POCSO Act Is Gender Neutral And A Woman Can Be Made Accused: Karnataka HC

It is absolutely most significant to note that in a path breaking step with far reaching consequences affecting minors, the Karnataka High Court in a most learned, laudable, landmark, logical and latest judgment titled Smt. Archana Patil v. State of Karnataka in Criminal Petition No. 12777 of 2024 that was reserved on 1.7.2025 and then finally pronounced on 18.8.2025 while 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 has refused to quash a criminal case against a 52-year-old woman who allegedly compelled a 13-year-old minor boy for sex with her at her residence here during 2020. It must be disclosed here that the two instances of sexual assault had allegedly taken place between May and June 2020, when the accused women Archana, an artist aged around 48 and the boy who was around 13 years and 10 months old then and complaint was filed by the victim minor boy’s family. The petition of the woman was thus rejected by the Karnataka High Court and it was held explicitly by the Single Judge Bench comprising of Hon’ble Mr Justice M. Nagaprasanna who authored this notable judgment that woman would also be subject to the provisions of the Protection of Children from Sexual Offences (POCSO) Act, noting very rightly that the law was “gender neutral”.  

At the very outset, this progressive, pragmatic, persuasive and pertinent judgment sets the ball in motion by first and foremost putting forth precisely in para 1 that, “The petitioner, the sole accused, now seeks sanctuary before this Court invoking its extraordinary jurisdiction under Section 482 of the Cr.P.C. challenging the legality of proceedings initiated in Spl.C.C.No.2050 of 2024 pending before the Additional City Civil and Sessions Judge, Bangalore City (FTSC-1) arising out of crime in Crime No.533 of 2024, a case which bears grave imprint of offences alleged under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘Act’ for short).”

To put things in perspective, the Bench then envisages in para 2 stating that, “The brief tapestry of facts, interwoven, are as follows:-

2.1. The 2nd respondent is the complainant. It is the case of the prosecution that the 2nd respondent with her husband one Bipin Therat Sethumadhavan and two children – Master Xxxxx aged about 13 years and Miss. Bhadra Priya, aged about 10 years were residing in a rented villa, Villa No.132 of Adharsh Vista, a community living at Doddanekundi, Bangalore since 2020. The Adharsh vista community living consisted of 200 villas. The petitioner is a resident at Villa No.127, residing at the said place since 22 years. The complainant and the family come to reside at the neighbouring villa. The bond of neighbourly warmth blossomed between the complainant’s family and the petitioner, who was reputedly an accomplished Artist, offering Art lessons to the children of the community. The children drawn by the lure of colors and creativity, frequently visited the house of the complainant, so did the victim. The victim is then said to have developed an affinity that deepened into frequent exchanges of messages and numerous visits.

2.2. The 2nd respondent/complainant and the family is said to have decided to settle down in Dubai. Therefore, they vacated the Villa on 22-08-2020 and went to Dubai. The son was admitted to a school in Dubai and they continued to stay in Dubai for a period of 4 years. After the examination of the son, they returned back to India and gone to Cochin and after visiting Cochin come to Bangalore; straight drove to the jurisdictional police station where the complainant registered a complaint of sexual abuse of the petitioner upon her son (hereinafter referred to as the ‘victim’). The crux of the complaint was that the victim boy throughout the 4 years in Dubai was not active and had psychological changes in him. When the mother confronted the son, the victim boy is said to have confessed that the petitioner had called him to her house for four or five months on a continuous basis, between February and June 2020 and the conversation initially began and led to downloading some art pictures on Instagram and the petitioner had then taken him to her bedroom, unrobed herself and also the victim and asked the boy to commit the act of intercourse on her and after that is said to have sent him threatening, that if he would reveal anything to anybody, it would be dangerous to both of them. This is the beginning of the activity.

2.3. Thereafter, on 17-05-2020 on another occasion, a girl by name Shreya had come to the house of the petitioner and, therefore, the victim boy also goes there and on that day after sending the girl Sherya out, the victim boy was again subjected to sexual abuse by the petitioner. The complaint then becomes a crime in crime No.533 of 2024 for offences punishable under Sections 4 and 6 of the Act. The Police then conduct investigation and file a charge sheet against the petitioner for the afore-quoted offences. The concerned Court, in terms of its order dated 29-10- 2024 takes cognizance of the offence and issues summons to the petitioner. It is then the petitioner immediately knocks at the doors of this Court in the subject petition.

2.4. Prima facie, due to certain delay in registration of crime, this Court had granted an interim order of stay of further trial against the petitioner which is still in subsistence. The matter was heard and reserved for its judgment on 12-06-2025. The learned senior counsel for the petitioner moves the matter thereafter on the score that some more submissions have to be made in the light of importance that the case projected, as it is one of its kind that has ever come up for interpretation before the Court. In the light of these submissions, to have further enlightenment in the matter and also to afford opportunity to make submissions on left over/additional events, the matter was again posted for further hearing in the light of the nature of offence and the protagonists in the episode of crime. Therefore, on 01-07-2025 the matter was heard at length all over again.”

It is worth noting that the Bench then hastens to add in para 22 noting that, “Therefore, none of the submissions of the learned senior counsel for the petitioner, however artfully presented or obfuscating in tenor, persuade this Court to countenance those contentions. The case stands cloaked in disputed questions of fact, where the offences alleged strike at the core of penetrative and aggravated penetrative sexual assault, such proceedings cannot be erased with a mere stroke of pen. The trial, in such cases, is not a perfunctory ritual, but imperative necessity. It is for the petitioner to come out clean in its full blown form.”

Most significantly and most remarkably, the Bench then as a corollary encapsulates in para 23 what constitutes the “cornerstone and heartbeat” of this notable judgment postulating succinctly that, “Thus, all the arguments raised by the learned senior counsel for the petitioner would crumble, when weighed against the bulwarks of the statute, the charge sheet and the societal need to ensure justice to the voiceless. This Court cannot snuff out the trial before its inception.

SUMMARY OF FINDINGS:

The Act, being a progressive enactment, is intended to safeguard the sanctity of childhood. It is rooted in gender neutrality with its beneficent object being the protection of all children, irrespective of sex. The Act is thus, gender neutral.  

Sections 3 and 5 which form the foundation for offences under Sections 4 and 6 of the Act, delineate various forms of assault. Although certain provisions may employ gendered pronouns, the preamble and purpose of the Act, render such usage inclusive. Therefore, it is inclusive of both male and female.  

The ingredients of Section 4 of the Act dealing with penetrative sexual assault are equally applicable to both men and women. The language of the provision clearly indicates inclusivity.  

The ingredients of the offences, the ones punishable under Sections 4 and 6 of the Act, are clearly met in the case at hand.”

Delay in registration of the crime, in the case at hand, cannot become the reason for quashment of the proceedings, owing to the alleged offence and the age of the victim.  

The submissions of psychological impossibility and absence of potency testing, fall flat in the light of modern jurisprudence, noted hereinabove.  

The submission that psychological trauma cannot result in an erection would tumble down, in the light of several studies, that psychological trauma does not always prelude physiological or biological reactions, especially ones of coercion and fear.  

The submission that, in an intercourse the woman is only a passive participant and a man is an active participant is noted only to be emphatically rejected, as the thought itself is archaic. The jurisprudence of the present times embraces the livid realities of victims and does not allow stereotypes to cloud legal scrutiny.”   

Finally and resultantly, the Bench then concludes by holding aptly that, “Therefore, none of the submissions made by the learned senior counsel would merit any acceptance, wherefore, finding no merit in the petition, the petition stands rejected. It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioner under Section 482 of the Cr.P.C. and does not bind or influence the proceedings pending against the petitioner before the concerned Court.”

In a nutshell, we thus see that the Single Judge Bench comprising of Hon’ble Mr Justice M. Nagaprasanna has made it indubitably clear like broad day sunlight that POCSO Act is gender neutral. It was also made abundantly clear in this leading judgment that a woman can also be punished under this POCSO Act! We thus see that the Karnataka High Court refused to quash the criminal sexual assault case that had been lodged against the woman petitioner and the petition was thus dismissed. Very rightly so!