Under the Protection of Children from Sexual Offenses (POCSO) Act, accidental physical contact or physical contact made without any sexual intent are not considered sexual assaults. This was the conclusion reached by Judge Bharati Dangre of the Bombay High Court when she recently granted anticipatory bail to a 27-year-old man from Baramati who was charged with sexual assault on a child.
A brief about according to the Bombay High Court, holding hands to communicate affection without sexual intent is not assault
According to the police report, the accused assaulted a 17-year-old woman, and as a result, a POCSO Act case was filed. The complainant said that the accused, who is her neighbour, once stopped her as she was heading to her tuition lessons and professed his “love” for her. He tried to convince her, but when she declined, he gripped her right hand. She was frightened by this and managed to escape his grasp.
He allegedly threatened her after asking her not to tell anyone about this. He even threatened to ruin her reputation in letters to her, and he made an Instagram account in her name, using which to communicate with her friends. The accused allegedly used to stand in front of her house and leave messages, according to the child.
The accused allegedly insulted the modesty of the woman by staring at her in a way that would embarrass her, according to the Bombay High Court.
The accused pledged to stop bothering the girl after the girl’s father interfered. He apparently persisted though, even threatening to harm her father. The Bombay High Court noted that she went the police station and filed the case after suffering through the trauma for approximately eight months.
Sections 341 (wrongful restraint), 354 (assault or criminal force on woman with intent to outrage her modesty), 354B (criminal force to woman with intent to disrobe), 452 (house-trespass after preparation for hurt, assault, or wrongful restraint), 504 (intentional insult with intent to provoke breach of peace), 506 (criminal intimidation), and 509 (word, gesture, or act intended to insult the modesty of a woman).
Together with these IPC sections, various POCSO Act sections were also utilised against the defendants. Section 8 of the POCSO Act of 2012 (providing a three-to-five-year prison sentence for sexual assault), Section 12 (providing a three-year prison sentence and a fine for sexual harassment of a child), and Section 17 (making act of abetment a serious offence) were among these provisions.
Because the girl is a minor, these provisions were triggered. All other sections, with the exception of Section 354 of the IPC and Section 8 of the POCSO Act, are bailable.
The accused “had conveyed his love towards the informant, who is a female in her youth, but he had no sexual purpose,” the defence lawyer told the court.
The lower court had rejected the accused person’s anticipatory bail application “on the ground of Section 8 of the POCSO Act being a non-bailable offence since it adumbrate that whoever committed sexual assault is liable for punishment either described of a term which shall not be less than three years but which may extend to five years is liable for fine”.
However, the Bombay High Court found that Section 8 is imposed to address serious cases of sexual assault, such as touching the kid’s private parts or forcing the child to touch the private parts of such person or any other person.
The words “or does any other act with sexual intent that involves physical contact without penetration” must be read ejusdem generis [of the same kind] with the first part of the section, and thus any physical touch inadvertently or without any sexual intent cannot be brought within the scope of the section, the high court ruled.