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A Justice UU Lalit-led bench of the Supreme court has held that restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” is 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.

“Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. It is also needless to say that 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”, held the Court.

In its judgment against a Bombay High Court’ verdict which had held that no offence of sexual assault under the POCSO Act was made out if there is no direct "skin-to-skin" contact between accused and the victim, the Court has held that “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature.

A bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi further held that the very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act.

Enumerating the detrimental affect of such interpretation, the bench said,

“…inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act.”

In this regard, the bench went on to clarify that the most important ingredient for constituting the offence of sexual assault under Section 7 of the Act was the “sexual intent” and not the “skin to skin” contact with the child.

The Court was further of the view that an 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.

Referring to Senior Advocate Siddharth Luthra’s argument on there being an ambiguity, due to lack of definition of the expressions - “sexual intent”, “any other act”, “touching” and “physical contact”, used in Section 7, the top court relied on the settled legal position that clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole Statute relating to the subject matter.

“The Court cannot be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their whole life, and may also have an adverse effect on their mental state. The suffering of the victims in certain cases may be immeasurable. Therefore, considering the objects of the POCSO Act, its provisions, more particularly pertaining to the sexual assault, sexual harassment etc. have to be construed vis-a-vis the other provisions, so as to make the objects of the Act more meaningful and effective.”, remarked the Supreme Court.

In light of such legal position, the bench has held that the High Court fell into error in case holding the accused guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act.

The Court further found that the interpretation of Section 7 at the instance of the High Court on the premise of the principle of “ejusdem generis” was 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”, said the bench.

Accordingly, the court has directed the accused Satish to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- and in default thereof to suffer simple imprisonment for a period of one month for the offence under Section 8 of the POCSO Act.

Cause Title: Attorney General For India V Satish And Another