Once again, the Bombay High Court (HC) is in the headlines for another verdict in a sexual assault case.
The Nagpur bench of the Bombay HC, in a case review said the act of opening the zip of pants does not come under the ambit of “sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012.
During a case review which involves a 50 year old man and a 5 year old minor, Justice Pushpa Ganediwala said “The act of holding a girl’s hands and opening the zip of pants will not come under the definition of sexual assault. The act would instead amount to “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code (IPC.)”
The case was filed by the victim’s mother. In her statement, she said, she saw the accused with his zip opened holding the hands of her daughter.
The mother also testified that the accused removed his penis from the pant and asked the daughter to come to bed for sleeping, as told by her daughter.
The single judge bench was hearing a petition filed against the conviction of the 50 year old accused.
A session court of Bombay gave the man a five year jail term for molesting a five year old girl. He was also asked to pay a fine of Rs. 25,000.
Justice Ganediwala, however, set aside his conviction under Sections 8, 10 and 12 of POCSO Act. She said, “The offence of sexual harassment under Section 354A (1) (i), which deals with physical contact and advances involving unwelcome and explicit sexual overtures, is attracted in the case.”
The man who was found guilty under Section 354A (1) (i) IPC, would now be imprisoned for three years maximum.
Explaining the reason why to not consider it as sexual assault under the POCSO Justice Ganediwala said, “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”.
This is the second time, the Nagpur bench drew criticism for its judgment in sexual assault cases.
In a similar case review, the single judge bench said groping a minor’s breast without “skin-to-skin contact” cannot be termed sexual assault.
Justice Pushpa Ganediwala even reduced the imprisonment of the accused in the case terming it not as a sexual assault.
However, her judgement in this case was ruled out by the Supreme Court (SC.)
Responding to the judgement of Ms. Pushpa Ganediwala, the SC on the 27th of January stayed Bombay High Court’s controversial order.
The order was stayed with the Attorney General K.K. Venugopal for further noting as it would set a “dangerous precedent.
Stay tuned for further updates.