POCSO Act gender-neutral, misleading to say it’s being misused: Delhi HC

Justice Sharma further remarked 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 HC was hearing a man’s plea against a May 23 order of the trial court which rejected his plea for recalling the minor girl he was accused of raping and her mother, claiming that their cross-examination done earlier was “conducted just for the sake of formality without discussing the charge leveled against the petitioner/accused”.

The man was booked in a 2016 FIR under Sections 376 (rape)/506 (criminal intimidation) IPC and Section 6 (punishment for aggravated penetrative sexual assault) POCSO Act. The minor 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 the trial court in 2018.

Dismissing the man’s plea, the HC said, “The child victim in this case has relived the trauma of perverse sexual assault upon her at a very tender age of seven years, once, when she was sexually assaulted, thereafter while recording her statement before the police and under Section 164 Cr.P.C. before the Magistrate and thereafter before the 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 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”.

Perusing through the minor girl’s testimony before the trial court, Justice Sharma said that she had been “cross-examined at length” and was questioned on every aspect by the man’s previous counsel about the “time, manner, place of offence” etc.

“It would have been a different decision in case the record would have revealed that the witnesses’ cross-examination consisted of only asking few formal questions and not of the incident, but in the present case, to the contrary, as already observed above, the cross-examination had been conducted at length and all relevant aspects had been covered by the previous counsel for the petitioner…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,” the HC said.