Table of Contents
Authored By: Sejal Chaudhary
MEDIATION IN CRIMINAL MATTERS- AN ANALYSIS
ABSTRACT
With many impending cases, ADR is the most effective means for speedy disposal
of disputes and reducing the burden on courts. Section 89 of the CPC, 1908 enables the
reference of civil disputes to mediation by the courts. When it comes to criminal matters, there
is neither any express provision enabling reference of disputes nor barring the same. Based on
graveness, severity and impact on society, compoundable offences are settled via mediation
and non-compoundable offences cannot be settled by way of mediation or on account of
payment, etc. The absence of statutory provisions and enforceability and accountability of the
offender in grave offences creates a lack of trust in the process. Proper redressal mechanisms
and legal enforceability would take the effectiveness of the process a long way, further
expanding and creating scope for optimum utilization of ADR.
INTRODUCTION
Mediation is an alternative dispute resolution process where a specially trained mediator
facilitates the parties in arriving at an amicable settlement through a structured process.
There are two ways through which a mediation centre takes up cases. One is the court-annexed
or court-referred mediation and the other is pre-litigation mediation, which is a voluntary
exercise by the parties to a dispute. About criminal justice, the term ADR encompasses several
practices which are not considered part of traditional criminal justice, such as victim/offender
mediation; family group conferencing; victim offender-panels; victim assistance programs;
community crime prevention programs; sentencing circles; ex-offender assistance; community
service; plea bargaining; school programs.
MEDIATION IN CRIMINAL CASES
According to the procedural law of the country, the victim or any other person has to file an
FIR with the police under section 154 of the CrPC, 1973. Once the case is filed, the police
investigation takes place and a police report is filed before the magistrate. On the basis of the
investigation conducted and the evidence collected, the police files an investigation report or chargesheet under section 173 CrPC, 1973, upon which the magistrate takes cognizance and
summons the accused for trial.
Once the case reaches the trial stage, depending on whether the offence is compoundable or
not, the scope for mediation is gauged. On the basis of severity and impact on society, offences
have been classified as compoundable and non-compoundable. Section 320 CrPC lays down
the list of compoundable criminal offences that allow for settlement.
The CrPC lays down the procedure for trial of criminal cases and the same cannot be
overlooked. The objectives of mediation and the provisions of the Act are to be read
harmoniously. On a perusal of the CrPC, it is stated that there is no provision which enables
the trial court to refer any case before it, to mediation. However, it is pertinent to note that there
is no provision stating otherwise as well. In the case of Dayawati v. Yogesh Kumar Gosain,
the Delhi High Court held, “Even though there exists no express statutory provision enabling
the criminal court to refer the parties to alternate dispute redressal mechanisms, there is no
bar to utilizing them for purposes of settling disputes which are the subject matter of offences
covered under section 320 of the CrPC.” Therefore, there is no express bar by the statute to
reference of cases to mediation. On the other hand, the provision of compounding under the
CrPC (section 320) inherently envisages the element of settlement of issues.
The settled law for reference of cases to mediation is that disputes may be settled by way of
mediation regarding the offences which can result in a compromise between the offender and
the victim or, the prosecution in which cases can be quashed.
COMPOUNDABLE OFFENCES
The courts have classified cases of a certain nature which have to undergo the ADR mechanism
first. The court will not hesitate in referring the cases to mediation where the parties are familiar
with each other, and confidentiality is required to maintain the dignity and integrity of the
parties.
Harassment on account of dowry and cruelty under section 498-A of the Indian Penal
Code, 1860 is one such offence. Though the offence is non-compoundable, the courts have
been directed to refer all the cases involving family disputes to mediation. The judiciary has
recognized the duty of the courts to encourage genuine settlements of matrimonial disputes and
as such, the bar of section 320 CrPC has been inoperative for such disputes.
Criminal proceedings in cases which have been classified as criminal but have a predominantly
civil character like cases of cheque bounce and like cases arising out of commercial
transactions, may be quashed if the court deems the conditions of settlement fit and fair.6 The
website of Delhi District Courts’ Delhi Mediation Centre also specifies that the working of the
mediation centres has revealed that Suits for Injunction, Specific Performance, Suits for
Recovery, Labour Management disputes, Motor Accident Claims cases and Matrimonial
Disputes have met with a positive result during mediation, thereby making them suitable for
the process.
NON-COMPOUNDABLE OFFENCES
Grave offences like murder, rape etc. are offences against the human body and are not private
in nature, involving mental depravity and a serious impact upon society and hence cannot be
settled at any cost. Therefore, prosecution in these cases cannot be quashed even if the accused
and victim arrive at a settlement. Serious criminal offences which are non-compoundable in
nature including those under Sections 384/397/394/376/377 of IPC and under the POCSO
Act, cannot be compromised by way of a mediated settlement agreement and should not be a
subject matter of settlement on payment of money, etc. Courts have emphasised that it is
essential to uphold the gravity and seriousness of such offences, ensuring that perpetrators are
held accountable and that victims receive the necessary support, protection, and justice they
deserve, through appropriate legal proceedings. Any settlement or compromise in such cases
undermines the principles of justice and fairness, and the rights of the victims. Thus, no such
mediation must be entertained under any circumstances by a mediator.
ENFORCEMENT
In India, the settlement arrived at by the parties in mediation is not enforceable by law in the
absence of dedicated legislation for the same. It is merely an agreement between the parties
which cannot bind the parties unless made by a decree of the court.
The issue of enforcement of mediation settlement in criminal cases has been discussed by the
Kerela High Court in Sreelal v. Murali Menon. The court in this case held that the criminal
court cannot pass any civil decree to effectuate the settlement and it can only record that the
offence is compounded and that the compounding would be equivalent to acquittal.
MERITS AND DEMERITS
The settlement of criminal disputes via mediation has its advantages and disadvantages which
play out differently with changing social, economic, political and cultural contexts, etc.
When compared to litigation, mediation is a cost-effective and faster dispute resolution
mechanism which enables a more convenient dialogue between the parties helping them reach
a mutually acceptable decision. It is a tool of empowerment for the parties due to their
involvement as it does not render a binding judgement that leaves one or both parties
unsatisfied. The process has been known to resolve conflicts 85% of the time it is used.
However, looking at the other side, justice under criminal law aims to create deterrence against
crimes in society. Mediation aims at settlement of an issue rather than providing justice which
may result in diluting the essence of the criminal justice system. Moreover, in the absence of
any substantive or procedural law to facilitate the mechanism in criminal disputes, it seems
very difficult to implement or build awareness regarding the same. When it comes to grave and
precarious issues such as sexual harassment, murder, etc. mediation does not guarantee any
protection of the victim during and after the dispute is mediated. Nor does it guarantee that the
accused won’t commit the crime again. Furthermore, there is no system of checks and balances
to prevent power imbalance, coercion, political influence and bias from affecting the course of
mediation.
CONCLUSION
Amidst increasing urbanization and ever-increasing scope for crime, mediation can prove to be
an effective and speedy grievance redressal mechanism if it becomes more victim-centric and
provides additional safeguards ensuring the victim’s safety and preventing all sorts of
domination by the accused. To make the process of purpose to criminal matters, some remedial
steps shall be taken and some techniques need to be adopted. Furthermore, the process needs be legitimized by statutory provisions and a legally enforceable decision, thereby gaining
the public litigants’ trust and confidence in ADR.
