KEY TAKEAWAYS
Days after ruling on 'skin-to-skin contact,' the Nagpur bench of the Bombay High Court said that taking a minor girl's hand and opening her pants zipper cannot be deemed 'sexual harassment' under the Protection of Children from Sexual Offences Act 2012.
Such activities will amount to sexual assault below Section 354 of the Indian Penal Code, the bench said.
The single bench judge, consisting of Justice Pushpa Gandeiwala, has given out yet another controversial ruling that has been the talk of the town.
The judgement was given out in the case of Libnus v State of Maharashtra, wherein a 50 year old man is accused of molesting a 5 year old toddler.
BACKGROUND
On February 12, 2018, the mother of the girl lodged a complaint that the day before she saw LibnusKujur, a laborer in her home, molesting her five-year-old. She saw him clutching the hands of her elder daughter, and she screamed out so that the neighbors would come in, but the accused rushed away.
The minor later told her mother that he removed his penis from the pant and asked her to come to bed for sleeping. The mother had also observed Kujur’s pant’s zip to be open.
FURTHER DETAILS
Instead of serving the soul of legislative intention, the bench has taken the role of peering down the words of the constitution and critically scrutinize them to seek out what sounds pleasing.
The individual was charged and convicted under sections 354A (1) (i) - physical contact and advances involving unwelcome and explicit sexual overtures and 448 - punishment for house-trespass of the Indian Penal Code (IPC) and section 8 - punishment for sexual assault, 9 (m) - whoever commits sexual assault on a child below twelve years; 10 - punishment for aggravated sexual assault, 11 (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 and 12 - punishment for sexual harassment of POCSO.
According to POCSO, 'sexual harassment' would constitute 'aggravated sexual assault' under Section 9, which is punishable under Section 10, if committed against a child under 12 years of age.In spite of the fact that the crime of 'aggravated sexual harassment' has a minimum penalty of five years in prison, the court held that the accusation was not adequate to assess the criminal responsibility of the convicted for the offense under Section 10 POCSO.
The act of 'taking the hands of the prosecution,' or 'open zip of the trousers,' as reportedly witnessed by PW-1, does not, in the judgment of this Court, come under the scope of 'sexual harassment.'
WHAT HAS HAPPENED TILL NOW?!
The earlier judgement passed by Justice Pushpa Gandeiwala, which stated that skin-to-skin contact is a necessity to claim a case under the ambit of POCSO Act of 2012 has led her to gain fame, in a negative sense. The earlier judgement put the case under the head of ‘minor offences’, giving an insight on the interpreting tendency of the judiciary.
The ruling was condemned by the Apex Court, which pointed out that it would set a bad precedent and had put a halt on it. The Bombay High Court ruling, which chose the day of National Girl Child Day to present this ruling, which led to be labelled as an ‘absurd’ judgement.
SECTION 354 IPC
Sec.354 IPC states any act of criminal force committed on a woman to outrage her modesty. The term Modesty has been defined nowhere in the Penal Code, but the Supreme Court in the case of Raju Pandurang Mahale v. State of Maharashtra, defined the ingredients that constitute the essentials of the Modesty of a Woman.
There are two important ingredients of this section:
1. Use of assault or criminal force against a woman.
2. Intention of the accused to outrage the modesty of the woman or knowledge that his act is most likely to outrage the modesty of the woman.
The applicability of section 354 varies from case to case as the courts are aware of the fact that such charges are easy to make and it is very difficult for a man to rebut the same. Independent witness may not be available at all times as there can be instances where a person has done such an act in private.
IS THE RULING GIVEN OUT BY THE BOMBAY HIGH COURT JUSTIFIED ACCORDING TO YOU?! DOES THE CONFLICTING NOTION OF PENALISING OFFENDERS UNDER SECTION 354 IPC INSTEAD OF SECTION 8 POCSO, CORRECT, ACCORDING TO YOU? LET US KNOW IN THE COMMENTS BELOW!
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