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 5th 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”.
---------
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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