‘Ss. 3 and 5 of the POCSO Act are offences regardless of gender of offender’; Delhi HC puts woman to trial for committing ‘aggravated penetrative sexual assault’

Delhi High Court: In a revision petition filed under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973¹ (‘CrPC’) against an order dated 14-03-2024 wherein a charge was framed against the petitioner by the Additional Sessions Judge, Saket Court, New Delhi under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), a Single Judge Bench of Anup Jairam Bhambhani, J. held that the acts mentioned in Sections 3 and 5 of the POCSO Act were an offence regardless of the gender of the offender.

Background

The petitioner contended that the incident which formed the subject matter of the First Information Report (‘FIR’) dated back to 17-07-2018 but the FIR was registered around 4 years after the commission of the alleged offence and was therefore, vitiated by inordinate and unexplained delay.

The petitioner referred to the charge-sheet which mentioned that no intent of sexual assault could be attributed to herand argued that this observation was based on the statement of her 6-year-old son apart from the investigation done and the opinion of the doctor involved in the matter.

The petitioner further submitted that the offence of ‘aggravated penetrative sexual assault’ appearing in Section 5 of the POCSO Act could never be made out against a woman since the definition of ‘penetrative sexual assault’ in Section 3 only uses the pronoun ‘he’ which meant that the intent of the Legislature was only to make a man liable for the offence under Section 3 and since Section 5 was only an aggravated form of the offence, it would also only be applicable to a man.

The State submitted that the POCSO Act is a gender-neutral legislation and holds perpetrators accountable for sexual offences against minors regardless of their gender. The State referred to the word ‘person’ appearing at the beginning of Section 3 and submitted that the offence defined therein was not to be construed in a narrow sense and must include women offenders as well.

Analysis and Decision

The Court noted that even after the direction of JJB-II to the S.H.O of Govindpuri Police Station to register the FIR on 04-09-2019, the FIR only came to be registered on 15-10-2022 i.e., more than three years later.

The Court stated that delay in registration of an FIR could not be a ground for the discharge of an accused. Further, considering the seriousness of the allegations and the nature of the case, the Court said that it could not allow the present revision petition on the grounds that there was a delay in the registration of FIR.

The Court considered the harsh punishment prescribed for ‘aggravated penetrative sexual assault’ under Section 6 which is a minimum sentence of rigorous imprisonment of 20 years extendable to life imprisonment and said that the delay in the registration of the FIR would not warrant quashing of the charge framed against the petitioner.

The Court stated that since the charge against the petitioner had been framed under Section 6 of the POCSO Act, the statutory presumption embedded in Section 29 of the POCSO Act was triggered. Further, the Court opined that since the petitioner had challenged the very order that framed the charge, no observation made in the charge sheet was sufficient to displace the statutory presumption under Section 29 or to negate the petitioner’s intention in relation to the offence alleged.

The Court said that while exercising revisional jurisdiction, it could not opine on the weight or validity of the evidence based on which the trial court had framed the charge.

Further, the Court stated that the definition of ‘aggravated penetrative sexual assault’ under Section 5 was a consequential definition which arose from the offences of ‘penetrative sexual assault’ defined in Section 3 of the POCSO Act.

The Court said that it was clear that the pronoun ‘he’ was not defined anywhere in the POCSO Act. It was also stated that giving due regard to the fact that the Legislature enacted the POCSO Act to protect children from sexual offences regardless of whether the offence was committed by a man or a woman.

The Court stated that the pronoun ‘he’ which appears in Sections 3(a), 3(b), 3(c), and 3(d) must not be interpreted to restrict the offence only to a ‘man’. Further, the Court said that these provisions include 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 within the ambit of penetrative sexual assault. Thus, the Court said that it would be completely illogical to say that the provision refers only to penetration by a penis.

The Court opined that a comparison of the offence defined in Section 375 of the Indian Penal Code, 1860² with Sections 3 and 5 of the POCSO Act showed that the offences so defined are different. The Court said that the opening line of Section 375 specifically referred to a ‘man’ whereas the opening line of Section 3 referred to a ‘person’.

Further, the Court stated that there was no reason why the word ‘person’ appearing in Section 3 of the POCSO Act should be read as referring only to a ‘male’. Accordingly, the Court held that the word ‘he’ mentioned in Section 3 of the POCSO Act could not be given a restrictive meaning to say that it only refers to a ‘male’ but must be given its intended meaning that it includes within its ambit any offender irrespective of their gender.

On a prima facie consideration of the material placed on record along with the charge-sheet, the Court opined that the offence of ‘aggravated penetrative sexual assault’ was made out against the petitioner, even though she was a woman and dismissed the petition.

[Sundari Gautam v. State (NCT of Delhi), 2024 SCC OnLine Del 5412, Decided on 09-08-2024]

Advocates who appeared in this case :

For Petitioner — Advocate Piyush Sachdev, Advocate Raja Chatterjee, Advocate Ayushi Arora, Advocate Anupama Gupta, Advocate Riya Datta

For Respondent — APP Utkarsh

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