Restricting ‘Touch’ Or ‘Physical Contact’ Only To ‘Skin To Skin’ Contact Absurd : Supreme Court Reverses Bombay HC’s POCSO Judgment

The Supreme Court on Thursday set aside the controversial judgment of the Bombay HC which held that ‘skin-to-skin’ contact is necessary for the offence of sexual assault under Protection of Children from Sexual Offences(POCSO) Act.

A bench comprising Justice Uday Umesh Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi pronounced the judgment in the appeals filed by the Attorney General of India, National Commission for Women and the State of Maharashtra against the judgment of the High Court.

Important observations by the Supreme Court
Justice Bela Trivedi, who read out the operative portion of the judgment, stated that restricting ‘touch’ or ‘physical contact’ under Section 7 of POCSO is absurd and will destroy the intent of the Act, which is enacted to protect children from sexual offences.

Restricting the meaning of expression ‘touch’ and ‘physical contact’ under Section 7 of POCSO to “skin to skin contact” would not only be narrow and pedantic interpretation but will also lead to absurd interpretation of the provision.

If such an interpretation is adopted, a person who uses gloves or any other like material while physical groping will not get conviction for the offence. That will be an absurd situation.
The Construction of rule should give effect to rule rather than destroying it. The intention of legislature cannot be given effect to unless wider interpretation is given do. The purpose of the law cannot be to allow the offender to escape the meshes of the law.

Since the Act does not define ‘touch’ or ‘physical contact’, the dictionary meanings were referred. Act of touch, if done with sexual intent, will be an offence. Most important ingredient is the sexual intent and not the skin-to-skin contact of the child. Sexual intent is a question of fact which is to be determined from the attendant circumstances.

“For the interpretation of S.7 of the POCSO Act, we have referred to the dictionary and held that the word touch has been referred to with reference to the special parts of the body whereas the word ‘physical contact’ has been used for any other act, therefore the act of touching the sexual part of the body if done with sexual intent would amount to sexual assault within the meaning of S.7 of the POCSO Act”, Justice Trivedi said.
When legislature has expressed clear intention, the courts cannot create ambiguity in the provision. The Courts cannot be overzealous in creating ambiguity.