The Delhi High Court recently observed that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is gender neutral and it is ‘most insensitive’ and misleading that it is being misused.
Justice Swarana Kanta Sharma stated that any law whether gender-based or not, has the potential of being misused but that it doesn’t mean that the legislature should stop enacting those laws and the judiciary should stop implementing them.
The Court also underlined, “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.”
Justice Sharma addressed this condition while hearing a plea filed by a man accused of sexually assaulting a seven-year-old girl in 2016 and was also charged with multiple offences under the POCSO Act as well as Sections 376 (rape) and 506 (criminal intimidation) of the Indian Penal Code (IPC).
The accused Rakesh had approached the High Court challenging the trial court order which rejected his application under Section 311 of the Code of Criminal Procedure (CrPC). The petitioner had sought directions to re-call the survivor and her mother that their cross-examination conducted earlier was just for the formality.
Post thorough consideration of the case, the Court said that six years have passed since the testimonies of the prosecutrix and her mother were recorded before the trial court.
The Court further noted that child-victim has relived the trauma of perverse sexual assault at a very tender phase of life. She was once sexually assaulted at the age of only 7 years. She relived the deep pain of that incident while recording her statement before the police and under Section 164 CrPC before the Magistrate and then before the trial court while recording her evidence.
The Court held, “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.“
Advocate Hitesh Thakur represented the petitioner Rakesh. While the State was presented through Additional Public Prosecutor (APP) Manoj Pant.
Source: https://www.barandbench.com/news/litigation/pocso-act-gender-neutral-most-insensitive-misused-delhi-high-court