Delhi High Court
Sh. Yashpal Chaudhrani & Ors. vs State (Govt. Of Nct Delhi) & Anr. on 22 April, 2019
$~
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: March 15, 2019
Decided on: April 22, 2019
+ CRL.M.C. 5765/2018
SH. YASHPAL CHAUDHRANI & ORS. ..... Petitioners
Through: Mr. Gurmit Singh Hans & Ms.
Aarti Machanda, Advs.
versus
STATE (GOVT. OF NCT DELHI) & ANR. ..... Respondents
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Alok
Bajpai, Spl. Cell/SR.
Mr. Dayan Krishnan, Sr. Adv.
with Mr. Harsh Sinha, Adv. for
R-2.
Mr. J.P. Sengh, Sr. Adv. with
Ms. Veena Ralli, Adv. /
Organising Secretary, Delhi
High Court Mediation and
Conciliation Centre.
+ CRL.M.C. 5768/2018
AKHIL ARORA & ORS. ..... Petitioners
Through: Mr. Gurmit Singh Hans & Ms.
Aarti Machanda, Advs.
versus
STATE & ANR. ..... Respondents
Crl.MC 5765/18, 5768/18, 5785/18, 5805/18 & 5995/18 Page 1 of 65
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Alok
Bajpai, Spl. Cell/SR.
Mr. Dayan Krishnan, Sr. Adv.
with Mr. Harsh Sinha, Adv. for
R-2.
+ CRL.M.C. 5785/2018
RAJIV ARORA & ORS ..... Petitioners
Through: Mr. Gurmit Singh Hans & Ms.
Aarti Machanda, Advs.
versus
STATE (GOVT. OF NCT DELHI) & ANR. ..... Respondents
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Alok
Bajpai, Spl. Cell/SR.
Mr. Dayan Krishnan, Sr. Adv.
with Mr. Harsh Sinha, Adv. for
R-2.
+ CRL.M.C. 5805/2018
MANISH JAIN & ORS. ..... Petitioners
Through: Mr. Gurmit Singh Hans & Ms.
Aarti Machanda, Advs.
versus
STATE (GOVT. OF NCT DELHI) & ANR. ..... Respondents
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Alok
Bajpai, Spl. Cell/SR.
Crl.MC 5765/18, 5768/18, 5785/18, 5805/18 & 5995/18 Page 2 of 65
Mr. Dayan Krishnan, Sr. Adv.
with Mr. Harsh Sinha, Adv. for
R-2.
+ CRL.M.C. 5995/2018
ASHWANI KUMAR & ANR ..... Petitioners
Through: Mr. Yudhvir Singh Chauhan,
Adv.
versus
THE STATE OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Kewal Singh Ahuja, APP
for the State with SI Shalendra
Singh & SI Ishwar Singh, PS
Amar Colony.
Mr. J.P. Sengh, Sr. Adv. with
Ms. Veena Ralli, Adv. /
Organising Secretary, Delhi
High Court Mediation and
Conciliation Centre.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGEMENT
1. In the context of these petitions invoking the inherent power of
this court under Section 482 of the Code of Criminal Procedure, 1973
(Cr.PC), and similarly placed other petitions which are routinely
presented, to seek quashing of criminal proceedings on account of
"settlement" of the dispute with the party perceived to be the victim,
questions have arisen as to 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 be taken by the court to be a just or sufficient reason for
such intervention, this having regard to the nature of the crime
involved. In the course of the scrutiny, some concerns as to the
manner in which cases involving grave and serious crimes have been
dealt with by the criminal courts have also come up for consideration
and directions.
BACKGROUND FACTS
The case of rape and sexual assaults
2. On 15.11.2018, a petition under Section 482 Cr. PC had come
up for consideration before this court, it being Crl. MC 5731/2018
titled Manmeetsingh and Ors vs. State (NCT of Delhi) and Anr.,
wherein prayer was made for quashing of the proceedings arising out
of first information report (FIR) no.88/2017 of police station Hauz
Khas involving offences punishable under Sections 376 / 377 / 354 /
506 / 509 / 323 / 341/ 34 Indian Penal Code, 1860 (IPC), reliance
being placed on a settlement agreement dated 13.09.2018 entered
upon by the parties to the said case at Delhi High Court Mediation and
Conciliation Centre. As per the said settlement agreement, the parties
therein were locked in four cases, the other matters relating to
matrimonial dispute, one being a State case involving offence
punishable under Section 498-A IPC. But, it was conceded that the
allegations of sexual assault, unnatural offence and rape in the case
(the quashing of which was being sought) were directed against
persons other than the husband. The State had objected to the prayer
placing reliance on ruling of a bench of three Hon'ble Judges of
Supreme Court in Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai
Kurmur & Ors. Vs. State of Gujarat and Anr., (2017) 9 SC 641. The
petitioners chose to withdraw the said petition, in due deference to the
said precedent.
Four cases of credit card frauds
3. The first captioned matter relates to FIR no.47/2003 of police
station Special Cell (SB) of Delhi Police, the settlement dated
03.07.2018 on the basis of which the prayer for quashing was made,
also covering three other criminal cases they having arisen out of FIR
nos.45/2003, 53/2003 and 54/2003, all of the same police station.
The next three captioned petitions i.e. Crl. MC Nos.5768/2018,
5785/2018 and 5805/2018 pertain to the said three other connected
FIRs.
4. It may be mentioned here that all the aforesaid four cases
involve four common petitioners, they being Charanjit Singh Chadha
@ Shampy, Dinesh Gupta, Rajiv Arora and Yogesh Mahajan. The
case relating to FIR no.47/2003 (Crl. MC 5765/2018) involves one
Yashpal Chaudhrani as additional accused (first petitioner). The FIR
no.53/2003 (Crl. MC 5768/2018) involves one Akhil Arora as
additional accused (first petitioner). The case relating to FIR
no.45/2003 (Crl. MC 5785/2018) involves four additional accused
(petitioners) viz. Adil Khan, Suhail Khan, Imran Khan @ Mehmood
Khan and Aman Nayyar. The last case relating to FIR no.54/2003
(Crl. MC 5805/2018) involves one additional accused (first petitioner)
Manish Jain.
5. It appears that each of the said cases (FIRs) had been registered
on the complaints of Mr. Anuj Bhatia, Assistant Manager - Risk
Control of HDFC Bank, a representative of HDFC Bank Ltd. ("the
bank") which is the second respondent common to all the four matters,
its another representative, Mr. Amit Sahni, Assistant Vice President,
being a signatory to the settlement agreement.
6. The copy of the report (charge-sheet) under Section 173 Cr. PC
filed on 25.10.2004 by the police in FIR no.45/2003 shows that the
complaint had been lodged by the representative of the bank on
05.06.2003 about a large number of instances having come forth in
which domestic as well as international credit cards had been
counterfeited, by skimming technique which involves copying of
electronic data from genuine cards at the time of their use in the
normal course, stolen data having been written on blank plastic cards.
He informed the police that the bank had been investigating such
frauds and with the help of a secret source had come across material
showing involvement of certain named persons (petitioners) in such
activity. The bank had specific information that some members of the
gang would be coming to S.N. Market on 05.06.2003 to use such
forged cards on the swipe machines of the merchants.
7. It is the case of the prosecution that the police had arranged a
trap and, at the instance of an informer, petitioners Dinesh Gupta,
Rajiv Arora and Adil Khan were intercepted. Their interrogation and
searches statedly led to recovery of a large number of credit cards
suspected to be counterfeit, the later investigation confirming the same
to be forged credit cards prepared with stolen data. The further probe
led to certain other recoveries including a large number of blank
plastic cards, one assembled CPU make Hitech, a computer system
and a laptop with certain peripherals which had been used for
preparing the counterfeit credit cards. The interrogation statedly
brought out the role of other accused persons (co-petitioners) this, in
turn, leading to certain other recoveries including certain computers,
laptop, one folder containing CDs, digital diary, etc.
8. The fake credit cards which had been seized were found to be
belonging to foreign nationals. The charge-sheet presented in the case
sought prosecution of the petitioners (of Crl. MC 5785/2018) for
offences under Sections 420, 468, 471, 474, 379, 409 and 120-B IPC.
9. The copy of charge-sheet dated 18.12.2003 submitted on
22.12.2003, upon conclusion of investigation into FIR no.47/2003,
reveals that it was based on complaint dated 08.07.2003 of the
representative of the bank. This complaint was dealt with as one in
continuation of FIR no.45/2003. The first informant was focussing
here on the role of petitioner Yash Chaudhrani, proprietor of M/s.
Kurta Ghar, a trading firm having business from Shop no.6287,
Kohlapur Road, Kamla Nagar, Delhi. The said trader had entered
into a merchant-establishment agreement with the bank, the necessary
equipment (EDC Machine) having been provided so that he could
accept the payments against credit cards of specified nature (Master
Card and Visa). Reference was made to certain recoveries (plastic
cards and floppies) that had been effected from petitioners (Yogesh
Mahajan, Dinesh Gupta and Rajiv Arora) during investigation of FIR
no.45/2003. The investigation revealed some of the said plastic cards
containing the stolen data of different persons had been used at M/s.
Kurta Ghar. The data of the affected credit cards was found in the
computer of petitioner Charanjit Singh Chadha @ Shampy, it statedly
having been procured from foreign country and stored in electronic
data reader which had been shared with the co-accused for preparing
the counterfeit credit cards. The use of the said forged credit cards
from the establishment of M/s. Kurta Ghar was assessed to have
caused wrongful loss to the tune of Rs.7 Lakh approximately. The
charge-sheet sought prosecution of the petitioners (of Crl. MC
5765/2018) for offences under Sections 409, 420, 120-B, 34 IPC.
10. The charge-sheet dated 10.12.2003 submitted on 22.12.2003,
upon conclusion of investigation into FIR no.53/2003, also reveals
that it had also been registered on the complaint dated 08.07.2003 of
the representative of the bank. It concerns similar misuse of EDC
machine installed by the bank in the premises of a trader M/s. Akshan
Telecom, a proprietary concern of the petitioner Akhil Arora, in
Ghaffar Market, Karol Bagh, New Delhi, forged credit cards
recovered from petitioners Dinesh Gupta, Rajiv Arora and Yogesh
Mahajan (arrested during investigation of previous two cases) having
been deployed, they having been prepared with the help of stolen /
skimmed data of various genuine card holders, information in which
regard was also found contained in the computer of petitioner
Charanjit Singh Chadha @ Shampy who had procured it from foreign
lands. The loss caused on account of misuse through the
establishment of Akhil Arora was assessed to be in the sum of Rs.7
Lakh approximately. The police sought prosecution of petitioners (of
Crl. MC 5768/2018) for offences under Sections 420, 120-B, 34 IPC.
11. The FIR no.54/2003 was also registered on 08.07.2003 on
complaint of the same representative of the bank. The charge-sheet in
this case was submitted on 22.12.2003. It concerns similar misuse of
EDC machine installed by HDFC bank at the premises of M/s. Manish
Steel Centre, Kamla Nagar, New Delhi, the petitioner Manish Jain
being the son of its proprietor. As in the previous two cases, certain
fabricated credit cards recovered from petitioners Dinesh Gupta, Rajiv
Arora and Yogesh Mahajan have been found to have been used
through this establishment causing approximate loss of Rs.7 Lakh,
there being evidence confirming involvement of co-petitioner
Charanjit Singh Chadha @ Shampy who had arranged the stolen data
of genuine customers. The police through the above mentioned
charge-sheet sought prosecution of the petitioners (of Crl. MC
5805/2018) for offences under Sections 409, 420, 120-B, 34 IPC.
12. It is clear that the source of data which was stolen and found in
possession of the accused has not been traced. Prima facie, these acts
were committed in wake of deep-rooted criminal conspiracy. The
proceedings in the cases reveal some of the accused are absconding.
13. The first four petitions seek the proceedings in the criminal
cases referred to above to be quashed on the ground that the bank
through its representative has amicably settled the dispute through
mediation.
The case of obscene calls and IT Offences
14. The last captioned matter (Crl. MC 5995/2018) pertains to FIR
no.454/2013 of police station Amar Colony, the investigation into
which has resulted in charge-sheet dated 19.06.2016 being presented
seeking trial of the petitioners of the said case for offences under
Sections 66-A and 67 of Information Technology Act, 2000, the
second respondent being the first informant (complainant). As per the
allegations in the FIR, the complainant had been receiving certain
obscene / vulgar calls on his mobile phone respecting which he had
lodged a complaint on 23.11.2012 (vide DD no.37B) with police
station Amar Colony and another complaint on 17.12.2012 made to
Cyber Crime Cell. It was revealed that someone had made a fake ID
on social media (Orkut) in the name of the third respondent (sister of
the complainant), her mobile phone number having been mentioned
therein. It was reported that several callers had started making
improper contact at the landline phone number of the complainant in
his office using vulgar language which resulted in a number of lady
workers leaving the job, he being constrained to shift to a new office
and obtaining a new telephone number.
15. The complainant suspected the involvement of second
petitioner in these acts. Though the Cyber Crime Cell was able to
delete the fake IDs, new ID was found to have been generated, the
inquiries into its origin revealing the involvement of the first
petitioner.
16. The investigation has statedly brought out, inter alia, that a
number of fake e-mail IDs have also been created, amongst others, by
the two petitioners, they being in use of a number of internet protocol
addresses. Evidence showing complicity of the two petitioners (of
Crl. MC 5995/2018) in offences under Sections 66-A and 67 of the
Information Technology Act, 2000 is stated to have been gathered, the
charge-sheet accordingly seeking their prosecution, the role of certain
others also having come up but they being untraceable.
17. The counsel on both sides confirmed at the hearing that the
question of charge has not been considered in this case till date. The
petitioners seek an end to criminal case on basis of settlement through
mediation.
REFERENCES TO MEDIATION: SETTLEMENTS
18. The four criminal cases relating to FIR nos.45/2003, 47/2003,
53/2003 and 54/2003 of police station Special Cell were referred to
Delhi Mediation Centre of New Delhi Courts Complex at Patiala
House by the Chief Metropolitan Magistrate before whom they have
been pending. The settlement agreement dated 03.07.2018, common
to all the said four cases, signed by Mr. Amit Sahni, Assistant Vice-
President and attorney for HDFC Bank Ltd. (the complainant), the
accused persons and their respective counsel, to the extent relevant,
reads thus :-
"On the complaint of HDFC Bank alleging misuse of
credit cards by resort to cloning and drawl of some
amounts at points of purchase, the above cases were
registered by Special Cell, Delhi Police. During
investigation the different roles of inter-alia the
accused persons came to the fore. The matter is more
than 15 years old. Keeping in view the quantum of
finances involved and the time the trial is likely to take,
the parties conferred with each other and got the
matter referred for mediation.
Sh. Amit Sahni has been duly authorized by the
complainant bank inter-alia for taking a decision and
executing agreement / compromise with the opposite
side by virtue of Power of Attorney dated 18.03.2016
executed in his favour. A copy of the same is annexed
herewith.
Pursuant to negotiations, the complainant and all the
accused persons with their respective counsels have
been able to resolve / settle their disputes on the
following terms and conditions :-
1. That all the respondents / accused persons
have undertaken to collectively pay a total sum of
Rs.12,00,000/- (Rupees Twelve Lakh only) to the
complainant HDFC Bank Ltd. in full and final
settlement of their money and issues involved in
these cases.
2. That the respondents / accused persons
have actually delivered the following demand-
drafts, favouring the complainant to Sh. Sahni,
Assistant Vice President and Attorney of the
complainant bank :-
(details of eleven instruments of total value of
Rs.11,77,000/- set out in table omitted).
3. That a sum of Rs.23,000/- (Rupees Twenty Three
Thousand only) has been collectively paid by the all
the accused persons to Sh. Sahni in cash for now
which they will invariably substitute with pay-order /
demand draft before the Ld. Concerned court on the
next date.
4. That on receipt of the entire settlement amount on
realization of the bank instruments afore-detailed
delivered by the respondents today, the complainant
/ HDFC Bank Ltd. and of course its officers do not
want to further proceed with the cases on their
merits against the respondents / accused persons.
5. That in the eventuality of the respondents /
accused persons approaching the Hon‟ble High
Court for quashing the cases against them, the
complainant / HDFC Bank Ltd. and its officers shall
co-operate by swearing affidavits, appearing in the
court and making statements."
(emphasis supplied)
19. The judicial officer who is Mediation In-charge of the aforesaid
Mediation Centre has made an endorsement on the said settlement
agreement to the following effect :
"The above terms of settlement have been arrived at,
verified and signed by the parties voluntarily after
examining all probabilities.
Let the parties appear in Ld. Concerned court on date
fixed i.e. 16.07.2018 for conformation and
settlement...."
20. As noted earlier, the prayer for quashing (in Crl. MC 5731/2018
of Manmeet Singh and Ors.), withdrawn on 15.11.2018 was based on
settlement agreement dated 13.09.2018, brokered by Delhi High Court
Mediation and Conciliation Centre. In last captioned petition (Crl.MC
5995/2018) also the parties were referred to Delhi High Court
Mediation and Conciliation Centre by the Metropolitan Magistrate, by
proceedings recorded on 17.11.2018, on request to that effect being
made by the parties, this having resulted in the settlement agreement
executed on 19.11.2018.
21. Noticeably, this is not the first attempt to seek the said criminal
action to be brought to an end. The petitioners had approached this
court by Crl. MC 4428/2018 seeking the FIR of fifth petition to be
quashed on the ground the parties were "likely to arrive at a
settlement". The petition was withdrawn and dismissed accordingly
on 28.11.2016. Another petition - Crl. MC 1144/2017 - was
presented in April 2017 on the ground that the parties had "settled the
matter". The petition was dismissed by a learned single judge of this
court, by order dated 24.04.2017, the relevant part thereof reading
thus:
1. "Learned APP for the State submits that though the
settlement has been arrived at between the parties,
however the allegations in the complaint were that the
petitioners posted a picture of the respondent No.3 on
the ORKUT alongwith the phone calls resulting in
respondent no.3 receiving obnoxious calls. Petitioners
were the students of respondent No.3 who was the
teacher.
2. Considering the nature of allegations and evidence
collected during the course of trial, even though the
parties have settled the matter, this Court is not
inclined to quash the above-noted FIR and the
proceedings pursuant thereto.
3. The petition is dismissed."
22. The petitioners (in Crl. MC 5995/2018) challenged the said
order before the Supreme Court by Special Leave to Appeal (Crl.)
Nos.5009/2017 but the said petition was dismissed by order dated
24.07.2017.
23. Yet, another request was made to the Metropolitan Magistrate
for reference to mediation which was granted by order dated
17.11.2018, it culminating in a readily brokered settlement agreement
of 19.11.2018 before Delhi High Court Mediation and Conciliation
Centre.
24. The settlement agreement dated 19.11.2018, signed by both
parties, their counsel and the mediator, to the extent relevant, reads
thus :-
"1. Disputes and differences arose between the
parties and on the complaint of the first party an FIR
No.454/13 PS Amar Colony, under Sections
66A/67/67A under Information Technology Act read
with Section 34 IPC as registered against the second
party and thereafter the charge sheet was filed before
Ms. Ankita Lal Ld. Metropolitan Magistrate-08, SE,
Saket Courts, New Delhi by the police against the
second party, which was registered as Cr. Cases
256/2/201696219/2016.
xxx
5. The parties hereto confirm and declare that they
have voluntarily and of their own free will arrived at
the said Settlement Agreement in the presence of the
Mediator.
6. The following settlement has been arrived at
between the parties hereto :
a. It is agreed between the parties that they will
try to end the litigation pending between them
and accordingly, the second party agreed to give
a sum of Rs.2,00,000/- (Rupees Two Lakhs only)
to the first party as compensation towards the
satisfaction of their all claims, disputes,
differences and grievances and the same is
acceptable to the first party.
b. The second party shall file the petition
before the Hon‟ble High Court of Delhi for
quashing of FIR no.454/13 P.S. Amar Colony,
under Sections 66A/67/67A under Information
Technology Act read with Section 34 IPC and all
proceedings arising thereto within a month from
the date of signing of the present settlement
agreement. Both parties shall request the
Hon‟ble Court to quash the above noted FIR as
the offences otherwise are not compoundable.
The first party shall fully cooperate with the
Second Party for quashing of the said FIR and
shall appear before the Hon‟ble Court for
recording of statement and give their no
objection / affidavit required for the quashing of
the FIR.
c. That the first party has already received a
sum of Rs.80,000/- (Rupees Eighty Thousand
only) from the second party and the second party
undertakes to pay the balance amount of
Rs.1,20,000/- (Rupees One Lakh Twenty
Thousand only) to the first party at the time of
quashing of the above said FIR.
d. The parties agree that they will not indulge
in any litigation in future against each other and
it has been assured by them to each other that
they will not give any cause of complaint to each
other.
xxx"
(emphasis supplied)
THE CONCERNS
25. On 16.11.2018, the first captioned petition was filed. The
background facts of this matter, the contentions of the parties and the
issues which arose therefrom were noted at length in the proceedings
recorded which, to the extent relevant, read thus :-
"8. The present petition invoking inherent power and
jurisdiction of this court under Section 482 Cr.P.C. has
been submitted seeking quashing of the proceedings
arising out of FIR No.47/2003 primarily on the
submissions that the parties, i.e., the accused persons (the
petitioners), on one hand, and HDFC bank Limited
(second respondent), on the other, have resolved to
amicably settle the matter in terms of the settlement
agreement recorded on 03.07.2018 at Mediation Centre,
Patiala House Courts, New Delhi. A copy of the
settlement agreement dated 03.07.2018, running into four
leaves, counter-signed by the judicial officer deputed as
the Mediation In-charge, Patiala House Courts, New Delhi
has been submitted. The said document would reveal that
the four aforementioned criminal cases were the subject
matter of the "negotiations" (as is the expression used in
the document) and, in terms of the resolution, the accused
persons in the aforementioned four cases have
"undertaken to collectively pay" to the complainant Bank
a total sum of Rs.12 lacs "in full and final settlement of
their money and issues involved...".
9. The respondent State through Additional Public
Prosecutor has strongly objected to the prayer in the
petition referring to the decision of the three Hon‟ble
Judges of the Supreme Court reported as "Parbatbhai
Aahir alias Parbatbhai Bhimsinhbhai Karmur and Others
v. State of Gujarat and Another, (2017) 9 SCC 641". He
submitted that the investigation has brought out a deep-
rooted criminal conspiracy wherein certain credit cards
were cloned, stolen data having been used with design to
commit such frauds, a large number of public persons
having also been thereby adversely affected, the case also
involving the element of criminal breach of trust by the
bank and its employees.
10. As was pointed out by the learned Additional Public
Prosecutor for the State in the course of hearing, only
yesterday, i.e., 15.11.2018 another petition, also invoking
power and jurisdiction of this court under Section 482
Cr.P.C.had come up, it being Crl.M.C.5731/2018, titled
Manmeet Singh & Ors. Vs. State (NCT of Delhi) & Anr.,
wherein prayer was made for quashing of the proceedings
arising out of FIR No.88/2017 of Police Station Hauz Khas
involving offences punishable under Sections
376/377/354/506/509/323/341/34 IPC, reliance being
placed on a settlement agreement dated 13.09.2018
entered upon by the parties to the said case at Delhi High
Court Mediation & Conciliation Centre. It must be added
here that as per the settlement agreement dated 13.09.2018
involved in the said other case the parties therein were
locked in three other matters, the said other matters
relating to matrimonial dispute, one being a State case
involving offence punishable under section 498-A IPC.
But, it was conceded that the allegations of sexual assault,
unnatural offence and rape were directed against persons
other than the husband.
11. Though the attention of the counsel in the abovesaid
other case having been drawn to the ruling of the Supreme
Court in "Parbatbhai Aahir (supra), on instructions, he
chose to withdraw the said petition which was dismissed
accordingly by order passed yesterday, the issue persists,
particularly against the backdrop of the petition at hand,
as to whether it is advisable for those concerned with legal
process to take or permit recourse to mediation, in the
teeth of law, as settled by the Supreme Court which would
inhibit the inherent power under Section 482 Cr.P.C. to be
availed to quash such criminal proceedings in serious or
heinous crimes including those reflecting "mental
depravity", as indeed, economic offenses involving
"financial well-being of the State" or financial or banking
institutions, affecting the public at large by "financial or
economic fraud(s)".
12. In the given facts and circumstances, it is
questionable as to whether in cases of this nature, this
court should be called upon to exercise inherent power
under Section 482 Cr.P.C. and, if the answer to this were
to be in the negative, it is also questionable as to whether
such cases should at all be referred by the criminal courts
to the process of mediation and, even further, as to
whether the court annexed mediation centers should be
entertaining matters of above nature for such
"negotiations", particularly when the process of mediation
is supervised, or overseen, by judicial officers or persons
trained in law.
13. HDFC Bank Limited is in the service of public at large
and also deals with public money. It requires inquiry as to
the justifications with which it would agree to participate
in such process of negotiated settlement in cases involving
serious criminal breach of trust and cheating. ..."
14. The State shall file a status report in respect of four
aforementioned FIRs, also explaining the reasons why the
case(s) are still at the initial stage of the judicial process,
even fifteen years after the charge-sheet having been
submitted.
15. The Chief Metropolitan Magistrate, New Delhi is
directed to send a report as to what have been the reasons
for delay in the progress of the cases after filing of the
charge sheet in December, 2003. He shall depute the court
clerk who is custodian of the case files to remain present
with trial court records for perusal on next date.
16. Copies of this order shall also be sent to the
Mediation In-charge, New Delhi at Patiala House Courts
and the Organizing Secretary, Delhi High Court Mediation
& Conciliation Centre for their comments, if any, in the
matter.
xxx"
(emphasis supplied)
THE PROTRACTED CRIMINAL PROCESS
26. The trial court records in all the four cases of credit card frauds
mentioned above have been called for and perused. They reveal a
very disturbing trend. The charge-sheets in the latter three FIRs,
submitted on 22.12.2003, followed by the charge-sheet in the first case
submitted on 25.10.2004, remained without any effective proceedings
being recorded, even charges not having been considered or framed
for almost a decade and a half, the proceedings recorded on numerous
dates reflecting difficulty in procuring the presence of the accused
persons, or their counsel, for assistance in consideration of charge.
There has been gross wastage of the judicial time and energy in
irrelevant or inconsequential matters, the presiding officer(s) being
more pre-occupied with administrative responsibilities than judicial
duties, there being no effective control, the directions for the case to
be taken up on several dates for charge to be considered more in the
nature of lip service than out of sincerity of purpose. The petitioners
seem to have used all possible methods to delay meaningful progress
in any of these prosecutions including by absenting at will, every time
the duress process issued being cancelled, almost for the asking, there
being no accountability on the part of anyone including the prosecutor
in charge.
27. A whole lot of confusion seems to be prevailing. This can be
illustrated by the fact that in the case relating to FIR no.45/2003, some
of the order-sheets prior to 12.01.2018 indicate the case was still at the
stage of consideration of charge. Yet, on 12.01.2018 reference is
made to the summons sent to the first informant (Anuj Bhatia) having
returned unserved, the case being adjourned to 09.02.2018 "for
exploring chances of settlement, if any" or failing that effort "for PE".
While adjournments continued to be granted for exploring the
possibility of settlement, the case continued to be listed at the stage of
prosecution evidence, it eventually culminating in the proceedings for
consideration of the settlement that had been reached on 03.07.2018.
28. Mercifully, in the case arising out of FIR no.47/2018, question
of charge was decided upon by order dated 08.07.2015, it having been
conceded by the accused persons in that case that charge was made out
for putting them on trial for offences under Section 120-B IPC,
Section 420 read with Section 120-B IPC and, in the alternative, under
Section 409 read with Section 120-B IPC. Similar proceedings were
recorded on 08.07.2015 in the cases relating to FIR no.53/2003 and
also FIR no.54/2003. In the latter case, however, formal charge could
not be framed since one accused was absent. Subsequently, duress
process had to be issued to secure the presence of the absentee. Later
proceedings show that the trial court forgot that the charge had already
been conceded to be made out. The case was again taken to
arguments on the question of charge as indeed for exploring chances
for settlement. The confusion noticed in the context of FIR
no.45/2003 also prevailed in this case as the case was taken to the
stage of prosecution evidence, by order dated 12.01.2018, though
formal charge had not been framed, the settlement agreement dated
03.07.2018 having eventually derailed the process.
RESPONSES
29. The Chief Metropolitan Magistrate who presides over the court
which is in seisin of the four criminal cases that are subject matter of
the first four petitions has explained his position, based on
proceedings in criminal case arising out of FIR No.47/03, by report
dated 10.12.2018 thus :
"... the reasons for long pendency of the case after the
filing of charge-sheet are various. First of all, the file
was transferred from one court to another on number
of occasions. The case was transferred from the court
of Ld. CMM, Delhi to the court of Ld. ACMM, Delhi on
21.03.2006. On 01.06.2009, matter was transferred
from the court of Ld. ACMM, North Delhi to Ld. CMM,
Delhi which was received on 06.07.09. On 12.08.13,
the matter was transferred from the court of Ld. CMM,
Delhi to the court of Ld. CMM, New Delhi.
Further, the case remained pending due to the
absence of the one or the other accused on different
dates. Accused Aadil was absent on 12.02.05, Accused
CHARANJIT Chadha was absent on 12.12.05 and
NBWs were issued against him which were got
cancelled on 20.03.06. On 29.05.05, accused Yogesh
Mahajan was absent and NBWs were issued against
him. Accused Yogesh Mahajan was in JC in some
other case and production warrants were issued on
31.08.06 but on NDOH he was not produced from the
court and thereafter, production warrants were issued
on 07.11.06 but on NDOH accused Yogesh Mahajan
appeared and NBWs were got cancelled before the
29.01.07 but on NDOH i.e. 29.01.07, accused Rajiv
Arora was absent and NBWs were issued against him
which were cancelled 05.02.07. On 13.05.14, all
accused persons were absent and BWs were issued
against him.
Moreover, the IO did not file the report from GEQD
and on 10.02.09, he stated that he would not be filing
any such report. This fact also led to the delay in the
matter.
Another reason for the matter having remained
pending is that the Ld. Predecessors who presided over
the court were busy in Administrative work or were on
leave. The Ld. Presiding Officers were remained busy
in Administrative work on 09.05.11, 02.09.11,
17.01.12, 25.04.12, 27.07.12, 19.10.12, 26.02.13 and
04.04.13. The Presiding Officers were remained on
leave on 21.10.09, 17.02.10, 04.09.10, 18.02.11,
20.11.13 and 25.11.14.
The undersigned has joined this court on 11.09.2017
and after that on 15.11.2017 last opportunity was
granted to the prosecution to produce the witnesses
and summons were ordered to be issued through DCP
as well as IO. However, the witnesses remained
unserved and further, there was no report from the
GEQD filed by the IO. Under these circumstances, the
accused themselves express their desire to settle the
matter through mediation. In fact, the mediation talks
were going on since 08.08.2014 between the parties.
The heavy pendency of cases which are more than
10 years old has also caused delay in the disposal of
maters because as per direction, 10 years old case are
to be disposed off on priority basis. The court is
having heavy pendency of cases including more than
10 years old cases which are 205 in number and in
each case the record is too voluminous. However,
undersigned is giving short dates in those matters for
expeditious disposal in terms of directions of Hon‟ble
High Court of Delhi for expeditious disposal of old
cases. Initially the total pendency of more than 10
years old cases was 310 out of which 105 old cases
have been disposed off till date. Undersigned is also
looking after the administrative work and other
miscellaneous work. The present case in hand also
falls in the category of 10 years old matters ..."
(emphasis supplied)
30. The judicial officer who has been working as In-charge of the
Mediation Centre of Patiala House Courts, by his report dated
30.11.2018, has opted to term the settlement of credit card fraud cases
as "imprudence", which was regrettable.
31. Mr. Amit Sahni, the Assistant Vice President, HDFC Risk
Intelligence and Control of HDFC Bank Ltd., having taken
instructions from the board of directors of the bank, and having been
authorised in that behalf, has submitted his affidavit sworn on
12.03.2019 referring, inter alia, to the background facts of the four
cases of cheating / fraud and the proceedings recorded in the trial
court, particularly those of 12.01.2018 and 09.02.2018 on the file of
FIR no.47/2003, whereby presence of the authorised officer of the
bank had been insisted upon in the context of request for opportunity
made by the defence for exploring chances of settlement. He took
exception to the submission of the State, as recorded in the
proceedings of 16.11.2018 regarding there being "element of criminal
breach of trust by the bank and its employees". He has set out in his
affidavit the gist of the resolution dated 07.03.2019 of the board of
directors of the bank as under :-
"(i). ... acknowledge that the Bank representative
participated in the mediation and settlement process
because the matter was referred to settlement by the
court and mediation was carried out by the judicial
officers, due to which there was an oversight by the
Bank representative to agree as part of this settlement
to give a „no-objection‟ for quashing of the criminal
proceedings (involving some non-compoundable
offences) arising out of the relevant FIRs being
47/2003, 45/2003, 53/2003, 54/2003; and to tender
apology for the said oversight.
(ii). Take appropriate steps for due revocation of
the aforesaid „no objection‟ given in the matter(s)...."
(emphasis supplied)
32. By his affidavit dated 12.03.2019, Mr. Amit Sahni, Assistant
Vice President of HDFC Bank, inter alia, seeks to revoke the "no-
objection" given in the cases (for quashing on the basis of settlement),
stating that the bank believes and follows the view point that "the
fraudsters should be brought to book and be punished".
33. The Organizing Secretary of Delhi High Court Mediation and
Conciliation Centre, by her comments in writing filed on 11.03.2019,
referring to rulings of the Supreme Court in Gian Singh vs. State of
Punjab, 2012 (10) SCC 389; K Srinivas Rao vs. D.A. Deepa, 2013(5)
SCC 226; Narinder Singh vs. State of Punjab, 2014 (6) SCC 466;
Parbhatbhai Aahir Parbatbhai Bhimsinhbhai Kurmur & Ors., 2017
(9) SCC 641 and State of Madhya Pradesh vs. Laxmi Narayan and
Others in Criminal Appeal No.349/2019 (with Criminal Appeal
No.350/2019), decided on 05.03.2019 and decision of a division bench
of this court in Dayawati vs. Yogesh Kumar Gosain, 2017 (243) DLT
117, has, inter alia, submitted thus :
"2.Out of the alternative dispute mechanisms adopted
by this country‟s legal system, the mediation movement
as a reliable mechanism has gained both acceptability
and popularity. Mediation is an assisted negotiation
process aimed at allowing parties to settle their
disputes amicably. Mediation enables warring parties
to sit across the table and negotiate.
3. It is submitted that the process of mediation
commences pursuant to the Court order referring the
parties for exploring the possibility of settlement
through mediation process. Parties are being referred
to Delhi High Court Mediation and Conciliation
Centre, Samadhan, for resolution of their disputes of
all kinds be it Civil or Criminal. The Court references
for mediation are made on joint requests or with the
consent of the parties. In cases where the settlement is
arrived at between the parties, terms of such settlement
are finalized and signed by the parties. In criminal
matters, if the settlement is reached through mediation,
a clause is incorporated by which the parties agree to
approach the Hon‟ble Court for taking the settlement
on record and for quashing the criminal proceedings
wherever required. Notwithstanding the fact that in
criminal matters parties otherwise agree mutually to
settle their dispute and grievances against each other
in an amicable manner on the terms and conditions
mentioned in the settlement reached between the
parties, but the matter with regard to quashing of the
criminal proceedings entirely remains within the power
of the Hon‟ble Court under Section 482 of Cr. PC as
quashing of such proceedings is always left to the
discretion of the Hon‟ble court keeping in mind the
guidelines enumerated in various judgments of the
Apex Court.
4. The High Court, in exercise of such powers may
refuse to quash any criminal proceedings which may
involve heinous or serious offences or offences of
mental depravity, offences under the special statutes
and by looking at the antecedents of the accused and
scan the entire facts to find out the thrust of the
allegations so as to find out as to whether the
incorporation of a penal provision of law is there for
the sake of it or there is sufficient evidence on record
which would lead to framing of charge or conviction.
5. The Hon‟ble Supreme Court in various judgments
pronounced since 2012 has elaborately discussed and
laid down principles / guidelines which may be kept in
mind by the High Court while exercising its power
under Section 482 Cr. PC by quashing the criminal
proceedings in cases involving non compoundable
offences where amicably settlement otherwise is
reached between the contesting parties ...
6. By laying down and applying the above stated
principles and guidelines from time to time, Supreme
Court has recognized the permissibility of quashing the
criminal prosecutions in non-compoundable cases by
High Court in exercise of its inherent jurisdiction
under Section 482 of the Cr. PC. The Supreme Court
has accepted compromises / settlements in non-
compoundable offences upon evaluation of the factors
like genuineness, fairness, equity, stage of the criminal
proceedings and interests of justice."
(emphasis supplied)
THE LAW
Civil Disputes
34. The process of mediation has evolved over the period as one of
the effective tools of alternative dispute resolution (ADR) mechanism.
The provision contained in Section 89 of the Code of Civil Procedure,
1908 (CPC), reinserted by Act 46 of 1999 (brought in force with effect
from 01.07.2002), gives it statutory recognition, the civil court being
obliged to refer the disputants before it to such process if "there exist
elements of a settlement which may be acceptable" the court required
to "formulate the terms of settlement" modifying the same, if required,
in light of observations of the parties thereto and if such process were
to succeed to "effect a compromise between the parties" and to "follow
such procedure as may be prescribed". The general scope of Section
89 CPC and the question as to whether such provision empowers the
court to so refer the parties "without the consent of both parties" had
arisen for consideration by the Supreme Court in decision reported as
Afcons Infrastructure Ltd. Vs. Cherian Varkey Construction Co. (P)
Ltd., (2010) 8 SCC 24. The court embarked upon a detailed scrutiny
of the subject including on the question as to whether reference to
ADR process is mandatory and, while answering the said question in
the affirmative, carved out exceptions, by specifying the category of
cases which would be treated as "excluded", they being "not suitable
for ADR process having regard to their nature", referring in this
context (para 27), inter alia, to the following :
"(iv). Cases involving serious and specific allegations
of fraud, fabrication of documents, forgery,
impersonation, coercion, etc.
(vi). Cases involving prosecution for criminal
offences"
Criminal cases
35. The Code of Criminal Procedure, 1973 (Cr.P.C.) governs the
process of investigation, inquiry, or trial pertaining to criminal
offences. The Indian Penal Code, 1860 (IPC) is the general law
defining various offences prescribing the punishment therefor. The
said law (IPC) is supplemented by various other enactments (special
statutes) which also define certain other offences prescribing the
punishment for each. Generally speaking, the procedural law, as
provided by Cr.P.C., governs all such criminal law processes, be it
relating to offences under IPC or under special statutes (see Section 4
Cr.P.C.). The special criminal laws, however, at times, make a
departure from the general criminal procedure and for such purposes
come with necessary provisions indicating the extent to which Cr.P.C.
is to be applied with requisite modification.
36. The objective of criminal law is primarily to visit the offender
with certain consequences. He may be made to suffer punishment or
may be given opportunity to reform by release on probation (or after
admonition), or, further to make amends (may be in addition to
punishment) by paying compensation to the victim. The law, at the
same time, recognizes that it may not be always desirable in every
criminal offence to mete out punishment, particularly if the victim
wants to bury the hatchet. It is necessary that peace and tranquillity
prevails in the society, and, therefore, if the disputants (here, the
offender and the victim) want to move on, forgetting the damage done,
depending on the nature and seriousness of the consequences that may
flow from the particular offence, the law classifies the crimes into two
categories, viz., compoundable or non-compoundable.
37. Section 320 Cr.P.C. provides the procedure which is followed
by the criminal court for dealing with the request for compounding of
an offence. It specifies the offences which may be compounded and
the conditions subject to which such request may be entertained as
indeed the person who has the authority to compound the offence with
the offender. There are two broad classes of compoundable offences;
first, where it is left to the discretion of the parties and, the second,
where the compounding is subject to discretion of the court.
38. Aside from offences under general law (IPC), certain special
statutes also provide for crimes which may be compounded. For
illustration, the offence under Section 138 of the Negotiable
Instruments Act, 1881 is compoundable by virtue of Section 147. It is
treated as quasi civil in nature. In Kaushalya Devi Masand vs.
Roopkishore Khore, 2011 4 SCC 593, the distinction between
traditional criminal offences and the said offence under Section 138 of
the Negotiable Instruments Act (generally known as "cheque bouncing
case") was commented upon thus :-
"11. Having considered the submissions made on behalf
of the parties, we are of the view that the gravity of a
complaint under the Negotiable Instruments Act cannot
be equated with an offence under the provisions of the
Penal Code, 1860 or other criminal offences. An offence
under Section 138 of the Negotiable Instruments Act,
1881, is almost in the nature of a civil wrong which has
been given criminal overtones."
(emphasis supplied)
39. The proviso to Section 19(5) of Legal Services Authority Act
makes it clear that a Lok Adalat shall have no jurisdiction in respect of
any case or matter relating to an offence "not compoundable under the
law". A practice has grown over the period for cases of such nature,
unduly large in number, to be referred to Lok Adalats under Section 19
of Legal Services Authority Act, 1987. The settlements brought
before the courts of Metropolitan Magistrates, whether through the
process of mediation, or before Lok Adalat, or otherwise by the parties
on their own, have been resulting in prosecution under Section 138 of
the Negotiable Instruments Act, 1881 being treated as compounded,
the parties thereafter expected to abide by the terms of such
settlement.
Inherent Power of High Court (S. 482 Cr.P.C.): Jurisprudence
40. The High Court is at the head of the judicial apparatus in each
State with power of control and superintendence over all courts sub-
ordinate to it, including criminal courts. Aside from such supervisory
role conferred on the High Court, by the Constitution of India, 1950,
particularly Articles 226 and 227, the Code of Criminal Procedure,
1973 also acknowledges, by Section 482, its inherent power to secure
the ends of justice. This special provision reads thus:-
"482. Saving of inherent powers of High Court.-
Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice."
41. In cases where criminal court does not have the jurisdiction to
entertain a request for compounding of an offence because law does
not classify such offence in that category or where there are other
reasons why the request for compounding has not been entertained, a
practice has grown over the years that the parties approach the High
Court invoking the inherent power under Section 482 Cr.P.C. for
seeking end to the criminal process (at times even at the stage of
investigation or inquiry) on the plea that continuance thereof would be
an abuse of the process of law, most of the time on the contention that
the parties have amiably resolved to end the dispute. It is in this
context that the parties have been taking the matter, with or without
the intervention of the court, to ADR mechanisms, particularly the
process of mediation, the settlement reached there being then brought
before the High Court with the prayer under Section 482 Cr.P.C. for
the criminal proceedings to be quashed.
42. In State of Karnataka Vs. M. Devendrappa, (2002) 3 SCC 89, a
bench of three Hon'ble Judges of the Supreme Court had examined
the width and scope of the jurisdiction of the High Court for bringing
to an end a criminal action by quashing the case, inter alia, under
Section 482 Cr.P.C., in light of past precedents and observed that such
jurisdiction emanated from its inherent power to bring about justice,
explaining it thus:-
"6. ... It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent abuse of
the process of court, and (iii) to otherwise secure the ends
of justice. It is neither possible nor desirable to lay down
any inflexible rule which would govern the exercise of
inherent jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may possibly
arise. Courts, therefore, have inherent powers apart from
express provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by
law. That is the doctrine which finds expression in the
section which merely recognises and preserves inherent
powers of the High Courts. All courts, whether civil or
criminal possess, in the absence of any express provision,
as inherent in their constitution, all such powers as are
necessary to do the right and to undo a wrong in course of
administration of justice on the principle quando lex
aliquid alicui concedit, concedere videtur et id sine quo res
ipsae esse non potest (when the law gives a person
anything it gives him that without which it cannot exist).
While exercising powers under the section, the court does
not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and only
when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the
administration of which alone courts exist. Authority of the
court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the
court has power to prevent abuse. It would be an abuse of
process of the court to allow any action which would result
in injustice and prevent promotion of justice. In exercise of
the powers court would be justified to quash any
proceeding if it finds that initiation/continuance of it
amounts to abuse of the process of court or quashing of
these proceedings would otherwise serve the ends of
justice...."
(emphasis supplied)
43. The scope and ambit of the power conferred on the High court
by Section 482 Cr. P.C., read with Articles 226 and 227 of the
Constitution of India, in the particular context of prayer for quashing
criminal proceedings, was examined by the Supreme Court in B.S.
Joshi and Ors. Vs. State of Haryana and Anr., (2003) 4 SCC 675,
against the backdrop of a catena of earlier decisions. It was a criminal
case arising out of marital discord. Noting, with reference to the
decision in State of Karnakata Vs. L Muniswamy, (1977) 2 SCC 699,
that in exercise of this "inherent" and "wholesome power", the
touchstone is as to whether "the ends of justice so require", it was
observed thus :
"10. ... that in a criminal case, the veiled object behind a
lame prosecution, the very nature of the material on which
the structure of the prosecution rests and the like would
justify the High Court in quashing the proceeding in the
interest of justice and that the ends of justice are higher
than the ends of mere law though justice had got to be
administered according to laws made by the legislature.
...that the compelling necessity for making these
observations is that without a proper realization of the
object and purpose of the provision which seeks to save the
inherent powers of the High Court to do justice between the
State and its subjects, it would be impossible to appreciate
the width and contours of that salient jurisdiction."
(emphasis supplied)
44. It was further noted :-
"What would happen to the trial of the case where the wife
does not support the imputations made in the FIR of the
type in question. As earlier noticed, now she has filed an
affidavit that the FIR was registered at her instance due to
temperamental differences and implied imputations. There
may be many reasons for not supporting the imputations. It
may be either for the reason that she has resolved disputes
with her husband and his other family members and as a
result thereof she has again started living with her husband
with whom she earlier had differences or she has willingly
parted company and is living happily on her own or has
married someone else on the earlier marriage having been
dissolved by divorce on consent of parties or fails to
support the prosecution on some other similar grounds. In
such eventuality, there would almost be no chance of
conviction. Would it then be proper to decline to exercise
power of quashing on the ground that it would be
permitting the parties to compound non-compoundable
offences? The answer clearly has to be in the "negative". It
would, however, be a different matter if the High Court on
facts declines the prayer for quashing for any valid reasons
including lack of bona fides."
(emphasis supplied)
45. Holding that "special features in ...matrimonial matters are
evident" and that it is "the duty of the court to encourage genuine
settlements of matrimonial disputes", referring to Madhavrao
Jiwajirao Scindia Vs. Sambhajirao Chandrojiroo Angre, (1988) 1
SCC 692, it was further observed that :
"11. ... Where, in the opinion of the court, chances of an
ultimate conviction are bleak and, therefore, no useful
purpose is likely to be served by allowing a criminal
prosecution to continue, the court may, while taking into
consideration the special facts of a case, also quash the
proceedings."
(emphasis supplied)
46. In Gian Singh (supra), while dealing with identical issues,
another bench of three Hon'ble Judges of the Supreme Court observed
thus :-
"55. In the very nature of its constitution, it is the judicial
obligation of the High Court to undo a wrong in course of
administration of justice or to prevent continuation of
unnecessary judicial process. This is founded on the legal
maxim quando lex aliquid alicui concedit, conceditur et id
sine qua res ipsa esse non potest. The full import of which
is whenever anything is authorised, and especially if, as a
matter of duty, required to be done by law, it is found
impossible to do that thing unless something else not
authorised in express terms be also done, may also be
done, then that something else will be supplied by
necessary intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, complete and
substantial justice for which it exists. The power possessed
by the High Court under Section 482 of the Code is of wide
amplitude but requires exercise with great caution and
circumspection.
(emphasis supplied)
47. In Gian Singh (supra), the Supreme Court contrasted the request
for quashing of criminal proceedings on the basis of settlement with
the possibility of compounding of an offence and observed thus :-
"57. Quashing of offence or criminal proceedings on the
ground of settlement between an offender and victim is not
the same thing as compounding of offence. They are
different and not interchangeable. Strictly speaking, the
power of compounding of offences given to a court under
Section 320 is materially different from the quashing of
criminal proceedings by the High Court in exercise of its
inherent jurisdiction. In compounding of offences, power of
a criminal court is circumscribed by the provisions
contained in Section 320 and the court is guided solely and
squarely thereby while, on the other hand, the formation of
opinion by the High Court for quashing a criminal offence
or criminal proceeding or criminal complaint is guided by
the material on record as to whether the ends of justice
would justify such exercise of power although the ultimate
consequence may be acquittal or dismissal of indictment."
(emphasis supplied)
48. Pertinent to note, in Gian Singh (supra), the Supreme Court held
as under:-
"61. The position that emerges from the above discussion
can be summarised thus: the power of the High Court in
quashing a criminal proceeding or FIR or complaint in
exercise of its inherent jurisdiction is distinct and different
from the power given to a criminal court for compounding
the offences under Section 320 of the Code. Inherent power
is of wide plenitude with no statutory limitation but it has
to be exercised in accord with the guideline engrafted in
such power viz.: (i) to secure the ends of justice, or (ii) to
prevent abuse of the process of any court. In what cases
power to quash the criminal proceeding or complaint or
FIR may be exercised where the offender and the victim
have settled their dispute would depend on the facts and
circumstances of each case and no category can be
prescribed. However, before exercise of such power, the
High Court must have due regard to the nature and gravity
of the crime. Heinous and serious offences of mental
depravity or offences like murder, rape, dacoity, etc.
cannot be fittingly quashed even though the victim or
victim's family and the offender have settled the dispute.
Such offences are not private in nature and have a serious
impact on society.
(emphasis supplied)
49. The above views in the context of matrimonial disputes
resulting in criminal proceedings have been consistently followed over
the years, as may be further illustrated by the decision of a bench of
three Hon'ble Judges of the Supreme Court in Jitendra Raghuvanshi
and Ors. Vs. Babita Raghuvanshi and Anr., (2013) 4 SCC 58, the
following observations summarising the philosophy succinctly :-
"15. In our view, it is the duty of the courts to
encourage genuine settlements of matrimonial disputes,
particularly when the same are on considerable
increase. Even if the offences are non-compoundable, if
they relate to matrimonial disputes and the Court is
satisfied that the parties have settled the same amicably
and without any pressure, we hold that for the purpose
of securing ends of justice, Section 320 of the Code
would not be a bar to the exercise of power of quashing
of FIR, complaint or the subsequent criminal
proceedings.
16. There has been an outburst of matrimonial disputes
in recent times. The institution of marriage occupies an
important place and it has an important role to play in
the society. Therefore, every effort should be made in
the interest of the individuals in order to enable them to
settle down in life and live peacefully. If the parties
ponder over their defaults and terminate their disputes
amicably by mutual agreement instead of fighting it out
in a court of law, in order to do complete justice in the
matrimonial matters, the courts should be less hesitant
in exercising their extraordinary jurisdiction. It is trite
to state that the power under Section 482 should be
exercised sparingly and with circumspection only when
the Court is convinced, on the basis of material on
record, that allowing the proceedings to continue
would be an abuse of process of court or that the ends
of justice require that the proceedings ought to be
quashed..."
(emphasis supplied)
50. The judgment reported as K. Srinivas Rao (supra), was also in
the context of a criminal case involving offence under Section 498A
IPC. The Supreme Court, taking note of mediation (as a method of
alternative dispute redressal) having got legal recognition, made
observations regarding settlement of matrimonial disputes thus :-
39. Quite often, the cause of the misunderstanding in a
matrimonial dispute is trivial and can be sorted out. Mediation
as a method of alternative dispute resolution has got legal
recognition now. We have referred several matrimonial
disputes to mediation centres...
44. We, therefore, feel that though offence punishable under
Section 498-A IPC is not compoundable, in appropriate cases if
the parties are willing and if it appears to the criminal court
that there exist elements of settlement, it should direct the
parties to explore the possibility of settlement through
mediation. This is, obviously, not to dilute the rigour, efficacy
and purport of Section 498-A IPC, but to locate cases where the
matrimonial dispute can be nipped in bud in an equitable
manner. The Judges, with their expertise, must ensure that this
exercise does not lead to the erring spouse using mediation
process to get out of clutches of the law. During mediation, the
parties can either decide to part company on mutually agreed
terms or they may decide to patch up and stay together. In
either case for the settlement to come through, the complaint
will have to be quashed. In that event, they can approach the
High Court and get the complaint quashed. If, however, they
choose not to settle, they can proceed with the complaint. In this
exercise, there is no loss to anyone. If there is settlement, the
parties will be saved from the trials and tribulations of a
criminal case and that will reduce the burden on the courts
which will be in the larger public interest. Obviously, the High
Court will quash the complaint only if after considering all
circumstances it finds the settlement to be equitable and
genuine. Such a course, in our opinion, will be beneficial to
those who genuinely want to accord a quietus to their
matrimonial disputes.
46. We, therefore, issue directions, which the courts dealing
with the matrimonial matters shall follow.
46.2. The criminal courts dealing with the complaint under
Section 498-A IPC should, at any stage and particularly, before
they take up the complaint for hearing, refer the parties to
mediation centre if they feel that there exist elements of
settlement and both the parties are willing. However, they
should take care to see that in this exercise, rigour, purport and
efficacy of Section 498-A IPC is not diluted. Needless to say
that the discretion to grant or not to grant bail is not in any way
curtailed by this direction. It will be for the court concerned to
work out the modalities taking into consideration the facts of
each case.
46.3. All mediation centres shall set up pre-litigation
desks/clinics; give them wide publicity and make efforts to settle
matrimonial disputes at pre-litigation stage."
(emphasis supplied)
51. In Narinder Singh (supra), the principles which are to guide the
High Court "in giving adequate treatment to the settlement between
the parties" where exercising power under Section 482 Cr.P.C. for
quashing the proceedings or refusing to accept the settlement with
direction to continue with the criminal proceedings were summed up
as would be reiterated in later judgment in Parbatbhai Aahir (supra).
52. In sharp contrast to above line of cases concerning matrimonial
disputes, in State of Madhya Pradesh vs. Madan Lal, (2015) 7 SCC
681, against backdrop of charge of rape, following the dispensation in
Gian Singh (supra) and Narinder Singh (supra), the Supreme Court
held thus:-
"18. ... We would like to clearly state that in a case of rape
or attempt to rape, the conception of compromise under no
circumstances can really be thought of. These are crimes
against the body of a woman which is her own temple.
These are the offences which suffocate the breath of life and
sully the reputation. And reputation, needless to emphasise,
is the richest jewel one can conceive of in life. No one
would allow it to be extinguished. When a human frame is
defiled, the "purest treasure", is lost. Dignity of a woman is
a part of her non-perishable and immortal self and no one
should ever think of painting it in clay. There cannot be a
compromise or settlement as it would be against her honour
which matters the most. It is sacrosanct. Sometimes solace
is given that the perpetrator of the crime has acceded to
enter into wedlock with her which is nothing but putting
pressure in an adroit manner; and we say with emphasis
that the courts are to remain absolutely away from this
subterfuge to adopt a soft approach to the case, for any kind
of liberal approach has to be put in the compartment of
spectacular error. Or to put it differently, it would be in the
realm of a sanctuary of error."
(emphasis supplied)
53. The judgment in Parbatbhai Aahir (supra), was rendered by a
bench of three Hon'ble Judges of the Supreme Court. The factual
matrix involved grabbing of valuable parcels of land coupled with
extortion, forgery and criminal conspiracy. The accused had criminal
antecedents including opening of bogus bank accounts. They had
earlier absconded. Taking note of gravity of crimes, the antecedents
and past conduct, the High Court had declined to entertain petitions
for quashing on settlement. Approving such approach, the broad
principles governing the subject were summarized in the following
propositions:-
"16.1 Section 482 preserves the inherent powers of the
High Court to prevent an abuse of the process of any court
or to secure the ends of justice. The provision does not
confer new powers. It only recognises and preserves
powers which inhere in the High Court.
16.2 The invocation of the jurisdiction of the High Court to
quash a First Information Report or a criminal proceeding
on the ground that a settlement has been arrived at
between the offender and the victim is not the same as the
invocation of jurisdiction for the purpose of compounding
an offence. While compounding an offence, the power of
the court is governed by the provisions of Section 320 of
the Code of Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence is non-
compoundable.
16.3 In forming an opinion whether a criminal proceeding
or complaint should be quashed in exercise of its
jurisdiction under Section 482, the High Court must
evaluate whether the ends of justice would justify the
exercise of the inherent power.
16.4 While the inherent power of the High Court has a
wide ambit and plenitude it has to be exercised (i) to secure
the ends of justice, or (ii) to prevent an abuse of the
process of any court.
16.5 The decision as to whether a complaint or First
Information Report should be quashed on the ground that
the offender and victim have settled the dispute, revolves
ultimately on the facts and circumstances of each case and
no exhaustive elaboration of principles can be formulated.
16.6 In the exercise of the power under Section 482 and
while dealing with a plea that the dispute has been settled,
the High Court must have due regard to the nature and
gravity of the offence. Heinous and serious offences
involving mental depravity or offences such as murder,
rape and dacoity cannot appropriately be quashed though
the victim or the family of the victim have settled the
dispute. Such offences are, truly speaking, not private in
nature but have a serious impact upon society. The
decision to continue with the trial in such cases is founded
on the overriding element of public interest in punishing
persons for serious offences.
16.7 As distinguished from serious offences, there may be
criminal cases which have an overwhelming or
predominant element of a civil dispute. They stand on a
distinct footing in so far as the exercise of the inherent
power to quash is concerned.
16.8 Criminal cases involving offences which arise from
commercial, financial, mercantile, partnership or similar
transactions with an essentially civil flavour may in
appropriate situations fall for quashing where parties have
settled the dispute.
16.9 In such a case, the High Court may quash the criminal
proceeding if in view of the compromise between the
disputants, the possibility of a conviction is remote and the
continuation of a criminal proceeding would cause
oppression and prejudice; and
16.10 There is yet an exception to the principle set out in
propositions 16.8 and 16.9 above. Economic offences
involving the financial and economic well-being of the state
have implications which lie beyond the domain of a mere
dispute between private disputants. The High Court would
be justified in declining to quash where the offender is
involved in an activity akin to a financial or economic fraud
or misdemeanour. The consequences of the act complained
of upon the financial or economic system will weigh in the
balance.
(emphasis supplied)
54. The decision of the Supreme Court in State of Madhya Pradesh
vs. Laxmi Narayan & Ors., 2019 SCC OnLine SC 320, has also been
rendered by a bench of three Hon'ble Judges, upon a reference
noticing some conflict between the decisions in Narinder Singh
(supra) and State of Rajasthan vs. Shambhu Kewat, (2014) 4 SCC 149,
in the particular context of a case involving offences of attempt to
commit murder punishable under Section 307 IPC. The Supreme
Court while reiterating the principles as culled out above has ruled
thus:-
"31....
iv) offences under Section 307 IPC and the Arms Act
etc. would fall in the category of heinous and serious
offences and therefore are to be treated as crime against
the society and not against the individual alone, and
therefore, the criminal proceedings for the offence
under Section 307 IPC and/or the Arms Act etc. which
have a serious impact on the society cannot be quashed
in exercise of powers under Section 482 of the Code, on
the ground that the parties have resolved their entire
dispute amongst themselves. However, the High Court
would not rest its decision merely because there is a
mention of Section 307 IPC in the FIR or the charge is
framed under this provision. It would be open to the
High Court to examine as to whether incorporation of
Section 307 IPC is there for the sake of it or the
prosecution has collected sufficient evidence, which if
proved, would lead to framing the charge under Section
307 IPC. For this purpose, it would be open to the High
Court to go by the nature of injury sustained, whether
such injury is inflicted on the vital/delicate parts of the
body, nature of weapons used etc. However, such an
exercise by the High Court would be permissible only
after the evidence is collected after investigation and the
charge sheet is filed/charge is framed and/or during the
trial. Such exercise is not permissible when the matter is
still under investigation. Therefore, the ultimate
conclusion in paragraphs 29.6 and 29.7 of the decision
of this Court in the case of Narinder Singh (supra)
should be read harmoniously and to be read as a whole
and in the circumstances stated hereinabove;
v) while exercising the power under Section 482 of the
Code to quash the criminal proceedings in respect of
non-compoundable offences, which are private in nature
and do not have a serious impart on society, on the
ground that there is a settlement/compromise between
the victim and the offender, the High Court is required
to consider the antecedents of the accused; the conduct
of the accused, namely, whether the accused was
absconding and why he was absconding, how he had
managed with the complainant to enter into a
compromise etc."
(emphasis supplied)
Circumspection of Inherent Power (S. 482 Cr.P.C.)
55. Though the above-noted authoritative pronouncements of the
Supreme Court have consistently laid down the broad principles
governing the exercise of power of the High Court under Section 482
of the Cr. PC for bringing an end to the criminal process, for
addressing the concerns noted at the outset and future guidance of trial
courts, some of the crucial ones may be flagged as under :-
(i). The inherent jurisdiction vested in the High Court, as
recognized and preserved by Section 482 Cr. PC, is primarily to
"prevent abuse of the process of court" or to "otherwise secure
the ends of justice".
(ii). The ends of justice are higher than the ends of mere law,
the prime principle governing the exercise of inherent power
being "to do real, complete and substantial justice" for which
the court exists.
(iii) It is the duty of the court to give "adequate treatment to
the settlement between the parties" particularly in cases
involving compoundable offences, the exercise of inherent
power of the High Court under Section 482 Cr.P.C., however,
not being inhibited in case of non-compoundable offences
though, for the latter category, such power is to be "exercised
sparingly and with caution".
(iv). If the criminal case has "overwhelmingly and
predominantly civil character", particularly if it arises out of
"commercial" (financial, mercantile, partnership or such other)
transaction - and this would include the "cheque bouncing
cases" under Section 138 N.I. Act - or "matrimonial dispute"
or "family dispute", genuine resolution on equitable terms, in
entirety, by the parties should result in criminal proceedings
being quashed.
(v). Since the institution of marriage has an important role to
play in the society, the court is to make every effort to
encourage the parties to terminate such discord amicably and if
it appears that elements of settlement exist, and the parties are
willing, they are to be directed to the process of mediation to
explore the possibility of settlement, it being desirable to do so
even at the "pre-litigation stage".
(vi). 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 is to
bear in mind as to whether the possibility of conviction is
"remote and oblique" and further, if the continuation of the
criminal case would lead to "oppression and prejudice" or
"extreme injustice" for the accused.
(vii). The considerations which would weigh with Court
include the antecedents of the accused, possible lack of bona
fides, his past conduct and that includes the question as to
whether he had earlier absconded and as to how he had
managed with the complainant to enter into a compromise.
(viii). But, the High Court, when called upon to exercise the
power under Section 482 Cr. PC to bring the criminal case to an
end on the basis of settlement, must steer clear of intervention
in "heinous" or "serious" offences, including those involving
"mental depravity", as indeed "economic offences" affecting
"the financial and economic well being of the State", such as
murder, attempt to murder, extortion, forgery, rape, dacoity,
financial or economic frauds, cases under Arms Act, etc., the
reason being that such offences are "not private in nature" but
have "a serious impact upon society", and continuation of trial
thereof is essential due to "overriding element of public
interest".
(ix). The court, however, is not to go by mere use of label of a
serious offence (e.g. offence under Section 307 IPC), it being
open to it to examine, by scrutiny of the evidence gathered, to
find as to whether there are sufficient grounds to frame charge
for such offence and, in this view, it being "not permissible" to
intervene till the matter has been properly investigated.
56. As noted earlier, in the particular context of matrimonial
disputes, the Supreme Court in the case of K. Srinivas Rao (supra) has
expressly allowed - nay, encouraged - reference of the disputants to
the process of mediation for exploring the possibility of settlement so
that the criminal action (for offences such as one punishable under
Section 498A IPC) may be terminated on an amicable note. Similar
approach vis-a-vis the offence under Section 138 of the Negotiable
Instruments Act, 1881 (which is quasi-civil in nature) has been
commended by the division bench of this court in Dayawati (supra), it
finding "no bar" to the ADR tools (including mediation) being utilized
for such purposes, though restricting such approach to compoundable
offences only.
Reference of criminal case by court to mediation
57. Questions have been coming up before the courts, from time to
time, as to the legality of referral of a criminal compoundable case,
(such as the one under Section 138 of the Negotiable Instruments Act)
to mediation, applicability of the rules of mediation to such process,
enforceability of the settlement which is reached through the process
of mediation etc. It is against the backdrop of such issues that a
reference was made by a Metropolitan Magistrate. The reference was
answered by a division bench of this court, by judgment dated
17.10.2017, reported as Dayawati vs. Yogesh Kumar Gosain, 2017
SCC Online Del 11032 : (2017) 243 DLT 117 (DB), thus:.
"58. In para 18 of Afcons, the Supreme Court has given
illustrations of certain categories of cases that were
normally not considered suitable for alternate dispute
resolution processes. Prosecution for criminal offences
has been mentioned as not suitable. The judgment also
notes that the categorization enumerated is merely
illustrative and not inflexible. As the legal validity of
mediation in criminal compoundable cases was not
specifically in question, there is thus no authoritative
judicial pronouncement prohibiting the same.
xxx
60. Mediation undoubtedly provides an efficient,
effective, speedy, convenient and inexpensive process to
resolve disputes with dignity, mutuality, respect and
civility where parties participate in arriving at a
negotiated settlement rather than being confronted with
a third party adjudication of their disputes. The very
fact that it enables warring parties to sit across the table
and negotiate, even if unsuccessful in dispute resolution,
undergoing the process creates an atmosphere of
harmony and peace in which parties learn to „agree to
disagree‟.
xxx
63. ... Section 320 of the Cr.P.C. enumerates and draws
a distinction between offences as compoundable, either
between the parties or with the leave of the court. This
provision clearly permits and recognizes the settlement
of specified criminal offences. Settlement of the issue(s)
is inherent in this provision envisaging compounding.
The settlement can obviously be only by a voluntary
process inter se the parties. To facilitate this process,
there can be no possible exclusion of external third
party assistance to the parties, say that of neutral
mediators or conciliators.
64. Therefore, even though an express statutory
provision enabling the criminal court to refer the
complainant and accused persons to alternate dispute
redressal mechanisms has not been specifically
provided by the Legislature, however, the Cr.P.C. does
permit and recognize settlement without stipulating or
restricting the process by which it may be reached.
There is thus no bar to utilizing the alternate dispute
mechanisms including arbitration, mediation,
conciliation (recognized under Section 89 of CPC) for
the purposes of settling disputes which are the subject
matter of offences covered under Section 320 of the
Cr.P.C."
(emphasis supplied)
58. On the question of process to be followed upon reference of
such dispute to mediation, it was held as under :-
"65. So what is the process to be followed in disputes
under criminal law? So far as criminal matters are
concerned, Section 477 of the Cr.P.C. enables the High
Court to make rules regarding any other matter which is
required to be prescribed. The Mediation and
Conciliation Rules stand notified by the Delhi High
Court in exercise of the rule making power under Part X
of the Code of Civil Procedure, Section 89(2)(d) of the
C.P.C. as well as "all other powers enabling the High
Court" in this behalf. The Rules therefore, clearly
provide for mediation not only in civil suits, but also to
"proceeding pending in the High Court of Delhi or in
any court subordinate to the High Court of Delhi". So
far as Delhi is concerned, these rules would apply to
mediation in a matter referred by the court concerned
with a criminal case as well as proceedings under
Section 138 of the NI Act."
(emphasis supplied)
OPINION OF COURT
59. In the considered opinion of this court, there is no bar to the
disputant parties to be referred by the court to mediation, even in cases
involving such non-compoundable offences the action in which
context can be lawfully terminated by approaching the High Court
under Section 482 Cr. PC, provided the parties are willing and there
exists an element of settlement. After all, amicable settlement restores
peace and tranquillity not only to the parties but also to the society at
large. The concern to be addressed, however, is as to whether the
court is to make a reference of a criminal case to the process of
mediation merely for the asking or should there be scrutiny before
such reference; and further as to whether the mediator is obliged to
proceed ahead, hold parleys to negotiate and broker some settlement
irrespective of the nature of offences only because there is a reference
from the court.
60. Generally speaking, the disputants locked in a lis are lay
persons who do not understand the technicalities of law and
procedure. They need to be guided on these aspects and it is for this
and such other reasons that there is always insistence on availability of
legal aid and advice. The counsel assisting the litigants are trained in
law and the advice which they render is, thus, expected to be in accord
with law.
61. The process of mediation as a potent ADR tool has gained
currency, acceptability and credibility in India over the last decade and
more possibly because it has been regulated through court-annexed
mediation centres, under the close watch, guidance and supervision of
the judicial organ; so much so that the process is legitimately expected
to adhere to the discipline of the rules framed by the High Court. The
Mediation Centres in the district courts are run under the constant gaze
of trained and experienced judicial officers of long standing. Another
centre has been running, with success stories to its credit, at the High
Court, the organisation whereof has been entrusted in the hands of
seasoned members of the bar. Trained judicial officers and lawyers
with vast experience act as mediators in all these centres. All of them
are officers of the court and possess the requisite skills and training
not only in the process of mediation but, more importantly, also in
law, its ethos and awareness as to how it works or is enforced.
62. Generally speaking, to prosecute or not to prosecute in criminal
law is the prerogative of the State (and this normative comes with its
own exceptions, which do not need elaboration here). The State is also
conferred with the power to "withdraw from prosecution" in terms of
Section 321 Cr.P.C. It may also be noted and acknowledged that the
complainant may also withdraw or abandon a criminal case instituted
otherwise than on police report (i.e. complaint case) in certain fact-
situations. But, for purposes of present discussion, what needs to be
underscored is that criminal action, once commenced, would
ordinarily conclude with the judgment as to the guilt or otherwise of
the person accused (and consequences which follow therefrom) unless
a case is made out, within the four corners of law, for such process to
be brought to an end midway on account of settlement, either through
the route of compounding or by intervention of the High Court under
Section 482 Cr.P.C.
63. When parties are being referred by the Court to mediation,
against the backdrop of criminal charge, they expect and assume that
the Court has examined the matter in proper perspective to satisfy
itself that there exist elements of settlement and also, and this is
important here, that should they be able to reach a settlement, the
Court will have the competence and authority in law to act upon it so
as to bring the criminal proceedings to an end. Similarly, when the
parties reach the court-annexed mediation centre, having been advised
that such institutions could be trusted to take the endeavour forward,
because it is controlled by persons trained in law, they are led to
believe that the process of mediation entered upon under the guidance
of trained lawyers, and judges, would save them from the vagaries of
criminal law process (inquiry, investigation or trial), should they be
inclined for give-and take and reach a settlement. To put it simply, the
litigants assume the legitimacy of the process and acceptability in law
of what such process produces as the "settlement".
64. At the hearing on these matters, the learned senior counsel
representing HDFC Bank repeatedly submitted that in all the four
cases of credit card frauds, bank's representatives had been
"summoned" by the Court, not for giving evidence, but to "ask" him
to join the process of mediation since the accused persons facing the
trial were requesting for negotiated settlement and, thus, the bank's
representatives proceeded to participate in the mediation, only
"because" the matter had been "referred" for such purposes "by the
court".
65. The learned senior counsel appearing for Delhi High Court
Mediation and Conciliation Centre submitted that when the Court
refers a case for mediation, the centre is duty bound to honour and
respect such reference and take the parties through the mediation to
make sincere efforts to assist them in resolving the dispute amicably.
At the same time, he fairly conceded that the mediator cannot be blind
to, or oblivious of, the guidelines in law governing the amicable
resolution of dispute relating to a crime. He informed that a system
has since been put in position in Delhi High Court Mediation and
Conciliation Centre for vetting of the settlement agreements in
criminal cases before they are formally executed and made over to the
court for consideration.
66. The learned counsel on all sides agreed that reference by the
court, and initiation of the mediation by the court-annexed mediation
centres, raises hopes in the minds of the parties that they are on a
meaningful track. It gives rise to a natural expectation that the
resolution adopted by such method would ensure end of the criminal
case. In a case involving offences which are not compoundable or
ones that the court will be loath to quash (under Section 482 Cr.P.C.),
it is unfair and unjust to raise false hopes. The reasons for this include
the reality that by "negotiations" (as is the expression generally used
in settlement agreements), the equities undergo change, the parties end
up sharing information (possibly to their prejudice), make payments or
give up certain rights taking new obligations.
67. This Court is of the firm view that before making a reference to
mediation in the context of criminal case, the court must consider as to
whether a settlement reached by such effort would be acceptable for
the criminal process to be brought to an end.
68. The rules of mediation do not limit the process to the case in the
context of which the parties have been referred. It is often the
scenario that the dispute in which the parties are embroiled goes
beyond the contours of the case under reference, its branches having
resulted in other litigation. It is but natural that when the parties sit
across the table in the hope of bringing peace to themselves by
amicable resolution, in the spirit of give and take, they want and
expect all cases to come to an end. To put it simply, the parties hope
that the mediation will bring an end to the litigation in entirety.
69. The initial reference to the mediation may be in a case where
there would be no difficulty in the court accepting the resolution and
acting upon it. To illustrate, reference of a summary suit seeking
recovery of money due in commercial transaction on the basis of
acknowledgement by a cheque issued (but which was dishonoured
upon presentation) would be generally encouraged and once the
parties have arrived at a compromise, the court would ordinarily be
inclined to decide the case accordingly, provided the terms are lawful
and there is free will and volition. The bouncing of the cheque may,
however, also have given rise to a prosecution by complaint under
Section 138, Negotiable Instruments Act, 1881. It is legitimate
expectation of the defendant in the civil suit (who in such scenario
would also be an accused in the criminal case) that though the
reference to mediation is by the civil court, the criminal case is also
concluded by the settlement to which he is agreeable. The mediator,
thus, can assist the parties to enter into a settlement which would be
acceptable both to the civil court for a compromise decree and to the
criminal court for permitting the parties to compound the offence.
70. But, situations may arise where the request for additional
settlement to be included in the terms of compromise by mediation
relates to a case of heinous offence e.g. the offence of rape (punishable
under Sections 376 IPC) or an offence of attempt to commit murder
(punishable under Section 307 IPC). Assuming there is sufficient
evidence available to the criminal court for the person accused to be
put on trial, a settlement agreement reached by mediation (intended to
govern several cases) cannot possibly lead to quashing of such grave
criminal charge for the reason the offence is neither compoundable
under section 320 Cr.P.C. nor quashable under Section 482 Cr.P.C. It
is the obligation of the mediator, who is called upon to assist the
parties in such a scenario to guide them properly in law and refrain
from brokering a compromise that apparently would not be
permissible or lawful.
71. To sum up, this Court is of the considered opinion that there has
to be circumspection at all stages and:
(i) The court while considering reference of the parties to a
criminal case to 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 Cr.P.C.
(ii) The mediator (before commencing mediation) must
undertake a 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 Cr.P.C. For
this, an institutional mechanism has to be created in the
mediation centres 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 Cr.P.C., bearing in mind the relevant
jurisprudence.
72. It is hoped and expected that the criminal courts, and the
mediation centres shall abide by the above guidelines in future. It may
be added that the above would equally apply mutatis mutandis to the
other ADR methods.
DECISION ON THE PETITIONS
73. Having regard to the principles that govern exercise of power
under Section 482 Cr.P.C, the settlement agreements reached in the
five cases at hand are unacceptable.
74. 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. In that sense, the
offences committed are not private in nature. Instead, they have a
serious adverse impact on the financial and economic well being of
the State and its banking institutions. Such frauds, if actually
committed, tend to erode the confidence of the people at large.
Whether the bank likes it or not, the fact remains that data of innocent
customers of the bank was stolen, right from under its nose, and
cloned credit cards were fabricated and used from the premises of
various vendors where the bank had provided EDC machines, the
racket running lucratively for some time, these facts adding the
element of breach of trust. Assuming the cases are well-founded,
credit at the same time will have to be given to the bank that once it
became alive to the frauds, it promptly reported the crimes to the
police which also seems to have taken immediate action leading to
those suspected to be involved being brought to the book.
75. But, the lament is that frauds were committed in 2003 and the
cases have not moved to a meaningful stage for over decade and a
half. As has been noticed at length, the accused persons have used all
tricks in the trade to cause delay and also had the cheek to cite the said
very delay to persuade the Chief Metropolitan Magistrate to refer the
matters for possible settlement through mediation. The bank's
representative also agreed that the fifteen year old vintage of the cases
was good justification for the settlement to be accepted. All
concerned including the criminal court making the reference, the
complainant bank and the mediator forgot - the public prosecutor
possibly apathetic - that the accused persons were attempting to take
benefit of their own wrongs. 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.
76. 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, by
decision dated 24.04.2017 (Crl.M.C. 1144/2017). Neither the parties
nor their counsel shared with the mediator the earlier order (of this
Court) rejecting the move. The withholding of such material
information from the mediator was dishonest and will have to be
condemned in strongest terms. The fact remains that the case
involving the element of "mental depravity" cannot be quashed on
settlement.
77. Thus, all the five petitions are liable to be dismissed. Ordered
accordingly.
DEALING WITH OTHER CONCERNS
78. A criminal court cannot apply the procedure mindlessly.
Liberty of an individual is important. But, the accused cannot be
permitted to wrest the initiative from out of control of the presiding
judge. He cannot hold the criminal law machinery to ransom. If
released on bail, it is his obligation to appear and participate on each
date of hearing. If he has any valid reason to remain absent, he must
seek exemption. 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.
If a pattern or tendency of truancy is noticed, necessary consequences
must follow.
79. The manner in which the accused persons in the credit card
fraud cases have played with the procedure, absenting at will, re-
appearing at their convenience, requesting for the duress processes to
be cancelled on specious grounds, their requests being granted just for
the asking, leaves one with the impression that no one - and that
includes the presiding judge and public prosecutor - was interested in
taking the cases forward. These cases reflect a most irresponsible way
of handling a criminal court bordering on abdication.
80. As has been highlighted earlier, the presiding judge was so
confused in dealing with the matters that on some dates he even forgot
that charges were to be framed. Witnesses were summoned without
pre-requisites being put in place. Even now, there is some confusion
prevailing. Formal charges are yet to be framed in spite of certain
orders showing to the contrary.
81. There can be no 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. But,
the judge presiding over the criminal trial cannot afford to forfeit the
prerogative conferred by law on him. He must always be in full
command and control. It is his obligation to take the case forward as
expeditiously as possible.
82. 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 criminal jurisdiction. The only way forward is a serious and sincere
effort on each and every date of hearing to take the matter to the next
logical stage under the prescribed criminal procedure. It is in that
context that the manner of handling of these cases has come out to be
more of a lip service presenting models which cannot be permitted to
be followed.
83. As is acknowledged by the Chief Metropolitan Magistrate (in
his report), he and his predecessors could not take up these cases on
innumerable dates also for the reason of pre-occupation with
administrative work. This is not proper. No judge can shun judicial
work during court hours for administrative work. The judicial business
remains the priority.
84. The court was informed at the hearing that criminal complaints
under Section 138 Negotiable Instruments Act, 1881 have inundated
the courts of Metropolitan Magistrates and Civil Judges all over Delhi,
particularly at New Delhi sessions division. These cases have rendered
civil litigation and serious criminal cases secondary, which is not
healthy. The move in 2008 to create special courts at Dwarka Court
Complex for such cases filed by financial institutions had proved to be
very effective. It had freed the regular magisterial courts from such
work so that they could devote more energy on serious offences. It is
time the court reconsidered that modal once again by utilizing space
now available at Dwarka Court Complex by recent moving of Labour
Courts, etc. Shifting of such work from courts of regular magistrates
will facilitate progressive movement in regular criminal work and
bring timely justice, a goal for achievement of which the court is to
always remain committed.
85. The report of the Chief Metropolitan Magistrate also indicates
that the said court has a pendency (as on the date of the report) of over
two hundred cases which are more than ten years' old. A large
number of cases requiring priority with concentration in one court do
clog the progress. It does not call for much imagination to understand
that delay in conclusion of the trials renders criminal justice
ineffective.
86. 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.
87. 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 proper.
88. There is also a need to issue instructions about the four credit
card fraud cases at hand (arising out of FIR nos. 45/2003, 47/2003,
53/2003 and 54/2003) of police station Special Cell. The Chief
Metropolitan Magistrate, New Delhi is directed to take up the said
matters hereinafter on day-to-day basis till they reach final conclusion.
Before proceeding further, the said court will ensure that formal
charges, if made out, are framed in each case. No latitude or
indulgence will be shown in the matter of non-appearance. The
accused persons will be duty bound and obliged to appear and
participate without fail on each and every date of hearing with their
respective counsel, duly briefed and instructed, on the first call. The
Chief Metropolitan Magistrate, will ensure proper discipline and
control in this regard and not grant any adjournment on any frivolous
grounds.
89. The Sessions Judge, New Delhi will periodically monitor the
progress of the above cases. All endeavour shall be made to ensure
that they are decided as expeditiously as possible, preferably within
six months of the date of receipt of copy of this order. At the end of
the said period of six months, or if the cases are decided earlier,
compliance report shall be sent to this court.
90. These petitions are disposed of in above terms.
91. A copy of this judgment shall be circulated for information of
all criminal courts of Delhi. The registry shall also send copies to the
mediation centres in District Courts of Delhi and to the Delhi High
Court Mediation and Conciliation Centre.
R.K.GAUBA, J.
APRIL 22, 2019
yvn
