In a significant legal development, the Delhi High Court, on 9th August 2024, delivered a landmark judgment addressing crucial issues concerning the applicability of the Protection of Children from Sexual Offences (POCSO) Act, 2012, to female offenders. The case involved a petitioner challenging charges framed under Section 6 of the POCSO Act for allegedly committing aggravated penetrative sexual assault.
Legal Issues:
The petitioner raised three primary legal arguments:
1. Delay in FIR Registration: The petitioner contended that the FIR was registered four years after the alleged incident, arguing that this delay was inordinate and unexplained, thereby vitiating the process.
2. Absence of Sexual Intent: The defense argued that the chargesheet itself recorded that no intent of sexual assault could be attributed to the petitioner, based on the statement of the petitionerโs 6-year-old son, who was present during the alleged incident, and the opinion of the examining doctor.
3. Applicability of POCSO Act to Women: The most significant legal argument was that the POCSO Act, specifically the provisions related to penetrative sexual assault, could not be applied to a female offender, as the Act repeatedly uses the pronoun “he.”
Courtโs Decision:
Justice Anup Jairam Bhambhani, delivering the judgment, systematically addressed each of these contentions:
1. On Delay in FIR Registration: The court acknowledged the delay but emphasized that the delay in itself could not be grounds for discharging the accused, particularly in a case involving serious allegations under the POCSO Act. The court noted that the ASJ had already sought an explanation from the police officials responsible for the delay, and this matter did not warrant the quashing of charges.
2. On Absence of Sexual Intent: The court ruled that the statutory presumption under Section 29 of the POCSO Act, which presumes the guilt of the accused unless proven otherwise, was triggered once charges were framed. The court asserted that the opinions of the doctor and the statements of the petitionerโs son would need to be tested during the trial and could not form the basis for discharging the accused at this stage.
3. On the Applicability of POCSO Act to Women: In a crucial interpretation of the law, the court held that the POCSO Act is gender-neutral and applies to offenders regardless of their gender. Justice Bhambhani noted that the pronoun “he,” as used in the POCSO Act, must be interpreted in line with Section 8 of the Indian Penal Code, which includes both males and females. The court firmly rejected the argument that the POCSO Actโs provisions on penetrative sexual assault could only apply to men, ruling that women could also be charged under these sections.
Observations:
Justice Bhambhani emphasized the legislative intent behind the POCSO Act, which was designed to protect children from sexual offenses irrespective of the offenderโs gender. The court observed, โThe word โheโ appearing in Section 3 of the POCSO Act cannot be given a restrictive meaning to say that it refers only to a male; it must be given its intended meaning, namely that it includes within its ambit any offender irrespective of their gender.โ
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Case Details:
The petitioner, represented by a team of advocates, challenged an order issued by the Additional Sessions Judge (ASJ) of Saket Courts, New Delhi. The ASJ had framed charges against the petitioner based on a chargesheet alleging the commission of offenses under Section 6 of the POCSO Act. The State was represented by the Additional Public Prosecutor (APP), assisted by a police officer.
