Reference Of Criminal Cases To Mediation Only If Offence Is 'Compoundable' Or HC Won't Have Inhibition To Quash It Later: Delhi HC

The Delhi High Court, in Yashpal Chaudhrani & Ors. v. State, has held that the court while considering reference of the parties to a criminal case to mediation must, before even ascertaining as to whether elements of the settlement exist, first examine the permissibility in law for the criminal action to be brought to an end either because the offence involved is compoundable or because the high court would have no inhibition to quash it, bearing in mind the broad principles that govern the exercise of jurisdiction under Section 482 CrPC. Guidelines for reference of criminal cases to mediation & other ADR methods Framing guidelines for such cases, a single bench of Justice RK Gauba held that the mediator (before commencing mediation) must undertake preliminary scrutiny of the facts of the criminal case and satisfy himself as to the possibility of assisting the parties to such a settlement as would be acceptable to the court, bearing in mind the law governing the compounding of the offences or exercise of power of the high court under Section 482 [of the] CrPC. The court said that for the achievement of the same purpose, an "institutional mechanism" has to be created in the mediation centres so that there is consistency and uniformity in approach. It said that the "system of vetting", at the conclusion of the mediation process, needs to be institutionalized so that before a settlement vis-a-vis a criminal case is formally executed by the parties, satisfaction is reached that the criminal charge involved is one which is either "compoundable" or one respecting which there would be "no inhibition felt by the High court in exercise of its inherent power under Section 482 CrPC, bearing in mind the relevant jurisprudence." It noted that it hopes and expects that these will serve as guidelines which criminal courts and mediation centres shall follow in future. The court said the same guidelines would mutatis mutandis apply to the other Alternate Dispute Resolution (ADR) methods. The court said that while, in its considered opinion, there is no bar in referring criminal cases to mediation even involving non-compoundable offences but the concern to be addressed, however, is as to whether the court is to make a reference of a criminal case to the process of mediation merely for the asking or should there be scrutiny before such reference. Background facts The bench was dealing with a bunch of petitions invoking the inherent power of the court under Section 482 of the Code of Criminal Procedure, 1973 to seek quashing of criminal proceedings on account of "settlement" of the dispute between the parties. The question before court was whether the process of mediation, particularly one before the court, should be permitted or encouraged to be availed of for bringing about such settlement as may possibly not be taken by the court to be a just or sufficient reason for such intervention, this having regard to the nature of the crime involved. There were many cases for consideration of court which involved the case of "rape and sexual assaults", four cases of "credit card frauds" and the case of "obscene calls and IT Offences". Reference to mediation for settlement Four criminal cases were referred to Delhi Mediation Centre of New Delhi Courts Complex at Patiala House in the present case by the Chief Metropolitan Magistrate before whom they have been pending. Earlier also, same parties had approached the present court seeking the FIR of fifth petition to be quashed on the ground that the parties were "likely to arrive at a settlement", which was withdrawn and dismissed later. The court dismissed all the five petitions before it while coming heavy on the authorities for completely ignoring the rules and guidelines while referring cases to mediation. The court said that references failed to comply with Supreme Court guidelines over the exercise of power under Section 482 of CrPC. In case of "credit card frauds", the court observed that "All concerned including the criminal court making the reference, the complainant bank and the mediator forgot – the public prosecutor possibly apathetic – that the accused persons were attempting to take benefit of their own wrongs. Public money of value much more was stolen than what the bank shockingly was ready to accept to bury the cases. There cannot be a premium on dishonesty. The gravity and seriousness of the offences, the conduct of the accused persons and the impact on society are good reasons to reject the settlement as ill-conceived and unworthy". Criminal court not a room with revolving door While dealing with other concerns in the matters before the court, the court noted that the criminal court is not a "room with a revolving door" where the accused can enter into or exit from at his own whims or fancies. The court said that the judge presiding over a criminal trial...

Reference Of Criminal Cases To Mediation Only If Offence Is 'Compoundable' Or HC Won't Have Inhibition To Quash It Later: Delhi HC

Shayesta Nazir

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