Supreme Court stays Bombay HC’s ‘no skin-to-skin contact not sexual assault’ order

The Supreme Court Wednesday stayed the recent Bombay High Court ruling wherein it acquitted an accused in a POCSO case on the grounds that the act of pressing a child’s breast, without any skin to skin contact and sexual intent, is not sexual assault. The stay comes after Attorney General K K Venugopal submitted that the verdict will set a “dangerous precedent”.

On January 19, the Nagpur Bench of the Bombay High Court had reversed the decision of a sessions court that had convicted 39-year-old Bandu Ragde under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act and sentenced him to three years in jail. The convict was accused of luring the 12-year old prosecutrix to his house on the pretext of giving her a guava, and pressing her breast and attempting to remove her lower clothing.

Following an uproar over the verdict, the central government, through AG Venugopal, moved the Supreme Court asking to take a suo motu cognizance of the verdict. Read this story in Malayalam

A bench led by Chief Justice of India S A Bobde said: “The high court had acquitted the accused under POCSO on the grounds that the accused had no sexual intent in committing offence under POCSO because there was no direct physical contact.”

“Bombay High Court ruled that there was no skin to skin 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,” Bar and Bench quoted the CJI as saying.

The court then stayed the acquittal of the accused under Section 8 of the POCSO Act. The court also issued notices to the accused and the Maharashtra government.

In its judgment, the Bombay High Court had reasoned that since the offence under POCSO carried a higher punishment, a conviction would require a higher standard of proof, and allegations that were more serious.

Section 7 of the Act says “Whoever, 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…”

The court said that since the convict groped the prosecutrix over her clothes, this indirect contact would not constitute sexual assault.