Now Bombay High Court Says Holding Baby’s Hand, Opening Pant’s Zip Is Not Sexual Assault Under POCSO

Mumbai, January 28, 2021: ‘Touching the breasts of a woman without taking off clothes is not sexual harassment’, this decision of Bombay High Court has been very much in the headlines, which has now been stayed by the Supreme Court.

Now another decision of the Bombay High Court has come out, which states that holding the hand of a minor girl and opening the zip of pants does not come under the category of Sexual Assault under the Protection of Children from Sexual Offences (POCSO) Act. The Bombay High Court (Nagpur bench) has held that holding the hand of a minor girl and opening the zip of the pants would not come under the definition of sexual abuse under the POCSO Act 2012.

According to Live Law’s report, however, the court admitted that doing so under Section 354-A (1) (i) of the IPC came under the purview of ‘sexual harassment’. It is necessary to mention here that on January 19, just before this Nagpur Bench of Bombay High Court had said that the person had touched the child’s body without removing her clothes, hence it cannot be called sexual harassment. Instead, it becomes a crime to offend a woman’s dignity under Section 354 of the IPC.

In fact, a single bench of Justice Pushpa Ganediwala of Nagpur Bench of the Bombay High Court ruled on a criminal appeal against the conviction of a 50-year-old man for molesting a five-year-old girl. In fact, the Sessions Court had convicted the accused 50-year-old in the case and considered him a ‘sexual harassment’ punishable under Section 10 of POCSO with five years rigorous imprisonment and a fine of Rs 25,000.

The child’s mother had filed a complaint, after which the matter came to light. In the complaint, the girl’s mother said that she had seen the accused, who had a zip of pants open and was holding her daughter’s hand. She later testified that her daughter told her that the accused removed the penis from pants and asked her to come to bed and sleep.

However, the single bench did not consider Sections 8, 10 and 12 of the POCSO Act suitable for this conviction and convicted the accused under Section 354A (1) (i), which provides for a maximum sentence of three years of imprisonment. The court also stated that the accused has spent five months in jail, which is sufficient for this offence.

What was stated in the prior judgment?

The Nagpur Bench of Bombay High Court on 19 January said, “The person touched the child’s body without removing her clothes, so the act cannot be considered as sexual harassment. Instead, it is a section of IPC. It is a crime under 354 to offend a woman’s dignity.

The High Court had changed the verdict of the sessions court which convicted the 39-year-old man for sexually assaulting a 12-year-old girl and sentenced him to three years imprisonment under the Protection of Children from Sexual Offenses (POCSO) Act. Section 354 of the IPC provides for a minimum sentence of one year of imprisonment, while under the POCSO law, there is a provision of three years of imprisonment in case of sexual harassment.

In an order passed on January 19, Justice Pushpa Ganediwala of the Nagpur bench of the Bombay High Court held that skin-to-skin contact with sexual intent is necessary to be considered an act of sexual assault. He said in his decision that mere touching does not come under the definition of sexual assault. According to testimony in the prosecution and the minor victim’s court, in December 2016, the accused Satish took the girl to his home in Nagpur on the pretext of giving her food items. The High Court, in its judgment, recorded that on being taken to his house, Satish caught her chest and tried to strip her.

The High Court said, since the accused tried to touch the girl’s chest without stripping her, the offence cannot be termed as sexual assault and it is a crime to offend a woman’s dignity under Section 354 of the IPC. While the minimum sentence under section 354 is one-year imprisonment, the minimum punishment for sexual harassment under the POCSO Act is three years imprisonment. He was sentenced to three years imprisonment by the sessions court under the POCSO Act and Section 354 previously.