BOMBAY HIGH COURT CONTROVERSIAL JUDGMENT ON POCSO ACT, 2012

Case Analysis

BOMBAY HIGH COURT CONTROVERSIAL JUDGMENT ON POCSO ACT, 2012

June 23, 2021

By:- Divya Maini

IN CONTEXT OF LITERAL RULE OF INTERPRETATION

INTRODUCTION

To deal with sexual assaults and exploitation over children, the government has established a special law, Protection of Children from Sexual Offences (POCSO) Act, 2012. It is a comprehensive law for the protection of the children from the offences of sexual abuse, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process. The said act prescribes stringent punishment keeping in mind the gravity of the offence.

SEXUAL ASSAULT

Section 7 and 8 of the POCSO Act provides for the provisions regarding sexual assault and punishment.

Section 7 of the POCSO Act:

“A person is said to commit sexual assault when such person 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 which involves physical contact without penetration.”

Section 8 of the POCSO Act:

“A person who commits sexual assault, shall be punished with imprisonment of not less than three years which can be extended up to five years, and also be liable to fine.”

ASSAULT OR CRIMINAL FORCE TO WOMEN

Section 354 of the Indian Penal Code:

“A person who assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he may outrage her modesty, shall be punished with imprisonment of not less than 1 year which may extend up to 5 years and also liable to fine. This Section mainly focuses on assault or force against women.”

PUNISHMENT FOR KIDNAPPING

Section 363 of the Indian Penal Code:

“A person who kidnaps any person from India or from any lawful guardianship, that person shall be punished with imprisonment for a term which can be extended up to seven years, and shall be liable to fine.”

PUNISHMENT FOR WRONGFUL CONFINMENT

Section 342 of the Indian Penal Code:

“A person who wrongfully confines any person shall be punished with imprisonment for a term which can be extended up to one year, or with fine up to one thousand rupees, or both.”

AUTHOR OF THE CONTROVERSIAL JUDGMENT

Justice Pushpa Ganediwala, author of controversial POCSO judgment has not been made a permanent judge, rather now she is an Additional Judge of for another 1 year which was stated by the Law Ministry.

BOMBAY HIGH COURT ON SEXUAL ASSAULT (Satish Ragde V. State of Maharashtra)

Facts of the case:

On 14^th December, 2016, the mother of the girl lodged a report at police station of Gittikhadan, Nagpur, stating that the appellant took her daughter aged12 years, on the pretext of giving her guava, took her in his house. The accused pressed her breast and attempted to remove her salwar. Girl’s mother reached to the house of the accused, while searching for her daughter. She found her daughter in his house and rescued her. Later, her daughter narrated the incident that the accused brought her to his house and pressed her breast and when he tried to remove her salwar, she shouted. Immediately, girl’s mother lodged the First Information Report. On the basis of the FIR, crime was registered against the accused for the offence punishable under Sections 354, 363 and 342 of the Indian Penal Code and under Section 8 of the Protection of Children from Sexual Offences Act. Thereafter, police started the investigation. After investigation, the charge-sheet was filed against the accused in the Special Court of Nagpur.

Issue of the case:

Here, arises a question whether the ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘Sexual Assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act?

Judgment of the case:

The Nagpur bench of the Bombay High Court stated that the pressing of breast, 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’. Further, court added that having regard to the nature and circumstances of the case, such act would fall within the definition of the offence under Section 354 of the Penal Code,which states that “the act of pressing of breast can be a criminal force to woman with the intention to outrage her modesty. Minimum punishment to be provided for the said offence is 1 year, which may extend to 5 years and shall also be liable to fine.” Also, the court noted that there was no direct physical contact i.e., skin to skin with sexual intent without penetration.

Hence, it was held that the accused shall be acquitted under Section 8 of the POCSO Act and convicted under minor offence under Section 354 of the Indian Penal Code.

Literal Rule of Interpretation: –

The issue in this judgment comes down to the interpretation of ‘Sexual Assault’ provided under Section 7 of the POCSO Act and whether it would include the ‘contact’/’groping’ which occurred over the clothes of the child?

The structure of the POCSO Act provides that the act is meant “to protect the children from sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences.” The primary duty of the judge, while passing judgments and interpreting any provision of a statute, is to give effect to the intent of the legislature. The best way to justify the structure of the legislature is by plain reading of the intent of the legislature. The court should have focused on the structure of the POCAO Act. The judge shouldn’t have given a narrow interpretation which curtailed the scope of Section 7 of the POCSO Act.

It was observed that the judge interpreted the phrase “any other act” which is provided in Section 7 to state that the act of pressing/groping the breasts over clothes would not be included in the phrase. The phrase was determined according to the principle of ejusdem generis which means ‘of the same kind’, where law lists down specific classes of persons or things and then refers them to in general, the general statements only apply to the same kind of persons or things specifically listed. The judge presumed that according to the principle ejusdem generis, the act of pressing of breasts over clothes is not of same kind to the preceding part of Section 7. However, the court should have given the judgment in the best interest of the child even if they use the principle ejusdem generis. The act of touching the private parts of the child with sexual intent should have been included in the phrase “any other act” which should also include physical touching that is ‘skin to skin’ contact.

Therefore, the POCSO Act goes beyond IPC which provides specific provisions for dealing with “non-penetrative” sexual assault; however, the same was disabled by the judge’s misconceived interpretation in this judgment which also resulted in the failure of the intent of the legislature.

CONCLUSION

This judgment of Bombay High Court on POCSO Act, 2012 risks making the law redundant. The case revolves around the sexual assault and exploitation over children. While judging the case, the court has not given much of a consideration to the fact that the victim is a minor and is entitled to greater protection. The Protection of Children from Sexual Offences Act provides a special layer of protection to children from sexual offences beyond Indian Penal Code. The only concern in this judgment was that the purpose of the POCSO Act was defeated. This made the act invalid in the cases of sexual assault to minor and applying Indian Penal Code instead, the honorable court missed out on the legislative history and object of the POCSO Act.

The case was judged on the basis of Literal Rule of Interpretation. The judge interpreted the phrase “any other act” of Section 7 of the said act according to the principle of ejusdem generis which means ‘of the same kind’. It has been presumed that the act of pressing of breasts over clothes is not of same kind to the preceding part of Section 7. Therefore, the given misconceived interpretation by the Bombay High Court is against the basic idea of the particular legislature that is the Protection of Children from Sexual Offences (POSCO) Act.