India moving from Healthcare Follower to Global Leader in Precision Medicine and Biomanufacturing: MoS (See 'Corp Brief') SECL's Vigilance-led Initiative 'Prayas' Ensures Timely PF & Pension Settlement (See 'Corp Brief') Agrinnovate India presents Rs.3.4 Crore dividend to Chouhan (See 'Corp Brief') 6 Railway Stations in West Bengal redeveloped under Amrit Bharat Station Scheme (See 'Corp Brief') NHAI receives warm response from Bidders for Construction of Kaliabor to Numaligarh Section of NH (See 'Corp Brief') MSDE signs MoU with GATI Foundation to Strengthen Global Skill Mobility (See 'Corp Brief') DFS Secy meets NBFCs to discuss targeted points pertaining to the sector (See 'Corp Brief') 41% of India's Scientists are Women: Chouhan Highlights women Agri-Power (See 'Corp Brief') Companies Act - Technical provisions of Companies Act cannot be relied on to evade compliance with a Court decree prohibiting the judgment debtor from transferring the shares to any third party: HC (See 'Legal Desk') IBA hosts RRB Conclave 2026 on 'Next-Gen Reforms for RRBs' (See 'Corp Brief') MoEFCC organizes Workshop to address Challenge of Elephant-train Collisions (See 'Corp Brief') Govt, Civil Society & Tech leaders unite to build Model for Persons with Hearing Impairment (See 'Corp Brief') PMLA - Appearance of Appellant, ordinarily operating in Mumbai, before SAFEMA Appellate Tribunal at Delhi, does not confer territorial jurisdiction to the Delhi High Court over Appellant: HC (See 'Legal Desk') NHAI gets warm response from Bidders for Four-Laning of Dhamasiya-Bitada in Gujarat (See 'Corp Brief') Metro in India a 'Silent Revolution' transforming Urban Mobility and Society (See 'Corp Brief') CCI approves acquisition by Cube V of road asset business of DYIPL, DVIPL, DGIPL and DTEHPL (See 'Corp Brief') CCI approves acquisition of stake in Curefit Healthcare by MacRitchie Investments (See 'Corp Brief') IBC - Once Resolution Plan is approved by NCLT u/s 31 of IBC, it becomes binding on all stakeholders, and all claims not provided for in plan stand extinguished: HC (See 'Legal Desk') Country ready for any Unprecedented Demand for Coal: Govt (See 'Corp Brief') DPIIT signs MoU with Voltas Limited to support Industry-Start-up Collaboration for Smart Appliance Technologies (See 'Corp Brief') New Delhi Frontier AI Impact Commitments were Signed by 13 Leading Model Providers (See 'Corp Brief') APEDA showcases Agri and Processed Food Export Strength at AAHAR 2026 (See 'Corp Brief') IPR - Party seeking cancellation of registered trademark on grounds of similarity and prior rights must first establish its own prior and continuous use of its mark as trademark: HC (See 'Legal Desk') Capacity Building Commission hosts workshop on sustainable financing & resource mobilisation (See 'Corp Brief') Govt boosts Credit Flow to Agriculture Sector through targeted Policy Measures (See 'Corp Brief') IBC - Application of Discount for Lack of Marketability is permissible valuation methodology under Indian Accounting Standards for determining fair value of unlisted, illiquid shares in context of capital reduction: SC (See 'Legal Desk') IICA holds 4th Batch of Directors' Certification for Defence Officers (See 'Corp Brief') Financial inclusion campaign was held in 2.7 lakh Gram Panchayats and ULBs (See 'Corp Brief') A&C - Award can be set aside only on specific grounds such as being contrary to fundamental policy of Indian law, violating basic notions of morality or justice, or suffering from patent illegality that goes to root of matter: HC (See 'Legal Desk') ICANN85 in Mumbai highlights Collaboration for resilient Internet (See 'Corp Brief') Minister chairs 35th Meeting of Standing Committee of Voluntary Agencies (See 'Corp Brief') A&C - amendment to petition filed u/s 34 of Arbitration Act, cannot be permitted under Order VI Rule 17 of CPC if its effect is to introduce challenge to distinct part of arbitral award: HC (See 'Legal Desk') NITI Aayog convenes Regional Best Practices Seminar (See 'Corp Brief') FTAs opening New Opportunities for Pharma, Healthcare and MedTech Sectors: Goyal (See 'Corp Brief') MSME Ministry promotes Energy Efficiency and Green Practices in MSME Sector (See 'Corp Brief') Transforming Mined Landscapes: NLC India's Journey in Sustainable Mine Restoration (See 'Corp Brief') IEPFA-NCAER jointly organise Investor Education and Protection Workshop (See 'Corp Brief') IPR - Proprietorship of trademark, as general rule, vests in manufacturer who affixes mark on product, not in importer or distributor of those goods: HC (See 'Legal Desk') Chouhan holds post-Budget discussion with coconut farmers in Chennai (See 'Corp Brief') IBC - Creditor cannot be forced to elect its remedy or apportion its claim between principal debtor and guarantor: SC (See 'Legal Desk') IBC - Judicial review by NCLT & NCLAT does not extend commercial wisdom of Committee of Creditors in evaluating and approving resolution plan: SC (See 'Legal Desk') A&C - Pre-award and post-award interest operate in distinct fields and contractual bar applicable to former cannot, by implication, be extended to latter: SC (See 'Legal Desk') MoS interacts with beneficiaries of desalination plant in Kavaratti (See 'Corp Brief') A&C - Court will not grant specific performance of contractual obligation that is contingent upon discretionary approval of third-party government authority: HC (See 'Legal Desk') A&C - Contractual clause that expressly and widely bars payment of interest on ‘any moneys due to contractor' prohibits arbitral tribunal from awarding pre-reference and pendente lite interest on all claims: HC (See 'Legal Desk') Supreme Court Clears Path For Single Insolvency Proceedings Against Linked Group Companies (See CORP EINSICHT)

Controversial Interpretation of the POCSO Act

Published: Mar 02, 2021

By Shradha Rajgiri and Pooja Rao*

THE Nagpur Bench of Bombay High Court ('High Court') has recently delivered two controversial judgments, which have caught the eye of the public. While interpreting provisions of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act'), the dictum given in both these decisions are profoundly flawed and absurd. POCSO Act was primarily enacted to protect minors and young children against sexual offenses. Sexual offences against children are innately serious due to the inherent vulnerability of the victim child and the ability of an abuser to overpower them.

The Bench on both these occasions, delivered the judgment on the aspects of what constitutes physical contact and touch, severity of the sexual offenses, among others.

Brief Facts

Libnus v. State of Maharashtra, Criminal Appeal No. 445/2020 1('Libnus case')

In the said case, a 50-year-old man unzipped his pants and held the 5-year-old girl's hand. The victim had also told her mother that the accused had taken his genitals out of his pants and asked her to sleep with him. The accused was convicted for the aggravated sexual assault under Section 10 of the POCSO Act and Section 12 of POCSO Act, in addition to Sections 354A and 448 of Indian Penal Code, 1860 ('IPC').

The High Court of Bombay held that the punishment for sexual assault as prescribed under Sections 8 and Section 10 of the POCSO Act be set aside and in so far, the conviction of the accused for the offence punishable under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO Act be maintained. The observation made in this regard was that 'holding the hands of the prosecutrix', or 'opened zip of the pant' as has been allegedly witnessed by one of the prosecution witnesses in the case, in the opinion of the Court, would not fall within the definition of 'sexual assault'. This judgment was rendered on the January 15, 2021.

Satish v. State of Maharashtra, Criminal Appeal No.161/2020 2('Satish Case').

Subsequently, on the January 19, 2021, the same Bench delivered another judgement on similar lines. In this case the informant (mother of the prosecutrix) alleged that the accused, on the pretext of giving her 12-year-old daughter guava, took her to his house and pressed her breasts. The informant therein filed a First Information report ('FIR') . Based on the FIR, a crime case came to be registered against the accused for the offences punishable under Sections 354, 363 and 342 of the IPC and under Section 8 of the POCSO Act. The Special Court had passed the judgment of conviction and sentenced the accused however acquitted the accused for the offenses punishable under Section 309 of the IPC.

The Judgement delivered by the Special Court was appealed before the High Court. Considering the facts, the Bench went onto analyse 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.

As per the definition of 'sexual assault', the offence involves the following necessary ingredients:

(i) Act must have been committed with sexual intent.

(ii) Act must involve touching the vagina, penis, anus, or breast of the child, or making the child touch the vagina, penis, anus or breast of such person or any other person, or doing any other act with sexual intent which involves physical contact without penetration

As per the observations of the Bench, for the offence to qualify as 'sexual assault', a 'physical contact with sexual intent without penetration' is an essential ingredient. Insofar as whether 'pressing of breast' falls within the purview of sexual assault under Section 7 of the POCSO Act is concerned, the Hon'ble High Court observed that it was not the case of the prosecution that the accused removed the top and pressed the breast of the Prosecutrix. As such, there being no direct physical contact i.e., skin to skin with sexual intent without penetration, the Bench held that the accused was acquitted under Section 8 of the POCSO Act and convicted under a minor offence u/s 354 of IPC.

Analysis

In the Satish case, the Court noted that the requirements of Section 7 of the POCSO Act were not met, as the prosecutrix's clothes were not removed, and the accused was also not able to remove her underpants, because when he tried to do so she shouted and he left the room, bolting it from the outside. The Court held that the act of the accused would be an act of "outraging the modesty of a woman" as defined in Section 354 of IPC. The Bench also observed that for punishment under Section 8 of POCSO Act, the offence defined in Section 7 is "disproportionate" to the gravity of the act that was committed.

In the Libnus case, the Bench quashed the conviction of the accused for the offense punishable under Sections 8 and 10 of the POCSO Act. The Bench in this case noted that the nature of the offense committed by the accused and the sentence prescribed by the Special Court are not in consonance with each other. At best, the crimes may be in the nature of aggravated sexual assault.

When the highest form of judiciary in a particular state adopts an approach completely unprecedented and against the morale of the society, no further hope remains with the victims suffering in pain and agony. Recently in the case of State of Maharashtra v. Sahar Ali Shaikh, before the Special Court of POCSO Act constituted under the Sessions Court in Mumbai, it was presented that the accused had approached the victim and touched her posterior. The Court held that touching of the posterior could not be held to be mere teasing and holding the accused guilty, sentenced him to 5 years of imprisonment with a fine of Rs. 10,000/-.

Conclusion

Merely reducing the commission of the offense to a piece of cloth between the assaulter and the victims is completely repulsive in nature. This could have a larger implication on the society as well as legally. Such decisions in turn could discourage the victims from reporting such crimes and invalidate the sexual abuse faced by women and children. The interpretation given by the Bench of the Bombay High Court, would reduce the crime and affix lesser punishments on offenders. This could also leave male victims remediless in a similar situation, as Section 354 of the IPC is only available for female victims.

Therefore, the present interpretation by the Court also goes against the objectives of the POCSO Act.

Sexual assault remains as sexual assault, with no essentials or gradational qualification to it. The same is to be kept in mind before the Judiciary goes on a spree of passing judgments.

In this regard, the Hon'ble Supreme Court of India has stayed the operation of the controversial judgment of Satish v. State of Maharashtra, and Libnus Case . The Attorney General in the Libnus case also asserted that it was ""unprecedented" and "sets a dangerous precedent".

[The authors are Advocates with Shivadass & Shivadass (Law Chambers) and the views expressed are strictly personal.]

1 Libnus v. State of Maharashtra, Criminal Appeal No. 445/ 2020, 2021 SCC OnLine Bom 66

2 Satish V. State of Maharashtra, Criminal Appeal No.161/2020

TIOL CORP SEARCH

TIOL GROUP WEBSITES