Articles

INTERPRETATION OF THE POCSO ACT IN “SKIN TO SKIN CONTACT” CASE 

This article is written by Priya Kumari, a student of Maharashtra National Law University, Aurangabad

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Introduction 

Child sexual abuse is one of the significant problems in the world, and India is no exception to this. India is home to about 19 percent of children in the world. Children constitute almost 42 percent of the population of India, and nearly 50 percent of these children need care and protection. In India, numerous cases of child sexual abuse are registered per day. The latest one is the controversial case of Satish Ragde v. State of Maharashtra. In this case, a man who pressed the breast of a 12-year-old girl was not charged for sexual assault under the POCSO act by the Bombay High Court. The judge, Justice Pushpa V Ganediwala stated that for sexual assault, ‘skin-to-skin’ contact is a must. Along with this, the judge also said that this case is a minor offence, due to which this judgment is criticised all across India. 

Background of the Case

On 14 December 2016, a mother of a 12-year-old girl lodged a complaint at police station Gittikhadan, Nagpur. She stated that a 40 years old man took her daughter away to his home on the pretext to give guava. Then he pressed the breast of the girl, tried to remove her salwar and then restrained her in a room. She started crying and shouting for help. Fortunately, her mother came at that place and rescued her daughter. Her cry was also heard by some of the neighbours and were kind enough to testify. Then immediately, her mother went to the police station and lodged an FIR. Based on the FIR, crime came to be registered against that man under Sections 354, 363 and 342 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012. After the police investigation, a charge sheet was filed in Special Courts, Nagpur. The Extra Joint Additional Sessions Judge, Nagpur convicted the appellant for the offence punishable under Sections 354, 363 and 342 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012. The accused man appealed against this decision in the High Court.

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Evolution of the controversy

The appeal was filed in the Nagpur bench of the Bombay High Court. A single-judge bench heard the appeal. The judge held that Section 7 of the POCSO Act does not apply to this case. Section 7 of the POSCO Act defines sexual assault and its punishment is mentioned in Section 8 of this Act. The judge stated that as per the definition of sexual assault, physical contact with sexual intention without penetration is an essential element of the offence. According to her, stricter proof and serious allegations are required to hold the man liable under Section 7 of the POSCO Act. This is because of the strict punishment that is given under Section 8 i.e. imprisonment for a term not less than 3 years and not more than 5 years and fine also. She further told that in absence of any proof that the top was removed or whether the man inserted his hand inside the top and pressed her breast, the act of pressing the breast cannot be considered a sexual assault. The court held that in this case, there was no direct physical contact i.e. skin-to-skin contact with sexual intent without penetration. She held this act as a minor offence under Section 354 of IPC and gave punishment to the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500. Under Section 342 of IPC, he was sentenced to six months imprisonment and a fine of Rs. 500. 

Need to study this case

In the present time, child sexual abuse is one of the vital problems in India. One of the major reasons behind this is the systemic failure of the criminal justice system to redress the complaints of child sexual assault. Merely three percent of child sexual assault offences are reported to the police. It is unsurprising that this problem of child sexual abuse is severely underreported due to the shame and associated socio-cultural stigma. 

The situation is improving these days and people are coming forward to report such cases. But, the irony of the situation is that after this small ray of hope, such decisions came from the courts which nullify this little development that occurred in the field of child sexual abuse. 

This case makes a person understand the need for the POCSO Act and in which situations IPC and POCSO Act should be applied relating to matters of child sexual assault. 

Perspective of great personalities

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This Nagpur bench verdict is criticised in the whole nation. Activists and child rights bodies have also harshly criticised it. They have termed it “absolutely unacceptable, outrageous and obnoxious”. K.K. Venugopal, the Attorney General of India submitted that this judgement is unprecedented and is likely to set a dangerous precedent. 

After this judgement, the chairperson of the National Commission for Protection of Child Rights wrote a letter to the Maharashtra chief secretary. He urged the state to review and challenge the high court verdict. 

The National Commission for Women (NCW) has knocked on the door of the Supreme Court to challenge this verdict. 

Recent events related to this case

  • Libnus v. State of Maharashtra

In this case, the victim is a 5-year-old girl and the complaint was filed by her mother. She stated that the accused entered her house when her daughters were alone and was holding the hand of the victim. When she saw him, he ran away. The victim child told that the accused unzipped his pants and removed his penis and asked her to sleep with him. A case was registered for sexual assault, sexual harassment and house trespass under Section 8, 10 and 12 of the POCSO Act and Section 354A and 448 of the Indian Penal Code. The special POCSO Court of Nagpur held the accused guilty. An appeal was made in the Bombay High Court. The court held that holding the hands and opening the zip of the pants does not come under the definition of sexual assault.

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  • Geetha v. the State of Kerala

The facts of this case were almost similar to that of the Satish Ragde case. In this case, a lower court observed that touching the breast of a victim through clothes without skin contact amounts to a less severe offence. However, the Kerala High court had disparaged the observation of the lower court and held that cases of sexual assault against children must be dealt strictly. 

In another case of Jageshwar Wasudeo Kawle v. State of Maharashtra, the High Court reversed the conviction order stating that nothing supported the prosecution’s case for rape.

Conclusion

This judgment is criticised all across India. Through continuous efforts of NGOs and other organisations, people are now coming forth to fight a battle against child sexual abuse. Reporting of child sexual abuse cases has been increased in past years significantly. But then, these types of judgments took the development of the country in child issues several years back. The irony of this judgment is that it came from a woman judge. After heavy criticism, a bench comprising Chief Justice of India S.A. Bobde, Justices A.S. Bopanna and V. Ramasubramanian have has stayed this judgement. SC took this step after K.K. Venugopal, the Attorney General of India, submitted that the ruling was unprecedented and is likely to set a dangerous precedent. If the definition of Sexual Assault is defined in such a narrow perspective, whereas Child Sexual Assault/ Abuses are not an offence under the POCSO Act, unless there is skin-to-skin contact, it would have negated the effectiveness of the POCSO Act itself to a great extent. It would have thwarted the legislative intent in enacting this special law to protect our children.

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