Scope of ADR in Code of Criminal Procedure 1973.

Introduction

Our law of criminal procedure is mainly contained in the Code of Criminal Procedure, 1973 which has come into force from April 1, 1974. It provides the machinery for the detection of crime, apprehension of suspected criminals, collection of evidence, determination of the guilt or innocence of the suspected person, and the imposition of suitable punishment on the guilty person. In addition, the Code also deals with prevention of offences (Sections 106-124, 129-132, and 144-153), maintenance of wives, children and parents (Sections 125-128), and public nuisances (Sections 133-143).

The Criminal Procedure Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigative and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgment and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves “a nice balancing of conflicting considerations, a delicate weighing of opposing claims clamoring for recognition, and the extremely difficult task of deciding which of them should predominate" [1] .

The Code of criminal procedure provides for as to how a case is to be tried be it by magistrates, Court of Session or the High court’s the common steps of a trial as discussed in the previous chapter the researcher would now in this chapter would focus on the proposed changes in the Code of criminal procedure and which techniques of ADR to be introduced in section 320 and 125 of the code respectively.

SECTION 320 Cr.P.C COMPUNDING OF OFFENCES

Compounding has been described in webester Dictionary as “In civil cases, as settlement by agreed payment, in criminal trials, compound a felony means to avoid prosecuting a criminal for private motive. Similar to compounding sometimes the word compromise word is used. The word compromise has been defined in webester Dictionary “as a method of reaching agreement in a dispute by which each party surrenders something that it wants".

Section 320 of the code of criminal procedure reads as follows;

“(1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table.

Offence

Section of the Indian Penal Code Applicable

Person by whom offence may be compounded.

1

2

3

Uttering wards, etc., with deliberate intent to wound the religious feeling of any person

298

The person whose religious feelings are intended to be wounded

Causing Hurt.

323, 334

The person to whom the hurt is caused. .

Wrongfully restraining or confining any person.

341, 342

The person restrained or confined.

Assault or use of Criminal force

352, 355, 358

The person assaulted or to whom criminal force is used.

Mischief, when the only loss or damage caused is loss or damage to a private person.

426, 427

The Person to whom loss or damage is caused.

Criminal trespass.

447

The Person in possession of property trespassed upon.

House trespass

448

Ditto

Criminal breach of contract of service

491

The person with whom the offender has contracted

Adultery.

497

The husband of the woman

Enticing or taking away or detaining with criminal intent a married woman

498

Ditto.

1[Defamation, except such case as are specified against section 500 of the Indian Penal Code in column 1 of the table under sub section (2).]

500

The person defamed.

Printing or engraving matter, knowing it to be defamatory.

501

Ditto.

Sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter.

502

Ditto.

Insult intended to provoke a breach of the peace.

504

The person insulted.

Criminal intimidation except when the offence is punishable with imprisonment for seven years.

506

The person intimidated

Act caused by making a person believe that he will be an object of divine displeasure.

508

The person against whom the offence was committed.

 (2) The offences punishable under the section of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table.

TABLE 

Offence

Section of the Indian Penal Code applicable

Person by whom offence may be compounded

1

2

3

Voluntarily causing hurt by dangerous weapons or means

324

The person to whom hurt is caused.

Voluntarily causing grievous hurt.

325

Ditto.

Voluntarily causing grievous hurt on grave and sudden provocation.

335

Ditto.

Causing hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others.

337

Ditto.

Causing grievous hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others.

338

Ditto.

Wrongfully confining a person for three days or more.

343

The person confined.

Wrongfully confining for ten or more days.

344

Ditto.

Assault or criminal force to woman with intent to outrage her modesty.

354

The woman assaulted to whom the criminal force was used.

Assault or criminal force in attempting wrongfully to confine a person.

357

The person assaulted to whom the force was used.

Theft, where the value of property stolen does not exceed two hundred and fifty rupees.

379

The owner of the property stolen.

Theft by clerk or servant of property in possession of master, where the value of the property stolen does not exceed two hundred and fifty rupees.

381

Ditto

Dishonest misappropriation of property.

403

The owner of the property misappropriated.

Criminal breach of trust, where the value of the property does not exceed two hundred and fifty rupees.

406

The owner of the property in respect of which the breach of trust has been committed.

Criminal breach of trust by a carrier, wharfinger, etc. value of property does not exceed two hundred and fifty rupees

407

Ditto

Criminal breach of trust by a clerk or servant, where the value of the property does not exceed two hundred and fifty rupees.

408

Ditto.

Dishonestly receiving stolen property, knowing it to be stolen, when the value of the stolen property does not exceed two hundred and fifty rupees.

411

The owner of the property stolen.

Assisting in the concealment or disposal of stolen property, knowing it to be stolen, where the value of the stolen property does not exceed two hundred and fifty rupees.

414

The owner of the property stolen.

Cheating.

417

The person cheated.

Cheating a person whose interest the offender was bound. Either by law or by legal contract, to protect.

418

Ditto.

Cheating by personation:

419

Ditto.

Cheating and dishonestly including delivery of property or the making, alteration or destruction of a valuable security.

420

Ditto.

Fraudulent removal or concealment of property, etc. to prevent distribution among creditors.

421

The creditors who are affected thereby.

Fraudulently preventing from being made available for his creditors a debit or demand due to the offender.

422

Ditto.

Fraudulent execution of deed of transfer containing false statement of consideration.

423

The person affected thereby.

Fraudulent removal or concealment of property.

424

Ditto.

Mischief by killing or maiming animal of the value of ten rupees or up wards.

428

The owner of the animal.

Mischief by killing or maiming cattle, etc. of any value or of any other animal of the value of fifty rupees or up wards.

429

The owner of the cattle or animal.

Mischief by injury to work of irrigation by wrongfully diverting water when the only loss or damage caused is loss or damage to a private person.

430

The person to whom the loss or damage is caused.

House-trespass to commit an offence (other than theft) punishable with imprisonment.

451

The person in possession of the house-trespassed upon.

Counterfeiting a trade or property mark used by another.

483

The person whose trade or property mark is counterfeited.

Knowingly selling or exposing or possessing for sale or for manufacturing purpose. Good marked with a counterfeited property mark.

486

Ditto.

Marrying again during the lifetime of a husband or wife.

494

The husband or wife of the person so marrying.

Defamation against the President or the Vice-President or the Governor of a State or the Administrator of a Union territory or a Minister in respect of his conduct in the discharge of his public functions when instituted upon a complaint made by the public prosecutor.

500

The person defamed.

Uttering wards or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman.

509

The woman whom it was intended to insult or whose privacy was intruded upon.

 (3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (When such attempt is itself an offence) may be compounded in like manner.

 (4) (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf, may, with the permission of the Court compound such offence.

(b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil procedure, 1908 (5 of 1908) of such person may, with the consent of the court compound such offence.

 (5) When the accused has been committed for trial or when he has been convicted and an appeal is pending no composition for the offence shall be allowed without the leave of the court to which he is committed, or as the case may be, before which the appeal is to be heard.

(6) A High Court or Court of Session acting in the exercise of its power of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section.

 (7) No offence shall be compounded if the accused is, by reason of previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.  

(8) The Composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.

 (9) No offence shall be compounded except as provided by this section." [2] 

Now section 320 of the code provides list of offences which are compoundable directly and some of them may be compounded with the permission of the court even compounding is possible by the guardian and legal representative of miner, indict and deceased complainant or injured with the permission of the court. Even compounding has been permitted during the hearing of Appeal and revision in High Court or Supreme Court, but if the accused is previous convict and he is liable to enhanced or different kinds of punishment from the ordinary punishment then compounding is not permitted. It has been further mentioned in this section that the effect of compounding shall be deemed to be the acquittal of the case. It has been further warned that no compounding is permissible except under section 320 Crpc it is the bone of contention for this article, because once it has been said that no compounding is possible in offences not mentioned u/s 320 Cr. P.C. then how the compounding is possible in non compoundable offences it shall be illegal and the withdrawal is not also possible but however judging the nature of increasing pendency and crime, the eroding trust of common man in the system the time now has come to make changes in our criminal system the same can be represented by the analysis of the empirical survey where the following result came after questioning 40 respondents that whether we require change in our criminal system.

fig 3.1

97% of the respondents surveyed answered that the criminal justice system requires change with respect to section 320 in order to provide for speedy dispensation of cases the two following steps should be taken ;

Offences which are only compoundable with the permission of the court and are dealt under section 320 (2) some of them for e.g. offences under sections 312 i.e. causing miscarriage to women, section 335 causing grievous hurt on sudden provocation, section 381 i.e. theft by clerk or servant where value of property does not exceed two thousand rupees, section 411 i.e. where someone receives stolen property where the value does not exceed two thousand rupees, section 414 assisting in concealing or disposing stolen property where value does not exceed two thousand rupees, section 426 i.e. where mischief by killing or maiming animals of value of more than ten rupees all these offences should be added under section 320(1) because seeking the permission of court for compounding these parties where both parties are already ready to settle the matter makes no sense and would lead to mere abuse of process of court and moreover more offences such as section 138 of negotiable instruments act and certain sections like 268 IPC should be added under section 320 C.r.p.c.

Referring the said parties to dispute to mediation irrespective of the fact whether the offence falls under section 320(1) or 320(2), the court here in for such purposes can appoint certain retired judges as mediators who would allow the dispute to be compromised where such dispute falls under sub section 2 of section 320 and in cases where it could be compounded without the permission of the court the same can be allowed on the very same day. Allowing mediation in the cases of compounding of offences instead of following the normal trial procedure would have two extra ordinary benefits;

It would save a lot of time of the court.

Parties who want to their matter to be settled and compromised would not require lawyers and can straightaway themselves head to the mediator appointed for the purpose of these cases this would in turn also cut down on the cost purposes.

The idea whether a offence which is non compoundable can be compounded often doesn’t arise because section 320(9) particularly provides that no offence shall be compounded except as provided by this section but since the law was made long ago time has come to make certain changes to it and the particular idea that non compoundable offences can be compounded germinates from the following case laws as laid down by the apex court of our country the Supreme Court in the case of Nikhil merchant v. Central Bureau of Investigation and Another [3] has held that offences which are of non compoundable nature criminal proceedings under such cases can be quashed under article 142 of our constitution where both the parties agree to compromise and withdraw all allegations and claims against each other . Further the Hon’ble Supreme Court in Puttaswamy v. State of Karnataka [4] has held that even if an offence is not compoundable within the scope of Section 320 of Code of Criminal Procedure the Court may, in view of the compromise arrived at between the parties, reduce the sentence imposed while maintaining the conviction.

In the instant case the appellant in this appeal was convicted for an offence punishable under Sections 279 and 304-A of the Indian Penal Code for causing the death of a seven year old girl on account of his rash and negligent driving of his tractor. The appeal from the said order and conviction and sentence having been dismissed by the learned Sessions Judge, the appellant moved in revision before the High Court. In revision, the Karnataka High Court, while confirming the conviction, set aside the sentence in respect of the offence punishable under Section 279 of the Indian Penal Code but maintained the conviction and sentence in respect of the offence under Section 304-A of the Indian Penal Code, whereby the appellant was sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.2,000/-, and in default of such payment, to undergo further simple imprisonment for three months and also to pay a fine of Rs.600/- for the offence punishable under Section 279 I.P.C. and in default of such payment to undergo simple imprisonment for a month.

During the hearing of this appeal, at the admission stage, learned counsel for the appellant had informed the Court that the matter had been settled between the parties and a compromise petition had been executed between the appellant and the complainant. On such submission, the complainant was impleaded as a party to the present proceedings and the short point which ultimately arose during the hearing is whether the offence under Section 304-A could at all be compounded since the same is not covered by the provisions of Section 320 C.r.p.c and in order to meet certain unusual situations, this Court has from time to time taken recourse to innovations and the powers vested in it under Article 142 of the Constitution, in order to give a quietus to a litigation demanding a pragmatic solution. It has also been consistently held by this Court that when an offence did not come within the ambit of Section 320 of Criminal Procedure Code but the proceedings taken on the basis thereof deserved to be terminated, a sentence could always be reduced while maintaining the conviction and in most cases the sentence was reduced to the period of the sentence already undergone. In other cases, where circumstances so warranted, even the sentence was altered which at times brought the proceedings within the scope of Section 320 of Criminal Procedure Code and the offence was allowed to be compounded therefore the court compounded the said case and increased the amount of fine from Rs.2, 000/- to Rs.20, 000/- to be paid by the appellant to the parents of the deceased and reduced the sentence to the period already undergone, subject to payment of the fine. The aforesaid amount be deposited by the appellant in the Trial Court within three weeks from date, and on such deposit, the said amount shall be made over to the parents of the deceased and the appellant shall be released forthwith.

Therefore these two decisions of the apex court clearly bring out that in view to meet the current changing trends of society certain amendments are to be made to our existing law and though they sound unconventional they can be done and to add finality to the above proposal the Supreme Court recently in Ram Gopal v. State of Madhya Pradesh [5] has held that “There are several offences under IPC that are currently non-compoundable. These include offences punishable under Section 498-A, Section 326, etc IPC. Some of such offences can be made compoundable by introducing a suitable amendment in the statute. We are of the opinion that the Law Commission of India could examine whether a suitable proposal can be sent to the Union Government in this regard. Any such step would not only relieve the courts of the burden of deciding cases in which the aggrieved parties have themselves arrived at a settlement, but may also encourage the process of reconciliation between them. We, accordingly, request the Law Commission and the Government of India to examine all these aspects and take such steps as may be considered feasible" [6] .

Further the researcher would now move to the next section in the next sub part dealt further.

SECTION 125 Cr.P.C ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS.

Section 125 of the Code of Criminal Procedure provides for a speedy, effective and rather inexpensive remedy against persons who neglect or refuse to maintain their dependant wives, children and parents. Thought the subject matter here in is civil but it is included in criminal procedure to provide more speedy and economical remedy than as compared to the civil courts. It can also be said that these provisions are aimed at preventing starvation and vagrancy leading to the commission of a crime. By providing a simple, speedy but limited relief the provision seeks to ensure that the neglected wife, children and parents are not left beggared and destitute on the scrap heap of society and thereby driven to life of vagrancy, immorality and crime for their subsistence. [7] 

The main provision which deals regarding grant of maintenance is contained in section 125 C.r.P.C, runs as follows:

125. Order for maintenance of wives, children and parents;

(1) If any person leaving sufficient means neglects or refuses to maintain- 

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) His father or mother, unable to maintain himself or herself,

A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

 Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person

 Explanation for the purposes of this Chapter.

 (a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority; 

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

 Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.

 (4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.

 (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. [8] 

The language of section 125 although is very clear and crisp the procedure to be followed by the magistrate of first class while conducting proceedings under section 125 has been prescribed under sub sections (2) and (3) of section 126 [9] , section 126 (2) is mandatory in form and requires in clear terms that all evidence in such proceedings shall be taken in the presence of the person proceeded against or his pleader. [10] 

For the enforcement for the order of maintenance under section 125 the normal rule is at first to issue a distress warrant in the manner provided in the code for levying fines; but this rule need not be necessarily followed in each and every case without considering the attending circumstances of the particular case [11] . The first proviso to section 125 (3) enacts that no warrant shall be issued for the recovery for any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which on which it became due.

Thus the period of limitation is one year but however where an application for levy of maintenance is made within the period of one year mentioned in the proviso but is dismissed for default another application made subsequently for the same purpose may be granted although such application may have been made after the period of one year mentioned in the first proviso therefore if successive applications for recovery of arrears of maintenance are made within a year of each other no part of the entire claim becomes time barred and it also to be borne in mind that an execution application of maintenance order dismissed for non appearance can be restored [12] . The enforcement process adds to the long pending time taken to decide a mere maintenance application due which the litigants get annoyed this being the major reason the maintenance petitions in the magistrate are now majorly being referred to mediation centres which are exclusively dealing with petitions under section 125 of the Code of Criminal Procedure.

The Hon’ble Supreme Court in Mitali v. Debarata [13] which was transfer petition which was filed by the wife seeking transfer of HMA No. 80 of 2008 filed under Section 13(1)(a) of the Hindu Marriage Act, 1955 (in short “the Act") pending in the Court of the learned Additional District Judge, Tis Hazari Court, Delhi, to any court of competent jurisdiction of Nagpur the apex court judging that the matter was pending since long directed the matter to be decided by the supreme court lok Adalat.

Pursuant to the directions given on 10-11-2008 the matter was listed at the Supreme Court Lok Adalat on 6-12-2008. The parties were directed to appear before the Delhi High Court Mediation Centre on 19-1-2009. The parties had agreed that Ms Veena Ralli and Mr. Mohit Gupta, Advocates would act as amicus curiae in the matter of mediation and conciliation proceedings. The petitioner had filed an application for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and had obtained an ex parte decree of the Family Court, Nagpur. As noted above, the respondent filed a petition for divorce and finally due to amicable mediation the said matter was compromised on mutually agreed terms and conditions.

Further in another case also the Hon’ble Supreme Court in S.G Rajagopalan v. veena [14] again referred a matter containing a claim of maintenance to mediation and accordingly a compromise decree containing a lump sum payment of rs 40 lacs was passed. Though mediation is already being used in disputes involving claim of maintenance under section 125 of Cr.P.C, the here researcher wants to propose the following changes;

Introduce a statutory provision which would allow matters to be referred for mediation in cases involving claim for maintenance under section 125 of Cr.P.C.

Use Family Group Conference and Mediation and last offer arbitration (Medola) techniques of ADR for providing more expeditious dispensation of such cases.

Referring maintenance petitions under section 125 is already been started but has no statutory provision for the same allowing the same would allow even judicial magistrate of first class to refer the said matters to mediation instead of litigants getting such orders by the apex court by way of filing a special leave petition (S.L.P) under article 136 of our constitution bringing such a provision would reduce the work pressure on judicial magistrates and as well as on the Supreme Court as they will no longer be required to interfere in such petty matters by way of granting a leave by means of an S.L.P .

Using Family Group Conferencing (F.G.C.) technique in maintenance matters would also help amicably settle the matter as the family members of both the parties would sit together and ease out the problem by means of facilitated controlled environment for discussions. Moreover the role of law is mainly to unite parties rather than to split and substantially decide their rights and liabilities especially in matrimonial disputes therefore when such matters are being decided in presence of family members generally there are a lot of possibilities that the main the parties to the dispute that the wife and husband can be in way explained and tried to be reunited again for the betterment of their future unless the dispute is a case of total breakdown of marriage.

Medola technique would prove to be a success in deciding maintenance petitions as under this method both the parties to the dispute can be first referred for mediation and if subsequently even where the mediation fails both parties can be told to submit their respective offers and the same person who was acting as a mediator would now approve the claim of that party which is more affordable and realistic as per the facts and circumstances of each case. In this method both the parties would actually submit realistic claims as they would be aware that if their own claim suffers from fallacies the claim of offer of the opposite parties would be accepted this situation often creates a pressure on the claimants mind to seek a claim which is well within the financial limits of the opposing party.

It is also pertinent to note that using F.G.C and Medola techniques of ADR besides mediation would not only result in expeditious and fair trial but when done at a faster pace would also result in cutting down the pendency of cases in both trial courts as well as in the appellate courts. Under method also retired judges can be reappointed as neutrals and mediators.

Conclusion

Since the matters under section 125 of the Code of Criminal Procedure have been already been stared to be given to lok adalats for mediation by various courts it is evident that matters for claim of maintenance can be dealt in a better way by means of mediation rather dealing with them in the normal course of procedure but since the second proposal i.e. adding more offences under section 320 of Cr.P.C and referring the same for mediation was something unique which the researcher was proposing by means of this dissertation an empirical survey was conducted by the researcher by intervening 40 respondents being judges , lawyers, students and academicians where the following interpretative analysis came out ;

fig.3.2

Out of 40 respondents survyed 95% of them answered that more offences which are not under section 320 Cr.P.C should be added judging the nature of the offence and the case laws cited also show that the Hon’ble supreme has power to compound noncompoundable offences under the both the Cr.P.C and IPC and the said matters should be dealt with via using mediation technique of ADR and about 5% answered in negative.

Now further we would move on to deal with introducing certain ADR techniques in the substantive criminal law i.e. in IPC which would be dealt in the next chapter.