J U D G M E N T

ANUP JAIRAM BHAMBHANI J.

By way of the present revision petition filed under section 397 read with section 482 of the Code of Criminal Procedure 1973, the petitioner impugns order dated 14.03.2024, whereby, based upon chargesheet dated 10.02.2023, the learned ASJ, Saket Courts, New Delhi has framed charge against the petitioner under section 6 of the Protection of Children from Sexual Offences Act, 2012 („POCSO Act‟).

2. Notice on this petition was issued vide last order dated 08.07.2024;

consequent whereupon Status Report/Reply dated 12.07.2024 has been filed by the State.

3. The court has heard Mr. Piyush Sachdev, learned counsel for the petitioner as well as Mr. Utkarsh, learned APP appearing for the State.

SUBMISSIONS ON BEHALF OF THE PETITIONER

4. Mr. Sachdev submits, that the petitioner challenges order dated

14.03.2024 made by the learned ASJ principally on the following three grounds :

4.1. First, Mr. Sachdev contends, that the incident that is the subject matter of the FIR dates back to 17.07.2018 but the FIR was registered some 04 years after the date of the alleged commission of the offence; and is therefore vitiated by inordinate and unexplained delay.

4.2. Second, Mr. Sachdev submits, that based on the material collected during investigation, the chargesheet itself records that no intent of sexual assault can be attributed to the petitioner; and that absent any sexual intent, no purpose would be served by putting the petitioner through trial. It is argued that the aforesaid observation appearing in the chargesheet is based upon the investigation conducted by the police themselves, and in particular it is based on the statement of the petitioner‟s 06-year-old son, who the police say was present in the house, as also on the opinion of the doctor who examined the injuries found on the body of the victim.

4.3. Third, Mr. Sachdev argues, that the offence of “penetrative sexual assault” as defined in section 3 of the POCSO Act, and therefore the offence of “aggravated penetrative sexual assault” appearing in section 5 thereof, can never be made-out against a woman, since a plain reading of the definition in section 3 shows that it only, and repeatedly, uses the pronoun „he‟; meaning thereby that the intent of the Legislature was only to make a man liable for the offence under section 3 of the POCSO Act. It is argued that since section 3 has no application to a woman, section 5 which refers only to an aggravated form of the offence under section 3, can also apply only to a man and not to a woman. To bolster this submission, emphasis has been placed Mr. Sachdev to the definition of „rape‟ under sections 375 and 376 of the Indian Penal Code, 1860 („IPC‟). Counsel submits that the definition of rape appearing in IPC is in pari materia with the definition of „penetrative sexual assault’ in section 3 of the POCSO Act; and that therefore an offence under section 3 of the POCSO Act can only be committed by a man just as an offence under section 375 of the IPC. Mr. Sachdev places reliance on judgment of the Supreme Court in Independent Thought vs. Union of India & Anr.,1 wherein it has been held that “… …there is no real distinction between the definition of “rape” under IPC and the definition of “penetrative sexual assault” under the POCSO Act… …”

SUBMISSIONS ON BEHALF OF THE STATE

5. Opposing the submissions made on behalf of the petitioner, Mr.Utkarsh, learned APP appearing for the State explains, that the delay in registration of the FIR was by reason of the fact that the (2017) 10 SCC 800 victim was admitted to Safdarjung Hospital, New Delhi for treatment; and after considering the nature of the injuries sustained by the child victim, she was then referred to an NGO. Thereafter, a counsellor from the Child Welfare Committee („CWC‟) recorded the victim‟s statement and the matter was referred to the concerned Juvenile Justice Board („JJB‟). It is submitted that it was only after all these proceedings that the FIR came to