NEW DELHI: The Delhi High Court has ruled that both men and women can be prosecuted for “penetrative sexual assault” and “aggravated penetrative sexual assault” under the Protection of Children from Sexual Offences Act (Pocso Act). Justice Anup Jairam Bhambhani clarified that the term ‘he’ in Section 3 of the Pocso Act should be interpreted inclusively applying to all offenders regardless of gender.
Justice Bhambhani emphasised that ‘he’ should not be narrowly construed to only refer to males, as it is not explicitly defined in the Pocso Act. Instead, the court relied on Section 8 of the IPC for guidance, highlighting that the Pocso Act was designed to protect children from sexual offences irrespective of an offender’s gender.
The court noted that the provisions of the Pocso Act encompass a range of acts beyond the insertion of a penis, including the insertion of objects or body parts. As a result, it would be unreasonable to limit the definition of penetrative sexual assault to penile penetration alone.
Comparing the Pocso Act’s definitions with those under Section 375 of the IPC, Justice Bhambhani observed that while the IPC specifies “man,” the Pocso Act refers to a “person,” indicating a broader scope that includes both genders. Therefore, the court upheld that offences under Sections 3 and 5 of the Pocso Act apply regardless of the offender’s gender.
This decision arose from a case involving Sundari Gautam, who challenged charges of “aggravated penetrative sexual assault” under Section 6 of the Pocso Act. The argument that the Act’s definitions implied only males could be held accountable was rejected, affirming the charge against Gautam.