POCSO an act enacted for the protection of children from sexual offences. This act states various sexual offences and punishments for the same. Children are the future of our country. Hence, every offence committed against them must be looked into legally and shall be held for punishment where necessary. This will help in protecting the interests of the children from the devil of sexual offences. Its extremely disappointing to see children been subjected to heinous offences such as sexual offence. In one of the cases held by the High Court of Bombay (Nagpur Bench) had erred in passing the judgement on the grounds that for application of section 7 of POCSO Act there must be skin to skin contact. However various arguments have been putforth which include,
Justice Lalit asked:
“Why according to you physical contact has to be read as skin to skin contact? Why can’t it be through cloth or any kind of material? Why is it applicable to the first part and not the second part?”
Sr. Adv. Luthra: “Because contact is qualified by physical contact and touch is not.”
In response, the Bench posed hypothetical examples to the Senior Advocate to understand the conclusions of the submissions made by him.
Bench: “If we accept your submission, there will be four parts that come under the first part and second part will cover everything. Holding the child over the cloth, the person will not be guilty?
Sr. Adv. Luthra: “If it is with sexual intent, then yes.”
Bench: “So, if the touch/physical contact is pregnant with sexual intent, then everything falls into place. Tell us, if the backside of a child is groped, will he be guilty or not without skin-to-skin contact?
Sr.Adv. Luthra: “Yes, My Lord because that is how it is worded.”
Bench: “One has to see things from the perspective of the recipient of the touch.”
Sr.Adv. Luthra: “He maybe prosecuted under S.354 of IPC.”
Bench: “What is the child is a boy? S.7 of the POCSO Act is a gender-neutral offence.”
Sr. Adv. Luthra: “Please note S.354A of IPC.”
Bench: “What is the perpetrator is a woman? So far as Section 7 is concerned, the perpetrator can be a man/woman.”
Sr. Adv.Lutha: “There is S.355: Assault of Criminal Force with the intent to dishonour a person.”
Bench: “That is a general provision. Why should we resort to that when there is a specific law.”
Senior Advocate Geetha Luthra, representing National Commission for Women, briefly intervened to argue that since POSCO Act has its own definitions of assault, sexual assault and aggravated sexual assault therefore the definition of assault from Indian Penal Code cannot be borrowed. She further made reliance on the meaning of ‘contact’ given in P.Ramanathan Aiyar’s The Law Lexicon to argue that: “Touch and physical contact are synonyms are no distinction can be made between the two.”
She submitted that no distinction can be made between 1st and 2nd part of S.7 of the POCSO Act.
Further, she relied on Meghraj Loya Etc vs State of Maharashtra to state that, “Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged.”
In response to the arguments advanced on the Rule of Lenity, Sr. Adv. Geeta Luthra submitted that the touchstone of Rule of Lenity is statutory ambiguity and that the rule applies only when the court can do no more than guess the intention of the legislature. She made her final submission that- “The interpretation has to be careful so that it does not take into its ambit innocent cases but it has to be strict enough to satisfy the intention of the legislation.”
Taking the views as abovementioned what is important is skin to skin contact meaning physical contact, sexual intent is necessary to constitute the offence of sexual assault as per section 7 of POCSO Act.
Reference : Livelaw
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