CASE NOTE: Attorney General of India vs. Satish & Anr. [Crl. A. No. 1410/2021].
A bench comprising of Hon’ble Mr. Justice Uday Umesh Lalit, Hon’ble Mr. Justice Mr. Justice S. Ravindra Bhat and Hon’ble Ms. Justice Bela M. Trivedi vide its final Judgement and Order dated 18.11.2021 has set aside the final Order and Judgment dated 19.01.2021 (“Impugned Order”) passed by the Hon’ble High Court of Judicature at Bombay, Nagpur Bench (“High Court”) in the matter of Satish vs. The State of Maharashtra (Criminal Appeal No. 161 of 2020). The High Court in the aforementioned case had held that ‘skin-to-skin’ contact is necessary for the offence of sexual assault under Protection of Children from Sexual Offences (POCSO) Act, 2012 (“POCSO Act”). The Hon’ble High Court inter alia held as under:
“18 . Evidently, it is not the case of the prosecution that the appellant removed her top and pressed her breast. The punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific details as to whether 5 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’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code. For ready reference, Section 354 of the Indian Penal Code is reproduced below: “354. Assault or criminal force to woman with intent to outrage her modesty. – Whoever assaults or uses criminal force to any woman, with the intention to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
19. So, the act of pressing breast can be a criminal force to a woman/girl with the intention to outrage her modesty. The minimum punishment provided for this offence is one year, which may extend to five years and shall also be liable to fine.
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26. It is not possible to accept this submission for the aforesaid reasons. Admittedly, it is not the case of the prosecution that 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.”
[Emphasis Supplied]
The Bench pronounced the judgment in the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the Impugned Order.
The grave concern raised in the present matter before the Hon’ble Supreme Court by the Attorney General of India was the manner in which the provisions contained in the POCSO Act were interpreted by the High Court. It was vehemently argued that such interpretation would lead to devastating effect in the society at large. According to him, the High Court could not have acquitted the accused misinterpreting the provisions contained in Section 7 on the ground that there was no direct physical contact i.e. skin to skin contact made by the accused with the victim. He submitted that all the alleged acts of the accused i.e. taking the victim to his house, trying to remove her salwar, pressing her breast and pressing her mouth when she started shouting, were the acts amounting to “sexual assault” within the meaning of Section 7 punishable with Section 8 of the POCSO Act.
At this juncture, it is important to discuss Section 7 and 8 of the POCSO Act. Section 7 is extracted hereunder, for the ready reference of this Hon’ble Court:
Section 7 pertaining to “sexual assault” reads as under:
“7. 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.”
Section 8 providing for the punishment for sexual assault, reads as under
“8 – Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”
The purpose and object of enacting the POCSO Act was discussed before the Hon’ble Supreme Court, as transpiring from the statement of objects and reasons, since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalized, the POCSO Act was enacted to protect the children from the offences of sexual assault, sexual harassment and pornography and to provide for establishment of special Courts for trial of such offences and for matters connected therewith and incidental thereto.
Main Issues:
1. Whether the expression ‘physical contact’ used in Section 7 has to be construed as ‘skin to skin’ contact?
It was held by the Hon’ble Supreme Court that as per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. Where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.
2. Whether “skin to skin contact” is required to constitute an offence of sexual assault?
It was contended that is not the presence or lack of intervening material which should be focused upon, but whether the contact made through the material, comes within the definition prescribed for a particular statue, has to be seen. Reliance was made on the following judgements:
In Regina v. H (2005) 1 WLR 2005, the Court of Appeal while interpreting the word “touching” contained in Section 3 of the Sexual Offences Act, 2003 as in force in U.K, observed that the touching of clothing would constitute “touching” for the purpose of said Section 3. Similarly, in State of Iowa V. Walter James Phipps 442 N.W.2d.611 the Court of Appeals of Iowa held that a lack of skin-to-skin contact alone does not as a matter of law put the defendant’s conduct outside the definition of “sex act” or “sexual activity”, which has been defined in Section 702.17 of Iowa Code.
The Hon’ble Supreme Court held that the act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of “sexual assault” under Section 7. Reliance was placed on the case of Balaram Kumawat Vs. Union of India (2003) 7 SCC 628, wherein it was held that the law would have to be interpreted having regard to the subject matter of the offence and to the object of the law it seeks to achieve.
3. Are the circumstances material to decide whether touch or physical contact is motivated by ‘sexual intent’?
The circumstances in which touch or physical contact occurs would be determinative of whether it is motivated by ‘sexual intent’. There could be a good explanation for such physical contact which include the nature of the relationship between the child and the offender, the length of the contact, its purposefulness; also, if there was a legitimate non-sexual purpose for the contact. Also relevant is where it takes place and the conduct of the offender before and after such contact. In this regard, it would be useful to always keep in mind that “sexual intent” is not defined, but fact-dependent – as the explanation to Section 11 specifies. (Para 25)
Held
1. It was held that the interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” is also thoroughly misconceived. It may be noted that the principle of “ejusdem generis” should be applied only as an aid to the construction of the statute. It should not be applied where it would defeat the very legislative intent. As per the settled legal position, if the specific words used in the section exhaust a class, it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words. So far as Section 7 of the POCSO Act is concerned, the first part thereof exhausts a class of act of sexual assault using specific words, and the other part uses the general act beyond the class denoted by the specific words. In other words, whoever, with sexual intent touches the 31 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, would be committing an offence of “sexual assault”. Similarly, whoever does any other act with sexual intent which involves physical contact without penetration, would also be committing the offence of “sexual assault” under Section 7 of the POCSO Act. In view of the discussion made earlier, the prosecution was not required to prove a “skin to skin” contact for the purpose of proving the charge of sexual assault under Section 7 of the Act. (Para 41)
2. It was further held that that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged acts that he had pressed the breast of the victim, attempted to remove her salwar and had also exercised force by pressing her mouth. All these acts were the acts of “sexual assault” as contemplated under section 7, punishable under Section 8 of the POCSO Act. (Para 42)
3. It was further held that the accused-Libnus had committed an offence of “sexual assault” within the meaning of Section 7 of the POCSO Act and the prosecutrix being below the age of 12 years, had committed an offence of “aggravated sexual assault” as contemplated under Section 9(m) of the said Act and is liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act. In that view of the matter, the judgment and order of the High Court in so far as it has set aside the conviction of the accused-Libnus for the offences under Section 8 and 10 of the POCSO Act is liable to be set aside, and the judgment and order of conviction and sentence passed by the Special Court is required to be restored.(Para 43)
In view of the above facts and circumstances, the Hon’ble Supreme Court ordered as under :
“46. The accused-Libnus s/o Fransis Kujur is hereby convicted for the offences punishable under Sections 354-A (1)(i) and 448 of the 35 IPC as also for the offences under Sections 8, 12 and 10 read with Section 9(m) of the POCSO Act. He is directed to undergo rigorous imprisonment for a period of five years for the offence under Section 10 of the POCSO Act and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only) and in default thereof to suffer simple imprisonment for a period of six months. Since he has been sentenced for the major offence under Section 10 of the POCSO Act, no separate sentence is being imposed upon him for the other offences under the IPC and the POCSO Act.”
Before concluding, Justice Ravindra Bhat quoted Benjamin Cardozo’s quote that “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” It is, therefore, no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.
The present judgement while holding that the most important ingredient constituting sexual assault is sexual intent and not skin-to-skin contact with the child, gives broader interpretation to the provisions of the POCSO Act and indubitably is a ray of hope that will help uphold legal safeguards for women and children. It is rightly said that the purpose of the law cannot be to allow the offender to sneak out of the meshes of law.
The article is authored by Ms. Tanvi Dubey Advocate, practicing in the Supreme Court of India and associated with Shardul Amarchand Mangaldas& Co. as a Senior Associate. The present article is written in her personal capacity.