SC stays 'disturbing' high court order on minor's groping
New Delhi, Jan 27: The Supreme Court on Wednesday stayed a Bombay High Court order that said the groping of a minor was "not sexual assault since no skin-to-skin contact".
A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian stayed the high court order after Attorney General K K Venugopal said the order would set a dangerous precedent.
The top court also issued notice to Maharashtra government and permitted the AG to file an appeal against the January 19 verdict of the Nagpur bench of the Bombay High Court.
Groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act, the Bombay High Court had said, in its controversial order on January 19.
Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court, in a judgement passed on January 19, the detailed copy of which was made available now, held that there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault.
She said in her verdict that mere groping will not fall under the definition of sexual assault.
Justice Ganediwala 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.
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, Justice Ganediwala 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 held.
While section 354 entails a minimum sentence of imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.
The sessions court had sentenced him to three years of imprisonment for the offences under the POCSO Act and 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," HC 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.
Justice Ganediwala further said in her verdict 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, held that this "physical contact" mentioned in the definition of sexual assault must be "skin to skin" or direct physical contact.