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Supreme Court stays Bombay HC order on ‘skin-to-skin’ contact for sexual assault under POCSO Act

What Happened: The Supreme Court passed stay orders against one of the most controversial judgment delivered by the Bombay High Court (Nagpur Bench) in the case of Libnus v. State of Maharahstra. In the case, it was held by the High Court that holding hands of a minor girl and opening pants’ zip does not amounts to sexual assault under POCSO but sexual harassment under Section 354A of the Indian Penal Code, 1860.

Crucial facts : In the case, the offence was committed against a child aged below 12 years, the Sessions Court held it to be "aggravated sexual assault" punishable under Section 10 of POCSO and sentenced him to 5 years rigorous imprisonment and fine of Rs. 25,000 with a default simple imprisonment for 6 months.

Analysis : During the hearings, the High Court observed the definition of ‘sexual assault’ under Section 7 of the POCSO Act and stated that for sexual assault to happen, ‘a physical contact with sexual intent without penetration’ is one of the most vital ingredients. In this case, there was no physical touching of private body parts as the victim was wearing clothes, therefore it charged the accused of ‘aggravated sexual assault’ and sentenced the accused with an imprisonment amounting to one year under Section 354 of IPC, 1860.

Another similar case : The other judgment delivered by Nagpur Bench of Bombay High Court regardingchild sexual abuse is Satish v. State of Maharashtra (also called Satish case).

This case has been criticized severely leading to challenging the judgment in Supreme Court. In this case, the accused facing allegations of pressing breast of a minor girl was acquitted by High Court under POCSO, giving the reasoning that it does not amount to offence of sexual assault as there was ‘no skin to skin contact.’ The court stated that under Section 7 of the POCSO Act sexual assault is defined as non-penetrative contact with the victim with sexual intent.

The high court while acquitting the accused, who was sentenced under POCSO and IPC by the Sessions Court, had acquitted him under POCSO but maintained the conviction under Section 354 of IPC for the offence of outraging modesty of a woman.

Relevant legal provisions under IPC

Section 354 of the IPC provides that whoever assaults or uses criminal force to any woman [means female of any age] intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment which shall not be less than one year but may extend to five years and fine.

Section 354A was added in 2013, it provide the offence of sexual harassment. Any man who commits any of the following acts shall be liable for the offence of sexual harassment-

  • Physical contact and advances involving unwelcome and explicit sexual overtures, or

  • Demand or request for sexual favours, or

  • Showing pornography against the will of a woman, or

  • Making sexually coloured remarks.

Crux of the Article: In the words of Supreme Court, they found the judgment delivered by Bombay High Court very disturbing and therefore by taking cognizance of the matter stated that, “because of the order, an accused could claim innocence under POCSO by arguing that the child he assaulted was clothed and there was no “direct physical skin-to-skin contact” between them.” Thus, the Hon’ble Court stayed the acquittal of the accused under the Bombay High Court Judgment.

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