'Skin-to-skin' case only 2nd time when A-G has appealed on criminal side

The Supreme Court, which quashed the controversial skin-to-skin judgment of the Bombay high court in a case under the POCSO Act, said on Thursday that this was the second instance where the attorney general filed an appeal on the criminal side challenging a high court order.

As the judgment was pronounced, Justice U U Lalit said this is perhaps the first time that the attorney general had filed an appeal on the criminal side.

"This is perhaps the first time that the attorney general has challenged the judgement on the criminal side and that's again something very first," he said.

Justice S Ravindra Bhat then clarified that in 1985 too the then attorney general had challenged a judgment of the Rajasthan high court requiring public hanging.

The then attorney general K Parasaran had appealed against the high court judgment on the criminal side (Attorney General of India v Lachma Devi)  in which the high court had ordered execution of death sentence by public hanging at the stadium ground or Ramlila Ground of Jaipur after giving widespread publicity through the media of the date, time and place of execution.

The apex court had then made it clear that execution of death sentence by public hanging would be a barbaric practice clearly violative of Article 21 of the Constitution.

"It is undoubtedly true that the crime of which the accused have been found to be guilty is barbaric and a disgrace and shame on any civilised society which no society should tolerate; but a barbaric crime does not have to be revisited with a barbaric penalty such as public hanging." the apex court had said on December 13, 1985.

A three-judge bench of Justices U U Lalit, S Ravindra Bhat and Bela M Trivedi on Thursday quashed the controversial skin-to-skin judgment of the Bombay high court in a case under the POCSO Act, saying the most important ingredient constituting sexual assault is sexual intent and not skin-to-skin contact with the child.

The high court had held that no offence of sexual assault under the POCSO Act is made out if there is no direct skin-to-skin contact between an accused and victim.

The apex court set aside the high court judgment, and said the act of touching the sexual part of the body or any other act involving physical contact if done with sexual intent would amount to sexual assault within the meaning of section 7 of the POCSO Act.

Purpose of the law cannot be to allow the offender to sneak out of the meshes of the law, the apex court said.

"We have held that when the legislature has expressed clear intention, the courts cannot manufacture ambiguity in the provision. It is right that courts cannot be overzealous in searching for ambiguity," the bench said.

The top court's judgment came on separate appeals from Attorney General K K Venugopal and the National Commission for Women.