Two Tales of Judicial Indiscretion: Recent Controversial POCSO Decisions of Bombay High Court

In January 2021, within a span of less than a week, the Nagpur Bench of Bombay High Court delivered two judgments in separate cases of child sexual abuse, Libnus v. State of Maharashtra (hereinafter Libnus case) and Satish v. State of Maharashtra (hereinafter Satish case), that have been severely criticized by almost all and sundry as being bad in law. In fact,Satish case caused such outrage that the rights bodies, National Commission for Women and National Commission for Protection of Child Rights, wrote to the Maharashtra Government to take steps to challenge the judgment in the Supreme Court. On Wednesday January 27, 2021, the Supreme Court stayed the operation of the controversial judgment upon Attorney General's mention.

What did the judge say?

In Satish case, the Single Bench of Justice Pushpa V. Ganediwala acquitted a 32-years old man of the charges under Sections 7/8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) reasoning that as there was no "skin-to-skin" contact, therefore, the offence of sexual assault is not made out. Section 7 of the POCSO defines sexual assault as any non-penetrative contact with the victim with sexual intent. The minimum punishment for the offence of sexual assault is imprisonment for three years. The Court, however, maintained the conviction of the appellant under Section 354 of the India Penal Code, 1860 (IPC), which carries a minimum prison term of one year. Prior to the post- Nirbhaya amendments made to the criminal laws in the country, Section 354 prescribed two years as maximum punishment with no statutory minimum. The allegations against the accused-appellant in this case were that he had "pressed the breast" of the 12-year old prosecutrix, which fact was duly proved by the prosecution by adducing evidence, both circumstantial and direct. The Court noted that requirements of Section 7 are not met, as the survivor's clothes were not removed and the appellant was also not able to remove her knickers, because when he tried to do so she shouted and he left the room, bolting it from outside. The Court said that the act of the appellant would at best be an act of "outraging modesty of a woman" as defined in Section 354 of IPC. The judge also said that the punishment under Section 8 of POCSO, for the offence defined in Section 7 is "disproportionate" to the seriousness of the act and, therefore, affirmed the conviction only under Section 354, IPC.

In Libnus case, the same Bench acquitted a 50-year old man who was convicted by the Special POCSO Court for his act of holding the hand of a 5-year old girl, with his pant's zip open. The survivor had also told her mother, the PW-1, that the appellant had taken her penis out of his pants and asked her to sleep with him. The appellant in this case was convicted for the aggravated sexual assault under Section 10 of POCSO as well as Section 12 of POCSO in addition to Sections 354A and 448 of IPC. Aggravated sexual assault has the ingredients of Section 7 but because the act is committed in certain "aggravating circumstances", inter alia,more tender age of the victim or relation of trust and confidence between the victim and the abuser. Section 10 carries a minimum prison term of five years. Section 11 of POCSO defines and Section 12 punishes the offence of sexual harassment. The ingredients of Section 11 of POCSO do not strictly overlap with the ingredients of Section 354A, IPC although both the offences share a common name. The Bombay High Court set aside the conviction of the appellant under Sections 10 and 12 of the POCSO and instead convicted him under Section 354A of IPC. In this case as well, the judge noted the severe minimum mandatory punishment prescribed in Section 10 of POCSO and chose to convict under Section 354A (3) of IPC which carries a maximum prison term of three with no statutory minimum sentence stipulated thereof. While disposing of the appeal, the Court also noted that the appellant had already served five months imprisonment which was "sufficient" in view of the nature of his act and ordered his release.

Meaning of non-penetrative sexual assault:

The title of Section 7 of POCSO is "sexual assault". As the phrase "assault" has not been defined in the POCSO, it must derive its meaning from Section 351 of the IPC, which indicates that for the offence of assault, no physical contact is required - leave aside "skin-to-skin" contact. The essence of the term assault lies in the apprehension of use of criminal force and the definition of "force" in Section 349 of IPC,only requires some physical contact with the another's "body" or even "with anything which that other is wearing……that such contact affects that other's sense of feeling…". Intentional use of force is criminal force "…in order to the committing of any offence", reads Section 350 of IPC. Interestingly, though the title of Section 7 uses the word "assault", the content of the provision, in fact, require physical contact with the victim, meaning thereby that force must be applied to bring the case within the ambit of this provision. Therefore, what is meant by Section 7 is use of criminal force, albeit the title uses the word "assault". In mis-interpreting Section 7 to require "skin-to-skin", the Court has done offence to both the statutory meaning of "force" and "criminal force" as well as to the long-established judicial understanding of these phrases. Looking at Section 7 of POCSO and Section 354 of IPC together, it is not possible to arrive at a logical conclusion that what is an offence under the latter is not covered under the former.

Similarly, Section 354A (1) (i) of IPC, the offence which the Court said is made out against the appellant in the Libnus case, explicitly requires "physical contact and advances involving unwelcome and explicit sexual overtures". Sexual overtures may be both verbal and non-verbal. Therefore, what is an offence under Section 354A (1) (i) is necessarily an offence as defined in Section 7 of POCSO. Moreover, going by the testimony of the PW-1, the mother of the survivor, that the appellant had showed his penis to her daughter, his act is covered under Section 11/12 of POCSO for which the appellant's conviction should have been sustained. Holding hand of a child with the zip of the pant open is clearly within the ambit of the definition of sexual assault (Section 7, POCSO) as well as sexual harassment (Section 354A (1) (i)).

More severe punishment under the POCSO:

In both the judgments, the Court seems to be reluctant to impose the more severe punishment prescribed under the POCSO, as it felt that the statutory minimum punishment under Section 8 (three years imprisonment) and Section 10 (minimum five years) is disproportionate to the gravity of the acts of the appellants. While the legality of minimum mandatory sentences are being challenged across the jurisdictions, a constitutional Court cannot escape from its liability to convict under appropriate provision of a penal statute without declaring the minimum mandatory sentence unconstitutional, cruel and degrading. Notably, Article 7 of the International Covenant on Civil and Political Rights (1966) declares that everyone has a right against cruel, degrading, and dehumanizing punishment. The Canadian Supreme Court in R v. Nur ([2015] 1 SCR 773), declared minimum mandatory sentence for firearms offences as unconstitutional.

Ignoring the reverse burden clauses of POCSO:

The POCSO, in Sections 29 and 30, raises presumption of both actus reus and mens rea, respectively, upon proof of "foundational facts". This effectively means that if the prosecution is able to show, by adducing cogent and credible evidence, prima facie existence of "foundational facts", the burden is on the accused to prove his innocence by showing absence of mens rea. Importantly, this reverse burden can only be discharged by meeting the standard of "proof beyond reasonable doubt", a standard that ordinarily rests on the prosecution. The Court's reasoning that "stricter proof" is required to sustain conviction under Section 7/8 of POCSO in Satish case as the offence carries more severe punishment falls flat on the face of the presumption of guilt envisaged under POCSO. In the Libnus case as well, there is a complete silence on the question of reverse onus.

Conclusion:

While desirability, utility and constitutionality of mandatory minimum prison terms are debatable, no Court can refuse to convict an accused for any offence whose case squarely falls within the four corners of statutory definition. In the Satish case, even if the Court was disinclined to award the more severe punishment under Section 8 of POCSO, it could have still maintained the conviction both under POCSO and IPC, while choosing the punishment under the latter. Interestingly, Section 42 of POCSO which enumerates IPC offences punishable, inter alia, under Sections 354A, 354B, 354C, 354D, does not include Section 354, thereby giving liberty and discretion to the Court to choose lesser of the two punishments. This discretion would not be available where the offence is punishable both under the POCSO and the IPC provisions as enumerated here, in which case the punishment greater in degree can only be awarded.

In the Libnus case also, the Court's indiscretion is profound in refusing to maintain the conviction under Sections9/10 and 11/12 of POCSO when the facts unequivocally establish the ingredients of the offence of aggravated sexual assault and sexual harassment. Imagine a situation where the victim is a male child. The dangerous implication of the two judgments is that in such a case the accused would not be punishable at all: firstly, because the Court thought that the POCSO provisions are not applicable and secondly, because Section 354 and 354A apply only in case of a female victim.

While it is comforting that the Supreme Court stayed the Satish case, but the message sent out by the Bombay High Court is still damaging. It is hoped that the State of Maharashtra shall appeal against the judgment given in the Libnus case as well. While a penal statute should be construed narrowly, no person who is clearly hit by the plain words of a penal statute should be allowed to go scot-free or punished with disproportionately meager punishment for extraneous considerations and misinterpretation of law. Decisions of High Courts shape and unshape the law of the land and this cannot be done with scant regard for statutory and case law. We, as a society certainly deserve better judgments, both legally and logically.

(Dr. Kumar Askand Pandey is Associate Professor (Law) at Dr. Ram Manohar Lohiya National Law University, Lucknow.)

The author is grateful to Anuarag Bhaskar, Lecturer, Jindal Global Law School, Sonipat for reviewing this article.