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Synopsis

The Delhi High Court has recently observed that the Protection of Children from Sexual Offences Act, 2012, is not gender based and is neutral as far as victim children are concerned and it is most insensitive to argue that the legislation is being misused.

The court was dealing with a plea filed by a man accused of sexual assault of a seven-year-old girl in 2016 and charged with several offences under the POCSO Act as well as Sections 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code (IPC). He was challenging trial court’s order dismissing his application to recall the minor victim and her mother.

“To say the least, POCSO Act is not gender based and is neutral as far as victim children are concerned. Moreover, to argue that the legislation is being misused and using the language such as “as the complainant by keeping a gun on her minor daughter’s shoulder had implicated the applicant in the present case so as to coerce him to re-pay a friendly loan that he had taken from her husband” (as mentioned in the petition) have been found to be most insensitive by this Court”, said Justice Swarana Kanta Sharma.

Justice Sharma said that any law whether gender based or not, has the potential of being misused. “However, only because laws can be misused, the legislature cannot stop enacting laws nor judiciary can stop applying such laws since they have been enacted to curb the larger menace of commission of such offences and getting justice to genuine victims”, the Judge added.

The single-judge bench said that the contention of the counsel for petitioner in the pleadings as well as during oral arguments that the legislation of the POCSO Act is a gender-based legislation and therefore it is being misused is not only inappropriate but misleading too.

On perusal of the record, the court further said that it revealed that six years had passed since the testimonies of the prosecutrix and her mother were recorded before the Trial Court.

While dismissing the plea, the court noted that the child victim in this case had relived the trauma of perverse sexual assault upon her at a very tender age of seven years, once, when she was sexually assaulted, thereafter while recording her statement before the police and under Section 164 CrPC before the Magistrate and thereafter before the Trial Court while recording her evidence.

“The victim, being only of seven years of age having gone through this repeated trauma on number of occasions and period mentioned above, cannot be directed to appear once again after six years to depose about the same incident, only on the ground that the previous counsel had cross-examined the witness in a manner which the new counsel does not find sufficient or appropriate”, the court held in its order dated July 31.

Case Title: Rakesh v. State of NCT of Delhi & Anr.