In a recent troubling judicial pronouncement of the Nagpur Bench of the Bombay High Court in the matter of Satish Ragde v. State of Maharashtra (Criminal Appeal No. 161 of 2020), a single judge Bench of the Bombay High Court held that the application of Section 7 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO ACT”) would require either the removal of the clothes or the hand to be inserted within the clothes, whereby actual skin contact occurs to constitute the offence of ‘Sexual assault’, which is indicated by the following part of para 18 of the judgment which reads as follows:
“The act of pressing of breast of the child aged 12 years, in absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”
It would be pertinent, for the purposes of this discussion, that Section 7 of the POCSO Act is reproduced for the sake of reference. It provides that:
“7. Sexual assault – 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 contact.”
From the reading of the above definition juxtaposed with the rationale of the single judge, the issue in this judgment boils down to the interpretation of ‘Sexual assault’ as provided in Section 7 of the POCSO Act and; whether it would cover a situation where the ‘contact’ / ‘groping’ occurred over the clothes of the child?
Admittedly, the single judge has clarified her mind in the judgment itself, vide para 26, that the meaning of “physical contact” that has been provided in Section 7 would naturally be construed as “direct physical contact i.e. skin to skin with sexual intention without penetration”. Thus, the entire question regarding the applicability of Section 7 in the present case pivots around this aspect that whether ‘physical contact’ would specifically mean ‘skin to skin contact’ or it would be construed in a simpliciter manner to cover all situations where there is any contact on any of the areas mentioned in Section 7 as long as the same is accompanied with a ‘sexual intent’.
As a matter of intellectual exercise, even before delving into the judicial exposition on the subject, it would be prudent to understand the mind of the legislature in relation to the legislative intent behind Section 7 which is to be read in consonance with the scheme of the Act. The foremost duty of the judge, while interpreting any provision of a statute, is to give effect to the intent of the legislature as long as it not ultra vires the constitutional provisions and contrary to the public good and principles of Natural Justice. The best way to gauge the mind of the legislature is by plain reading of the intent of the legislature which is apparent in the scheme of the Act. In order to determine the scheme of any Act, one need not look further than the Preamble of the Act itself.
The Preamble of the Act provides that the Act is meant “to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.”
It further provides that “it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. Therefore, the intent of the legislature as well as the scheme of the Act is ostensibly clear from the reading of the Preamble.
It is clear from the reading of the Preamble that the intent of the legislature while enacting the POCSO Act was to provide an additional layer of protection to children in the domain of sexual offences which were falling in-between the gaps of the pre-existing criminal law governing sexual offences which was covered under the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). In the light of the new legal regime as mentioned above, the single judge should have attempted to provide a beneficial interpretation to Section 7 which gave effect to the scheme of the Act, rather than taking a narrow interpretation curtailing the scope of Section 7, which was not otherwise naturally provided in the provision itself.
It should be further observed that the single judge unnecessarily created a peculiar rationale in order to arrive at her interpretation for Section 7 of the POCSO Act. The Single judge went into the question of interpretation of the phrase “any other act” which is provided in Section 7 to construe that the action of pressing the breast / groping over clothes would not be covered by the phrase “any other act”, which would be interpreted according to the principle of ‘ejusdem generis’, which provides that the words/phrases will be interpreted in the same manner as the words/phrases used in the immediately preceding part of the provision in order to construe that the meaning of the words would be of similar/same nature as that of the meaning of the preceding words/phrases of the provision. Therefore, according to the single judge, the action of pressing the breast over the clothes is not covered by the phrase “any other act” and subsequently the requirements of Section 7 are not being fulfilled, thereby leading to the failure to attract the application of Section 7. However, this was an incorrect and redundant interpretation of this phrase as it should have been provided a liberal interpretation, keeping in mind the scheme of the Act which stresses concern over the ‘best interests of the child’, even after the application of the principle of ‘ejusdem generis’. The application of the principle of ‘ejusdem generis’ to the phrase “any other act” would ensure that it is read to include those actions within its scope which involves touching of the private parts of the child coupled with sexual intent, rather than the phrase being read down to only mean the ‘touching’ of only the said body parts that are provided in Section 7 therein which should be a physical touching involving ‘skin to skin’ contact to qualify inclusion into the scope of the phrase “any other act” as provided in Section 7.
However, it is of utmost importance to mention here that even if we were to disregard the above redundant ‘intellectual exercise’ of judicial interpretation, even then, the single judge could not have arrived at such a flawed interpretation of the definition of ‘Sexual assault’ which is provided in Section 7.
This flawed interpretation was the result of the misconceived notion of the single judge that the “physical contact” contained in Section 7 meant ‘skin to skin’ contact which is what the single judge Bench termed as “direct physical contact”.
However, this unnecessary distinction as to what would constitute “physical contact” has not been provided in the wordings of Section 7, which would, therefore, mean that the term “physical contact” should have been construed in a simpliciter manner involving any touching of the said body parts that have been mentioned in Section 7, regardless of whether it is ‘skin to skin’ contact or ‘groping’ over the clothes.
In this regard, the single judge has, unfortunately, substituted her personal bias in lieu of the legislative intent behind the enactment of the POCSO Act and Section 7 specifically, and subsequently read-in a requirement which was never intended by the legislature.
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, and thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC contained in the provisions pertaining to sexual offences, including the provision pertaining to ‘penetrative’ sexual assault contained in Section 375 of the IPC, which provides for the definition of Rape. In contrast, the POCSO Act goes beyond the IPC and provides for a specific provision dealing with the subject of ‘non-penetrative’ sexual assault, however, the same has been disabled by the absurd and redundant interpretation of the single judge, which is also disjointed from the legislative intent of the Parliament, which is evident from the Scheme of the Act itself.
The legislative intent behind the enactment of the POCSO Act was to provide additional layers of protection to the child victim and deter all forms of sexual offences, which may be inflicted upon a child, and thereby hindering their holistic and healthy growth. Therefore, the purpose of the POCSO Act is to specifically provide protections to children apart from the protections that have been otherwise provided in the IPC
