The Supreme Court Bench on January 27, stayed the judgment of the Bombay High Court which ruled that pressing the breast of a 12-year-old child without disrobing her will not fall within the ambit of ‘sexual assault’ under Section 7 the Protection of Children from Sexual Offences Act (POCSO).
According to Bar and Bench, the stay was ordered by a Bench headed by Chief Justice of India SA Bobde after Attorney General KK Venugopal mentioned that “it is a very disturbing conclusion (by Bombay High Court).”
Chief Justice Bobde orally noted, “High Court had acquitted the accused under POCSO on the ground that the accused had no sexual intent in committing offence under POCSO because there was no direct physical contact. AG states that the order is unprecedented and is likely to present a dangerous precedent. We permit AG Venugopal to file a plea against the order. In the meanwhile, we stay the acquittal of the accused until in so far as the offence under Section 8 of POCSO Act. Issue notice to accused.”
CJI: HC had acquitted the accused under POCSO on the ground that the accused had no sexual intent in committing offence under POCSO because there was no direct physical contact
— Bar & Bench (@barandbench) January 27, 2021
On January 19, the Single Bench of Justice Pushpa Ganediwala (Nagpur Bench) had opined that considering the stringent nature of punishment provided for the offence, stricter proof and serious allegations are required. The court also observed that the punishment for an offence should be proportionate to the seriousness of the crime.
The court had also remarked that the ingredients for constituting the offence of “sexual assault” are that the act must have been committed with sexual intent and it must include touching the vagina, penis, anus or breast of the child or “any other act” which are similar to the acts specifically mentioned in the provision (section 7 of POCSO).
This order prompted many organisations like the National Commission for Women, National Commission for Protection of Child Rights (NCPCR) and most recently the Youth Bar Association of India to appeal in the matter for appropriate directions.
The order may be read here: