The Bombay High court held that sexual assault charges cannot be levelled under the Protection of Children from Sexual Offences (POCSO) Act until the ‘sexual intent’ behind the act is proved.
The observation was made by the Court on November 25, while granting anticipatory bail to a Pune resident, Omkar Gaikwad, who was accused of tearing off clothes of a minor, and inappropriately touching her, The Hindustan Times reported.
The complainant, a 20-year-old woman, said that her family had a dispute with Gaikwad over leave and license agreement of a shop and had exchanged legal notices over the same.
Gaikwad, along with his wife and two others allegedly barged in their house and started assaulting her parents. The accused allegedly ripped off her and her 17-year-old sister’s clothes, and touched both of them inappropriately.
The girl lodged an FIR against Gaikwad with Chaturshringi police station on October 20, indicating that he committed acts with sexual intent. Given the allegations, the Police had slapped section 7 of POCSO Act (committing sexual assault with sexual intent).
While granting the bail, the single judge Bench of Justice Bharati Dangre, on November 25, said that FIR registered against the accused did not indicate that he committed the act with sexual intent.
‘Prima facie, the offence under Section 7 and the punishment under Section 8 of the POCSO Act would not be attracted unless and until the sexual intent is specifically proven,’ the Court observed.
Dangre said that it was a matter of trial since the FIR did not make out any sexual intent. Besides granting anticipatory bail, the court said that in case of arrest, he has been ordered to be released on furnishing personal bond in the sum of ₹25,000 and one or two sureties in the same amount.
Speaking to the media, lawyer Abha Singh said the Court rightly granted pre-arrest bail to the accused. She asserted that dispute with regards to the shop was the bone of contention, and the assault was a result of the dispute.
‘In a fit of rage, the accused might have pushed, pulled or assaulted the minor. This does not appear to be sexual assault as the acts are not committed with sexual intent. This can at the most be ‘affray’ as contemplated under the Indian Penal Code, but not a sexual assault, as sexual intent is a specific requirement of section 7 of POCSO Act, and in such cases, Police have to be extra cautious,’ Singh added.
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