POCSO Act Is Gender Neutral, Misleading To Argue ‘It Is Gender-Based Legislation And Is Being Misused’: Delhi High Court

The Delhi High Court has observed that the Protection of Children from Sexual Offences Act, 2012, is a gender-neutral legislation and that it is insensitive to argue that the law is being misused.

While dealing with a POCSO case where the accused submitted that the enactment is a gender-based law and therefore is being misused, Justice Swarana Kanta Sharma said:

“To say the least, POCSO Act is not gender based and is neutral as far as victim children are concerned. Moreover, to argue that the legislation is being misused and using the language such as “as the complainant by keeping a gun on her minor daughter’s shoulder had implicated the applicant in the present case so as to coerce him to re-pay a friendly loan that he had taken from her husband” (as mentioned in the petition) have been found to be most insensitive by this Court.”

Observing that any law, whether gender based or not, has the potential of being misused, the court added that the legislature cannot stop enacting laws nor judiciary can stop applying them only because they can be misused.

“The contentions of learned counsel for the petitioner in the pleadings as well as during oral arguments that the legislation of POCSO Act is a gender based legislation and therefore is being misused is not only inappropriate but misleading too,” the court said.

The court was hearing the accused’s plea challenging a trial court order dismissing his application to recall the minor victim, who was aged seven years at the time of incident, and her mother.

The FIR was registered in 2016 against the accused alleging that he committed rape on her. The examination-in-chief and cross-examination of the minor and her mother was concluded on October 20, 2018.

Dismissing the plea, the court said: “The victim, being only of seven years of age having gone through this repeated trauma on number of occasions and period mentioned above, cannot be directed to appear once again after six years to depose about the same incident, only on the ground that the previous counsel had cross-examined the witness in a manner which the new counsel does not find sufficient or appropriate.”

The court observed that it would have been a different decision in case the record would have revealed that the witnesses’ cross-examination consisted of only asking few formal questions and not of the incident. However, it added, the cross examination was conducted at length in the matter in hand.

“In view of the same, though the accused has to be granted and ensured a fair trial, it cannot mean being afforded unjustified repeated opportunities of cross-examination in every case to indicate fair trial. The case of an accused has to be meritorious where a relief as prayed for in the present case, can be granted,” the court said.

It added: “The child victim in this case has re- lived the trauma of perverse sexual assault upon her at a very tender age of seven years, once, when she was sexually assaulted, thereafter while recording her statement before the police and under Section 164 Cr.P.C. before the Magistrate and thereafter before the learned Trial Court while recording her evidence.”

Title: RAKESH v. STATE OF NCT OF DELHII & ANR.

Citation: 2023 LiveLaw (Del) 665

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