The Hon’ble Supreme Court of India vide stay order dated 27.01.2021 stayed the controversial judgement passed by the Bombay High Court that held that pressing the breast of a 12-year old child without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the Protection of Children from Sexual Offences Act 2012 (hereinafter referred to as “POCSO”).
The said stay order was passed by the single bench headed by Chief Justice Arvind Bobde on a mention made by Attorney General K.K. Venugopal who had submitted that the Bombay High Court judgment which held that ‘skin to skin’ contact is necessary for sexual assault under POCSO Act is ‘unprecedented’ and is ‘likely to set a dangerous precedent.
The High Court of Bombay vide its judgement dated 19.01.2021 in the matter of Satish V. State of Maharashtra (Criminal Appeal no. 161 of 2020) had opined that considering the stringent nature of punishment provided for the offence, stricter proof and serious allegations are required. It also observed that the punishment for an offence should be proportionate to the seriousness of the crime. The High Court had then proceeded to examine Section 7 of POCSO and the ingredients of the offence of ‘sexual assault’.
“The ingredients for constituting the offence of ‘sexual assault’ are that the act must have been committed with sexual intent and it must involve 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”, Bombay High Court said.
In the impugned judgment, the Nagpur Bench of the Bombay High Court held that such an act would amount to ‘molestation’ under Section 354 of IPC and not Sexual assault under section 8 of the POCSO Act.
The Single bench of Justice Pushpa Ganediwala made this observation while modifying the order of the Sessions Court which held a 39-year-old man guilty of sexual assault for groping a 12- year- old- girl and removing her salwar.
CJI Bobde has directed AG to file proper petition challenging the judgment , The Court has stayed the acquittal of accused under Section 8 of POCSO and issued notice to him returnable within 2 weeks.