SUNIL RAIKWAR  Vs THE STATE AND ANR.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 186/2021
Date of decision: 29th January, 2021
IN THE MATTER OF:
SUNIL RAIKWAR ….. Petitioner
Through Mr. Amit Gupta, Advocate

versus

THE STATE AND ANR. ….. Responde nts
Through Ms. Kusum Dhalla, APP for the State
Mr. Rahul Raheja, Advocate for R -2
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.
1. The petitioner has filed this petition under Section 482 CrPC for
quashing FIR No.389/2019 da ted 22.11.2019 registered at Police Station
Patel Nagar for offences under Section 377 IPC read with Section 4 of the
Protection of Children f rom Sexual Offence s Act (POCSO Act ).
2. The respondent No.2/ complainant filed the instant FIR stating that he
is a r esident of H.No.26/70 I st floor, West Patel Nagar, Central Delhi
working as a mason and stays with his son aged seven years. He stated that
on 20.11.2019, he returned after finishing his work at 8.00 p.m., and found
his son crying. When he enquired from h is son, his son told him after he left
for work at 2.00 p.m., the accused who stays in the same building had come
and sodomised him.
3. It is stated in the complaint that the underwear of the child was wet
with blood. The FIR was lodged on 21.11.2019 and on completing
investigation, the final report has also been filed stating that there is enough
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material to proceed against the petitioner for offences under Section 377 IPC
and Section 4 POCSO Act.
4. The instant petition has been filed for quashing of the FIR primarily
on the ground that due to intervention of elders of the society and friends,
the parties have decided to amicably put an end to the disputes and
differences. The affidavit of respondent No.2/complainant has also been
filed stating that all the d isputes have been settled between the respondent
No.2 and the petitioner and that respondent No.2 has no objection to the FIR
No.389/2019 dated 22.11.2019 registered at Police Station Patel Nagar for
offences under Section 377 IPC read with Section 4 of th e POCSO Act
being quashed .
5. Heard Mr. Amit Gupta, learned counsel for the petitioner, Mr. Rahul
Raheja, learned counsel for the respondent No.2/complainant and Ms.
Kusum Dhalla, learned APP for the State.
6. The respondent No.2 has also joined the proceedings through video
conferencing.
7. Section 377 IPC and Section 4 of the POCSO Act are non –
compoundable offences. It is well settled that while exercising powers
under Section 482 CrPC to quash criminal proceedings for non –
compoundable offences on the basis of co mpromise, the High Court should
scan the entire facts to find out the thrust of allegations and the crux of the
settlement (refer State of Maharashtra v. Vikram Anantrai Doshi & Ors
reported as (2014) 15 SCC 29 ).
8. The High Court cannot mechanically quash FIRs for non –
compoundable offences by exercising powers under Section 482 CrPC just
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because parties have decided to bury the ir hatchet s. It is well settled that the
power under Section 482 CrPC is to be distinguished on the powers which
lies on the court to compound the offences compoundable under Section 3 20
of the Code. No doubt, under Section 482 of the Code, High Court has the
power to quash even in those cases which are not compoundable, where the
parties have settled the matter between themselves, but the power has to be
exercised fairly and with caution. The Supreme Court in Narinder Singh &
Ors v. State of Punjab & Anr reported as (2014) 6 SCC 466 has observed as
under:
“29. In view of the aforesaid discussion, we sum up and lay down
the following p rinciples by which the High Court would be
guided in giving adequate treatment to the settlement between the
parties and exercising its power under Section 482 of the Code
while accepting the settlement and quashing the proceedings or
refusing to accept th e settlement with direction to continue with
the criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to
compound the offences under Section 320 of the Code. No doubt,
under Section 482 of the Code, the High Court has inherent
power to quash the criminal proceedings even in those cases
which are not compoundable, where the parties have settled the
matter between themselves. However, this power is to be
exercised sparingly and with caution.
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 o f any court.
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While exercising the power the High Court is to form an
opinion on either of the aforesaid two objectives.
29.3. Such a power is not to be exercised in those prosecutions
which involve heinous and serious offences of mental depravity
or offenc es like murder, rape, dacoity, etc. Such offences are
not private in nature and have a serious impact on society.
Similarly, for the offences alleged to have been committed
under special statute like the Prevention of Corruption Act or
the offences committ ed by public servants while working in that
capacity are not to be quashed merely on the basis of
compromise between the victim and the offender.
29.4. On the other hand, those criminal cases having
overwhelmingly and predominantly civil character, particu larly
those arising out of commercial transactions or arising out of
matrimonial relationship or family disputes should be quashed
when the parties have resolved their entire disputes among
themselves.
29.5. While exercising its powers, the High Court is t o examine
as to whether the possibility of conviction is remote and bleak
and continuation of criminal cases would put the accused to
great oppression and prejudice and extreme injustice would be
caused to him by not quashing the criminal cases. ”
(emphasis supplied)

9. Similarly, in Parbatbhai Aahir & Ors v. State of Gujarat & Anr
reported as (2017) 9 SCC 641 the Supreme Court has observed as under:
“16. The broad principles which emerge from the precedents on
the subject, may be summa rised in the following propositions:

16.1. Section 482 preserves the inherent powers of the High
Court to prevent an abuse of the process of any court or to
secure the ends of justice. The provision does not confer new
powers. It only recognises and prese rves powers which inhere in
the High Court.

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16.2. The invocation of the jurisdiction of the High Court to
quash a first information report or a criminal proceeding on the
ground that a settlement has been arrived at between the
offender and the victim is not the same as the invocation of
jurisdiction for the purpose of compounding an offence. While
compounding an offence, the power of the court is governed by
the provisions of Section 320 of the Code of Criminal Procedure,
1973. The power to quash under Se ction 482 is attracted even if
the offence is non -compoundable.

16.3. In forming an opinion whether a criminal proceeding or
complaint should be quashed in exercise of its jurisdiction under
Section 482, the High Court must evaluate whether the ends of
justice would justify the exercise of the inherent power.

16.4. While the inherent power of the High Court has a wide
ambit and plenitude it has to be exercised (i) to secure the ends
of justice, or (ii) to prevent an abuse of the process of any court.

16.5. The decision as to whether a complaint or first information
report should be quashed on the ground that the offender and
victim have settled the dispute, revolves ultimately on the facts
and circumstances of each case and no exhaustive elaboration of
principles can be formulated.

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 nature and gravity of the
offence. Heinous and serious offences in volving mental
depravity or offences such as murder, rape and dacoity cannot
appropriately be quashed though the victim or the family of the
victim have 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.

16.7. As distinguished from serious offences, there may be
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criminal cases which have an overwhelming or predominant
element of a civil dispute. They stand on a distinct footing insofar
as the exercise of the inherent power to quash is concerned.

16.8. Criminal cases involving offences which arise from
commercial, financial, mercantile, part nership or similar
transactions with an essentially civil flavour may in appropriate
situations fall for quashing where parties have settled the
dispute.

16.9. In such a case, the High Court may quash the criminal
proceeding if in view of the compromise b etween the disputants,
the possibility of a conviction is remote and the continuation of a
criminal proceeding would cause oppression and prejudice; and

16.10 . There is yet an exception to the principle set out in
propositions 16.8. and 16.9. above. Econo mic offences involving
the financial and economic well -being of the State have
implications which lie beyond the domain of a mere dispute
between private disputants. The High Court would be justified in
declining to quash where the offender is involved in an activity
akin to a financial or economic fraud or misdemeanour. The
consequences of the act complained of upon the financial or
economic system will weigh in the balance. ”
(emphasis supplied)

10. The Supreme Court in Shiji & Ors v. Radhika & Anr reported as
(2011) 10 SCC 705 has observed as under:
“18. Having said so, we must hasten to add that the plenitude
of the power under Section 482 CrPC by itself, 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
demands 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 nei ther necessary nor proper for us to
enumerate the situations in which the exercise of power under
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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 t o 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 und er 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.” (emphasis sup plied)

11. In the present case, the petitioner has been accused of offences under
Section 377 IPC and Section 4 of the POCSO Act. The victim is a small
boy of seven years. The offence alleged against the petitioner is grave. 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 o f children .
Permitting such offences to be compromised and quashing FIRs will not
secure the interest of justice. 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 depravit y of the offender and cannot be said to be private
in nature . It has serious impact on the society.
12. The father of the victim cannot be permitted to settle the dispute with
the accused. He is not the victim and the courts have to safeguard and
protect the interest of children against onslaught by bad forces . 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 no t a matter that can be
permitted to be settled as a compound able minor offence. Deterrence to
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others committing similar offence is a must and they cannot get a signal that
anything and everything can be compromised. A perusal of the charge sheet
which records the statement of the child given to the investigating o fficer
shows that there is sufficient material to proceed against the petitioner for
offences under Section 377 IPC and Section 4 of the POCSO Act. Needless
to say, that this is only a prima facie reaction and the court trying the case is
expected to decid e the case without being inhibited by any remarks made
hereunder. The court cannot permit quashing of the FIR because the father
of the victim has decided to enter into a compromise with the
petitioner /accused .
13. This court is desisting from imposing any co sts 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 compromis e as it will cause serious prejudice to the rights of
the petitioner.
14. Accordingly, the present petition is dismissed.

SUBRAMONIUM PRASAD, J .
JANUARY 29, 202 1
hsk
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