Supreme Court stays Bombay HC order on 'skin-to-skin' contact must for sexual assault under POCSO

The Supreme Court has stayed the controversial judgment of the Bombay High Court which had held that pressing the breast of a 12-year old child without removing her top will not fall within the definition of 'sexual assault' under Section 7 the Protection of Children from Sexual Offences Act.

A bench headed by Chief Justice SA Bobde observed 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 an 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 the POCSO Act. Issue notice to accused returnable in two weeks," the Apex court ruled.

The High Court order had said that "the act of pressing of the 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."

A bench headed by Chief Justice SA Bobde observed 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 an 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 the POCSO Act. Issue notice to accused returnable in two weeks," the Apex court ruled.

The High Court order had said that "the act of pressing of the 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."

The ruling by the Nagpur bench of the high court had come under the intense scrutiny of child and women's rights groups and activists. The convict was accused of luring the 12-year old to his house on the pretext of giving her guava, and pressing her breast and attempting to remove her salwar.

According to the National Commission for Women, the high court judgment would not only have a cascading effect on various provisions involving the safety and security of women in general but also subject all women to ridicule."

The Supreme Court stay came after the Youth Bar Association of India filed a plea in the Supreme Court against the high court order. The petition stated that the high court's observations would have a wide impact on the entire society and public at large, and lower the repute of the entire nation.

How does the POCSO Act define sexual assault?

Section 7 of the POCSO Act states, “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."

The ruling by the Nagpur bench of the high court had come under the intense scrutiny of child and women's rights groups and activists. The convict was accused of luring the 12-year old to his house on the pretext of giving her guava, and pressing her breast and attempting to remove her salwar.

According to the National Commission for Women, the high court judgment would not only have a cascading effect on various provisions involving the safety and security of women in general but also subject all women to ridicule."

The Supreme Court stay came after the Youth Bar Association of India filed a plea in the Supreme Court against the high court order. The petition stated that the high court's observations would have a wide impact on the entire society and public at large, and lower the repute of the entire nation.

How does the POCSO Act define sexual assault?

Section 7 of the POCSO Act states, “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."