1. Quashing of FIR and criminal proceedings for aggravated penetrative sexual assault and rape under POCSO Act and IPC based on compromise. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 )
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2026 Supreme(Sikk) 42
THE HIGH COURT OF SIKKIM: GANGTOK
Bhaskar Raj Pradhan, J.
Rxxx Rxx - Petitioners
Versus
State of Sikkim - Respondent
CRL. M.C. No. 2 of 2026
Decided On : 02-09-2026
Important Points
High Courts cannot exercise inherent powers to quash criminal proceedings for rape or aggravated penetrative sexual assault under the POCSO Act and IPC based on a compromise or settlement, even if the survivor has attained majority, as such serious offences are not legally compoundable.
Subject
Criminal Law - POCSO Act
Act Referred
Headnote
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Protection of Children from Sexual Offences Act, 2012 - Sections 2(d), 5(j)(ii) and 6 - Indian Penal Code, 1860 - Section 376 - Quashing of FIR and criminal proceedings - Settlement/Compromise between parties - Inherent powers of High Court - In cases of serious offences such as rape and aggravated penetrative sexual assault, a settlement between the offender and the victim has no legal sanction for the High Court to quash the prosecution under its inherent powers, even if the survivor has subsequently attained majority and entered into a compromise (Paras 20 and 24).
(B) Consent under POCSO Act - It is settled law that the consent of a child is no consent at all, and factual consent in a relationship between minors is immaterial (Paras 15 and 21).
Facts of the case:
A survivor, who was a minor at the time of the incident, filed an FIR against the accused for sexual intercourse which resulted in pregnancy. The parties were in a romantic relationship. Following the recording of the survivor's deposition, a deed of compromise was executed between the parents of the survivor and the accused. A petition for quashing the FIR and subsequent criminal proceedings was then filed by the accused, the survivor (who had since attained majority), and their respective parents, arguing that the act was consensual and that continuing the trial would hamper the accused's future.
Findings of Court:
The Court found that while the intention to compromise was evident since the petition was supported by affidavits from all parties, the nature of the charges—aggravated penetrative sexual assault resulting in pregnancy—falls within a category of heinous crimes where compromise cannot be a ground for quashing.
Issues: (i) Whether a deed of compromise entered between the parents of a survivor and the accused could be acted upon as a compromise between the accused and the survivor who are both adults; and (ii) Whether the power under Section 528 of the BNSS could be exercised to quash criminal proceedings initiated for offences of aggravated sexual assault/rape under the POCSO Act and the IPC on the basis of a deed of compromise.
Ratio Decidendi: The court held that the inherent powers of the High Court cannot be used to quash prosecutions for serious offences of mental depravity or moral turpitude, specifically rape and aggravated penetrative sexual assault. Relying on Supreme Court precedents, the court reasoned that such settlements have no legal sanction, regardless of whether the survivor has attained majority or whether the relationship was consensual, as these acts are considered wrongs against society at large.
Result: The petition under Section 528 of the BNSS is rejected.
(B) Consent under POCSO Act - It is settled law that the consent of a child is no consent at all, and factual consent in a relationship between minors is immaterial (Paras 15 and 21).
Facts of the case:
A survivor, who was a minor at the time of the incident, filed an FIR against the accused for sexual intercourse which resulted in pregnancy. The parties were in a romantic relationship. Following the recording of the survivor's deposition, a deed of compromise was executed between the parents of the survivor and the accused. A petition for quashing the FIR and subsequent criminal proceedings was then filed by the accused, the survivor (who had since attained majority), and their respective parents, arguing that the act was consensual and that continuing the trial would hamper the accused's future.
Findings of Court:
The Court found that while the intention to compromise was evident since the petition was supported by affidavits from all parties, the nature of the charges—aggravated penetrative sexual assault resulting in pregnancy—falls within a category of heinous crimes where compromise cannot be a ground for quashing.
Issues: (i) Whether a deed of compromise entered between the parents of a survivor and the accused could be acted upon as a compromise between the accused and the survivor who are both adults; and (ii) Whether the power under Section 528 of the BNSS could be exercised to quash criminal proceedings initiated for offences of aggravated sexual assault/rape under the POCSO Act and the IPC on the basis of a deed of compromise.
Ratio Decidendi: The court held that the inherent powers of the High Court cannot be used to quash prosecutions for serious offences of mental depravity or moral turpitude, specifically rape and aggravated penetrative sexual assault. Relying on Supreme Court precedents, the court reasoned that such settlements have no legal sanction, regardless of whether the survivor has attained majority or whether the relationship was consensual, as these acts are considered wrongs against society at large.
Result: The petition under Section 528 of the BNSS is rejected.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
- constitutional law
Advocates Appeared:
For the Petitioner:Mr. Safal Sharma, Advocate (Legal Aid Counsel)
For the Respondent:Mr. Thinlay Dorjee Bhutia, Public Prosecutor and Mr. Yadev Sharma, Additional Public Prosecutor, for the Respondent.
For the Petitioner:Mr. Safal Sharma, Advocate (Legal Aid Counsel)
For the Respondent:Mr. Thinlay Dorjee Bhutia, Public Prosecutor and Mr. Yadev Sharma, Additional Public Prosecutor, for the Respondent.
Table of Contents
2. Petitioners argued compromise deed executed between parents; court questioned if such deed and inherent power can quash POCSO and IPC proceedings. (Para 3 , 4 , 8 , 9 )
3. Supreme Court precedent holds that even with settlement and survivor attaining majority, High Court cannot quash prosecution for such offences. (Para 18 , 19 , 20 , 24 )
4. Power under Section 528 BNSS cannot quash criminal proceedings for aggravated sexual assault/rape under POCSO Act and IPC based on a compromise. (Para 24 , 25 )
5. Petition under Section 528 BNSS rejected; parties may approach Supreme Court for relief. (Para 25 )
6. Can a deed of compromise entered between parents of survivor and accused be treated as a compromise between accused and survivor?
No, a deed of compromise is an agreement between parties to it; parents' deed cannot be termed a compromise between accused and survivor. However, parties' affidavits indicate intention. (Para 24 )
7. Can the inherent power under Section 528 BNSS be exercised to quash proceedings for aggravated sexual assault/rape under POCSO Act and IPC based on a compromise?
No, the Supreme Court has held that even with settlement and survivor attaining majority, the High Court cannot quash prosecution for such serious offences. (Para 20 , 24 )
8. Is consent of a child relevant under the POCSO Act?
No, consent of a child is no consent at all; the POCSO Act elevates the age of consent to 18 years for all persons. (Para 15 , 16 )
9. Does the POCSO Act apply to consensual sexual activity between adolescents?
Yes, factual consent in a relationship between minors is immaterial under the POCSO Act, but the legislature is alive to such activity and has made provisions like Rule 3B(b) of MTP Rules. (Para 21 , 22 )
ORDER :
Bhaskar Raj Pradhan, J.
The petitioners have invoked the provision of Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for quashing the 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 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.
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
