Bombay High Court Drops POCSO Charge Against Youth Booked For Slapping, Abusing Minor In Filthy Language due to absence of Sexual intent

 I have heard all learned counsel. Perused the impugned order.The allegations against the Applicant are that he followed the victim and abused her in filthy language in hindi and slapped her. Admittedly, Section 354-D, 509, 323 of IPC is attracted by the act of the Applicant. The question remains whether Section 12 of POCSO Act is applicable or not. Section 11 of POCSO Act defines sexual harassment of a child and Section 12 describes the punishment for it. Section 11 specifically states that a person is said to commit sexual harassment upon a child, when such person exhibits sexual intent towards the child. In the present case, it appears that Applicant was angry with the behaviour of victim in the school and he wanted to confront the victim about the said act and on that count, the incident took place. So from the incident, it does not appear that the Applicant had sexual intent as described in Section 12 of the POCSO Act. I have gone through the case laws cited by learned counsel for the Respondent. The facts of the cited case and present case are different hence, not applicable. No case is made out against the Applicant under Section 12 of POCSO Act {Para 5}

IN THE JUDICATURE OF HIGH COURT AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL REVISION APPLICATION NO. NO. 189 OF 2026

Prasad Kashinath Bade  V The State of Maharashtra

CORAM : SHIVKUMAR DIGE, J.

DATE : 27th JULY, 2026.

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Supreme Court: The important ingredient of offence of sexual assault under POCSO Act is the sexual intent and not the “skin to skin” contact with the child.

 There cannot be any disagreement with the submission made by Mr. Luthra for the accused that the expression “sexual intent” having not been explained in Section 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact, however, the submission of Mr. Luthra that the expression ‘physical contact’ used in Section 7 has to be construed as ‘skin to skin’ contact cannot be accepted. As per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature. The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child. {Para 33}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1410 of 2021 

Decided On: 18.11.2021

Attorney General for India and Ors. Vs. Satish and Ors.

Hon'ble Judges/Coram:

U.U. Lalit, Bela M. Trivedi and S. Ravindra Bhat, JJ.

Author: Bela M. Trivedi, J.

Citation:  2021 ALL SCR (ONLINE) 664, MANU/SC/1086/2021.

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Whether an offence of sexual assault is made out as per S 7 of POCSO Act if there is sexual intent or skin to skin contact?

  Section 7 pertaining to “sexual assault” reads as under:

“7. Whoever, 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.{Para 21}

28. In both the cases, the main controversy centers around the interpretation of Section 7 of the POCSO Act. It is trite saying that while interpreting a statute, the courts should strive to ascertain the intention of the Legislature enacting it, and it is the duty of the Courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible abuse.

31. Now, from the bare reading of Section 7 of the Act, which pertains to the “sexual assault”, it appears that it is in two parts. The first part of the Section mentions about the act of touching the specific sexual parts of the body with sexual intent. The second part mentions about “any other act” done with sexual intent which involves physical contact without penetration.

33. There cannot be any disagreement with the submission made by Mr. Luthra for the accused that the expression “sexual intent” having not been explained in Section 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact, however, the submission of Mr. Luthra that the expression ‘physical contact’ used in Section 7 has to be construed as ‘skin to skin’ contact cannot be accepted. As per the rule of construction contained in the maxim “Ut Res Magis Valeat Quam Pereat”, the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. It is also needless to say that where the intention of the Legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision. “skin to skin contact” for constituting an offence of “sexual assault” could not have been intended or contemplated by the Legislature. The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.

Supreme Court

JUSTICE UDAY UMESH LALIT JUSTICE BELA M. TRIVEDI JUSTICE S. RAVINDRA BHAT

ATTORNEY GENERAL FOR INDIA Vs. SATISH & ANR.

CRIMINAL APPEAL NO. 1410 OF 2021

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Whether offense of sexual assault under the POSCO Act is attracted if the accused touches the child's cheek without sexual intent?

Section 7 of the POCSO Act reads as under:

“7 Whoever 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.”

. In my view, touching the cheeks without a sexual

intent would not attract the offence of ‘sexual assault’, as

defined under Section 7 of the POCSO Act. Primary evaluation of

the material on record does not suggest, applicant allegedly

touched the cheeks of the victim with a sexual intent.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

BAIL APPLICATION NO.1189 OF 2021

Mohammad Ahmed Ulla Vs The State of Maharashtra 

CORAM : SANDEEP K. SHINDE J.

DATE : 27 th AUGUST, 2021.

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Whether prosecution under POCSO Act is maintainable if a person constantly watches child?

Therefore, it will be appropriate to reproduce provisions
of Section 11 of the POCSO Act, which reads thus :
11. Sexual harassment : A person is said to commit
sexual harassment upon a child when such person
with sexual intent­
(i)utters any word or makes any sound, or makes
any gesture or exhibits any object or part of body
with the intention that such word or sound shall be
heard, or such gesture or object or part of body shall
be seen by the child; or
(ii)  makes a child exhibit his body or any part of his
body so as it is seen by such person or any other
person; or
(iii)  shows any  object to a child  in any form or
media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic,
digital or any other means; or
(v) threatens to use, in any form of media, a real or

fabricated   depiction   through   electronic,   film   or
digital or any other mode, of any part of the body of
the child or the involvement of the child in a sexual
act; or
(vi) entices  a child  for pornographic purposes or
gives gratification therefor.
4 In context of the instant case, it needs to be mentioned
that if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act.  The question whether the act was with sexual intent is a question of fact which needs to be adjudicated   on   appreciation   of   evidence   adduced   by   the prosecution.
5 In   the   instant   case,   material   on   record   shows   that
there are no averments that petitioner no.1, who is mother of the
victim female child, has done any act against the victim, who is
her daughter, with any sexual intent, and therefore, Section 11 of
the POCSO Act made punishable under Section 12 thereof is infact
not invoked by the prosecution against petitioner no.1.  So far as
petitioner no.2 Valji Vadher is concerned, the victim female child
in her statement recorded under Section 164 of Cr.P.C. has stated
that petitioner no.2 Valji Vadher is having bad eye on her.  In her
statement   recorded   under   Section   161   of   the   Cr.P.C.,   she   has stated that petitioner no.2 Valji Vadher always used to see her with bad intention.  Watching a female child with sexual intent comes under  the  mischief   covered   by   Section  11  of   the  POCSO   Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1947 OF 2017

MANJU TEJBAL VISHWAKARMA AND ANR.  V/s. THE UNION TERRITORY OF DAMAN & DIU 

CORAM : A. M. BADAR, J.
DATE : 27th SEPTEMBER 2017
Citation: 2017 SCC ONLINE Bom 8895.

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