GUWAHATI: The Nagpur Bench of the Bombay High Court has recently been in the news after two judgments passed by Justice Pushpa Ganediwala relating to the POSCO Act raked up a massive controversy.
In the first instance, the single judge bench, on 19th January last, held that fondling the breast of a minor without 'skin to skin contact' cannot be termed as sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The bench acquitted a 39-year-old man (the culprit) by modifying the session court order that convicted him under Section 7 of the POCSO and sentenced him to just three years of jail for the offences of “sexual assault” and “outraging the modesty.” He was also awarded two years of imprisonment for kidnapping and six months for wrongful confinement. All jail sentences were directed to run concurrently.
The court observed that "the act of pressing the breast of a 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."
However, the Nagpur bench acquitted him under POCSO and convicted him under Sections 342 (wrongful confinement) and 354 (outraging the modesty of a woman) of Indian Penal Code (IPC) only.
Then again on 28th January, the same bench of Justice Ganediwala, in another case, held that holding a minor’s hands and unzipping one’s pants in front of a minor will not fall under the definition of sexual assault under the POCSO Act. Even in this instance, the session court’s order that had convicted a 50-year old man of "aggravated sexual assault" punishable under Section 10 of POCSO and had sentenced him to 5 years’ rigorous imprisonment plus a fine of Rs. 25,000, was overruled with a default imprisonment for 6 months only.
The same was considered 'sexual harassment' under Section 354-A (1)(I) of the Indian Penal Code. The court held that the allegations were not sufficient to fix criminal liability on the accused under Section 10 of POCSO, however convicting him under IPC, which carries a maximum imprisonment of 3 years. It also held that the 5 months’ imprisonment already undergone by the accused was sufficient punishment for the offence.
Punishment under POCSO compared to IPC:
In the earlier case, the man was held under Section 7 of the POCSO Act. As per this, “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.”
The punishment awarded under section 7 is “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.”
And if a person is convicted under Section 10 of the POCSO, he “shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.”
But the same crime under section 354 of the IPC entails a minimum sentence of imprisonment for only one year.
Given the major differences in the punishments awarded for the same crime under the POCSO Act and the IPC, G Plus spoke to Miguel Das Queah, Executive Director of UTSAH Child Rights Organisation and a POCSO Expert. Queah said, "Through the order, the Judge has made an absurd interpretation of Sexual Assault as defined in the POCSO Act. The Skin-to-skin interpretation was preposterous and has no credibility. It has set a dangerous precedent and will be used by offenders to escape conviction. I don't know the real reason that drove the Judge to pass such an unwarranted judgement. Personal bias, lack of sensitization or constricted decision making ability due to harsher minimum punishment provisions in the law may have been one of the causes for this folly."
Notably, a Supreme Court bench comprising Chief Justice of India, SA Bobde and Justices AS Bopanna and V Ramasubramanian stayed the January 19 order, after Attorney General (AG) KK Venugopal reportedly called it “unprecedented” and “is likely to set a dangerous precedent.”
The apex court has also permitted the AG to file an appeal against this order of the Nagpur bench of the Bombay HC and has also issued a notice to the Maharashtra government.
