Woman can also commit penetrative sexual assault in Pocso cases: Delhi HC

The Delhi high court on Friday held that the offence of penetrative sexual assault under the Protection of Children from Sexual Offences (Pocso) Act can also be invoked against a woman.
A bench of justice Anup Jairam Bhambhani observed that Section 3 of the Pocso Act, which deals with the offence of penetrative sexual assault, included within its ambit 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, and so it would be completely illogical to say that the offence contemplated in those provisions only refers to penetration by a penis.
In the 15-page order, the judge said that the Pocso Act was enacted by the legislature 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 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 be illogical to say that the offence contemplated in those provisions refers only to penetration by a penis,” the bench said.
The bench added, “On a conjoint reading of the foregoing provisions of the Pocso Act, it is accordingly held that the word ‘he’ appearing in Section 3 of the Pocso Act cannot be given a restrictive meaning, to say that it refers only to a ‘male’, but must be given its intended meaning, namely that it includes within its ambit any offender irrespective of their gender.”
The court expanded the ambit of the provision while dealing with a plea filed by a woman challenging a city court’s March 2024 order of framing charges of penetrative sexual assault against her.
In the petition filed through advocate Piyush Sachdev, the woman had contended that the offence of penetrative sexual assault and aggravated penetrative sexual assault can never be made out against a woman as a plain reading of the definition showed that it only and repeatedly used the pronoun “he”. He added that this meant that the intent of the legislature was to only make a man liable for the offences and the same had no application to a woman.
The Delhi police represented by additional public prosecutor Utkarsh submitted that the Pocso Act is a gender-neutral legislation and holds perpetrators accountable for sexual offences against minors, regardless of their gender. He said that use of the word “person” in the beginning of Section 3 of the Pocso Act showed that the offence could not be construed in a narrow sense and must include women offenders as well.
Sachdev had argued that the definition of rape under Sections 375 and 376 of the Indian Penal Code (IPC) is pari materia to the definition of penetrative sexual assault and thus the offence can only be committed by a man just as an offence of rape.
Rejecting the contention and dismissing her appeal, justice Bhambani observed that though the acts forming the offence in rape are the same as those of the provision of penetrative sexual assault, the opening line of Section 375 specifically refers to a “man” whereas the opening line of Section 3 refers to a “person”.
“It is accordingly held that the acts mentioned Sections 3 and 5 of the Pocso Act are an offence regardless of the gender of the offender provided the acts are committed upon a child,” the court maintained.