New Delhi: The Supreme Court on Thursday set aside a controversial Bombay High Court judgment that held that “skin-to-skin” contact was necessary for the offence of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.

A Bench of Justices UU Lalit, S Ravindra Bhat and Bela M Trivedi held that the ingredient of the offence of ‘sexual assault’ under POCSO is sexual intent and skin to skin contact in such incidents is not relevant.

“The most important ingredient of for constituting the offence of sexual assault is sexual intent and not skin to skin contact with the child. Construction of a rule should give effect to rule rather than destroying it. The intention of legislature cannot be given effect to unless wider interpretation is given,” the Court said.

Important observations by the Supreme Court

• The apex court further said that restricting the meaning of “touch” to “skin-to-skin” contact would lead to “narrow and absurd interpretation” and destroy the intent of the Act, which was enacted to protect children from sexual offences, the Bar and Bench reported.
• “If such an interpretation is adopted, a person who uses gloves or any other like material while physical groping will not get conviction for the offence. That will be an absurd situation,” the court said.
• The Court further said the Construction of rule should give effect to rule rather than destroying it. The intention of legislature cannot be given effect to unless wider interpretation is given do. The purpose of the law cannot be to allow the offender to escape the meshes of the law.

The Bombay High Court had on January 19 ruled that pressing the breast of a 12-year-old child without removing her clothes will only fall within the definition of outraging the modesty of a woman under Section 354 of the Indian Penal Code (IPC) and not sexual assault under the POCSO.

It had, therefore, acquitted a man for an offence under Section 7 of POCSO on the ground that the victim was clothed and there was no “skin-to-skin” contact.

“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 top and pressed her breast, would not fall in the definition of ‘sexual assault’. It would certainly fall within the definition of the offence under Section 354 of the Indian Penal Code,” the High Court had ruled.