Rabin Rai and Ors. vs State of Sikkim
- Court
- High Court of Sikkim
CNR NO. SKHC010000572026
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Jurisdiction)
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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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CRL. M.C. No. 2 of 2026
(1) Rxxx Rxx,
(name, age and address redacted)
(2) Ms. Nxxxx
(name, age and address redacted)
(3) Shri Sxxx Lxxx Lxxx
(name, age and address redacted)
(4) Smt. Lxxx Lxxx Lxxx
(name, age and address redacted)
(5) Shri Mxxx Kxxx Rxxx
(name, age and address redacted)
(6) Smt. Dxx Mxx Rxx
(name, age and address redacted)
….. Petitioners
versus
State of Sikkim ….. Respondent
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Application under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023
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Appearance:
Mr. Safal Sharma, Advocate (Legal Aid Counsel) for the Petitioners.
Mr. Thinlay Dorjee Bhutia, Public Prosecutor and Mr. Yadev Sharma,
Additional Public Prosecutor, for the Respondent.
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th
Date of hearing : 26 August 2026
nd
Date of order : 2 September, 2026
rd
Order uploaded on: 3 September, 2026
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O R D E R
Bhaskar Raj Pradhan, J.
The petitioners have invoked the provision of Section 528 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for quashing the
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First Information Report No. 113/2023 dated 1.07.2023 (FIR) of Sadar
Police Station, Gangtok and the criminal proceedings in S.T. (POCSO)
Case No. 1 of 2024 ( State of Sikkim vs. Rxxx Rxx ) pending before the
Court of the learned Special Judge (POCSO), Gangtok, Sikkim.
2. Section 528 of the BNSS reads as under:-
“ 28. Saving of inherent powers of High Court . Nothing in
this Sanhita shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be
necessary to give effect to any order under this Sanhita, or to
prevent abuse of the process of any Court or otherwise to secure
the ends of justice.”
3. The accused is petitioner no.1, the petitioner no.2 is the
survivor-now aged 20 years, petitioners no. 3 and 4 are the survivor‟s
parents and petitioners no.5 and 6 are the parents of the accused.
4. It is the petitioners‟ case that on 3.08.2025, the petitioners
no. 3 to 6, i.e., the parents of the survivor and the accused, out of
their free will and consent, executed a deed of compromise wherein
after considering the tender age of the accused, the parents of the
survivor decided that they did not want to pursue the said case any
further at the cost of the petitioner no.1 losing precious part of his life
in jail on account of this case. The petitioners state that the deed of
compromise is not a result of any force, coercion or threat. It is stated
that the accused and the survivor have indulged in sexual activity
unaware of the consequences of such act. It is also stated that the
case has already reached towards the end of the trial and if the learned
Trial Court convicts the accused under the Protection of Children from
Sexual Offences Act, 2012 (POCSO Act, 2012), the future of the
accused will be hampered and he will never be able to rehabilitate
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CRL. M.C. No. 2 of 2026
himself in society even after his completion of period of punishment as
he would have spent his youth inside prison.
5. The records placed before this Court reveals that the FIR
was lodged on 30.06.2023 regarding the offence that was allegedly
committed on 26.11.2022. The complainant was the survivor who was
as per the FIR a student aged 17 years. According to the FIR, the
sexual intercourse between them was initially not consensual but due
to his persistent persuasion she succumbed to it. The FIR was
registered under Section 5(j)(ii)/6 of the POCSO Act, 2012 as well as
under Section 376 of the Indian Penal Code, 1860 (IPC).
6. According to the petitioners, the prosecution has closed
their evidence and the next date has been fixed for examination of the
accused person under Section 313 of the Code of Criminal Procedure,
1973 (Cr.P.C.). The petitioners have not disclosed when charges were
framed against the accused person, however, noting that the survivor‟s
deposition was recorded on 21.08.2024, it is evident that charges were
framed before that.
7. As stated earlier, the deed of compromise is dated
03.08.2025 and therefore, it was entered after the survivor‟s
deposition was recorded on 21.08.2024. The deed of compromise is
entered between the parents of the survivor and the accused only. The
survivor and the accused have signed on it but not as parties to the
deed of compromise .
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8. The learned Counsel for the petitioners submit that since
on the date of the deed of compromise , the survivor was still a minor,
therefore, she was not a party to the deed of compromise . There is no
explanation as to why the accused did not sign as a party to the deed
of compromise .
9. Therefore, the two crucial questions which are required to
be answered by this Court are:
(i) Can a deed of compromise entered between the parents of the
survivor and the accused person could be acted upon as a deed of
compromise between the accused and the survivor who are both
adults today?
(ii) Whether the power under Section 528 of the BNSS could be
exercised to quash the criminal proceedings initiated for offence of
aggravated sexual assault/rape under the POCSO Act and the IPC
on the basis of a deed of compromise?
10. Before answering the two questions, it may be important to
analyse some facts that would be relevant for the purpose of disposing
of the present petition.
11. The FIR was lodged on 30.06.2023 by the survivor alleging
the offence on 26.11.2022 was committed by the accused person who
was her good friend and known to her since she was in Class VI. She
alleged that initially when he had proposed to have sex with him, she
had said no but he had convinced her stating that nothing would
happen and after which she gave in and became pregnant. Thereafter,
it seems that the survivor decided to lodge the FIR due to substantially
two reasons. Firstly, although he had promised to get her medicine and
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take her to the hospital and send her money, he delayed doing that for
a fairly long time making excuses. Secondly, her mother realised that
she had become pregnant after which the FIR was lodged.
12. The deed of compromise records that the survivor and the
accused were classmates at school both having passed Class XII in the
year 2022. They had gone to attend a training programme in Gangtok
during November 2022 when they indulged in a physical relationship
and as a result of which the survivor conceived a child. The survivor
has since delivered a child who has now been adopted by responsible
parents with the help of Child Welfare Committee. The survivor is now
pursuing higher education. The accused is barely 22 years. The
accused and the survivor were in a love relationship and indulged in
physical relationship in youthful spirit, unaware of its future
consequences. The deed of compromise which was entered between
the parents of the accused and the survivor has also been signed by
both of them. Additionally, the petition filed for quashing of the FIR has
been filed not only by the parents but also by the survivor as well as
the accused.
13. Section 2(d) of the POCSO Act defines the word „child‟ to
mean „any person below the age of 18 years‟. Since the result of the
trial is not before this Court, but from the records which are available,
it is evident that the survivor was a child when they indulged in a
physical relationship and had sexual intercourse. Since, on 03.08.2025
the accused is said to be barely 22 years, so on the date of the alleged
incident, i.e., 26.11.2022, he would have been 19 years old. Therefore,
at this stage of the proceeding it could be a reasonable perception that
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the accused and the survivor may have had a love relationship as
pleaded which culminated in the sexual intercourse on 26.11.2022.
14. Section 5(j)(ii) of the POCSO Act, 2012 relates to
aggravated penetrative sexual assault on a child resulting in her
pregnancy. The punishment prescribed under Section 6 thereof is
rigorous imprisonment for a term which shall not be less than twenty
years, but which may extend to life, which shall mean imprisonment of
remainder of natural life of that person, and shall also be liable to fine
or with death.
15. The POCSO Act, 2012 does not define the term „consent‟,
although, it is considered settled law that a consent of a child is no
consent at all. Therefore, it may be important in the facts of the
present case to understand the meaning of the word „consent‟.
16. In Society for Enlightenment and Voluntary Action & Another
1
vs. Union of India & Others
, the Supreme Court opined:
“80. The POCSO Act applies to all children regardless of their
gender, Section 2(d) defines a child as being under the age of
eighteen. The Act elevates the age of consent to eighteen
years for all persons. The 2013 amendments to the IPC
increase the age of consent under the rape provision from
sixteen to eighteen. ...”
17. In Re: Right to Privacy of Adolescents in Suo Motu Writ
2
Petition (C) No. 3 of 2023 , the Supreme Court examined a judgment
of the Division Bench of the High Court of Judicature at Calcutta dated
18.10.2023 which concluded that the offence punishable under
Sections 363 and 366 of the IPC had not been made out against the
1
2024 INSC 790
2
2024 INSC 614
7
CRL. M.C. No. 2 of 2026
accused person and acquitted him of the two offences. Further, the
High Court considering the factual scenario exercised the power under
Article 226 of the Constitution of India read with Section 482 of the
Code of Criminal Procedure, 1973 to set aside the conviction of the
accused person under Section 6 of the POCSO Act and sub-section 2(n)
and (3) of Section 376 of the IPC. In that case, the survivor was
fourteen years old at the time of the incident. The survivor‟s mother
had lodged the FIR stating that the survivor had escaped from her
home without informing anyone and on inquiry it was found that the
accused had enticed her to leave her house with the help of his two
sisters. The survivor‟s mother repeatedly visited the house of the
accused and requested him to facilitate the return of her daughter.
However, the survivor did not come back. A female child was born to
the survivor. Admittedly, the accused was the biological father of the
child. There was gross delay in the investigation. The learned Special
Judge had convicted the accused for the offences punishable under
Section 6 of the POCSO Act and Sections 363 and 366 of the IPC. For
the offence under Section 6 of the POCSO Act, the accused was
sentenced to undergo rigorous imprisonment of twenty years and pay
a fine of Rs.10,000/-. He was also sentenced to rigorous imprisonment
for four and five years, respectively, for the offences punishable under
Sections 363 and 366 of the IPC.
18. The Supreme Court examined the scope of power under
Section 482 of the Cr.P.C. coupled with Article 226 of the Constitution
of India to set aside the conviction of the accused person. While doing
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so, the Supreme Court made various observations some of which I
quote hereinbelow:-
“21. On a plain reading of “sixthly” in Section 375 read with Section
376(2)(n) of the IPC, notwithstanding the consensual sexual
relationship, the offence punishable under clause (n) of sub-section
(2) of Section 376 of the IPC, was made out. One of the objectives
of the POSCO Act is to effectively address sexual exploitation and
sexual abuse of children, as both offences are very heinous. To
give effect to the United Nations Convention on the Rights of
Children ratified by India on 11th December 1992, the POCSO Act
has been enacted. As noted earlier, in the facts of the case, the
accused was not an adolescent, but his age was about twenty-five
years on the date of the commission of the offence, and the victim
was only fourteen years old. When such offences of rape and
aggravated penetrative sexual assault are committed, by exercising
its jurisdiction under Article 226 of the Constitution of India and/or
Section 482 of the Cr.PC, the High Court cannot acquit an accused
whose guilt has been proved.
22. Perhaps the consideration of sympathy and the so-called
welfare of the victim and her child prevailed on the Judges of the
High Court. The Court was influenced by the fact that the victim‟s
parents did not support her, and therefore, by sending the accused
to jail, she and her child would be miserable as the accused and his
family were taking care of them.
23. There are various decisions of this Court holding that the High
Court can exercise jurisdiction under Section 482 of the Cr.PC to
quash a prosecution on the grounds of settlement or by consent.
One such judgment is in the case of Gian Singh v. State of Punjab
3
& Anr. Paragraph 58 of the said decision reads thus:
“58. Where the High Court quashes a criminal proceeding
having regard to the fact that the dispute between the
offender and the victim has been settled although the offences
are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be an exercise in
futility and justice in the case demands that the dispute
between the parties is put to an end and peace is restored;
securing the ends of justice being the ultimate guiding factor.
No doubt, crimes are acts which have harmful effect on the
public and consist in wrongdoing that seriously endangers and
threatens the wellbeing of the society and it is not safe to
leave the crime-doer only because he and the victim have
settled the dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made
compoundable in law, with or without the permission of the
court. In respect of serious offences like murder, rape,
dacoity, etc., or other offences of mental depravity
under IPC or offences of moral turpitude under special
statutes, like the Prevention of Corruption Act or the
offences committed by public servants while working in
3
(2012) 10 SCC 303
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CRL. M.C. No. 2 of 2026
that capacity, the settlement between the offender and
the victim can have no legal sanction at all . However,
certain offences which overwhelmingly and predominantly
bear civil flavour having arisen out of civil, mercantile,
commercial, financial, partnership or such like transactions or
the offences arising out of matrimony, particularly relating to
dowry, etc. or the family dispute, where the wrong is basically
to the victim and the offender and the victim have settled all
disputes between them amicably, irrespective of the fact that
such offences have not been made compoundable, the High
Court may within the framework of its inherent power, quash
the criminal proceeding or criminal complaint or FIR if it is
satisfied that on the face of such settlement, there is hardly
any likelihood of the offender b being convicted and by not
quashing the Suo Motu Writ Petition (C) no.3 of 2023 etc.
Page 22 of 50 criminal proceedings, justice shall be casualty
and ends of justice shall be defeated. The above list is
illustrative and not exhaustive. Each case will depend on its
own facts and no hard and-fast category can be prescribed.”
(emphasis added)
23.1 Therefore, in view of the settled position of law, in the facts of
the case, even if the accused and the victim (who has now attained
majority) were to come out with a settlement, the High Court could
not have quashed the prosecution.”
....................................................................................................
44. Hence, we pass the following order:
(a) The impugned judgment of the High Court is set aside and the
judgment of the Special Court is restored to the extent of the
conviction of the accused for the offences punishable under sub-
sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of
the POCSO Act. Accordingly, the accused stands convicted. The
acquittal of the accused for the offences punishable under Sections
363 and 366 of the IPC is confirmed. The appeal is partly allowed.
The issue regarding sentencing will be considered after receiving
the report of the committee in terms of clause (h) below.
(b) We direct the Government of West Bengal to constitute a
committee of three experts, including a clinical psychologist and a
social scientist. The State Government may take the assistance of
NIMHANS or TISS for constituting the committee. A child welfare
officer shall be appointed to assist the committee as its coordinator
and secretary;
(c) The committee shall be formed within three weeks from today;
(d) Within one week from the date of formation of the committee,
the State Government shall provide all the material
particulars/details of the benefits which it is willing to extend to the
victim as stated in paragraph 5 of the note submitted on 9th May
2024 by the learned senior counsel appearing for the State;
(e) Thereafter, the committee shall meet the victim of the offences
at such a place as it desires to communicate what the State
Government is offering to her. The Committee must also inform the
victim about the availability of the benefits of the scheme of the
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CRL. M.C. No. 2 of 2026
Government of India. The duty of the committee shall be to help
the victim to make an informed choice whether she wants to
continue to remain in the company of the accused and his family or
wants to avail of the benefits offered by the State Government.
This exercise will naturally require meetings with the victim on
multiple occasions. In what manner this task should be performed
is left to the committee to decide;
(f) The committee members must perform their duties very
carefully and sensitively while ensuring that the victim does not
develop a feeling of insecurity. While doing the exercise, the
committee will endeavour to carefully ascertain the kind of support,
if any, the victim and her child are getting from the accused and
his family members;
(g) The State Government and its officials shall render all possible
facilities and help to the committee members;
(h) The coordinator of the committee shall submit a report in a
sealed cover to this Court by 18th October 2024 through the
Advocate-on-Record for the State Government. The report can be a
preliminary report or a final report. The report should contain the
details of the interactions with the victim and the opinion and
recommendations of the committee. The committee is free to give
its opinion on the action which would be in the best interest of the
victim and her child; and
(i) We direct the Registry to forward copies of this judgment to the
Secretaries of Law and/or Justice Departments of all the States and
Union Territories. The Secretaries shall convene meetings of the
Secretaries of the concerned departments and other senior officials.
The object of holding such meetings is to ensure that appropriate
directions are issued to all concerned to strictly implement the
provisions of Section 19(6) of the POCSO Act and the relevant
provisions of the JJ Act, which we have elaborated above. The
State/Union Territories must create machinery to do so. The
State/Union Territories shall also assist the victims in getting the
benefits under the scheme of the Government of India and the
scheme of NALSA, which we have referred to above. In the
meetings, the issue of framing Rules by the States to give effect to
the provisions of Section 46 of the JJ Act, shall also be considered.
The Secretaries shall forward the compliance reports to the
Secretary of the Ministry of Women and Child Development,
Government of India, within a period of two months from today.
The Secretary of the Ministry of Women and Child Development
shall compile the reports and submit an exhaustive report before
this Court within three months from today. A copy of this judgment
shall also be forwarded to the Secretary to the Ministry of Women
and Child Development, Government of India.
45. To consider the report submitted by the expert committee and
for considering the sentencing, list this petition/appeal on 21st
October 2024 at 03:00 p.m. before this Bench.”
emphasis supplied
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19. Subsequently, in Re: Right to Privacy of Adolescents (supra) ,
the Supreme Court on receipt of the report as sought for, passed the
following orders:
“ 31. Hence, we pass the following order:
a) We exercise our extraordinary jurisdiction under Article 142 of
the Constitution of India and hold that though the accused
stands convicted, he will not undergo sentence for the reasons
stated earlier;
b) We direct the State to take following measures:
i) To act as a true guardian of the victim and her child;
ii) To provide a better shelter to the victim and her family
within a period of few months from today;
iii) To bear the entire expenditure of the education of the
victim till Xth standard examination and if she desires to take
up education for a degree course, till the completion of degree
course. After she passes her Xth standard examination, the
State can offer her vocational training, obviously, at the cost
of the State;
iv) To bear the entire expenditure of the education of the child
up to Xth standard and ensuring that she is educated in a very
good school in the vicinity of the place of residence of the
victim; and
v) To endeavour to take the assistance of NGOs or public-
spirited citizens for the purpose of securing the debts incurred
by the victim as a one-time measure.
c) We direct the State to file compliance report giving details of
the implementation of the directions contained in clause (b)
above. The first compliance report shall be filed by 15th July
2025. Thereafter, compliance reports shall be filed after the
interval of every six months. The first compliance report will
be considered on 25th July 2025. We direct the Registry to list
the case on 25th July 2025.
d) Issue notice to the Union of India through the Secretary of the
Ministry of Women and Child Development. The notice is
made returnable on 25th July 2025. A copy of the judgement
th
dated 20 August 2024 and this judgement shall accompany
notice;
e) Immediately on service of notice, the Secretary of the Ministry
of Women and Child Development shall appoint a Committee
of experts to deal with the suggestions of the learned amici
curiae. Senior officers of the State shall be a part of the
Committee. If necessary, the Committee can also consult the
learned senior counsel appointed as amici curiae. Immediately
on service of notice, the Secretary shall constitute a
Committee. The members of the Committee constituted by
this Court shall be permanent invitees to the said Committee;
and
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CRL. M.C. No. 2 of 2026
f) The Committee will submit a detailed report before the
returnable date to this Court. To consider the implementation
of the suggestions of the learned amici curiae based on the
said report, this Court will pass further directions from time to
time;”
emphasis supplied
20. Thus, in view of the clear and unequivocal pronouncement
of the Supreme Court that it is a settled position of law that even if the
accused and the survivor who has now attained majority were to come
out with a settlement, the High Court could not have quashed the
prosecution under Section 482 of the Cr.P.C. or under Article 226 of
the Constitution. This is so, even if the learned Counsel for the
petitioners has been able to impress upon me that the punishment
which may be meted out to the accused who indulged in voluntary
sexual intercourse with the survivor with whom he was having a
romantic relationship when she was almost seventeen and he nineteen
is very harsh and may relegate his entire life in prison.
21. In X vs. Principal Secretary, Health and Family Welfare
4
Department, Government of NCT of Delhi and Another , the Supreme Court
while examining Rule 3B(b) of the MTP Act and the POCSO Act opined
that:
“Rule 3B(b) includes minors within the category of women who
may terminate their pregnancy upto twenty-four weeks. They have
been included in the special categories of women because
adolescents who engage in consensual activity may be unaware
that sexual intercourse results in pregnancy or be unable to identify
the signs of pregnancy. The Protection of Children from Sexual
Offences Act, 2012 is gender neutral and criminalises sexual
activity by those below the age of eighteen. Under the POCSO Act,
factual consent in a relationship between minors is immaterial. The
proscription contained in the POCSO Act does not – in actuality –
prevent adolescents from engaging in consensual sexual activity.
We cannot disregard the truth that such activity continues to take
place and sometimes leads to consequences such as pregnancy.
4
(2022) SCC OnLine SC 1321
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CRL. M.C. No. 2 of 2026
The legislature was no doubt alive to this fact when it included
adolescents within the ambit of Rule 3B of the MTP rules.”
Emphasis supplied
22. The Supreme Court further held:
“81. To ensure that the benefit of Rule 3B(b) is extended to all
women under 18 years of age who engage in consensual sexual
activity, it is necessary to harmoniously read both the POCSO Act
and the MTP Act. For the limited purpose of providing medical
termination of pregnancy in terms of the MTP Act, we clarify that
the RMP, only on request of the minor and the guardian of the
minor, need not disclose the identity and other personal details of
the minor in the information provided under section 19(1) of the
POCSO Act (in a reference to a minor seeking medical termination
of pregnancy of the MTP Act) is also exempt from disclosing the
minors identity in any criminal proceedings which may follow from
the RMPs report under Section 19(1) of the POCSO Act. Such an
interpretation would prevent any conflict between the statutory
obligation of the RMP to mandatorily report the offence under the
POCSO Act and the rights of privacy and the reproductive
autonomy of the minor under Article 21 of the Constitution. It could
not possibly the legislature intent to deprive minors of safe
abortions.”
23. The above observations and findings of the Supreme Court
although related to medical termination of pregnancy of a child also
reflects that the Supreme Court is alive to the fact that adolescents
children do indulge in sexual activity in India and perhaps in my view
the present case before this Court is also one of many such cases.
24. A deed of compromise is an agreement between the parties
to the agreement. Resultantly, the deed of compromise entered
between the parents of the survivor and the accused person cannot be
termed as a deed of compromise between the accused and the
survivor. However, in so far as the present matter is concerned, the
fact that the present petition has been preferred supported by an
affidavit of each of the petitioners, i.e., the accused, the survivor and
their respective parents, the intention to compromise the issue would
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be evident. The first question in paragraph „9‟ above is answered
accordingly. In view of the opinion rendered by the Supreme Court in
Re: Right to Privacy of Adolescents (supra), the second question posed by
this Court in paragraph „9‟ above is answered in the negative. It is held
that the power under Section 528 of the BNSS could not be exercised
to quash the criminal proceedings initiated for offence of aggravated
sexual assault/rape under the POCSO Act and the IPC on the basis of a
deed of compromise .
25. The petition under Section 528 of the BNSS which is pari
materia to Section 482 of the Cr.P.C., is therefore rejected. However, if
the parties are inclined, they may pursue and approach the Supreme
Court for relief. Copy of this order be sent to the Court of the learned
Judge (POCSO) at Gangtok, for information.
(Bhaskar Raj Pradhan)
Judge
Approved for reporting : Yes
bp Internet: Yes