Authored by: Takshima Maheshwari
Bench/Judge: Pushpa V. Ganediwala
Court: Nagpur Bench of Bombay High Court
Date: 19th January 2021
Citation: Criminal Appeal no. 161 of 2020
Background/ Facts of case
The POCSO (Protection of Children From sexual offences) Act 2012, is a law that extends beyond the IPC to provide special protection to the child victims. The purpose of the POCSO Act 2012 is to safeguard minors from sexual assault and harassment while also acknowledging their vulnerability. On the 14th of December 2016, the prosecutrix, who was about 12 years old at the time, went to bring guava but did not return for a long time, prompting her mother to go out and look for her. Their next-door neighbour informed the mother that she had witnessed the accused bringing the prosecutrix to his home and showed her around. When the mother arrived at the house, she inquired about her daughter's location, which the accused denied knowing. The mother became completely suspicious and searched the accused's home. She discovered her daughter screaming in a room that was locked from the outside while checking the first level. She was taken outside by her mother. The prosecutrix was terrified, and she quickly told her mother about how the accused lured her into his house on the guise of giving her guava, touched her inappropriately, and she screamed as he tried to remove her salwar.
The Special Court found the accused guilty of outraging a girl's modesty, kidnapping, and unlawful confinement under Sections 354[1], 363[2], and 342[3] of the IPC, 1860, as well as for the sexual assault under Section 8 of the POCSO Act, and sentenced him to three years in prison and a fine of Rs1500. After which the Accused appealed in the High court of Bombay (Nagpur Bench). Then the accused went to the Bombay High Court, within which J. Pushpa Ganediwala acquitted him under section 8[4] of the POCSO Act 2012 but found him guilty of outraging the modesty and wrongfully imprisoning the prosecutrix under sections 354 and 342 of the IPC 1860 and hence he was sentenced 1 year of rigorous imprisonment and a fine of Rs500. In addition to this a non-bailable warrant was served to the accused in this case.
The Bombay High Court's controversial verdict in a case under the POCSO Act was quashed by the Supreme Court, which stated that sexual intent, not skin-to-skin contact with the minor, is the most significant factor establishing sexual assault. The Attorney General of India, the National Commission for Women, and the State of Maharashtra filed appeals against the High Court's decision, which were heard by a bench consisting of Justice Uday Umesh Lalit, Justice S Ravindra Bhat, and Justice Bela M Trivedi.
Arguments
Contention by Appellant
· Appellant contended that The Bombay High Court's interpretation of the terms of the POCSO Act would have a detrimental effect on society as a whole.
· The appellant also stated that All of the accused's alleged actions, including taking the victim to his residence, removing his salwar, and touching her inappropriately, amounted to 'sexual assault' under Section 7 of the POCSO Act, which is punished under Section 8.
· The definition of 'physical contact' as ‘skin to skin contact' is a limited interpretation that undermines the POCSO Act's core aim and object. The principle of ejusdem generis had no place in this case, and it should not be applied where it would negate the statute's entire purpose as contended by the appellant.
· The Appellant stated that it is evident that Mens rea (a person's sexual intent) is the most crucial and substantial factor in a case of sexual assault. They also argued that the legislature has used the terms 'touch' and 'physical contact' interchangeably in Section 7.[5]
Contention by Respondent
· The Learned Senior Advocate appearing for the accused argued that the expression 'sexual intent' cannot be constrained to any predetermined structure, and since the POCSO Act defines the term 'sexual assault,' the definitions of words 'assault' or 'criminal force' as given under the IPC cannot be imported into the POCSO Act.
· The respondent contended that the first half of Section 7, touching a child's private parts, may not require skin to skin contact, but the second part, "any other act with sexual purpose that involves physical contact without penetration," must require skin to skin contact and the prosecution has failed to do that.
· The accused's lawyer claimed the 'Rule of Lenity,' which states that a court must clarify an ambiguity in a criminal code in the accused's favor by applying a stringent or limited reading.
· Finally, Respondent contended that the oral evidence of the appellants contains several inconsistencies, and convicting the accused based on such shaky evidence would be dangerous.
Verdict by High Court
The learned counsel on behalf of appellant was unable to prove from the evidence that the minor girl's mother and the little girl's evidence could not be accepted or that they were not capable witnesses, according to the Court. The girl's responses to the questions were not irrational. Furthermore, she informed her mother about the incident as soon as it occurred, and the First Information Report was filed as a result. Both the mother's and daughter's testimony are coherent and valid under section 6[6] of the Evidence Act 1872. The Court further reasoned that more proof and more serious claims are required.
The Court further observed that it is uncertain whether the accused removed the top of the prosecutrix or inserted his hand inside, indicating that there was no direct physical contact or "Skin-to-Skin" contact between the accused and the victim as defined by section 7 of the POCSO Act 2012. The act perpetrated by the accused appears to come under Section 354 of the Indian Penal Code's definition of "outraging the modesty of a woman”. As a result, the bench acquitted the accused under section 8 of the POCSO Act and found him guilty of outraging the modesty and wrongfully confining the prosecutrix under sections 354 and 342 of the IPC for a year of rigorous imprisonment and a fine of Rs500 for outraging the modesty and wrongfully confining the prosecutrix.
Verdict of Supreme Court
The Hon'ble Supreme Court, in Attorney General for India v. Satish (2021)[7], overturned a Bombay High Court decision holding that skin-to-skin contact is a need for a sexual assault charge under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Ganediwala's verdict sets a new precedent in which mere touching while clothed will not be considered a sexual assault offence. In 2019, the POSCO code was amended to ensure "the child's healthy physical, emotional, intellectual, and social development." Many human rights activists and organisations were outraged by the ruling. Rekha Sharma, Chairperson of the National Women's Commission, voiced her displeasure, saying: “This decision will not only have a drastic impact on many measures affecting women's safety and security in general, but it will also make all women laughable and devalue the legal requirements put in place by the legislature to ensure women's safety and security”.
Later the stay was ordered on the ruling of this case by Chief Justice Sharad Bobde after Attorney General KK Venugopal submitted that the High Court’s decision saying that this case is likely to set a dangerous precedent. Venugopal was also given permission to file a petition against the High Court's decision in the supreme court in addition to the temporary injunction. The Supreme court overturned the decision given by the High Court and the accused was convicted for the offence under POSCO Act. Also, The Supreme Court Collegium then withdrew its proposal to approve Justice Pushpa Ganediwala's permanent status on the state's highest court.
The Supreme Court held that any restrictive construction that would negate the purpose of a rule could not be adopted. Interpreting 'physical touch' to mean ‘skin-to-skin contact' would result in an illogical conclusion. Such an interpretation would defeat the statute's purpose and will be extremely harmful. The Supreme Court overturned the Bombay High Court's decision in the case of accused Satish and reinstated the Special Court's decision. The accused was found guilty of violating Section 8 of the POCSO Act as well as Sections 342, 354 and 363 of the IPC. For the offence under Section 8 of the POCSO Act, the accused-Satish was sentenced to three years of rigorous jail and a fine of Rs.500/-. The accused received no separate sentence for the other IPC offences because he was punished for the primary offence under Section 8 of the POCSO Act.
Analysis
The decision of the additional Judge, J. Pushpa Ganediwala, has sparked an outrage on social media, with many people wondering how it will affect people's perceptions Regarding sexual offences, and whether it will allow the accused of sexual offences to get away with less serious punishment. The Supreme court stated that it is very clear that Section 7of the POSCO Act 2012 begins with the phrase that “whoever, with sexual intent touches”. Here, the term 'touch' does not solely refer to a skin-to-skin contact. As a result, because the accused touched the minor improperly, the offence of sexual assault was established. Furthermore, if the legislature wanted to limit the scope of Section 7, it would have made the necessity of skin-to-skin contact clear. The High court cannot use an interpretive technique to severely limit the punishment's scope of this Section and to demean legal provisions intended to prohibit sexual assault against minor.
Therefore, the Bombay High Court's interpretation, the punishment of accused was lowered. Whereas, because the minor is more vulnerable, the accused should have been found guilty and sentenced to penalties under the POCSO Act 2012. The SC also noted that the court's interpretation is not in lines with the statute's essential concept. The interpretation of the Bombay High court with respect to Section 7 of the POCSO Act 2012 that there is essentially a need of "skin to skin" contact as a pre-condition to constitute sexual assault is problematic for a number of reasons. The need of ‘skin to skin' contact is clearly not included in the statute. section 7 states “...or conducts any other act with sexual intention that includes physical contact without penetration is said to commit sexual assault,” The court in this case has interpreted the phrase "physical contact" incorrectly to mean "skin to skin contact."
Hence as per the SC, the judgement of this case was a violation of Natural Justice principles, and it is harmful to society's overall interests. Therefore, it was overturned by the SC. The POCSO Act took into account the principles which have been set forth in the United Nations General Assembly's Convention on the Rights of the Child, to which the Indian government has consented on December 11, 1992. Moreover, the SC stated that the bench did not give much importance to the accused's intents while delivering the judgement. In the case of Jagar Singh v State of Himachal Pradesh[8], it was well-established that when two interpretations are possible, the court should select the interpretation that favours children to accomplish the goals of justice. With stringent punishments and a broad scope of sections, the POCSO Act 2012 has established a barrier for offenders, making it harder to the avoid punishments.
Conclusion
The Preamble of the Protection of children from Sexual offences (POSCO)) Act,2012 has clearly stated that this act has been specifically enacted for the protection of children from ‘offences relating to sexual assault, sexual harassment and pornography, and it also provided for the establishment of the special courts which can specifically deal with the trial of such offences. Therefore, the goal of the act is to provide minor children with an additional layer of protection in all the matters concerning sexual offences which fall beyond the loopholes which existed in the pre-existing criminal law which regulated sexual offences. In this case, the Supreme Court made precedent by overturning the Bombay High Court's controversial decisions, which were widely criticised for being unconstitutional. However, High Court should not have ignored the POCSO Act's legislative history and the essential goals it aims to achieve.
To sum up, Hon'ble Justice Ravindra S. Bhatt while delivering the judgement observed, "It is no part of any judge's duty to stretch the simpler terms of a statute beyond recognition and to the point of destruction, and hence rejecting the cry of the times that children urgently need the assurance of a law intended to protect their autonomy and dignity, as POCSO does."
References:
1. “India Supreme Court suspends Bombay High Court judgment on definition of sexual assault”
https://www.jurist.org/news/2021/01/india-supreme-court-suspends-bombay-high-court-judgment-on-definition-of-sexual-assault/
2. “Incorrect application and interpretation of POCSO Act in light of recent judgments of Bombay High Court”
https://blog.ipleaders.in/incorrect-application-interpretation-pocso-act-light-recent-judgments-bombay-high-court/
3. “Satish Ragde vs State of Maharashtra: Misconceived interpretation of Section 7 of the POCSO Act contrary to the legislative intent”
https://thedailyguardian.com/satish-ragde-vs-state-of-maharashtra-misconceived-interpretation-of-section-7-of-the-pocso-act-contrary-to-the-legislative-intent/
4. “Nagpur bench of Bombay HC overturns man’s conviction under POCSO”
https://www.thehindu.com/news/national/other-states/nagpur-bench-of-bombay-hc-overturns-mans-conviction-under-pocso/article33650284.ece
[1] Indian Penal Code 1860, s.354 [2] Indian Penal Code 1860, s.363 [3] Indian Penal Code 1860, s.342 [4] Protection of children from sexual Assault Act 2012, s.8 [5] Protection of children from sexual Assault Act 2012, s.7 [6] The Indian Evidence Act 1872, s 6 [7] Attorney General for India v. Satish (2021), Special Leave Petition (CRIMINAL) Diary No(s). 2286/2021 [8] Jagar Singh v State of Himachal Pradesh Cr. MP(M) No. 1112 of 2014
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