The Nagpur Bench of Bombay High Court held that groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault as defined under the POCSO Act. According to the HC, the man “groped the child without removing her clothes”, hence the offence cannot be termed as sexual assault, but falls only under Section 354 of the Indian Penal Code i.e. outraging a woman’s modesty. The HC had modified the order of a sessions court, which had sentenced the accused under POCSO Act and the IPC, to three years of imprisonment, for sexually assaulting a 12-year-old girl. The HC acquitted him under the POSCO Act and upheld the conviction under section 354 of the IPC. The court reiterated that, “Considering the stringent nature of punishment provided for the offence (under POCSO), in the opinion of this court, stricter proof and serious allegations are required.”
In the POSCO Act sexual assault is defined under section 7 as “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” On the other hand, section 354 of the IPC is defined as, “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty.” The issue is that while sexual assault under the POCSO Act is harsher and entails minimum imprisonment of three years, the section 354 of IPC entails minimum imprisonment for one year only.
Thankfully, yesterday the Supreme Court of India put a stay on the judgement of the Bombay High Court and added that, “"Bombay High Court has apparently acquitted the accused under Section 8 of POCSO (punishment for sexual assault) on the ground that the accused had no sexual intent to commit offence under POCSO because there was no skin-to skin contact. Attorney General submitted that the order in question is unprecedented and is likely to set a dangerous precedent. We permit AG Venugopal to file a petition against the said order. In the meanwhile, we stay the acquittal of the accused with respect to the offence under Section 8 of POCSO Act. Issue notice to accused returnable in two weeks,"
Now the question is whether the Supreme Court of India will take an action against the judge who passed such a bizarre judgement or not?