The Supreme Court has put a Bombay High Court order on hold that observed that pressing breasts of a child without direct "skin to skin" physical contact does not constitute "sexual assault" under the Protection of Children from Sexual Offences (POCSO) Act.
Attorney General KK Venugopal said that the "disturbing" order would set a dangerous precedent.
The top court also put on hold the acquittal under toucher charges of a 39-year-old man whose jail sentence for groping a 12-year-old in 2016 was reduced by the High Court.
In a controversial order, Justice Pushpa Ganediwala on January 19 said there must be "skin to skin contact with sexual intent" for an act to be considered sexual assault and that mere groping would not be defined as sexual assault.
The judge was ruling on the order of a lower court that had sentenced a 39-year-old man to three years imprisonment for sexually assaulting a 12-year-old girl.
The court had found Ragde, guilty of the offence of sexual assault of the girl under POCSO along with Sections 354 (assault or criminal force to woman with intent to outrage her modesty); 363 (punishment for kidnapping); and 342 (punishment for wrongful confinement) of the Indian Penal Code (IPC).
According to the girl, the man, in 2016, had taken the girl into wrongful confinement and had pressed her breasts. As the girl did not return for a long time, the mother started looking for her and found her in the room of Ragde's house. The room was bolted from the outside.
She had met Ragde coming downstairs and had asked him about her daughter. Ragde had told her that he didn't know where her daughter was.
The girl later told her mother that Ragde had held her by hand and taken her to his house on the pretext of giving her guava but he tried to remove her salwar and he pressed her breasts. The mother then filed a police complaint against Ragde, who was convicted under both POCSO and IPC sections by the lower court.
The judge, in the contentious order, said, "He groped her without removing her clothes, so the offence could not be termed sexual assault but outraging a woman's modesty under Section 354 of the Indian Penal Code."
While Section 354 includes a minimum sentence of one year jail, sexual assault under the POCSO Act leads to at least three years in prison. The High Court, however, freed him of the more stringent charge.
"The act of pressing of 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 the top and pressed her breast, would not fall in the definition of sexual assault," the court ruled.
Citing the definition by POCSO Act, the court said: "when someone with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".
"Admittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration," the High Court said.