Rejects ‘compromise’ deed executed & entered by accused with victim’s father and complainants
Morung Express News
Dimapur | September 6
The Gauhati High Court Kohima Bench, on September 6, refused a review petition for quashing and setting aside a First Information Report (FIR) and proceedings against a couple accused of physically assaulting a five-year-old minor girl in Kohima in March 2021.
In doing so, the single-judge Bench of Justice Marli Vankung rejected a ‘compromise deed’ executed and entered by the accused with the complainants as well as victim’s father, observing that the alleged abuse meted upon such a young child cannot be viewed lightly.
Hearing a petition (Criminal Revision), the Judge noted that he found “no merit” in the submission that the chances of conviction of the petitioners is “bleak” due to the compromise deed, as 15 prosecution witnesses were listed in the charge sheet.
Background of the case
On March 11, 2021, a written complaint was filed at North Police Station, Kohima, on the allegation that the accused (the petitioners) physically assaulted the minor girl, whom they had adopted.
After registering a case on March 12, the petitioners were arrested by the Police and charge-sheet was filed under Section 323 Indian Penal Code (IPC) read with the Juvenile Justice (Care & Protection) Act, 2015.
The investigating Officer (IO) submitted 15 prosecution witnesses (PW) to prove their case. The duo was granted bail on March 13.
Meanwhile, on January 19, 2022, the Trial Court framed charge under Sec 323 IPC and Sec 75 of JJP Act against the accused petitioners to which they both pleaded “not guilty and claimed to be tried.” The next day the trial court examined PW-4, and summons were issued to PW-2 and PW-3 for evidence on June 15, 2022.
In the meantime, however, a “compromise deed” was executed between the accused petitioners with the complainants and the victim’s father on April 27, 2022. The terms of the compromise deed stated that they have amicably settled the dispute amongst themselves and they have no objection if the criminal proceeding is quashed and set aside.
Accordingly, the accused petitioners approached the Trial Court, which acquitted them of offence under Section 323 IPC saying it was “compoundable,” however noting that only the HC has the inherent power to compound a “non-compoundable offence” such as Section 75 JJP Act.
The accused petitioners, hence, approached the HC under Section 482 of Code of Criminal Procedure, 1973 (CrPC) for quashing and setting aside the Mach 11 FIR as well as the proceedings under Section 75 of JJP.
Among others, the counsel for the petitioners submitted that though the offence under Section 75 JJP Act was “not compoundable”, the offence was not of a “heinous nature,” as the sentence prescribed was only up to 3 years imprisonment.
As the complainants and the father of the victim do not wish to pursue the case against the petitioners, there would be a bleak chance of conviction during trial, the counsel said, opining that continuation of the case would be “an abuse to the process of law.”
Severe nature of assault
The public prosecutor, however, objected stating that the crime was committed upon a 5-year-old child and such heinous offences should be strongly condemned as it goes against the sentiments of society.
Apart from relevant Supreme Court judgments holding that compromises between victims and offenders in relation to offenses under special statutes do not provide basis for quashing criminal proceedings, the prosecutor also cited a case this year where the Kohima Bench refused to quash FIR against an accused under POSCO Act saying the “offences are grave in nature.”
The prosecutor also pointed out that the IO during investigation uncovered severe nature of the assault, including “hitting her on her arms and buttocks” as well as “marks she received from the beatings.” The minor was also allegedly hit with stick many times and her palm was burnt by burning plastic once, he submitted.
Such type of offence committed on a child is of heinous nature, the prosecutor said, contending that the compromise deed should not allow the commission of such offences to go unprosecuted.
HC allows case to proceed
After hearing both sides, the judgment and order issued by Justice Vankung cited the apex court observation that while exercising power, the High Court must have due regard to the nature and gravity of the crime. “Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute,” the Supreme Court has stated.
Accordingly, he noted that such allegations of abuse against a child of just 5 years of age, cannot be considered an offence which is a family dispute where the wrong is basically private or personal in nature”
It is in fact “offence against humanity that should shock the conscious of the society and be strongly condemned,” he added.
It would be in the interest of justice if the case against the accused petitioners is allowed to proceed by giving both the parties a fair opportunity to adduce evidence before the trial court, the judge added, dismissing the petition.
This is the second time in two months the Kohima Bench has rejected review based on ‘compromise’ agreement/deed entered in cases involving serious offences.
On August 10, 2022, the Bench rejected a plea to quash an FIR relating to alleged sexual assault of a minor in Kohima based on ‘compromise agreement’ between the family members of the victim and the accused.
