Monday 12 August 2024

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

 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

Date of Decision: 09th August 2024.

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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