In the present matter, the petitioner has caused terror upon the
minor victim by committing a criminal act of sexual abuse and by
creating the compelling circumstances as discussed above. There is a lot
of pressure from the accused as well as parents of the victim and the child
witness is being compelled by circumstances not to bring true facts before
the Court. The conduct of the petitioner is apparently going to affect the
due process of law and the testimony of the victim. As a result, the Trial
Court is directed to ensure the examination of the child witness by giving
due protection to him and bring the child out of the pressure of the
petitioner and of the father of the victim and even if need arises, shall also
consider cancellation of bail for the independent testimony of the child.
10. All the Criminal Courts are directed to adopt all the reasonable
precautions to ensure the true testimony of the child witnesses and to
provide atmosphere and the circumstances to the effect that the child
witnesses shall not be compelled by the circumstances, by the accused
including the parents, from bringing truth before the Court. It shall
further be ensured that the child witnesses be examined in special court
room meant for it and provide all the precautions available to the child
victims under the Prevention of Children from Sexual Offences Act, 2012.
11. Judgment be circulated to all the Criminal Courts below for
implementation of para 10.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 4046/2015 & Crl.M.A. Nos.14412-14413/2015
Date of Decision : September 30th, 2015
ANKUSH KUMAR ..... Petitioner
versus
STATE & ANR ..... Respondents
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
1. The present petition has been filed by the petitioner under Sections
482, 483 Cr.P.C. read with Article 226/227 of the Constitution of India
for quashing of FIR No.300/2012, under Section 377 IPC, Police Station
Rajouri Garden, Delhi and the proceedings relating thereto.
2. As per the FIR, the allegations levelled against the petitioner are
that he lured the complainant/victim Parful Kumar, aged about 12 years
when he was wandering in a park saying that he would give him a job of
cleaning vehicles for which he would be paid Rs.4,000/- per month.
Thereafter, the petitioner took the complainant behind a vehicle and did
something wrong with him. When the victim felt pain, he started
shouting, on which many people came there. Accused was apprehended
and on arrival of the police, he was handed over to the police. The
complainant was taken to the hospital where on medical examination, it
was confirmed that the child was sexually assaulted by the petitioner.
3. The present petition has been filed for quashing of the FIR in
question on the basis of compromise dated 28.09.2015 arrived at between
the petitioner and the father of the victim, namely, Swami Nath.
4. The respondent no.2 being a minor, is added as respondent through
his father Mr.Swami Nath and a Memorandum of Understanding/
settlement signed by the minor and his father Mr.Swami Nath has been
relied upon. The respondent no.2 is represented through counsel. The
present petition has been filed for quashing of the FIR and perusal of the
same shows that the FIR has been lodged on the statement of a minor
child who happened to be about 12 years of age and who was subjected to
cruelty, torture, inhumanity, sexual assault and act of sin of the accused.
5. The FIR was lodged three years back and charges have been
framed but substantial progress has not been done. Apparently, the
petitioner is using all possible weapons to pressurize and to win over the
victim i.e. the minor, to tamper with the evidence and to hamper the trial.
6. In Shimbhu and Anr. v. State of Haryana (2014) 13 SCC 318, it
was observed that :
“22. Further, a compromise entered into between
the parties cannot be construed as a leading factor
based on which lesser punishment can be awarded.
Rape is a non-compoundable offence and it is an
offence against the society and is not a matter to be
left for the parties to compromise and settle. Since
the Court cannot always be assured that the
consent given by the victim in compromising the
case is a genuine consent, there is every chance
that she might have been pressurized by the
convicts or the trauma under gone by her all the
years might have compelled her to opt for a
compromise. In fact, accepting this proposition
will put an additional burden on the victim. The
accused may use all his influence to pressurize her
for a compromise. So, in the interest of justice and
to avoid unnecessary pressure/harassment to the
victim, it would not be safe in considering the
compromise arrived at between the parties in rape
cases to be a ground for the Court to exercise the
discretionary power under the proviso of Section
376(2) of IPC.”
Similar views have been expressed in Mayank Pandey v. State and
ors (Crl.MC 2206/2013 dt. 16.12.2013) ; Purushottam v. The State of
Madhya Pradesh, AIR 1980 SC 1872 and Anil Kumar and others v.
State of NCT of Delhi, MANU/DE/1203/2012.
7. The case in hand is otherwise the petitioner’s wish to use the
provision of Section 482 of Cr.P.C. to cause injustice by way of putting
undue pressure upon the minor child to get rid of the due process of law
which is neither permitted by the Statute nor by the law laid down by the
Hon’ble Apex Court. The conduct of petitioner itself is an abuse of the
process of law. It would be pertinent to mention here that to achieve his
covert object, the petitioner also made the father of the minor child a
party. The father of the minor has been used to get procured the
Memorandum of Understanding which is not permissible under the law
on behalf of the minor to digress from the justice delivery system. The
role of the petitioner is also condemnable and the practice adopted in this
case, needs to be curbed and warrants dismissal of the present petition.
This Court has observed that ample pressure has been put by the accused
upon the minor child to concede to his wishes and to tamper with the
evidence.
8. Child sexual abuse is one of the most pervasive social problems
faced by our society. Its impact is profound because of the sheer
frequency with which it occurs and because of the trauma brought to the
lives of the children who have experienced this crime. Child sexual abuse
is an epidemic. Children who have suffered sexual abuse at the hands of
the sexual perpetrators do not only suffer from physical pain but are also
subjected to mental and emotional trauma. The results of child sex abuse
are severe and far reaching. As a society, it is important to recognize
that the sexual exploitation of children is a very sensitive issue and must
be addressed humanely. The effects of sexual abuse extend far beyond
childhood. Sexual abuse robs children of their childhood and creates a
loss of trust and may lead to depression and other serious emotional
problems. The sexual victimization of children is ethically and morally
wrong. Children who have been sexually abused face the social stigma
attached to such offences and the discrimination they experience can
make their difficulty worse and make it harder for them to recover. This
is because the society in general has stereotyped views about sexual
offences and how it affects people. The parents of such victims have even
a greater role to play in helping and aiding the child in overcoming the
trauma. Children are our country’s future and they need to be protected.
Offences, particularly sexual offences, against them should not be
neglected or taken lightly. Their proper development in every aspect is
indispensible. The best interest and well being of the children must be
regarded as being of paramount importance at every stage, to ensure the
healthy physical, emotional, intellectual and social development of
children.
9. In the present matter, the petitioner has caused terror upon the
minor victim by committing a criminal act of sexual abuse and by
creating the compelling circumstances as discussed above. There is a lot
of pressure from the accused as well as parents of the victim and the child
witness is being compelled by circumstances not to bring true facts before
the Court. The conduct of the petitioner is apparently going to affect the
due process of law and the testimony of the victim. As a result, the Trial
Court is directed to ensure the examination of the child witness by giving
due protection to him and bring the child out of the pressure of the
petitioner and of the father of the victim and even if need arises, shall also
consider cancellation of bail for the independent testimony of the child.
10. All the Criminal Courts are directed to adopt all the reasonable
precautions to ensure the true testimony of the child witnesses and to
provide atmosphere and the circumstances to the effect that the child
witnesses shall not be compelled by the circumstances, by the accused
including the parents, from bringing truth before the Court. It shall
further be ensured that the child witnesses be examined in special court
room meant for it and provide all the precautions available to the child
victims under the Prevention of Children from Sexual Offences Act, 2012.
11. Judgment be circulated to all the Criminal Courts below for
implementation of para 10.
12. With this observation, the present petition is dismissed.
(P.S.TEJI)
JUDGE
SEPTEMBER 30, 2015
Print Page
minor victim by committing a criminal act of sexual abuse and by
creating the compelling circumstances as discussed above. There is a lot
of pressure from the accused as well as parents of the victim and the child
witness is being compelled by circumstances not to bring true facts before
the Court. The conduct of the petitioner is apparently going to affect the
due process of law and the testimony of the victim. As a result, the Trial
Court is directed to ensure the examination of the child witness by giving
due protection to him and bring the child out of the pressure of the
petitioner and of the father of the victim and even if need arises, shall also
consider cancellation of bail for the independent testimony of the child.
10. All the Criminal Courts are directed to adopt all the reasonable
precautions to ensure the true testimony of the child witnesses and to
provide atmosphere and the circumstances to the effect that the child
witnesses shall not be compelled by the circumstances, by the accused
including the parents, from bringing truth before the Court. It shall
further be ensured that the child witnesses be examined in special court
room meant for it and provide all the precautions available to the child
victims under the Prevention of Children from Sexual Offences Act, 2012.
11. Judgment be circulated to all the Criminal Courts below for
implementation of para 10.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 4046/2015 & Crl.M.A. Nos.14412-14413/2015
Date of Decision : September 30th, 2015
ANKUSH KUMAR ..... Petitioner
versus
STATE & ANR ..... Respondents
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
1. The present petition has been filed by the petitioner under Sections
482, 483 Cr.P.C. read with Article 226/227 of the Constitution of India
for quashing of FIR No.300/2012, under Section 377 IPC, Police Station
Rajouri Garden, Delhi and the proceedings relating thereto.
2. As per the FIR, the allegations levelled against the petitioner are
that he lured the complainant/victim Parful Kumar, aged about 12 years
when he was wandering in a park saying that he would give him a job of
cleaning vehicles for which he would be paid Rs.4,000/- per month.
Thereafter, the petitioner took the complainant behind a vehicle and did
something wrong with him. When the victim felt pain, he started
shouting, on which many people came there. Accused was apprehended
and on arrival of the police, he was handed over to the police. The
complainant was taken to the hospital where on medical examination, it
was confirmed that the child was sexually assaulted by the petitioner.
3. The present petition has been filed for quashing of the FIR in
question on the basis of compromise dated 28.09.2015 arrived at between
the petitioner and the father of the victim, namely, Swami Nath.
4. The respondent no.2 being a minor, is added as respondent through
his father Mr.Swami Nath and a Memorandum of Understanding/
settlement signed by the minor and his father Mr.Swami Nath has been
relied upon. The respondent no.2 is represented through counsel. The
present petition has been filed for quashing of the FIR and perusal of the
same shows that the FIR has been lodged on the statement of a minor
child who happened to be about 12 years of age and who was subjected to
cruelty, torture, inhumanity, sexual assault and act of sin of the accused.
5. The FIR was lodged three years back and charges have been
framed but substantial progress has not been done. Apparently, the
petitioner is using all possible weapons to pressurize and to win over the
victim i.e. the minor, to tamper with the evidence and to hamper the trial.
6. In Shimbhu and Anr. v. State of Haryana (2014) 13 SCC 318, it
was observed that :
“22. Further, a compromise entered into between
the parties cannot be construed as a leading factor
based on which lesser punishment can be awarded.
Rape is a non-compoundable offence and it is an
offence against the society and is not a matter to be
left for the parties to compromise and settle. Since
the Court cannot always be assured that the
consent given by the victim in compromising the
case is a genuine consent, there is every chance
that she might have been pressurized by the
convicts or the trauma under gone by her all the
years might have compelled her to opt for a
compromise. In fact, accepting this proposition
will put an additional burden on the victim. The
accused may use all his influence to pressurize her
for a compromise. So, in the interest of justice and
to avoid unnecessary pressure/harassment to the
victim, it would not be safe in considering the
compromise arrived at between the parties in rape
cases to be a ground for the Court to exercise the
discretionary power under the proviso of Section
376(2) of IPC.”
Similar views have been expressed in Mayank Pandey v. State and
ors (Crl.MC 2206/2013 dt. 16.12.2013) ; Purushottam v. The State of
Madhya Pradesh, AIR 1980 SC 1872 and Anil Kumar and others v.
State of NCT of Delhi, MANU/DE/1203/2012.
7. The case in hand is otherwise the petitioner’s wish to use the
provision of Section 482 of Cr.P.C. to cause injustice by way of putting
undue pressure upon the minor child to get rid of the due process of law
which is neither permitted by the Statute nor by the law laid down by the
Hon’ble Apex Court. The conduct of petitioner itself is an abuse of the
process of law. It would be pertinent to mention here that to achieve his
covert object, the petitioner also made the father of the minor child a
party. The father of the minor has been used to get procured the
Memorandum of Understanding which is not permissible under the law
on behalf of the minor to digress from the justice delivery system. The
role of the petitioner is also condemnable and the practice adopted in this
case, needs to be curbed and warrants dismissal of the present petition.
This Court has observed that ample pressure has been put by the accused
upon the minor child to concede to his wishes and to tamper with the
evidence.
8. Child sexual abuse is one of the most pervasive social problems
faced by our society. Its impact is profound because of the sheer
frequency with which it occurs and because of the trauma brought to the
lives of the children who have experienced this crime. Child sexual abuse
is an epidemic. Children who have suffered sexual abuse at the hands of
the sexual perpetrators do not only suffer from physical pain but are also
subjected to mental and emotional trauma. The results of child sex abuse
are severe and far reaching. As a society, it is important to recognize
that the sexual exploitation of children is a very sensitive issue and must
be addressed humanely. The effects of sexual abuse extend far beyond
childhood. Sexual abuse robs children of their childhood and creates a
loss of trust and may lead to depression and other serious emotional
problems. The sexual victimization of children is ethically and morally
wrong. Children who have been sexually abused face the social stigma
attached to such offences and the discrimination they experience can
make their difficulty worse and make it harder for them to recover. This
is because the society in general has stereotyped views about sexual
offences and how it affects people. The parents of such victims have even
a greater role to play in helping and aiding the child in overcoming the
trauma. Children are our country’s future and they need to be protected.
Offences, particularly sexual offences, against them should not be
neglected or taken lightly. Their proper development in every aspect is
indispensible. The best interest and well being of the children must be
regarded as being of paramount importance at every stage, to ensure the
healthy physical, emotional, intellectual and social development of
children.
9. In the present matter, the petitioner has caused terror upon the
minor victim by committing a criminal act of sexual abuse and by
creating the compelling circumstances as discussed above. There is a lot
of pressure from the accused as well as parents of the victim and the child
witness is being compelled by circumstances not to bring true facts before
the Court. The conduct of the petitioner is apparently going to affect the
due process of law and the testimony of the victim. As a result, the Trial
Court is directed to ensure the examination of the child witness by giving
due protection to him and bring the child out of the pressure of the
petitioner and of the father of the victim and even if need arises, shall also
consider cancellation of bail for the independent testimony of the child.
10. All the Criminal Courts are directed to adopt all the reasonable
precautions to ensure the true testimony of the child witnesses and to
provide atmosphere and the circumstances to the effect that the child
witnesses shall not be compelled by the circumstances, by the accused
including the parents, from bringing truth before the Court. It shall
further be ensured that the child witnesses be examined in special court
room meant for it and provide all the precautions available to the child
victims under the Prevention of Children from Sexual Offences Act, 2012.
11. Judgment be circulated to all the Criminal Courts below for
implementation of para 10.
12. With this observation, the present petition is dismissed.
(P.S.TEJI)
JUDGE
SEPTEMBER 30, 2015
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