The Preamble of The Protection of Children from Sexual Offences (POCSO) Act, 2012 provides that it is meant to protect children from ‘offences of sexual assault, sexual harassment and pornography, and provide for the establishment of Special Courts for the trial of such offences.’ It is further held that the act is intended for the child’s well-being and best interest. The goal of the legislature was, therefore, to provide minors with an additional layer of protection in matters of sexual offences that fell beyond the loopholes in the pre-existing criminal law regulating sexual offences covered by the Indian Penal Code (IPC), 1860. However, this very safeguard was ignored in the present case where a single judge delivered a judgement that set a dangerous precedent for defining sexual assault in court. The High Court held that application of Section 7 of POCSO would require skin – to – skin contact and that the act in the present case does not fall under the definition of ‘sexual assault.’
According to the police complaint lodged by the mother of the minor in the Gittikhadan police station, Nagpur, her daughter, who is twelve years old was supposedly groped. The girl had gone out to the market to purchase guava, however, while she was on her way a man stopped her. He, intending to take the girl back to his house, informed her that he had guava there and would give her some. While in the house, the appellant pressed the breast of the minor and further tried removing her clothes. The minor in a state of panic started shouting for help. Her mother at the same time was informed by a neighbor that her daughter was taken by this man. She thus confronted him and upon hearing denial, searched his house. She found her daughter who told her about the incident and then filed the police complaint. A case under the POCSO Act was registered by the victim’s mother in 2016. The convict was sentenced to accused three years of imprisonment for sexually assaulting a minor girl by the Nagpur Sessions Court. Therefore, the accused brought an appeal before the High Court of Bombay for acquittal of the charges under the POCSO Act.
Whether the interpretation of ‘sexual assault’ and groping a minor’s breast without skin-to-skin contact comes under the ambit of Section 7 of the POCSO Act ?
While delivering the judgement, Justice Pushpa V Ganediwala stated that since there was no skin-to-skin touch, the accused would not be held liable. Instead, he would be liable for outraging the victim’s modesty which entails a reduced sentence. It should be held that in case of application of Section 354 of IPC, both section 7 as well 8 of the POCSO should be applied.
While the court acknowledged that the penalty should be commensurate with the seriousness of the offence, the fact that juveniles deserve special protection was not stressed. This was a gross violation of the principles of Natural Justice and is extremely detrimental to the interests of society as a whole. One of the foremost responsibilities of the judge is to give due consideration to the intent behind the legislation. The same can be checked by a simple reading of the legislation and its Preamble. The POCSO Act took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992. The interpretation of the legislation is flawed since the “physical contact” does not necessarily imply skin to skin touch. The judge thus relied upon a flawed interpretation of the Act and put millions of lives in peril. This flawed interpretation renders the entire Act redundant. Attorney General KK Venugopal requested the Supreme Court to take Suo moto cognizance of the matter. “The Attorney General brought to our notice that judgment of the Bombay High Court, Nagpur Bench dated January 19, 2021, in which the High Court has acquitted the accused under section 8 of POCSO Act on the ground that the accused had no sexual intent in committing the offence under POCSO because there was no direct physical contact i.e. skin to skin. The Attorney General submitted that order is unprecedented and likely to set a dangerous precedent. We permit the Attorney General to file an appropriate petition against the order. In the meantime, we stay the acquittal of the accused. Notice issued to accused returnable in two weeks.” This judgement received severe criticism from innumerable parties. Despite the stay, in the meantime, the judge passed more controversial verdicts. In a judgement, she reversed a conviction order as nothing was supporting the prosecution’s case for rape. The very next day, she held that the act of holding hands of a minor or the zip of the pants of the accused being open at the relevant time does not amount to sexual assault as defined under Section 7 of the POCSO Act. Then, the Supreme Court Collegium withdrew its recommendation to confirm the permanent status of Justice Pushpa Ganediwala in the state’s top court. While the judgement has stayed, one can only hope that the judiciary rectifies this grave error by way of overruling.
The decision has smeared the legislative intent of the act to provide enhanced protection to minors and ensure healthy growth. The very objective has been called into question by the absurd interpretation of the term ‘sexual assault’. In fact, it provides leniency in matters of sexual assault of minors and cripples the power of POCSO to punish sexual offenders. This judgment hence comes as a shock not only to survivors but also to the general public at large. The protection provided to a child has been stripped away by a narrow interpretation of the law and this badly shakes the belief of an individual in the judiciary.
 The Protection of Children from Sexual Offences Act, 2012
 Section 7 of the Protection of Children from Sexual Offences Act, 2012
 Section 354 of the Indian Penal Code, 1860
 Mukta Sathe, Bombay HC’s interpretation of POCSO risks making the law redundant (2021) https://indianexpress.com/article/opinion/columns/bombay-hcs-interpretation-of-pocso-risks-making-the-law-redundant-7165780/
 Jageshwar Wasudeo Kawle v. State of Maharashtra
 Libnus v. State of Maharashtra
She is a first year student at National Law University , Jodhpur.