“Sexual intent” needed to addressed in POCSO cases: SC
Reverses Bombay HC order
New Delhi, Nov. 19 (Delhi Crown): In crimes involving sexual conduct with children, the Supreme Court has made a key observation saying what needed to be addressed under Section 7 of the POCSO (, Protection of Children from Sexual Offences) Act was “sexual intent” and not “skin to skin” contact.
The observation came while the a 3-judge bench reversed a Bombay High Court’s controversial judgment in a POCSO case, wherein it had ruled that there had been no “skin-to-skin” contact between the rapist and his victim.
The SC bench composed of Justices U.U. Lalit, S. Ravindra Bhat and Bela Trivedi ruled that, “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, inasmuch 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.”
They further stated that, “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 Supreme Court held.
The Bombay High Court in Satish Vs State of Maharashtra had controversially ruled earlier that: “It is not the case of the prosecution that the appellant removed her top and pressed her breast… 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.”
It further noted that: “Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific details 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’.”
Referring to another case of a similar nature, — “Libnus Vs State of Maharashtra”, the same High Court Bench noted: “The words ‘any other act’ encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ‘ejusdem generis’. The act should be of the same nature or closure to that. The acts of ‘holding the hands of the prosecutrix’ or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this Court, does not fit in the definition of ‘sexual assault’.”
On Thursday, however, Justices Bela Trivedi delivered the majority opinion of the Apex Court on the matter on behalf of Justice U.U. Lalit, while Justice Ravindra Bhat delivered a separate, but concurring opinion. All three said that in interpreting a statute, any court should strive to ascertain the intention of the Legislature enacting it.
The premise of the POCSO Act was to protect children from sexual assault, sexual harassment and pornography, and therefore, it stood to reason that the most important ingredient for constituting the offence of sexual assault is ‘sexual intent’.
Keeping that in mind, the SC set aside the judgment of the Nagpur Bench of the Bombay HC.