NEW DELHI: The Delhi High Court has said that the POCSO Act is a gender-neutral legislation and rejected a contention that the law is being misused.
A bench of Justice Swarana Kanta Sharma took exception to the submission made by an accused under the Protection of Children from Sexual Offences (POCSO) Act seeking to cross-examine the victim again before the trial court, and termed it insensitive, inappropriate and misleading.
The judge said the legislature cannot stop enacting laws nor judiciary can stop applying them only because they can be misused as they are enacted to curb offences and get justice to genuine victims.
The contentions of counsel for the petitioner in the pleadings as well as during oral arguments that the POCSO Act is a gender-based legislation and therefore is being misused is not only inappropriate but misleading too. To say the least, POCSO Act is not gender-based and is neutral as far as victim children are concerned, the court said.
In its July 31 order, the bench said moreover, to argue that the legislation is being misused and using the language such as 'as the complainant by keeping a gun on her minor daughter's shoulder had implicated the applicant in the present case so as to coerce him to re-pay a friendly loan that he had taken from her husband (as mentioned in the petition) have been found to be most insensitive by this court.
The bench also observed that any law, whether gender-based or not, has the "potential of being misused" but that does not mean that the legislature will stop enacting such laws as they have been enacted to "curb the larger menace of commission of such offences and getting justice to genuine victims".
The man challenged validity of a May 23 order of the trial court which rejected his plea for recalling the minor he was accused of raping and her mother, claiming that their cross-examination done earlier was "conducted just for sake of formality without discussing the charge levelled against petitioner/accused".
The man faced the 2016 FIR under Sections 376 (rape) 506 (criminal intimidation) IPC and Section 6 (punishment for aggravated penetrative sexual assault) POCSO Act. The girl was seven years old at the time of the incident in 2016 and was nine years old when her cross-examination took place in trial court in 2018.
The HC rejected the man's plea, saying "The child victim... has re- lived the trauma of perverse sex- ual assault upon her at a very ten- der age... once, when she was sexually assaulted, thereafter while recording her statement before police and under Section 164 CrPC before Magistrate and... before learned Trial Court while recording her evidence. The victim having gone through this repeated trauma on a number of occasions...cannot be directed to appear once again after six years to depose... only on the ground that previous counsel had cross- examined the witness in a manner which the new counsel does not find sufficient or appropriate".
The court said though the accused has to be granted and ensured a fair trial, it cannot mean being afforded unjustified repeated opportunities of cross-examination in every case to indicate fair trial as the case of an accused has to be meritorious where a relief as prayed for in the present case, can be granted.
"While balancing the right of the accused to a fair trial and upholding the intent of the legislation, the courts are duty bound to remain sensitive to the plight of the seven-year-old sexual assault victim. She and her mother cannot be recalled to relive the entire trauma only because the new counsel is dissatisfied with the elaborate cross-examination of these witnesses," the bench said.
