‘The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breath, depth and height of its emotional, intellectual and spiritual being; otherwise, there cannot be a healthy growth of the nation. Now, obviously children need special protection because of their tender age and physique, mental immaturity and incapacity to look after themselves. That is why, there is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire self-confidence and self-respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity because a large segment of the society would then be left out of the developmental process.” – Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244.
The Protection of Children from Sexual Offences Act, 2012 came into force on 14th November, 2012. The intent of the Act is aptly summed-up in its preamble: –
“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 and for matters connected therewith or incidental thereto. Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children; and whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child; and whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child; and whereas 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; and whereas the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent— the inducement or coercion of a child to engage in any unlawful sexual activity; the exploitative use of children in prostitution or other unlawful sexual practices; the exploitative use of children in pornographic performances and materials; and whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.”
It is clear from the reading of the preamble that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a gender-neutral legislation which aims to protect children from offences that are sexual in nature. Recently, the Act has been at the centre of attention because of back-to-back judgments pronounced by the Nagpur Bench of the High Court of Bombay – Libnus v. State of Maharashtra, 2021 SCC OnLine Bom 66 (Decided on January 15, 2021) and Satish v. State of Maharashtra, 2021, SCC OnLine Bom 72 (Decided on January 19, 2021). Both the judgments have been vehemently criticized because of their seemingly misplaced reading of the law.
The intent behind this Article is to bring to the fore the true meaning and intent behind the legislation (POCSO) and to highlight how the interpretation and reasoning given by the Nagpur Bench of the High Court of Bombay stacks-up on a study of the provisions in question. One could argue that the enactment to ‘protect’ children might have been (mistakenly) interpreted in a manner that ends-up ‘protecting’ the offender – that clearly needs to be looked-into. In fact, the Supreme Court has already stayed the judgment in Satish v. State of Maharashtra, after the Attorney General of India brought the judgment to the notice of the Apex Court.
LIBNUS V. STATE OF MAHARASHTRA, 2021 SCC ONLINE BOM 66 (DECIDED ON JANUARY 15, 2021)
Brief Facts – The informant (mother of the prosecutrix) lodged a report stating therein that on 11/02/2018, she had gone out and upon her return, she noticed the presence of the Accused in her house. She saw the Accused molesting her daughter, aged about five years. She further stated that when she left her house, her two daughters, aged around 3 and 5 years were alone in the house and her husband was out of station. She also stated that the moment she saw a person in her house holding hands of her elder daughter, she shouted, as a result of which her neighbours gathered there. Thereafter, the accused ran away. The informant testified that her daughter informed her that the Accused removed his penis from the pants and asked her to come to the bed for sleeping. The informant also noticed that the zip of the pant of the Accused was open. A case was registered against the Accused for the offences punishable under Sections 354-A (1) (i) and 448 of the Indian Penal Code, 1860 and Sections 8, 10 and 12 read with Section 9(m) and 11(i) of the Protection of Children from Sexual Offences Act, 2012. After investigation, police filed the charge-sheet before the Special POCSO Court, Nagpur. The Special Court framed charge against the Accused for the offences punishable under Sections 354-A(1)(i) and 448 of the IPC and Sections 8, 10 and 12 read with Section 9(m) and 11(i) of the POCSO Act. The Trial Court found the Accused guilty and convicted him accordingly.
The High Court of Bombay quashed and set aside the conviction of the Accused for the offence punishable under Sections 8, 10, and 12 of the POCSO Act. The conviction of the Accused for the offence punishable under Sections 448 and 354-A(1)(i) of the IPC and his sentence was modified to the extent he had already undergone. The Court opined that the acts of holding the hands of the prosecutrix, or opened zip of the pant as has been allegedly witnessed by PW-1, does not fit in the definition of sexual assault.
It would be apposite to reproduce Sections 7, 8, 11, and 12 of the Protection of Children from Sexual Offences Act, 2012: –
“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 assault.
8. Punishment for sexual assault. —Whoever, commits sexual assault, shall be punished with 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.
11. Sexual harassment. —A person is said to commit sexual harassment upon a child when such person with sexual intent, —
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
Explanation. —Any question which involves “sexual intent” shall be a question of fact.
12. Punishment for sexual harassment. —Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.”
The High Court was reluctant to notice the wording of the latter part of Section 7 which states ‘any other act with sexual intent which involves physical contact’ without penetration is also sexual assault. As it was alleged by the informant that the moment, she saw a person in her house holding hands of her elder daughter, the Court could have assumed physical contact based on the circumstances. It was another matter had the Court found the mother’s version untrustworthy and based the judgment on that. The High Court also failed to take note of the fact that Section 11 (1) was clearly made out as the very act of the Accused unzipping and taking-out his penis attracts S.11 (1) when the Court had not rejected the testimony at all. As the prosecutrix, being of age below twelve years, the conviction was rightly recorded by the Trial Court for the offence of aggravated sexual assault as per Section 9 (m) which states that whoever commits sexual assault on a child below twelve years is said to have committed aggravated sexual assault. In the absence of an observation where the Court found the testimony untrustworthy one wonders how the offences under POCSO are not made-out when the Accused made physical contact, took-out his penis and asked the child to sleep with him – all this after the Accused had entered the home of the child without anyone having invited him to. The facts, circumstances, and the actions of the Accused leave no scope of doubt as to his intentions and the offences are well made-out. It is surprising that the Court makes no mention of the testimony being untrustworthy and yet finds the Accused not guilty.
The High Court has narrowed down the scope of Section 7 and Section 11. Holding a child’s hand with the zip open, removing of penis from the pants, and asking the child to come to the bed for sleeping, clearly fall in the definitions of sexual assault and sexual harassment. If this does not make-out an offence under the POCSO Act (a legislation enacted to protect children from offences that are sexual in nature) – one wonders what will.
SATISH V. STATE OF MAHARASHTRA, 2021, SCC ONLINE BOM 72 (DECIDED ON JANUARY 19, 2021)
Brief Facts – On 14.12.2016, the informant (mother of the prosecutrix) lodged a report at police station Gittikhadan, Nagpur. It was alleged that the Accused lured (on the pretext of giving her a guava) the child (a 12-year-old girl) into his house and pressed her breast and attempted to remove her salwar. At that point of time, the informant reached the spot and rescued her daughter. Immediately, she lodged a First Information Report. On the basis of the said FIR, the crime came to be registered for offences punishable under Sections 309, 354, 363, and 342 of the IPC and under Section 8 of the POCSO Act. The Special Court found the Accused guilty of the crime registered against him except under Section 309 of the Indian Penal Code and passed the judgment of conviction and sentenced him.
The Bombay High Court acquitted the Accused under Section 8 of the POCSO Act and convicted him under the minor offence i.e., u/s 354 of IPC sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- and, in default of fine to suffer rigorous imprisonment for one month. The Court held that the act of pressing of breast of the child, in the 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. The Court further observed that it is not the case of the prosecution that the Accused 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. Here, the Bombay High Court has set a dangerous precedent and the same clearly goes against the scheme and intent of the Act, besides clearly being an incorrect understanding of the Section itself. It is definitely an extremely narrow view to take and lay down that ‘physical contact’ would not cover within its purview any inappropriate physical contact (like pressing of breast) made without removing the clothes of a Child. Further, keeping the misplaced definition and the extremely narrow view taken by the Court in interpreting ‘physical contact’ aside, the Court clearly seems to have missed the fact that had the Legislature intended to mean ‘physical contact’ to mean ‘physical contact without clothes’ – it would have mentioned so. It is not in the fitness of things and is definitely not right to read into a law, especially in a manner that goes completely against the intent of the Act. In Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659, the Supreme Court observed:
“It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent.”
The Court did not delve into Section 11 (1) either. Pressing the breasts, attempting to remove the salwar after luring the victim to his home, clearly fall within the ambit of Section 11 (1).
The principal objectives of the Protection of Children from Sexual Offences Act, 2012 are to ‘protect’ children from offences of sexual assault, sexual harassment, pornography, to secure the best interests of the child, and to prevent the inducement or coercion of a child to engage in any unlawful sexual activity, etc. The two judgments discussed above, unfortunately, do not uphold the objectives of the POCSO Act. Holding a child’s hand with the zip open, removing of penis from the pants, asking the child to come to the bed for sleeping, and pressing of breasts not by skin to skin, etc., are all ingredients of sexual assault but the Bombay High Court by not holding them to fall in the category of sexual assault has paved the way for the perpetrators of crime to use the two judgments as a shield for their crimes. The Supreme Court has already stepped in to prevent the abuse of law by staying one of the judgments and one can only hope that the Hon’ble Supreme Court clarifies the law and supplements the intent behind the enactment. The Supreme Court Collegium has also withdrawn its consent to make the Judge, who authored the two controversial judgments, a permanent judge of the Bombay High Court, for misreading the law, not once but twice. This might also throw open another question – How to best ensure quality of Judges that we deserve.
This is a High Court Judge that we are talking about, permanent or otherwise. The Supreme Court has found the Judge not fit to be made a permanent Judge of the High Court – not because of any other reason, but on the basis of the Judgments pronounced by the Judge in question. That is astounding and throws open a much wider debate.
The Accused opened his zip, took-out his penis, held the girl child’s hands and asked her to sleep with him while another lured a girl child into his house, attempted to remove her salwar, pressed her breasts before he was caught and he was not convicted under an Act meant to protect children against offences that are sexual in nature because it was not established that he pressed her breasts by putting his hands under her shirt – let that sink in.