Opening Pants Zip Not Sexual Assault Under POCSO Act: Bombay HC

Holding the hand of a minor and opening pants zip not sexual assault as per POCSO Act, says Justice Ganediwala: After the controversial "skin to skin remark" the Nagpur bench of Bombay High Court is in news again, this for a finding which says that holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the Protection of Children from Sexual Offences Act of 2012.

The court held that such acts would fall under the ambit of “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code (which deals with physical contact and explicit sexual overtures), observed the bench, Live Law reported.

The observation was made by a single-judge bench of Justice Pushpa Ganediwala, is a case where a 50-year-old man was convicted and sentenced for molesting a five-year-old girl. A sessions court judge found the accused guilty and thus punishable under Section 10 of POCSO and ruled it to be "aggravated sexual assault". He was sentenced for five years of rigorous imprisonment and along with a fine of Rs 25,000 with a default simple imprisonment for six months. 

The High Court noted the definition of "sexual assault" under Section 7 of the POCSO as follows: "Whoever, with sexual intent, touches he 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."

Just a few days ago, a ruling by the same bench created nationwide headlines, when Justice Ganediwala observed during a hearing that groping a minor without skin to skin contact is not "sexual assault".

Ganediwala made the observation in connection with a case where a 39-year-old man had been accused of groping a 12-year-old girl's breast, while trying to undo her salwar, back in 2016. Since the accused groped the survivor without removing her top, the offence cannot be termed as sexual assault, read the court order. Read more here.

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