The Provisions Of Pocso Act Are Not Restricted To Male Offenders, Can Also Be Invoked Against Women: Delhi High Court

CASE NAME:

Sundari Gautam vs The State of NCT of Delhi

CASE DATE: 

9th August, 2024

PARTIES INVOLVED:-
●    Petitioner: Sundari Gautam
●    Respondent: The State of NCT of Delhi

JUDGE: Justice Anup Jairam Bhambhani

IMPORTANT PROVISIONS:-

1. Section 3 of the POCSO Act:- 
   Defines ‘penetrative sexual assault’ and includes acts of penetration with any object or body part. 
2. Section 5 of the POCSO Act:- 
   Defines ‘aggravated penetrative sexual assault’, which is an aggravated form of the offence under Section 3 and includes harsher penalties.
3. Section 6 of the POCSO Act:- 
   Provides punishment for ‘aggravated penetrative sexual assault’, which includes a rigorous imprisonment for a minimum of 20 years, extending to life imprisonment.
4. Section 29 of the POCSO Act:- 
   Establishes a statutory presumption that the accused is presumed to be guilty unless proven otherwise.

SUBJECT:-

The case deals with an appeal challenging the charge-sheet of a woman (petitioner) under the POCSO Act for an alleged sexual assault in 2018, reported in 2022. She challenged the charge-sheet due to delay in registration of the FIR and argued that the law does not apply to women. The court dismissed the plea, stating that the act is gender neutral and is also applicable to female offenders.

OVERVIEW:-

• The petitioner, Mrs. Sundari Gautam, was charged under Section 6 of the POCSO Act for an alleged incident from July 2018.
• The FIR was registered over four years later.
• The petitioner challenged the charges on two main grounds:-

(i)    The POCSO Act does not apply to women, as the relevant sections use the pronoun ‘he’, implying that only men can be held liable under these provisions.
(ii)    The significant delay in FIR registration, without adequate explanation, undermined the validity of the charges.

• Additionally, the petitioner claimed that there was no sexual intent based on the investigation, including a statement from her 6-year-old son and a doctor’s report.
• The court rejected these arguments, allowing the charges to stand and proceed to trial.

ISSUES RAISED BEFORE THE COURT:-

1. Whether the provisions of the Protection of Children from Sexual Offences (POCSO) Act only apply to men?
2. Whether the significant delay of four years in the registration of the FIR without adequate explanation could vitiate the charges against the petitioner?
3. Whether the absence of sexual intent was sufficient to discharge the petitioner before trial?

CONTENTIONS RAISED ON BEHALF OF THE PETITIONER:-

• The learned counsel for the petitioner, Mr. Piyush Sachdeva, argued that the FIR registered over four years after the alleged incident was invalid due to the inordinate and unexplained delay.
• Citing the statement of the petitioner’s 6-year-old son and the doctor’s opinion on the injuries, they contended that the chargesheet indicated no intent of sexual assault on her part.
• She argued that the act repeatedly uses the pronoun ‘he’, suggesting that only men could be prosecuted under these sections and therefore she could not be charged under the act.
• To support this argument, she drew parallels the definitions of ‘rape’ under sections 375 and 376 of the Indian Penal Code, which similarly uses the pronoun ‘he’ and applies only to men.

CONTENTIONS RAISED ON BEHALF OF THE RESPONDENT:-

• The learned counsel for the respondent, Mr. Utkarsh, contended that the delay in FIR registration was justified due to the victim being treated and referred through various child protection processes (medical treatment and subsequent referral to counselling and legal proceedings) with the FIR only being registered after these procedures.
• They argued that the medical evidence corroborated the victim’s testimony recorded soon after the incident, indicating the possibility of penetrative sexual assault, contradicting the petitioner’s claim of no sexual intent.
• They contended that the POCSO Act is gender-neutral and the term ‘person’ in Section 3 encompasses both male and female offenders, thereby making the provisions applicable to women as well.
• The counsel asserted that the arguments regarding delay and lack of sexual intent should be addressed during the trial rather than at the pre-trial stage. He argued that the petitioner’s claims do not provide sufficient grounds for discharging the charges before the trial has concluded.

COURT’S ANALYSIS:-

• The court observed that the POCSO Act is gender-neutral and the term ‘he’ in Section 3 includes all offenders, regardless of gender.
• It acknowledged the delay in FIR registration but ruled it insufficient to discharge the petitioner.
• The court noted that arguments regarding the absence of sexual intent and the investigation’s findings were premature and should be addressed during the trial.
• The court highlighted that Section 29 of the POCSO Act creates a presumption of guilt, which requires the accused to face trial unless proven otherwise.

JUDGMENT:-

The court dismissed the revision petition, ruling that the delay in FIR registration, though significant, did not warrant the petitioner’s discharge due to the gravity of the charges and severe penalties under the POCSO Act. It was determined that the POCSO Act is gender-neutral with the term ‘person’ in Section 3 encompassing both male and female offenders. 
The court also upheld the statutory presumption under Section 29 of the Act, which necessitated a trial rather than discharge, as the evidence presented did not sufficiently justify dismissing the charges before the trial. Thus, the court upheld the framing of charges against the petitioner under section 3 of the act.

CONCLUSION:-

The case affirms that the POCSO Act applies equally to all offenders, regardless of gender and that delays in FIR registration and claims about the lack of sexual intent do not justify pre-trial discharge. The court’s decision underscores the importance of addressing such issues during the trial process rather than at the charge-framing stage.