Bombay High Court ruled that there must be skin-to-skin contact with sexual intent for an act to be considered a sexual assault under the POCSO Act.
According to LiveLaw, "the case was registered after the complaint was lodged by the girl's mother, who said that she saw the accused, whose pants zip was opened, holding her daughter's hands. She further testified that her daughter informed her that the appellant/accused removed his pant and asked her to come to the bed for sleeping".
Justice Ganediwala ruled that this act will not come under the definition of "sexual assault" POSCO Act 2012. However, the Court held that such acts would amount to "sexual harassment" under Section 354-A(1)(i) of the Indian Penal Code. According to POCSO, 'sexual assault', when committed against a child aged less than 12 years, it will become 'aggravated sexual assault' under Section 10. "But because the offense of 'aggravated sexual assault' has a minimum sentence of five years imprisonment, the Court said that allegations are not sufficient to fix criminal liability on the accused for that offense under Section 10 POCSO," reported LiveLaw.
Earlier on January 19, Justice Ganediwala had acquitted a man charged under the POCSO Act and again convicted him under ‘minor offence’ of IPC as, “There is no direct physical contact i.e skin-to-skin with sexual intent without penetration”. But the Attorney General for India, K K Venugopal, brought this judgment to the attention of the Supreme Court and said that the judgment is "unprecedented" and will set a "dangerous precedent". Subsequently, the Supreme Court stayed the acquittal under the POSCO Act.