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.
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 must keep everyone in discipline, particularly in the matter of appearance in time. If a pattern or tendency of truancy is noticed, necessary consequences must follow, it said.
The court noted further that the manner in which the accused persons in the "credit card fraud" cases have played with the procedure, absenting at will, reappearing at their convenience, requesting for the duress processes to be cancelled on specious grounds, their requests being granted just for the asking, leaves one with the impression that no one – and that includes the presiding judge and public prosecutor – was interested in taking the cases forward. It said that these cases reflect a "most irresponsible way of handling a criminal court bordering on abdication."
Protracted trials a norm now
Expressing concern over protracted trials becoming the rule and expedition an exception in the criminal law process of the country, the court observed that it is the obligation of the judges to take cases forward as expeditiously as possible and to ensure timely conclusion of "old cases". The court further said that treating serious fraud cases as one meant for recovery through the process of mediation is no answer to the challenge of huge pendency of old cases in criminal jurisdiction. The only way forward is a serious and sincere effort on each and every date of hearing to take the matter to the next logical stage under the prescribed criminal procedure.
Judicial business must be priority
Acknowledging the Chief Metropolitan Magistrate's report over him and his predecessors not taking up these cases on innumerable dates also for the reason of pre-occupation with "administrative work", the court held the same not to be proper and said that "No judge can shun judicial work during court hours for administrative work and the judicial business [should be] the priority."
Need for creation of additional criminal courts
Acknowledging the information that criminal complaints under Section 138 Negotiable Instruments Act, 1881, have inundated the courts of Metropolitan Magistrates and Civil Judges all over Delhi, particularly at New Delhi sessions division rendering civil litigation and serious criminal cases secondary, which is not healthy, the court noted: "The move in 2008 to create special courts at Dwarka Court Complex for such cases filed by financial institutions had proved to be very effective. It had freed the regular magisterial courts from such work so that they could devote more energy on serious offences. It is time the court reconsidered that modal once again by utilizing space now available at Dwarka Court Complex by recent moving of Labour Courts, etc. Shifting of such work from courts of regular magistrates will facilitate progressive movement in regular criminal work and bring timely justice, a goal for achievement of which the court is to always remain committed."
The court acknowledged the fact that a large number of cases requiring priority with concentration in one court do clog the process and observed that "it does not call for much imagination to understand that delay in conclusion of the trials render criminal justice ineffective."
The court emphasized the need for the creation of "additional criminal courts" so that each such court carries only such optimum number of cases as can be expeditiously moved through the procedure to conclusion. But at the same time, it realized that such an endeavor would depend on infrastructural support from other agencies of the state.
It said: "While the Court on the administrative side is expected to take up this issue with the concerned quarters, there is also an urgent need for equitable distribution of the judicial business, particularly the old matters, so that collective effort can be made to take the chronic ones to logical conclusion within reasonable time."
It requested the Chief Justice to have the above issues examined on the administrative side for such directions to be issued and undertaken as may be deemed proper.
The bench also issued instructions about the four credit card fraud cases and directed the Chief Metropolitan Magistrate, New Delhi, to take up the said matters on a day-to-day basis till they reach final conclusion and show no latitude or indulgence in the matter of non-appearance.
It also directed Sessions Judge, New Delhi to periodically monitor the progress of the cases and to ensure that they are decided as expeditiously as possible, preferably within six months of the date of receipt of the court order and asked for compliance report to be filed before the court at the end of the said period of six months.