Madras HC passes order permitting person convicted of rape of a minor to settle the matter through mediation [Updated]

In a decision which may perhaps appropriately be described as a ‘howler’, a man, found guilty by the trial court of raping a minor and resultantly sentenced to seven years’ imprisonment, has been given an opportunity by the Madras high court to 'settle' the matter by mediation. The order was passed in an appeal filed by the convict, V. Mohan before the Madras High Court.Justice P Devadass, holding that alternative dispute resolution such as mediation is now being used in criminal cases also, said: "In fact, even in Islam, Hinduism and Christianity, there are instances of solving the disputes in a non-belligerent manner. The result of it is very good because there is 'no victor, no vanquished'."But the victim rejected the proposal. She has reportedly said to CNN IBN that "“I am not ready to talk or get married to him. Why are they asking me to talk to him after seven years?”In July 2002, a mahila court in Cuddalore, Tamil Nadu acquitted two of the co-accused in the crime, but found Mohan guilty of the offence of committing rape. Besides imposing a fine of Rs 2 lakh, he was sentenced to undergo imprisonment for seven years.He was before the High Court challenging his conviction and sentence, and seeking bail pending disposal of the appeal.Justice Devadass pointed out that he had already referred a similar case for mediation and that it was nearing a "happy resolution."According to him, he referred a case registered under the POCSO Act for mediation in February 2015, after a man had raped a girl who became pregnant and gave birth to a child too.Noting that there was a big question mark before the girl and that her future was very important, Justice Devadass had directed District Legal Services Authority in Tiruvallur and Tamil Nadu State Legal Services Authority to mediate in the matter.The court was informed that the accused in the earlier case which he had referred for Mediation had agreed to marry the girl. "Now the said case is proceeding towards a happy conclusion," said Justice Devadass.Attempting a similar resolution in the instant case, the judge referred the case to mediation saying: "The victim-girl has become mother of a child. But as on date, she is nobody's wife. So, she is an unwed mother. Now there is a big question mark looming large before the girl as well as her child, who is completely innocent. Generally, in this type of cases, the girl concerned is stated to be a victim, but really speaking the child born out of such a physical contact is also a victim. The child is a victim of circumstances. She was born to suffer a social stigma for no fault of her. It is a great tragedy.""Women are the soft targets of male lust. For anything and everything, they are being blamed. Very often, they are being forgotten that they too are human beings," says the order.Justice Devadass then referred the matter to the mediation center attached to the high court and said Rs 1 lakh deposited as fine should be kept in Indian Bank, Thittakudi, Cuddalore district in a fixed deposit in the girl's name.He granted an interim appeal bail to Mohan and said advocates appearing on both sides would assist the mediators and in case of a compromise, arrive at a ‘Memorandum of Understanding’.The order has understandably created a furore in legal circles since it was reported widely in the media and even laymen have taken to social media to denounce the order permitting settlement of a heinous crime.The order of the Madras High Court appears to be plainly against the settled legal position laid down by the Apex court in a number of cases.In State of M.P. vs. Bala @ Balaram (2005) 8 SCC 1, the Supreme Court held that the long pendency of the criminal trial or offer of the rapist to marry the victim are no relevant reasons for exercising the discretionary power under the proviso of Section 376(2) IPC. The Apex Court further held as under:“11. The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 I.P.C. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Section 376(1) and 376(2) I.P.C. give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist...

Madras HC passes order permitting person convicted of rape of a minor to settle the matter through mediation [Updated]

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