Karnataka High Court: In a criminal petition filed by a 52-year-old woman for quashment of allegations of sexual assault against a minor boy, a single-judge bench of M. Nagaprasanna, J., held that the Protection of Children from Sexual Offences Act, 2012 (‘POCSO 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. Therefore, POCSO Act is gender neutral. The Court further held that a woman can be prosecuted for offences under Sections 4 and 6 of the POCSO Act. The Court observed that delay in registration of the crime cannot become a reason for quashment of the proceedings owing to the nature of offence and tender age of the victim. The Court observed that the argument 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.
BACKGROUND
The complainant, the second respondent, and her family, including her two children, moved to the neighbouring Villa where the accused, an artist, had been residing for 22 years. A neighbourly bond developed, and the accused, who offered art lessons to children, including the victim, the complainant’s son. The victim aged around 13, frequently visited the accused’s house and developed an affinity with her. The complainant and her family moved to Dubai in August 2020 and lived there for four years. During this time, the victim exhibited psychological changes.
Upon confrontation, the victim confessed to his mother that the accused had sexually abused him on multiple occasions between February and June 2020. The accused had taken the victim to her bedroom, undressed herself and the victim, and forced him to commit the act of intercourse on her and after that is said to have sent him threatening, that if he would reveal anything to anybody, it would be dangerous to both. Another similar incident was alleged to have occurred in May 2020. The complaint was registered under Sections 4 and 6 of the POCSO Act. After an investigation, the police filed a charge sheet, and the concerned court took cognizance of the offence. The accused filed present criminal petition under Section 482 of the Criminal Procedure Code 1973 (‘CrPC’) seeking to quash the proceedings.
ISSUES
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Whether the POCSO Act is gender neutral?
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Can offences under Sections 4 and 6 of the POCSO Act be alleged against a woman?
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Whether the ingredients of Sections 4 and 6 are met in the case?
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Whether the delay in registering the crime vitiated the proceedings?
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Whether the non-conduct of a potency test vitiated the proceedings?
COURT’S ASSESSMENT
On Gender-Neutrality of POCSO
The Court began by examining the legislative history and the Statement of Objects and Reasons of the POCSO Act. The Court referring to POCSO Act noted that,
“The Act was not a mere statutory addition; it was a resolute response to a growing crisis and unspeakable horrors of sexual assault, harassment and pornographic exploitation of children. In harmony with Articles 15 and 39 of the Constitution of India, the Act breathes life, into the directive principles, to exhort the State to protect childhood from degradation. It was India’s solemn commitment to the United Nation’s convention on the rights of the child, their protection from any form of sexual misconduct.”
The Court noted that the POCSO Act was enacted to create a special law for the protection of children from sexual assault and that it was intended to protect both male and female children. The male children below 18 years have the same protection as provided for girls. The Court highlighted that the 2019 amendment to the POCSO Act made the gender-neutral nature even more explicit.
The Court while referring to the definitions under POCSO and Penal Code, 1860 (‘IPC’) noted that Section 8 of the IPC deals with gender. It directs the pronoun ‘he’ and its derivatives are used of any person, whether male or female. Child in terms of Section 2(d) is to mean, any person below the age of 18 years. A person cannot mean only a girl. A person would mean, a person of both genders and this interpretation was simple, stark and unambiguous. The pronoun ‘he’ is not defined anywhere in the Act. Section 2(2) therefore must fall back upon the definition of that pronoun as it appears in Section 8 of the IPC. The intention of the legislature is undoubtedly to provide protection to children from sexual offences, which was regardless of whether the offence is committed upon a child, by a man or a woman. Thus, the Court noted that the law, in both text and tenor, extends its sheltering canopy to every child, unfettered by gender, class or circumstance.
The Court noted that in Sundari Gautam v. State (NCT of Delhi), 2024 SCC OnLine Del 5412, the Delhi High Court held that protection the Act affords, and accountability it demands operates with equal rigor, irrespective of genders of the victim or the perpetrator. The Court in light of the above discussions opined that,
“in its essence the Act qua the objects and reasons, both in its original form of 2012 and as fortified in 2019 stands as a testament to such interpretation. Thus, when read holistically, through its objects, amendments and judicial interpretation, the Act emerges as a legislation that is profoundly inclusive in its embrace, it does not differentiate gender wise. Therefore, there can be no shadow of a doubt, that the Act is Gender Neutral.”
On offences under Sections 4 and 6 being alleged against a Woman
The Court after perusing Sections 3, 5 and 6 noted that-
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Section 3 opens with the words ‘a person’ — a term that is gender neutral by design. Clause (a) specifies ‘he penetrates his penis’, but significantly, it immediately expands the scope to include instances where the accused ‘makes the child to do so with him or any other person’. The import of this clause is not confined to physical act alone, but extends to any person who induces, coerces or facilitates such an act regardless of their gender. Similarly, Clause (b) while beginning with the words ‘he inserts’ once again concludes with the critical phrase ‘or makes the child to do so with him or any other person’. So, is true for Clauses (c) and (d). This construction leaves no room for ambiguity. The statute is comprehensive, designed to encompass acts committed by any person, male or female. The gender of the perpetrator is immaterial. What matters is the act and the involvement of the child.
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Section 5(l) among other things also punishes an act of penetrative sexual assault by whoever being in a position of trust or authority of a child commits penetrative sexual assault on a child in an institution or home of a child or anywhere else. Section 5 (p) punishes whoever commits penetrative sexual assault on the child more than once or repeatedly. These two provisions in Section 5 which form two of the ingredients of Section 6 punishes a person whoever being in the position of trust or authority and repeatedly commits penetrative sexual assault.
Further if findings of Issue 1 are applied to Issue 2 then the offences under Section 4 and 6 of the Act can undoubtedly be brought against a woman.
On ingredients of Sections 4 and 6 being met
The Court observed that when the allegations in the complaint, the statements recorded, and the summary of the charge sheet are examined through the lens of statutory ingredients, it becomes clear that the victim in question may not have performed the act of penetration on his own volition. The allegation is that the accused manipulated or induced the child to penetrate her, falls squarely within the ambit of the words in the statute “make the child to do so with her or any other person”. Therefore, this Court opined that all statutory ingredients of offence under Section 3 stand fulfilled. To suggest otherwise would be to adopt a reading of the law that is not only narrow and technical but also antithetical to its remedial purpose. The POCSO Act is designed not to serve anatomical formality but to protect the child from sexual abuse and this intent of the legislature cannot be subverted through strained and restrictive interpretations.
The Court noted that a study conducted in 2007 provided that 54.4% of children reporting sexual assault are boys while 45.6% are girls. This statistical reality underscores a critical truth that sexual violence is not confined to one gender. The Court perusing a research paper on male victims of sexual assault produced by the Department of Counsellor Education and Family Studies, of Texas Tech University noted the barriers in reporting male sexual abuse and accusations of homosexuality against adult men.
In light of the afore-stated discussion the Court observed that the ingredients of the offence are clearly met in the case at hand for an allegation under Sections 4 and 6 of the POCSO Act against the accused.
On Delay in Complaint
The Court noted that offences as mentioned hereinabove are grave. Delay in reporting such grave offences is not uncommon. The mind of a child sometimes is in a state of shock and in such state would not adhere to legal clocks. The trauma endured is invisible and insidious, and such trauma may sometimes lead to silence, which may span years. Further, the proceedings could not be obliterated on the score of delay in registering a crime of this kind, when the narration in the complaint, the statement of the victim and the statement of the mother depict vivid and gory details of the incident or incidents, as the case would be.
The Court noted that in Shreekant Sharma v. State of W.B., 2023 SCC OnLine Cal 1961, the Calcutta High Court while referring to various Supreme Court decisions held that non-reporting of the offence by the victim or non-registration of the complaint immediately after the incident, cannot become the reason for quashment of the proceedings under Section 482 of the CrPC. The Court agreeing with this interpretation of Calcutta High Court observed that delay in lodging the FIR, in cases of sexual assault concerning a child, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the victim and the family members before walking to the police station, to lodge a complaint. The Court observed that the delay in the present case did not lead to obliteration of proceedings.
On non-conduct of potency test
The Court noted that in Kajendran J. v. State, 2024 SCC OnLine Mad 3319, the Madras High Court held that male potency test need not be undertaken in a routine manner in cases involving sexual offence. It is trite law that such submissions should undoubtedly be tried and tested in evidence. They cannot become the reason for quashment of the proceedings in exercise of jurisdiction under Section 482 of the CrPC. The Court concurring with the opinion of Madras High Court dismissed the issue.
The Court rejected the accused’s argument that a sexual act would be physiologically impossible for the victim. It held that the submission that a woman is only a passive participant in sexual intercourse and a man is an active one is an archaic thought that must be emphatically rejected. The Court stated that modern jurisprudence embraces the realities of victims and does not allow stereotypes to cloud legal scrutiny. Citing scientific and sociological studies, the Court noted that a person’s physiological reactions, such as an erection, can be involuntary and can occur even under duress, fear, and psychological trauma. The Court stated that these submissions were frivolous and fell flat in light of modern jurisprudence.
The Court observed that-
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POCSO Act is a progressive enactment intended to safeguard the sanctity of childhood; therefore it is gender neutral with its beneficent object being the protection of all children, irrespective of sex. Therefore, POCSO Act is gender neutral.
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Although certain provisions may employ gendered pronouns, the preamble and purpose of the POCSO Act, render such usage inclusive. Therefore, Sections 3, 4, 5, and 6 are inclusive of both male and female.
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The ingredients of Section 4 of the POCSO Act are equally applicable to both men and women as the language of the provision clearly indicates inclusivity.
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The ingredients of the offences, the ones punishable under Sections 4 and 6 of the POCSO Act, are clearly met in the case at hand.
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Delay in registration of the crime cannot become the reason for quashment of the proceedings, owing to the alleged offence and the age of the victim.
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The submissions of psychological impossibility and absence of potency testing, fall flat in the light of modern jurisprudence.
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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.
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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 light of afore-stated reasons, the Court rejected the present petition.
[Archana Patil v. State of Karnataka, 2025 SCC OnLine Kar 17687, decided on 18-08-2025]
Advocates who appeared in this case:
For the Accused: Hashmath Pasha, Sr. Advocate a/w Kariappa N.A., Advocate
For the Respondents: State Public Prosecutor, B.N. Jagadeesha, Addl. Spp For R-1; Ashok G.V., Advocate a/w Monika H.B., Advocate For R-2
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