Source: Delhi High Court 

Why in News? 

Recently, the Delhi High Court in the matter of Sundari Gautam v. State of NCT of Delhi has held that the offences under the Protection of Children from Sexual Offences Act 2012 (POCSO) are not restricted to male offenders only. 

What was the Background of the Sundari Gautam v. State of NCT of Delhi   Case? 

• In the present case, First Information Report (FIR) was filed against the petitioner under Section 6 of the POCSO Act four years after the alleged incident. 
• The case was filed against the women exceeding the scope of Section 6 of the POCSO Act. 
• The Trial Court framed charges against the petitioner as per Section 6 of the POCSO Act. 
• The petitioner filed a revision petition under Section 397 read with Section 482 of the Code of Criminal Procedure 1973 (CrPC) before the Delhi High Court. 
  • The petitioner argued that there was a delay in filing FIR of four years. 
  • The petitioner also argued that through investigation it has not been concluded that the petitioner had any intent to commit any sexual act against the child. 
  • It was also argued that Section 3 of POCSO Act has no application to a woman, section 5 of the POCSO Act 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. 

What were the Court’s Observations? 

• The Delhi High Court stated that based on the gravity of the offence committed the delay in filing FIR cannot be a ground to quash the proceedings. 
• The Delhi High Court observed that definition of aggravated penetrative sexual assault under Section 5 of the POCSO Act is a consequence of the definition of penetrative sexual assault defined under Section 3 of the POCSO Act. 
• The court also noted that the POCSO Act was enacted 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. 
• The Delhi High Court clearly held that pronoun “he” appearing in section 3(a), 3(b), 3(c) and 3(d) of the POCSO Act must not be so interpreted as to restrict the offence engrafted in those sections only to a “man.” 
  • It would therefore be completely illogical to say that the offence contemplated in those provisions refers only to penetration by a penis. 
  • It was also held by the Delhi High Court that 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. 
  • The opening line of section 375 of Indian Penal Code which defines rape specifically refers to a “man” whereas the opening line of section 3 of the POCSO Act refers to a “person”. 
• The Delhi High stated that the offence of aggravated penetrative sexual assault can be charged against the petitioner, even though she is a woman. 

What is Penetrative Sexual Assault under POCSO? 

About: 

• POCSO Act was enacted on 19th June 2012 and enforced on 14^th  November 2012 to specifically deal with sexual crimes against children in India. 
• It defines different forms of sexual assault, prescribes stringent punishments, and outlines child-friendly procedures for reporting, investigation and trial of such offenses. 
• One of the most serious offences covered under POCSO is Penetrative Sexual Assault against children. 

Penetrative Sexual Assault: 

• Section 3 of the POCSO Act defines Penetrative Sexual Assault. 
• It includes inserting any object or body part into the vagina, urethra, anus or mouth of a child, or applying mouth to the same body parts of the child. 
• It also covers making the child perform such acts on the offender or another person. Any form of penetration, however slight, is considered Penetrative Sexual Assault. 

Aggravated Penetrative Sexual Assault: 

• Section 5 lists out certain situations that make a Penetrative Sexual Assault an "aggravated" offence attracting even higher punishments: 
  • Assault by a police officer, member of armed forces, public servant, staff of a children's home/hospital. 
  • Assault on a child under 12 years of age. 
  • Assault resulting in physical/mental incapacitation, pregnancy, sexually transmitted disease. 
  • Repeated assaults on the same child. 
  • Assault committed by a member of the child's family/relative/person in a position of trust. 
  • Use of deadly weapons, burns, acid attack etc. during the assault.  

Punishments Under POCSO: 

• For Penetrative Sexual Assault, Section 4 of the POCSO Act prescribes rigorous imprisonment of not less than 10 years which may extend to life imprisonment, along with fine. 
• In case of Aggravated Penetrative Sexual Assault, Section 6 prescribes the minimum punishment is increased to rigorous imprisonment of 20 years which may extend to life imprisonment. 

Legal Provisions of POCSO Act:

• Section 3: Penetrative Sexual Assault 
  • A person is said to commit “penetrative sexual assault” if—  
    • 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. 
    • 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. 
    • He manipulates any part of the child's body to cause penetration into the vagina, urethra, anus or any part of the child's body or makes the child do so with him or anyone else. 
    • 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. 
• Section 5: Aggravated Penetrative Sexual Assault 
  • Whoever, being a police officer, commits penetrative sexual assault on a child — 
    • Within the limits of the police station or premises at which he is appointed. 
    • In the premises of any station house, whether or not situated in the police station, to which he is appointed 
    • In the course of his duties or otherwise. 
    • Where he is known as, or identified as, a police officer. 
  • Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child—  
    • Within the limits of the area to which the person is deployed. 
    • In any areas under the command of the forces or armed forces. 
    • In the course of his duties or otherwise. 
    • Where the said person is known or identified as a member of the security or armed forces. 
  • Whoever being a public servant commits penetrative sexual assault on a child. 
  • 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  
  • Whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital. 
  • Whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution. 
  • Whoever commits gang penetrative sexual assault on a child.  
  • 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. 
  • Whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance. 
  • Whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child. 
  • Whoever commits penetrative sexual assault on a child, which—  
    • Physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently. 
    • In the case of female child, makes the child pregnant as a consequence of sexual assault 
    • Inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks 
    • Causes death of the child.