Women Can Also Be Tried For 'Penetrative Sexual Assault' On Child: High Court

A female can also face criminal proceedings under POCSO for committing the offence of "penetrative sexual assault" on a child, and the offence is not restricted to only male offenders, the Delhi High Court has held.

Justice Anup Jairam Bhambhani said the Protection of Children from Sexual Offences (POCSO) Act was enacted to protect children from sexual offences, "regardless of whether an offence is committed upon a child by a man or a woman". There was no reason why the word "person" appearing in section 3 (penetrative sexual assault) should be read as referring only to a "male", he added.

The court's decision was delivered last week on a plea by an accused in a POCSO case, who argued that since she was a woman, the offences of "penetrative sexual assault" and "aggravated penetrative sexual assault" can simply not be made out against her.

The accused, while assailing the framing of charges against her, contended that a plain reading of the provision showed that it only, and repeatedly, used the pronoun "he", meaning that the intent of the legislature was only to make a man liable for the offence.

However, the court said there is no reason why the word "person' appearing in section 3 of the POCSO Act should be read as referring only to a "male".

"It is accordingly held that the acts mentioned in sections 3 and 5 (aggravated penetrative sexual assault) of the POCSO Act are an offence regardless of the gender of the offender, provided the acts are committed upon a child," the court said in the judgment.

"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," it stated.

The court noted that under the Indian Penal Code (IPC), the pronoun "he" and its derivatives are used for any person, whether male or female, and the POCSO provision must not be interpreted in a manner that restricts the offence only to a man.

"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 observed.

The court, on a prima-facie consideration of the material, therefore, ruled that the offence of "aggravated penetrative sexual assault" was made out against the petitioner, even though she was a woman.

"The petitioner is therefore required to be put to trial for the offences as charged. The petition is accordingly dismissed," held the court. 

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