The Delhi High Court has concluded that a female may also be subject to criminal proceedings under POCSO if she commits the crime of "penetrative sexual assault" on a child, and that only male criminals are prohibited from committing this offense.

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.

Penetrative Sexual Assault
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The accused in a POCSO case entered a plea last week, arguing that the charges of "penetrative sexual assault" and "aggravated penetrative sexual assault" could not possibly be brought against her since she is a woman. The court then rendered its ruling based on her plea.

Impact of Pronoun Usage in Defining Penetrative Sexual Assault

While criticizing the way the allegations were framed against her, the accused argued that a basic reading of the law shown that it only used the word "he" once, twice, indicating that the legislature's intention was to only hold a male accountable for the offense. Nonetheless, the court ruled that there is no justification for reading the word "person" as exclusively referring to a "male" when it appears in section 3 of the POCSO Act.

"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 pointed out that the POCSO clause cannot be read in a way that limits the crime to men alone because the pronoun "he" and its derivatives are used for any individual, male or female, under the Indian Penal Code (IPC).

“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 petitioner was a woman, but the court determined that the offense of "aggravated penetrative sexual assault" was made out against her based only on a prima facie examination of the evidence. "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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