Mediation is a voluntary and flexible process where a Mediator acts as a Third Party and tries to resolve the dispute between two parties in an unbiased manner. It is basically a mutual resolution of any grievance done in confidentiality. Mediation falls under the Alternate Dispute Resolution (ADR) mechanism. In this article, we shall see the Scope of Mediation in Criminal cases.
In most criminal cases especially in cases that involve a crime against women, no substantive legislation recommends mediation for the resolution of such disputes. In such a case, if any mediation takes place in a criminal case involving a crime against a woman, it must be dealt with utmost care and precautions in order to protect the self-respect and dignity of the victim. There are various sections and legislations which deal with the issues of Sexual Offences against women and prescribe punishments for various kinds of offenses.
Types of Mediation:
- Mediation out of Court – Parties to the case is enabled to approach a mediation center or a mediator even without a court order in what is referred to as ‘pre-litigation mediation’ to resolve the dispute before filing a case to explore the possibility of dispute resolution without court intervention. If both the parties are equally ready to reach a compromise, only then this method is valid for the redressal of cases.
- Mediation in Court – Once the case reaches the trial stage, depending on whether the offense is compoundable or not, the scope for mediation can be gauged. The Compoundable criminal offenses are given in Section 320 of the CrPC and allow for settlement and the other offenses as non-compoundable vide Section 320(7).
In certain offenses, the parties involved can affect a compromise while the case is under trial in court. This is called ‘compounding’, further action in the trial is discontinued. Cases in which this is permissible are called compoundable offenses.
Sections 294, 499, 503, and 509 of the IPC are compoundable. They allow for settlement which can be reached through mediation. In the case of Dayawati vs Yogesh Kumar Gosain, the Delhi High Court declared the following: “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 the purposes of settling disputes which are the subject matter of offenses covered under Section 320 of the CrPC.” Furthermore, the court explained that if a mediation agreement reaches the criminal court, the court cannot rely on that agreement and pass a civil decree, it can only on the basis of the evidence either convict or acquit the accused and if the case is compounded, the compounding will have the effect of an acquittal under S. 320(8) of Code of Criminal Procedure. This has far-reaching consequences as the aim of deterring the crime via imprisonment or fine would be diluted.
To conclude, under appropriate circumstances, compoundable sexual offenses can be mediated after approval from the respective High Court, if the parties to the trial are equally willing to undertake mediation for solving the dispute.