New Delhi: The Supreme Court on Wednesday stayed the controversial verdict of the Bombay High Court which had held that groping the breast of a minor without removing the child's top will not fall within the definition of 'sexual assault' under Section 7 the Protection of Children from Sexual Offences Act (POCSO).
The stay was ordered by the bench of Chief Justice S A Bobde, Justices A S Bopanna and V Ramasubramanian after Attorney General KK Venugopal mentioned that matter submitting that "it is a very disturbing conclusion (by Bombay High Court)."
The top court also issued notice to Maharashtra government and permitted the AG to file an appeal against the January 19 verdict of Nagpur bench of the Bombay High Court.
In a judgement passed on January 19, the Bombay High Court said groping a minor's breast without ''skin-to-skin contact'' cannot be termed sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.
Justice Pushpa Ganediwala of the Nagpur bench of held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault.
It held, however, that since the man groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman's modesty under IPC section 354.
The high court had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.
It had drawn the ire of child rights bodies and activists, who have termed it "absolutely unacceptable, outrageous and obnoxious", and called for challenging the judgement.
The high court held that mere groping will not fall under the definition of sexual assault.
As per the prosecution and the minor victim's testimony in court, in December 2016, the accused, one Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat.
Once there, he gripped her breast and attempted to remove her clothes, the High Court had recorded in her verdict.
However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman's modesty under IPC section 354, the high court had held.
While IPC section 354 entails a minimum imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.
The sessions court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under IPC section 354. The sentences were to run concurrently. The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.
"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," the high court said.
"The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside the top and pressed her breast, would not fall in the definition of sexual assault," it said.
It further said that "the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty".
The POCSO Act defines sexual assault as when someone "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".
The court, in its verdict, had held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.
"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration," the High Court had said.