A view of the Gauhati High Court, Kohima Bench which has ruled not to quash an FIR filed against the sexual assault of a minor.
Rejects ‘compromise agreement’
Morung Express News
Dimapur | August 12
The Gauhati High Kohima Bench, on August 10, reiterated that ‘compromise agreement’in cases involving serious offences cannot be the basis for quashing the same and rejected a plea to quash an FIR relating to alleged physical assault of a minor in Kohima based on a ‘compromise agreement’ between the family members of the victim and the accused.
The single judge Bench of Justice Robin Phukan, among others, relied on consistent positions held by the Supreme Court that “rape, dacoity and murder are serious offences involving mental depravity and the same are not private in nature and they have serious impact upon society.”
The Court was hearing petition (Criminal Revision), filed under Section 482 of the Criminal Procedure Code, for quashing the proceeding case registered under Sections 354A(i)/363/376 of the Indian Penal Code dealing with sexual harassment and Sections 4/8 of the Protection of Children from Sexual Offences (POSCO) Act in Kohima Women PS.
Case background
As per the Court’s judgement, the case pertains to an FIR filed by the mother of a minor girl of New Market, Kohima on May 29, 2022 at Women PS, Kohima, alleging, among others, that on May 28, an unknown person forcefully took away her daughter from Lower Chandmari Colony.
Thereafter, she was made to drink alcohol and was physically assaulted and raped on May 29, around 3AM, the FIR alleged. The Women PS Kohima, accordingly registered a case and arrested one person, who was later remanded to judicial custody.
However, while the investigation was going on, the family members of the victim and the accused person executed a “compromise agreement” on June 14. On the basis of the ‘agreement,’ the father of the accused approached the Court and prayed for quashing the enquiry proceeding.
The counsel for the petitioner further referred previous two cases to contend that the accused had committed the “offence without knowing the age of the victim” and no offence under relevant sections of IPC and the POCSO Act can be “made out against the petitioner.”
The counsel for the victim’s parents also submitted that they have no objection in the event of quashing the proceeding in view of the ‘compromise agreement.’ It further claimed that the “act was consensual and the parents of the accused and the victim decided to close the chapter”, and hence, the revision petition was been filed for quashing the criminal proceeding.
On the other hand, the Public Prosecutor opposed the petition and submitted that the offence is “heinous in nature and it is against society and the same cannot be quashed in view of the previous judgment of the Supreme Court on similar circumstances.”
Cannot compromise such serious offences
After going through the submissions, the Judge noted that the factual foundations of the offences are being laid in no uncertain terms in the FIR and the arrest of the accused during the process of investigation has not been disputed.
It further noted that the decision of the parents of the accused and the victim decided to settle the matter out of Court and approached the Court on that basis is also not disputed.
Justice Phukan said that there is also no dispute that the offences are serious in nature and the Public Prosecutor has submitted that the offences are against society and the proceeding cannot be quashed on the basis of compromise settlement.
“There appears to be substance in the submission of the Public Prosecutor and the ratio laid down by the Supreme Court in the Laxmi Narayan and others case wherein the latter relied on 2 previous judgments and among others, laid down that that Section 482 of the Code to quash the criminal proceedings is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc...”
The Judge concurred with the position held by the Supreme Court, and said that the Court was “unimpressed” by the submission of the petitioner.
On the plea taken by the petitioner that the victim girl has “not disclosed her age at the time of commission of the offence and wilfully participated in the same,” the Judge said that dealing with similar issues, the Supreme Court held that: “The law is fairly well settled that at the time of quashing the FIR, the defence plea of the petitioner/accused is not required to be considered” and did not concur with the submission of the petitioner.
Justice Phukan further noted that the law is well settled in the case of Neeharika Infrastructure Pvt. Ltd vs State of Maharashtra case, where the SC, among others, held that the “Police has the statutory right and duty under the relevant provisions of CrPC to investigate into a cognizable offence” and that the Courts would not “thwart any investigation into the cognizable offences…”
It must be noted here that the Kohima Bench on March 24, 2022 has dismissed a revision petition with offences of similar nature and compromise entered between the families of the victim and accused.
“When the offences are grave in nature and allegation is of an attempt of rape of a minor, such allegation and criminal proceeding cannot be quashed on the basis of a compromise entered into between the families of the victim and accused,” Justice Arun Dev Choudhury then observed in the judgement.
“…When it is a sexual offence involving a minor, the parents, in the considered opinion of this court, cannot give consent on behalf of the minor to compromise such serious offences,” it added.
