The Supreme Court on Thursday set aside the controversial judgment of the Bombay HC which held that ‘skin-to-skin’ contact is necessary for the offence of sexual assault under Protection of Children from Sexual Offences (POCSO) Act.
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.
Important observations by the Supreme Court
Justice Bela Trivedi, who read out the operative portion of the judgment, stated that restricting ‘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.
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. The Construction of rule should give effect to rule rather than destroying it. The purpose of the law cannot be to allow the offender to escape the meshes of the law.
Since the Act does not define ‘touch’ or ‘physical contact’, the dictionary meanings were referred. Act of touch, if done with sexual intent, will be an offence. Most important ingredient is the sexual intent and not the skin-to-skin contact of the child. Sexual intent is a question of fact which is to be determined from the attendant circumstances.
When legislature has expressed clear intention, the courts cannot create ambiguity in the provision.
The Courts cannot be overzealous in creating ambiguity.
After the judgment was pronounced, Justice Lalit, the presiding judge thanked the amicus curiae Senior
Advocate Sidharth Dave, and Senior Advocate SiddharthLuthra, who gave legal aid to the accused on
behalf of the Supreme Court Legal Services Committee. “I think this is the first time the Attorney General has challenged a judgment on the criminal side. Also this is the first time brother and sister opposed each other”, Justice Lalit said.
