The interpretation of non-penetrative acts under POCSO clarifies limits on physical contact, reaffirming that mere hand-holding does not constitute sexual assault.

2 Jabalpur: 15/02/2021 Mr. Madan Singh, Ld. Counsel for the applicant in M.Cr.C. No.

6849/2021.

Mr. Sharad Verma, Ld. Counsel for the applicants in M.Cr.C. No.

8408/2021.

Mr. Jasneet Singh Hora, Ld. Panel Lawyer for the State. With consent of the parties, the matter is heard finally. For the sake of brevity, the facts stated in M.Cr.C. No.6849/2021 are being taken into consideration for deciding both these anticipatory bail applications, as both the cases arises out from the same crime number registered at the same Police Station for the same offences.

2. The applicants are apprehending their arrest in connection with Crime No.52/2021 for offences punishable under sections 452, 354, 354-A, 354-D, 294, 506/34 of the I.P.C. as also U/s.7/8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”), registered at Police Station-

Kotwali, District-Damoh.

3. The applicants are seeking anticipatory bail in the aforesaid case. Offences U/s.294, 354A, 354D and 506 of the I.P.C. are bailable offences. However, the offences U/s.452 and 354 of the I.P.C. as also Section 8 of the POCSO Act, are non-bailable offences.

4. Learned counsel for the State while opposing the applications for grant of anticipatory bail to the applicants has read out from the 164 statement of the prosecutrix. The date of incident is 19.01.2021. In the 164 statement, the prosecutrix states that the applicant Aom Tiwari used to pursue her along with the other co- accused persons, whose names she came to know on account of the applicant Aom Tiwari calling out the co-accused persons by their names. She says that the accused persons use to harass her and seek her phone number. On 19.01.2021, she says that the applicant Aom Tiwari (in M.Cr.C. No.6849/2021) along with other accused persons Sushobhit Jain and Samarpit Jain (applicants in M.Cr.C. No.8408/2021) entered her house and applicant Aom Tiwari caught her hand with an evil intent (not elaborated) and abused her. At that juncture, her parents came and objected to their behaviour when the applicants verbally abused the parents of the prosecutrix and thereafter went away from there.

5. As regards the offence sexual assault u/s. 7 of the POCSO, it is made punishable u/s. 8. The substantive section laying down the actus reus requirement for the offence of sexual assault on children is Section 7 . of the POCSO reads as under.

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.

Section 7 is in two parts. The first part mandatorily requires physical contact/touch with sexual intent, of the vagina, penis, anus or breast of the child. It is also committed when the offender makes the child touch the vagina, penis, anus or breast of such person or any other person. It is gender neutral as regards the victim and the offender and age of the victim is the essence (where the victim must be below eighteen years of age). There is no difficulty in interpreting the same and the mere physical contact with any of the parts of the anatomy of the child specified therein, results in the commission of the offence, subject to proof of sexual intent. The second part is where the offender does any act with sexual intent which involves physical contact without penetration, there also the offence of sexual assault is committed. In both the parts, the requirement of mens rea is essential.

6. There is a question that the second part of section 7 raises and the same is with regard to “any other act w