Offence Of 'Penetrative Sexual Assault' Under POCSO Act Can Be Invoked Against Woman, Not Restricted To Male Offender: Delhi High Court

The Delhi High Court on Friday held that the offences of penetrative sexual assault and aggravated penetrative sexual assault under the POCSO Act are offences regardless of the gender of the offender and can be invoked against a woman also.

Justice Anup Jairam Bhambhani held that the word “he” in Section 3 of the POCSCO Act (penetrative sexual assault) cannot be given a restrictive meaning to say that it refers only to a male but, must include within its ambit any offender irrespective of gender of the offender.

The court noted that the definition of aggravated penetrative sexual assault under Section 5 of the POCSO Act is a consequential definition arising from the offence of penetrative sexual assault defined under Section 3.

Noting that the pronoun “he” is not defined anywhere in the POCSO Act, the court held:

“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 said: “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.”

Justice Bhambhani further deliberated on the issue of the definition of rape under the Indian Penal Code being pari materia with the definition of „penetrative sexual assault‟ in the POCSO Act.

“In the opinion of this court, a comparison of the offence defined in section 375 of the IPC (on the one hand) and in sections 3 and 5 of the POSCO Act (on the other) shows that the offences so defined are different. Though the acts that form the gravamen of the offence in section 375 of the IPC are the same as those in sections 3 and 5 of the POCSO Act, the opening line of section 375 specifically refers to a “man” whereas the opening line of section 3 refers to a “person”,” the court said.

It added: “The scope and meaning of the word “man” appearing in section 375 of the IPC is not under consideration of this court in the present proceedings. But there is no reason why the word “person” appearing section 3 of the POCSO Act should be read as referring only to amale‟. 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.”

The court made the observations while dismissing plea moved by a woman challenging the trial court order framing charges against her under Section 6 of the POCSO Act (punishment of aggravated penetrative sexual assault).

The court observed that considering the harsh punishment prescribed for the offence in question, the delay, if any, in the registration of the FIR would not warrant quashing of the charge framed against the petitioner woman.

It said that even if in the opinion of the doctor and as per the statement of the child, there was no sexual intent on the part of the petitioner woman, that opinion and statement is required to be tested in the course of trial and was not sufficient to discharge her at this stage.

“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,” the court said.

Title: SUNDARI GAUTAM v. STATE OF NCT OF DELHI

Citation: 2024 LiveLaw (Del) 893

Click Here To Read Order