POCSO ACT IS GENDER NEUTRAL: WOMEN ALSO LIABLE

 

POCSO Act is gender neutral: WOMEN ALSO LIABLE

The Protection of Children from Sexual Offences Act, 2012 („POCSO Act‟ ( In short ‘Pocso Act) was enacted for dealing with the sexual offences against children. The POCSO Act has evolved over the period of time vide judicial precedents. Recently, Delhi High Court in a matter captioned as SUNDARI GAUTAM Vs State of NCT of Delhi bearing no. Crl Rev 852/2024 on 5^th August 2024 have dealt with comprehensively, if a women also could be tried under the POCSO Act or a woman shall be insulated from any proceedings under the POCSO Act.

In the aforesaid case, on behalf of petitioner, following submissions were made:

 

(i)          The alleged incident that is the subject matter of the FIR dates back to 17.07.2018,  but the FIR was registered after 04 years after the date of the alleged commission of the offence; and as there is inordinate and unexplained delay in registering F.I.R, therefore, the same is vitiated.

(ii)        The material collected during investigation, the chargesheet itself records that no intent of sexual assault can be attributed to the petitioner; and that absent any sexual intent, no purpose would be served by putting the petitioner through trial.

(iii)        The offence of “penetrative sexual assault” as defined in section 3 of the POCSO Act, and therefore the offence of “aggravated penetrative sexual  assault” appearing in section 5 thereof, can never be made-out against a woman, since a plain reading of the definition in section 3 shows that it only, and repeatedly, uses the pronoun „he‟; meaning thereby that the intent of the Legislature was only to make a man liable for the offence under section 3 of the POCSO Act.

(iv)       According to petitioner, since , section 3 has no application to a woman and still further,  section 5 of the Act refers only to an aggravated form of the offence under section 3, can also apply only to a man and not to a woman. Moreover, the definition of „rape‟ under sections 375 and 376 of the Indian Penal Code, 1860 („IPC‟) is in pari materia with the definition of penetrative sexual assault’ in section 3 of the POCSO Act; and that therefore an offence under section 3 of the POCSO Act can only be committed by a man just as an offence under section 375 of the IPC.

 

The reliance was placed on a judgment rendered by Supreme Court in Independent Thought vs. Union of India & Anr. (2017) 10 SCC 800 1 wherein it has been held that

“… …there is no real distinction between the definition of “rape” under IPC and the definition of “penetrative sexual assault” under the POCSO Act… ”

 

Per Contra, the Submissions on behalf of the state was as under:

 

(i)          That the delay in registration of the FIR was by reason of the fact that the victim was admitted to Safdarjung Hospital, New Delhi for treatment; and after considering the nature of the injuries sustained by the child victim, she was then referred to an NGO. Thereafter, a counselor from the Child Welfare Committee („CWC‟) recorded the victim‟s statement and the matter was referred to the concerned Juvenile Justice Board („JJB‟).

Therefore, only after completion of these proceedings, the FIR came to be registered.

(ii)     The medical evidence in the case has corroborated the testimony of the child victim recorded by the counsellor on 07.09.2018, which was soon after the date of the alleged incident. Reliance was placed on a subsequent medical opinion obtained by the investigating officer which states that

“… …[t]he possibility of penetrative sexual assault cannot be ruled out.”

 

(ii)        The POCSO Act and its applicability is gender neutral and holds perpetrators, regardless of their gender, accountable for sexual offences against minors.  The word “person” appearing at the beginning of section 3 of the POCSO Act, uses of that word at the beginning of the definition shows that the offence defined therein is not to be construed in a narrow sense and must include women offenders as well.

ANALYSIS BY HIGH COURT

(i)             The High Court having analysed the submissions has held that, though, the time taken in the proceedings before the CWC and the JJB does not require any explanation. It was noticed that that despite JJB-II having issued a direction on 04.09.2019 to the S.H.O. P.S.: Govindpuri, Delhi to register the FIR, the FIR only came to be registered on 15.10.2022, i.e. more than 03 years later. Thus, there was no material delay in registering F.I.R.

(ii)        The High Court has observed that under section 6 of the POCSO Act, the offence of „aggravated penetrative sexual assault‟ is punishable with a minimum sentence of rigorous imprisonment of 20 years, which may also extend to life imprisonment; and the Legislature has also considered it necessary to emphasise, that for purposes of section 6, life imprisonment shall mean imprisonment for the remainder of natural life of the convict. Considering the harsh punishment prescribed for the offence under section 6, the delay, if any, in the registration of the FIR would, in any case, not warrant quashing of the charge framed against the petitioner.

(iii)       The high court went on to highlight that charge has been framed against the petitioner under section 6 of the POCSO Act (which is the punishment section for the offence under  section 5 of the POCSO Act), in line with the decision of this court in Dharmander Singh vs. State (NCT of Delhi 2020 SCC OnLine Del.

 

(iv)  The statutory presumption embedded in section 29 of the POCSO Act gets trigged. Section 29 reads as follows :

29. Presumption as to certain offences.—

Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 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.

 

(v)         It was held that neither the opinion of the doctor, nor the statement of the petitioner’s 06-year-old son (who is stated to have been present at the time of commission of offence), nor any observation in the chargesheet is sufficient to displace the statutory presumption under section 29 or to negate the petitioner’s intention in relation to the offence alleged; and such a finding can only be made by the court based upon evidence that would be adduced before it, after witnesses have deposed in the course of the trial.

(vi)         The high court has held in para 21 that:

“21. The object and purpose of enacting a special legislation for protecting the rights of a child has been explained by a 03-Judge Bench of the Supreme Court in Attorney General for India vs. Satish & Anr. And other connected matters (2022) 5 SCC 545  in the following words :

“33. 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 laws and a large number of such offences were neither specifically provided for nor were they adequately penalised, 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 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 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.”

 

(vii)     The Delhi High Court in Sundari Gautam (Supra) has thus held in para 22 & 23 that:

“22. It is clear that the pronoun “he‟ is not defined anywhere in the POCSO Act. In view of the provision of section 2(2) of the POCSO Act, one must fall back upon the definition of that pronoun as it appears in section 8 of the IPC. Giving due regard to the fact that the Legislature enacted the POCSO Act in order to provide protection to children from sexual offences – regardless of whether an offence is committed upon a child by a man or a woman – the court must not interpret any provision of the statute that derogates from the legislative intent and purpose”.

 

“23. When viewed from this lens, the only rational inference is that the pronoun „he‟ appearing in section 3(a), 3(b), 3(c) and 3(d) must not be so interpreted as to restrict the offence engrafted in those sections only to a „man‟. It is extremely important to note that the said provisions include within the ambit of penetrative sexual assault, the insertion of any object or body-part; or the manipulation of any body part of a child to cause penetration; or the application of the mouth. It would therefore be completely illogical to say that the offence contemplated in those provisions refers only to penetration by a penis”.

 

                                  CONCLUSION

According to Delhi High Court in Sundari Gautam (Supra), a comparison of the offence defined in section 375 of the IPC vis a vis and in sections 3 and 5 of the POSCO Act  will reflect that the offences so defined therein are different. Though the pith and substance of the offence in section 375 of the IPC are the same as those in sections 3 and 5 of the POCSO Act, but, it is worthwhile to note that, the opening line of section 375 specifically refers to a “man” whereas the opening line of section 3 refers to a “person”. The scope and meaning of the word “man” appearing in section 375 of the IPC. But there is no reason why the word “person” appearing under section 3 of the POCSO Act should be read as referring only to a “male‟. The high court thus held that the acts mentioned sections 3 and 5 of the POCSO Act are an offence regardless of the gender of the offender provided the acts are committed upon a child.

 

The High Court, on a conjoint reading of the foregoing provisions of the POCSO Act, has thus held that the word „he‟ appearing in section 3 of the POCSCO Act cannot be given a restrictive meaning, to say that it refers only to a „male‟; but must be given its intended meaning, namely that it includes within its ambit any offender irrespective of their gender.

The Delhi High Court has thus concluded as under:

“27. As a sequitur to the above, on a prima-facie consideration of the material placed on record along with the chargesheet, in the opinion of this court, the offence of “aggravated penetrative sexual assault‟ is made-out against the petitioner, even though she is a woman; and the petitioner is therefore required to be put to trial for the offences as charged”.

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                                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com