• Quashing of FIR under section 376/34 POCSO Act section 5 & 6

I am mistakely or due to misunderstanding filed a FIR against my real brother and real sister that they have done something wrong with my 3 and half years old daughter in her private part. my daughter was lived with my parent (mummy, papa, brother and sister) in my metarnal home from last 3 years they all care my daughter very well but my daughter have stated before magistrate and accept that mama and mousi do something wrond with her now my brother and sister on anticipatory bail till 27/10/2017 i am feeling very guilty about my mistake and i want quash the above mentioned case, so i want to know that  is it possible that bail will be grand in continuation of 27/10/2017 and what the next step of hon'ble high court in this regard we have already filed for quashing and next date of hearing february 2018 for quashing
Asked 9 months ago in Criminal Law from New Delhi, Delhi
Religion: Hindu
Hii, you have already filed a quashing in high court , that is the only procedure to cancel the FIR under Crpc .. Hopefully , the high court will quash the FIR , but you have to justify what was the  reason behind such a big misunderstanding .. Also , if any medical is done of your daughter will be taken into consideration .. It is a non compoundable offence , therefore it totally depends upon the discretion of high court in passing the order
Hemant Chaudhary
Advocate, New Delhi
3240 Answers
14 Consultations

4.9 on 5.0

1. If they have indeed committed such offence then i wonder why are you do worried about the case.
2. A perpetrator of crime must be punished for their offence..
3. Since the case is grave is natur and must be under POSCO Act, it can not be quashed anymore.
4. if you are willing then during trial you may get them acquitted of the offence.
Devajyoti Barman
Advocate, Kolkata
13174 Answers
175 Consultations

5.0 on 5.0

1) in case where there has been penetrative sexual assault your brother can be prosecuted under 5 of POSCO act . since the child is less than 18 would not prosecuted under section 376 of IPC for rape 

2)In respect of what the courts consider “serious offences” the settlement between the offender and the victim can have no legal sanction at all, the Supreme Court has held

3) it is doubtful that FIR would be quashed by HC 
Ajay Sethi
Advocate, Mumbai
46856 Answers
2772 Consultations

5.0 on 5.0

You can make a request before the court, but in criminal cases of this nature the HC will not necessarily quash the FIR.

Anilesh Tewari
Advocate, New Delhi
9333 Answers
121 Consultations

5.0 on 5.0

Ask your sister and brother in law to file a petition for quashing of the FIR before the High Court. You may appear before the Court and give a NOC. 

Although rape is a non-compoundable offense, you may still try for settlement of this case.

Contact an able local Criminal Lawyer.
Vibhanshu Srivastava
Advocate, New Delhi
5755 Answers
71 Consultations

5.0 on 5.0

1. They have been granted interim bail only till 27.10.2017, which may or may not be made permanent when the court finally decides their AB application.

2. Section 376/34 IPC and Sections 5&6 POSCO Act are very serious offences which are non-compoundable. The HC cannot allow even a compromised based quashing of these offences. Quashing of such offences is opposed to public policy, the Supreme Court has said in many judgments. Under no circumstances the HC will quash this FIR.

3. Unless you were sure that your family members have done this you should not have lodged the FIR in the first place.
Ashish Davessar
Advocate, Jaipur
23175 Answers
641 Consultations

5.0 on 5.0

The offence under section 376 IPC is "Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
The offence do not come under the list of compoundable offence.

Section 5 and  6 is an aggravated penetrative sexual assault as defined in section 5(i) of the protection of children from sexual offences act, 2012 and so liable for punishment under sections 6 of the said act.

The charges or the offences under the above law are not compoundable hence you canot withdraw  the complaint once a FIR is registered.

If they apply for quash then you may give an affidavit stating that it was yor mistake hence the charges are not pressed, however it is the discretion of the high court to quash the charge sheet or not owing to the gravity of the offence.

If this is not possible hen yo may have to turn hostile to the witness deposition to save the accused.

T Kalaiselvan
Advocate, Vellore
37030 Answers
403 Consultations

5.0 on 5.0

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