No sexual assault if no ‘skin to skin’ contact? Supreme Court stays Bombay High Court’s “dangerous precedent” on POCSO Act

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has stayed the controversial Bombay High Court judgment wherein the High Court had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that the accused had no sexual intent in committing the offence under POCSO Act because there was no direct physical contact, i.e., skin to skin.

The said order came after Attorney General for India K. K. Venugopal brought to the Court’s notice that the Nagpur Bench of Bombay High Court has passed a judgment dated 19.01.2021 is likely to set “a dangerous precedent”.

The Court, hence, permitted the Attorney General to file an appropriate petition against the said judgment and in the meantime, stayed the acquittal of the accused in the case in question.

The bench, further, issued notice to the accused and the State of Maharashtra returnable two weeks.

In judgment dated 19.01.2021, Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench, expressed that since there was no direct physical contact i.e. skin to skin with sexual intent without penetration, the said would not amount to ‘sexual assault’.

The Bench expressed 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 top and pressed her breast, would not fall in the definition of ‘sexual assault’.

[Attorney General for India v. Satish, 2021 SCC OnLine SC 42, order dated 27.01.2021]

ALSO READ

Bombay HC on Sexual Assault | Would ‘pressing of breast’ and ‘attempt to remove salwar’ of a child fall under S. 7 and punishable under S. 8 of POCSO Act?