Delhi High Court: R.K. Gauba, J. laid down guidelines for the criminal courts and mediation centers to be followed while dealing with the criminal cases that are to be or which have been referred for mediation.
The High Court was considering petitions under Section 482 CrPC concerning cases of serious nature, sought to be quashed on the premise of “settlement” of the dispute entered into between the parties. The question that arose was: whether the process of mediation, particularly one under the aegis of the court, should be permitted or encouraged to be availed of for bringing about such settlement as may possibly not to be taken by the court to be just or sufficient reason for such intervention, this having regard to the nature of the crime involved?
There were five criminal cases before the Court in the present petitions. Four of them related to credit card frauds and the last one was a case of obscene calls and IT offences. Denouncing the manner in which these cases were dealt with by the lower courts and mediation authorities in registering settlements between the parties in such serious offences, the Court went on to lay guidelines for the criminal courts and mediation authorities to be followed in such cases.
The Guidelines
(i) The court while considering reference of the parties to a criminal case to the mediation must before even ascertaining as to whether elements of settlement exist first examine, by preliminary scrutiny, 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.
(ii) 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 CrPC. For this, an institutional mechanism has to be created in the mediation centers so that there is consistency and uniformity in approach. The scrutiny in above nature would also need to be undertaken, as the mediation process continues, should any such criminal case, as mentioned above, be brought on the table by the parties (for being included in the settlement), as takes it beyond the case initially referred.
(iii) The system of vetting, at the conclusion of the mediation process, needs to be institutionalised 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.
The Court added that the above guidelines will apply mutatis mutandis to other ADR methods. It was expected that the criminal courts and mediation centers shall abide by the above guidelines.
Present petitions
As far as the present petitions were concerned, the Court was of the view of that the four cases of credit card frauds have a serious adverse impact on the financial and economic well-being of the State and its banking institutions. The gravity and seriousness of the offences, the conduct of the accused persons and the impact on society were good reasons to reject the settlement as ill-conceived and unworthy. The fifth case involving pornographic and obscene call offences under IT Act similarly was a case involving mental depravity and could not be quashed on the basis of a settlement. Accordingly, all five petitions filed before the Court were dismissed.
Other concerns
— 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 Judge presiding over a criminal trial must keep everyone in discipline, particularly in the matter of appearance in time.
— There can be a denial of the ground reality that in the criminal law process of this country, protracted trials have become the rule and expedition is an exception. There seems to be no system, check or discipline, or accountability, on the part of the defence counsel.
— This Court has been laying emphasis from time to time on timely conclusion of old cases in a time bound manner. But, 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 the criminal jurisdiction.
— There is a 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 a conclusion. But, such endeavour would depend on infrastructural support from other agencies of the State.
Noting such concerns, the Court requested the Chief Justice 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 proper.
Instructions were issued in regard to the credit card fraud cases. The Chief Metropolitan Magistrate was directed to take up the matter on a day-to-day basis and reach a conclusion preferably within 6 months of the receipt of the present order. The progress of the case was directed to be periodically monitored by the Sessions Judge. [Yashpal Chaudharani v. State (NCT of Delhi, 2019 SCC OnLine Del 8179, dated 22-04-2019]
