Mr. Ankit Rana, Mr. Tushar Rohmetra and Mr. Srikant Singh v. The State Govt. of NCT of Delhi

1. The present petition has been filed under Article 226 of the Constitution of India read with section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) seeking quashing of FIR No. 0612/2024 dated 07.10.2024 registered at P.S. Alipur, Delhi for offences under Section 106(1) of the Bharatiya Nyaya Sanhita, 2023 on basis of the Compromise Deed dated 19.10.2024 executed between the Petitioner, and Respondent Nos. 2 and 3.

2. It is stated in the petition that the petitioner was awarded the tender of the construction work for the construction of RCC drain from Village Jindpur (GT Road) to village Mukhmelpur (Drain No. 86) Distt North vide agreement No. EE/CD-VI/ACS- 17/2023-24/1568 dated 15.06.2023. It is stated that on 07.10.2024 unfortunately a five years old boy namely Rahul, fell into the sewer near MCD School Jindpur and lost his life, pursuant to which the subject FIR was registered against the Petitioner.

3. Learned senior Counsel for the Petitioner states that the victim's death was purely accidental and that there was no foul play on the part of the Petitioner. 3.[1] He states that the unfortunate incident took place on the footpath side which goes from Alipur to Jindpur. He states that the said footpath side of the drain had already been completed as per CPWD specification; and the drain was properly covered at the points of opening pit of drain area by placing 100MM thick factory made pre cast RCC rectangular covers on drain of 400.00 Sqm. He states that after the due inspection by the Assistant Engineer, CPWD the Petitioner had also been released the part payment of the project. He states that the said drain was being used by the general public and Municipal Corporation of Delhi was solely liable to clean the said drain. He states that there was no negligence on the part of the Petitioner. 3.[2] He however, states that Petitioner on humanitarian grounds has agreed to enter into a compromise with the family of the victim. He states that in pursuance thereof, the Petitioners has entered into a Compromise Deed dated 19.10.2024 with the parents of the victim child i.e. Respondent nos. 2 and 3 and in pursuance thereof the present petition has been filed for the quashing of the subject FIR. 3.[3] He states that as recorded in the order dated 30.01.2025 the Petitioner in deference to the observations made by the predecessor Bench and in accordance with the judgment of the Coordinate Bench in Chetan Malhotra SINGH vs. Lala Ram[1] has agreed to pay an enhanced compensation of a total amount of Rs. 5 lakhs to Respondent Nos. 2 and 3. He states that this Court had directed the Petitioner to assist Respondents No. 2 and 3 in opening a zero-balance account with a nationalized bank and/or post office so that the compensation amount can be transferred directly to said bank accounts. 3.[4] He states that however despite the best endeavour made by the Petitioner in compliance of order dated 30.01.2025, he could not assist Respondent Nos. 2 and 3 in opening their bank accounts as the mandatory documents required for opening an account are not available with Respondent Nos. 2 and 3. 3.[5] He states that a sum of Rs. 4 lakhs in cash have already been paid over to Respondent No. 3 as Respondent no. 2 has been taken ill. He states that the Petitioner be permitted to pay the remaining amount of Rs. 1 lakh in cash to Respondent No.3.

4. In addition, learned counsel for Respondent Nos. 2 and 3 states that he confirms that Respondent Nos. 2 and 3 prefer to receive the entire amount in cash. He confirms that Rs. 4 lakhs have already been received in cash. He confirms that Respondent no. 2 and Respondent no. 3 do not have the bank accounts.

5. The Investigating Officer (‘IO’) has identified Respondent no. 3. He states that Respondent no. 2 and Respondent no. 3 were found present at the spot on the date of the incident and it is on this basis that he can identify them.

6. This Court has interacted in vernacular with Respondent No. 3, who is present in Court accompanied with her brother Shiv Shankar. She as well 2016 SCC OnLine Del 2981 SINGH confirms the submissions of the counsels for the Petitioner as well as Respondent Nos. 2 and 3 to the effect that she has amicably settle the matter, received Rs. 4 lakhs and does not own a bank account.

7. This Court has considered the submissions of the parties.

8. At the outset this Court notes that offences under Sections 106 of the BNS (erstwhile Section 304-A IPC) is non-compoundable. However, it is well settled that the High Court while exercising its powers under Section 528 of the BNSS, erstwhile Section 482 CrPC can compound offences, which are non-compoundable on the ground that there is a compromise between the accused and the complainant in peculiar facts of the case. The Supreme Court has laid down parameters and guidelines to be adhered to by the High Court while accepting settlement and quashing the proceedings. In the case of Parbatbhai Aahir & Ors. v. State of Gujarat & Anr.2, the Hon’ble Supreme Court had observed as under:-

SINGH governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice, or (ii) to prevent an abuse of the process of any court. (Emphasis supplied)

9. The present case relates to the offences under Section 106 BNS erstwhile Section 304A IPC where the Respondent nos. 2 and 3’s child has died due to alleged negligence of the Petitioner. Thus, while deciding whether proceedings relating to such an offence can be quashed on the basis of the settlement between the accused and parents of the victim, it is necessary to consider whether it is probable that the presented facts would constitute gross negligence and whether the element of mens rea, which is required for the purpose of conviction, is present.

10. The Supreme Court, in the case of Jacob Mathew v. State of Punjab[3], while interpreting as to what constitutes a negligent act so as to constitute an offence under Section 304A of IPC held that gross negligence and an element of mens rea must be shown to exist. The Apex Court observed as under: “48. We sum up our conclusions as under: …(5) The jurisprudential concept of negligence differs in civil and criminal

SINGH law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. The word “gross” has not been used in Section 304A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304A of the IPC has to be read as qualified by the word “grossly”...” (Emphasis Supplied)