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 5of the POCSO Act are an offence regardless of the gender of the offender provided the acts are committed upon a child.
26. 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.
27. 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.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.REV.P. 852/2024
SUNDARI GAUTAM Vs STATE OF NCT OF DELHI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
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‟).
2. 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.
3. The court has heard Mr. Piyush Sachdev, learned counsel for the
petitioner as well as Mr. Utkarsh, learned APP appearing for the
State.
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. Mr. Sachdev submits, that the petitioner challenges order dated
14.03.2024 made by the learned ASJ principally on the following
three grounds :
4.1. First, Mr. Sachdev contends, that the incident that is the subject
matter of the FIR dates back to 17.07.2018 but the FIR was
registered some 04 years after the date of the alleged
commission of the offence; and is therefore vitiated by
inordinate and unexplained delay.
4.2. Second, Mr. Sachdev submits, that based on the material
collected during investigation, the chargesheet itself records
that no intent of sexual assault can be attributed to the
petitioner; and that absent any sexual intent, no purpose would
be served by putting the petitioner through trial. It is argued
that the aforesaid observation appearing in the chargesheet is
based upon the investigation conducted by the police
themselves, and in particular it is based on the statement of the
petitioner‟s 06-year-old son, who the police say was present in
the house, as also on the opinion of the doctor who examined
the injuries found on the body of the victim.
4.3. Third, Mr. Sachdev argues, 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 thereof, 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‟; meaning thereby that the intent of the Legislature was
only to make a man liable for the offence under section 3 of the
POCSO Act. It is argued that since section 3 has no application
to a woman, section 5 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. To bolster this submission, emphasis has been
placed Mr. Sachdev to the definition of „rape‟ under sections
375 and 376 of the Indian Penal Code, 1860 („IPC‟). Counsel
submits 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. Mr.
Sachdev places reliance on judgment of the Supreme Court in
Independent Thought vs. Union of India & Anr.,
1 wherein it
has been held that “… …there is no real distinction between
the definition of “rape” under IPC and the definition of
“penetrative sexual assault” under the POCSO Act… …”
SUBMISSIONS ON BEHALF OF THE STATE
5. 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
1
(2017) 10 SCC 800
CRL.REV.P. 852/2024 Page 4 of 15
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.
6. Furthermore, learned APP submits, that medical evidence in the
present case has corroborated the testimony of the child victim
recorded by the counsellor on 07.09.2018, which was soon after the
date of the alleged incident. In this behalf, counsel places reliance on
a subsequent medical opinion obtained by the investigating officer
which states that “… …[t]he possibility of penetrative sexual assault
cannot be ruled out.”
7. As for the applicability of sections 3 and 5 of the POCSO Act to a
female offender, learned APP submits, that that the POCSO Act is a
gender-neutral legislation and holds perpetrators, regardless of their
gender, accountable for sexual offences against minors. Learned APP
also draws attention to the word “person” appearing at the beginning
of section 3 of the POCSO Act, submitting that the use of that word at
the beginning of the definition shows that the offence defined therein
is not to be construed in a narrow sense and must include women
offenders as well.
DISCUSSION & CONCLUSIONS
8. 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
CRL.REV.P. 852/2024 Page 5 of 15
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
9. 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
CRL.REV.P. 852/2024 Page 6 of 15
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.
10. 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.
11. 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
CRL.REV.P. 852/2024 Page 7 of 15
section 5 of the POCSO Act), in line with the decision of this court in
Dharmander Singh vs. State (NCT of Delhi),
2
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)
12. 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.
13. 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
2
2020 SCC OnLine Del 1267
CRL.REV.P. 852/2024 Page 8 of 15
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.”
3
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.
14. 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.
15. 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.
16. To address this submission, it is necessary to first notice certain
definitions appearing in the POCSO Act and in the IPC, in light of
which this submission must be examined.
17. To appreciate the position, it is necessary to notice section 2(2) of the
POCSO Act, which helps in interpreting the other definitions. Section
2(2) reads thus :
3
Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368 at para 21
CRL.REV.P. 852/2024 Page 9 of 15
2. Definitions.—(1) * * * * *
(2) The words and expressions used herein and not defined
but defined in the Indian Penal Code (45 of 1860), the Code of
Criminal Procedure, 1973 (2 of 1974), the Juvenile Justice (Care
and Protection of Children) Act, 2015 (2 of 2016) and the
Information Technology Act, 2000 (21 of 2000) shall have the
meanings respectively assigned to them in the said Codes or the
Acts.
(emphasis supplied)
18. The next important provision, which is required to be read is section 8
of the IPC, which reads as follows :
8. Gender.—The pronoun “he” and its derivatives are used
of any person, whether male or female.
19. It must also be born in mind that the definition of „aggravated
penetrative sexual assault‟ under section 5 is a consequential
definition arising from the offence of „penetrative sexual assault‟
defined in section 3 of the POCSO Act. Section 3 of the POCSO Act
is reproduced below :
3. Penetrative sexual assault.—A person is said to commit
“penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child to do so with
him or any other person; or
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or anus of the
child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to
cause penetration into the vagina, urethra, anus or any part of body
of the child or makes the child to do so with him or any other
person; or
CRL.REV.P. 852/2024 Page 10 of 15
(d) he applies his mouth to the penis, vagina, anus, urethra
of the child or makes the child to do so to such person or any other
person.
(emphasis supplied)
20. Drawing from the definition in section 3, the Legislature has
engrafted in section 5 the aggravated form of the offence of
penetrative sexual assault, in the following words :
5. Aggravated penetrative sexual assault.—(a) Whoever,
being a police officer, commits penetrative sexual assault on a
child—
(i) … … (iv)
(b) whoever being a member of the armed forces or security
forces commits penetrative sexual assault on a child—
(i) … … (iv)
(c) whoever being a public servant commits penetrative
sexual assault on a child; or
(d) whoever being on the management or on the staff of a
jail, remand home, protection home, observation home, or other
place of custody or care and protection established by or under any
law for the time being in force, commits penetrative sexual assault
on a child, being inmate of such jail, remand home, protection
home, observation home, or other place of custody or care and
protection; or
(e) whoever being on the management or staff of a hospital,
whether Government or private, commits penetrative sexual assault
on a child in that hospital; or
(f) whoever being on the management or staff of an
educational institution or religious institution, commits penetrative
sexual assault on a child in that institution; or
(g) whoever commits gang penetrative sexual assault on a
child.
CRL.REV.P. 852/2024 Page 11 of 15
Explanation.—When a child is subjected to sexual
assault by one or more persons of a group in furtherance of
their common intention, each of such persons shall be
deemed to have committed gang penetrative sexual assault
within the meaning of this clause and each of such person
shall be liable for that act in the same manner as if it were
done by him alone; or
(h) whoever commits penetrative sexual assault on a child
using deadly weapons, fire, heated substance or corrosive
substance; or
(i) whoever commits penetrative sexual assault causing
grievous hurt or causing bodily harm and injury or injury to the
sexual organs of the child; or
(j) whoever commits penetrative sexual assault on a child,
which—
(i) ..... (iv); or
(k) whoever, taking advantage of a child's mental or physical
disability, commits penetrative sexual assault on the child; or
(l) whoever commits penetrative sexual assault on the child
more than once or repeatedly; or
(m) whoever commits penetrative sexual assault on a child
below twelve years; or
(n) whoever being a relative of the child through blood or
adoption or marriage or guardianship or in foster care or having a
domestic relationship with a parent of the child or who is living in
the same or shared household with the child, commits penetrative
sexual assault on such child; or
(o) whoever being, in the ownership, or management, or
staff, of any institution providing services to the child, commits
penetrative sexual assault on the child; or
(p) whoever being in a position of trust or authority of a
child commits penetrative sexual assault on the child in an
institution or home of the child or anywhere else; or
CRL.REV.P. 852/2024 Page 12 of 15
(q) whoever commits penetrative sexual assault on a child
knowing the child is pregnant; or
(r) whoever commits penetrative sexual assault on a child
and attempts to murder the child; or
(s) whoever commits penetrative sexual assault on a child in
the course of communal or sectarian violence or during any natural
calamity or in similar situations; or
(t) whoever commits penetrative sexual assault on a child
and who has been previously convicted of having committed any
offence under this Act or any sexual offence punishable under any
other law for the time being in force; or
(u) whoever commits penetrative sexual assault on a child
and makes the child to strip or parade naked in public, is said to
commit aggravated penetrative sexual assault.
(emphasis supplied)
21. The object and purpose of enacting a special legislation for protecting
the rights of a child has been explained by a 03-Judge Bench of the
Supreme Court in Attorney General for India vs. Satish & Anr. and
other connected matters (2022) 5 SCC 545 in the following words :
“33. So far as the object of enacting the POCSO Act is
concerned, as transpiring from the Statement of Objects and
Reasons, since the sexual offences against children were not
adequately addressed by the existing laws and a large number of
such offences were neither specifically provided for nor were they
adequately penalised, the POCSO Act was enacted to protect the
children from the offences of sexual assault, sexual harassment and
pornography and to provide for establishment of Special Courts for
trial of such offences and for matters connected therewith and
incidental thereto. While enacting the said Act, Article 15 of the
Constitution which empowers the State to make special provisions
for children, and the Convention on the Rights of the Child, adopted
by the General Assembly of the United Nations, as acceded to by the
Government of India, prescribing a set of standards to be followed
by all the State parties in securing the best interest of the child, were
also kept in view. The POCSO Bill intended to enforce the rights of
all children to safety, security and protection from sexual abuse and
exploitation, and also intended to define explicitly the offences
against children countered through commensurate penalties as an
effective deterrence.”
22. 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.
23. 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 sectionsonly 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 bodypart 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.
24. Though it has been argued on behalf of the petitioner that in
Independent Thought (supra) the Supreme Court has held that the
definition of „rape‟ appearing in the IPC is pari materia with the
definition of „penetrative sexual assault‟ in the POCSO Act, in the
opinion of this court, the petitioner is reading the observations of the
Supreme Court in Independent Thought in the wrong context and
manner, since, as argued by the learned APP, 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.
25. 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.
26. 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.
27. 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.
28. In the above view of the matter, this court is not persuaded to allow
the prayer made in the petition.
29. The petition is accordingly dismissed.
30. Pending applications, if any, also stand disposed-of.
ANUP JAIRAM BHAMBHANI, J.
AUGUST 09, 2024
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