Settlement Of Non-Compoundable Offences Through Mediation Agreements Not Permissible: Delhi High Court Issues Guidelines To Mediators

Observing that settlement of non-compoundable offences through mediation agreements is not permissible, the Delhi High Court has issued various guidelines to be followed in such cases by mediators in all mediation centres in the national capital.

“… to permit the accused and complainant to compromise an offence on payment of money, in session triable serious criminal cases which attracts punishment up to life, cannot be subject matter of mediated settlement agreements,” Justice Swarana Kanta Sharma said.

The court observed that the offences punishable under Section 384, 397, 394, 376 and 377 of the Indian Penal Code as well as those under the POCSO Act, being non-compoundable, cannot be compounded or compromised by way of a mediation settlement and should not be a subject matter of settlement on payment of money.

“In such cases where one FIR is under compoundable offence and the other under non-compoundable offence, it should be specified that mere presence of the complainant before the Court does not, as a matter of right, confer a right on the accused persons to seek quashing of the FIR as it is discretion of the Court which is to be exercised depending on facts and circumstances of the case,” the court said.

It also directed the mediators to be sensitized about the fact that payment of money cannot become a criteria for quashing of FIR in cases of heinous offences, which will amount to paying money to get out of a criminal case of serious nature.

“The mediators at the end of mediated settlement agreement must mention in the cases as the present one i.e. non- compoundable cases where the parties want the FIR to be quashed in clear terms that quashing of the FIR is the discretion of the Court and the case being non- compoundable, depending on the facts and circumstances of the case FIR may or may not be quashed by the Court, it becomes relevant and important to do so in situations where both the parties have filed cases against each other and the agreement is based upon settlement that both will be withdrawing cases against each other,” the court said.

Furthermore, Justice Sharma added that that the concerned mediator must keep in mind that one of the parties should not be prejudiced by performing their part of agreement when the agreement, which is to be performed in their favour, is not wholly dependent upon the agreement or consent of the other party.

“These directions are also a reminder of importance of clarity of communication in writing the terms and consequences of the mediation agreement for each party which should be clarified before mediation settlement is reached, written and signed by the parties. The mediation agreements should be also written in Hindi where the parties understand Hindi as their mother tongue so that it is understood by them completely,” the court said.

It also deprecated the practice of sending cases involving crimes against the society at large for quashing of FIRs upon the payment of money.

The court passed the order while deciding a plea seeking quashing of an FIR filed for the offences punishable under Section 308 (non-compoundable offence) and 34 of the Indian Penal Code on the ground that the case was amicably settled and compromised between the parties.

It was informed that a Memorandum of Understanding (MoU) was signed by the parties before the Mediation Centre for a sum of Rs. 40,000.

“The present case is an example where for the parties, the mediator and one of the Court of Magistrate, the mediation was over, for the parties the cases were settled, however, one of the cases was not over as the settlement agreement qua an offence under Section 308 IPC could not have been quashed as a matter of right,” the court said.

While Justice Sharma quashed the FIR, a cost of Rs.5,000 each was imposed on the petitioners to be deposited with Delhi High Court Bar Association Employees Welfare Fund.

Case Title: ABHISHEK @ LOVE & ORS. v. THE STATE NCT OF DELHI & ORS.

Citation: 2023 LiveLaw (Del) 715

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