Parties Cannot Be Permitted To Quash FIR For Offences u/s 377, Indian Penal Code and Section 4 POCSO Act By Compromise: Delhi High Court

  • Shruti Kakkar
  • 04:44 PM, 01 Feb 2021

The Delhi High Court on Friday held that the Court could not permit to quash FIR for offences u/s 377 of the Indian Penal Code,1860 and Section 4 of the POCSO Act, which are non-compoundable on the ground that the parties have decided to put an end to dispute and differences amicably.

"The High Court cannot mechanically quash FIRs for non-compoundable offenses by exercising powers under Section 482 CrPC just because parties have decided to bury their hatchets. It is well settled that the power under Section 482 CrPC is distinguished on the powers that lie on the Court to compound the offenses compoundable under Section 320 of the Code. Undoubtedly, under Section 482 of the Code, High Court has the power to quash even in cases that are not compoundable, where the parties have settled the matter between themselves. Still, the power has to be exercised fairly and with caution", the Single Bench comprising Justice Subramonium Prasad held.

The Bench observed that "We cannot lose sight of the fact that the accused is being prosecuted for an offense that shocks the value system of society, and this is not a matter that can be permitted to be settled as a compoundable minor offense. Deterrence to others committing a similar offense is a must, and they cannot get a signal that anything and everything can be compromised."

In the present case, the father of the victim lodged FIR on 21.11.2019, in which he stated that on 20.11.2019, when he returned after finishing his work, his seven-year-old crying son told him that the accused stayed in the same building and sodomized him. He also found that the underwear of the child was wet with blood. After the investigation was complete, the final report was filed stating that there was enough material to proceed against the petitioner for offenses u/s 377 (Unnatural offenses) IPC and Section 4 (Punishment for penetrative sexual assault.) of the POCSO Act.

The High Court has referred to the Supreme Court's judgment in Narinder Singh & Ors v. State of Punjab & Anr (2014) 6 SCC 466 in which it was observed that "29.2. When the parties have reached the settlement and, on that basis, petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court.

While exercising power, the High Court is to form an opinion on either of the aforesaid two objectives."

The Court also referred to the Supreme Court's judgment in Parbatbhai Aahir & Ors v. State of Gujarat & Anr (2017) 9 SCC 641 in which it was observed that "16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the offense's nature and gravity. Heinous and serious offenses involving mental depravity or offenses such as murder, rape and dacoity cannot appropriately be quashed. However, the victim or the family of the victim have settled the dispute. Such offenses are, truly speaking, not private but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offenses."

The Court went ahead to emphasize that the purpose of enactment of the POCSO Act was to protect the children from sexual assault and sexual harassment and to safeguard the interest and well being of children and held that,

"An offense u/s 377, IPC and section 4, POCSO Act committed on a child of seven years shows the mental depravity of the offender and cannot be said to be private. Permitting compromise and quashing FIR for such offenses would have a serious impact on the society and would not secure the interest of justice."

Thus in the instant case, the Court, while dismissing the petition, held that "This court is desisting from imposing any costs on the parties for filing a petition under Section 482 CrPC for quashing of FIR in respect of a heinous offense against a small child on the ground that the parties have entered into a compromise as it will cause serious prejudice to the rights of the petitioner."

At the outset, the Court also relied on the Supreme Court's judgment in Shiji & Ors v. Radhika & Anr (2011) 10 SCC 705 in which it was observed that "18. We must hasten to add that the power under Section 482 CrPC's plenitude makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demand that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence, for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked."

Case Title: Sunil Raikwar V. The State and Anr.

Statute/ Point of Law Involved: Section 377, Indian Penal Code, 1860 and section 4, POCSO Act

Access Copy of Judgment Here