MEANING ACCORDING TO IPC
“Section 354 of the IPC” defines assault or criminal force against a female in an attempt to offend her modesty. Anyone who attacks or employs criminal force against any female, who intends to insult her or who knows that she is likely to offend her modesty by doing so, will be rebuffed with detainment for a term that may stretch out to two years, or with a fine, or both The offense under the reviled section shall be committed only when there is an attack or employ of criminal power against a female, with the expectation that her modesty will be offended.
CRIMINAL FORCE & ASSAULT UNDER SECTION 354 OF IPC?
Section 350 of the IPC defines when an individual intentionally employs force on another individual, lacking the consent of that individual, in direction to carry on an offense and with the earlier intention of creating hurt to that individual in the incarnation of injury, terror, or exasperation to which the force is used, the other individual is said to have recourse to criminal force.
Section 351 of the IPC defines mere words are not an assault. But the term that an individual employs might grant meaning to his sign or the devising that those signs or device may make, aggregates to an assault.
MEANING OF SENSUAL ASSAULT
POCSO Act Section 7, characterizes sensual assault as when somebody “with sensual goal contacts the vagina, penis, anus or bosom of the child or makes the child contact the vagina, penis, anus or bosom of such individual or some other individual, or does some other demonstration with the sensual expectation which includes actual contact without entrance is said to submit sensual assault”[i].
INTERPRETATION OF SENSUAL ASSAULT BY BOMBAY HIGH COURT
The facts that give rise to the recent decision of the High Court in Satish Ragde v. the State of Maharashtra are:
The witness (mother of the prosecutrix) stopped a report at the police headquarters expressing that the appealing party took her girl (prosecutrix) matured around 12 years, on the guise of giving her guava, in his home and squeezed her bosom and endeavored to eliminate her kurta. By then, the source arrived at the spot and protected her girl. Quickly, she held up First Information Report. Based on the said FIR, wrongdoing came to be enrolled against the litigant/blamed for the offense culpable under Sections 354, 363, and 342 of the IPC and in “Section 8 of the POCSO Act”.
The Special Court saw that the blamed was liable for offenses under Sections 354 (a legal relic that condemns assault with the plan to “outrage the modesty a lady”), 363 (abducting), and 342 (illegitimate repression) of the Indian Penal Code, 1860 (IPC) and of sensual assault under “Section 8 of the law on Protection of Children from Sensual Offenses Act, 2012 (POCSO)”. Section 8 condemns, in addition to other things, the demonstration of contacting the bosom of a girl, with sensual expectation. The minimum penalty for the offenses referred to in Sections 354 and 342 of the IPC shall be one year each and there shall be no minimum penalty for the offense referred to in Section 363. The minimum penalty for sensual assault under POCSO shall be three years’ imprisonment.
The decision of the Bombay High Court, in its turn, is likewise short however huge. The way that the denounced pressed the victim’s bosom isn’t discovered to be discredited. In any case, the Court sees that it was “not the situation of the arraignment that the appealing party eliminated her top and pressed her bosom.” The Court holds that while it would fall inside the forms of the offense under Section 354 of the IPC,
“…the act of pressing the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of sensual assault. … As such, there is no direct physical contact i.e. skin to skin with sensual intent without penetration.[ii] “
The court argued that the act could be a criminal act against a woman or girl to offend her modesty, for which the minimum and maximum penalty is one and five years, respectively. In the present case, having regard to the idea of the alleged demonstration by the incriminate and having regard to the conditions, in the assessment of that court, the supposed demonstration fits into the meaning of the offense as defined in area 354 of the IPC.
FINAL JUDGEMENT BY BOMBAY HIGH COURT
Activists and youngster rights bodies had seriously condemned the Nagpur seat’s decision, naming it “totally unsatisfactory, incredible and upsetting”. In a letter to the Chief Secretary of Maharashtra, the “Director of the National Commission for the Protection of the Rights” of the Child encouraged the State to review and challenge the decision of the High Court. Judicial Pushpa Ganediwala, a single judge, modified a man’s conviction while pronouncing a ruling. Sensual assault under the POCSO Act involves a sensual assault and physical assault without penetration by taking advantage of the kid’s genitals or asking the kid to feel the accuser’s private organs, the judge said at the court hearing.
It isn’t the situation of the arraignment that the blamed eliminated her kurta and pushed her bosom. Thusly, there is no immediate actual contact for example dermis-to-dermis with sensual expectation without penetration”. The demonstration of pressing the bosom of a girl matured 12 years, without a particular detail concerning whether the kurta was eliminated or whether he embedded his hand in her kurta and pushed her bosom, would not come under the meaning of “sensual assault” the judge held, also, “it would surely fall inside the meaning of section 354 of the IPC, which punishes outraging the modesty of a woman.”
The single designated authority has tragically subverted its inclination, instead of the administrative objective backing the establishment of the “POCSO Act”, and “Article 7” has been explicitly and therefore read-in a need that has not at all been proposed by the parliament. The parliamentary intention behind the establishment of the “POCSO Act” was to supply an extra sheet of insurance to the child sufferer and to discourage every type of sensual offenses that could be committed against the child and, as a result, to thwart their comprehensive and sound development.
The motive of the “POCSO Act” is to give explicit protection to juvenile separated from the securities generally provided for in the “IPC” contained in the arrangements relating to sensual offenses, including the ‘penetrative’ rape arrangement referred to in “Section 375 of the IPC”, which has the meaning of rape. The “POCSO Act”, on the other hand, proceeds far away from the “IPC” and accommodates a particular arrangement that deals with the question of ‘non-penetrative’ sensual assault; notwithstanding, the equivalent has been incapacitated by the stupid and repetitive understanding of the sole adjudicator, which is further detached from the judicial objective of the parliament, which is apparent from the design of the actual Act[iii].
Author(s) Name: Mahalaxmi Agrawal (Maharashtra National Law University, Aurangabad)
[i] Section 354 Of IPC John S Ralph, The Distinction Between Section 7 Of The POCSO Act And Section 354 Of IPC, 26 Jan 2021, 9:58 AM https://www.livelaw.in/columns/pocso-section-7-section-354-ipc-sensual-assault-bombay-high-court-skin-to-skin-168924
[ii] Outlook the news scroll, skin to skin contact: SC agrees to hear NCW’s plea against Bombay HC verdict,10 FEBRUARY 202o, Last Updated at 1:26 PM https://www.outlookindia.com/newsscroll/skin-to-skin-contact-sc-agrees-to-hear-ncws-plea-against-bombay-hc-verdict/2027024
[iii] Jaiyesh Bhoosreddy, Satish Ragde v State of Maharashtra: Misconceived interpretation of Section 7 of the POCSO Act contrary to the legislative intent, Published on 27 January 2021, https://thedailyguardian.com/satish-ragde-vs-state-of-maharashtra-misconceived-interpretation-of-section-7-of-the-pocso-act-contrary-to-the-legislative-intent/