New Delhi: The Supreme Court set aside a judgment of the Bombay High Court that held that “skin-to-skin” contact was necessary for the offence of sexual assault under the POCSO Act.
In its order, the court observed that sexual intent is important in such cases and that it can’t be taken away from the purview of the Act. The purpose of the law cannot be to allow the offender to escape the meshes of the law, the apex court said.
“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench comprising Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi said. It was hearing the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the judgment of the High Court.
However, the High Court order was later set aside by the SC after Attorney General K K Venugopal brought the matter to the court’s notice and said it is “unprecedented” and is likely to “set a dangerous precedent”. “It is a very disturbing conclusion,” the A-G told the bench led by the then Chief Justice of India S A Bobde. The AG and NCW had filed separate appeals.
“If tomorrow, a person wears a pair of surgical gloves and feels the entire body of a woman, he won’t be punished for sexual assault as per this judgment. This is an outrageous order. The accused tried to bring down the salwar and even then bail was granted… The Judge clearly didn’t see the far-reaching consequences,” the AG had said. He said that “touching of the breast of a minor even without removing the top amounted to commission of offence of sexual assault under the Act”.
