Last Updated on 12/08/2024 by wccexam Desk
The Delhi High Court made it clear in a decision that women can also be made accused in cases of penetrative sexual assault. The High Court gave this decision in a case related to the POCSO Act.
Justice Anup Jairam Bhambhani has given this decision in the Sundari vs Delhi case. Justice Bhambhani said, both men and women can be made accused in the case of ‘penetrative sexual assault’ and ‘aggravated penetrative sexual assault’ under the POCSO Act.
Justice Bhambhani said that the word ‘he’ in Section 3 of the POCSO Act does not only mean a man. The court said that discrimination on the basis of gender cannot be done in such cases.
What is the whole matter?
A case was registered against a Delhi-based woman in 2018 for sexually assaulting a child. In March this year, the trial court framed charges against the woman. After this, the woman challenged the case in the High Court on the grounds that she cannot be made an accused under sections 3 and 5 of the POCSO Act.
The woman argued that only men can be made criminals under sections 3 and 5 because the word ‘he’ has been used in it.
What did the High Court say in its decision?
– Justice Bhambhani said that the word ‘he’ used in Section 3 of the POCSO Act cannot be interpreted to mean that it is only for men. Both men and women should be brought under its purview.
– The court said that ‘he’ is defined nowhere in the POCSO Act. In view of the provisions of Section 2(2) of the POCSO Act, we must revert to the definition of ‘he’ as given in Section 8 of the IPC. (Section 8 of the IPC defines gender. In it, he is used for both male and female)
– Justice Bhambhani said that the POCSO Act was enacted to protect children from sexual crimes, whether the crime is committed by a man or a woman.
How can a woman be accused in penetrative assault?
– The High Court also said that according to the provision of the POCSO Act, insertion of any object in the private part of a child is a sexual crime. Therefore, it is not correct to say that sexual crime is limited only to the penetration of the penis.
The court said that the pronoun ‘he’ used in sections 3(a), 3(b), 3(c) and 3(d) of the POCSO Act should not be interpreted in such a way that the offences covered under those sections are limited to only ‘men’.
– The court said that it is important to note that according to the provisions of the POCSO Act, penetrative sexual assault is not limited to the penetration of the penis only, any object or any part of the body comes under its scope.
– A comparison of the offences mentioned in Section 375 (rape) of IPC and Sections 3 and 5 of POCSO Act shows that these two crimes are different. Section 375 refers to ‘male’, while Section 3 of POCSO Act refers to ‘person’. There is no reason why ‘person’ in Section 3 of POCSO Act should be read as referring only to ‘male’. Therefore, the offences mentioned in Sections 3 and 5 of POCSO Act are gender-free offences.
What are sections 3 and 5 of the POCSO Act?
Section 3 of the POCSO Act defines ‘penetrative sexual assault’ and Section 5 defines ‘aggravated penetrative sexual assault’. According to this, if a person inserts a penis or any object into the private parts or mouth of a child, it will be considered penetrative sexual assault.
There is a provision of minimum 10 years of punishment for penetrative sexual assault. This can be increased to life imprisonment. There is also a provision for fine. Whereas, under section 6, there is a provision of 20 years of punishment in case of severe penetrative sexual assault. There is also a provision of life imprisonment and death penalty in such cases. Under the POCSO Act, in case of life imprisonment, the culprit will have to remain in jail as long as he is alive.
What is POCSO Act?
POCSO means Protection of Children from Sexual Offences Act. This law was introduced in 2012. It makes sexual abuse against children a crime.
This law applies to both boys and girls below the age of 18. Its purpose is to protect children from crimes related to sexual harassment and obscenity. Under this law, people below the age of 18 are considered children and strict punishment has been provided for crimes against children.
Earlier, there was no death penalty in the POCSO Act, but in 2019, it was amended and provision for death penalty was also made. Under this law, if a person is sentenced to life imprisonment, then he will have to spend his entire life in jail. This means that the accused cannot come out of jail alive.
Similarly, if a person is found guilty of using a child for pornography for the first time, he can be sentenced to five years in prison and seven years in prison for the second time. Apart from this, a separate fine will have to be paid.
If a person stores, displays or shares child pornography, then if found guilty, he can be punished with three years of imprisonment or fine or both.
If a person uses child pornography for commercial purposes, he can be punished with 3 to 5 years in prison or a fine or both if found guilty for the first time. If found guilty for the second time, he can be punished with 5 to 7 years in prison or a fine or both.
What do the statistics say about the POCSO Act?
According to data from the National Crime Records Bureau (NCRB), the number of cases registered under the POCSO Act is increasing year after year.
The NCRB report shows that in 2021, about 54 thousand cases were registered under the POCSO Act across the country. Whereas, earlier in 2020, 47 thousand cases were registered. In the five years between 2017 and 2021, more than 2.20 lakh cases have been registered under the POCSO Act.
However, the conviction rate in the POCSO Act is quite low. Statistics show that in five years, the trial of 61,117 accused has been completed, out of which only 21,070 i.e. about 35% have been convicted. The remaining 37,383 were acquitted.
Source (PTI) (NDTV) (HINDUSTANTIMES)