MUMBAI: Observing that any narrow and pedantic interpretation of the laws cannot be accepted, the Supreme Court on Thursday quashed the controversial judgment of the Bombay High Court which had held that "skin-to-skin" contact is necessary to invoke charges of sexual assault. The top court even set aside another verdict of the high court's Nagpur bench which had held that unzipping of pant after taking a minor inside a room wouldn't amount to outraging modesty of the girl.
This judgment is significant as the verdicts by Justice Pushpa Ganediwala of the Bombay High Court could have set a wrong and a "dangerous" precedent, pointed out K K Venugopal, the attorney general.
Justice Ganediwala had given two separate controversial verdicts. In one case, it had held that skin-to-skin contact was mandatory for prosecuting a person under charges of sexual assault. In another case, the judge had held that mere unzipping of pant and exhibiting the genitals to a minor wouldn't amount to sexual assault.
After this ruling, the Supreme Court had stopped the promotion of Justice Ganediwala.
A bench of Justices Uday Lalit and Bela Trivedi of the Apex Court on Thursday quashed these judgments.
It said, "Any narrow and pedantic interpretation which would defeat the object of the provision, cannot be accepted. It is also needless to say that where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result."
"Restricting the interpretation of the words 'touch' or 'physical contact' to 'skin-to-skin contact' would not only be a narrow and pedantic interpretation of the provision contained in section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision," the judges said.
"Skin-to-skin contact for constituting an offence of 'sexual assault' could not have been intended or contemplated by the Legislature. The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, in as much as touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent, would not amount to an offence of sexual assault under Section 7 of the POCSO Act."
"The most important ingredient for constituting the offence of sexual assault is the 'sexual intent' and not the 'skin-to-skin' contact with the child," the SC held.
The judges further observed that the courts cannot be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could last their whole life, and may also have an adverse effect on their mental state.
"The suffering of the victims in certain cases may be immeasurable. Therefore, considering the objects of the POCSO Act, its provisions, more particularly pertaining to the sexual assault, sexual harassment etc. have to be construed vis-a-vis the other provisions, so as to make the objects of the Act more meaningful and effective," the court observed.
"The High Court had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast, would not fall in the definition of sexual assault, and would fall within the definition of offence under Section 354 of the IPC. The High Court further erred in holding that there was no offence since there was no direct physical contact i.e. “skin-to-skin” with sexual intent," the top court ruled.
As far as the second judgment on the act of unzipping is concerned, the top court said that the HC had fallen into a grave error in recording such findings. "When the alleged acts of entering the house of the victim and sexual intent to outrage her modesty, of holding her hands and opening the zip of his pant showing his penis, are held to be established by the prosecution, there was no reason for the High Court not to treat such acts as the acts of sexual assault within the meaning of Section 7 of the POCSO Act," the top court held.
