Delhi High Court issues guidelines for mediators to be followed while recording mediation settlements in heinous crimes

delhi high court

Delhi High Court: A petition was filed seeking to quash FIR registered for the offences punishable under Sections 308 read with 34 of the Penal Code, 1860 (‘IPC’) and all consequential proceedings emanating therefrom. Swarana Kanta Sharma, J., quashed the FIR and imposed a cost of Rs. 5,000 on the petitioners to be deposited with Delhi High Court Bar Association Employees Welfare Fund within one week and the receipt of the same will be filed before the Registry.

A complaint was filed by the complainant alleging that the accused came outside the house of the complainant, abused and threatened him. He along with other co-accused also hit him and beat him with bricks and ran away. FIR was registered for the offences punishable under Sections 308 read with 34 IPC against the petitioners. However, during the pendency of the case, with the intervention of the well-wisher and family members, the matter was amicably settled and compromised between the parties and a Memorandum of Understanding (MoU) was signed by them before the Mediation Centre, Rohini Courts, Delhi, for a sum of Rs. 40,000.

The Court noted that merely mentioning in the settlement agreement that the matter has been settled, the amount has been paid and the FIR got quashed could have been of no help, since it is the discretion of the Court under Section 482 CrPC, which is to be exercised in a judicious manner based on settled principles of law depending on the facts and circumstances of each case, as to whether the FIR would be quashed solely based on a settlement agreement or not.

The Court further noted that when there may be instances where two parties have criminal cases pending against each other which may be cross FIRs or otherwise, one of the FIRs may be compoundable and the other may be a non-compoundable and heinous offence. To draw a mediated settlement agreement which states that one party is withdrawing the case before the Magistrate on the assurance recorded in the settlement that the complainant would appear in the High Court for the purpose of quashing the FIR will be misguiding since the mere filing of a petition for quashing in a heinous offence even based on an agreement between the parties may not result in quashing of the FIR. Thus, recording mediation settlements as in the present case is misguiding as it is not clear to one of the parties that the FIR against them may not be quashed owing to the gravity of the offence.

The Court concluded that in the case of a mediated agreement if a non-compoundable serious session triable offence is being settled for payment of money and part of it will be paid at the time of quashing of the FIR, gives an impression as if such offences can be compounded by mere payment of money through a settlement agreement as a matter of right. It also suggests that the High Court is bound by such agreements and settlements between the parties and is required to quash the FIR in all cases. However, this is not the position of law nor the process of mediation, which permits drawing of such settlement-mediated agreements being beyond the scope of the mediation process.

The Court issued guidelines to be followed by the mediators in all the mediation centres in the District Courts of Delhi as well as of this Court, at the time of recording mediation settlements:

i. That the offences under Sections 384, 397, 394, 376 and 377 and under POCSO Act, etc., being non-compoundable cannot be compounded or compromised by way of a mediated settlement and should not be a subject matter of settlement on payment of money, etc.

ii. In such cases where one FIR is under compoundable offence and the other under non-compoundable offence, it should be specified that mere presence of the complainant before the Court does not, as a matter of right, confer a right on the accused persons to seek quashing of the FIR as it is discretion of the Court which is to be exercised depending on facts and circumstances of the case.

iii. The mediators should be sensitized that payment of money cannot become a criteria for quashing of the FIR of heinous offences which will amount to paying money to get out of a criminal case of serious nature.

iv. The mediators at the end of mediated settlement agreement must mention in the cases as the present one i.e. non-compoundable cases where the parties want the FIR to be quashed in clear terms that quashing of the FIR is the discretion of the Court and the case being non compoundable, depending on the facts and circumstances of the case FIR may or may not be quashed by the Court, it becomes relevant and important to do so in situations where both the parties have filed cases against each other and the agreement is based upon settlement that both will be withdrawing cases against each other. However, at times one case is withdrawn from the Court of Magistrate being compoundable the other criminal case being serious in nature may not be found fit to be quashed by the High Court, thereby causing anguish to one of the parties who have withdrawn their complaint in the hope and belief that case against them will also be quashed by the High Court through such settlement.

v. The mediators should be able to foresee the issue of enforceability of the type of above-mentioned mediated agreements and explain the same to the parties concerned. The fact of mediator having explained the same to the parties should be reflected in the mediated agreements.

vi. The mediators should also keep it in mind that though in such cases, where both the parties have cases pending against each other or heinous criminal offences which are non-compoundable and attract stringent punishment though both sides may be ready to perform their part of agreement, it is not legally enforceable agreement as there is no assurance of FIR being quashed as a matter of right. In case of non-quashment of such cross-FIR, it will prevent one party to still face the criminal trial against whom the settlement was to get the FIR quashed and the party against whom a compoundable offence is alleged will gain the benefit of the agreement despite failing to get the FIR quashed as a matter of right from the High Court.

vii. A mediator is ethically responsible to ensure that the parties are informed of the legal issues surrounding enforceability in the areas in which he or she has mediated.

viii. Mediation is a process where the disputants constructively settle their disputes. In cases as the present one, they must be made aware of technical rules, procedures and procedural justice which may be at the discretion of the Court.

ix. The mediator must keep in mind that one of the parties should not be prejudiced by performing their part of agreement when the agreement which is to be performed in their favour is not wholly dependent upon the agreement or consent of the other party.

x. The present mediated settlement agreement is a useful reminder that in a hurry to end litigation, one should not draw mediation agreements which are non-enforceable as part of it may be subject to discretion of the Court, which is not mentioned in the mediation agreement.

xi. These directions are also a reminder of importance of clarity of communication in writing the terms and consequences of the mediation agreement for each party which should be clarified before mediation settlement is reached, written and signed by the parties.

xii. The mediation agreements should be also written in Hindi where the parties understand Hindi as their mother tongue so that it is understood by them completely.

The Court remarked that the mediators in Delhi who are adequately and sufficiently trained by able and trained experts, having vast and long experience, must go through the settlement agreements carefully before signing them and should know which offences cannot be compounded or be quashed as a matter of right.

The Court held that the present case is an example where for the parties, the mediator and one of the Court of Magistrates, the mediation was over, and for the parties, the cases were settled, however, one of the cases was not over, as the settlement agreement qua an offence under Section 308 IPC could not have been quashed as a matter of right. Thus, while there is no denying that the law favours the settlement of disputes through the agreement of the parties, there can be no summary procedure adopted to settle cases that are not compoundable and are beyond the scope of mediation.

[Abhishek v State of NCT of Delhi, 2023 SCC OnLine Del 5057, decided on 16-08-2023]

Advocates who appeared in this case:

Mr. Mukesh Verma and Mr. Suraj Prakash Sharma, Advocates for the Petitioners;

Mr. Naresh Kumar Chahar, APP for the State.

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