Skin to skin contact: NCW moves Supreme Court against Bombay HC verdict

The National Commission for Women (NCW) has moved the Supreme Court challenging the Bombay High Court verdict which had said that groping a minor's breast without "skin to skin contact" cannot be termed as sexual assault as defined under the Protection of Children from Sexual Offences (POCSO) Act.

A bench headed by Chief Justice S A Bobde had on January 27 stayed the high court's verdict after Attorney General K K Venugopal had mentioned the matter before it and said that the judgment was unprecedented and was likely to set a dangerous precedent.

The top court had also issued notice to Maharashtra government and permitted the Attorney General to file an appeal against the January 19 verdict of the Nagpur bench of the Bombay High Court.

In its plea filed in the apex court, the NCW has said that if such a perverse interpretation of physical contact is allowed, it will adversely impact the basic rights of women, who are victims of sexual offences in the society and will undermine the beneficial statutory safeguards prescribed under various legislations aimed at protecting the interest of women.

The petitioner is aggrieved by the impugned order, and the perverse interpretation adopted by the high court that the term physical contact' in section 7 POCSO Act means only skin to skin touch', the plea said.

The NCW has said that such a narrow interpretation adopted in the high court order sets a dangerous precedent which would have a cascading effect on the safety of women and children.

In its verdict, the high court had said that since the man groped the child without removing her clothes, the offence cannot be termed as sexual assault but it does constitute the offence of outraging a woman's modesty under section 354 of the Indian Penal Code.

It had modified the order of a sessions court, which had sentenced a 39-year-old man to three years of imprisonment for sexually assaulting a 12-year-old girl.

A lawyers' body, Youth Bar Association of India', has already filed a plea in the top court against the high court verdict.

As per the prosecution and the minor victim's testimony in the court, in December 2016, the accused had taken the girl to his house in Nagpur on the pretext of giving her something to eat.

Once there, he gripped her breast and attempted to remove her clothes, the high court had recorded in the verdict.

However, since the accused groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman's modesty under IPC section 354, the high court had held.

While IPC section 354 entails a minimum imprisonment for one year, sexual assault under the POCSO Act entails a minimum imprisonment of three years.

The sessions court had sentenced the man to three years of imprisonment for the offences under the POCSO Act as also under section 354 of the IPC. The sentences were to run concurrently.

The high court, however, acquitted him under the POCSO Act while upholding his conviction under IPC section 354.

"The act of pressing of breast of the child aged 12 years, in the absence of any specific detail 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," it had said.

It had said that "the act of pressing breast can be a criminal force to a woman/ girl with the intention to outrage her modesty".

The POCSO Act defines sexual assault as when someone "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".