Thread by @barandbench

#SupremeCourt to continue hearing plea by Attorney General K K Venugopal against the Bombay HC judgement which held that sexual assault offences under the #POCSO would not be attracted if there was no direct 'skin to skin' contact between the accused and the child #SkinToSkin

Senior Advocate Sidharth Luthra argues.

#SupremeCourt #POCSOAct

Sr. Adv. Luthra takes the #SupremeCourt through relevant provisions of the Indian Penal Code, reads out Section 349:

A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes...

Sr. Adv. Luthra: Touching a person’s cloth is part of force. Please see how assault is defined in Section 351. (takes court through illustrations)

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Sr. Adv. Luthra: The first part of Section 7 of the #POCSOAct would require touch. However, the moment the provision in the second part says, “does any other act”, that has to be clarified.

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Sr. Adv. Luthra: What is physical contact? There is a judgement of the Bombay High Court that defines sexual intent. (Bandu Vithalrao Borwar vs State Of Maharashtra)

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Sr. Adv. Luthra: The point that I’m trying to make is.. We have two words which are very important which need to be considered. Word in 7 is “sexual intent” and “physical contact”. So sexual intent will require physical contact. Section 11 is distinct.

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Sr. Adv. Luthra gets disconnected.

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Sr. Adv. Luthra continues: That is why there is difference in assault in IPC and in POCSO. 7 will require touch and physical contact.

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Sr. Adv. Luthra: There is an attempt by all my friends on the other side to read the meaning of other provisions into POCSO. We can’t import non pari materia provisions.

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#SupremeCourt: what does touch mean, simply a touch. Even if you’re wearing a piece of clothing, they’re not trying to touch clothing. We must see touch in the meaning that parliament intended.

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Sr. Adv. Luthra: I’m not disagreeing. My point is there are two parts to provision. As long as there is a touch on vagina penis or breast, there is no problem.

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#SupremeCourt: There is an observation by the High Court- there are four elements. Now so far as touching the hand is concerned and putting on the mouth, there is skin to skin. So, you are not supporting what was held in the High Court?

Sr. Adv. Luthra: Provided there is sexual intent. A women walks part somebody and brushes..

#SupremeCourt: That is an accidental touch. Whether there was “sexual intent” is a matter on individual facts.

#SupremeCourt: Does any other act of sexual intent, that involves physical touch.. physical contact may not be direct at all. Secondly, you might touch directly some other part of the body.

Sr. Adv. Luthra: It is the second part of Section 7, there are two cases- one of touching the breast and other is the arm.

#SupremeCourt bench discusses amongst themselves.

Sr. Adv. Luthra: What I was trying to point out is this, when we are trying to construe S.7, this is a unique statute. It has very stringent provisions- the presumptions under 29, 30.

Sr. Adv. Luthra reads out Section 29 and 30 of the #POCSOAct: Presumption as to certain offences and Presumption of culpable mental state.

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#SupremeCourt: So, do we understand your submission that the first part skin to skin need not be there? According to you, in the second part skin to skin contact is essential.

Sr. Adv. Luthra: Yes.

#SupremeCourt: Going by the facts of this case, is it necessary for you to argue the second part?

Sr. Adv. Luthra: There are two cases before you.

Court: Very well.

Sr. Adv. Luthra reads out Section 42 of the #POCSOAct: It provides for the highest punishment.

It is my submission. These things will have to be seen: the contours of “sexual intent”, “any other act” and “physical contact”.

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Sr. Adv. Luthra takes the Court through judgement in the case of Noor Aga vs State Of Punjab.

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Sr. Adv. Luthra: There is in law, wherever there is ambiguity, the rule of lenity which is applied even in Indian Law- that if there is ambiguity it must be decided in favour of the accused.

Luthra takes the #SupremeCourt through United States Judgement.

Sr. Adv. Luthra: Look at this situation, you hold the hand of the child. 29, 30 kick in. Then the person has to show that I was preventing the child from something.

#SupremeCourt: That is case to case basis. Everything depends upon what the intent with which the hand was held.

#SupremeCourt: you are right there, if a physical contact is still through the cloth, why is legislature using two different phrases?
Can we say that physical contact is anything lesser than touch?

#POCSOAct

Sr. Adv. Luthra: Your Lordship may consider this. Like the NDPS Act, 29 & 30 create a presumption of guilt. The prosecution will run abound.. I’ll show you 2 more judgements on the rule of lenity.

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#SupremeCourt: You know what lenity means? The quality of being kind and gentle.

#SupremeCourt: Why do we go to the US? Why not the seven judge bench of Justice Lahoti?

Sr. Adv. Luthra: My whole point is if we allow physical contact to be diluted, then we are creating a new offence. That is something I would commend the Court to not do.

#SupremeCourt: Where do we get that touch should be direct?

Sr. Adv. Luthra: There are some High Court judgements that dela with this issue.

#SupremeCourt: If we accept your submission, there will be four parts that come under the first part and second part will cover everything. Holding the child over the cloth, the person will not be guilty?

Sr. Adv. Luthra: If it is with sexual intent, then yes.

#SupremeCourt: So, if the touch/physical contact is pregnant with sexual intent, then everything falls into place.

Tell us, if the backside of a child is groped, will he be guilty or not without skin-to-skin contact?

You are saying, then no offence will be committed.

Sr. Adv. Luthra: Yes, My Lord because that is how it is worded.

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Sr. Adv. Luthra: He may be prosecuted under 354.
#SupremeCourt: And what if the child is a boy?!

Sr. Adv. Luthra: Please note 354A.
#SupremeCourt: What is the perpetrator is a woman? So far as Section 7 is concerned it can be man/woman.

Sr. Adv. Luthra: There is 355, Assault or criminal force with intent to dishonour person.

#SupremeCourt: That is a general provision. Why should we resort to that when there is a specific law?

#POCSOAct

#SupremeCourt: There is a provision which is all inclusive, why should we disregard that? which by process of stretched reasoning we will say, “Oh, this offence comes under this.”

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Sr. Adv. Luthra: If we say skin to skin is without touch, we will render it redundant.

#SupremeCourt: We have to see from the victim’s perspective, not the perpetrators. There is a violation of a child’s privacy and modesty.

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#SupremeCourt: If we accept your submission, what will the results be? The results according to us will be disastrous!

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Sr. Adv. Luthra: If you may recall, it began by reading Section 2(2), the legislature did not use force or assault.

I'll tell my Lord what the issue is. "Sexual" is not defined, nor is "intent".

Sr. Adv. Luthra: Four elements of "touch" are clarified or "any other act", the act done must be other than these four acts. The legislature very deliberately uses "contact".

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#SupremeCourt: The first limb is more elaborately defined. It is not in any way different from physical contact.

Mr. Luthra, we have gone through this, now we will look at individual facts.

Sr. Adv. Luthra: In the Libnus case, I appear for the Legal Services Authority.

#SupremeCourt #POCSOAct

Sr. Adv. Luthra: Just keep this in your mind that he attempted suicide by hanging, suffers from Schizophrenia.

#SupremeCourt: What was his age?

Sr. Adv. Luthra: About 35 years.

Sr. Adv. Luthra: The order on sentence is very skeletal, to say the least.

#SupremeCourt: Is there a minimum sentence under offence for Section 7.

Sr. Adv. Luthra: 3 years.

Sr. Adv. Luthra takes the Court through deposition of witness, mother of the victim.

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Bench rises for lunch, to continue hearing at 2PM.

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Bench reassembles.

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Sr. Adv. Luthra: Before lunch, we were seeing the evidence of the mother, now we will go to the daughter’s..

Luthra reads out the evidence of victim.

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Sr. Adv. reads out cross: "I did not tell magistrate that accused took me to his house by pressing my mouth.. it is true to say that my mother told me what to depose.

It is not true to say that I depose falsely, it is not true to say that the incident did not take place."

#SupremeCourt: We can't say, "She says I would’ve shouted, why did she not shout? Therefore, her evidence must be rejected.”

We can’t take a straitjacket formula. Look at the other substances where the witness is quite consistent.

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Sr. Adv. Luthra takes Court to eyewitness testimony: This is very crucial. “…My statement is not correctly recorded.” Same with victim.

#SupremeCourt: Anything else, Mr. Luthra?

Luthra: A little more, Milord. I’m trying to assist the Court the best I can.

Sr. Adv. Luthra: When your Lordship considers the testimony of the victim, I, as a lawyer, will test her on her credibility. The trial judge has recorded that she is not very clear headed, has a lower IQ.

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#SupremeCourt: Lets see the Libnus case.

Sr. Adv. Luthra: This is a more interesting case.

#SupremeCourt: Here the victim is just five years old..

Sr. Adv. Luthra: The relevant witnesses are PW1, mother, PW2, PW3..

#SupremeCourt: Since the victim herself was not examined then lets see the mother’s deposition.

Sr. Adv. Luthra reads out evidence by mother of the victim.

#SupremeCourt: She has given a 164?

Sr. Adv. Luthra: It is not relevant at this stage, but I'll read it out, I have no difficulty.

#SupremeCourt: In 164, there is a clear assertion that you were going to answer the call of nature.. you have chosen not to contradict the witness on that. In case you wanted to develop a line of defence.

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#SupremeCourt: Not just the lady who is the mother but also the neighbour marks your presence in the house. Was that an innocent visit?

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Sr. Adv. Luthra: the time of the incident as per the mother is 4PM & it was reported at a 6 hour gap.

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#SupremeCourt: The gynaecologist said that the accused had attempted to commit rape.

Sr. Adv. Luthra: Absolutely, we’ll come to that.

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#SupremeCourt: How do you explain your presence in the house when three people say unanimously that you were in the house?

Sr. Adv. Luthra: My presence is only this.. In this case, it is talked about nature’s call.

#SupremeCourt: You are not adopting this theory!

Sr. Adv. Luthra: there are great delays..

#SupremeCourt: How much sentence has been awarded in this?

Sr. Adv. Luthra: Can I show something, at exhibit 9, a notice under 294 to the accused. Notice of a chargesheet, how can this be done?!

#SupremeCourt: Thank you, Mr. Luthra. Anything else?

Sr. Adv. Luthra: The trial court convicted him..

Court: Let us see the convicting section of the judgement.

Sr. Adv. Luthra: Please note, he is convicted under Section 10 for offence under 9. I would argue that it does not apply to him.

Luthra takes Court through Section 9 of #POCSO Act.

#SupremeCourt: (m) it may be.. It comes down to the same issue. Whether it is sexual assault or not.

Sr. Adv. Luthra: Yes, because here it is through the cloth.

Senior Advocate Geeta Luthra: Can I take just five minutes?

#SupremeCourt: On the clock!

Sr. Adv. Geeta Luthra: Sexual assault definition cannot be taken from the IPC, it must be taken from this act.

Sr. Adv. Geeta Luthra: touch and physical contact are synonyms, there cannot be a differentiation. I’m trying to address the argument Mr. Luthra made. Facts and circumstances of the case must be examined.

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Sr. Adv. Geeta Luthra relies on Murlidhar Meghraj Loya Etc vs State of Maharashtra to state that, “Any narrow and pedantic, liter- al and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged.”

Sr. Adv. Geeta Luthra: I’m just on the legal issue with regard to interpretation of touch, it should be strict and in terms of what the legislature intended.

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[ORDER] #SupremeCourt: Heard learned counsel for the parties. Parties at liberty to file their written submissions within three days. ORDER RESERVED.

Justice Ravindra Bhatt: I must tell you in the five-judge judgement in Joseph Shine, the principle of lenity.

Sr. Adv. Luthra: Grateful, my Lord.

#SupremeCourt #POCSO