In an order passed on August 9, Justice Anup Jairam Bhambhani said that on a conjoint reading of the POCSO provisions, the word ‘he’ appearing in Section 3 of the POCSO Act cannot be given a restrictive meaning to say it refers only to a male.
It must be given its intended meaning and it includes within its ambit any offender irrespective of their gender, the Court stressed.
“It is clear that the pronoun ‘he’ is not defined anywhere in the POCSO Act. In view of the provision of section 2(2) of the POCSO Act, one must fall back upon the definition of that pronoun as it appears in section 8 of the IPC. Giving due regard to the fact that the Legislature enacted the POCSO Act in order 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 court must not interpret any provision of the statute that derogates from the legislative intent and purpose,” the Court said.
The Court further noted that the provision include within its scope insertion of any object and not just body part and hence, it would be illogical to say that the offence is restricted to insertion of penis alone.
“When viewed from this lens, the only rational inference is that 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 therefore be completely illogical to say that the offence contemplated in those provisions refers only to penetration by a penis,” the Court said.
Source: Barandbench
