A controversial verdict delivered by the Nagpur bench of Bombay high court was stayed outright by Chief Justice S A Bobde- led three member bench of the Supreme Court even without bothering to hear the first argument in the case. This act would bring oodles of happiness in the minds of people with some sense of justice.

The Nagpur high court bench’s verdict was the one that questioned even the ordinary sense of justice and the one that made a mockery of POCSO act brought about solely with the intention of protecting the dignity of girls.

In a controversial ruling on 24 January, the Bombay High Court said that groping a minor's breast without skin-to-skin contact doesn't fall under the definition of ‘sexual assault’ under the Protection of Children from Sexual Offences Act also known as the POCSO act.
These observations came in a hearing of an appeal filed by a man against his conviction under POCSO charges by a sessions court after he was accused of groping a minor’s breasts.
While acknowledging that the appellant did in fact grope the minor, a sitting judge of the Nagpur bench acquitted him off POCSO charges, saying that groping without skin-touch only amounts to molestation under the Indian Penal Code.
Although the court upheld the conviction of the appellant under Section 354, the ruling almost immediately drew a lot of outrage on social media from celebrities and other citizens alike.
While some pointed to the irony in the fact that the judgment came on the same day that is observed as the National Girl Child’s Day, others are questioning if it’s a fair deduction of the law.

In the Bombay high court, a single bench of Justice Pushpa Ganediwala made the observations while modifying an order by a sessions court that held a 39-year-old man guilty of sexual assault. The accused had allegedly taken a 12-year-old to his house on the pretext of giving her guava, and had gropped her breast and attempted to remove her salwar, according to Prosecution. The accused was convicted by the trial court for offences punishable under POCSO Act and the IPC. He approached the Bombay High Court challenging the conviction.

During the hearing on January 19, the High Court questioned whether the man’s pressing of child’s breasts without removing the top would fall within the definition of “sexual assault” under Section 7 of the POCSO Act. “Admittedly, it is not the case of the prosecution in which the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration.”

Section 7 of the POCSO Act states, “Whoever, 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.”

Based on the above definition, the Bombay high court concluded that for a person to be held guilty under this law, the act would have to be committed with a “sexual intent”, and it must involve “touching the vagina, penis, anus or breast of the child or any other act, which are similar to the acts specifically mentioned in the provision”.

“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 top and pressed her breast, would not fall in the definition of ‘sexual assault’,” the bench said. “It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code.”

Justice Ganediwala also ruled that given the “stringent nature of punishment” provided under the POCSO Act, “stricter proof and serious allegations” were required to hold the accused guilty. She said the punishment for an offence should be proportionate to the seriousness of the crime.

“Section 7 of the POCSO Act, defines sexual assault and the minimum sentence provided is three years and Section 354 of the Indian Penal Code, which is related to outraging the modesty of a woman, prescribes minimum sentence of one year,” the court observed. “In the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fit into the definition of the offence as defined in Section 354 of the Indian Penal Code.”

The judge, therefore, acquitted the accused under POCSO Act, while upholding his conviction under Section 354 of the Indian Penal Code. Considering that the man was out on bail, the court forfeited his bail bond, and issued a non-bailable warrant against him.

The controversial verdict of the Pune high court should be corrected.
The Supreme Court on Wednesday put on hold the order passed by the Bombay High Court that acquitted the man after observing that groping without “skin-to-skin contact” does not constitute as sexual assault under the Protection of Children from Sexual Offences Act, Live Law reported.

A bench headed by Chief Justice of India SA Bobde stayed the acquittal on a mention made by the Attorney General of India KK Venugopal on Wednesday. He submitted that the judgement was “unprecedented” and “is likely to set a dangerous precedent”.
The chief justice-led bench that came to realize the adverse impact of the Bombay court order acted in a jiffy.

Justice Bobde asked Venugopal to file a petition against the judgement. The court also issued notice to the accused in the case and sought his response in two weeks.
Following the January 19 order of the Bombay high court, there was nationwide protest against it. Children’s organisations and women’s organizations, and legal experts had come out against the verdict.

The bizarre verdict of the Bombay court had been questioned by the entire society.
In these times when even children of tender ages are sexually assaulted, the element that helps these criminals to escape through loopholes should not the judicial system, which is the last resort of ordinary citizens.

The apex court may have stayed the Bombay high court bench’s verdict only because of the conviction that the verdict if allowed remain in the annals of history untouched would pose a high danger.

At this time when making an amorous glance at a girl or making sleazy comments against them is a punishable act in this country commuting the punishment of the culprit instead of punishing him is something hard to digest.

What is more surprising is the fact that such a ruling that kills even basic aim of POCSO act had come from a high court.

Now all eyes are on the apex court to see what its final verdict would be.
If some loopholes are there in POCSO case, it will have to be plugged immediately.
Both Parliament and judiciary will have to take up that responsibility.

It is a truth that despite strict POCSO law, cases of assault against women are not less.

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There have been controversial rulings from the courts before also in sexual assault cases against women. The incident in which a bid was made to give leniency in the punishment of an accused in a rape case by making the victim marry him may be recalled in this context.

The Walayar rape and murder case may also be recalled. In the appeal against POCSO court’s verdict acquitting the accused, the High Court had recently criticized the negligence shown by the Pocso court.

The high court even asked the government to make special arrangements train the judges who handled POCSO cases.
We are saying all this to remind the authorities concerned not to handle POCSO cases in a lighter vein.

What is more important is that the victims of sexual assault should get justice.

The Bombay court’s skin-to-skin-contact’ verdict may be based on the scrupulous analysis of the relevant section of the POCSO act.

But for people who put their trust in womanhood and girl children’s safety, this strange verdict will be indigestible.