The bad "Touch" of Bombay High Court?

With so many molestations cases getting registered in the country, a certain case has definitely been in limelight over the days. Thanks to a very "intellectual" judgement passed by the Bombay High Court. In a very retrograde judgement, the Bombay HC had ruled out that the offence of molestation of a child without "skin to skin contact with sexual intent" does not constitute as a "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act. Controversies have been erupting since the judgement was passed by the Nagpur bench of the Bombay High Court headed by Justice Pushpa Ganediwala.

 

 

 

The verdict came out as a 12-year-old girl had reportedly been groped by a 39-year-old man in December 2016. The minor was going to buy herself some fruit when a 39-year-old man living in the same locality took her hand and said he would give her some fruit. When the mother started looking for her child, a neighbour informed her that the child went with the accused. The mother went to the house of the accused but he denied that the girl was with him. She searched the house, forced open a bolted door and found her daughter crying.

 

The child told her that the man had pressed her breasts and tried to take off her salwar. When she started screaming loudly, he went out and locked her inside. If the child is disabled, as the remarks of the judge imply, the crime is all the more serious.

 

 

The Nagpur bench found that the accused did grope the child but it did not constitute as sexual assault punishable with POCSO but instead constituted the offence of outraging a woman's modesty under IPC section 354. And what was the reason? The girl reportedly had her top on and since there was no "skin to skin contact", the groping could not be ruled as an assault. It, however, convicted the man and sentenced him to undergo rigours imprisonment for only one year and to pay a fine of Rs 500.

 

 

First of all, one needs to understand that such assaults are happening with young children who do not have any idea what is exactly happening to their body. And even so, how do we explain to a young girl in India that if a man forcibly touches her under her clothes it's assault but if he does so over her top or pants, it's not.

 

Besides, there are so many molestation cases getting registered in the court across the country and there might be such similar cases, too. But why a reputated court like Bombay HC is giving out such judgement in which a child is made to stand in open court, frightened, often crying, often unable to describe her nightmare as she is questioned of the details of the assault by lawyers of the adult accused. Why the Maha Vikas Aghadi government has not acted upon on such case where the Bombay HC has passed out a judgement wherein it is raising a question about the safety of a child.

 

The MVA government is committed to protecting women or children, then why not now? Besides, it had so much to say and time to invest in Kangana Ranaut's case in which they left no stone unturned to prove they were right. The MVA was so much involved in the case that it took a national-level turn as they had power in their hands. Why not utilise that power in such molestation cases in order to gain the trust of people rather than losing it.

 

 

 

Now, a bench of Supreme Court headed by Chief Justice SA Bobde stayed the acquittal order and also issued a notice to the accused and Maha Vikas Aghadi government in the case and sought a response in two weeks. The apex court's order came after Attorney General KK Venugopal, on behalf of the Centre, mentioned before the Chief Justice that the Nagpur Bench of Bombay High Court's verdict is "very disturbing" and will set a "dangerous precedent".

 

"The Attorney General submitted that order is unprecedented and likely to set a dangerous precedent. We permit the Attorney General to file an appropriate petition against the order. In the meantime, we stay the acquittal of the accused. Notice issued to accused returnable in two weeks," the order said.

 

All in all, the judgement seems to be very misleading and fatal for the safety of the children and the MVA needs to look into it. It will surely be appealed against. But it reminds us of the long way we have to travel in our struggles to bring justice to children and women who are victims of sexual assault.