The Karnataka High Court on Monday (August 18) dismissed a 52-year-old woman’s plea for quashing a sexual assault complaint registered by the parents of a minor boy against her under the POCSO Act, observing that the provisions of the Act apply to both men and women and thus the act is “gender neutral”.

Justice M Nagaprasanna while pronouncing the order said “POSCO Act being a progressive enactment is intended to safe guard sanctity of childhood it is rooted in gender neutrality with its beneficient object being protection of children, irrespective of sex. The act is thus gender neutral.”

Declaring that the offence of penetrative sexual assault can be alleged even against a woman under the Protection of Children from Sexual Offences (POCSO) Act, 2012, as this law is gender-neutral, the High Court of Karnataka on Monday refused to quash a criminal case against a 52-year-old woman, who allegedly compelled a 13-year-old boy for sex with her at her residence here during 2020.

The two instances of sexual assaults had allegedly taken place between May and June, 2020, when the accused woman Archana, an artist aged around 48 and the boy who was around 13 years and 10 months old then.
The accused, who was the boy’s neighbour, had come in contact with him through his mother, who initially sent him to the house of the accused to help her post her paintings on her Instagram account following the request made by the accused.

The boy, who was psychologically distressed, had immediately not disclosed the alleged acts to his parents, who later decided to settle down in Dubai and shifted there in August, 2020, along with him and his younger sister.
He disclosed the alleged acts only in 2024 and narrated details to a therapist in Dubai, and then the complaint was lodged with the HAL police station by the boy’s mother in June, 2024.

The boy was aged around 17 when his statements were recorded by the magistrate and the child protection officer. It was alleged that accused woman had convinced the boy not to disclose the acts with anyone, stating that both of them would be in trouble. The accused woman’s husband and daughter are said to be living abroad.

Rejecting the argument on behalf of the accused that offence of aggravated sexual assaults or rape cannot be invoked against a woman, the court pointed out that Sections 4 and 6 of the POCSO Act makes it clear that anyone who “compels a minor child to do penetrative or other sexual acts with him or other persons”, is an offender.
Though the pronoun “he” and its derivatives were not defined under the POCSO Act, which only states that a child is any person below the age of 18, Justice M. Nagaprasanna, relying on the definitions in the Indian Penal Code (IPC), held that the pronoun “he” and its derivatives in POCSO will also have to be used, “of any person, whether male or female.”

It was argued on behalf of the accused that the victim boy could not have had an erection if he was in shock when the accused had allegedly made sexual advances. However, the court said, quoting a study, “State of shock is a psychological concept. Erection is purely a physiological or a biological concept. Psychological concepts would not sometimes control physiological and biological actions.”

To the submission that in an intercourse the woman is only a passive participant and a man is an active participant, the court pointed out that “this thought itself is archaic”.

Rejecting the contention of the accused that there was a delay of four years in registration of crime, the court said, “The delay in the registration of crime cannot become a reason for quashment of proceedings owing to the alleged offence and age of the victim.”
The court further said that the argument regarding psychological impossibility and absence of potency testing of the accused fall flat in the light of modern jurisprudence.

The court also held that the submission that a woman is only a passive participant and the man is an active participant is to be “emphatically rejected”.

Following which it held “Therefore none of the submissions made by the senior counsel merit acceptance and thus finding no merit the petition stands dismissed.”

Senior Advocate Hashmath Pasha appearing for the petitioner had submitted that the complaint under Sections 4 (Punishment for penetrative sexual assault) and 6(Punishment for aggravated penetrative sexual assault) of the POCSO Act is lodged after four years. The alleged offence took place in 2020 and an FIR was filed in this year.

Pasha had contended that charges of aggravated sexual assault are levelled against the petitioner for allegedly committing the offence on a 13-year-old school going boy, who was earlier neighbour of the petitioner. There was some financial transaction between the parties and to avoid the repayment they (complainant) have set up this case, he claimed.

The delay of four years in registering the complaint and non-conduct of potency test of the boy, cannot become the reason for quashing the case, owing to the alleged offence and the age of the victim boy, the court said.