Author:- Shabbir Limkhedawala
INTRODUCTION
The Protection of Children from Sexual Offences (POCSO) Act
The Protection of Children from Sexual Offences (POCSO) Act was enacted in 2012, and is a special law to protect children. Despite of the Indian Penal Code (IPC) being gender biased, the POCSO Act is gender neutral, i.e., it recognizes that boys can also be the victim of sexual offences. The POCSO Act lays down stringent punishments as compared to IPC.
Also, the act specifically recognizes & imposes punishment for exposing children to, or using them to create child sexual abuse material (CSAM), i.e., “Child Pornography” and in such cases, the act may be used along with the Information technology Act. As per Section 28 of the POCSO Act, the State Government shall in consultation with the Chief Justice of the High Court, for each district set up a Special Court to hear the cases filed under the POCSO Act.
The POCSO Act has recently been into the news for the two controversial judgments passed by Pushpa Ganediwala, an additional judge of the Nagpur bench of Bombay High Court in the cases of child sexual abuse, Libnus v/s State of Maharashtra & Satish v/s State of Maharashtra. Which is the main focus of this article.
What is a Sexual Assault?
Sexual Assault is a broad term describing all sexual offences against adults and children. Under section 7 of the POCSO Act Sexual Assault is defined as,
“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.”
As per this definition, the offence involves the following necessary ingredients:
- Act must have been committed with sexual intention.
- Act involves touching 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.
- Act with sexual intent which involves physical contact without penetration.
Intentions of the accused & gravity of the sexual assault are also important components in case of a sexual offence. Anyone can be a victim of sexual assault in our community, including people who are young or old, male or female, from any cultural background, wealthy or not so wealthy, married or not. Sexual assault also describes a specific offence when a person has sexual intercourse with another person without their consent, i.e., “Rape”.
Section 8 of the POCSO Act defines the punishment for sexual assault mentioned under section 7 of the Act, which states that “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.”
CONTROVERSIAL JUDGMENTS DISROBING THE POCSO ACT
Firstly talking about the judgment of Libnus v/s State of Maharashtra (hereinafter Libnus case) dated 15th January 2021. In the Libnus case, the mother of the prosecutrix (minor accused) had returned from her duty at 4 p.m. on 11.02.2018, when she noticed the accused in her house, molesting her minor daughter, aged 5yrs. Police started its investigation after the mother lodged an FIR, and then filed the charge-sheet before the Special POCSO Court, Nagpur. In her testimony, the mother stated that,
“That person had caught hold the hands of victim i.e. my elder daughter. That person was taking victim inside the room of my house. I saw that victim was moving her pant in the above direction. I shouted. I abused that person in the words, “KonHosre Bhadwa, Kai Karat Aahe”. Despite it, that person did not set free my daughter from his clutches. Again I shouted. Thereafter, he set free my daughter. Initially, I had not seen the face of that person. But when he turned, I saw his face.”
The Special Court found the evidences trustworthy and convicted the accused for Sexual harassment & trespassing under section 354A & 448 of IPC and for aggravated sexual assault(as the child was below 12yrs) & sexual harassment under section 8, 10 & 12 of POCSO Act, and was punished with rigorous imprisonment for 5 years with Rs25, 000 fine.
The accused then appealed before the Nagpur bench of Bombay High Court, where J. Pushpa Ganediwala stated that as per the definition of ‘sexual assault’, ‘physical contact with sexual intent without penetration’ is an essential ingredient for the offence. Also stated that the mere holding of a minor’s hand or the pants’ zip of the accused being opened could not be considered as a ‘sexual assault’ under section 7 of the POCSO Act.
The bench held that the conviction of the accused under section 8 & 10 of the POCSO Act is quashed and the accused can only be prosecuted for outraging the modesty of prosecutrix & trespassing in the house under section 354A & 448 of IPC. Provided that the accused’s 5 months in jail, the sentence was given under sections 354A and 448 of the IPC would be adequate. The accused was released.
The second judgment of Satish v/s State of Maharashtra (hereinafter Satish case) dated 19th January, 2021. In the Satish case, on 14.12.2016 the prosecutrix aged about 12yrs went to bring guava, but did not returned for a long time, the neighbor noticed the accused taking her to his place and showed the mother his house. The accused on the pretext of giving her guava, took the prosecutrix in his house and pressed her breast and she shouted when he attempted to remove her salwar. At that point of time, the mother reached the house and asked the accused about the whereabouts of her daughter which he denied to be known. The mother than searched the house of the accused and she found her daughter crying in a room locked from outside. The mother took her outside and then she narrated the whole scene to her mother. Immediately, she lodged FIR, and then filed the charge-sheet before the Special POCSO Court, Nagpur.
The Special Court convicted the accused under Sections 354, 363 & 342 of IPC for outraging a girl’s modesty, kidnapping & wrongful confinement and Section 8 of POCSO Act for sexual assault and punished him with rigorous imprisonment for 3yrs with a fine of Rs500.
The accused then appealed before the Nagpur bench of Bombay High Court, where J. Pushpa Ganediwala stated that as per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient for the offence. Also stated that whether the accused removed the top of the prosecutrix or inserted his hand while groping her breasts is unknown, which would not constitute a direct physical contact or “Skin-to-Skin” contact between the accused and the victim as per section 7 of the POCSO Act.
The bench acquitted the accused under section 8 of the POCSO Act and convicted him for outraging the modesty & wrongfully confining the prosecutrix under section 354A & 342 of IPC for a period of 1 year of rigorous imprisonment and a fine of Rs500. Also, a non-bailable warrant was issued against the accused.
Attorney General K.K. Venugopal filed a special mention in court, stating that the High Court ruling will establish a “very hazardous precedent” and cripple POCSO’s objective to punish sexual criminals. Considering the special mention, a Bench chaired by Chief Justice of India Sharad A. Bobde took urgent cognizance and the Supreme Court has currently stayed the acquittal of the accused under this judgment.
CONCLUSION & ANALYSIS
The POCSO Act is a law which provides a special protection to the minor victim beyond IPC. The court in its interpretation of the law disregarded the legislative history and object of the POCSO Act, which is to protect the children from sexual assault and harassment, and acknowledge the vulnerability of the minor.
While interpreting the sections in both the cases, the rule of Edjusdem Generis should have been applied. According to the rule of edjusdem generis, act should be of the same sort or close in nature to the previous one. Hence, the acts of the offenders should fall under the definition of section 7 of POCSO Act and both should have been punished for the offence of Sexual Assault under section 8 of POCSO Act.
Also, the series of events/facts and the testimonies of the witnesses in both the case defines the intentions of the offenders which was to sexually abuse the minors. In the Libnus case, the prosecutrix was of mere 5 years which creates the act of the offender as ‘Aggravated Sexual Assault’. Hence, the bench should have justified the primary object of the POCSO act which is to protect the minors from such act/offenses.
Section 7 begins with the phrase “whoever, with sexual intent touches”. The terms ‘Sexual intent’ & ‘touches’, signifies that any touch or act which is done with a sexual intent would definitely fall under the scope of Section 7. Thus, it could be established from the acts of the offenders, i.e., ‘grobbing the victim’s breasts’ & ‘Victim moving her salwar in above direction’ were done with a sexual intention irrespective of whether the molestation was over or under the clothes.
According to the case of Jagar Singh v State of Himachal Pradesh, it was well-settled that when two interpretations are possible, then the interpretation in favour of the minors should be adopted by the court to meet the ends of justice.
Before POCSO Act came into force, offence of ‘sexual assault’ was governed by IPC, which treated children same as adults and does not provide any special provision for minors. Furthermore, IPC does not recognize any sexual assault against a boy child or any non-penetrative conduct against a child. Also, in the Pre-POCSO period there were no legislation punishing any form of child pornography. The POCSO Act has established a barrier for offenders, with harsh sanctions and a broad set of provisions that make it difficult to escalate.
