POCSO Act is gender neutral and a woman can be made accused: Karnataka High Court

The Karnataka High Court on Monday held that the Protection of Children from Sexual Offences Act (POCSO Act) is a progressive law rooted in gender neutrality to protect all children irrespective of gender and even women can be made accused under the Act..Justice M Nagaprasanna observed that although some provisions use gendered pronouns, the purpose and preamble of the Act make them inclusive thereby covering both male and female.The Court added that the ingredients of Section 4 POCSO on penetrative sexual assault apply equally to men and women as the provision is clearly inclusive."The Act, being a progressive enactment, is intended to safeguard the sanctity of childhood. It is rooted in gender neutrality with its beneficent object being the protection of all children, irrespective of sex. The Act is thus, gender neutral. Sections 3 and 5 which form the foundation for offences under Sections 4 and 6 of the Act, delineate various forms of assault. Although certain provisions may employ gendered pronouns, the preamble and purpose of the Act, render such usage inclusive. Therefore, it is inclusive of both male and female. The ingredients of Section 4 of the Act dealing with penetrative sexual assault are equally applicable to both men and women. The language of the provision clearly indicates inclusivity," the Court observed..The Court was hearing a plea by a 52-year-old woman seeking to quash criminal proceedings registered against her under Sections 4 and 6 of the POCSO Act.The case arose from a complaint by the parents of a 13-year-old boy, alleging that their neighbour, an artist, had sexually assaulted the child in 2020. The family later moved abroad and during their stay the boy showed psychological changes. When confronted, he disclosed that he had been subjected to repeated sexual abuse between February and June 2020.After returning to India in 2024, the parents lodged a complaint, leading to registration of a first information report (FIR) under the POCSO Act. Following investigation, a chargesheet was filed and the trial court took cognizance and issued summons. The accused thereafter approached the High Court seeking quashing of the proceedings..The petitioner contended that the complaint was filed after a four-year delay and argued that Sections 4 and 6 of POCSO, which use the pronoun “he” apply only to male perpetrators. She submitted that “a woman cannot rape a boy” and that no potency test had been conducted to establish the victim’s ability to perform intercourse.Opposing the plea, the complainant argued that the Act is explicitly gender neutral and protects all children regardless of whether the accused is male or female. He relied on Section 2(2) POCSO read with Section 8 IPC, which states that the pronoun “he” includes both genders. The prosecution also emphasized that the boy’s testimony and statements under Section 164 CrPC vividly described repeated assaults..The Court held that under Section 8 of IPC, the pronoun “he” applies to any person, male or female. Since a child under Section 2(d) of the POCSO Act means any person below 18, protection extends to both boys and girls."The intention of the legislature is undoubtedly to provide protection to children from sexual offences, which was regardless whether the offence is committed upon a child, by a man or a woman. Thus, the law, in both text and tenor, extends its sheltering canopy to every child, unfettered by gender, class or circumstance," Court noted.The Court noted that the delay in registering the crime cannot be a ground for quashing the proceedings given the nature of the alleged offence and the age of the victim."The submission that, in an intercourse the woman is only a passive participant and a man is an active participant is noted only to be emphatically rejected, as the thought itself is archaic. The jurisprudence of the present times embraces the livid realities of victims and does not allow stereotypes to cloud legal scrutiny," the Court added..It observed that the ingredients of the offences punishable under Sections 4 and 6 of the POCSO Act were clearly satisfied in the present case and accordingly the petition was rejected. However, the Court clarified that the observations made in the order are only for the limited purpose of considering the quashing petition under Section 482 of the Code of Criminal Procedure and shall not bind or influence the trial proceedings pending before the concerned Court..Senior Advocate Hashmath Pasha with advocate Kariappa NA appeared for the accused. Additional Public Prosecutor BN Jagadeesha appeared for the State of Karnataka.Advocates Ashok GV and Monika HB appeared for the complainant.