New Delhi: The Nagpur bench of the Mumbai High Court ruled that holding a minor girl’s hand and opening of pant zip is not a sexual assault under POCSO. The ruling clairified that the sexual harassment offense would be filed under Section 354 of the IPC.

The single bench of Justice Pushpa Ganediwala passed the order in a case pertaining to a sexual act involving a 5-year-old girl committed by a 50-year-old man. 

The trial court had sentenced the accused to 5 years rigorous imprisonment and had fined him Rs 25,000 for the sexual assault under Section 10 of the POCSO

The complaint had been filed by the girl’s mother, she told the court that the accused had been caught with his pant zipper undone while he held the hand of the minor girl in his hand. 

The Nagpur bench of the Bombay High Court explained the term “physical contact” in its definition of sexual assault, stating that it means “direct physical contact – or skin-to-skin-contact without sexual penetration.”

Further, the court repealed the five-year jail sentence under Section 8, 10 and 12 of the POCSO Act and ruled that since the crime falls under Section 354A (1) (i) of the IPC the accused will be jailed for a period of 3 years.

Notably, Justice Pushpa Ganediwala in a judgement passed on January 19 had held that there must be ‘skin to skin contact with sexual intent’ for an act to be considered sexual assault. She said in her verdict that mere groping will not fall under the definition of sexual assault.

Later, the order was stayed by the Supreme Court presided by Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian. Attorney General K K Venugopal had taken cognisance of the matter. The top court also issued notice to Maharashtra government and permitted the AG to file an appeal against the January 19 verdict of Nagpur bench of the Bombay High Court.

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