Offences Under Sec. 377 IPC And POCSO Act Against Small Children Cannot Be Settled By Compromise: Delhi High Court

The Delhi High Court on Friday held that the court cannot permit quashing of FIR merely on the ground that the parties have entered into a compromise where the FIR relates to heinous offences against small children under sec. 377 of Indian Penal Code and POCSO Act.

Justice Subramonium Prasad has dismissed the petition filed under sec. 482 Cr.P.C. praying for quashing of an FIR dated 22.11.2019 registered in Patel Nagar police station under sec. 377 of IPC read with sec. 4 of POCSO Act.

Sec. 377 of the IPC provides for "unnatural offences" whereas sec. 4 of the POCSO Act provides for the punishment for penetrative sexual assault.

The complainant, father of a seven year old son, registered the FIR after his son told him that the accused, resident of the same building, had sodomised him after he left for work. Later, the complainant had found his son's underwear soaked in blood.

The final report of the police stated that there was enough evidence on record to proceed against the accused person.

The accused had thereafter filed a petition in the HC for quashing of the FIR on the ground that due to the "intervention of elders of the society and friends" the parties have decided to amicably put an end to the disputes and differences.

After looking at the facts of the present case, the Court was of the view that both sec. 377 of IPC and sec. 4 of the POCSO Act are non compoundable offences and that the court while exercising its power under sec. 482 CrPC cannot quash criminal proceedings for non compoundable offences.

At the outset, the Court relied on the judgment of Shiji & Ors v. Radhika & Anr reported as (2011) 10 SCC 705 wherein the Court held that "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 nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim has settled the dispute. Such offences are, truly speaking, not private in nature 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 offences."

In view of this, the Court held that in the instant case, the victim being a seven year old boy has been a victim of grave offences committed by the petitioner accused.

"The POCSO Act was enacted only because sexual offences against children were not being adequately addressed by the existing laws and the purpose of the Act was to provide protection to children from sexual assault and sexual harassment and for safeguarding the interest and well being of children. Permitting such offences to be compromised and quashing FIRs will not secure the interest of justice." The court held.

Furthermore, the Court went ahead to observe that an offence under Section 377 IPC committed on a child of seven years or an offence under Section 4 of the POCSO Act shows the mental depravity of the offender and cannot be said to be private in nature.

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

Therefore, the Court held that the FIR cannot be quashed merely because the father of the victim has decided to enter into a compromise with the petitioner/accused.

"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 offence 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." The bench observed while dismissing the petition.

Case Name: Sunil Raikwar v. State & Anr.

Judgment dated: 29.01.2021