A Woman Who Commits 'Penetrative Sexual Assault' On A Child Can Be Prosecuted Under POCSO Act: Delhi HC
The Delhi High Court observed that a woman can be put on trial for the offence of aggravated penetrative sexual assault under the POCSO Act.
The Court explained that the pronoun ‘he’ under the POCSO Act is not restricted only to a ‘male,’ but includes any offender irrespective of their gender. Consequently, the Bench dismissed a woman’s (petitioner) petition who sought the dismissal of charges of aggravated penetrative sexual assault under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) arguing that a woman under the POCSO Act cannot commit the offence.
A Single Bench of Justice Anup Jairam Bhambhani observed, “On a conjoint reading of the foregoing provisions of the POCSO Act, it is accordingly 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.”
Advocate Piyush Sachdev appeared for the petitioner, while APP Utkarsh represented the respondent.
The FIR registered against the petitioner alleged sexual assault upon a 6-year-old minor boy (petitioner’s son). The petitioner submitted that the FIR was registered four years after the alleged incident. The petitioner argued that the delay was inordinate and unexplained, thus vitiating the proceedings.
The most critical argument made by the petitioner was that the POCSO Act's definition of "penetrative sexual assault" under Section 3, and by extension Section 5, which dealt with aggravated forms of this offence, used the pronoun ‘he,’ indicating that the law was intended to apply only to male offenders. The defence compared this with the IPC’s definition of rape, which can only be committed by a man.
These submissions were countered by the State which argued that the POCSO Act is a gender-neutral legislation and holds perpetrators, regardless of their gender, accountable for sexual offences against minors.
The Bench clarified that the pronoun ‘he’ appearing in Sections 3(a), 3(b), 3(c) and 3(d) of the POCSO Act must not be so interpreted as to restrict the offence 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 bodypart 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,” the Court remarked.
Upon comparison of the offences defined in Section 375 of the IPC and in Sections 3 and 5 of the POSCO Act, the Court stated that though the acts that form the gravamen of the offences are the same, the opening line of Section 375 specifically refers to a “man” whereas the opening line of Section 3 refers to a “person”.
The Court observed that “there is no reason why the word “person” appearing section 3 of the POCSO Act should be read as referring only to a „male‟. It is accordingly 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.”
Consequently, the Court held, “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.”
Accordingly, the High Court dismissed the petition.
Cause Title: Sundari Gautam v. State Of NCT Of Delhi (Neutral Citation: 2024:DHC:5944)
Appearance:
Petitioner: Advocates Piyush Sachdev, Raja Chatterjee, Ayushi Arora, Anupama Gupta and Riya Datta
Respondent: APP Utkarsh