SC stays Bombay HC ‘Skin-to-Skin Order’ for Acquittal of POCSO Accused

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On Wednesday, the Apex Court stayed the order of the Nagpur Bench of Bombay HC where it had acquitted an accused saying that groping a minor’s breast without “skin to skin contact” cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.

A bench headed by CJI SA Bobde stayed the acquittal order & also issued a notice to the accused & Maharashtra Govt in the case & sought a response in two weeks.

The Supreme Court’s order came after Attorney General KK Venugopal, on behalf of the Centre, mentioned before the Chief Justice that the Nagpur Bench of Bombay High Court’s verdict is “very disturbing” & will set a “dangerous precedent”.

In the order, the Chief Justice noted, “The Attorney General brought to our notice that judgment of the Bombay High Court, Nagpur Bench dated January 19, 2021, in which the High Court has acquitted the accused under section 8 of POCSO Act on the ground that the accused had no sexual intent in committing the offence under POCSO because there was no direct physical contact i.e. skin to skin.”

“The Attorney General submitted that order is unprecedented & likely to set a dangerous precedent. We permit the Attorney General to file an appropriate petition against the order. In the meantime, we stay the acquittal of the accused. Notice issued to accused returnable in two weeks,” the order added.

The Youth Bar Association of India & three female petitioners have also moved a plea in the Supreme Court challenging the Nagpur Bench of Bombay High Court’s order saying that such observations would have a wide impact on the entire society & public at large.

Seeking to set aside the High Court’s order, the plea has stated while passing the impugned judgment, the Single Judge recorded the name of the victim child. As per law, the names of victims of certain offences can not be published.

The plea also sought to stay on the verdict as interim relief. “Single Judge had made various observations, concerning the modesty of a girl child, which are not only derogatory & defamatory but the same are also in utter disregard to the applicable laws,” it added.

Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, while passing judgment on Jan 19, had held that there must be “skin to skin contact with sexual intent” for an act to be considered sexual assault. Mere groping will not fall under the definition of sexual assault, the judge said.

The Judge modified the order of a Sessions Court, which had held a 39-year-old man guilty of sexual sexually assaulting a 12-year-old girl & sentenced him to 3 years of imprisonment.

As per the prosecution & the minor victim’s testimony in court, in Dec 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat & then gripped her breast & attempted to remove her clothes.

However, the High Court said since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under the Indian Penal Code (IPC) section 354.

The High Court acquitted him under the POCSO Act while upholding his conviction under IPC section 354. Section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails minimum imprisonment of three years.

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