To Say 'Skin-To-Skin' Contact Is Necessary For POCSO Offence Will Mean An Abuser Wearing Gloves Getting Acquittal : Attorney General

The Attorney General for India KK Venugopal urged the Supreme Court on Tuesday to reverse the controversial judgment of the Bombay High Court which held that the offence of sexual assault under POCSO will not be attracted if there is no direct 'skin to skin' contact between the accused and the child.

Terming the judgment a "dangerous and outrageous precedent", the Attorney General submitted before a bench comprising Justices UU Lalit and Ajay Rastogi that the judgment would mean that a man who sexually abuses a child after wearing a pair of surgical gloves will be acquitted.

"If tomorrow a person wears a pair of surgical gloves and feels the entire body of a woman, he won't be punished for sexual assault as per this judgment. This is outrageous. Saying that skin-to-skin contact is required would mean a person wearing gloves getting an acquittal. The Judge clearly didn't see the far reaching consequences", the AG argued.

As per the impugned judgment, the High Court(Nagpur Bench) had acquitted an accused observing that groping of the breasts of a minor girl over her clothes will not amount to the offence of 'sexual assault' under Section 8 of POCSO. Holding that there should be 'skin to skin' contact to attract the offence under Section 8 POCSO, the High Court held that the act in question will only amount to a lesser offence of 'molestation' under Section 354 IPC.

The Attorney General highlighted that the High Court's judgment was contrary to the legislative intent. "There are 43,000 POCSO offences in the last one year", the AG remarked.

The bench was hearing the appeal filed by the Attorney General against the High Court's judgment.  The State of Maharashtra's counsel Rahul Chitnis told the bench that the State was supporting the AG's arguments. The National Commission for Women has also filed a separate appeal against the judgment.

On August 6, the bench had appointed Senior Advocate Siddharth Dave as an amicus curiae in the matter. Along with the above matter, the Supreme Court is also considering the appeal filed by the State of Maharashtra against another controversial judgment of the Bombay High Court which held that the act of holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the Protection of Children from Sexual Offences Act 2012.

Today, the bench noted that there was no representation for the accused despite service of notice. Therefore, the bench directed the Supreme Court Legal Services Committee to make available the services of two senior advocates along with Advocates-on-Record from its panel to represent the accused in both the appeals. The matters have been posted for final hearing on September 14.

Both the judgments were passed by Justice Pushpa Ganediwala of Bobmay High Court (Nagpur Bench).

In paragraph no. 26 of the impugned order, the Single Judge had held that "there is no direct physical contact i.e. skin to skin with sexual intent without penetration". "