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 to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason.

12. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the concerned offence, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it.”

In the decision reported in Gian Singh v. State Of Punjab & Another, the Supreme Court had held that heinous and serious offences like rape cannot be quashed notwithstanding the fact that the dispute may have been settled between the offender and the victim or victim’s family. The Apex Court had held :

“ Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.”

The Supreme Court in Gian Singh (supra) had held that the only category of cases where cases could be quashed on the basis of settlement between the victim and the accused were those that involved a civil flavor. The Supreme Court had said:

 “the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.”

Gian Singh (supra) was subsequently followed in the decision reported in Gold Quest International Private Ltd v. The State Of Tamilnadu And Ors also, wherein the Supreme Court reiterated the position in law affirmed and declared in Gian Singh (supra) and said :

“we are of the view in the disputes which are substantially matrimonial in nature, or the civil property disputes with criminal facets, if the parties have entered into settlement, and it has become clear that there are no chances of conviction, there is no illegality in quashing the proceedings under Section 482 Cr.P.C. read with Article 226 of the Constitution. However, the same would not apply where the nature of offence is very serious like rape, murder, robbery, dacoity, cases under Prevention of Corruption Act, cases under Narcotic Drugs and Psychotropic Substances Act and other similar kind of offences in which punishment of life imprisonment or death can be awarded.”

In Kamal Kishore v State of Himachal Pradesh (2000) 4 SCC 502) a three-Judge Bench of the Apex Court arrived at the conclusion that the fact that the occurrence took place 10 years ago and the accused or the victim might have settled in life is no special reason for reducing the statutory prescribed minimum sentence, stating:

“22. The expression "adequate and special reasons" indicates that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a conjunction of both for enabling the court to invoke the discretion. Reasons which are general or common in many cases cannot be regarded as special reasons. What the Division Bench of the High Court mentioned (i.e. occurrence took place 10 years ago and the accused might have settled in life) are not special to the accused in this case or to the situations in this case. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. No catalogue can be prescribed for adequacy of reasons nor instance can be cited regarding special reasons, as they may differ from case to case.

23. As the reasons advanced by the Division Bench of the High Court could not be supported as adequate and special reasons learned Counsel for the accused projected an alternative profile in order to support his contention that there are adequate and special reasons. He submitted the following: Shishna Devi (PW2) has since been married to another person and she is now mother of children and is well-settled in life. The accused was aged 23 when the offence was committed and now he is 34, but he remains unmarried. He says that on two occasions his marriage had reached the stage of engagement but both had to be dropped off before reaching the stage of marriage due to the social stigma and disrepute which surrounded him. These are the reasons which he advanced for extending the benefit of the proviso.
24. Those circumstances pleaded by him are not special reasons for tiding over the legislative mandate for imposing the minimum sentence.”

In Shimbhu & Anr v State Of Haryana a 3-judges bench of the Apex court held as follows :

“a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.”

The Bench in Shimbhu (supra) further cautioned lower Courts not to show misplaced leniency while awarding sentence for a heinous crime as rape. It said,

“This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases.”

Thus when the position in law is clear that cases of a heinous nature such as rape cannot be compounded or the sentence reduced in exercise of the High Court’s discretion, on the basis of a settlement, it is indeed baffling as to how and why the single Judge of the Madras High Court could possibly have passed an order referring the parties to mediation to explore the possibility of a settlement.

Though the order passed by the Madras High Court purportedly relies on the decision of the Apex Court in Ravindra v State Of Madhya Pradesh to support the reference of the matter to mediation, which is rendered by a bench comprising of 2 judges, it is pertinent to note that the said decision makes no reference to the larger bench decision in Shimbhu & Anr v State Of Haryana (supra).

Read the Judgment here.