Holding

Section 7 of the POCSO Act does not require skin‑to‑skin contact; any touching or physical contact made with sexual intent, whether direct or through clothing, constitutes sexual assault.

Summary

The Supreme Court examined two convictions under the Protection of Children from Sexual Offences (POCSO) Act – one involving a 12‑year‑old girl (Satish) and another involving a 5‑year‑old girl (Libnus). The central issue was the interpretation of Section 7, specifically whether "touch" or "physical contact" required "skin‑to‑skin" contact and how "sexual intent" should be understood. The Court held that the legislature used "touch" and "physical contact" interchangeably, that "skin‑to‑skin" is not a prerequisite, and that sexual intent is the decisive element. Consequently, the High Court’s acquittals on the basis of lack of direct contact were set aside, and the Special Courts' convictions under Section 8 (and Section 10 for aggravated assault) were restored. The appeals by the State and the Attorney General were allowed, while the accused’s appeals were dismissed.

Issues considered

The meaning of "touch" and "physical contact" in Section 7 of the POCSO Act
Whether "skin‑to‑skin" contact is required to constitute sexual assault under Section 7
The role of "sexual intent" as a factual element under Section 7
The applicability of statutory presumptions under Sections 29 and 30 of the POCSO Act
The relevance of the rule of lenity and ejusdem generis in interpreting Section 7

Legislation cited

Indian Evidence Act, 1872s. 76
Indian Penal Code, 1860s. 342, s. 349, s. 350, s. 351, s. 354, s. 354-A(1)(i), s. 363, s. 448
Protection of Children from Sexual Offences Act, 2012s. 10, s. 11, s. 12, s. 2(2), s. 29, s. 30, s. 7, s. 8, s. 9(m)

Subjects

POCSO Actsexual assaulttouchphysical contactsexual intentstatutory interpretationmischief ruleejusdem generisrule of lenityaggravated sexual assaultstatutory presumption

Judgment

[2021] 10 S.C.R. 955 955

ATTORNEY GENERAL FOR INDIA A
v.
SATISH AND ANOTHER
(Criminal Appeal No. 1410 of 2021)
NOVEMBER 18, 2021 B
[UDAY UMESH LALIT, BELA M. TRIVEDI
AND S. RAVINDRA BHAT, JJ.]
Protection of Children from Sexual Offences Act, 2012:
s. 7 –”sexual assault” –Words touch and physical contact –
C
Interpretation of – Held: Both the said words “touch” and “physical
contact”have been interchangeably used in s. 7 by the legislature –
Word “touch” has been used specifically with regard to the sexual
parts of the body, whereas the word “physical contact” has been
used for any other act – Thus, the act of touching the sexual part of
body or any other act involving physical contact, if done with D
“sexual intent” would amount to “sexual assault” within the meaning
of s. 7 – Expression “sexual intent” having not been explained in s.
7, it cannot be confined to any predetermined format or structure
and that it would be a question of fact – However, the expression
‘physical contact’ used in s. 7 cannot be construed as ‘skin to skin’
E
contact – 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 s. 7 but an absurd
interpretation of s. 7 which 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 F
with gloves, condoms, sheets or with cloth, though done with sexual
intent would not amount to an offence of sexual assault u/s. 7–
“Skin to skin contact” for constituting an offence of “sexual assault”
could not have been intended or contemplated by the Legislature –
Most important ingredient for constituting the offence of sexual
G
assault u/s. 7 is “sexual intent” and not “skin to skin” contact with
the child.
ss. 7, 8 – Offence of sexual assault – Allegation against
accused S that he lured a 12 year old girl to his house, and pressed
her breast and tried to remove her salwar and when the victim tried
H
955
956 SUPREME COURT REPORTS [2021] 10 S.C.R.

A to shout, the accused pressed her mouth – Special court convicted
and sentenced the accused for offences u/ss. 342, 354 and 363
IPC and s. 8 – In appeal, the High Court acquitted the accused for
the offence u/s. 8 and convicted him for the offence u/s. 342 and
354 IPC – On appeal, held: High Court erred in holding that the
act of pressing of breast of the child aged 12 years in absence of
B
any specific details as to whether the top was removed or whether
he inserted his hands inside the top and pressed her breast, would
not fall in the definition of sexual assault, but within the definition
of offence u/s. 354 IPC; and that there was no offence since there
was no direct physical contact- “skin to skin” with sexual intent –
C 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, would be committing an
offence of “sexual assault” – Similarly, whoever does any other
act with sexual intent which involves physical contact without
penetration, would also be committing the offence of “sexual
D
assault” u/s. 7 – Prosecution was not required to prove a “skin to
skin” contact for proving the charge of sexual assault u/s. 7 –
Allegation of sexual intent stood proved by the prosecution – All
these acts were the acts of “sexual assault” as contemplated u/s. 7,
punishable u/s. 8 –Thus, the order passed by the High Court set
E aside and that of the trial court restored.
ss. 8 and 10 r/w s. 9(m) and 12 – Allegation against accused
L that he went to the house of the victim aged 5 years when no one
was there, and caught the hand of the victim, moved her frock upward
with one hand and lowered her pant with the other hand, and
F thereafter, unzipped his pant and showed his penis to her and asked
her to lay down on the cot – When the mother of the victim returned,
she saw one person had caught the hand of the victim and also saw
the victim raising her pant – Special Court convicted and sentenced
the accused for offences punishable u/s. 448 and 354-A(1)(i) IPC
and ss. 8 and 10 r/w s. 9(m) and 12 – High Court upheld the
G conviction u/ss. 448 and 354-A(1)(i) IPC rw s.12 of the POCSO,
however, set aside the conviction u/ss. 8 and 10 and modified the
sentence to the extent already undergone – On appeal, held: When
the alleged acts of entering the house of the prosecutrix with sexual
intent to outrage her modesty, of holding her hands and opening
H the zip of his pant showing his penis, are held to be established by
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 957

the prosecution, there was no reason for the High Court not to treat A
such acts as the acts of “sexual assault” within the meaning of s. 7
– Accused-L committed an offence of “sexual assault” within the
meaning of s. 7 and the prosecutrix being below the age of 12 years,
he had committed an offence of “aggravated sexual assault” as
contemplated u/s. 9(m), liable to be punished with the imprisonment
B
for a term not less than five years u/s. 10 – Thus, the order passed
by the High Court set aside and that of the trial court are restored.
Enactment of the Act – Object and reasons – Stated.
Interpretation of statutes:
Duty of the Court – Held: Courts should ascertain the C
intention of the Legislature enacting it, and should accept an
interpretation or construction which promotes the object of the
legislation and prevents its possible abuse.
Rule of construction contained in maxim “Ut Res Magis Valeat
Quam Pereat” – Held: Construction of a rule should give effect to D
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 – 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 E
result - Maxim “Ut Res Magis Valeat Quam Pereat”.
Penal statue – Construction of – Held: Penal Statute enacting
an offence or imposing a penalty has to be strictly construed –
Thus, POCSO must be strictly constructed – However, clauses of a
statute should be construed with reference to the context vis-a-vis F
the other provisions so as to make a consistent enactment of the
whole Statute relating to the subject matter – Thus, considering the
objects of the POCSO Act, its provisions, more particularly
pertaining to the sexual assault, sexual harassment etc. have to be
construed vis-a-vis the other provisions, so as to make the objects
of the Act more meaningful and effective – Protection of Children G
from Sexual Offences Act, 2012.
Rule of lenity – Invocation of – Held: Where the legislature
has manifested its intention, courts may not manufacture ambiguity
in order to defeat that intent – Court should not be over zealous in
searching for ambiguities or obscurities in words which are plain – H
958 SUPREME COURT REPORTS [2021] 10 S.C.R.

A As regards s.7 of the POCSO Act, the court did not find any
ambiguity or obscurity so as to invoke the Rule of Lenity –
Invocation of “Rule of lenity” was misconceived – Submission that
the “Rule of Lenity” requires a court to resolve statutory ambiguity
in a criminal statute in favour of the accused, or to strictly construe
the statute against the State, cannot be accepted since the statutory
B
ambiguity should be invoked as a last resort of interpretation –
Protection of Children from Sexual Offences Act, 2012.
Principle of “ejusdem generis” – Application of – Held:
Principle of “ejusdem generis” should be applied only as an aid to
the construction of the statute – It should not be applied where it
C would defeat the very legislative intent – If the specific words used
in the section exhaust a class, it has to be construed that the
legislative intent was to use the general word beyond the class
denoted by the specific words.
Crime against women: Offence of sexual assault – “Skin to
D skin contact” if, required to constitute an offence of sexual assault
– Interpretation of expression “touch” and “sexual assault” –
Analogous provisions as prevalent in foreign countries – Discussed.
Words and phrases: Touch and physical contact, in the context
of s. 7 of the POCSO Act – Meaning of – Protection of Children
E from Sexual Offences Act, 2012 – s. 7.
Practice and procedure:Certified copies of the judgments/
orders – Proper procedure for preparing the certified copies – Need
for.
Disposing of the appeals, the Court
F HELD : Per BELA M. TRIVEDI, J, (for herself and Uday
Umesh Lalit, J):
1.1 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
G interpretation or construction which promotes the object of the
legislation and prevents its possible abuse. [Para 28][984-H;
985-A-B]
1.2 From the bare reading of Section 7 of the Protection of
Children from Sexual Offences Act, 2012 which pertains to the
“sexual assault”, it appears that it is in two parts. The first part
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 959

of the Section mentions about the act of touching the specific A
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.
[Para 31][987-F-G]
1.3 The word “Touch” means “the sense that enables you B
to be aware of things and what are like when you put your hands
and fingers on them”. The word “physical” as defined, means
“of or relating to body.” and the word “contact” means “the state
or condition of touching; touch; the act of touching”. Thus, having
regard to the dictionary meaning of the words “touch” and
“physical contact”, the Court finds much force in the submission C
that both the said words have been interchangeably used in Section
7 by the legislature. The word “Touch” has been used specifically
with regard to the sexual parts of the body, whereas the word
“physical contact” has been used for any other act. Therefore,
the act of touching the sexual part of body or any other act involving D
physical contact, if done with “sexual intent” would amount to
“sexual assault” within the meaning of Section 7 of the POCSO
Act. [Para 32][987-H; 988-A-C]
Oxford Advanced Learner’s Dictionary; Advanced Law
Lexicon, 3rd Edn – referred to. E
1.4 There cannot be any disagreement with the submission
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 that the expression ‘physical contact’ used in Section F
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 ofthe provision which would defeat the
object of the provision, cannot be accepted. Where the intention G
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
H
960 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 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
B
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
C amount to an offence of sexual assault u/s. 7. The most important
ingredient for constituting the offence of sexual assault 7 of the
Act is the “sexual intent” and not the “skin to skin” contact with
the child. [Para 33][988-D-H; 989-A]
1.5 Foreign Courts while interpreting analogous provisions
D as prevalent in such countries, have held that “skin to skin
contact” is not required to constitute an offence of sexual assault.
It is not the presence or lack of intervening material which should
be focused upon, but whether the contact made through the
material, comes within the definition prescribed for a particular
statue, has to be seen. Of course, the judgments of the said courts
E proceed on the interpretation arising out of the terms defined in
the provisions contained in the concerned legislations and are
not pari-materia to the language of Section 7 of the POCSO
Act, nonetheless they would be relevant for the purpose of
interpreting the expression “touch” and “sexual assault”.
F [Para 34][989-B-D]
Regina v. H (2005) 1 WLR 2005; State of Iowa v Walter
James Fippes 442 NW 2d 611 – referred to.
1.6 The act of touching any sexual part of the body of a
child with sexual intent or any other act involving physical contact
G with sexual intent, could not be trivialized or held insignificant or
peripheral so as to exclude such act from the purview of “sexual
assault” under Section 7. The law would have to be interpreted
having regard to the subject matter of the offence and to the

H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 961

object of the law it seeks to achieve. The purpose of the law A
cannot be to allow the offender to sneak out of the meshes of law.
[Para 35][989-F-G]
Balaram Kumawat Vs. Union of India & Ors. (2003) 7
SCC 628 : [2003] 3 Suppl. SCR 24 – referred to.
1.7 Having regard to the seriousness of the offences under B
the POCSO Act, the Legislature has incorporated certain
statutory presumptions. Section 29 permits the Special Court to
presume, when a person is prosecuted for committing or abetting
or attempting to commit any offence under Section 3, 5, 7 and
Section 9 of the Act, that such person has committed or abetted C
or attempted to commit the offence, as the case may be, unless
the contrary is proved. Similarly, Section 30 thereof permits the
Special Court to presume for any offence under the Act which
requires a culpable mental state on the part of the accused, the
existence of such mental state. Of course, the accused can take
a defence and prove the fact that he had no such mental state D
with respect to the act charged as an offence in that prosecution.
Though as per sub section (2) of Section 30, for the purposes of
the said section, a fact is said to be proved only when the Special
Court believes it to exist beyond reasonable doubt and not merely
when its existence is established by a preponderance of probability, E
the Explanation to Section 30 clarifies that “culpable mental state”
includes intention, motive, knowledge of a fact and the belief in,
or reason to believe, a fact. Thus, on the conjoint reading of
Section 7, 11, 29 and 30, there remains no shadow of doubt that
though as per the Explanation to Section 11, “sexual intent” would
be a question of fact, the Special Court, when it believes the F
existence of a fact beyond reasonable doubt, can raise a
presumption under Section 30 as regards the existence of
“culpable mental state” on the part of the accused. [Para 36][989-
G-H; 990-A-E]
1.8 There cannot be any disagreement with the submission G
that there being an ambiguity, due to lack of definition of the
expressions - “sexual intent”, “any other act”, “touching” and
“physical contact”, used in Section 7, coupled with the
presumptions under Sections 29 and 30 of the Act, the reverse
burden of proof on the accused would make it difficult for him to H
962 SUPREME COURT REPORTS [2021] 10 S.C.R.

A prove his innocence and, therefore, the POCSO Act must be
strictly interpreted. The Penal Statute enacting an offence or
imposing a penalty has to be strictly construed. A beneficial
reference be made. However, it is equally settled legal position
that the clauses of a statute should be construed with reference
to the context vis-a-vis the other provisions so as to make a
B
consistent enactment of the whole Statute relating to the subject
matter. The Court can not be oblivious to the fact that the impact
of traumatic sexual assault committed on children of tender age
could endure during their whole life, and may also have an adverse
effect on their mental state. The suffering of the victims in certain
C cases may be immeasurable. Therefore, considering the objects
of the POCSO Act, its provisions, more particularly pertaining to
the sexual assault, sexual harassment etc. have to be construed
vis-a-vis the other provisions, so as to make the objects of theAct
moremeaningful and effective. [Para 37][990-E-H; 991-A-B]
D Sakshi vs. Union of India 2004 (5) SCC 518 : [2004] 2
Suppl. SCR 723; R. Kalyani vs Janak C. Mehta & Ors
2009 (1) SCC 516 : [2008] 14 SCR 1249; State of
Punjab v. Gurmeet Singh (2014) 9 SCC 632 : [2014] 9
SCR 182 – referred to.
E 1.9 The invocation of “Rule of lenity” is also thoroughly
misconceived. The submission that the “Rule of Lenity” requires
a court to resolve statutory ambiguity in a criminal statute in favour
of the accused, or to strictly construe the statute against the State,
cannot be accepted in view of the settled proposition of law that
the statutory ambiguity should be invoked as a last resort of
F interpretation. Where the Legislature has manifested its
intention, courts may not manufacture ambiguity in order to defeat
that intent. It is also trite that a court should not be over zealous
in searching for ambiguities or obscurities in words which are
plain. So far as the provisions contained in Section 7 of the POCSO
G Actare concerned, the court does not find any ambiguity or
obscurity so as to invoke the Rule of Lenity. [Paras 38, 39][991-
B-E; 992-A-B]
Ladner vs. United States 358 US 169; United States vs.
Kozminski 487 U.S. 931 (1988); The People vs. REID
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 963

II 246 Cal. App. 4Th, 822; IRC vs. Rossminster Ltd. A
(1980) 1 AllER 80 – referred to.
1.10 It clearly emerges that the High Court fell into error
in case of the accused-S in holding him guilty for the minor
offences under Sections 342 and 354 of IPC and acquitting him
for the offence under Section 8 of the POCSO Act. The High B
Court while specifically accepting the consistent versions of the
victim and her mother i.e. informant about the accused having
taken the victim to his house, having pressed the breast of the
victim, having attempted to remove her salwar and pressing her
mouth, had committed gross error in holding that the act of
pressing of breast of the child aged 12 years in absence of any C
specific details as to whether the top was removed or whether he
inserted his hands inside the top and pressed her breast, would
not fall in the definition of sexual assault, and would fall within
the definition of offence under Section 354 of the IPC. The High
Court further erred in holding that there was no offence since D
there was no direct physical contact i.e. “skin to skin” with sexual
intent. [Para 40][992-B-E]
1.11 The interpretation of Section 7 at the instance of
theHigh Court on the premise of the principle of “ejusdem
generis” is also thoroughly misconceived. The principle of E
“ejusdem generis” should be applied only as an aid to the
construction of the statute. It should not be applied where it would
defeat the very legislative intent. If the specific words used in
the section exhaust a class, it has to be construed that the
legislative intent was to use the general word beyond the class
denoted by the specific words. So far as Section 7 of the POCSO F
Act is concerned, the first part thereof exhausts a class of act of
sexual assault using specific words, and the other part uses the
general act beyond the class denoted by the specific words. In
other words, whoever, with sexual intent touches the vagina,
penis, anus or breast of the child or makes the child touch the G
vagina, penis, anus or breast of such person or any other person,
would be committing an offence of “sexual assault”. Similarly,
whoever does any other act with sexual intent which involves
physical contact without penetration, would also be committing

H
964 SUPREME COURT REPORTS [2021] 10 S.C.R.

A the offence of “sexual assault” under Section 7 of the POCSO
Act. The prosecution was not required to prove a “skin to skin”
contact for the purpose of proving the charge of sexual assault
under Section 7 of the Act. [Para 41][992-E-H; 993-A-B]
1.12 The surrounding circumstances like the accused having
B taken the victim to his house, the accused having lied to the
mother of the victim that the victim was not in his house, the
mother having found her daughter in the room on the first floor
of the house of the accused and the victim having narrated the
incident to her mother, were proved by the prosecution, rather
the said facts had remained unchallenged at the instance of the
C accused. Such basic facts having been proved by the prosecution,
the Court was entitled to raise the statutory presumption about
the culpable mental state of the accused as permitted to be raised
under Section 30 of the said Act. The said presumption has not
been rebutted by the accused, by proving that he had no such
D mental state. The allegation of sexual intent as contemplated under
Section 7 of the Act, therefore, had also stood proved by the
prosecution. The Court, therefore, is of the opinion that the
prosecution had duly proved not only the sexual intent on the
part of the accused but had also proved the alleged acts that he
had pressed the breast of the victim, attempted to remove her
E salwar and had also exercised force by pressing her mouth. All
these acts were the acts of “sexual assault” as contemplated
under section 7, punishable under Section 8 of the POCSO Act.
The judgments and orders passed by the High Court are quashed
and set aside; and the judgment and orders passed by the Special
F Court is restored. [Para 42][993-B-E]
1.13 As regards accused-L, the High Court while recording
the finding that the prosecution had established that the accused
had entered into the house of the prosecutrix with the intention
to outrage her modesty, also held that the acts “holding the hands
G of the prosecutrix” or “opened the zip of the pant” did not fit in
the definition of sexual assault. The High Court fell into a grave
error in recording such findings. The High Court appears to have
been swayed away by the minimum punishment of five years
prescribed for the offence of “aggravated sexual assault” under
Section 10 of the POCSO Act as the age of the prosecutrix was
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 965

five years and the sexual assault if committed on the victim who A
is below 12 years is required to be treated as the “aggravated
sexual assault” as per Section 9(m) of the Act. However, neither
the term of minimum punishment nor the age of the victim could
be a ground to allow the accused to escape from the clutches of
Section 7 of the POCSO Act. The alleged acts of the accused
B
having been held to be proved by the prosecution, would certainly
be the acts falling within the purview of the “sexual assault” as
contemplated in the second part of Section 7. Therefore, the
accused-L had committed an offence of “sexual assault” within
the meaning of Section 7 of the POCSO Act and the prosecutrix
being below the age of 12 years, he had committed an offence of C
“aggravated sexual assault” as contemplated under Section 9(m)
of the said Act, liable to be punished with the imprisonment for a
term not less than five years under Section 10 of the POCSO
Act. In that view of the matter, the judgment and order of
the High Court insofar as it has set aside the conviction of the
D
accused-L for the offences under Section 8 and 10 of the POCSO
Act is set aside, and the judgment and order of conviction
and sentence passed by the Special Court is restored.
[Para 43][993-F-H; 994-A-F]
1.14 The accused-S is hereby convicted for the offences
punishable under Section 8 of the POCSO Act and under Sections E
342, 354 and 363 of the IPC. He is directed to undergo
rigorous imprisonment for a period of three years and to pay fine
of Rs. 500/- and in default thereof to suffer simple imprisonment
for a period of one month for the offence under Section 8 of the
POCSO Act. Since he has been sentenced for the major offence F
under Section 8 of the POCSO Act, no separate sentence is
imposed upon him for the other offences under the IPC.
[Para 45][995-A-B]
1.15 The accused-L is convicted for the offences punishable
under Sections 354-A (1)(i) and 448 IPC as also for the offences G
under Sections 8, 12 and 10 read with Section 9(m) of the POCSO
Act. He is directed to undergo rigorous imprisonment for a period
of five years for the offence under Section 10 of the POCSO Act
and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only)
and in default thereof to suffer simple imprisonment for a period
H
966 SUPREME COURT REPORTS [2021] 10 S.C.R.

A of six months. Since he has been sentenced for the major offence
under Section 10 of the POCSO Act, no separate sentence is
being imposed upon him for the other offences under the IPC
and the POCSO Act. [Para 46][995-C-D]
1.16 It is very surprising to note that the Registry of High
B Court of Bombay, Nagpur Bench, has certified the copy of the
impugned judgment by affixing the stamp on the back side of
every page of the judgment which is blank. The said copy of the
judgment appears to have been downloaded from the website
and, therefore, does not bear even the signature or the name of
the concerned judge at the end of the judgment. The certificate
C that the said copy is a true copy of the judgment, is also not written
at the foot of the judgment as contemplated in Section 76 of the
Evidence Act. Such a practice, if followed by the Nagpur Bench
of the Bombay High Court, may allow the miscreants to manipulate
or commit mischief in the judicial orders which are used as the
D public documents having great significance in the judicial
proceedings. The Registrar General of the Bombay High Court,
therefore, is directed to look into the matter and ensure that
proper procedure for preparing the certified copies of the
judgments/orders of the Court in accordance with law is followed.
[Para 49][996-B-E]
E
Bandu Vithalrao Borwar v/s State of Maharashtra
Criminal Appeal No. 50 of 2016; Noor Aga vs. State of
Punjab and Anr 2008 (16) SCC 518; The United States
vs. Wilt Berger 18 US 76 (1820); Connally v. General
Construction Co. 269 U.S. 385 (1926); J.P. Bansal vs.
F State of Rajasthan & Anr. AIR (2003) SC 1405 : [2003]
2 SCR 933 – referred to.
Per S. RAVINDRA BHAT, J. (Concurring):
HELD: 1.1 The proper rule of interpretation which should
be adopted in Protection of Children from Sexual Offences Act,
G 2012 cases. There is a need to contextualise the provisions of
any law which requires interpretation, even while focussing on
its text. [Para 4][997-F]
Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Ors. (1987) 1 SCC 424 : [1987]
H 2 SCR 1 – referred to.
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 967

1.2 One time tested and well accepted mode of interpreting A
a statute, especially a new statute, is to apply the “mischief rule”-
first spoken of in Heydon’s case which contains a four-point
formula, acting as an aid in construing a new law or provision.
These are firstly, what was the common law before the making of
the Act; secondly what was the mischief and defect for which the
B
common law did not provide; thirdly what remedy Parliament
resolved and appointed to cure the disease plaguing the society;
and lastly the true reason of the remedy. The judgment in Heydon’s
case also emphasised that courts always have to interpret the
law so as to suppress the mischief, and advance the remedy, and
to suppress subtle inventions and evasions for continuance of C
the mischief, and pro privato commodo, and to add force and life
to the cure and remedy, according to the true intent of the makers
of the Act, pro bono publico. [Para 6][998-C-E]
Kanwar Singh v. Delhi Administration 1965 (1) SCR
7; Swantraj & Ors. v. State of Maharashtra (1975) 3 D
SCC 322 : [1974] 3 SCR 287; Eera v. State (NCT of
Delhi) 2017 (15) SCC 133 : [2017] 7 SCR 924 –
referred to.
Heydon’s case 76 ER 637 – referred to.
1.3 To gather the mischief which Parliament wished to E
eliminate, it would be necessary to briefly trace the history of the
law, which existed before POCSO was enacted. The Penal Code-
IPC criminalizes assault or use of criminal force which outrages
a woman’s modesty (by Section 354). The expression “criminal
force” is defined in Section 350 and “assault” is defined in Section F
351. These require an element of application of physical force, to
women. The expression “modesty” was another limitation as
older decisions show that such a state was associated with
decorousness of women. This added a dimension of patriarchy
and class. One cannot be unmindful of the circumstances in which
these provisions were enacted by a colonial power, at a time, G
when women’s agency itself was unacknowledged, or had limited
recognition. Further, women in India were traditionally-during
the time of enactment of IPC, in the mid nineteenth century -
subordinated to the care of their fathers, or their husbands, or
other male relatives. They had no share in immovable property; H
968 SUPREME COURT REPORTS [2021] 10 S.C.R.

A notions of gender equality were unheard of, or not permitted.
Women had no right to vote. Quite naturally, the dignity of
women – or indeed their autonomy, was not provided for.
[Para 9][999-B-F]
Rupan Deol Bajaj v. K.P.S Gill (1995) 6 SCC 194 :
B [1995] 4 Suppl. SCR 237; Kalias & Ors. v. State of
Maharashtra (2011) 1 SCC 293 – referred to.
1.4 The advent of the Constitution of India revolutionized-
at least in law, all that. Regardless of gender, race, caste, religion
or region, or all of the acknowledged sectarian and discrimination
C enabling barriers, everyone enjoyed equality of law, and equal
protection of law (Article 14). Further, the provision in Article 15
(1) proscribed discrimination by the state (in all its forms) on
various grounds, including gender. Article 15 (3) enabled the
state to enact special provisions for women and children.
[Para 10][999-F; 1000-A-B]
D
1.5 The limitations in law in dealing with acts that
undermined the dignity and autonomy of women and children,
ranging from behaviour that is now termed “stalking” to
pornography, or physical contact, and associated acts, which were
not the subject matter of any penal law, were recognized and
E appropriate legislative measures adopted, in other countries.
These laws contain nuanced provisions criminalizing behaviour
that involve unwanted physical contact of different types and hues,
have the propensity to harass and discomfit women and
minors (including minors of either sex), or demean them.
F [Para 11][1000-B-D]
1.6 In India, the Law Commission’s 146th report (1993),
156th report (1997) and 172nd report (2000) dealt with some of
these and associated issues. The 172nd report recommended
changes to the definition of rape, expanding its scope, and also
G incorporating the expanded definition of sexual assault. These,
and India’s ratification of the UN Convention on the Rights of
Children, 1992, formed the background and basis for enacting
POCSO. [Para 12][1000-D-E]
1.7 Penal Code was sought to be amended through the
introduction of a Bill in 2012, which for some reason, did not see
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 969

the light of the day; instead, the amendments were made, through A
an Ordinance which was later replaced by a Parliamentary Act.
These amendments enhanced the punishment for certain offences
(including Section 354) and introduced new offences engrafted
into the IPC, such Section 354A, 354B, 354C, 354D. With this
backdrop, the provisions of POCSO have to be analysed.
B
[Paras 13, 14][1001-D-E; 1002-B]
1.8 The punishment for these offences is directly
proportionate to the severity of the offence. The punishment is
also inversely proportionate to the autonomy exercisable by the
child, with offences against children below the age of 12 years
falling under the ‘aggravated’ nature, thus subject to greater terms C
of imprisonment and fine. Sexual assault is also of an ‘aggravated’
nature under Sections 5 and 9 of the Act when committed by a
person in a position of authority or those exercising authority
over children in their care. These sections provide a long list of
examples. [Paras 15, 16][1002-D, G] D
1.9 Section 7 of POCSO has to be viewed having regard to
the mischief rule, the background and history leading up to the
enactment of the legislation (including the amendments to IPC
in 2013) and to its objects. A plain reading of Section 7 would
show that the expression “assault” has a meaning entirely E
removed from the definition of “assault” in Section 351 of IPC.
The latter involves an overt gesture, or preparation by one
person, that causes another to apprehend that the former would
use criminal force upon the intended victim. The emphasis of
Section 7 is to address the felt social need of outlawing behaviour
driven by sexual intent. [Paras 17, 18][1003-B-E] F

1.10 A close analysis of Section 7 reveals that it is broadly
divided into two limbs. Sexual assault, under the first limb is
defined as the touching by a person - with sexual intent - of four
specific body parts (vagina, penis, anus or breast) of a child, or
making a child touch any of those body parts of “such person” G
(i.e. a clear reference to the offender) or of “any other person”
(i.e. other than the child, or the offender). In the second limb,
sexual assault is the doing of “any other act with sexual intent
which involves physical contact without penetration”. The use of
expression touch appear to be common to the first and second H
970 SUPREME COURT REPORTS [2021] 10 S.C.R.

A parts of the first limb. “Contact” on the other hand, which is used
in the second limb, has a wider connotation; it encompasses - but
is not always limited to-‘touch’. While it is not immediately
apparent why the term ‘physical contact’ has been used in the
second limb, its use in conjunction with “any other act” (controlled
by the overarching expression “with sexual intent”), indicates
B
that ‘physical contact’ means something which is of wider import
than ‘touching’. Viewed so, physical contact without penetration,
may not necessarily involve touch. The “other act” involving
“physical contact” may involve: direct physical contact by the
offender, with any other body part (not mentioned in the first limb)
C of the victim; other acts, such as use of an object by the offender,
engaging physical contact with the victim; or in the given
circumstances of the case, even no contact by the offender (the
expression “any other act” is sufficiently wide to connote, for
instance, the victim being coerced to touch oneself). [Paras 20,
21, 23][1003-H; 1004-A-F]
D
https://dictionary.cambridge.org/dictionary/english/
touch;https://www.collinsdictionary.com/dictionary/english/
touch – referred to.
1.11 Parliamentary intent and emphasis, however, is that
E the offending behavior (whether the touch or other act involving
physical contact), should be motivated with sexual intent.
Parliament moved beyond the four sexual body parts, and covered
acts of a general nature, which when done with sexual intent, are
criminalized by the second limb of Section 7. The specific mention
of the four body parts of the child in the first limb, and the use of
F the controlling expression “sexual intent” mean that every
touch of those four body parts is prima facie suspect.
[Para 24][1004-G; 1005-A]
1.12 The circumstances in which touch or physical contact
occurs would be determinative of whether it is motivated by
G ‘sexual intent’. There could be a good explanation for such
physical contact which include the nature of the relationship
between the child and the offender, the length of the contact, its
purposefulness; also, if there was a legitimate non-sexual purpose
for the contact. Also relevant is where it takes place and the
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 971

conduct of the offender before and after such contact. It would be A
useful to always keep in mind that “sexual intent” is not defined,
but fact-dependent-as the explanation to Section 11 specifies.
[Para 25][1005-B-C]
1.13 The inference by the High Court that “touch” cannot
necessarily involve contact with a child’s sexual body parts (in B
one of these cases, the breast) through clothes, is based on a
disingenuous argument. Unsurprisingly, that argument had its
roots in other jurisdictions. Such an interpretation not merely
limits the operation of the law, but tends to subvert its intention.
It has the effect of “inventions and evasions” meant to continue
the mischief, which Parliament wished to avoid. [Paras 26, C
28][1005-D; 1006-D]
Regina v H 2005 (1) WLR 2005; State of Iowa v. Walter
James Phipps 442 N.W.2d.611; State of Iowa v Kris
Kanon Pearson 514 NW 2d 452 – referred to.
D
1.14 The fallacy in the High Court’s reasoning is that it
assumes that indirect touch is not covered by Section 7- or in
other words is no “touch” at all. That provision covers and is
meant to cover both direct and indirect touch. In plain English,
to touch is to engage in one of the most basic of human sensory
perceptions. The receptors on the surface of the human body are E
acutely sensitive to the subtleties of a whole range of tactile
experiences. The use of a spoon, for instance, to consume food -
without touching it with the hand - in no way diminishes the sense
of touch that is experienced by the lips and the mouth. Similarly,
when a stick, or other object is pressed onto a person, even when F
clothed, their sense of touch is keen enough to feel it. Therefore,
the reasoning in the High Court’s judgment quite insensitively
trivializes - indeed legitimizes - an entire range of unacceptable
behaviour which undermines a child’s dignity and autonomy,
through unwanted intrusions. The High Court, therefore clearly
erred in acting on such interpretation, and basing its conviction G
of and awarding sentence to the respondents; as it did they were
guilty of sexual assault. In the case of S, the conviction is to
be under Section 8. In the case of L, the appropriate conviction
is of aggravated sexual assault, under Section 10. [Para 29]
[1006-D-G] H
972 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 1.15 The term ‘contact’ is comprehended in the expression
‘force’ u/s. 349 IPC in such manner, that the causing to any
substance motion, change of motion, etc. which “brings that
substance into contact with any part of that other’s body, or with
anything which that other is wearing or carrying, or with anything
so situated that such contact affects that other’s sense of feeling”.
B
The idea of ‘contact’ by a person with another through their
clothing would hence, imply a physical contact. This is because
of a combined operation of Section 2(2) of POCSO and Section
349 of IPC. Crucially, neither Section 7 nor any other provision
of POCSO even remotely suggests that ‘direct’ physical contact
C unimpeded by clothing is essential for an offence to be committed.
[Para 32][1007-D-E; 1008-B]
Dulal Dhar v. State of Tripura 2015 SCC Online Trip
188; Tushar Singha v. State of Tripura Crl. (A) J/2/
2020; Jitender v. State Crl. (A) 564/2019 – approved.
D
1.16 It is no part of any judge’s duty to strain the plain
words of a statute, beyond recognition and to the point of its
destruction, thereby denying the cry of the times that children
desperately need the assurance of a law designed to protect their
autonomy and dignity, as POCSO does. [Para 33][1008-C-D]
E
Alakh Alok Shrivastava v. Union of India (2018) 17
SCC 291 : [2018] 6 SCR 972; Rakesh v. State (GNCTD)
2018 SCC Online Del 1179 – referred to.
Case Law Reference
F In the judgment of TRIVEDI, J:
2008 (16) SCC 518 referred to Para 17
[2004] 2 Suppl. SCR 723 referred to Para 17
[2008] 14 SCR 1249 referred to Para 17
G
[2003] 2 SCR 933 referred to Para 28
[2003] 3 Suppl. SCR 24 referred to Para 29
[2014] 9 SCR 182 referred to Para 37

H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 973

In the judgment of BHAT, J: A
[1987] 2 SCR 1 referred to Para 4
[1965] 1 SCR 7 referred to Para 6
[1974] 3 SCR 287 referred to Para 7
[2017] 7 SCR 924 referred to Para 8 B
[1995] 4 Suppl. SCR 237 referred to Para 9
(2011) 1 SCC 293 referred to Para 9
[2018] 6 SCR 972 referred to Para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal C
No.1410 of 2021.
From the Judgment and Order dated 19.01.2021 of the High Court
of Judicature at Bombay, Nagpur Bench in Criminal Appeal No.161 of
2020.
With D
Criminal Appeal Nos.1411, 1412,1413 And 1414 of 2021.
K. K. Venugopal, AG, Mrs. Geeta Luthra, Sidharth Luthra, Sr.
Advs., Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Nitin
Saluja, Ms. Shivani Luthra Lohiya, Ms. Asmita Narula, Ms. Sasha Maria
Paul, Ms. Minakshi Vij, Annopam Prasad, Ayush Kaushik, Angaj Gautam, E
Akshay Chopra, Ms. Pooja Dhar, Ms. Suhasini Sen, Advs. for the
appearing parties.
The following Judgment and Order of the Court were delivered
by
JUDGMENT F
BELA M. TRIVEDI, J.
1. Leave granted in all appeals.
2. The four Appeals filed by the appellants - Attorney General for
India, by the National Commission for Women, by the State of
G
Maharashtra and by the appellant-accused Satish respectively, arising
out of the Judgment and Order dated 19.01.2021 passed in Criminal
Appeal No. 161 of 2020 by the High Court of Judicature at Bombay,
Nagpur Bench, and the Appeal filed by the Appellant-State of
Maharashtra, arising out of the Judgment and Order dated 15.01.2021
passed in the Criminal Appeal No. 445 of 2020 by the same Nagpur H
974 SUPREME COURT REPORTS [2021] 10 S.C.R.

A Bench, encompass similar contextual legal issues, and therefore, permit
us this analogous adjudication.
I.Factual matrix in case of the Accused-Satish :-
3. The Extra Joint Additional Sessions Judge, Nagpur (hereinafter
referred to as the Special Court) vide the Judgment and Order dated 5th
B February, 2020 passed in the Special Child Protection Case No. 28/2017
convicted and sentenced the accused-Satish for the offences under
Sections 342, 354 and 363 of the Indian Penal Code (for short ‘IPC’)
and Section 8 of the Protection of Children from Sexual Offences Act,
2012 (For short POCSO Act). Being aggrieved by the same, the accused-
C Satish had preferred an appeal being Criminal Appeal No. 161 of 2020
in the High Court of Judicature at Bombay, Nagpur Bench. By the
Judgment and Order dated 19th January, 2021, the High Court disposed
of the said appeal by acquitting the accused for the offence under Section
8 of the POCSO Act, and convicting him for the offence under Sections
342 and 354 of the IPC. The accused was sentenced to undergo rigorous
D imprisonment for a period of one year and to pay fine of Rs. 500/- in
default thereof to suffer R.I. for one month for the offence under Section
354 and to undergo imprisonment for a period of six months and to pay
fine of Rs. 500/- , in default thereof to suffer R.I. for one month for the
offence under Section 342 of IPC.
E 4. The case of the prosecution before the Special Court as
emerging from the record was that the informant happened to be the
mother of the victim aged about 12 years. The accused-Satish was
residing in the same area where she was residing i.e. Deepak Nagar,
Nagpur. On 14.12.2016 at about 11.30 a.m., the victim had gone out to
F obtain guava. Since she did not return back for a long time, the informant-
mother went in search of the victim. At that time, one lady Sau Divya
Uikey who was staying nearby, told her that the neighbouring person
(the accused) had taken her daughter along with him to his house. The
informant, therefore, went to the house of the accused. The accused at
that time came down from the first floor of his house. The informant
G having made inquiry about her daughter, the accused told her that she
was not there in his house. The informant, however, barged into the
house of the accused to search her daughter as she heard the shouts
coming from a room situated on the first floor. She went to the first floor
and found that the door of the room was bolted from outside. She opened
H the door and found her daughter who was crying in the room. On making
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 975
[BELA M. TRIVEDI, J.]

inquiry as to what had happened, her daughter told her that the accused A
had asked her to come with him and told her that he would give her a
guava. He took her to his house. He then pressed her breast and tried to
remove her salwar. At that time, the victim tried to shout but the accused
pressed her mouth. The accused thereafter left the room and bolted the
door from outside. The informant, on having learnt such facts, went to
B
the Police Station along with her daughter to lodge the complaint. The
said complaint was registered as Crime No. 405/2016 at Police Station
Gittikhadan, Nagpur. It was further case of the prosecution that when
the police rushed to the spot, they saw that the accused was trying to
commit suicide by hanging himself. He, therefore, was sent to the hospital
for treatment. The spot panchanama was drawn and the statement of C
the victim was got recorded under Section 164 of Code of Criminal
Procedure before the Magistrate. After the completion of the
investigation, the charge-sheet was filed in the Special Court, Nagpur
against the accused. The Special Court after appreciating the evidence
on record, passed the Judgment and Order of conviction and sentence
D
as stated hereinabove.
5. The High Court in the appeal filed by the accused-Satish
acquitted the accused for the offence under Section 8 of the POCSO
Act and convicted him for the minor offence under Sections 342 and
354 of IPC by making following observations:
E
“18. Evidently, it is not the case of the prosecution that the
appellant removed her top and pressed her breast. The
punishment provided for offence of ‘sexual assault’ is
imprisonment of either description for a term which shall not
be less than three years but which may extend to five years,
and shall also be liable to fine. Considering the stringent F
nature of punishment provided for the offence, in the opinion
of this Court, stricter proof and serious allegations are
required. The act of pressing of breast of the child aged 12
years, in the absence of any specific details as to whether the
top was removed or whether he inserted his hand inside top G
and pressed her breast, would not fall in the definition of
‘sexual assault’. It would certainly fall within thedefinition
of the offence under Section 354 of the Indian Penal Code.
For ready reference, Section 354 of the Indian Penal Code is
reproduced below:
H
976 SUPREME COURT REPORTS [2021] 10 S.C.R.

A “354. Assault or criminal force to woman with intent to outrage
her modesty. - Whoever assaults or uses criminal force to any
woman, with the intention to outrage her modesty, shall be
punished with imprisonment of either description for a term
which shall not be less than one year but which may extend
to five years, and shall also be liable to fine.”
B
19. So, the act of pressing breast can be a criminal force to a
woman/girl with the intention to outrage her modesty. The
minimum punishment provided for this offence is one year,
which may extend to five years and shall also be liable to
fine.
C
20 to 25 ———————
26. It is not possible to accept this submission for the aforesaid
reasons. Admittedly, it is not the case of the prosecution that
the appellant removed her top and pressed her breast. As such,
D there is no direct physical contact i.e. skin to skin with sexual
intent without penetration.
6. The above observations/findings made by the High Court, have
caused the Attorney General for India, the National Commission for
Women and the State of Maharashtra to file the appeals before this
E Court. The accused has also filed the appeal challenging his conviction
for the offences under Section 354 and 342 of the IPC.
II. Factual matrix in the case of the Accused-Libnus :-
7. The Additional Sessions Judge, Gadchiroli (hereinafter referred
to as the Special Court) vide the judgment and order dated 5 th October,
F 2020 passed in the Special POCSO case no. 07/2019 convicted and
sentenced the accused-Libnus s/o Fransis Kujur for the offences
punishable under Section 448 and 354-A (1)(i) of IPC and Sections 8
and 10 read with section 9 (m) and 12 of the POCSO Act. Being
aggrieved by the same, the accused-Libnus had preferred an appeal
being Criminal Appeal No. 445 of 2020 in the High Court of Judicature
G
at Bombay, Nagpur Bench. Vide the Judgment and Order dated 15th
January, 2021, the High Court maintained the conviction of the accused
for the offences under Sections 448 and 354-A(1)(i) of the IPC read
with Section 12 of the POCSO Act and set aside the conviction of the
accused for the offences under Sections 8 and 10 of the POCSO Act.
H The High Court considering the nature of the alleged acts and the
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 977
[BELA M. TRIVEDI, J.]

punishment provided for the alleged offences, modified the sentence A
imposed by the Special Court to the extent he had already undergone,
and directed to set him free.
8. The case of the prosecution before the Special Court as
emerging from the record was that the informant happened to be the
mother of the victim aged about five years. The informant used to do B
domestic work at some houses in the town, for which she had to leave
home at about 8.00 o’clock in the morning and return at about 4.00
o’clock in the afternoon. On 11.02.2018 at about 8.00 o’clock, she had
left for her work leaving her two daughters at home. On that day, her
husband had also gone out to village Chavela. When she returned home
at about 4.00 o’clock in the afternoon, she saw one person catching hold C
of a hand of her elder daughter i.e. victim, and also saw her daughter
raising her pant upwards. She, therefore, shouted and asked, who he
was and what was he doing. The said person released the hand of her
daughter and turned back. Thereupon, she found that the said person
was Libnus Fransis who was residing nearby her house. He told her that D
he had come to see her husband as he had some work. When he started
leaving, the informant saw that the zip of his pant was open. She,
therefore, started shouting and abusing him. On hearing the shouts, her
neighbours, namely, Chhaya Dnyanbaji Pagade, Sayabai Kailas
Barsagade and Madhuri Santosh Kohchade, came rushing to her house
and in the meantime the said Libnus F. Kujur ran away. When she inquired E
her daughter as to what had happened, her daughter told her that the
said Kujur came home asking about her father. When she told him that
her father had gone to a village and her mother had gone out for the
work, the said Kujur caught her hands and moved her frock upward
with one hand and lowered her pant with the other hand. He, thereafter, F
unzipped his pant and showed his penis to her and then asked her to lay
down on wooden cot. Her daughter, thereafter, started crying. All the
ladies gathered there tried to search the accused but he was not found.
Thereafter, the informant alongwith her minor daughter, and her
neighbours Chhaya Dnyanbaji Pagade and others went to the Gadchiroli
police station to lodge the report against Libnus. The said report of the G
informant came to be registered as the Crime bearing No. 63/2018 at
the said police station for the offences punishable under Sections 354-A
(1)(i) and 448 of the IPC and Sections 8, 10 and 12 read with Section
9(m) and Section 11(i) of the POCSO Act. After the completion of the
investigation, the charge-sheet was filed before the Special Court, Nagpur. H
978 SUPREME COURT REPORTS [2021] 10 S.C.R.

A The Special Court after appreciating the evidence on record passed the
Judgment and Order of Conviction and sentence as stated hereinabove.
9. The High Court in the appeal filed by the accused-Libnus while
setting aside the conviction for the offences under Sections 8 and 10 of
the POCSO Act and maintaining the conviction for the offences under
B Sections 448 and 354-A(1)(i) of IPC read with Section 12 of the POCSO
Act observed as under:
“9. In the case in hand undisputedly, the age of the prosecutrix
is five years. If the offence of ‘sexual assault’ is proved
against the appellant/accused, the prosecutrix, being of age
C below twelve years, the conviction has to be recorded for the
offence of ‘aggravated sexual assault’.
10. The punishment for aggravated sexual assault is
imprisonment of either description for a term which shall not
be less than five years but which may extend to seven years,
D and shall also be liable to fine.
11. The appellant/accused is prosecuted for the charge of
‘aggravated sexual assault’. As per the definition of ‘sexual
assault’ a ‘physical contact with sexual intent without
penetration’ is essential ingredient for the offence. The
E definition starts with the words - “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…….’ The words ‘any other act’ encompasses within itself,
the nature of the acts which are similar to the acts which have
F been specifically mentioned in the definition on the premise
of the principle of ‘ejusdem generis’. The act should be of
the same nature or closure to that. The acts of ‘holding the
hands of the prosecutrix’ or ‘opened zip of the pant’ as has
been allegedly witnessed by PW-1, in the opinion of this Court,
G does not fit in the definition of ‘sexual assault’.
12.The minimum sentence of this offence is five years
imprisonment. Considering the nature of the offence and the
sentence prescribed, the aforesaid acts are not sufficient for
fixing the criminal liability on the appellant/accused for the
alleged offence of ‘aggravated sexual assault’. At the most
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 979
[BELA M. TRIVEDI, J.]

the minor offence punishable under Section 354-A(1) (I) of A
the IPC r/w Section 12 of the POCSO Act is proved against
the appellant.
13. In this view of the matter, the prosecution could establish
that appellant/accused entered into the house of the
prosecutrix with the intention of outraged her modesty or B
sexual harassment as defined u/s 11 of the POCSO Act.
Therefore, the conviction of the appellant/accused for the
offence punishable under Sections 448 and 354-A(1)(i) of
the IPC r/w Section 12 of the POCSO Act is maintained. The
punishment provided for the offence u/s 345-A(1)(i) of the
IPC and Section 12 of the POCSO Act is sentence for a term C
which may extend to 3 years or/and fine or with both. The
punishment for the offence of house trespass is imprisonment
for a term upto one year and fine upto Rs.1000 or with both.
It is informed that till date the appellant/accused has
undergone total imprisonment of about 5 months”. D
10. Being aggrieved by the said Judgment and Order passed by
the High Court, the State of Maharashtra has filed the present appeal.
Submissions:
11. We have heard the learned Attorney General for India Mr. E
K.K. Venugopal, the learned senior advocate Ms. Geeta Luthra appearing
for the National Commission for Women, the learned advocate Mr. Rahul
Chitnis appearing on behalf of the State of Maharashtra, the learned
amicus curiae Mr. Siddharth Dave to assist the Court and the learned
senior advocate Mr. Siddharth Luthra appearing on behalf of The Supreme
Court Legal Services Committee for the accused–Satish and the accused F
Libnus.
12. The learned Attorney General for India, Mr. K.K. Venugopal
expressing grave concern about the manner in which the provisions
contained in the POCSO Act were interpreted by the High Court,
vehemently submitted that such interpretation would lead to devastating G
effect in the society at large. According to him, the High Court could not
have acquitted the accused-Satish mis-interpreting the provisions
contained in Section 7 on the ground that there was no direct physical
contact i.e. skin to skin contact made by the accused with the victim. He
submitted that all the alleged acts of the accused i.e. taking the victim to
H
980 SUPREME COURT REPORTS [2021] 10 S.C.R.

A his house, trying to remove her salwar, pressing her breast and pressing
her mouth when she started shouting, were the acts amounting to “sexual
assault” within the meaning of Section 7 punishable with Section 8 of
the POCSO Act.
13. Supplementing the said submissions made by the learned
B Attorney General, the learned Senior Counsel Ms. Geeta Luthra relied
upon the objects and reasons for enacting the POCSO Act to submit
that since the sexual offences against women were not adequately
addressed by the existing laws, the POCSO Act was specifically enacted
to protect the children from the offences of sexual assault, sexual
harassment and pornography. Ms. Luthra also relied upon the views of
C the Parliamentary Committee appointed for the purpose of examining
the Bill with regard to the Protection of children from sexual harassment
to submit that the sexual offences as defined in Clauses 3 and 7 of the
Bill intended to cover all the likely situations required to be covered
thereunder. Ms. Luthra also relied upon a number of judgments of various
D courts of the United Kingdom and of the United States of America, as
also of this Court to emphasis the legislative intent behind enacting the
POCSO Act. Taking the court to the dictionary meaning of the word
‘touch’, ‘physical contact’ and ‘sexual intent’, she empathetically
submitted that the legislature has interchangeably used the words ‘touch’
and ‘physical contact’ in Section 7 and therefore, restricting the meaning
E of the word ‘physical contact’ to ‘skin to skin contact’ would be a narrow
interpretation of the said provision, defeating the very object of the Act.
She also pointed out that the High Court had grossly erred in applying
the principle of ‘ejusdem generis’, which otherwise should not apply
where it would defeat the object of the enactment. Similarly, according
F to Ms. Luthra, the Rule of Lenity also would not be applicable, there
being no obscurity or uncertainty in the provisions of the POCSO Act.
14. The learned senior advocate Mr. Siddharth Dave, appointed
as an amicus curiae also took the Court to the scheme of the POCSO
Act, and specifically to Sections 2 and 3 to submit that what is important
G for the purpose of Section 7 is “sexual intent”. Bisecting Section 7 into
two parts, Mr. Dave submitted that the first part thereof pertains to the
act of touching with sexual intent the vagina, penis, anus or breast of the
child or making the child touch the said organs of such person or any
other person, and the second part pertains to ‘any other act’ with sexual
intent which involves physical contact without penetration. Thus,
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 981
[BELA M. TRIVEDI, J.]

according to him, in both the limbs of Section 7, the mens rea i.e. culpable A
mental state - the sexual intent of the person accused of the said offence
is very material. Pressing into service Section 29 & 30 of the POCSO
Act, Mr. Dave submitted that the Court is required to presume the
existence of culpable mental state on the part of the accused, and it is
for the accused to prove in defence that he had no such mental state
B
with respect to the act charged as an offence. Mr. Dave also relied
upon the unreported judgments of various High Courts to buttress his
submission that touching in an indecent manner with culpable mental
state, would amount to “sexual assault” within the meaning of Section 7
of the said Act, even though there was no ‘skin to skin contact’ between
the victim and the accused. C
15. Mr. Rahul Chitnis, learned advocate appearing on behalf of
the State of Maharashtra adopting the submissions made by the learned
Attorney General for India, Ms. Geeta Luthra and learned amicus curiae
Mr. Siddharth Dave, submitted that if the interpretation of section 7 of
the POCSO Act made by the High Court is accepted, the very object of D
the Act would be negated.
16. Per contra, Mr. Sidharth Luthra, learned senior advocate
appearing for the accused in both the cases, relied upon various provisions
of the POCSO Act and of the IPC to submit that the offence under
Section 354 of IPC has a different connotation and different effect, E
which could not be incorporated for the purpose of interpreting Section
7 of the POCSO Act. According to him, the phrases ‘sexual intent’,
‘touches’ and ‘physical contact’ have not been defined in the POCSO
Act, however the explanation to Section 11 states that any question which
involves ‘sexual intent’ shall be a question of fact. Placing reliance on
the decision of the Bombay High Court in case of Bandu Vithalrao F
Borwar v/s State of Maharashtra, in Criminal Appeal No. 50 of 2016,
decided on 17.10.2016, he submitted that the expression “sexual intent”
can not be confined to any predetermined format or structure. He further
submitted that unlike POCSO Act, the IPC offence under section 354
uses the terms ‘assault’ and ‘criminal force’. However, since ‘sexual G
assault’ is defined under the POCSO Act, the definition of the words
‘assault’ or ‘criminal force’ contained in IPC cannot be imported into
the POCSO Act, though permitted under section 2(2) of the POCSO
Act. While fairly conceding that the first part of Section 7 of the POCSO
Act, which pertains to the act of touching the private parts of the child,
H
982 SUPREME COURT REPORTS [2021] 10 S.C.R.

A may not require ‘skin to skin contact’, he however submitted that so far
as, the second part i.e. “ the other act with sexual intent which involves
physical contact without penetration” is concerned, ‘the skin to skin
contact’ is required to be proved by the prosecution.
17. As regards the presumption under Sections 29 and 30 of the
B POCSO Act, Mr. Luthra tried to draw an analogy from similar provisions
contained in the NDPS Act and submitted that the presumption and
reverse burden of proof on the accused makes it difficult for an accused
to prove his innocence. Therefore, any interpretation other than the strict
interpretation would expand the scope of the offence and would not
further the constitutional objective of Article 21. In this regard, he has
C placed reliance on the decisions of this Court in the Case of Noor Aga
vs. State of Punjab and Anr1, Sakshi vs. Union of India 2 and R.
Kalyani vs Janak C. Mehta & Ors3.
18. Invoking the Rule of Lenity, Mr. Luthra submitted that this
rule of statutory construction requires a court to resolve statutory
D ambiguity in a criminal statute in favour of the accused or to strictly
construe the statute against the State. In this regard, he has relied upon
the decisions of the United States Supreme Court in the case of “The
United States vs. Wilt Berger4; Connally v. General Construction
Co.5 and in case of United States vs. Kozminski6.
E 19. Mr. Luthra, learned senior counsel also took the Court to the
oral evidence adduced in both the cases and submitted that there were
number of contradictions in the evidence of the informant and the
witnesses examined by the prosecution and that it would be risky to
convict the accused for the alleged offences under the POCSO Act on
F such unreliable and sketchy evidence.
Legal Provisions:
20. Before adverting to the rival submissions made by the learned
counsels for the parties, apt would be to refer to the relevant provisions
of the POCSO Act. As the long title of the Protection of Children from
G Sexual Offence Act, 2012 states, the Act has been enacted to protect
1.
2008 (16) SCC 518
2.
2004 (5) SCC 518
3.
2009 (1) SCC 516
4.
18 US 76 (1820)
5.
269 U.S. 385 (1926)
6.
H 487 U.S. 931 (1988)
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 983
[BELA M. TRIVEDI, J.]

the children from the offences of sexual assault, sexual harassment and A
pornography and provide for establishment of special courts for trial of
such offences and for the matters connected therewith or incidental
thereto.
21. Section 7 pertaining to “sexual assault” reads as under:
“7. Whoever, with sexual intent touches the vagina, penis, B
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. C
22. Section 8 providing for the punishment for sexual assault, reads
as under :
“8 - Whoever, commits sexual assault, shall be punished with
imprisonment of either description for a term which shall not
be less than three years but which may extend to five years, D
and shall also be liable to fine.
23. Section 9 of the Act enumerates as to what is said to commit
aggravated sexual assault. Clause (m) of the said provision being relevant
is reproduced as under:
E
9(m)- whoever commits sexual assault on a child below twelve
years;
24. Section 10 for providing Punishment for aggravated sexual
assault –
“10- whoever, commits aggravated sexual assault shall be F
punished with imprisonment of either description for a term
which shall not be less than five years but which may extend
to seven years, and shall also be liable to fine”.
25. Section 11 pertains to “sexual harassment” - A person said to
commit sexual harassment upon a child when such person with sexual G
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 H
984 SUPREME COURT REPORTS [2021] 10 S.C.R.

A (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;
(iii) to (vi) ……….
Explanation – Any question which involves “sexual intent”
shall be a question of fact.
B
26. Section 12 for providing punishment for sexual harassment
“12 – whoever, commits sexual harassment upon a child shall
be punished with imprisonment of either description for a
term which may extend to three years and shall also liable to
C fine.”
27. Sections 29 and 30 pertaining to the statutory presumptions
read as under:
“29 -When a person is prosecuted for committing or abetting
or attempting to commit any offence under Section 3, 5, 7
D and Section 9 of this Act, the Special Court shall presume,
that such person has committed or abetted or attempted to
commit the offence, as the case may be, unless the contrary is
proved.”
“30 - (1) In any prosecution for any offence under this Act
E which requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence of such
mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the
act charged as an offence in that prosecution.
F (2) For the purposes of this section, a fact is said to be proved
only when the Special Court believes it to exist beyond
reasonable doubt and not merely when its existence is
established by a preponderance of probability”.
Explanation – In this section, “culpable mental state” includes
G intention, motive, knowledge of a fact and the belief in, or
reason to believe, a fact.
Analysis:-
28. In both the cases, the main controversy centers around the
interpretation of Section 7 of the POCSO Act. It is trite saying that
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 985
[BELA M. TRIVEDI, J.]

while interpreting a statute, the courts should strive to ascertain the A
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. As observed by the Supreme
Court in the case of J.P. Bansal vs. State of Rajasthan & Anr. Reported
in AIR (2003) SC 1405, a statute is an edict of the legislature. The
B
elementary principle of interpreting or construing a statute is to gather
the mens or sententia legis, the true intention of the Legislature. It has
been observed therein that :
“12. Interpretation postulates the search for the true meaning
of the words used in the statute as a medium of expression to
communicate a particular thought. The task is not easy as the C
“language” is often misunderstood even in ordinary
conversation or correspondence. The tragedy is that although
in the matter of correspondence or conversation the person
who has spoken the words or used the language can be
approached for clarification, the legislature cannot be D
approached as the legislature, after enacting a law or Act,
becomes functus officio so far as that particular Act is
concerned and it cannot itself interpret it. No doubt, the
legislature retains the power to amend or repeal the law so
made and can also declare its meaning, but that can be done
only by making another law or statute after undertaking the E
whole process of law-making.
…………….
16. Where, therefore, the “language” is clear, the intention
of the legislature is to be gathered from the language used. F
What is to be borne in mind is as to what has been said in the
statute as also what has not been said. A construction which
requires, for its support, addition or substitution of words or
which results in rejection of words, has to be avoided, unless
it is covered by the rule of exception, including that of
necessity, which is not the case here. [See: Gwalior Rayons G
Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests [AIR
1990 SC 1747 at p. 1752, Shyam Kishori Devi v. Patna
Municipal Corpn. [AIR 1966 SC 1678 at p. 1682); A.R.
Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500, at
pp. 518, 519)] . Indeed, the Court cannot reframe the H
986 SUPREME COURT REPORTS [2021] 10 S.C.R.

A legislation as it has no power to legislate. [See: State of Kerala
v. Mathai Verghese [(1986) 4 SCC 746, at p. 749); Union of
India v. Deoki Nandan Aggarwal [AIR 1992 SC 96 at p.
101).]”
29. In the case of Balaram Kumawat Vs. Union of India &
B Ors. reported in (2003) 7 SCC 628, this Court while elaborately
discussing the basic rules of interpretation observed as under:
“20. Contextual reading is a well-known proposition of
interpretation of statute. The clauses of a statute should be
construed with reference to the context vis-à-vis the other
C provisions so as to make a consistent enactment of the whole
statute relating to the subject-matter. The rule of “ex visceribus
actus” should be resorted to in a situation of this nature.
21. In State of W.B. v.Union of India (AIR at p. 1265, para
68), the learned Chief Justice stated the law thus:
D “The Court must ascertain the intention of the legislature by
directing its attention not merely to the clauses to be construed
but to the entire statute; it must compare the clause with the
other parts of the law, and the setting in which the clause to
be interpreted occurs.”
E 22. The said principle has been reiterated in R.S. Raghunath
v. State of Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S)
286 : (1992) 19 ATC 507 : AIR 1992 SC 81] (AIR at p. 89).
23. Furthermore, even in relation to a penal statute any narrow
and pedantic, literal and lexical construction may not always
F be given effect to. The law would have to be interpreted having
regard to the subject-matter of the offence and the object of
the law it seeks to achieve. The purpose of the law is not to
allow the offender to sneak out of the meshes of law. Criminal
jurisprudence does not say so.
G 26. The courts will therefore reject that construction which
will defeat the plain intention of the legislature even though
there may be some inexactitude in the language used. [See
Salmonv. Duncombe[(1886) 11 AC 627 : 55 LJPC 69 : 55 LT
446 (PC)] (AC at p. 634).] Reducing the legislation futility
shall be avoided and in a case where the intention of the
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 987
[BELA M. TRIVEDI, J.]

legislature cannot be given effect to, the courts would accept A
the bolder construction for the purpose of bringing about an
effective result. The courts, when rule of purposive
construction is gaining momentum, should be very reluctant
to hold that Parliament has achieved nothing by the language
it used when it is tolerably plain what it seeks to achieve.
B
[See BBC Enterprises v. Hi-Tech Xtravision Ltd.[(1990) 2 All
ER 118 : 1990 Ch 609 : (1990) 2 WLR 1123 (CA)] (All ER at
pp. 122-23).]”
30. So far as the object of enacting the POCSO Act is concerned,
as transpiring from the statement of objects and reasons, since the sexual
offences against children were not adequately addressed by the existing C
laws and a large number of such offences were neither specifically
provided for nor were they adequately penalized, the POCSO Act was
enacted to protect the children from the offences of sexual assault, sexual
harassment and pornography and to provide for establishment of special
Courts for trial of such offences and for matters connected therewith D
and incidental thereto. While enacting the said Act, Article 15 of the
Constitution which empowers the State to make special provisions for
children, and the Convention on the Rights of the Child, adopted by the
General Assembly of the United Nations, as acceded to by the
Government of India, prescribing a set of standards to be followed by all
the State parties in securing the best interest of the child, were also kept E
in view. The POCSO Bill intended to enforce the rights of all children to
safety, security and protection from sexual abuse and exploitation, and
also intended to define explicitly the offences against children countered
through commensurate penalties as an effective deterrence.
31. Now, from the bare reading of Section 7 of the Act, which F
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. Since the bone of contention is raised by G
Ld. Senior Advocate, Mr. Luthra with regard to the words “Touch”, and
“Physical Contact” used in the said section, it would be beneficial first to
refer to the dictionary meaning of the said words.
32. The word “Touch” as defined in the Oxford Advanced
Learner’s Dictionary means “the sense that enables you to be aware of H
988 SUPREME COURT REPORTS [2021] 10 S.C.R.

A things and what are like when you put your hands and fingers on them”.
The word “physical“ as defined in the Advanced Law Lexicon, 3rd Edition,
means “of or relating to body………..” and the word “contact” means
“the state or condition of touching; touch; the act of touching……”.
Thus, having regard to the dictionary meaning of the words “touch” and
“physical contact”, the Court finds much force in the submission of Ms.
B
Geetha Luthra, learned senior Advocate appearing for the National
Commission for Women that both the said words have been
interchangeably used in Section 7 by the legislature. The word “Touch”
has been used specifically with regard to the sexual parts of the body,
whereas the word “physical contact” has been used for any other act.
C Therefore, the act of touching the sexual part of 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.
33. There cannot be any disagreement with the submission made
by Mr. Luthra for the accused that the expression “sexual intent” having
D 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
E 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.
F 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
G 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
H intent would not amount to an offence of sexual assault under Section 7
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 989
[BELA M. TRIVEDI, J.]

of the POCSO Act. The most important ingredient for constituting the A
offence of sexual assault under Section 7 of the Act is the “sexual intent”
and not the “skin to skin” contact with the child.
34. At this juncture, it may also be beneficial to refer to the
observations made by the Foreign Courts in the judgments cited by Ms.
Geetha Luthra, wherein the said courts while interpreting analogous B
provisions as prevalent in such countries, have held that “skin to skin
contact” is not required to constitute an offence of sexual assault. It is
not the presence or lack of intervening material which should be focused
upon, but whether the contact made through the material, comes within
the definition prescribed for a particular statue, has to be seen. Of course,
the judgments of the said courts proceed on the interpretation arising out C
of the terms defined in the provisions contained in the concerned
legislations and are not pari-materia to the language of Section 7 of the
POCSO Act, nonetheless they would be relevant for the purpose of
interpreting the expression “touch” and “sexual assault”. In Regina v.
H (2005) 1 WLR 2005, the Court of Appeal while interpreting the D
word “touching” contained in Section 3 of the Sexual Offences Act,
2003 as in force in U.K, observed that the touching of clothing would
constitute “touching” for the purpose of said Section 3. Similarly, in State
of Iowa V. Walter James Phipps 442 N.W.2d.611 the Court of Appeals
of Iowa held that a lack of skin-to-skin contact alone does not as a
matter of law put the defendant’s conduct outside the definition of “sex E
act” or “sexual activity”, which has been defined in Section 702.17 of
Iowa Code.
35. The act of touching any sexual part of the body of a child with
sexual intent or any other act involving physical contact with sexual
intent, could not be trivialized or held insignificant or peripheral so as to F
exclude such act from the purview of “sexual assault” under Section 7.
As held by this court in case of Balaram Kumawat Vs. Union of India
(supra), the law would have to be interpreted having regard to the subject
matter of the offence and to the object of the law it seeks to achieve.
The purpose of the law cannot be to allow the offender to sneak out of G
the meshes of law.
36. It may also be pertinent to note that having regard to the
seriousness of the offences under the POCSO Act, the Legislature has
incorporated certain statutory presumptions. Section 29 permits the
Special Court to presume, when a person is prosecuted for committing H
990 SUPREME COURT REPORTS [2021] 10 S.C.R.

A or abetting or attempting to commit any offence under Section 3, 5, 7
and Section 9 of the Act, that such person has committed or abetted or
attempted to commit the offence, as the case may be, unless the contrary
is proved. Similarly, Section 30 thereof permits the Special Court to
presume for any offence under the Act which requires a culpable mental
state on the part of the accused, the existence of such mental state. Of
B
course, the accused can take a defence and prove the fact that he had
no such mental state with respect to the act charged as an offence in
that prosecution. It may further be noted that though as per sub section
(2) of Section 30, for the purposes of the said section, a fact is said to be
proved only when the Special Court believes it to exist beyond reasonable
C doubt and not merely when its existence is established by a preponderance
of probability, the Explanation to Section 30 clarifies that “culpable mental
state” includes intention, motive, knowledge of a fact and the belief in,
or reason to believe, a fact. Thus, on the conjoint reading of Section 7,
11, 29 and 30, there remains no shadow of doubt that though as per the
Explanation to Section 11, “sexual intent” would be a question of fact,
D
the Special Court, when it believes the existence of a fact beyond
reasonable doubt, can raise a presumption under Section 30 as regards
the existence of “culpable mental state” on the part of the accused.
37. This takes the Court to the next argument of Mr. Luthra that
there being an ambiguity, due to lack of definition of the expressions -
E “sexual intent”, “any other act”, “touching” and “physical contact”, used
in Section 7, coupled with the presumptions under Sections 29 and 30 of
the Act, the reverse burden of proof on the accused would make it
difficult for him to prove his innocence and, therefore, the POCSO Act
must be strictly interpreted. In the opinion of the Court, there cannot be
F any disagreement with the said submission of Mr. Luthra. In fact it has
been laid down by this Court in catina of decisions that the Penal Statute
enacting an offence or imposing a penalty has to be strictly construed. A
beneficial reference of the decisions in the case of Sakshi vs. Union of
India reported in (2004) 5 SCC 518, in the case of R. Kalyani vs
Janak C. Mehta & Ors reported in (2009) 1 SCC 516 and in the
G case of State of Punjab v. Gurmeet Singh (2014) 9 SCC 632 be
made in this regard. However, it is equally settled legal position that the
clauses of a statute should be construed with reference to the context
vis-a-vis the other provisions so as to make a consistent enactment of
the whole Statute relating to the subject matter. The Court can not be
H oblivious to the fact that the impact of traumatic sexual assault committed
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 991
[BELA M. TRIVEDI, J.]

on children of tender age could endure during their whole life, and may A
also have an adverse effect on their mental state. The suffering of the
victims in certain cases may be immeasurable. Therefore, considering
the objects of the POCSO Act, its provisions, more particularly pertaining
to the sexual assault, sexual harassment etc. have to be construed vis-a-
vis the other provisions, so as to make the objects of the Act more
B
meaningful and effective.
38. The invocation of “Rule of lenity” at the instance of Mr. Luthra,
learned senior Advocate is also thoroughly misconceived. Placing reliance
on the various judgments of the United States Supreme Court in
case of Ladner vs. United States, 358 US 169; United States vs.
Kozminski, 487 US 931; United States vs. Wiltberger, 18 US 76, C
Mr. Luthra had sought to submit that the “Rule of Lenity” requires a
court to resolve statutory ambiguity in a criminal statute in favour of the
accused, or to strictly construe the statute against the State. The said
submission of Mr. Luthra cannot be accepted in view of the settled
proposition of law that the statutory ambiguity should be invoked as a D
last resort of interpretation. Where the Legislature has manifested its
intention, courts may not manufacture ambiguity in order to defeat that
intent. In this regard, Ms. Geetha Luthra has rightly relied upon the
precise observations made by the Court of Appeal, California, in case of
The People vs. REID II, 246 Cal. App. 4Th, 822 as follows:
E
“[T] he ‘touchstone’ of the rule of lenity ‘is statutory
ambiguity.’ [Citation.]” (Bifulco v. United States (1980) 447
U.S. 381, 387, 100 S. Ct. 2247, 65 L.ED.2d 205.) “ ‘the rule
… applies only if the court can do no more than guess what
the legislative body intended; there must be an egregious
ambiguity and uncertainty to justify invoking the rule.’ “ F
(People v. Avery (2002) 27 Cal. 4Th 49, 58, 115 Cal. Rptr.2d
403, 38 P.3d 1.) “Where the Legislature has manifested its
intention, courts may not manufacture ambiguity in order to
defeat that intent.” (Bifulco v. United States supra, at p. 387,
100 S. Ct. 2247.) Additionally, “ambiguities are not interpreted G
in the defendant’s favor if such an interpretation would
provide an absurd result, or a result inconsistent with apparent
legislative intent. (People v. Cruz (1996) 13 Cal. 4 Th 764, 783,
55 Cal. Rptr. 2D 117, 919 P. 2d 731.)”

H
992 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 39. It is also trite that a court should not be over zealous in searching
for ambiguities or obscurities in words which are plain. (IRC vs.
Rossminster Ltd. (1980) 1 AllER 80). So far as the provisions contained
in Section 7 of the POCSO Act are concerned, the court does not find
any ambiguity or obscurity so as to invoke the Rule of Lenity.
B Conclusion:
40. In the light of the afore-discussed legal position, if the findings
recorded by the High Court are appreciated, it clearly emerges that the
High Court fell into error in case of the accused-Satish in holding him
guilty for the minor offences under Sections 342 and 354 of IPC and
C acquitting him for the offence under Section 8 of the POCSO Act. The
High Court while specifically accepting the consistent versions of the
victim and her mother i.e. informant about the accused having taken the
victim to his house, having pressed the breast of the victim, having
attempted to remove her salwar and pressing her mouth, had committed
gross error in holding that the act of pressing of breast of the child aged
D 12 years in absence of any specific details as to whether the top was
removed or whether he inserted his hands inside the top and pressed her
breast, would not fall in the definition of sexual assault, and would fall
within the definition of offence under Section 354 of the IPC. The High
Court further erred in holding that there was no offence since there was
E no direct physical contact i.e. “skin to skin” with sexual intent.
41. The interpretation of Section 7 at the instance of the High
Court on the premise of the principle of “ejusdem generis” is also
thoroughly misconceived. It may be noted that the principle of “ejusdem
generis” should be applied only as an aid to the construction of the
F statute. It should not be applied where it would defeat the very legislative
intent. As per the settled legal position, if the specific words used in the
section exhaust a class, it has to be construed that the legislative intent
was to use the general word beyond the class denoted by the specific
words. So far as Section 7 of the POCSO Act is concerned, the first
part thereof exhausts a class of act of sexual assault using specific words,
G and the other part uses the general act beyond the class denoted by the
specific words. In other words, 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, would
be committing an offence of “sexual assault”. Similarly, whoever does
H any other act with sexual intent which involves physical contact without
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 993
[BELA M. TRIVEDI, J.]

penetration, would also be committing the offence of “sexual assault” A
under Section 7 of the POCSO Act. In view of the discussion made
earlier, the prosecution was not required to prove a “skin to skin” contact
for the purpose of proving the charge of sexual assault under Section 7
of the Act.
42. The surrounding circumstances like the accused having taken B
the victim to his house, the accused having lied to the mother of the
victim that the victim was not in his house, the mother having found her
daughter in the room on the first floor of the house of the accused and
the victim having narrated the incident to her mother, were proved by
the prosecution, rather the said facts had remained unchallenged at the
instance of the accused. Such basic facts having been proved by the C
prosecution, the Court was entitled to raise the statutory presumption
about the culpable mental state of the accused as permitted to be raised
under Section 30 of the said Act. The said presumption has not been
rebutted by the accused, by proving that he had no such mental state.
The allegation of sexual intent as contemplated under Section 7 of the D
Act, therefore, had also stood proved by the prosecution. The Court,
therefore, is of the opinion that the prosecution had duly proved not only
the sexual intent on the part of the accused but had also proved the
alleged acts that he had pressed the breast of the victim, attempted to
remove her salwar and had also exercised force by pressing her mouth.
All these acts were the acts of “sexual assault” as contemplated under E
section 7, punishable under Section 8 of the POCSO Act.
43. So far as the case of the other accused-Libnus is concerned,
the High Court vide its impugned judgment and order, while maintaining
the conviction of the accused for the offences punishable under sections
448 and 354-A(1)(i) of the IPC read with Section 12 of the POCSO F
Act, has acquitted the accused for the offence under Sections 8 and 10
of the POCSO Act. Pertinently the High Court while recording the finding
that the prosecution had established that the accused had entered into
the house of the prosecutrix with the intention to outrage her modesty,
also held that the acts “holding the hands of the prosecutrix” or “opened G
the zip of the pant” did not fit in the definition of sexual assault. In the
opinion of the Court, the High Court had fallen into a grave error in
recording such findings. When the alleged acts of entering the house of
the prosecutrix with sexual intent to outrage her modesty, of holding her
hands and opening the zip of his pant showing his penis, are held to be
H
994 SUPREME COURT REPORTS [2021] 10 S.C.R.

A established by the prosecution, there was no reason for the High Court
not to treat such acts as the acts of “sexual assault” within the meaning
of Section 7 of the POCSO Act. The High Court appears to have been
swayed away by the minimum punishment of five years prescribed for
the offence of “aggravated sexual assault” under Section 10 of the
POCSO Act as the age of the prosecutrix was five years and the sexual
B
assault if committed on the victim who is below 12 years is required to
be treated as the “aggravated sexual assault” as per Section 9(m) of the
Act. However, neither the term of minimum punishment nor the age of
the victim could be a ground to allow the accused to escape from the
clutches of Section 7 of the POCSO Act. The alleged acts of the accused
C in entering the house of the prosecutrix with sexual intent to outrage her
modesty, holding her hands and unzipping his pant showing his penis to
the prosecutrix having been held to be proved by the prosecution, they
would certainly be the acts falling within the purview of the “sexual
assault” as contemplated in the second part of Section 7 i.e. “……… or
does any other act with sexual intent which involves physical contact
D
without penetration”. The Court, therefore, has no hesitation in holding
that the accused-Libnus had committed an offence of “sexual assault”
within the meaning of Section 7 of the POCSO Act and the prosecutrix
being below the age of 12 years, he had committed an offence of
“aggravated sexual assault” as contemplated under Section 9(m) of the
E said Act, liable to be punished with the imprisonment for a term not less
than five years under Section 10 of the POCSO Act. In that view of the
matter, the judgment and order of the High Court insofar as it has set
aside the conviction of the accused-Libnus for the offences under Section
8 and 10 of the POCSO Act is liable to be set aside, and the judgment
and order of conviction and sentence passed by the Special Court is
F
required to be restored.
Order
44. In the aforesaid premises, the judgments and orders dated
19.01.2021 and 15.01.2021 passed by the High Court of Judicature at
G Bombay, Nagpur Bench, at Nagpur in Criminal Appeal No. 161 of 2020
and Criminal Appeal No. 445 of 2020 respectively are hereby quashed
and set aside; and the judgments and orders dated 05.02.2020 and
05.10.2020 passed by the Extra Joint Additional Sessions Judge, Nagpur
in Special Child Protection Case No. 28 of 2017 and by the Special
Court, Gadchiroli in POCSO Case No. 07/2019 are restored.
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 995
[BELA M. TRIVEDI, J.]

45. Accordingly, the accused-Satish is hereby convicted for the A
offences punishable under Section 8 of the POCSO Act and under
Sections 342, 354 and 363 of the IPC. He is directed to undergo rigorous
imprisonment for a period of three years and to pay fine of Rs.500/- and
in default thereof to suffer simple imprisonment for a period of one month
for the offence under Section 8 of the POCSO Act. Since he has been
B
sentenced for the major offence under Section 8 of the POCSO Act, no
separate sentence is imposed upon him for the other offences under the
IPC.
46. The accused-Libnus s/o Fransis Kujur is hereby convicted for
the offences punishable under Sections 354-A (1)(i) and 448 of the IPC
as also for the offences under Sections 8, 12 and 10 read with Section C
9(m) of the POCSO Act. He is directed to undergo rigorous imprisonment
for a period of five years for the offence under Section 10 of the POCSO
Act and to pay fine of Rs. 25,000/- (Rupees twenty five thousand only)
and in default thereof to suffer simple imprisonment for a period of six
months. Since he has been sentenced for the major offence under Section D
10 of the POCSO Act, no separate sentence is being imposed upon him
for the other offences under the IPC and the POCSO Act.
47. Both accused – Satish and Libnus are directed to surrender
themselves before the concerned Special Courts, within four weeks from
today. E
48. Before parting, it may be noted that in the case of the accused-
Libnus, the State of Maharashtra while filing the Appeal before this
Court had not produced the certified copy of the judgment of the High
Court, however, had produced a copy of a certified copy, wherein the
High Court had recorded acquittal of the accused for the offence under F
Sections 8, 10 and 12 of the POCSO Act, while maintaining his conviction
under Sections 448 and 354-A(1)(i) of the IPC, whereas in the copy of
the impugned judgment of the High Court downloaded by the respondent-
accused produced on record by the learned Advocate for the accused,
the High Court had recorded the conviction of the accused for the offence
under Sections 448 and 354-A(1)(i) of the IPC read with Section 12 of G
the POCSO Act. There being a discrepancy in the said two copies of
the impugned judgment of the High Court, the learned Advocate for the
respondent-accused had filed an I.A. bringing to the notice of the Court
about such discrepancy. The Court, therefore, had vide its order dated
27.10.2021 directed the Registrar of the High Court to send the certified
H
996 SUPREME COURT REPORTS [2021] 10 S.C.R.

A copy of the decision of the High court dated 15.01.2021 passed in Criminal
Appeal No. 445 of 2020. Accordingly, the Assistant Registrar of the
High Court of Bombay, Nagpur Bench, has sent the certified copy of
the said judgment.
49. It is very surprising to note that the Registry of High Court of
B Bombay, Nagpur Bench, has certified the copy of the impugned judgment
by affixing the stamp on the back side of every page of the judgment
which is blank. The said copy of the judgment appears to have been
downloaded from the website and, therefore, does not bear even the
signature or the name of the concerned judge at the end of the judgment.
The certificate that the said copy is a true copy of the judgment, is also
C not written at the foot of the judgment as contemplated in Section 76 of
the Indian Evidence Act. Such a practice, if followed by the Nagpur
Bench of the Bombay High Court, may allow the miscreants to manipulate
or commit mischief in the judicial orders which are used as the public
documents having great significance in the judicial proceedings. The
D Registrar General of the Bombay High Court, therefore, is directed to
look into the matter and ensure that proper procedure for preparing the
certified copies of the judgments/orders of the Court in accordance with
law is followed.
50. All the five appeals stand disposed of accordingly.
E 51. It will be failure on our part if we do not extend gratitude of
appreciation for the enormous assistance rendered by learned Senior
Advocate Mr. Siddhartha Dave, learned Amicus Curiae, Mr. Siddharth
Luthra, learned Senior Advocate, appearing on behalf of the accused
through Supreme Court Legal Services Committee, Ms. Geetha Luthra,
learned Senior Advocate appearing for National Women Commission
F and all other advocates who have appeared in the matter.
The initiative taken by the learned Attorney General for India Mr.
K.K. Venugopal in filing the appeal with all sense of expressing his concern
in the cause also deserves to be appreciated.
ORDER
G S. RAVINDRA BHAT, J.
1. I begin this concurring opinion with a preface that I completely
and unreservedly agree with the findings and conclusions recorded in
the comprehensive judgment of Justice Bela Trivedi. I also hasten to
add that I deem this effort not as an attempt to speak for the sake of
H speaking, and thereby adding little value to Justice Trivedi’s analysis, but
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 997
[S. RAVINDRA BHAT, J.]

only essentially to point to a slightly different direction, which is the need A
to interpret the statute in the context of the circumstances that resulted
in its birth.
2. The judgments under appeal remind one of a passage from
Lewis Caroll’s Alice in Wonderland, where he describes what words
(or expressions) mean and whether they have an intrinsic meaning at all: B
“When I use a word,” Humpty Dumpty said in rather a
scornful tone, “it means just what I choose it to mean—neither
more nor less.”
“The question is,” said Alice, “whether you can make words
mean so many different things.” C
“The question is,” said Humpty Dumpty, “which is to be
master—that’s all.”
3. To place the matter in perspective, what is in issue is the true
interpretation of the expression “with sexual intent touches the vagina,
D
penis, anus or breast of the child” at someone’s behest. Such an act,
under Section 7 of the Protection of Children from Sexual Offences
Act, 2012 (“POCSO” hereafter) is an offence of sexual assault, and
punishable under Section 8. According to the interpretation placed by
the High Court, for any act to be an offence, the touching of any of the
parts mentioned by the statute (vagina, penis, anus or breast) must be of E
the organ, and there should be a “skin to skin” contact.
4. I do not see the need to recount the facts or the arguments,
which have been fairly and accurately set out in Trivedi, J’s judgment.
Instead, I proceed with the task of interpretation of provisions of POCSO,
and the proper rule of interpretation which should be adopted in such F
cases. Long ago, in Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd. & Ors.1 this court observed the need
to contextualise the provisions of any law which requires interpretation,
even while focussing on its text:
“If a statute is looked at, in the context of its enactment, with G
the glasses of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words may take
colour and appear different than when the statute is looked
at without the glasses provided by the context. With these
1
(1987) 1 SCC 424 H
998 SUPREME COURT REPORTS [2021] 10 S.C.R.

A glasses we must look at the Act as a whole and discover what
each section, each clause, each phrase and each word is
meant and designed to say as to fit into the scheme of the
entire Act. No part of a statute and no word of a statute can
be construed in isolation. Statutes have to be construed so
that every word has a place and everything is in its place.”
B
5. The question then is whether “touching” has an intrinsic meaning,
as Alice said, or whether it means only something that judges say it
means, no more, no less.
6. One time tested and well accepted mode of interpreting a
C statute, especially a new statute, is to apply the “mischief rule” – first
spoken of in Heydon’s case2 which contains a four-point formula, acting
as an aid in construing a new law or provision. These are firstly, what
was the common law before the making of the Act; secondly what was
the mischief and defect for which the common law did not provide;
thirdly what remedy Parliament resolved and appointed to cure the
D disease plaguing the society; and lastly the true reason of the remedy.
The judgment in Heydon’s case also emphasised that courts always
have to interpret the law so as to suppress the mischief, and advance the
remedy, and to suppress subtle inventions and evasions for continuance
of the mischief, and pro privato commodo, and to add force and life to
E the cure and remedy, according to the true intent of the makers of the
Act, pro bono publico. This rule was approved, and its purport explained,
in Kanwar Singh v. Delhi Administration3 thus:
“It is the duty of the court in construing a statute to give
effect to the intention of the legislature. If, therefore, giving a
F literal meaning to a word used by the draftsman, particularly
in a penal statute, would defeat the object of the legislature,
which is to suppress a mischief, the court can depart from the
dictionary meaning or even the popular meaning of the word
and instead give it a meaning which will advance the remedy
and suppress the mischief.”
G
7. The aim of such statutory construction was put, pithily and
simply in Swantraj & Ors. v. State of Maharashtra4:

2
76 ER 637
3
1965 (1) SCR 7
4
H (1975) 3 SCC 322
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 999
[S. RAVINDRA BHAT, J.]

“Every legislation is a social document and judicial A
construction seeks to decipher the statutory mission, language
permitting, taking the cue from the rule in Heydon’s(1) case
of suppressing the evil and advancing the remedy.”
8. This court recollects its decision in Eera v. State (NCT of Delhi)5
where the mischief rule was commended and applied, specifically in B
relation to POCSO.
9. To gather the mischief which Parliament wished to eliminate, it
would be necessary to briefly trace the history of the law, which existed
before POCSO was enacted. The Indian Penal Code (“IPC” hereafter)
criminalizes assault or use of criminal force which outrages a woman’s C
modesty (by Section 354). The expression “criminal force” is defined in
Section 350 and “assault” is defined in Section 351. These require an
element of application of physical force, to women. The expression
“modesty” was another limitation as older decisions show that such a
state was associated with decorousness6 of women. This added a
dimension of patriarchy and class.7One cannot be unmindful of the D
circumstances in which these provisions were enacted by a colonial
power, at a time, when women’s agency itself was unacknowledged, or
had limited recognition. Further, women in India were traditionally - during
the time of enactment of IPC, in the mid nineteenth century - subordinated
to the care of their fathers, or their husbands, or other male relatives. E
They had no share in immovable property; notions of gender equality
were unheard of, or not permitted. Women had no right to vote. Quite
naturally, the dignity of women – or indeed their autonomy, was not
provided for.
10. The advent of the Constitution of India revolutionized- at least F
in law, all that. Regardless of gender, race, caste, religion or region, or all
of the acknowledged sectarian and discrimination enabling barriers,
5
2017 (15) SCC 133
6
Rupan Deol Bajaj v. K.P.S Gill (1995) 6 SCC 194
7
Section 354 (or any other provision of the IPC) does not offer a statutory definition
of the term ‘modesty’, and over time, was interpreted broadly, contemporaneously
G
with the developing and acknowledged role of women in society, to overcome its
inherently colonial and patriarchal origins. Yet, there were hangovers, as noticed as
recently as in Kalias & Ors. v. State of Maharashtra (2011) 1 SCC 293 wherein the
abhorrent argument that a tribal woman’s ‘modesty’ was distinct owing to the
‘inferiority’ of tribal people who live in torn clothes or no proper clothes was rejected
for being totally unacceptable in modern India. H
1000 SUPREME COURT REPORTS [2021] 10 S.C.R.

A everyone enjoyed equality of law, and equal protection of law (Article
14). Further, the provision in Article 15 (1) proscribed discrimination by
the state (in all its forms) on various grounds, including gender. Article
15 (3) enabled the state to enact special provisions for women and
children.
B 11. The limitations in law in dealing with acts that undermined the
dignity and autonomy of women and children, ranging from behaviour
that is now termed “stalking” to pornography, or physical contact, and
associated acts, which were not the subject matter of any penal law,
were recognized and appropriate legislative measures adopted, in other
countries.8 These have been alluded to in Trivedi, J’s judgment, in detail.
C These laws contain nuanced provisions criminalizing behaviour that
involve unwanted physical contact of different types and hues, have the
propensity to harass and discomfit women and minors (including minors
of either sex), or demean them.
12. In India, the Law Commission’s 146th report (1993), 156th
D report (1997) and 172nd report (2000) dealt with some of these and
associated issues. The 172nd report recommended changes to the
definition of rape, expanding its scope, and also incorporating the expanded
definition of sexual assault. These, and India’s ratification of the UN
Convention on the Rights of Children, 1992 (which required nation states
E to adopt suitable legislation to combat coercion of children in sexual
activity, exploitative use of children and children’s exploitation for
pornography), formed the background and basis for enacting POCSO.
The Statement of Objects and Reasons for POCSO, cites the UN
Convention, and further states that:

F “ …The data collected by the National Crime Records Bureau
shows that there has been increase in cases of sexual offences
against children. This is corroborated by the “study on child
abuse: India 2007” conducted by the Ministry of Women and
Child Department. Moreover, sexual offences against children
are not adequately addressed by the extent laws. A large
G
8
Sections 2, 3, 6, 7 and 78 of the UK Sexual Offences Act, 2003; Part V: Sexual
Offences, Public Morals and Disorderly Conduct (Sections 151-153), Criminal Code,
1985 of the Dominion of Canada, Section 5, 6, 7, 15 of the Criminal Law (Sexual
Offences and related matters) (Amendment) Act, 2007, enacted by the Republic of
South Africa and amendments to laws enacted by the New South Wales, Victoria and
New York Penal Laws by their legislatures.
H
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 1001
[S. RAVINDRA BHAT, J.]

number of such offences are neither specifically provided for A
nor are they adequately penalized. The interests of the child,
both as a victim as well as a witness, need to be protected.
It is felt that offences against children need to be defined
explicitly and countered through commensurate penalties as
an effective deterrence. It is, therefore, proposed to enact a B
self-contained comprehensive legislation inter-alia to provide
for protection of children from the sexual offences and
pornography with due regard for safeguarding the interest
and well-being of the child at every stage of the Judicial
process, incorporating child friendly procedures for reporting,
recording of evidence, investigation and trial of offences and C
provision for establishment of Special Courts for speedy trial
of such offences.” 9
13. Parallelly, it would be useful to notice that the IPC was sought
to be amended; through the introduction of a Bill in 2012, which for
some reason, did not see the light of the day; instead, the amendments D
were made, through an Ordinance10 which was later replaced by a
Parliamentary Act.11 These amendments enhanced the punishment for
certain offences (including Section 354) and introduced new offences
engrafted into the IPC, such as sexual harassment (Section 354A) which
is an offence involving unwelcome sexual advances or physical contact, E
demand or request for sexual favours, forceful exhibition of pornography
to women or making sexually coloured remarks; assault or use of criminal
force to woman with intent to disrobe (Section 354B), or abets the doing
of such act; voyeurism (Section 354C) which is defined as the act of a
man watching or capturing the image of a woman engaged in private
activities (e.g. undressing), when the woman presumes she is assured F
of privacy and does not expect anyone to be watching; stalking (Section
9
The statement of objects and reasons was noticed by this court in Alakh Alok
Shrivastava v. Union of India (2018) 17 SCC 291 where the court observed that
“The POCSO Act has been legislated keeping in view the fundamental concept
under Art. 15 of the Constitution that empowers the state to make special
provisions for children and also Article 39(f) which provides that the state shall
G
in particular direct its policy towards securing that the children are given
opportunities and facilities to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.”
10
Criminal Law (Amendment) Ordinance, (No. 3) of 2013
11
Criminal Law (Amendment) Act, (Act No. 13) of 2013 H
1002 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 354D) which means following a woman and making or attempting to
make contact (either physically or through electronic media) for personal
interaction, despite a clear disinterest being displayed by the woman.
14. With this backdrop, one has to analyse the provisions of
POCSO. Its Chapters II and III outline the different kinds of sexual
B offences from which children need protection. Part A of Chapter II
addresses penetrative sexual assault on a child under Section 3 of the
Act. Part B deals with circumstances in which such penetrative sexual
assault assumes an ‘aggravated’ nature, under Section 5 of the Act.
Part C defines sexual assault under Section 7 of the Act. Part D deals
with aggravated sexual assault under Section 9 of the Act. Part E
C outlines sexual harassment under Section 11 of the Act. Chapter III
deals with using a child for pornographic purposes.
15. The punishment for these offences is directly proportionate to
the severity of the offence. Penetrative sexual assault (Section 3) is
punishable by imprisonment of not less than ten years which may extend
D to imprisonment for life, in addition to payment of fine under Section 4;
aggravated penetrative sexual assault (Section 5) carries a rigorous
imprisonment term of twenty years which may extend to the natural life
of the offender under Section 6. Sexual assault (Section 7) carries
imprisonment of not less than three years, and can be extended up to
E five years with fine under Section 8; aggravated sexual assault (Section
9) is punished by imprisonment of not less than five years and up to
seven years with fine under Section 10; and sexual harassment (Section
11) is punished by a term which may extend up to three years with fine
under Section 12. Punishment for using a child for pornographic purposes
involves an imprisonment term of not less than five years and fine for a
F first-time offence, and up to seven years for a repeated offence.
16. The punishment is also inversely proportionate to the autonomy
exercisable by the child, with offences against children below the age of
12 years falling under the ‘aggravated’ nature, thus subject to greater
terms of imprisonment and fine. Sexual assault is also of an ‘aggravated’
G nature under Sections 5 and 9 of the Act when committed by a person in
a position of authority or those exercising authority over children in their
care. These sections provide a long list of examples, including police
officer, member of armed for security forces, public servants,
management personnel, or personnel of a jail, remand home, protection
H home, observation home, management or staff of a hospital, management
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 1003
[S. RAVINDRA BHAT, J.]

or staff of an educational institution or religious institution; relative of the A
child through blood or adoption or marriage or guardianship or in foster
care or having a domestic relationship with a parent of the child or who
is living in the same or shared household with the child; in the ownership,
or management, or staff, of any institution providing services to the child;
position of trust or authority of a child, etc.
B
17. Section 7 of POCSO, which is the provision involved, therefore,
has to be viewed having regard to the mischief rule, the background and
history leading up to the enactment of the legislation (including the
amendments to IPC in 2013) and to its objects. It reads as follows:
“7. Sexual assault- C
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.” D
18. A plain reading of Section 7 would show that the expression
“assault” has a meaning entirely removed from the definition of “assault”
in Section 351 of IPC. The latter involves an overt gesture, or
preparation by one person, that causes another to apprehend that the
former would use criminal force upon the intended victim. The emphasis E
of Section 7 is to address the felt social need of outlawing behaviour
driven by sexual intent.
19. The structure of Section 7 can be conveniently parsed in the
following manner:
“Whoever, F
i. 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,
ii. or does any other act with sexual intent which involves G
physical contact without penetration
is said to commit sexual assault.”
20. A close analysis of Section 7 reveals that it is broadly divided
into two limbs. Sexual assault, under the first limb is defined as the H
1004 SUPREME COURT REPORTS [2021] 10 S.C.R.

A touching by a person - with sexual intent - of four specific body parts
(vagina, penis, anus or breast) of a child, or making a child touch any of
those body parts of “such person” (i.e. a clear reference to the offender)
or of “any other person” (i.e. other than the child, or the offender). In
the second limb, sexual assault is the doing of “any other act with
sexual intent which involves physical contact without penetration”.
B
21. The use of the expression “touch” appears to be common, to
the first and second parts, of the first limb. “Touch” says the Cambridge
Dictionary12 is
“to put your hand or another part of your body lightly onto
C and off something or someone.”
22. Collins Dictionary13, likewise, states that
“Your sense of touch is your ability to tell what something is
like when you feel it with your hands.”

D 23. “Contact” on the other hand, which is used in the second limb,
has a wider connotation; it encompasses - but is not always limited to –
‘touch’. While it is not immediately apparent why the term ‘physical
contact’ has been used in the second limb, its use in conjunction with
“any other act” (controlled by the overarching expression “with sexual
intent”), indicates that ‘physical contact’ means something which is of
E wider import than ‘touching’. Viewed so, physical contact without
penetration, may not necessarily involve touch. The “other act” involving
“physical contact” may involve: direct physical contact by the offender,
with any other body part (not mentioned in the first limb) of the victim;
other acts, such as use of an object by the offender, engaging physical
F contact with the victim; or in the given circumstances of the case, even
no contact by the offender (the expression “any other act” is sufficiently
wide to connote, for instance, the victim being coerced to touch oneself).
24. Parliamentary intent and emphasis, however, is that the
offending behavior (whether the touch or other act involving physical
contact), should be motivated with sexual intent. Parliament moved
G
beyond the four sexual body parts, and covered acts of a general nature,
which when done with sexual intent, are criminalized by the second limb
12
https://dictionary.cambridge.org/dictionary/english/touch accessed at 16:55
hrs on 15.11.2021.
13
https://www.collinsdictionary.com/dictionary/english/touch accessed at 16:57
H hours on 15.11.2021.
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 1005
[S. RAVINDRA BHAT, J.]

of Section 7. The specific mention of the four body parts of the child in A
the first limb, and the use of the controlling expression “sexual intent”
mean that every touch of those four body parts is prima facie suspect.
25. The circumstances in which touch or physical contact occurs
would be determinative of whether it is motivated by ‘sexual intent’.
There could be a good explanation for such physical contact which include B
the nature of the relationship between the child and the offender, the
length of the contact, its purposefulness; also, if there was a legitimate
non-sexual purpose for the contact. Also relevant is where it takes place
and the conduct of the offender before and after such contact. In this
regard, it would be useful to always keep in mind that “sexual intent” is
not defined, but fact-dependent – as the explanation to Section 11 C
specifies.
26. The inference by the High Court that “touch” cannot
necessarily involve contact with a child’s sexual body parts (in one of
these cases, the breast) through clothes, is based on a disingenuous
argument. Unsurprisingly, that argument had its roots in other jurisdictions. D
In Regina v H14 the UK Court of Appeal, whilst interpreting the words
“touching includes (a) with any part of the body; (b) with anything
else or (c) through anything, and in particular, includes touching
amounts to penetration”per Section 79 (8) of the UK Sexual Offences
Act, repelled an argument on that the individual accused of an act in E
relation to a victim, that involved grabbing “her track-bottoms by the
area of the right pocket” was not “touching”. It was observed by the
court, that
“The opening words of section 79 (8) are “Touching includes
touching” and in particular “through anything”. Subsection F
(8) is not a definition section. We have no doubt that it was
not Parliament’s intention by the use of that language to make
it impossible to regard as a sexual assault touching which
took place by touching what the victim was wearing at that
time.”
G
27. Likewise, in State of Iowa v Walter James Fippes15 as well
as State of Iowa v Kris Kanon Pearson16 the court had to consider
whether a “sex act” or “sexual activity” (criminalised by Section 709.1,
14
2005 (1) WLR 2005
15
442 NW 2d 611 (Iowa App. 1989).
16
514 NW 2d 452 (Iowa 1994). H
1006 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 709.3 and 709.17) meant only sexual contact between two or more
persons, i.e., through penetration, mouth and genitalia or by contact
between genitalia of one person and that of another. In both the judgments,
the argument that contact or touch through clothing did not amount to an
offence, was decisively rejected. The test indicated (per Pearson) was
that prohibited contact occurs when: (i) specified body parts or substitutes
B touch and (ii) intervening material would not prevent participants, viewed
objectively, from perceiving that they had touched. Interestingly, in these
decisions one comes across the argument that what is an offence is one
that involves direct or “skin to skin” touch or contact.
28. These decisions only serve to highlight at once the human
C ingenuity in their making in like situations, as well as the limit of such
creativity- given that it is repetitive. Therefore, as noted earlier,
unsurprisingly, an argument that direct contact (opposed to an indirect
contact which can be perceived by the victim) found favour with High
Court. In my opinion, such an interpretation not merely limits the operation
of the law, but tends to subvert its intention. It has the effect of
D “inventions and evasions” meant to continue the mischief, which
Parliament wished to avoid.
29. The fallacy, therefore, in the High Court’s reasoning is that it
assumes that indirect touch is not covered by Section 7- or in other
words is no “touch” at all. That provision covers and is meant to cover
both direct and indirect touch. In plain English, to touch is to engage in
E one of the most basic of human sensory perceptions. The receptors on
the surface of the human body are acutely sensitive to the subtleties of
a whole range of tactile experiences. The use of a spoon, for instance,
to consume food - without touching it with the hand - in no way diminishes
the sense of touch that is experienced by the lips and the mouth. Similarly,
when a stick, or other object is pressed onto a person, even when clothed,
F their sense of touch is keen enough to feel it. Therefore, the reasoning in
the High Court’s judgment quite insensitively trivializes - indeed legitimizes
- an entire range of unacceptable behaviour which undermines a child’s
dignity and autonomy, through unwanted intrusions. The High Court,
therefore clearly erred in acting on such interpretation, and basing its
conviction of and awarding sentence to the respondents; as it did they
G
were guilty of sexual assault. In the case of Satish, the conviction is to
be under Section 8. In the case of Libnus, the appropriate conviction is
of aggravated sexual assault, under Section 10.
30. During the hearing, a few decisions of High Courts were cited.
In Dulal Dhar v. State of Tripura17the complained act was of grabbing
H 17
2015 SCC Online Trip 188
ATTORNEY GENERAL FOR INDIA v. SATISH AND ANOTHER 1007
[S. RAVINDRA BHAT, J.]

the victim, forcibly kissing her and trying to undress her. The judgment A
noted that touching of the named parts was not the only set of acts that
were criminalized, and remarked that “the legislature in its wisdom
has used very wide language which states that ‘does any other act
with sexual intent which involves physical contact’….pulling the
girl’s uniform involves physical contact with sexual intent.”
B
31. Similarly, the Tripura High Court decision in Tushar Singha
v. State of Tripura18 and judgments of Delhi High Court in Jitender v.
State19 and Rakesh v. State (GNCTD)20 consistently held that touching
the breast of a child victim constituted sexual assault under Section 7,
punishable under Section 8. In all these judgments, the courts uniformly
highlighted the ‘sexual intent’ of the offender. I am of the opinion that C
those judgments (of the Tripura and Delhi High Court) have correctly
interpreted the law, having regard to the overall Parliamentary intent,
which led to the enactment of POCSO.
32. Another reason why the High Court’s reasoning in the
impugned judgment is unacceptable is that the term ‘contact’ is
comprehended in the expression ‘force’ under Section 349 of IPC in D
such manner, that the causing to any substance motion, change of motion,
etc. which “brings that substance into contact with any part of that
other’s body, or with anything which that other is wearing or
carrying, or with anything so situated that such contact affects that
other’s sense of feeling”.21 Section 2(2) of POCSO enacts that “The
E
words and expressions used herein and not defined but defined in
the Indian Penal Code (45 of 1860), the Code of Criminal Procedure,
18
Crl. (A) J/2/2020, decided on 04.05.21
19
Crl. (A) 564/2019 decided on 19.03.20
20
2018 SCCOnline Del 1179
21
349. Force.—A person is said to use force to another if he causes motion, change of F
motion, or cessation of motion to that other, or if he causes to any substance such
motion, or change of mo-tion, or cessation of motion as brings that substance into con
-tact with any part of that other’s body, or with anything which that other is wearing
or carrying, or with anything so situated that such contact affects that other’s sense of
feeling: Provided that the person causing the motion, or change of motion, or cessation
of motion, causes that motion, change of motion, or cessation of motion in one of the
three ways hereinafter de-scribed.
G
First— By his own bodily power.
Secondly—By disposing any substance in such a manner that the motion or change or
cessation of motion takes place without any further act on his part, or on the part of
any other person.
Thirdly— By inducing any animal to move, to change its motion, or to cease to move.
H
1008 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 1974 (2 of 1974), [the Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016)] and the Information Technology
Act, 2000 (21 of 2000) shall have the meanings respectively assigned
to them in the said Codes or the Acts”.The idea of ‘contact’ by a
person with another through their clothing would hence, imply a physical
contact. This is because of a combined operation of Section 2(2) of
B
POCSO and Section 349 of IPC. Crucially, neither Section 7 nor any
other provision of POCSO even remotely suggests that ‘direct’ physical
contact unimpeded by clothing is essential for an offence to be committed.
33. In the end, I cannot resist quoting Benjamin Cardozo that
“the great tides and currents which engulf the rest of men do not
C turn aside in their course and pass the judges by.” It is, therefore, no
part of any judge’s duty to strain the plain words of a statute, beyond
recognition and to the point of its destruction, thereby denying the cry of
the times that children desperately need the assurance of a law designed
to protect their autonomy and dignity, as POCSO does.
D 34. I concur with the reasons and conclusions recorded by Justice
Bela Trivedi, and with the additional observations indicated above, agree
that the appeals of the Attorney General and the National Commission
for Women, should be allowed; the appeals of the accused should, likewise,
be dismissed in the two appeals filed against the judgment of the Bombay
E High Court, Nagpur Bench. Accordingly, I agree with the modification
of conviction and the sentences imposed on the accused, Satish and
Libnus. The appeals are disposed of in the above terms.
35. At the end, I would record my gratitude and appreciation for
the invaluable assistance provided by Mr. K.K. Venugopal, learned
F Attorney General for India, Mr. Siddharth Luthra, learned Senior
Advocate appearing on behalf of the accused through Supreme Court
Legal Services Committee, and the amicus curiae appointed by the Court
Mr. Siddhartha Dave, learned Senior Advocate as also all other learned
counsel who have assisted the Court in these proceedings.

G
Nidhi Jain Appeals disposed of.

H