Criminal cases to be referred to mediation only if settlement permissible under law, Delhi HC

The Delhi High Court has held that while referring a criminal case to mediation, the courts must first undertake a preliminary examination with respect to the permissibility of the same.

. Such permissibility would depend either on the compoundable nature of the offence or the willingness of the High Court to quash the criminal case under Section 482 of the Criminal Procedure Code, it has stated.

. The Court has further directed that a mediator, before commencing mediation, must also undertake a preliminary scrutiny of the facts of the criminal case to ascertain if the ‘settlement’ 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.

. For this, the Court has called for the creation of an institutionalized ‘’system of vetting” before any settlement is formally executed by the parties.

. The judgment was passed by a Single Judge Bench of Justice RK Gauba in a batch of petitions seeking quashing of criminal proceedings on account of ‘settlement’ of the dispute between the parties.

. While four cases pertained to credit card frauds, one involved pornographic and obscene calls and offences under the Information Technology Act .

. The Court noted that when either the law does not permit compounding or when such request for compounding has not been entertained, litigators invoke the inherent power of the High Court under Section 482 to end the criminal process after amicably settling the dispute. This jurisdiction is pleaded on the ground that continuance of the criminal proceedings would be an abuse of the process of law.

. After tracing the evolution of Section 482 jurisdiction through several Supreme Court judgments, the Court crystallized the broad principles which govern the exercise of the power of the High Court to an end any criminal process.

. While examining the prayer for quashing of a non-compoundable offence, on the basis of settlement of the dispute between the wrongful doer and the victim, the High Court should bear in mind as to whether the possibility of conviction is ‘remote and oblique’, the Court stated.

. The court would also consider if the continuation of the criminal case would lead to “oppression and prejudice” or “extreme injustice” for the accused, it added. Antecedents of the accused, possible lack of bona fides, his past conduct, would also weigh with the Court.

. The Court further cautioned that a court ‘must steer away’ from intervention in heinous or serious offences, including those involving murder, attempt to murder, extortion, forgery, rape, dacoity, financial or economic frauds, cases under the Arms Act, etc.

. In light of the principles encapsulated by it, the Court concluded that the settlement agreements reached in the five cases at hand were unacceptable.

. “ The four cases of credit card frauds relate to deep-rooted criminal conspiracies leading to serious offences being committed, cheating the public at large and the banking system.. 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…

. “ The fifth case involving pornographic and obscene calls and offences under Information Technology Act similarly is one which falls foul of the guidelines laid down by the Supreme Court consistent vis-a-vis the exercise of power under Section 482 Cr.P.C. The Metropolitan Magistrate, making reference to mediation, ignored the fact that this Court in that very case had declined to quash the case…The fact remains that the case involving the element of “mental depravity” cannot be quashed on settlement .”

. The Court also observed that referring serious fraud cases to mediation was not an answer to the challenge of huge pendency of old cases in criminal jurisdiction.

. To tackle the issue, Justice Gauba has requested the Chief Justice Rajendra Menon to consider creating additional criminal courts, on the administrative side.

. “ There is a need for 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, such endeavour would depend on infrastructural support from other agencies of the State.

. 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.

. This Court requests Hon’ble the Chief Justice to have the above issues examined on the administrative side for such directions to be issued and such steps to be undertaken as may be deemed prope r.”

. Further stating that judicial business must remain the priority, the Court also added that no judge can shun judicial work during court hours for administrative work.

. While dismissing the petitions, the Court has directed the Sessions Judge, New Delhi to periodically monitor the progress of the cases. It has also directed the cases should be decided as expeditiously as possible, preferably within six months.

. Read the Judgment:

Criminal cases to be referred to mediation only if settlement permissible under law, Delhi HC

Aditi Singh

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