Sexual intent of offender forms assault: SC quashes “No skin-to-skin contact” order

The Supreme Court on Thursday quashed a Bombay High Court decision to acquit a man charged with assault under POCSO solely on the grounds that he groped the child over her clothes without ‘skin-to-skin’ contact.

The top court aside the controversial judgment of the Bombay HC in January this year that held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

A bench comprising Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi pronounced the judgment in the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the judgment of the High Court, Live Law reported.

Restricting ‘touch’ or ‘physical contact’ under Section 7 of POCSO is absurd and will destroy the intent of the POSCO, Justice Bela Trivedi observed.

Restricting the meaning of expression ‘touch’ and ‘physical contact’ under Section 7 of POCSO to “skin to skin contact” would not only be narrow and pedantic interpretation but will also lead to absurd interpretation of the provision, Live Law reported as the top court saying.

“If such an interpretation is adopted, a person who uses gloves or any other like material while physical groping will not get conviction for the offence. That will be an absurd situation,” Justice Bela Trivedi said.

According to Justice Bhat, the Bombay HC’s erred in coming to such a conclusion as its reasoning “insensitively trivialized, legitimized and normalized behavior which undermines dignity of children.”

“We have held that when the legislature has expressed clear intention, the courts cannot create ambiguity in the provision. It is right that courts cannot be overzealous in creating ambiguity,” the bench said. 

On January 27 this year, the top court had stayed the controversial verdict of the Nagpur bench of the Bombay High Court after the Attorney General had mentioned it before the SC. He was allowed to file an appeal against the verdict.