SATISH RAGDE V. STATE OF MAHARASHTRA
Child sexual abuse is one of the major problems in the world and India is no exception to this. India is home of 19 percent of children in the world. Children constitute 42 percent of the population of India. 50 percent of these children need care and protection. In India, numerous cases of child sexual abuse are registered per day. The latest one is the controversial case of Satish Ragde v. State Of Maharashtra in which a man who pressed the breast of a 12-year-old girl was not charged for sexual assault under the POCSO act. The judge, Justice Pushpa V Ganediwala, stated that for sexual assault ‘skin-to-skin’ contact is must. Along with this, the judge also said that this case is a minor offence due to which this judgment is criticised all across India.
FACTS OF THE CASE
This case is an appeal against the judgment passed by Extra Joint Additional Sessions Judge, Nagpur. He convicted the appellant for the offence punishable under Sections 354, 363 and 342 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012.
On 14 December 2016, a mother of a 12-year-old girl lodged a complaint at police station Gittikhadan, Nagpur. She stated that a 40 years old man took her daughter away to his home on the pretext to give guava. Then he pressed the breast of the girl, tried to remove her salwar and then restrained her in a room. She started crying and screaming for help. Fortunately, her mother came to that place and rescued her daughter. Her cry was also heard by some of the neighbours and were kind enough to testify. Then immediately, her mother went to the police station and lodged an FIR. Based on the FIR, crime came to be registered against that man under Sections 354, 363 and 342 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012. After the police investigation, a charge sheet was filed in Special Courts, Nagpur. The court held the man guilty of the crime registered against him. The accused man appealed in the High Court.
Whether the interpretation of ‘sexual assault’ and groping a minor’s breast without skin-to-skin contact comes under the ambit of Section 7 of the POCSO Act?
The appellant denied all the charges imposed on him by the Extra Joint Additional Sessions Judge, Nagpur.
The appellant pressed the girl’s breast and attempted to remove her salwar. He will be liable under Sections 361, 354, 342 and 309 of the IPC and Section 8 of the POCSO Act.
The appeal was filed in the Nagpur bench of the Bombay High Court. A single-judge bench heard the appeal. The judge held that Section 7 of the POCSO Act does not apply to this case. Section 7 of the POSCO Act defines sexual assault and its punishment is mentioned in Section 8 of this Act. The judge took into consideration that as per the definition of sexual assault, physical contact with sexual intention without penetration is an essential element of the offence. According to her, stricter proof and serious allegations are required to held the man liable under Section 7 of POSCO Act. This is because of the strict punishment that is given under Section 8 i.e. imprisonment for a term not less than 3 years and not more than 5 years and fine also. She further told that in absence of any proof that the top was removed or whether the man inserted his hand inside the top and pressed her breast, the act of pressing the breast cannot be considered a sexual assault. Instead of applying the POSCO act, she considered this act as an offence under Section 354 of the Indian Penal Code i.e. outraging the modesty of a woman. The minimum punishment of this offence is one year that may be extended to 5 years and the accused is liable to pay fine also. The court held that in this case, there was no direct physical contact i.e. skin-to-skin contact with sexual intent without penetration. She held this act as a minor offence under Section 354 of IPC and gave punishment to the accused to undergo R.I. for one year and to pay a fine of Rs. 500. Under Section 342 of IPC, he was sentenced to six months imprisonment and a fine of Rs. 500.
SEXUAL ASSAULT RELATED PROVISIONS IN POCSO ACT, 2012
Protection of Children from Sexual Offences Act, 2012 is popularly known as POCSO Act. It is a special law that was enacted with the intent to provide protection to children against sexual offences. In 2012, this act came into force. Important provisions of the POSCO Act are as follows:
Section 7 – Sexual assault
In this section, sexual assault is defined as “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 – Punishment for sexual assault
This section says that 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 10 – Punishment for aggravated sexual assault
According to this Section, 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 – Sexual harassment
As per this Section, a person is 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 the body with the intention that such word or sound shall be heard, or such gesture or object or part of the 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; or
iii. shows any object to a child in any form or media for pornographic purposes; or
iv. repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
v. threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
vi. entices a child for pornographic purposes or gives gratification therefore.
Explanation – Any question which involves “sexual intent” shall be a question of fact.
Section 12 – Punishment for sexual harassment
This Section says that 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 be liable to fine.
Section 354 A – Sexual harassment and punishment for sexual harassment
I. A man committing any of the following acts
a) physical contact and advances involving unwelcome and explicit sexual overtures; or
b) a demand or request for sexual favours; or
c) showing pornography against the will of a woman; or
d) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
I. Any man who commits the offence specified in clause (a) or clause (b) or clause (c) of sub-section (I) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
II. Any man who commits the offence specified in clause (d) of sub-section (I) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
This judgment is criticised all across India. By continuous efforts of NGOs and other organisations, people are now coming forth to fight a battle against child sexual abuse. Reporting of child sexual abuse cases has been increased in past years significantly. But then these types of judgments took the development of the country in child issues several years back. The irony of this judgment is that it came from a woman judge. After heavy criticism, the Bombay High Court has stayed this judgement.
1. The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012)
2. The Indian Penal Code, available at: https://www.iitk.ac.in/wc/data/IPC_186045.pdf (Visited on February 13, 2021).
3. No skin to skin contact no sexual assault, available at: https://blog.ipleaders.in/no-skin-skin-contact-no-sexual-assault/