kujur) for the alleged offence of aggravated sexual assault.

    “At the most, the minor offence punishable under section 354-A(1)(i) of the IPC read with section 12 of the POCSO Act is proved against the appellant (Kujur),” the court said.

    The prosecution’s case is that Kujur had on February 12, 2018 entered the house of the victim when her mother had gone to work.

    When the mother returned from work, she found the accused holding the hand of her daughter with the zip of his pants open.

    The mother, while recording her evidence in the lower court, had said that her daughter had informed her that the accused person had removed his private part from the pant and asked the victim to come to bed for sleeping.

    The high court quashed Kujur’s conviction under sections 8 and 10 of POCSO Act, but upheld his conviction under the other sections.

    The court, however, said it was modifying the sentence and noted that Kujur has so far undergone five months in prison.

    “Considering the nature of the act, which could be established by the prosecution and considering the punishment provided for the aforesaid crimes, in the opinion of this Court, the imprisonment which he has already undergone would serve the purpose,” the court said.

    The court said the accused shall be set free if he is not required in any other case.

    Another judgment passed by Justice Ganediwala this month acquitting a 39-year-old man for groping a minor girl, noting that there was no “skin-to-skin contact with sexual intent” has faced severe flak.

    The Supreme Court had on Wednesday stayed operation of this order after Attorney General K K Venugopal mentioned the matter submitting that it was a very disturbing conclusion by the Bombay High Court.