[Skin-to-Skin Judgment] “An Outrageous Judgment Where If A Person Commits An Act Wearing Gloves, It Would Be No Offence At All,” Attorney General Tells Top Court

Arguing in appeals to a judgment of the Bombay High Court, Nagpur Bench which acquitted a man for an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), as there was no "skin-to-skin contact" between the accused and the victim, the Attorney General (AG) today told the Supreme Court, “It is an outrageous judgment – this is a judgment where if a person wears surgical gloves and commits an offence under Section 7, it would be no offence at all.”

A single judge bench of Justice Pushpa V. Ganediwala, of the Nagpur Bench of Bombay High Court had earlier held that since there was no “skin-to-skin contact" between the accused and the victim, the ingredients of Section 7 of the POCSO Act cannot be established stricto sensu.

Section 7 of the Act reads thus:

"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."

A division bench of Justice UU Lalit and Justice Ajay Rastogi heard the matter today, and issued directions to the Supreme Court Legal Services Committee to appoint an empanelled Senior Advocate in the matter, for representing the accused.

Adv. Chitnis appearing for the State of Maharashtra concurred with the submissions extended by the Attorney General.

Sr. Adv. Siddharth Dave appeared as Amicus in the matter.

The Nagpur Bench while acquitting the accused had reasoned:

"The Ld. APP read out Section 7 of the POCSO Act, which defines sexual assault and submitted that the act which has been proved by the prosecution “pressing of breast” comes within the definition of sexual assault under Section 7 of the POCSO Act.

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."

With respect to the aforementioned part of the impugned judgment, Venugopal submitted that the Court had failed to acknowledge that mere “sexual intent” is enough and “physical touch” need not be established, given to the facts of the case.

“Apparently the Judge did not consider the consequences of such a judgment,” added the Ld. AG.

On Jan 29, the Supreme Court had stayed the acquittal. The Attorney General, KK Venugopal had mentioned the matter seeking stay before a bench of the then Chief Justice SA Bobde, Justices AS Bopanna and V. Ramasubramaniun two days after the acquittal order was passed.

The court while issuing notice to the State, had asked the AG to file a formal petition in this regard.

The impugned judgment had held that 'pressing of breast' and an 'attempt to remove salwar' of a minor would not fall under the definition of 'sexual assault' under Section 7, POCSO Act, but would certainly fall under Section 354 IPC.

Justice Pushpa V. Ganediwala had observed that as per POSCO Act, a physical contact with sexual intent, without penetration is an essential ingredient of the offence and that the words “any other act” as stipulated under the section, would include only similar acts – acts specifically mentioned in the definition, applying the principle ejusdem generis.

Case Title: Attorney General for India v. Satish