Indian society follows a cyclical pattern where there is a need for a law to protect certain section of the population and such a law is enacted. A few years after it is enforced, there are cries of “Abuse! Overuse!” after which the lens of social welfare is replaced with the microscope of doubt. Every aspect of that law is examined, and hyper-technicalities to cut through the true intent and purpose of that legislation are developed.
The case of Satish Ragade v State of Maharashtra came to the Bombay High court on appeal from an order of the Additional Sessions Judge, Nagpur and involved charges under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences Act, 2012 (referred to hereinafter as the POCSO Act). The Bombay High Court judgement that was pronounced on 19th January, 2021 has caused outrage. While multiple legal aspects of the judgement1Mandhani, Apoorva. ‘”Absurd interpretation” — experts say HC’s POCSO order in groping case wrong on many levels’. The Print. 25 January 2021. https://theprint.in/judiciary/absurd-interpretation-experts-say-hcs-pocso-order-in-groping-case-wrong-on-many-levels/591873/. and the nature of criminal law2Chander, Mani. ‘Why Bombay HC’s “sexual assault under POCSO needs skin-to-skin contact” observation is deeply problematic’. Times of India. 25 January 2021. https://timesofindia.indiatimes.com/india/why-the-bombay-high-courts-judgment-acquitting-man-under-pocso-is-completely-flawed/articleshow/80437238.cmshave been discussed, this article examines the real world implications and the future of criminal trials in light of the present judgement.
I. Brief Facts of the Case
The case of the prosecution is that the accused took the child (who was aged 12 years old when the offence was committed) to his house under the pretext of giving her a fruit and proceeded to touch her breasts and attempted to remove her clothes. The mother of the minor child went looking for her, as the child did not come home. She noticed the accused coming down the stairs, and when she asked him for the whereabouts of her daughter, he denied knowing anything about it. However, the mother went outside his house and found the door bolted. When she unlocked it, the minor child was inside his house and was crying. After hearing her daughter, the mother took the minor child to the police station, where an FIR against the accused was lodged.
At the end of the trial, the accused was found guilty by the Sessions Court for commission of offences including Section 354 of the IPC (Assault or criminal force to woman with intent to outrage her modesty), and Section 7 of the POCSO Act (Sexual Assault).
II. Judgement of the High Court
The High Court acknowledged the following facts:
- That the minor girl’s age was 12 years at the time of occurrence of the crime.
- That the testimony of the minor child and the mother corroborates what happened at the scene of the crime.
- The accused pressed the breast of the child, and tried to remove her salwar.
The High Court then proceeds to examine whether ‘pressing of breast’ and ‘attempt to remove salwar’ would fall within the definition of ‘sexual assault’ as defined under Section 7 and punishable under Section 8 of the POCSO Act.
Section 7 of the POCSO Act states – “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 High Court held that the actions of the accused would not fall under Section 7 of the POCSO Act and acquitted the accused under the POCSO Act, confirmed the conviction under the above mentioned sections of the Indian Penal Code, and reduced his sentence.
III. POCSO Act as a Special Legislation
Prior to the enactment of the POCSO Act in 2012, crimes against children could be tried under the Indian Penal Code. The Indian Penal Code is an archaic colonial legislation, some fragments of which we are still battling as a progressive society.
The IPC is also a highly gendered legislation, and the gender binary is very apparent. If a girl child was sexually assaulted prior to the enactment of the POCSO Act, the relevant provisions that could be used to convict the accused were – rape, and outraging the modesty of a woman.
Prior to 2012, if a male child was sexually assaulted, and if the act was penetrative, the act could fall within the purview of Section 377 of the Indian Penal Code that criminialises unnatural sex. A minor male child could not report a case of non-penetrative sexual assault under the IPC, as there was no provision for that. The absence of a gender-neutral law that would protect children from sexual offences was felt, and the POCSO Act was enacted in 2012.
The preamble of the POCSO Act begins with – “An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences…”.
Some unique features of the POCSO Act are:
1. It is a gender-neutral legislation – it only refers to the perpetrator as “person”, and the victim as “child” (any person below 18 years of age).
2. It deals with: –
- Sexual Assault (explained above).
- Penetrative Sexual Assault (if the penis or any object is inserted into any part of the child’s body).
- Aggravated Penetrative Sexual Assault (when a police officer/ member of the armed forces/ public servant/ staff of hospital/ staff of educational institution commits sexual assault on a child).
- Sexual Harassment (harassment through words or gestures, showing a child porn, making the child exhibit any part of its body).
3. It does not use the words “rape”, “eve-teasing”, or “outraging modesty” like we see in the Indian Penal Code. This legislation has been created with the intent to ensure that technicalities and descriptions do not come in the way of the act being considered an offence.
4. A special court and a special public prosecutor will deal with offences under the POCSO Act.
While there may be overlaps between offences under the POCSO Act and the IPC, they are distinct laws that were enacted keeping different purposes in mind3Ralph, John S. ‘The Distinction Between Section 7 of the POCSO Act and Section 354 of the IPC’. Live Law. 26 January 2021. https://www.livelaw.in/columns/pocso-section-7-section-354-ipc-sexual-assault-bombay-high-court-skin-to-skin-168924..
IV. Analysis of the Judgement
A. Emphasis on “Skin-to-Skin” Contact
Bombay High Court – “…In the instant case, having regard to the nature of the alleged act by the appellant and having regard to the circumstances, in the opinion of this Court, the alleged act fit into the definition of the offence as defined in Section 354 of the Indian Penal Code…” (paragraph 20)
Section 354 of the IPC states – Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
Assume that there is a case where a person tries to touch a minor boy by feeling his genitals over the child’s pants; this case cannot fall under Section 354 of the IPC as the gender of the minor child will prevent the same. However, going by the Bombay High Court’s reasoning of “skin-to-skin contact” in the present case, such cases will also not fall under Section 7 of the POCSO Act. Relegation of offences to the Indian Penal Code to the exclusion of the POCSO Act will have a direct impact on cases of sexual assault against male children, and children who do not conform to the traditional gender binary.
Section 7 does not define physical contact. It can also be argued that the POCSO Act is firm in its silence about outlining the degrees of such physical contact, and creating the distinction of “skin-to-skin” or “over the clothes” sets a dangerous precedent as such interpretation goes beyond the letter of the law.
B. Sexual Intent
Bombay High Court – “…Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration.” (paragraph 26)
The intent to commit a crime is a cornerstone of criminal jurisprudence. In Section 7 of the POCSO Act, the term “sexual intent” is explicitly mentioned.
It is clear from the facts of the present case that the accused removed the child from the mother’s custody under false pretences, took her to a place where she was alone with him, touched her breasts and tried to remove her salwar. This is not just a case of brushing past the child’s breasts, or inadvertently touching her. This is a calculated and deliberate attempt of isolating the child from her mother and committing these sexually motivated acts.
The High Court has not given importance to the intention behind the act of touching a minor girl’s breasts, and this is a dangerous precedent. Many cases of child sexual harassment occur within the family structure, and the perpetrator is usually somebody known to the child. A common form of sexual assault is touching the breasts or the child’s genitals through the clothes in a swift manner that will not appear abnormal to the world that is watching. Children may not always be mature or aware to realise the motivation behind such touches or actions, and thus, it is the duty of the Court to infer such intention from the facts and circumstances.
C. Observations about the Nature of Punishment under the POCSO Act
Bombay High Court – “…The punishment provided for offence of ‘sexual assault’ 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. Considering the stringent nature of punishment provided for the offence, in the opinion of this Court, stricter proof and serious allegations are required…” (paragraph 18)
It is a settled legal principle4Ganesan vs. State [CRIMINAL APPEAL No. 680 of 2020] that in cases tried under the POCSO Act, a conviction can lie on the basis of the victim’s testimony alone, as long as the same is coherent and stable. In the present case, the High Court has not disputed the victim’s testimony, and has even mentioned that the accused could not discredit the minor child as a competent witness.
Under these circumstances, it is strange that the High Court should want “stricter proof”. In addition, the present judgement almost makes it seem like since the punishment under the POCSO Act is stringent, the accused should not be convicted under it. It is also disconcerting to note that the High Court did not consider touching a minor girl child’s breasts a serious allegation, and wanted something “more serious”. If Courts start creating a hierarchy of crimes against children on the basis of a very subjective interpretation of the “seriousness” of the crime, it will defeat the entire purpose of an enactment that intends to prevent all crimes that fall under its broad scope.
Further, the purpose of any criminal legislation is deterrence. This is more so in the case of the POCSO Act, a legislation that was created because the existing criminal law framework was both insufficient and ineffective in dealing with crimes against children.
The nature of punishment cannot be a reason for acquittal. Yes, the nature of punishment under the POCSO Act is stringent, and that is because the crime that it addresses is that serious.
D. Effect of this Judgement in Court Proceedings
In any criminal trial, witnesses are crucial to both the prosecution as well as the accused. The accused will be given an opportunity to cross examine the witnesses through a lawyer. Unlike movies where the witness confesses to the crime under the protagonist lawyer’s brilliant cross examination, real-life court situations involves more of breaking into a sweat because of the lack of ventilation than breaking under pressure.
In trials under the POCSO Act, the minor child will have to narrate the sequence of events to different stakeholders. The minor child will also be cross examined by the accused’s lawyer. While there are provisions for a child-friendly court where the minor child will not have to see the accused and with the least amount of discomfort for the child, the child will have to answer some unpleasant but crucial questions regarding the incident.
The effect of this judgement can be felt in Sessions courts across the country, where the child will be asked if the accused put their hand inside their clothing, or outside it, and to describe the exact nature of the touch. In many cases, fear and shock may prevent a child from remembering exactly how they were assaulted. For children below the age of six, they may not even register or understand the significance of a touch over or under their clothes to convey the same clearly.
While the law does not expect the child to remember or answer in excruciating detail, this ‘direct physical contact’ test will definitely affect the way POCSO trials are conducted.
The Bombay High Court judgement, unless appealed, will create an additional standard for offences under the POCSO Act that was not intended in the first place, and will also detrimentally affect future trials and proceedings. Exceptions cannot be carved out against the grain of the enactment, and hyper technicalities cannot substitute the word of the law.
[Latest Development : Supreme Court has currently stayed5SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 2286/2021 the Bombay High Court Judgement in the case of Satish Ragade v. State of Maharashtra and National Commission of Women has announced that it will be challenging the impugned judgement]Views expressed in the article are personal and the author’s own. Originally Published at The Grit@Pranjaya Blog on 30th of January 20206https://gritprajnya.wordpress.com/2021/01/30/overlooking-sexual-intent-an-analysis-of-satish-ragde-versus-the-state-of-maharashtra/.