PETITION FOR MUTUAL DIVORCE IN THE COURT OF HON’BLE PRINCIPAL JUDGE FAMILY COURT, BHUBANESWAR MATRIMONIAL SUIT NO. 579 OF 2022. 1. Ram Kumar Sahoo (Husband), Aged about 39 years, Son of Shri Rameswar Nand Padhi, House No. 6 B/9, Patia, Unit-07, Bhubaneswar-800 013, Odisha. Petitioner 1 – Husband 2. Mamata Sahoo (Wife), ...
This article is written by Ashutosh Nath and Chhatrapal Singh Shaktawat , and Anurag Kumar students at Symbiosis Law School, Hyderabad, Batch(2018-23) where they have discussed about, "THE ROLE OF ADR IN THE CRIMINAL JUSTICE SYSTEM OF INDIA".
TABLE OF
CONTENTS
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Si.No |
TITLE |
PAGE NO. |
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01 |
Abstract |
01 |
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02 |
Introduction |
03 |
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02 |
Research Questions |
04 |
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03 |
Statement of Research
Problem/Hypothesis |
05 |
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04 |
Objectives of the Study |
05 |
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05 |
Scope and limitations of
the study |
05 |
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06 |
Research Methodology |
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07 |
Sources Of Data |
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08 |
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SI. -NO. |
LIST OF CASES- |
CITATIONS |
|
01 |
“State of Uttar Pradesh v.
Chandrika” |
2000
Cr.L.J. 384(386) |
|
02 |
“Afcons
infrastructure and Ors. v. Cherian Varkey Construction and Ors,” |
2010 (8) SCC 24 |
|
03 |
“Kasambhai v. State of Gujarat
& Kachhia Patel” |
(1980 AIR 854) |
|
04 |
“Parbatbhai
Bhimsinhabhai Karmur v. the State of Gujarat” |
Appeal No.1723 OF 2017 (2017). |
|
05 |
“K.
Srinivas Rao v. D.A. Deepa” |
(AIR 2013 SC 2176)” (2013). |
|
06 |
“Murlidhar Meghraj Loya v. the State of Maharashtra” |
Cri. Appeal Nos. 1132 of 1999) |
|
07 |
“Gian Singh v. State of Punjab,” |
10
SCC 303 |
Alternative
Dispute Resolution (hereinafter- ‘ADR’) is a mechanism to resolve the dispute
between the parties outside the courtroom without following a rigid litigation
process. It can be done by means of arbitration, mediation, and negotiation
etc. The basic purpose of establishing the ADR mechanism is to reduce the load
on the courts from the pendency of cases. It is one of the mechanisms which is
cost effective and less time consuming. Offence or crimes are considered to be
committed not only against the victim but also against society at large. So,
it’s tough to take crime under the definition of dispute. It is believed, ADRs
can resolve petty offenses concerning matrimonial disruption and motor vehicle
cases however, the scope of ADR in criminal justice system is much wider as it
seems. As we all know that today’s Indian courts are flooded with millions of
pending cases. So, this makes us think about adapting an innovative mechanism
like ARD in the Indian Criminal Justice System to reduce the load on the
courts.
In this
paper, we will discuss the role of ADR in India's Criminal Justice system and
to increase its scope to make the Indian judicial system more effective. The
primary purpose of this paper is to make this mechanism familiar to more
people. This paper also contains a comparative study of the role of ARD in
different countries' criminal jurisprudence with respect to India. Towards the
end, it includes some innovative ideas that may make this mechanism successful
in criminal jurisprudence in the long run.
Key Words- ADR, Criminal Justice, Plea Bargaining, Restorative justice, Comparative.
CHAPTER-01
“ARD is a road travelled by the
parties to arrive at a mutually satisfactory settlement”.
BY- Lon L. Fuller
Alternative
Dispute Resolution (hereinafter- ‘ADR’) is a mechanism to resolve the dispute
between the parties outside the courtroom without following a rigid litigation
process. It can be done through arbitration, mediation, negotiation, etc. The primary
purpose of establishing the ADR mechanism is to reduce the load on the courts
from the pendency of cases. It is one of the mechanisms which is cost-effective
and less time-consuming. Offences or crimes are considered to be committed not
only against the victim but also against society at large. So, it’s tough to
take crime under the definition of dispute. It is believed, ADRs can resolve
petty offenses concerning matrimonial disruption and motor vehicle cases;
however, the scope of ADRs in the criminal justice system is much broader as it
seems. As we all know that today’s Indian courts are flooded with millions of
pending cases. So, this makes us think about adopting an innovative mechanism
like ARD in the Indian Criminal Justice System to reduce the load on the
courts.[1]
Every
dispute is like cancer. So, the parties concerned should get relief as soon as
possible. The concept of alternative dispute resolution has evolved to resolve
the dispute, by following a method outside the court proceedings. In contemporary
India, the pendency of cases always questions the Indian judicial system. It
has been judicially determined that the “right to a speedy trial” comes under
the preview of article 21 of the Indian Constitution.[2]
Even though the Indian courts are burdened with a backlog of cases. This
reflects the violation of fundamental rights mentioned above. Justice delayed
is justice denied. So, it is presumed that delayed justice is no justice.[3]
Currently,
most countries have taken ARD mechanisms to reduce the load of the courts.
Among all the ADR mechanisms, mediation is the best tool to resolve a dispute
among the parties by maintaining a perfectly harmonious relationship. So, this
tool can be adopted in the criminal justice system to make the same
restorative. Adapting ADR in criminal cases has both positive and negative
aspects. “Section 89 of the code of civil procedure” empowers the
court to send the parties to resolve the dispute outside the courtroom.[4] However, the criminal justice system
doesn’t provide any alternative mechanism for the settlement of disputes
outside the courtroom. In the case of “Afcons
infrastructure and Ors. v. Cherian Varkey Construction and Ors,”[5]
the court held that criminal cases should not be decided by any of the ADR
mechanisms.
In this
contemporary India the pendency of cases is increasing day by day. We have a
solution for the speedy disposal of civil disputes through the mechanism of
arbitration, conciliation and Mediation. However, there is no such provision
for criminal cases. There is no specific statute in India, which can solve
certain criminal issues by the method of ADR. Even it is unclear to what extent
we can use ADR in the criminal justice system. Although the concept of plea
bargaining exists in the “Code of Criminal Procedure, 1973”;
however, it is not detailed. In many of the judgement to has been seen that the
court is not in the favour of plea bargaining. [6]
In this paper, we will discuss the role of ADR in criminal cases and to increase its scope to make the Indian judicial system more effective. The primary purpose of this paper is to make this mechanism familiar to more people. This paper will discuss the scope and limitations of adapting ADR in the criminal justice system. Foreign jurisdictions have also taken into consideration for a comparative analysis of this area of research. Towards the end, it includes some innovative ideas that may make this mechanism successful in criminal jurisprudence in the long run.
RESEARCH QUESTION:
In this
paper, the researcher is going to deal with the following research questions.
1.
Why is the
adoption of the ARD to the Indian Criminal Justice System crucial in this
contemporary India?
2.
What are
the existing statutory provisions concerning the adoption of ARD in the
Criminal Justice System?
3.
How does
the ADR mechanism work in other countries' criminal justice systems and to what
extent can India adopt those mechanisms?
4.
What are
the limitations of ARD in the Criminal Justice System?
5.
What
innovative steps can eradicate the shortcoming and make the role of ARD
fruitful in the long run?
RESEARCH
HYPOTHESIS/ STATEMENT OF PROBLEM
The researcher has formulated the following hypothesis based on the
abovementioned research questions.
1)
The adaptation
of the ADR mechanisms to the Indian Criminal Justice system will have a significant
impact on the speedy disposal of cases. The pendency of the cases will be
reduced by this tool, and it can also reduce the burden on the criminal court
to a great extent.
2)
No such
statute expressly provides provisions for solving criminal cases through the
ADR mechanism in India. A country like India, having the highest number of
populations, needs to enact a statute that can solve this problem to a great
extent.
3)
The ADR
mechanisms of the other countries criminal justice systems can be adopted in a
country like India.
4)
Some existing loopholes have made the ADR
unsuccessful in entertaining criminal cases.
5) Some of the innovative steps can eradicate the shortcoming and make the role of ARD fruitful in the long run and provide an opportunity to the accused for speedy disposal of criminal cases.
OBJECTIVES-
This research has been
conducted for the fulfillment of the objectives mentioned below.
·
To know the
importance of ARD in the Indian Criminal Justice System.
·
To
understand statutory provisions concerning the adoption of ARD in the Criminal
Justice System.
·
To explore
the process of working of the ADR mechanism in other country's criminal justice
systems and its effectiveness in India.
·
To
understand the limitation of ARD in the Criminal Justice System.
·
To find
innovative steps that can eradicate the shortcoming and make the role of ARD
fruitful in the long run.
SCOPE
AND LIMITATION OF THE STUDY-
Scope-
In this paper,
we have discussed the importance of ADR in the criminal justice system. This
research tries to critically examine the adoption of ADR in the criminal
justice system and its impact on society in making the judicial system more
active. This paper contains all the innovative ideas for a better
implementation of ADR in a criminal justice system which will reduce the work
of the overburdened courts of India.
Limitation- This area of study is very exhaustive.
So, the comparative study of adoption of ADR in criminal law has not been
conducted in detailed. Only a few countries have been taken into consideration.
so, it creates a scope for further research in this field.
RESEARCH METHODOLOGY
To conduct
legal research, the researcher mainly follows two methods. They are mainly
doctrinal and non-doctrinal. In the doctrinal method, the researcher mainly
focuses on the materials that are available in the library. On the other hand,
non-doctrinal research primarily depends on field works for the collection of
data. The doctrinal research methodology
has been followed in this study. So, no fieldwork had been conducted for this
research. In this research, a
descriptive or quasi-hypothetical approach has been followed. A qualitative
method has been given importance rather than a quantitative method in this
paper for the fulfilment of the research objectives. The researcher has used
analytical, critical, and descriptive methods to conduct the research and
derive the results.
SOURCES OF DATA
Two types of sources have been followed for the
manifestation of this study. They are primary sources and secondary
sources. These two sources played a
significant role as the study was conducted by doctrinal methodology and no
fieldwork was done.
Primary-As per the primary sources
case laws, judicial decisions, International conventions, different
legislations, and reports of different commissions had been taken into
consideration for this study.
Secondary-on the other hand, different
books, legal journals, articles, newspaper reports, and online materials were
taken as secondary sources for the fulfillment of the objective of this study.
REVIEW
OF LITERATURE-
The review of literature is considered one of the
vital parts of any research paper. This is such a part which helps a lot in
defining the research questions. Many times, particular research has been
conducted on a particular subject to fulfill the research gap. The sources
which have been analysied for this study are mentioned below.
1.
“The
Importance of ADR in criminal Justice system”[7]
by Anushtha Anupriya1 and Anusha C Gudagur is one of the best papers in this
context. In this paper, the author details the role and importance of ADR. All
the concepts which show a refection for adaptation of ADR in the criminal
justice system have been considered by the authors.
2.
A
paper named “ADR as a means of restorative justice in the criminal
justice system: An analytical appraisal”[8]
has been written by Vikrant Sopan Yadav. In this paper, the author has
discussed the restorative justice system, which is based on the core concept
for adopting ADR to criminal jurisprudence.
3.
An
article named “Alternative Dispute Resolution in Criminal Jurisprudence”[9] is
written by Abhishek
Taneja and Abhinav Aggarwal. In this paper, the author tried to mention all the
concepts and principles vis-a-vis ADR.
4.
A
paper named “The Role of ADR Processes in the Criminal Justice System: A
view from Australia”[10]
is written by Melissa Lewis and Les McCrimmon. In this paper, the authors tried
to describe the implementation of ADR in the criminal justice system.
5.
“ADR in Criminal Justice System in India” is written by Kazi Akib Hossain Hossain,[11]
In this paper, the author tries to highlight the importance of ADR in the
criminal justice system of India. The author mentions the concept of plea
bargaining and its advantages in detail in light of ADR in this paper.
6.
Md
Alamin, has written the
article “Introducing
Alternative Dispute Resolution in Criminal Litigation: An Overview”[12]. In this article, the author has tried to mention
different criminal ADR programs running throughout the globe. These programs
can make the ADR applicable to our criminal justice system. However, the author
has not made it clear that how far these programmes will be fruitful in Indian
context.
7.
“Criminal Alternative Dispute Resolution: Restoring Justice, Respecting
Responsibility, and Renewing Public Norms”[13]
is written by Maggie T. Grace. In
this paper the author had tried to implement the restorative justice system in
the criminal trial. However, the author had not mentioned to what extent this
can be implemented in a criminal trial.
8.
“An Insight into the Applicability of Plea Bargaining in India in Light
of Judicial Pronouncements”[14] is written by Mohammad Ashraf and
Absar Aftab Absar. In this paper the authors try to mention the importance of
plea bargaining in a criminal trial through different judicial pronouncements.
The concept of plea bargaining is the basement for the implementation of the
ADR mechanisms in the criminal justice system of a country like India.
9.
Melissa Lewis & Les McCrimmon, have written
a paper named “The Role of ADR Processes in the Criminal Justice System:
A View from Australia”. In this paper, the author has considered the
country of Australia to research the abovementioned research title.[15]
10. Marty
Price, has written an article named “Crime and Punishment: Can
Mediation Produce Restorative Justice for Victims and Offenders?”[16]
The author described a new approach to solving the criminal trial without
further delay. However, the author could not express the impact of adopting the
mediation process in a grave or heinous crime.
11. A book written by Madabhushi Srishar
named “Alternative Dispute Resolution (Negotiation and Mediation)” is
one of the best books on the research title. In chapter number the author has
highlighted a topic named “ADR in Criminal Cases”. In this chapter, the
author mentioned the importance of ADR in criminal cases and considered
different country's ADR mechanisms to understand its impact on criminal cases.
12. “State
of Uttar Pradesh v. Chandrika”[17].
In this case, the court has analysed the importance and use
of plea bargaining in criminal cases. The concept of plea bargaining is the basis
for adopting ADR mechanism in a criminal trial. At the same time, the court has
made it clear that the application of plea bargaining also negatively impacts
criminal cases. The court has made it clear that a balance should be drawn
between the merit and demerits of application of plea bargaining in a criminal
case.
13. In the case of “Afcons
infrastructure and Ors. v. Cherian Varkey Construction and Ors,”[18]
the hon’ble court has made it clear that ADR should not be used as a mechanism
to resolve criminal cases. The court had given a negative comment for the
implementation of the ADR in criminal cases in Indian context.
14. A paper named “Victim-Offender Mediation Programs: An
Exploration of Practice and Theoretical Frameworks”,[19]
is written by John R. Gehm. In this paper the author tried to highlight the
Victim- offender Meditation program, which is one of the alternatives to a
criminal trial. However, the author could not clarify to which offenses it can
be applied.
RESEARCH GAP-
·
The
abovementioned literature made it clear that adoption ADR in criminal cases is
important in reducing the backlog of cases. However, none of the author had
made it clear to what extent the ADR mechanism can be adopted. So, it is in
question whether we can make the ADR applicable in serious and heinous crimes.
·
Statutory
provisions and Limitations of adopting ADRs in the Criminal justice system has
not been highlighted in any of the literature that has been reviewed.
·
None of the authors has
taken the other countries' jurisdiction Vis-Ã -vis Indian jurisdiction for the
application of ADR in criminal cases. So, the literature in the abovementioned
title is silent about comparative analysis.
· None of the writers made any suggestions that can eradicate the shortcomings in the long run and better implications of ADR in the Indian criminal justice system.
|
CHAPTER-02 |
2. ADR, AND ITS IMPORTANCE OF ADR
IN THE CRIMINAL JUSTICE SYSTEM
2.1) ADR, AND IT’S IMPORTANCE OF ADR IN
THE “CRIMINAL JUSTICE SYSTEM”.
In simple
words, ADR means a way of settling the dispute outside the court, or we can say
outside court settlement. The process of settling disputes between two or more
disputing parties, typically outside of court and without adhering to rigid
litigation processes, through mediation, arbitration, or negotiation
is known as alternative dispute resolution, or simply ADR.
The
judiciary is the most important organ of a government. The judiciary exists to
settle all types of conflicts and to uphold the rights of the innocent by
punishing offenders in an unbiased and independent manner. The judicial system
is flooded with awful number of litigations. It is one of the reasons why
people are losing faith in Indian courts. In order to lighten the load on the
courts, Alternative Dispute Resolution is one such mechanism that has been
adopted in modern Indian judiciary.[20]
2.2) “ADR IN THE CRIMINAL JUSTICE SYSTEM OF
INDIA”
Due to the
fact that crime is seen as an offense against the State rather than the victim,
the application of ADR in criminal cases is relatively limited. Additionally,
only the State has the authority to deal with it. With the Norman invasion of
Britain in the 12th century, this type of system arrived. Western Law had
previously considered a crime a disagreement that needed to be resolved between
a victim and an offender.[21] This may cause the perpetrator to
become aware of his wrongdoing, repent, as well as to help him understand the
tragedy, or mend his wounds.[22]
ADR is
increasingly being used in criminal trials. Because it is not only more time
and money efficient than other options, but also because there is a
considerable backlog of cases in Indian courts, it has become the new trend. As
a result, ADR must offer a straightforward and efficient means of case
settlement.[23]
2.2.1) RETROSPECTIVE JUSTICE AND ADR
According to
Tony Marshall “Restorative justice is a process wherein parties having an
interest in a specific offense collectively agree how to deal with the
aftermath of that offense and its ramifications for the future,”[24]
Restoring
the relationship between the disputing parties—in criminal cases, between the
offender and victim—is the main objective of restorative justice. ADR, and
mediation in particular, focuses on settling issues between the parties and
upholding their amicable relationships. Therefore, it is the ideal tool for
administering restorative justice in criminal cases.[25]
2.2.2)
PLEA-BARGAIN
The
Plea-bargaining or Plea-deal, which is essentially a negotiation that takes
place before to trial between the prosecution and the accused, is another
highly prevalent ADR process that we may observe in criminal cases.[26]
A plea bargain refers to the agreement reached by the prosecution and defence
in a criminal case about the accused's plea. The accused does this in front of
the judge, changing his plea from not guilty to guilty and accepting the
prosecution's offer that, if he enters a guilty plea, his sentence will be
reduced.[27]
Additionally,
in order to cope with the enormous backlog of criminal cases, the
Malimath Committee Report backed the Law Commission's 154th Report's
recommendation to include “plea bargaining” as an alternate
strategy. Sections 265A to 265L
of the specific chapter on plea bargaining deal with this topic. This approach
could lighten the load on criminal courts and allow them to make decisions
about criminal matters quickly and without delay. It was a crucial first step
in the criminal cases system’s adoption of ADR.[28]
2.2.3)
MEDIATION IN CRIMINAL CASES
Through
mediation, parties can resolve their differences in a way acceptable to them.
Both parties have the freedom to leave the mediation at any moment, and they
are not required to give a reason. It is a party-centered procedure since
parties actively and directly participate in the mediation process to resolve
their conflict. Numerous ADR techniques are used in the criminal court system,
including Victim/Offender. Victim assistance programs, victim-offender panels,
mediation, family group conferencing, Community-based programs to reduce crime,
sentencing circles, ex-offenders, community service, plea agreements, and
educational initiatives not often associated with the criminal cases system
justice.[29]
2.2.4)
LOK ADALAT
In general,
“Lok Adalat” means ‘People's court.’ Lok Adalat is a cutting-edge ADR process
created by India for peacefully settling disputes. Cases are forwarded for
prompt justice among the parties prepared to settle their issues amicably.
For the
purpose of resolving conflicts, Lok Adalat combined conciliation and
negotiating techniques; also, there are no court costs associated with Lok
Adalat.[30]
|
CHAPTER-03 |
3) A COMPARATIVE ANALYSIS AND
LIMITATIONS. (ADR IN OTHER COUNTRIES JURISDICTIONS ALL OVER THE WORLD)
3.1) “UNITED STATES OF AMERICA”:
While dealing with criminal matters in the US, the
process of an alternate dispute resolution tool that is often used is mediation
known as ‘Victim- offender Mediation’. In this process, the
offender and the victim are brought in person under the law-abided supervision
of the mediator. The process of mediation may commence at any time during the
investigation, but in general, it is observed that most of them are done with
the involvement of the court. The government of the USA, through the US
Department of Justice, has conducted a survey and found that one-third of
criminal cases go to mediation before a finding of formal guilt, while half of
these are referred to after the discovery of the same. The cases of saviour
nature, such as serious assault and homicide, have been successfully dealt with
by ADR. [31]
3.2) CANADA:
Canada witnessed a cultural shift in the 1980s and
1990s from traditional courts to alternate dispute resolution. It was a time
when the country felt the need for other dispute settlement options along with
the adversarial approach that was being used in traditional judicial court
proceedings. The working structure of the same is that, all the stakeholders, which
consists of the judges, prosecutor, defence council, police personals, victim,
offender and the respective family and aquntances of victim and offender
sitting on a round table. The process of same is generally available to those
who have already pled guilty. The outcome obtained through the round table
discussion is submitted to the judge. The judge is not obligated to participate
directly, and the outcome is also not binding on the court. The process is the
best example of how an ancient judicial framework with required changes could
be used for maximum fruitful outcome. Here, in this process, the judicial
officers are sharing powers along with community members for the betterment of
society.[32]
3.3) LIMITATIONS OF ADR IN CRIMINAL JUSTICE SYSTEM:
The limitations in accordance with applicability in
the criminal jurisprudential system are as follows:
- The mechanism of ADR could only be applied to
such offences which were compoundable in nature, according to the First
Schedule of The Code of Criminal Procedure, 1973.[33]
- Dispute is one of the most essential factors
for ADR to commence. In certain criminal cases, like negligent driving,
drunken driving, medical negligence, etc., the ADR process couldn’t be
initiated. Such an offense limits the operation of ADR as there is no
dispute between the victim and perpetrator.
- Their lies very limited scope of appeal in the
process of arbitration. One exception to this rule is ‘fraud’ in the
course of the same.
- Some clauses of the Arbitration and Conciliation Act, 1996 are broad while, on
the other hand, some are narrow.[34]
|
CHAPTER-04 |
4) ADR
AND STATUTORY PROVISIONS.
4.1)
STATUTORY PROVISION
Section
265-C specifies the procedural requirements that the court must adhere to in
order to reach a mutually satisfactory resolution (Guidelines for Mutually
Satisfactory Disposition). In a case presented on the basis of a police report,
the court notifies the interested public prosecutor, the case's investigating
officer, the victim, and the accused to attend the meeting to work out an
agreeable settlement of the case. In a complaint matter, the court only
notifies the accused and the victim. Article 265-D (Report of the Mutually
Satisfactory Disposition)
4.2) JUDICIAL
PRONOUNCEMENTS
The Hon'ble
Supreme Court in “Murlidhar Meghraj Loya v. the State of Maharashtra” [35]opposed the concept of plea
bargaining because it violates the fundamental right of a person accused of an
offense not to be forced to be a witness against themselves.
In “Kasambhai
v. State of Gujarat & Kachhia Patel & Shantilal Koderlal v. State of
Gujarat and Anr”, the supreme court stated that plea bargaining is
against public policy while criticizing and regretting the deal the magistrate
accepted. Plea bargaining, according to the court, is also ultra-vires to
society and the Constitution. It may also encourage cooperation and corruption
and taint the pure well of justice.[36]
However, the
154th law commission has suggested that the concept of plea
bargaining must be included in the criminal cases of India. This will act as an
alternate to the traditional method of dispute resolving mechanism. However, it
restricts the application of plea bargaining where the offence affects the
socio-economic condition of the society and it has been committed against a
female or a child below the age of 7 years.
However, in
many cases, it has been found that the court wanted to adopt the concept of ADR
in criminal jurisprudence. In the case of “K. Srinivas Rao v. D.A. Deepa” the court held that a complaint filed
under section 498-A IPC is non-compoundable. Then also, it can be sent for
settlement outside the courtroom. The parties to the case can go for settlement
of their dispute through mediation centres.[37]
In the case of “Parbatbhai Bhimsinhabhai
Karmur v. the State of Gujarat” Justice D. Y Chandrachud had mentioned the
matter which are only private dispute having a civil favour can be settled
outside the court room or through the process of mediation. [38]
|
CHAPTER-05 |
CONCLUSION
India has moved forward from not adopting ADR
mechanisms to accepting the same. This was done through the addition of plea
bargaining in the Code of Criminal Procedure, 1973. Apart from that, the
criminal legal system has started to permit the settlement of petty offense
matters through mutual settlements. The system of ADR is one of such discovery
that the country is using in its past and now the time has come when we need to
get them back with required modification for the greater good of the society.
There has been wide use of ADR tools in civil matters, but there is a huge
potential for using them to settle criminal matters as well. It is one of those
things which have the tendency to solve matters outside of court and become the
‘New Normal’.
SUGGESTION:
1) ADR as a redressal mechanism in
criminal cases could be used in compoundable cases. All such cases are less
serious in nature and they have to go with the same traditional court
proceedings which takes awful amount of time resulting in harassment to the
accused and compilation of cases on judiciary.
2) There must be a committee formed which
will go through the Indian Penal Code, 1860 and discover what offences, apart
from those which are in the list of compoundable cases in the first schedule of
the “Code of Criminal Procedure, 1973”, could be permitted to be tried by ADR
mechanisms.
3) There must be a committee formed which
should consist of judges, lawyers, police officers, jurists, academicians,
social workers, NGO’s working in this field, and ordinary people. And, based on
the feedback, the law must be reframed to maximize the use of ADR in criminal
cases.
4)
Constitute independent prosecution authority to
eliminate and shift charges at threshold and rationalise sanctioning and
withdrawing prosecution in certain cases.
5)
Institutionalise plea discussion or plea
management or plea advising, and provide for plea bargaining.
6)
Enlarging the scope of compounding of offences
by redrafting section 320 of the CrPC with thorough reforming of the two tables
of offences compoundable with and without permission of the courts.
7)
The concept of a sentencing circle, in which all stakeholders, including
the judges, prosecutor, defence council, police personnel, victim, offender,
and their respective families and acquaintances, sit around a round table,
should be introduced. The process of sentencing circle is generally available
to those who have already pled guilty. The outcome obtained through the round
table discussion is submitted to the judge. The judge is not obligated to
participate directly, and the outcome is also not binding on the court.
8)
The trial court shall have the power to refer the criminal matter to be
dealt with ADR Mechanisms. Only when, in the opinion of such a court, it is
observed that the matter could be dealt with free and fair procedure and the
result would be more convenient for both victim and offender, along with the
judicial system.
9)
The High Court shall use its jurisdiction under Section 482 of the Code
of Criminal Procedure, 1973 to refer the case to ADR Mechanisms for desired
results.
[1] Scott Baker & Claudio Mezzetti, Prosecutorial resources, plea bargaining,
and the decision to go to trial, 17 J.
Law, Econ. Organ. 149 (2001).
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[18] Afcons
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[20] Kazi Akib Hossain, ADR
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[21] Ric Simmons, PRIVATE
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[22] Id.
[23] “Fisher George, Plea
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[28] Chairman Mr. Justice M. P.
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[29] Sopan and Professor, supra note
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[30] Id.
[31] “Sanu Rani Paul, The
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[32] Scott Baker & Claudio
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[33] Dr. Pradeep K.P, supra
note 28.
[34] Hossain, supra
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[35] V.R. Krishnaiyer, Murlidhar Meghraj Loya v. the State
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[36] JJ. KULDIP SINGH AND YOGESHWAR DAYAL, Kasambhai v.
State of Gujarat & Kachhia Patel (1980 AIR 854) (1980),
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[37] J. Smt. Ranjana Prakash Desai, K. Srinivas Rao v. D.A.
Deepa, (AIR 2013 SC 2176)” (2013).
[38] D Chandrachud & M Khanwilkar, Parbatbhai
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Authors-
1) Ashutosh Nath,
2) Chhatrapal Singh,
3) Anurag Kumar.
Symbiosis Law School, Hyderabad.
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