Abhishek @ Love & Ors. v. The State NCT of Delhi & Ors.

8. The Courts are guided by these principles, laid down by the Hon’ble Supreme Court, in cases of quashing of the FIR.

9. The FIR in question before this Court came up for quashing on the basis of a settlement arrived at between the parties before the concerned Mediation Centre. This Court’s attention was drawn towards the Mediated Settlement Agreement dated 17.05.2023, which has been placed on record, regarding quashing of the FIR and payment of money under Section 308 IPC, which reads as under: “In the matter of: State Vs. Tara Chand FIR No. 359/2017 PS: Sultan Puri U/s: 323/341/34 IPC *** Connected Case: State Vs Abhishek, FIR No.: 358/17, PS Sultan Puri, u/s 308/34 IPC Settlement/Agreement 17.05.2023 *** ….l) Both the parties want to put an end to the criminal proceedings in accordance with law either by compounding the offences, if all the offences are so compoundable or by filing appropriate petition for quashing of FIRs or by any other procedure as they may be advised and as may be applicable in accordance with law.

2) The matter stands settled for a sum of Rs.40,000/- (Rs. Forty Thousand only) which will be paid equally Rs. 10,000/- (Rs. Ten Thousand) each by accused Bachu Singh, Rinku, Navneet and Abhishek towards compensation to the injured Taj:a Chand in case FIR no. 358/17, PS Sultan Puri, u/s 308/34 out of which Rs.10,000/- (Rs. Ten Thousand only) has been paid in cash which has been acknowledged by Sh. Subhash son of Tara Chand. The remaining amount of Rs.30,000/- (Rs. Thirty Thousand only) shall be paid at the time of quashing of FIR bearing no. 358/17, PS Sultan Puri, u/s 308/34 before the Hon'ble High Court of Delhi on or before 31.07.2023. 3)Parties undertake that in future they would make no attempt to disturb one or another so as to live their life in a positive way without any acrimony against each other. Accused will respect the complainant and her family members in future and complainant would cooperate in all respect in quashing of the present FIRs bearing no. 358/17, PS Sultan Puri, u/s 308/34 and the quashing petition would be filed on or before 31.07.2023...”

10. Perusal of the mediated settlement agreement reveals that the agreement was being recorded in matter of State vs. Tara Chand arising out of FIR No. 359/2017, P.S. Sultanpuri, under Sections 323/341/34 of IPC. However, the same agreement also mentions about the connected case i.e. State vs. Abhishek arising out of FIR NO. 358/2017, PS Sultanpuri, u/s 308/34 IPC. The mediator concerned also settled the matter for offence under Section 308/34 of IPC i.e. in relation to present FIR vide para no. 2 of the agreement as extracted in preceding paragraph. ii. Scope of Mediated Settlement Agreement: Opinion of this

11. From a perusal of the settlement agreement in question, it is clear that the concerned mediator was aware that offence under Section 308 IPC being non-compoundable can only be quashed. Further, in the present case, which pertains to a non-compoundable serious criminal offence which is also sessions triable case, the mediator has noted that the complainant will co-operate with the accused persons in all respects in quashing of the FIR and that payment of Rs. 30,000/- will be made for quashing of the FIR. It is even mentioned that this FIR will be quashed before 31.07.2023.

12. In this Court’s opinion, the mediator went beyond the scope of mediated settlement agreements as per principles of mediation that a non-compoundable offence could not have been compounded by way of a settlement in which the sentence is up to seven years and is a sessions triable case.

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

14. In the present case, a criminal case which was compoundable i.e. under Section 323/341 IPC and present case which is not compoundable i.e. under Section 308 IPC was the subject matter of the mediated settlement agreement. The agreement, as argued before this Court, was reached between the parties on the assurance by each party to the other that the case filed by both of them will be brought to an end. However, only one case was compounded which was compoundable before the learned Magistrate and for getting the FIR quashed in the non-compoundable case, the petitioners have approached this Court. In this background, the petitioners as a matter of right on the basis of compromise wanted the FIR to be quashed. However, the parties were not aware about the correct position of law that the FIR will not be quashed as a matter of right. They pleaded that they had compounded the other criminal case before the learned Magistrate only on this assurance that the present FIR will be quashed and if in case this Court will not quash the present FIR, it will cause serious prejudice to the petitioners.

15. In this background, it is to be noted that when there may be instances where two parties have criminal cases pending against each other which may be cross FIRs or otherwise, one of the FIRs may be compoundable and the other may be non-compoundable and heinous offence. To draw a mediated settlement agreement which states that one party is withdrawing the case before the Magistrate on the assurance recorded in the settlement that the complainant would appear in the High Court for the purpose of quashing of the FIR, will be misguiding since mere filing of a petition for quashing in a heinous offence even on the basis of an agreement between the parties may not result in quashing of the FIR.

16. Thus, recording mediation settlements as in the present case is misguiding as it is not clear to one of the parties that the FIR against them may not be quashed owing to the gravity of the offence.

17. Coming to the facts of the present case, the complainant in the present case is about 75 years old. The petitioners are the complainants in a criminal case filed against the present complainant which already stands compounded and withdrawn before the learned Magistrate. The terms of the mediation are not clear to the parties as they understood it to mean that the FIR under Section 308 IPC will be quashed as a matter of right on the strength of the mediation agreement, that too on the basis of payment of Rs.40,000/-. Be that as it may, it weighs in the mind of this Court that the complainant is about 75 years old, the nature of injury is simple, and the case against him already stands withdrawn before the learned Magistrate. Both the parties have forgiven each other and though it is not mentioned in the mediation agreement, it was orally stated by the complainant that he wants to forgive the petitioners as they have apologized to him.

18. In these peculiar circumstances of the case, this Court is inclined to quash the FIR. However, a cost of Rs.5,000/- each is imposed on the petitioners which will be deposited with Delhi High Court Bar Association Employees Welfare Fund within one week and the receipt of the same will be filed before the Registry.

SETTLEMENT OF NON-COMPOUNDABLE AND SERIOUS OFFENCES THROUGH PAYMENT OF MONEY: BEYOND THE SCOPE OF MEDIATION

19. This Court remains conscious of the fact that the law and jurisprudence of mediation is still evolving. The jurisprudence evolves when a case comes before a court of law, and is adjudicated upon pointing out the grey areas of law or agreements, etc.

20. Further, to mention in the mediated agreement that a noncompoundable serious session triable offence is being settled for payment of money and part of it will be paid at the time of quashing of the FIR, suggests and gives an impression as if such offences can be compounded by mere payment of money through a settlement agreement andon appearance of the complainant before the Court or as if on payment of further money, the FIR will be quashed by the Court as a matter of right. It also suggests as if the High Court is bound by such agreements and settlements between the parties and is required to quash the FIR in all cases. However, this is not the position of law nor the process of mediation, permits drawing of such settlement mediated agreements being beyond the scope of the mediation process.

21. It is noted that quashing of the FIR of such offences is purely a discretion vested in the Court which is to be exercised with care, caution and with circumspection according to the principles in this regard laid down by the Hon’ble Apex Court. Therefore, settlement of non-compoundable offences through mediated settlement agreements is not permissible. Even otherwise, to permit the accused and complainant to compromise an offence on payment of money, in session triable serious criminal cases which attracts punishment up to life, cannot be subject matter of mediated settlement agreements. i. Guidelines for the Mediators

22. In these circumstances, this Court issues the following guidelines, to be followed by the mediators in all the mediation centres in the District Courts of Delhi as well as of this Court, at the time of recording mediation settlements: i. That the offences under Sections 384/397/394/376/377 and under POCSO Act, etc., being non-compoundable cannot be compounded or compromised by way of a mediated settlement and should not be a subject matter of settlement on payment of money, etc. ii. In such cases where one FIR is under compoundable offence and the other under non-compoundable offence, it should be specified that mere presence of the complainant before the Court does not, as a matter of right, confer a right on the accused persons to seek quashing of the FIR as it is discretion of the Court which is to be exercised depending on facts and circumstances of the case. iii. The mediators should be sensitized that payment of money cannot become a criteria for quashing of the FIR of heinous offences which will amount to paying money to get out of a criminal case of serious nature. iv. The mediators at the end of mediated settlement agreement must mention in the cases as the present one i.e. noncompoundable cases where the parties want the FIR to be quashed in clear terms that quashing of the FIR is the discretion of the Court and the case being noncompoundable, depending on the facts and circumstances of the case FIR may or may not be quashed by the Court, it becomes relevant and important to do so in situations where both the parties have filed cases against each other and the agreement is based upon settlement that both will be withdrawing cases against each other. However, at times one case is withdrawn from the Court of Magistrate being compoundable the other criminal case being serious in nature may not be found fit to be quashed by the High Court, thereby causing anguish to one of the parties who have withdrawn their complaint in the hope and belief that case against them will also be quashed by the High Court through such settlement. v. The mediators should be able to foresee the issue of enforceability of the type of above-mentioned mediated agreements and explain the same to the parties concerned. The fact of mediator having explained the same to the parties should be reflected in the mediated agreements. vi. The mediators should also keep it in mind that though in such cases, where both the parties have cases pending against each other or heinous criminal offences which are non-compoundable and attract stringent punishment though both sides may be ready to perform their part of agreement, it is not legally enforceable agreement as there is no assurance of FIR being quashed as a matter of right. In case of non-quashment of such cross-FIR, it will prevent one party to still face the criminal trial against whom the settlement was to get the FIR quashed and the party against whom a compoundable offence is alleged will gain the benefit of the agreement despite failing to get the FIR quashed as a matter of right from the High Court. vii. A mediator is ethically responsible to ensure that the parties are informed of the legal issues surrounding enforceability in the areas in which he or she has mediated. viii. Mediation is a process where the disputants constructively settle their disputes. In cases as the present one, they must be made aware of technical rules, procedures and procedural justice which may be at the discretion of the Court. ix. The mediator must keep in mind that one of the parties should not be prejudiced by performing their part of agreement when the agreement which is to be performed in their favour is not wholly dependent upon the agreement or consent of the other party. x. The present mediated settlement agreement is a useful reminder that in a hurry to end litigation, one should not draw mediation agreements which are non-enforceable as part of it may be subject to discretion of the Court, which is not mentioned in the mediation agreement. xi. These directions are also a reminder of importance of clarity of communication in writing the terms and consequences of the mediation agreement for each party which should be clarified before mediation settlement is reached, written and signed by the parties. xii. The mediation agreements should be also written in Hindi where the parties understand Hindi as their mother tongue so that it is understood by them completely.

23. It is expected that mediators in Delhi who are adequately and sufficiently trained by able and trained experts, having vast and long experience, will go through the settlement agreements carefully before signing it themselves, and the parties signing it and should know as to which offences cannot be compounded or be quashed as a matter of right.

24. In this regard, the Incharge Mediation, High Court of Delhi as well as the District Courts will bring this judgment to the notice of all the learned mediators alongwith the following judgments which contain the guiding principles for quashing of the FIRs i.e. Narinder Singh v. State of Punjab (2014) 6 SCC 466; Gian Singh v. State of Punjab (2012) 10 SCC 303 and Parbhatbhai Aahir v. State of Gujarat (2017) 9 SCC 641, etc.

CONCLUSION

25. The present case highlights the aspect of mediation which has led to one case being withdrawn by one party before the Court of learned Magistrate on the belief that on their appearance before this Court, as a matter of right, the FIR against them will be quashed by payment of substantial amount of money to the complainant. The present case is an example where for the parties, the mediator and one of the Court of Magistrate, the mediation was over, for the parties the cases were settled, however, one of the cases was not over as the settlement agreement qua an offence under Section 308 IPC could not have been quashed as a matter of right.

26. In cases of settlement in such cases, parties at times being close relatives or neighbours settle their disputes with the intervention of their relatives, friends or amongst themselves as they want to forgive and forget the unpleasant incidents. However, this Court is of the opinion that cases involving serious and heinous offences cannot be permitted to be settled on the basis of payment of money as it will set a wrong precedent. The practice of sending cases for quashing of FIRs, upon payment of money, involving crimes against society at large, or which are multi-victim cases, needs to be deprecated. While there is no denying that the law favours settlement of disputes through agreement of the parties, there can be no summary procedure adopted to settle cases which are not compoundable and are beyond the scope of mediation. It is in thus background that the aforesaid guidelines have been laid down by this Court.

27. This Court clarifies that this Court is not passing any order, nor any observation of this order be read, regarding any settlement of matrimonial offences, but only heinous criminal offences which are non-compoundable in nature. To give an impression that an FIR can be quashed on payment of money as a matter of right, as was apparent from the statement made by the complainant and the accused before this Court, is not permissible. Nor this Court can be a party to any quashing which is on the basis of exchange of money so as to give an impression that after committing a heinous offence, the criminal proceedings can be brought to an end as a matter of right by payment of money.

28. Accordingly, the present petition stands disposed of.

29. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J AUGUST 16, 2023