In a recent judgment, the Bombay High Court while acquitting a 39-year old man of the offence of sexual assault under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“the Act”), held that the act of pressing the breast of a child in the absence of the top is removed or, the accused inserting his hand inside the top and pressing the victim’s breast would not fall within the definition of “sexual assault” under Section 7 of the Act.

According to the facts of the case, a 12-year old girl was taken by the appellant to his house, on the pretext of giving her guava. While they were at the appellant’s house he pressed her breast and attempted to remove her salwar, at which point the mother of the girl reached the spot and rescued her. An FIR was lodged by the mother following which the Special Court, Nagpur registered charges under Section 8 of the Act as well as under Sections 361, 354, 342 and 309 of the Indian Penal Code (“IPC”).

The Special Court held that the appellant had committed an offence under Sections 354, 363 and 342 of the IPC as well as under Section 8 of the Act. While Section 8 lays down the penalty for the commission of the act of “sexual assault”, Section 7 lays down the definition of said expression.

According to Section 7, in order for an act to qualify as “sexual assault” under the Act, firstly, the act must be committed with sexual intent, and secondly, the act must involve either touching the vagina, penis, anus, or breast of the child or, making the child touch the vagina, penis, anus or breast of such person or any other person or, doing any other act with sexual intent which involves physical contact without penetration (Satish Ragde v. State of Maharashtra, Criminal Appeal no. 161 of 2020).

In an appeal against the order of the Special Court, the Bombay High Court acquitted the appellant under Section 8 primarily because according to the Court’s interpretation of Section 7, “touching” necessarily implied “direct physical contact”, i.e., “skin-to-skin contact” (Satish Ragde v. State of Maharashtra, Criminal Appeal no. 161 of 2020). Since in the present case, the act of groping had taken place without the removal of the top of the child, the Court held that there was no skin-to-skin contact, and therefore the appellant was not guilty of the offence of sexual assault.

It is a well-known principle of statutory interpretation that if the circumstances are such that the plain and literal interpretation of a statutory provision produces a manifestly unjust result, which the legislature would have never intended to imply while framing the provision, then in such situations the court has the power to modify such language in order to achieve the desired result and produce a rational construction (CIT v. J.H. Gotla, (1985) 4 SCC 343). This is usually referred to as the ‘golden rule’ of statutory interpretation or purposive interpretation.

A plausible argument can be made that Bombay High Court has interpreted the definition of the term “sexual assault” in a very restrictive manner. By categorizing “groping” in concomitance with “direct skin-to-skin contact” as sexual assault on one hand, but groping through clothes as not constituting sexual assault, the court has, in effect defeated the very purpose behind the insertion of the provision.

In the absence of any precondition of “direct contact” being either expressly or impliedly laid down in the statute, the Court should have interpreted the provision in line with what the legislators must have intended, i.e., to protect children from sexual assault, harassment and exploitation and to secure the best interests of the child (Dr. Manjula Krippendorf v. State (NCT of Delhi), (2017) 15 SCC 133).

Purposive interpretation of the provisions of the Act is not unprecedented. In Jabbar v State, (2018 SCC OnLine Del 9327) the Delhi High Court had held that the provisions of the POCSO Act had to be interpreted in a “child-centric” manner since the intention and purpose behind the statute was to prevent the commission of sexual offences against children. It is difficult to comprehend that the legislature would have intended to draw a distinction between groping in the “absence of skin-to-skin contact”, and groping involving “direct physical contact” so as to classify one of these acts as constituting sexual assault but not the other.

It is also worth noting that during the entire course of the judgment, no reason has been provided by the Court either substantiating or even remotely explaining the reason as to why its interpretation of Section 7 would not take within its ambit touching “without direct skin-to-skin contact”.

In this context, it is important to take into account the statutory provisions pertaining to the offence of “sexual assault” in other jurisdictions. Under Scottish law, Section 20 of the Sexual Offences (Scotland) Act 2009 states that if a person engages in any form of sexual activity in which said person has physical contact (whether bodily contact or, contact by means of an implement and whether or not through clothing) with a child, then the person commits the offence of “sexual assault” (Section 20, Sexual Offences (Scotland) Act, 2009).

Additionally, Californian law defines sexual assault to include the intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them of a child (Section 11165.1, AB-1775 Child Abuse and Neglect Reporting Act, 1980 Attachments area).

Presently, the Supreme Court has stayed the order of the Bombay High Court, stating that the latter’s decision would set a ‘very dangerous precedent’ and cripple the intentions behind the Act of punishing sexual offenders.

In a country where the rates of the commission of offences like sexual assault are increasing in an unfettered manner, it becomes imperative for the judiciary to step in and stand in support of the victims as opposed to interpreting statutes in a manner that ends up giving leeway to the perpetrators. Although this does not imply that judicial legislation is called for, but a very careful approach to statutory interpretation, especially when it comes to provisions such as Section 7, is the need of the hour.