Read Time: 13 minutes

Synopsis

The Delhi High Court held that in cases of a serious nature, particularly those falling under the Protection of Children from Sexual Offences (POCSO) Act, 2012 mediation is not permissible. Court emphasized the importance of maintaining the gravity and severity of offences, asserting an uncompromising stance on such matters.

“This Court, before parting, issues a mandatory reminder, rather than a gentle reminder, towards fulfilment of its duty, that it is essential to emphasise that in cases involving offences of serious nature, particularly those falling under the Protection of Children from Sexual Offences (POCSO) Act, no form of mediation is permissible. These cases cannot be referred to or resolved through mediation by any Court”, the bench of Justice Swarana Kanta Sharma held. 

The case involved a father, separated from his wife and not living with her or their children, who disclosed that his children had been sexually assaulted by their maternal uncle.

Despite filing complaints, the mother of the children initiated custody proceedings and later proposed a settlement, agreeing to mutual divorce and custody to the father. However, she failed to comply, leading the father to file a writ petition.

Advocate Rajat Wadhwa, representing the petitioner-father, argued that the Special Court exceeded its authority by dismissing the complaint under the POCSO Act and allowing its withdrawal. He contended that mediation between the petitioner-father and the children's mother was inappropriate as it excluded the main accused, children's maternal uncle.

Additional Standing Counsel Rupali Bandhopadya appeared for the State. 

In response, children's maternal uncle and their mother claimed that the petitioner-father initially filed a false complaint and later withdrew it as part of a compromise with the mother.

Court framed the issue as to 'whether mediation can be preferred in cases registered under the POCSO Act or cases of sexual assault'.

The bench noted that while mediation may be suitable for certain disputes, serious criminal offences, especially those under the POCSO Act, cannot be settled through mediation.

Court noted that criminal offences are considered violations against society and are prosecuted by government authorities in the public interest. Attempting Alternative Dispute Resolution (ADR) methods in serious criminal cases is deemed impractical and could undermine principles of criminal justice since these cases involve public safety and order. Criminal cases often require complex legal adjudication due to constitutional rights and evidence involved. However, in certain cases, such as matrimonial disputes under Section 498A of Indian Penal Code, 1860 (IPC), mediation can be used, even though the offence is non compoundable.

The bench emphasized that serious criminal offences, especially those under Sections 384, 397, 394, 376 and 377 of IPC and under the POCSO Act, which are non-compoundable, cannot be settled through mediated agreements.

Court referred to the case of Abhishek v State of NCT of Delhi [2023 SCC OnLine Del 5057].

The stance ensures that offences of such gravity are not trivialized, particularly in cases involving minor victims of sexual abuse, whose rights to seek legal recourse and justice should not be undermined. Therefore, offences under the POCSO Act, being non-compoundable and rarely quashed by Constitutional Courts, cannot be referred to mediation or compromised through mediated agreements.

The bench further observed that despite the serious nature of the allegations, the Special Court referred the parties to mediation based on their desire to settle their disputes. This decision was inappropriate as the complaint didn't involve a simple matrimonial dispute between spouses but rather serious allegations of sexual abuse against minors. Moreover, a mediated settlement agreement was reached between the husband and wife, ignoring the primary issue of the complaint, court noted.

It emphasized that the procedural errors occurred as well. The police failed to register an FIR despite clear allegations of sexual assault falling under the POCSO Act. Instead, the Special Court called for a status report from the Investigating Officer and failed to follow the prescribed procedure for handling complaints under the POCSO Act. 

The bench noted that if the police had registered an FIR, conducted a thorough investigation, and followed the correct legal procedures, either a chargesheet or a closure report would have been filed, leading to a legally logical resolution of the allegations. However, since the police failed to register an FIR, the Court presumes that the complaint was treated as one under Section 7 read with Section 33 of the POCSO Act.

The high court observed that despite recording the evidence of the children, where they accused their maternal uncle of sexual assault, the court seemingly reverted to the procedure under Sections 200 to 202 of CrPC. The Special Court further referred the matter to mediation, even after taking cognizance of the offence under Section 33 of the POCSO Act and recording the children's evidence. This decision allowed the complainant to withdraw the complaint, based on a mediated settlement agreement, contrary to the law. This approach led to a miscarriage of justice, particularly since the children, as alleged victims of sexual abuse, deserved proper legal care and attention, court held.

“It is at times, unpleasant and distasteful for a judge while adjudicating a case to note that parents can use the provisions of POCSO Act to settle their own scores, and equally disturbing is to realise that in relationship of a parent and a child, instead of emotion, care, love, affection for their children, the estrangement between husband and wife and their legal battles overcome the earlier”, the court opined. 

Court highlighted procedural errors, including the failure of the police to register an FIR despite clear allegations of sexual assault. Despite recording the evidence of the children, the Special Court referred the matter to mediation, allowing the complainant to withdraw the complaint based on a mediated settlement agreement, which led to a miscarriage of justice.

While acknowledging the effectiveness of mediation centers, the court emphasized its duty to improve the process based on firsthand experience. It stressed the importance of upholding justice and ensuring victims receive the support and justice they deserve, particularly in cases involving serious offences.

“The judges and lawyers are partners in their common pursuit of administration of justice and betterment of society. The crucial social mission of both is to achieve a common end of administering timely, inexpensive, equal and impartial justice, whether through litigation or mediation”, the bench added. 

Accordingly, court disposed of the petition at hand and set aside the mediation agreement.

Case Title: Rajeev Dagar v State & Ors