New Delhi: Attorney General K.K. Venugopal urged the Supreme Court to reverse the Bombay high court verdict which held that no offence of sexual assault under the POCSO Act was made out as there was no ‘skin-to-skin’ contact between an accused and a minor victim.
The AG called the controversial judgement “outrageous” and one that would set a dangerous precedent.
The country’s top law officer also said that going by the approach of the high court, anybody can get away with a sexual assault offence by wearing surgical gloves.
The apex court, which was hearing separate appeals of the Attorney General and the National Commission for Women (NCW), had on January 27 stayed the high court order which acquitted a man under the Protection of Children from Sexual Offences (POCSO) Act saying groping a minor without ‘skin to skin contact’ cannot be termed as sexual assault. The verdict had come under attack from legal experts and child rights activists.
Seeking to set aside the verdict during his arguments before a bench of Justices U.U. Lalit and Ajay Rastogi, Venugopal contended that touching of the breast of a minor even without removing clothing amounted to commission of offence of sexual assault under the Act .
“This is outrageous. Saying that skin-to-skin contact is required would mean a person, wearing gloves, [will be] getting an acquittal. The high court did not see the far reaching consequences,” he said.
Also read: SC Stays Bombay HC’s ‘Groping Without Skin-to-Skin Contact Isn’t Sexual Assault’ Order
“The judgement is outrageous and would set a dangerous precedent.”
Venugopal also referred to the definition of sexual assault under section 7 of the POCSO Act, and said this provides for a jail term of three years and is akin to the offence of outraging the modesty of a woman under section 354A of the IPC.
He referred to the facts of the case as well and said the minor, who was stalked and groped by the accused, raised an alarm at the top of her voice and an FIR was lodged without any delay.
“Letting go an accused, who also attempted to pull down the salwar of the minor, will be against the definition of the POCSO Act,” the law officer said.
Maharashtra and the NCW concurred with the views of the Attorney General.
As nobody appeared on behalf of the accused despite the service of the show cause notice, the bench directed the Supreme Court Legal Services Committee (SCLSC) to make available the services of senior advocate or advocates along with the Advocate-on-Record (AoR) to appear on behalf of the accused.
“We have already appointed senior advocate Siddharth Dave as an amicus curiae. Let the paper be submitted to the SCLSC today. List all the matters for disposal on September 14,” it said.
Justice Pushpa Ganediwala of the Bombay high court’s Nagpur bench had delivered two controversial judgements in sexual assault cases including the one which has come to be known as the ‘skin-to-skin’ contact verdict.
Earlier, while staying the judgements, the top court had also issued notice to the Maharashtra government and permitted the AG to file an appeal against the verdict.
The high court had said that groping a minor without “skin to skin contact” cannot be termed as sexual assault as defined under the POCSO Act.
Also read: ‘Holding Minor’s Hand, Unzipping Pants Not Sexual Assault Under POCSO Act’: Bombay HC
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.
The high court had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting the 12-year-old girl.
The sessions court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under IPC section 354. The sentences were to run concurrently.
The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
“Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required,” the high court had said.
The POCSO Act defines sexual assault as an other act with sexual intent which involves physical contact.
The court had held that this “physical contact” mentioned in the definition of sexual assault must be “skin to skin” or direct physical contact.