A bench of Chief Justice of India S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian stayed the high court order after Attorney General K.K. Venugopal mentioned the matter. According to news reports, he submitted that the judgement was “unprecedented” and “is likely to set a dangerous precedent”.
Activists and child rights bodies had severely criticised the Nagpur bench’s verdict, terming it “absolutely unacceptable, outrageous and obnoxious”. In a letter to the Maharashtra chief secretary, the chairperson of the National Commission for Protection of Child Rights had urged the state to review and challenge the high court verdict.
The top court on Wednesday issued a notice to the Maharashtra government and permitted the AG to file an appeal against the verdict of the Nagpur bench of the Bombay high court.
Mr. Venugopal said that in future, because of the order, an accused could claim innocence under POCSO by arguing that the child he assaulted was clothed and there was no “direct physical skin-to-skin contact” between them.
“The accused was sentenced to the minimum three years’ imprisonment under Section 8 of the POCSO Act. That was set aside by the HC and his sentence was reduced to one year under Section 354 (assault of a women to outrage her modesty) of the Indian Penal Code… This is very disturbing,” Mr. Venugopal submitted
“Mr. Venugopal, do you remember how we took cognisance when the Attorney General mentioned about a judge ordering a public hanging?” Chief Justice asked Mr. Venugopal, who said he did.
The Bench issued notice to the accused and to the State of Maharashtra after registering a case on the basis of Mr. Venugopal’s mentioning.
The National Commission for Protection of Child Rights (NCPCR) had earlier asked the Maharashtra government to urgently appeal the High Court judgment.
Meanwhile, several organisations, including the Youth Bar Association of India, represented by advocate Manju Jetley, also moved the top court against the HC judgment.
The petitioners said they were “badly perturbed” to note that the January 19 verdict contained several observations about the victim child’s modesty, which were both “derogatory and defamatory”. The child was even named in the judgment, the petition said.
“Abuse and outraging the modesty of a child has been a matter of great concern. POCSO Act was enacted to deal with evil and to impart speedy justice. Special courts were formed. The observations [in the January 19 judgment of the HC] have badly shaken the belief of the petitioners and like-minded people,” the petition said.
The verdict said that groping a minor’s breast without “skin-to-skin contact” cannot be termed as sexual assault as defined under the POCSO Act. It said that since the man “groped the child without removing her clothes” the offence cannot be termed as sexual assault, but it does constitute the offence of outraging a woman’s modesty under Section 354 of the Indian Penal Code.
The high court had modified the order of a sessions court, which had sentenced the accused under POCSO Act and the IPC, to three years of imprisonment, for sexually assaulting a 12-year-old girl.
It held that mere groping will not fall under the definition of “sexual assault”.
As per the prosecution and the minor victim’s testimony in court, in December 2016, the accused, Satish, had taken the girl to his house in Nagpur on the pretext of giving her something to eat. Once there, he groped her and attempted to remove her clothes, the high court had recorded in her verdict.
However, since he groped her without removing her clothes, the offence cannot be termed as sexual assault and, instead, constitutes the offence of outraging a woman’s modesty under IPC Section 354, the high court had held.
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