POCSO ACT: FINAL WORDS
ON “SKIN TO SKIN CONTACT”
The
Protection of Children from Sexual Offence Act, 2012 (POCSO) has been enacted
to protect the children from the offences of sexual assault, sexual harassment
and pornography and provide for establishment of special courts for trial of
such offences and for the matters connected therewith or incidental thereto. Since the sexual offences against children were not adequately
addressed to by the existing laws and a large number of such offences were
neither specifically provided for nor were they adequately penalized. The POCSO
Act was therefore enacted with a view to provide a comprehensive law to protect
the children from the offences of sexual assault, sexual harassment and
pornography and to provide for establishment of Special Courts for trial of
such offences and for matters connected therewith and incidental thereto.
HISTORICAL PERSPECTIVE
Pertinently, the Article 15
of the Constitution empowers the State to make special provisions for children.
The Convention on the Rights of the Child, adopted by the General Assembly of
the United Nations, as acceded to by the Government of India in 1992, prescribes
a set of standards to be followed by all the State parties in securing the best
interest of the child. The POCSO Act kept in view the Convention on the Rights
of Child when the POCSO Bill was introduced and it was intended to enforce the
rights of all children to safety, security and protection from sexual abuse and
exploitation, and also intended to define explicitly the offences against
children countered through commensurate penalties as an effective deterrence.
The Law Commission's 146th
Report (1993), 156th Report
(1997) and 172nd Report (2000) dealt with some of these and
associated issues. The 172nd Report recommended changes to the
definition of rape, expanding its scope, and also incorporating the expanded
definition of sexual assault.
The ratification of the UN
Convention on the Rights of Children, 1992 by India entailing requirement to
the nation states to adopt suitable legislation to combat coercion of children
in sexual activity, exploitative use of children and children's exploitation
for pornography and that formed the background of enacting POCSO. The Statement
of Objects and Reasons for POCSO, cites the UN Convention, and further states
that:
"The data collected by the National Crime
Records Bureau shows that there has been increase in cases of sexual offences
against children. This is corroborated by the "study on child abuse: India
2007" conducted by the Ministry of Women and Child Department. Moreover,
sexual offences against children are not adequately addressed by the extent
laws. A large number of such offences are neither specifically provided for nor
are they adequately penalized. The interests of the child, both as a victim as
well as a witness, need to be protected”.
It is felt that offences
against children need to be defined explicitly and countered through
commensurate penalties as an effective deterrence. A self-contained
comprehensive legislation was felt necessary inter alia to provide for protection of children from the sexual
offences and pornography with due regard for safeguarding the interest and
well-being of the child at every stage of the Judicial process, incorporating
child friendly procedures for reporting, recording of evidence, investigation
and trial of offences and provision for establishment of Special Courts for
speedy trial of such offences.
What is noteworthy to
notice that the Indian Penal Code (IPC) at one stage was sought to be amended;
through the introduction of a Bill in 2012. However, the said bill could not see
the light of the day, and instead, the amendments were made, through an
Ordinance which was later replaced by a Parliamentary Act. These amendments prescribed
the enhanced punishment for certain offences (including Section 354). A new set
of offences are also introduced into the IPC, such as:
Section 354 A:
sexual harassment, which is
an offence involving unwelcome sexual advances or physical contact, demand or
request for sexual favours, forceful exhibition of pornography to women or
making sexually coloured remarks;
Section 354 B:
assault or use of criminal
force to woman with intent to disrobe, or abets the doing of such act;
voyeurism
Section 354 C:
Relating to the act of a
man watching or capturing the image of a woman engaged in private activities
(e.g. undressing), when the woman presumes she is assured of privacy and does
not expect anyone to be watching;
Section 354D:
Stalking, which means
following a woman and making or attempting to make contact (either physically
or through electronic media) for personal interaction, despite a clear
disinterest being displayed by the woman.
The backdrop of the present
write up is the interpretation of Section 7, 8 and other provisions of POCSO
Act 2012 while the Nagpur Bench of Bombay High Court has held that unless there
is “skin to skin contact” POCSO Act shall have no applicability. High Court,
while specifically accepting the consistent versions of the victim and her
mother i.e. informant about the accused having taken the victim to his house,
having pressed the breast of the victim, having attempted to remove her salwar
and pressing her mouth, had committed gross error in holding that the act of
pressing of breast of the child aged 12 years, in absence of any specific
details as to whether the top was removed or whether he inserted his hands
inside the top and pressed her breast, would not fall in the definition of
sexual assault, and would fall within the definition of offence under Section
354 of the IPC. The High Court had further erred in holding that there was no
offence since there was no direct physical contact i.e. "skin to skin"
with sexual intent.
The interpretation of
Section 7 at the instance of the High Court on the premise of the principle of "ejusdem
generis" is also thoroughly misconceived. The word ejusdem
generis has Latin
origin mean "of the same kind," It is used to interpret loosely
written statutes. It may be noted that the
principle of "ejusdem generis" should be applied only as an aid to
the construction of the statute. It should not be applied where it would defeat
the very legislative intent.
The observations/findings
made by the High Court, have caused furor, all over the country and the
Attorney General for India has raised the plea against the judgment of high
court, the National Commission for Women and the State of Maharashtra also files
the appeals before this Court. The accused has also filed the appeal
challenging his conviction for the offences under Section 354 and 342 of the
IPC. The bunch of appeal was therefore considered by the hon’ble Supreme Court
and a common judgment is passed, thereby setting aside the judgment of high
court whereby the high court had held that no offence was made under POCSO Act.
The Attorney General for
India expressed grave concern about the manner in which the provisions
contained in the POCSO Act were interpreted by the High Court, vehemently
submitted that such interpretation would lead to devastating effect in the
society at large. According to him, the High Court could not have acquitted the
accused-Satish misinterpreting the provisions contained in Section 7 on the
ground that there was no direct physical contact i.e. skin to skin contact made
by the accused with the victim. It was submitted by him that the act by the
accused clearly fell within the meaning of Section 7 punishable with Section 8
of the POCSO Act.
The POCSO
Act and interpretation of its provisions has drawn much attention recently,
more particularly whether “skin to skin
contact” is a sine qua non for attracting provision of POCSO. The Nagpur
bench judgment of Bombay High Court was much debated and the matter had reached
before hon’ble Supreme Court. The Supreme Court has thus settled the issue in
bunch of appeals/ and cross appeals captioned as under:
(1) Attorney
General for India Vs. Satish and Another [Criminal Appeal No. 1410 of 2021 @
Special Leave Petition (Crl) No. 925 of 2021]
(2) National Commission for Women Vs. State of Maharashtra and Anr.
[Criminal Appeal No. 1411 of 2021 @ Special Leave Petition (Crl) No. 1339 of
2021]
(3) State of Maharashtra Vs. Satish [Criminal Appeal No. 1412 of 2021
@ Special Leave Petition (Crl) No. 1159 of 2021]
(4) State of Maharashtra Vs. Libnus [Criminal Appeal No. 1413 of 2021
@ Special Leave Petition (Crl) No. 5071 of 2021]
(5) Satish Vs. State of Maharashtra, [Criminal Appeal No. 1414 of 2021
@ Special Leave Petition (Crl) No. 7472 of 2021].
PROVISIONS OF POCSO ACT & ITS INTERPRETATION
As per the definition of
'sexual assault' a 'physical contact with sexual intent without penetration' is
essential ingredient for the offence. The definition starts with the words -
"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.'
In other words, 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, would be committing an offence of "sexual assault".
Similarly, whoever does any other act with sexual intent which involves
physical contact without penetration, would also be committing the offence of
"sexual assault" under Section 7 of the POCSO Act. The prosecution
was not required to prove a "skin to skin" contact for the purpose of
proving the charge of sexual assault under Section 7 of the Act.
Section 7 pertaining to "sexual assault" reads as under:
"7. 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”.
Section
8 providing for the punishment for sexual assault, reads as under :
"8 - 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.
Section
9 of the Act enumerates as to what is said to commit aggravated sexual assault.
Clause (m) of the said provision being relevant is reproduced as under: 9(m)-
whoever commits sexual assault on a child below twelve years;
Section
10 for providing Punishment for aggravated sexual assault -
"10- whoever, commits aggravated sexual
assault shall be punished with imprisonment of either description for a term
which shall not be less than five years but which may extend to seven years,
and shall also be liable to fine".
Section
11 pertains to "sexual harassment" - A person 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;
(iii)
to (vi)......
Explanation
- Any question which involves "sexual intent" shall be a question of
fact.
Section
12 for providing punishment for sexual harassment
"12 - 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 liable to fine."
Sections 29 and 30 pertaining to the statutory
presumptions read as under:
"29 -When a person
is prosecuted for committing or abetting or attempting to commit any offence
under Section 3, 5, 7 and Section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted or attempted to commit the
offence, as the case may be, unless the contrary is proved."
"30 - (1) In any
prosecution for any offence under this Act which requires a culpable mental
state on the part of the accused, the Special Court shall presume the existence
of such mental state but it shall be a defence for the accused to prove the
fact that he had no such mental state with respect to the act charged as an
offence in that prosecution.
(2) For the purposes of this section, a fact is
said to be proved only when the Special Court believes it to exist beyond
reasonable doubt and not merely when its existence is established by a preponderance
of probability".
Explanation
- In this section, "culpable mental state" includes intention,
motive, knowledge of a fact and the belief in, or reason to believe, a fact.
The main controversy
centers around the interpretation of Section 7 of the POCSO Act. It is trite
saying that while interpreting a statute, the courts should strive to ascertain
the intention of the Legislature enacting it, and it is the duty of the Courts
to accept an interpretation or construction which promotes the object of the
legislation and prevents its possible abuse. As observed by the Supreme Court
in the case of J.P. Bansal vs. State of Rajasthan & Anr, reported in AIR (2003) SC 1405, a statute is an edict
of the legislature. The elementary principle of interpreting or construing a
statute is to gather the meaning or sententia
legis, To amplify it further, Sententia legis
means that the essence of the law lies in the spirit, and not in its letter,
the letters are just the way to express the intentions of the law makers. The
words are the external manifestation of intention that it involves. It has been observed
therein that :
"12. Interpretation
postulates the search for the true meaning of the words used in the statute as
a medium of expression to communicate a particular thought. The task is not
easy as the "language" is often misunderstood even in ordinary
conversation or correspondence.
The tragedy is that
although in the matter of correspondence or conversation the person who has spoken
the words or used the language can be approached for clarification, the
legislature cannot be approached as the legislature, after enacting a law or
Act, becomes functus officio so far
as that particular Act is concerned and it cannot itself interpret it. No
doubt, the legislature retains the power to amend or repeal the law so made and
can also declare its meaning, but that can be done only by making another law
or statute after undertaking the whole process of law-making.
Where, therefore, the
"language" is clear, the intention of the legislature is to be
gathered from the language used. What is to be borne in mind is as to what has
been said in the statute as also what has not been said.
In the case of Balaram Kumawat Vs. Union of India &
Ors. reported in (2003) 7 SCC 628, the Supreme Court while elaborately
discussing the basic rules of interpretation observed as under:
" Contextual reading is a well-known
proposition of interpretation of statute. The clauses of a statute should be
construed with reference to the context vis-Ã -vis the other provisions so as to
make a consistent enactment of the whole statute relating to the subject-matter.
The rule of "ex visceribus actus" should be resorted to in a
situation of this nature.
In State of W.B. Vs Union of India (AIR at p. 1265,
para 68), the learned Chief Justice stated the law thus:
"The Court must ascertain the intention of the legislature by
directing its attention not merely to the clauses to be construed but to the
entire statute; it must compare the clause with the other parts of the law, and
the setting in which the clause to be interpreted occurs."
The said principle has been
reiterated in R.S. Raghunath v. State of
Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507 :
AIR 1992 SC 81] (AIR at p. 89).
Furthermore, even in
relation to a penal statute any narrow and pedantic, literal and lexical
construction may not always be given effect to. The law would have to be
interpreted having regard to the subject matter of the offence and the object
of the law it seeks to achieve. The purpose of the law is not to allow the
offender to extricate itself from their act and taking recourse to mosaic of
law to their advantage. Criminal law as per criminal jurisprudence has to be
construed strictly.
The contentions of accused & RULE OF LENITY
On behalf of the accused it
was contended that the phrases 'sexual intent', 'touches' and 'physical
contact' have not been defined in the POCSO Act, however the explanation to
Section 11 states that any question which involves 'sexual intent' shall be a
question of fact. The accused had put reliance on the decision of the Bombay
High Court in case of Bandu Vithalrao Borwar v/s State of
Maharashtra, in Criminal Appeal No. 50 of 2016, decided on 17.10.2016,
and contended that the expression "sexual intent" cannot be confined
to any predetermined format or structure and that unlike POCSO Act, the IPC
offence under section 354 uses the terms 'assault' and 'criminal force'. The
accused further contended that Rule of Lenity shall be applicable.
As per the settled legal
position, if the specific words used in the section exhaust a class, it has to
be construed that the legislative intent was to use the general word beyond the
class denoted by the specific words. So far as Section 7 of the POCSO Act is
concerned, the first part thereof exhausts a class of act of sexual assault
using specific words, and the other part uses the general act beyond the class
denoted by the specific words.
Invoking the Rule of
Lenity, that this rule of statutory construction requires a court to
resolve statutory ambiguity in a criminal statute in favour of the accused or
to strictly construe the statute against the State. In this regard, he has
relied upon the decisions of the United States Supreme Court in the case of
"The United States vs. Wilt Berger 4; Connally v. General Construction
Co.5 and in case of United States vs. Kozminski .
The accused in the case had invoked Rule of Lenity.
Before going further, it may be worthwhile to know about Rule of Lenity. This is a rule
requiring that any ambiguities in a criminal statute relating to prohibitions
and penalties should be resolved in favor of the accused , when doing so may
not be contrary to legislative intent.
The invocation of "Rule of lenity" is
inapplicable in the context of the case Attorney
General for India Vs. Satish and Another (Supra). The various judgments of the United States Supreme Court in case
of Ladner vs. United States, 358 US
169; United States vs. Kozminski, 487
US 931; United States vs. Wiltberger,
18 US 76, relates to "Rule of Lenity" wherein it is required that a
court shall have to resolve statutory ambiguity in a criminal statute in favour
of the accused, or to strictly construe the statute against the State. This runs
contrary to the settled proposition of law that the statutory ambiguity should
be invoked as a last resort of interpretation. Where the Legislature has
manifested its intention, courts may not manufacture ambiguity in order to
defeat that intent. In this regard. In this context supreme court had accepted
the contention of National Commission for Women as regards relying upon the
precise observations made by the Court of Appeal, California, in case of The
People vs. REID II, 246 Cal. App. 4Th, 822 as follows:
"[T]he 'touchstone'
of the rule of lenity 'is statutory ambiguity.' [Citation.]" (Bifulco v.
United States (1980) 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L.ED.2d 205.)
" 'the rule applies only if the court can do no more than guess what the
legislative body intended; there must be an egregious ambiguity and uncertainty
to justify invoking the rule.' "(People v. Avery (2002) 27 Cal. 4Th 49,
58, 115 Cal. Rptr.2d 403, 38 P.3d 1.) "Where the Legislature has
manifested its intention, courts may not manufacture ambiguity in order to
defeat that intent." (Bifulco v. United States supra, at p. 387, 100 S.
Ct. 2247.) Additionally, "ambiguities are not interpreted in the defendant's
favor if such an interpretation would provide an absurd result, or a result
inconsistent with apparent legislative intent. (People v. Cruz (1996) 13 Cal.
4Th 764, 783, 55 Cal. Rptr. 2D 117, 919 P. 2d 731.)"
It is submitted by the
accused that the expression "sexual intent" cannot be confined to any
predetermined format or structure. It is submitted that unlike POCSO Act, the
IPC offence under section 354 uses the terms 'assault' and 'criminal force'.
However, since 'sexual assault' is defined under the POCSO Act, the definition
of the words 'assault' or 'criminal force' contained in IPC cannot be imported
into the POCSO Act, though permitted under section 2(2) of the POCSO Act. While
fairly conceding that the first part of Section 7 of the POCSO Act, which
pertains to the act of touching the private parts of the child, may not require
'skin to skin contact', though, so far as, the second part i.e. " the
other act with sexual intent which involves physical contact without
penetration" is concerned, 'the skin to skin contact' is required to be
proved by the prosecution. Thus, by invoking the Rule of Lenity that this rule
of statutory construction requires a court to resolve statutory ambiguity in a
criminal statute in favour of the accused or to strictly construe the statute
against the State, according to the accused.
ANALYSIS
In both the cases, the main
controversy centers around the interpretation of Section 7 of the POCSO Act. It
is trite saying that while interpreting a statute, the courts should strive to
ascertain the intention of the Legislature enacting it, and it is the duty of
the Courts to accept an interpretation or construction which promotes the
object of the legislation and prevents its possible abuse.
As observed by the Supreme
Court in the case of J.P. Bansal vs. State of Rajasthan & Anr
(Supra) a statute is an edict of the legislature. The elementary
principle of interpreting or construing a statute is to gather the sententia legis, the true intention of
the Legislature.
The tragedy is that
although in the matter of correspondence or conversation the person who has
spoken the words or used the language can be approached for clarification, the
legislature cannot be approached as the legislature, after enacting a law or
Act, becomes functus officio so far
as that particular Act is concerned and it cannot itself interpret it. No
doubt, the legislature retains the power to amend or repeal the law so made and
can also declare its meaning, but that can be done only by making another law
or statute after undertaking the whole process of law-making.
In the aforesaid premises,
the judgments and orders dated 19.01.2021 and 15.01.2021 passed by the High
Court of Judicature at Bombay, Nagpur Bench, at Nagpur in Criminal Appeal No.
161 of 2020 and Criminal Appeal No. 445 of 2020 respectively are quashed by the
hon’ble Supreme Court and the judgments and orders dated 05.02.2020 and
05.10.2020 passed by the Extra Joint Additional Sessions Judge, Nagpur in
Special Child Protection Case No. 28 of 2017 and by the Special Court,
Gadchiroli in POCSO Case No. 07/2019 are restored.
The accused-Satish is thus convicted
for the offences punishable under Section 8 of the POCSO Act and under Sections
342, 354 and 363 of the IPC and further direction was passed to undergo
rigorous imprisonment for a period of three years and to pay fine of Rs.500/-
and in default thereof to suffer simple imprisonment for a period of one month
for the offence under Section 8 of the POCSO Act. As the accused was sentenced
for the major offence under Section 8 of the POCSO Act, hence, no separate
sentence is imposed upon him for the other offences under the IPC.
Similarly, the accused-Libnus convicted for the offences
punishable under Sections 354-A (1)(i) and 448 of the IPC as also for the
offences under Sections 8, 12 and 10 read with Section 9 (m) of the POCSO Act.
He is also directed to undergo rigorous imprisonment for a period of five years
for the offence under Section 10 of the POCSO Act and to pay fine of Rs.
25,000/- (Rupees twenty five thousand only) and in default thereof to suffer
simple imprisonment for a period of six months. As the accused is sentenced for
the major offence under Section 10 of the POCSO Act, no separate sentence was imposed
upon him for the other offences under the IPC and the POCSO Act.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
