Ankush Kumar vs State & Anr
2015 Latest Caselaw 7457 Del

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*      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
                            Through        Mr.Vijay Singla, Adv.

                            versus

       STATE & ANR                                           ..... Respondents
                            Through        Ms.Manjeet Arya, APP with SI Aditya,
                                           PS Rajouri Garden.
                                           Mr.Deepak Kumar, Adv. for R-2.
                                           Father of Respondent No.2 in person.
             CORAM:
             HON'BLE MR. JUSTICE P.S.TEJI

%      P.S.TEJI, J. (ORAL)

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 aa