Bombay HC's skin-to-skin order: Supreme Court to hear AG Venugopal's plea against verdict

The Supreme Court will continue its hearing today in a plea by Attorney General K.K. 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. The three-judge bench of Justices U.U.Lalit, S. Ravindra Bhat and Bela M. Trivedi will hear the matter.

On the previous hearing, Venugopal had strongly objected to the judgement passed by the Bombay High Court which held 'skin-to-skin' contact is necessary to constitute sexual assault under POCSO Act. Terming it “outrageous”, the AG had said that a person wearing surgical gloves can feel the entire body of a woman and get away with punishment.

During the hearing on August 24, the AG had 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. 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, accused also tried to put off the salwar of a 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?”

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He said,

"As per the definition of sexual assault which 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 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 3 years would not apply to him?” He questioned. “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 appearing for accused or National Commission for Women. The Court said there is no representation for the accused, that is why we have appointed (Dushyant) Dave. 

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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. So, therefore I welcome this idea and submission. Mr. Attorney we have to put this matter after a week at least.” 

The Top Court noted in its order that,

“According to the office report, service of show cause notice is complete in all matters. However, none has appeared on behalf of accused. The order dates 6.08.2021, we have already appointed senior advocate Dave to assist as Amicus. Since the accused are not been represented, we direct the SC legal Services Committee to appoint and make available service of any senior adv 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 committee today itself to take the appropriate steps in the matter. List all these matters for disposal on September 14, 2021.”