Penetrative Sexual Assault under POCSO Act can be invoked against women too: Delhi High Court

The Delhi High Court recently held that the offence of ‘penetrative sexual assault’ and ‘aggravated penetrative sexual assault’ under the Protection of Children from Sexual Offences Act (POCSO Act) can be made out against both men and women [Sundari Gautam v State of NCT of Delhi]. .In an order passed on August 9, Justice Anup Jairam Bhambhani said that on a conjoint reading of the POCSO provisions, the word ‘he’ appearing in Section 3 of the POCSO Act cannot be given a restrictive meaning to say it refers only to a male.It must be given its intended meaning and it includes within its ambit any offender irrespective of their gender, the Court stressed.“It is clear that the pronoun ‘he’ is not defined anywhere in the POCSO Act. In view of the provision of section 2(2) of the POCSO Act, one must fall back upon the definition of that pronoun as it appears in section 8 of the IPC. 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 Court said.The Court further noted that the provision include within its scope insertion of any object and not just body part and hence, it would be illogical to say that the offence is restricted to insertion of penis alone. “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 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 Court said. .The Court further observed that a comparison of the offence defined in Section 375 (rape) of the IPC on the one hand and Sections 3 and 5 of the POCSO 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 [POCSO Act] 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 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.”.Justice Bhambhani rendered these findings while dealing with a plea filed by a woman named Sundari Gautam challenging the trial court order framing charges under Section 6 [punishment for aggravated penetrative sexual assault] of the POCSO Act against her.It was argued that the offence of “penetrative sexual assault” is defined in section 3 of the POCSO Act, and therefore the offence of “aggravated penetrative sexual assault” appearing in section 5, can never be made out against a woman, since a reading of the definitions show that it only uses the pronoun “he”.This means that the intent of the legislature was only to make a man liable for the offence under Section 3 of the POCSO Act, the accused argued..The Court rejected the argument and upheld charge under Section against the accused-woman..Advocates Piyush Sachdev, Raja Chatterjee, Ayushi Arora, Anupama Gupta and Riya Datta appeared for the accused.The State was represented through Additional Public Prosecutor (APP) Utkarsh..[Read Judgment]