‘POCSO Act is gender neutral’; Karnataka High Court refuses to quash sexual assault case against Woman.

SUMMARY OF FINDINGS:

Ø The Act, being a progressive enactment, is intended to safeguard the sanctity of childhood. It is rooted in gendral neutrality with its beneficient object being the protection of all children, irrespective of sex. The Act is thus, gender neutral.

Ø 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.

Ø 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.

Ø The ingredients of the offences, the ones punishable under Sections 4 and 6 of the Act, are clearly met in the case at hand.

Ø Delay in registration of the crime, in the case at hand, cannot become the reason for quashment of the proceedings, owing to the alleged offence and the age of the victim.

Ø The submissions of psychological impossibility and absence of potency testing, fall flat in the light of modern jurisprudence, noted hereinabove.

Ø The submission that psychological trauma cannot result in an erection would tumble down, in the light of several studies, that psychological trauma does not always prelude physiological or biological reactions, especially ones of coercion and fear.

Ø 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.

 In the High Court of Karnataka

(Before M. Nagaprasanna, J.)

Archana Patil  Vs State of Karnataka

Criminal Petition No. 12777 of 2024

Decided on August 18, 2025, 

Citation: 2025 SCC OnLine Kar 17687

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How Pocso amendment Act 2019 made it more gender neutral?

The Protection of Children from Sexual Offences (POCSO) Act, 2012, was already designed to be gender-neutral regarding victims, but the 2019 Amendment Act further solidified this by making it gender-neutral with respect to both perpetrators and victims through the expansion of definitions and stringent punishment provisions. The amendment ensures that a child is defined as any person under the age of 18, regardless of gender, and the law applies uniformly to all, irrespective of the perpetrator's gender. 

Here is how the 2019 Amendment enhanced the gender-neutrality of the POCSO Act:

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Understanding the Applicability of the POCSO Act: Can a Child Be Prosecuted Under POCSO Act?

 The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a landmark legislation in India, designed to safeguard children from sexual abuse and exploitation. While the Act is primarily focused on protecting children as victims, questions often arise regarding its applicability and whether a child can be prosecuted under its provisions. This article explores these aspects in detail.

Who Does the POCSO Act Apply To?

The POCSO Act is a gender-neutral law that applies to:

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Supreme Court: Distinction between S 50 of PML Act and Section 160/161 of Code of Criminal Procedure

 Apart from the fact that Section 50 is a gender neutral, as it does not make any distinction between a man and a woman, there are glaring inconsistencies between the provisions contained in Section 50 of PMLA and Section 160/161 of Code of Criminal Procedure. The Chapter XII of Code of Criminal Procedure pertains to the "Information to the Police and their Powers to Investigate". Section 160 which falls under Chapter XII empowers the Police Officer making an investigation under the said Chapter to require any person to attend within the limits of his own or adjoining station who, from the information given or otherwise appears to be acquainted with the facts and circumstances of the case, whereas, the process envisaged by Section 50 of the PMLA is in the nature of an inquiry against the proceeds of crime and is not "Investigation" in strict sense of the term for initiating prosecution; and the Authorities referred to in Section 48 of PMLA are not the Police Officers as held in Vijay Madanlal. It has been specifically laid down in the said decision that the statements recorded by the Authorities Under Section 50 of PMLA are not hit by Article 20(3) or Article 21 of the Constitution, rather such statements recorded by the authority in the course of inquiry are deemed to be the Judicial proceedings in terms of Section 50(4), and are admissible in evidence, whereas the statements made by any person to a Police Officer in the course of an investigation under Chapter XII of the Code could not be used for any purpose, except for the purpose stated in the proviso to Section 162 of the Code. In view of such glaring inconsistencies between Section 50 PMLA and Section 160/161 Code of Criminal Procedure, the provisions of Section 50 PMLA would prevail in terms of Section 71 read with Section 65 thereof. {Para 16}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2221-2222 of 2023

Decided On: 09.09.2024

Abhishek Banerjee and Ors. Vs. Directorate of Enforcement

Hon'ble Judges/Coram:

Bela M. Trivedi and S.C. Sharma, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0991/2024,2024 INSC 668.

Read full Judgment here: Click here.

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Delhi HC: Penetrative Sexual Assault under POCSO Act can be invoked against women too

 There is no reason why the word “person” appearing section 3 of the POCSO Act should be read as referring only to a „male‟. It is accordingly held that the acts mentioned sections 3 and 5of the POCSO Act are an offence regardless of the gender of the offender provided the acts are committed upon a child.

26. 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 POCSCO 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.

27. As a sequitur to the above, on a prima-facie consideration of the material placed on record along with the chargesheet, in the opinion of this court, the offence of „aggravated penetrative sexual assault‟ is made-out against the petitioner, even though she is a woman; and the petitioner is therefore required to be put to trial for the offences as charged.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 CRL.REV.P. 852/2024

SUNDARI GAUTAM Vs STATE OF NCT OF DELHI 

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

Date of Decision: 09th August 2024.

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Important features of Bharatiya Nyaya Sanhita, 2023

 1. The new Act is called as “Bharatiya Nyaya Sanhita (BNS), 2023” and has replaced the Penal Code, 1860.

2. The Chapters and offences against women and children, murder have been given precedence. Further, the offences against women and children which were scattered throughout in the erstwhile Penal Code, 1860 have been brought together and have been consolidated under Chapter-V. In the same manner, the offences affecting the human body are also brought up in the order and placed after the Chapter on offences against women and children.

3. BNS has been streamlined and it will now consist of only 358 Sections as opposed to 511 Sections in IPC, 1860.

4. All three incomplete category offences i.e. Attempt, Abetment and Conspiracy are brought together under one Chapter- IV of the BNS, 2023. Earlier these offences were part of different Chapters.

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Criminal Law amendment Act 2018

http://www.prsindia.org/uploads/media/Criminal%20Law%202018/Criminal%20Law%20(A)%20Act,%202018.pdf

 Lok Sabha has passed the Criminal Law (Amendment) Bill 2018 that proposes to enhance punishment for rape of a child. The Bill provides for death penalty as the maximum punishment in cases of rape of a child under 12. The Bill seeks to replace the Criminal Law (Amendment) Ordinance promulgated on April 21 following an outcry over the rape and murder of a minor girl in Kathua in Jammu and Kashmir and the rape of another woman at Unnao in Uttar Pradesh.

Responding to the passage of the Bill in the Lok Sabha on July 30, Minister of State for Home Affairs Kiren Rijiju said that the POSCO was gender-neutral while the new law pertains to girls specifically. The Criminal Law (Amendment) Bill 2018 will amend relevant Sections of the IPC, CrPC and also POCSO Act.

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