POCSO Act is gender neutral; most insensitive to say it is being misused: Delhi High Court

The Delhi High Court recently observed that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is gender neutral and it is ‘most insensitive’ and misleading to suggest that the legislation is being misused [Rakesh v State of NCT of Delhi & Anr]. .Justice Swarana Kanta Sharma said that any law whether gender based or not, has the potential of being misused but that does not mean that the legislature should stop enacting those laws and judiciary should stop applying them.“Any law, whether gender based or not, has the potential of being misused. However, only because laws can be misused, the legislature cannot stop enacting laws nor judiciary can stop applying such laws since they have been enacted to curb the larger menace of commission of such offences and getting justice to genuine victims,” the Court underlined..Justice Sharma was dealing with a plea filed by a man accused of sexual assault of a seven-year-old girl in 2016 and charged with several offences under the POCSO Act as well as Sections 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code (IPC).The accused Rakesh had approached the High Court challenging the trial court order rejecting his application under Section 311 of the Code of Criminal Procedure (CrPC). The petitioner had sought directions to re-call the survivor and her mother on the ground that their cross-examination conducted earlier was just for the sake of formality..After considering the case, the Court said that six years have passed since the testimonies of the prosecutrix and her mother were recorded before the trial court.The Court further noted that child-victim has relived 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 CrPC before the Magistrate and then before the trial court while recording her evidence.“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,” Justice Sharma held.The Court, therefore, rejected the plea..Advocate Hitesh Thakur appeared for the petitioner Rakesh.State was represented through Additional Public Prosecutor (APP) Manoj Pant..[Read Order]