New Delhi: The Delhi High Court has held that the offences of penetrative sexual assault and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act are gender-neutral and it can also be invoked against a woman.
High Court was hearing a plea filed by a woman challenging a trial court order framing charges against her for under POSCO Act
Justice Anup Jairam Bhambhani held this while dismissing a plea filed by a woman challenging a trial court order framing charges against her under Section 6 (punishment of aggravated penetrative sexual assault) of the POSCO Act.
“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,” the High Court 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,” the High Court added.
While the petitioner woman argued that the offences of penetrative sexual assault and aggravated penetrative sexual assault cannot be invoked against a woman, the State argued that the definition of penetrative sexual assault under section 3 and of aggravated penetrative sexual assault in section 5 of the POCSO Act is not limited to the offence of rape.
Word ‘he’ appearing in section 3 of POCSCO Act cannot be given a restrictive meaning: High Court
“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,” Justice Bhambhani said.
What did the petitioner argue?
The counsel appearing for the petitioner argued that 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 of the POCSO Act 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”. The counsel further argued that the intent of the legislature was only to make a man liable for the offence under section 3 of the POCSO Act and since section 3 of the POCSO Act has no application to a woman, section 5 of the POCSO Act, which refers only to an aggravated form of the offence under section 3, can also apply only to a man and not to a woman.
The petitioner’s counsel placed emphasis on the definition of rape under sections 375 and 376 of the Indian Penal Code (IPC) and submitted that the definition of rape appearing in 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.
Opening line of section 375 of IPC specifically refers to a ‘man’ whereas opening line of section 3 of POCSO Act refers to a ‘person’: High Court
The High Court said that 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 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 a “male‟. It is accordingly held that the acts mentioned in 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 said and added, “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.”
