Bombay High Court Declared No Sexual offence Under POCSO Without Skin-to-Skin Contact

The Bombay High Court announced ‘grabbing breast of a minor without skin-to-skin contact’ will not be considered as a sexual assault under the Protection of Children from Sexual Assault (POCSO) act.

The court however ruled that the act will be considered as criminal offence under the IPC section 354.

Where the news took the social media in no time and some of us misread it, something that should be attended is- The court has not ruled out the crime and it will still be a criminal offence under IPC, POCSO will not categorize this as sexual assault.

Background

On 19th January, Justice Pushpa said in her verdict that ‘skin to skin or direct contact is necessary’ to consider an act as sexual assault.

She continued, anybody who touches or tries to grab a minor’s breast without inserting his/her hands insider her top will not be considered as sexual offence under the POCSO.

She said "The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault."

The Justice delivered the amendment regarding a 2006 case in which a man took a 12-year-old girl to his house baiting her food. The man then sexually assaulted her trying to remove her clothes but her mother came and rescued the child. The man was imprisoned for three years for sexually assault the minor.

The justice, however clarified her statements and said, since the man (Satish) has groped her without even removing her clothes, it shall not be considered a sexual assault and instead comes under criminal offence under IPC 354(outraging a woman’s modesty).

"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," she said.

Under section 8 of POCSO act, sexual assault punishment leads to a jail term of three to five years. The charges for sexual assault under IPC is one or one-and-half year.

The court dismissed Satish’s punishment under POCSO act, however termed him to be barred under IPC saying ‘Admittedly, 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.’

Justice Ganediwala in her final statement ‘the act of pressing a minor’s breasts can be a criminal force with the intention to violate her modesty.’

The court clearly stated under the POCSO act a sexual assault is when someone "with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration."

The justice adding to the above statement clarified physical contact meaning skin to skin or direct contact i.e in this case, removing her clothes and then touching the breast.

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