Thursday, March 23, 2023

AG Venugopal terms skin-to-skin judgment passed by Bombay HC outrageous

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Attorney General KK Venugopal on Tuesday strongly objected to the judgement passed by the Bombay High Court, which held ‘skin-to-skin’ contact is necessary to constitute sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

Terming it as ‘outrageous,’ the AG said that a person wearing surgical gloves can feel the entire body of a woman and get away with punishment.

The Court was hearing the plea filed by Mr Venugopal, challenging the Bombay High Court judgment, which said that groping a minor without “skin-to-skin contact” cannot be termed as sexual assault, as defined under the Protection of Children from Sexual Offences (POCSO) Act.

During the hearing, the AG said “According to me, it’s an outrageous judgement so far as POSCO is concerned because the entire story behind the acquitting of the accused of the offence is punishable under Section 8, which says ‘touching the breast’ itself is sufficient. 

“The High Court says skin-to-skin contact is required. The punishment under Section 8 is minimum 3-5 years and that learned judge appears to think is disproportionate to touching the breast through the top. Not only that, the accused also tried to put off the salwar of the child. Milord, consider this whether the pressing of breast and attempt to remove would fall within the definition of sexual assault as described under Section 7 and punishable under Section 8?

“As per the definition of sexual assault, it involves physical contact without penetration to commit sexual assault with sexual intent. Therefore, here the accused had sexual intent while touching the child’s breast, which is a physical contact. There is no case if the top was removed or not. The High Court had modified the order of a Sessions court, which sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.

Further, he pointed out that there are 43,000 POCSO offences in last one year. “So tomorrow, any person with surgical gloves who feels the entire body of a woman including her vagina without penetration, then the punishment of three years would not apply to him?,” he said.

“This is outrageous and this is setting a precedent. Apparently, the judge did not consider its consequences,” he argued.

Advocate Rahul Chitnis, appearing for the State of Maharashtra said, “I am relying on para 26 here, where the Judge says that there is no physical contact ‘skin-to-skin’ with intent to sexual penetration. I am supporting the Attorney General.”

The Court asked whether any Counsel was appearing for the accused or the National Commission for Women. “There is no representation for the accused, that is why we have appointed Mr Dave,” the Court was told. 

Senior Advocate Dushyant Dave replied, “Milords, it is very unclear that whether I have to represent the accused as an Amicus.”

The bench said, “We must refer to the SC Legal Services Committee to appoint somebody to represent the accused and Mr Dave can appear as an Amicus to assist the court. Therefore, I welcome this idea and submission. Mr Attorney, we have to put this matter after a week at least.” 

The top court of the country noted in its order, “According to the office report, service of showcause notice is complete in all matters. However, none has appeared on behalf of accused. The order dates August 6, 2021, we have already appointed senior advocate Mr Dave to assist as Amicus. 

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“Since the accused are not been represented, we direct the SC legal Services Committee to appoint and make available service of any senior advocate on the panel of the committee along with any other AOR to appear on behalf of the accused and let the papers be submitted to the committee today itself to take the appropriate steps in the matter. List all these matters of disposal on September 14.”

On January 19, the Nagpur bench of Bombay High Court had acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct ‘skin-to-skin’ physical contact does not constitute “sexual assault” under the POCSO Act.

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