Mumbai, December 3: The Bombay high court (HC) last week observed that the charge of sexual assault under the Protection of Children from Sexual Offences (Pocso) Act, 2012 is not attracted unless it is shown that the act was committed with sexual intent and granted anticipatory bail to a Pune resident, accused of tearing off clothes of a minor and touching her inappropriately while physically assaulting her.

Justice Bharati Dangre granted pre-arrest bail to Omkar Gaikwad primarily on the grounds that nothing in the first information report (FIR), registered with Chaturshringi police station at Pune on October 20, indicated that the accused had committed the acts with sexual intent, the Hindustan Times reported.

The complainant, a 20-year-old woman, alleged that her family had a dispute with Gaikwad over leave and license agreement with respect to a shop and had exchanged legal notices over the same.

In this backdrop, the complainant alleged that Gaikwad barged in their house along with his wife and two others on October 19, and started assaulting her parents. 

Later, she alleged, Gaikwad also assaulted her and her younger sister, a 17-year-old. She further alleged that during the assault, the accused ripped off her and her minor sister’s clothes and touched them inappropriately.

In view of these allegations, police had applied section 7 of Pocso Act under which a person is booked for committing sexual assault with sexual intent and touching private parts of a child or making the child touch the private part of such person.

With regards to the charge under the section, Justice Dangre said so far as the complainant’s younger sister was concerned, Gaikwad was accused of assaulting her during which he touched her chest and private part and made her fall on the ground.

“Prima facie, the offence under section 7 and the punishment under Section 8 of the Pocso Act would not be attracted unless and until sexual intent is specifically proven,” said the judge. “This is a matter of trial, since FIR does not make out any sexual intent,” she added.

The court granted anticipatory bail to the Pune resident, observing that “prima facie, in absence of the sexual intent being exhibited by the applicant and in the backdrop of the agreement, which possibly is a point of discord between the parties, the applicant is entitled for protection in anticipation of his arrest.”

In case of arrest, he has been ordered to be released on furnishing personal bond in the sum of ₹25,000 and one or two sureties in the same amount.

Noted lawyer Abha Singh said the HC rightly granted pre-arrest bail to accused. She asserted that there was a dispute with regards the shop which was the bone of contention and the assault was a result of the dispute. In a fit of rage the accused might have pushed, pulled or assaulted the minor. This does not appear to be sexual assault as the acts are not committed with sexual intent. This can at the most be “affray” as contemplated under the Indian Penal Code, but certainly not a sexual assault, she said adding that “sexual intent” is a specific requirement of section 7 of Pocso Act, and in such cases, police have to be extra cautious.

Agreeing with the view, advocate Wahab Khan said that in cases like this, intention plays a crucial part. “There have been cases where Pocso Act is misused whereby false cases are registered to settle in other disputes. Pocso Act is majorly misused in matrimonial disputes. In such circumstances, the court is required to see if there was an intention to sexually abuse the girl or an incident happened because of an accident,” he added.

Intention to sexually abuse minor is an important ingredient of the offence in question, said advocate Prakash Salsingekar who has handled several cases under Pocso Act.

“For instance, if a man and a minor are walking along and he touches the minor, every such touch will not be punishable under section 7. It will be a punishable offence only when the touch or the act is done with sexual intent,” said Salsingekar. “If the man accidentally touches the minor because of rush or inadequate space etc., it would not be considered as an offence,” he added.

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