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Exercising jurisdiction under Section 482 CrPC to quash an offence under POCSO Act would go against the intention of the legislature: Delhi High Court

Dated: March 31, 2021

                                                                                                                                                             -by Megha Bhatia

Even if a settlement has been made between the parties, heinous offences like rape cannot be quashed by exercising inherent control under Section 482 of the Code of Criminal Procedure (CrPC), the Delhi High Court recently reiterated in Dinesh Sharma & Ors v. State & Anr.

Justice Subramonium Prasad’s single-judge bench was hearing an appeal filed under Section 482 to quash the charges against the Petitioner, who was accused of violating the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act).

The Supreme Court has established that such prosecutions cannot be quashed, and the Court is obliged to obey the Supreme Court’s dictum under Article 141 of the Indian Constitution.

“A perusal of the above mentioned cases shows that the Supreme Court has categorically stated that heinous crime like rape cannot be quashed by the High Court by exercising power under Section 482 Cr.P.C. even if the prosecutrix and the accused have entered into a compromise. The said judgments are binding on this Court under Article 141 of the Constitution of India. The petitioner is accused of an offence under POCSO Act,” the Court said. 

The Court went on to say that the legislature’s purpose in enacting the POCSO Act was to protect children’s welfare, and that quashing proceedings under the Act would be an effort to go against the legislature’s intent.

“Exercising jurisdiction under Section 482 Cr.P.C to quash an offence under POCSO Act would go against the intention of the legislature which has brought out the special enactment to protect the interests of children. The FIR cannot be quashed on the ground that the victim after attaining majority has decided to compromise the matter with the accused,”the order stated. 

The First Information Report against the accused was filed under Sections 354 (assault of criminal force to woman with intent to outrage her modesty), 354D (Stalking), 506 (punishment for criminal intimidation), 509 (word, gesture or act intended to insult the modesty of a woman), 34 (common intention) of the Indian Penal Code (IPC) and Section 10 (punishment for aggravated sexual assault) of the POCSO Act.

The complaint was lodged against Dinesh Sharma, who was distant relative of the prosecutrix. Sharma reportedly went to their house in search of jobs, and began doing minimal work and housework for the prosecutrix’s family. He began threatening the prosecutrix after a few days when her parents were not at home. When his family found out, he was immediately fired from his job.

“My mother and father had gone out, then Dinesh came and picked me up from behind and took me to another room with wrong intentions. I made a noise, then he left me and said that I made a mistake, it will not happen in future, when my mother and father came to the house, I told them everything, then my mother & father expelled him from the house at the same time, he apologized and said that it will not happen again,” the complaint said. 

After some time, the prosecutrix and her family traveled to Jalandhar for a family wedding in February 2017, where they met Dinesh and his two nephews, Deepak and Vishal, who live in Bangalore.

Deepak and Vishal began harassing the prosecutrix after the wedding, claiming that if she failed to ‘accept their friendship’, they would leak her nude photographs on the internet. A lawsuit was brought against the petitioners as a result.

“They asked me to be a friend, I refused him. One day I was sitting alone, Vishal and Deepak came, they said that if you will not accept our friendship, we will defame you because Dinesh has told us all about you & your family, he also has your nude picture. Both of them tried to drag me into the room by holding my hand, so I released my hand and ran away and told all these things to my mother, my mother rebuked them and said that I had gathered the people of your house and call the police.”

The High Court first stated that it is well established law that the power under Section 482 CrPC must be distinguished from the Court's power to compound offenses under Section 320 CrPC.

“No doubt, under Section 482 of the Code, the High Court has the power to quash even in those offences which are not compoundable, where the parties have settled the matter between themselves, but the power has to be exercised fairly and with caution. Offence of rape is a heinous crime punishable under Section 376 IPC,” the Court emphasised. 

The court further noticed that the accused was convicted under the POCSO Act, which was enacted to protect children’s welfare and interests. The Court narrowly addressed the Act’s Statement of Objects and Reasons and found that using Section 482 to quash a crime under the POCSO Act would be contrary to the legislature’s intent.

As a result, the Court refused to interfere in the case, ruling that it could not quash the FIR brought under the POCSO Act on heinous charges such as rape. 

In doing so, the Supreme Court’s dictum in Gian Singh v. State of Punjab, Narinder Singh v. State of Punjab, and State of MP v. Laxmi Narayan was followed.

The Supreme Court has made it clear in the preceding decisions that horrific and violent crimes such as murder, rape, etc. cannot be quashed even if the victim or victim's family and the perpetrator have reached an agreement. 

As a result, the Court rejected the appeal, arguing that the FIR should not be quashed.

“In view of the above, this Court is not inclined to exercise its jurisdiction under Section 482 Cr.P.C. for quashing the FIR No.193/2018 dated 07.05.2018 registered in Police Station Shakarpur, wherein the petitioners have been accused of the offence under Section 10 of POCSO Act.”