Gender Not A Shield: Delhi HC On POCSO Act

It would be most imperative to note that in a very significant legal development, the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Sundari Gautam vs State of NCT of Delhi in CRL.REV.P. 852/2024 and cited in Neutral Citation No.: 2024:DHC:5944 that was pronounced most recently on August 9, 2024 has made it abundantly clear that the offence of penetrative sexual assault under Protection of Children from Sexual Offences (POCSO) Act can also be invoked against a woman. It must be mentioned here that the case involved a petitioner challenging charges that had been framed under Section 6 of the POCSO Act for allegedly committing aggravated penetrative sexual assault. It must be noted that the Delhi High Court expanded the ambit of the provision while dealing with a plea that had been filed by a woman who had challenged a city court’s March 2024 order of framing charges of penetrative sexual assault against her.

We must keep in mind that the Single Judge Bench comprising of Hon’ble Mr Justice Bhambhani underscored the legislative intent behind the POCSO Act, which was primarily designed with the avowed purpose to protect the susceptible minor children from various sexual offenses irrespective of the offender’s gender. The petitioner had challenged an order that had been issued by the Additional Sessions Judge (ASJ) of Saket Courts, New Delhi. The petition of the petitioner was thus finally dismissed by the Delhi High Court. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Bhambhani sets the ball in motion by first and foremost putting forth in para 1 that, “By way of the present revision petition filed under section 397 read with section 482 of the Code of Criminal Procedure 1973, the petitioner impugns order dated 14.03.2024, whereby, based upon chargesheet dated 10.02.2023, the learned ASJ, Saket Courts, New Delhi has framed charge against the petitioner under section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’).”

As things stands, the Bench specifies in para 2 that, “Notice on this petition was issued vide last order dated 08.07.2024; consequent whereupon Status Report/Reply dated 12.07.2024 has been filed by the State.”

To put things in perspective, the Bench then envisages in para 5 that, “Opposing the submissions made on behalf of the petitioner, Mr.Utkarsh, learned APP appearing for the State explains, that the delay in registration of the FIR was by reason of the fact that the victim was admitted to Safdarjung Hospital, New Delhi for treatment; and after considering the nature of the injuries sustained by the child victim, she was then referred to an NGO. Thereafter, a counsellor from the Child Welfare Committee (‘CWC’) recorded the victim’s statement and the matter was referred to the concerned Juvenile Justice Board (‘JJB’). It is submitted that it was only after all these proceedings that the FIR came to be registered in the present case.”

As we see, the Bench then discloses in para 8 that, “Addressing the first issue raised on behalf of the petitioner, namely of delay in registration of the FIR, the argument is that there has been inordinate, unexplained delay in registering the FIR, which vitiates the entire process and entitles the petitioner to be discharged in the matter. In this behalf, the timeline of various steps and proceedings in the case, from the date of the alleged incident upto the date of registration of the FIR, may be looked at. These may be summarised as below:

Particulars Relevant Date

Date of the

alleged incident 17.07.2018

CWC, Kalkaji directed SHO,

P.S.: Govind Puri to take

appropriate legal action

under POCSO Act 01.08.2018

Information received from

CWC, Kalkaji at

P.S.: Govind Puri 07.09.2018

Case transferred from

CWC, Kalkaji to JJB-II 23.08.2019

JJB-II directed SHO,

P.S.: Govind Puri to

register FIR 04.09.2019

FIR No. 737/2022

registered under

section 376 IPC &

section 6 POCSO Act

at P.S.: Govind

Puri, Delhi 15.10.2022.”

Do note, the Bench notes in para 9 that, “Upon an objective assessment of the forgoing timelines, in the opinion of the court, though the time taken in the proceedings before the CWC and the JJB does not require any explanation, it is noticed that despite JJB-II having issued a direction on 04.09.2019 to the S.H.O. P.S.: Govindpuri, Delhi to register the FIR, the FIR only came to be registered on 15.10.2022, i.e. more than 03 years later. There is therefore no doubt that there has been delay in registration of the FIR. However, it is also noticed that vide order dated 18.01.2024, while framing charge, the learned ASJ has also called for a report from the concerned DCP, seeking an explanation from the police officials responsible for the delay. That apart, this court is of the view that delay in registration of an FIR can in any case not be ground for discharge of an accused, which is the subject matter of consideration in the present proceedings. Furthermore, considering the seriousness of the allegations and the nature of the case, this court is also not persuaded to allow the present revision petition merely on the ground that there was delay in registration of the FIR.”

Be it noted, the Bench notes in para 10 that, “It may also be noted that under section 6 of the POCSO Act, the offence of ‘aggravated penetrative sexual assault’ is punishable with a minimum sentence of rigorous imprisonment of 20 years, which may also extend to life imprisonment; and the Legislature has also considered it necessary to emphasise, that for purposes of section 6, life imprisonment shall mean imprisonment for the remainder of natural life of the convict. Considering the harsh punishment prescribed for the offence under section 6, the delay, if any, in the registration of the FIR would, in any case, not warrant quashing of the charge framed against the petitioner.”

It is worth mentioning that the Bench enunciates in para 11 that, “The petitioner’s second contention is that since, based on the opinion of the doctor and the statement of the petitioner’s 06 year old son, the charge-sheet itself narrates that no intent of sexual assault can be attributed to the petitioner, therefore the petitioner must be discharged. To answer that contention, it must be noted that since charge has been framed against the petitioner under section 6 of the POCSO Act (which is the punishment section for the offence under section 5 of the POCSO Act), in line with the decision of this court in Dharmander Singh vs. State (NCT of Delhi), 2020 SCC OnLine Del 1267 the statutory presumption embedded in section 29 of the POCSO Act gets trigged. Section 29 reads as follows:

29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. (emphasis supplied).”

Bluntly speaking, the Bench states in para 12 that, “Though the petitioner has challenged the very order framing charge, in the opinion of this court, neither the opinion of the doctor, nor the statement of the petitioner’s 06-year-old son (who is stated to have been present at the time of commission of offence), nor any observation in the chargesheet is sufficient to displace the statutory presumption under section 29 or to negate the petitioner’s intention in relation to the offence alleged; and such a finding can only be made by the court based upon evidence that would be adduced before it, after witnesses have deposed in the course of the trial.”

Needless to say, the Bench states in para 13 that, “Also, it is settled law that at the stage of framing charge the court is only required to assess the evidence produced before it, to see if based on such evidence there is “grave suspicion” that the accused has committed the offence alleged; and the court may “sift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out”, without conducting a “roving enquiry into the pros and cons of the matter” and the court must not assess “the probative value of the material on the record.” (Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368 at para 21). Equally therefore, while excising its revisional jurisdiction, it is not the remit of this court to opine on the weight or validity of the evidence based on which the trial court has framed the charge.”

Do also note, the Bench notes in para 14 that, “Accordingly, even if in the opinion of the doctor and as per the statement of the child, there was no sexual intent on the part of the petitioner, that opinion and statement is required to be tested in the course of trial and is not sufficient to discharge the petitioner at this stage. The narration in the charge sheet, which is based on the doctor’s opinion and the child’s statement, is equally irrelevant for discharging the petitioner. Accordingly, the second argument raised on behalf of the petitioner also does not warrant quashing of the charge framed against the petitioner.”

Simply put, the Bench then states in para 15 that, “Now coming to the third and perhaps the most significant legal argument raised on behalf of the petitioner, which is that the offence of ‘penetrative sexual assault’ and ‘aggravated penetrative sexual assault’ can simply not be made-out against a woman.”

It would be worthwhile to note that the Bench notes in para 25 that, “In the opinion of this court, 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 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.”

Quite significantly, the Bench propounds in para 26 that, “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.”

Most significantly and as a corollary, the Bench mandates in para 27 holding that, “As a sequitur to the above, 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.”

Resultantly, the Bench directs in para 28 that, “In the above view of the matter, this court is not persuaded to allow the prayer made in the petition.”

Finally, the Bench then concludes by directing in para 29 that, “The petition is accordingly dismissed.”

All told, we thus see that the Delhi High Court has made it pretty clear that not only a men but even a women can be put to trial under the POCSO Act. The contention of the petitioner that she is a woman was thus not entertained and dismissed by the Delhi High Court. Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.