Facts of the Case:

The Petitioner, who is the sole accused in this case sought before the Court quashing of proceedings under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). According to the Prosecution’s case, the Petitioner was a neighbour of the Complainant and used to offer art lessons to the children of the community. After the Complainant’s family moved to Dubai, the Complainant noticed psychological changes in her son, and on being confronted by the Complainant, the victim boy revealed to his mother that the Petitioner had called him to her house for four or five months on a continuous basis, between February and June 2020, and subjected him to sexual assault. On their return to India, the Complainant approached the police station and filed an FIR. Subsequently, the police conducted investigation and filed a charge sheet against the Petitioner for the afore-quoted offences.

Contention of the Petitioner:

The Petitioner contended that had there been any substance in the allegations, the same ought to have been reported immediately. It was argued that there is no material to demonstrate, even prima facie, that the victim had suffered any psychological imbalance attributable to the acts of the Petitioner, and that the alleged imbalance manifested only after four years, culminating in the present complaint.

Learned senior counsel for the Petitioner further submitted that offences under Sections 4 and 6 of the POCSO Act cannot be alleged against a woman. It was urged that rape can be committed only by a man upon a woman, and that a woman cannot commit rape upon a man. This submission was amplified by the contention that in an act of intercourse, the male is the active agent while the female is merely the passive recipient.

It was additionally submitted by the Petitioner, that Sections 4 and 6 of the Act, which define penetrative sexual assault, consistently employ the pronoun “he.” Therefore, the provisions would apply only when a man penetrates his penis into the vagina, and not the other way around, since a woman is incapable of committing such an act.

Contention of the Respondents:

Per contra, the Respondent refuted each of the Petitioner’s contentions. The Respondent submitted that merely because the accused was a 48-year-old woman and the victim a boy of about 14 years does not mean that no offence could have been committed. Reference was made to publicly available data indicating that sexual abuse of minors occurs almost equally among girls (47%) and boys (53%), with abuse against boys often going unreported.

The Respondent further submitted that Section 3 of the POCSO Act is founded on the expression “a person,” which by definition includes both men and women. The pronoun “he” used in the provision is not defined in the Act and, by virtue of Section 2(2) POCSO read with Section 8 of the Indian Penal Code (IPC), must be interpreted as gender-neutral, covering both male and female perpetrators.

On the issue of delay, the Respondent argued that psychological studies establish that minors subjected to sexual assault often suffer trauma which prevents immediate disclosure, and that courage to report such incidents is generated only later. The Respondent relied on the judgment of the Bombay High Court in Bhiku Tukaram Jadhav v. State of Maharashtra (2011) in support of this position.

The State submitted that statements recorded before the Child Protection Officer corroborated the complaint and resulted in the filing of the charge-sheet. The State contended that the petition ought to be dismissed, as the accused must establish her defence in a full trial.

Court’s Observations:

The Court observed that the POCSO Act was not “a mere statutory addition; it was a resolute response to a growing crisis and unspeakable horrors of sexual assault, harassment and pornographic exploitation of children.” In harmony with Articles 15 and 39 of the Constitution of India, the Act gives effect to the directive principles requiring the State to protect childhood from degradation, and represents India’s commitment to the UN Convention on the Rights of the Child.

The Court held that the objects and reasons of the Act make it clear that it was enacted to protect all children, boys and girls alike, below the age of 18 years. Protection under the Act is not limited to female children. Emphasising the 2019 amendment, the Court referred to the Statement of Objects and Reasons of Act 25 of 2019:

“The said Act is gender neutral and regards the best interests and welfare of the child as a matter of paramount importance at every stage so as to ensure the healthy physical, emotional, intellectual and social development of a child.”

The Court further noted that the definition of “child” under the Act is gender-neutral and, in view of Section 2(2) POCSO read with Section 8 IPC, the pronoun “he” and its derivatives are to be construed as applying to both male and female. Thus, the Court held, “the law, in both text and tenor, extends its sheltering canopy to every child, unfettered by gender, class or circumstance.”

Moreover, the Court observed that a careful reading of Section 3 of the POCSO Act which defines penetrative sexual assault, demonstrates that it begins with the expression “a person”, which is a deliberately gender-neutral formulation. The Court therefore held that the statute is comprehensive and applies irrespective of whether the perpetrator is male or female.

Examining the allegations in the complaint, the Court noted that the accused allegedly manipulated and induced the victim child to perform penetration. Such conduct fell squarely within the words of the statute. The Court held that the statutory ingredients of Section 3 were fulfilled, and to suggest otherwise would be to adopt a narrow and technical interpretation antithetical to the remedial purpose of the Act. The law was “designed not to serve anatomical formality but to protect the child from sexual abuse.”

On the issue of delay, the Court held that delay in reporting sexual assault by a child cannot be equated with other offences: “The mind of a child sometimes is in a state of shock and in such state would not adhere to legal clocks.” Delay is therefore not fatal in such cases.

The Court rejected as archaic the submission that in sexual intercourse the male is always the active agent and the woman a passive recipient. Such stereotypical views, the Court held, “find no foothold in the present day.” It further noted that psychological trauma may not necessarily prevent physiological responses.

In conclusion, the Court held that none of the submissions of the Petitioner’s counsel merited acceptance. The allegations disclosed disputed questions of fact involving offences of penetrative and aggravated penetrative sexual assault which could not be quashed under Section 482 CrPC. The Court therefore held that a full-fledged trial was necessary, stating that “the trial, in such cases, is not a perfunctory ritual, but an imperative necessity.”

Court’s orders:

The Court held that none of the submissions advanced by the Petitioner merited acceptance. Finding no substance in the petition, the Court dismissed it and rejected the prayer for quashing of the proceedings.

Written by Adv. Prerna Murarka