Adr in Criminal Admin of Jusitce

RESEARCH MONOGRAPH
ON
“ADR IN CRIMINAL JUSTICE
ADMINISTRATION.”
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TABLE OF CONTENTS PAGE
1
NO.
Chapter- I
Introduction:
Alternative Dispute Resolution (ADR) is an

alternative route for reaching a speedier and less-
expensive mode of settlement of disputes. It
includes mediation, settlement of disputes,
arbitration and other ways that are voluntary and
not compulsory.
Most countries of the world have adopted ADR
mechanism and achieved tremendous success in
reducing backlog and increasing access to justice
for the poor.
What is ADR?
The term “alternative dispute resolution” or
“ADR” is often used to describe a wide variety
2
of dispute resolution mechanisms that are short
of, alternative to, full-scale court processes or
judicial process. In other words, when disputes
between parties are resolved through means
which are alternative to formal litigation, this is
called alternative dispute resolution. ADR is a
process which may be freestanding (non-
judicial) or court annexed (judicial), binding or
non-binding, formal or informal, mandatory or
voluntary in nature. It is to be emphasized that
the term ‘ADR’ is misleading in a sense that it is
not always alternative to formal litigation and
very often it is a part of litigation particularly for
those ADR process which are court connected.
Professor Thomas J. stipanowich states that the
name ADR is an outmoded acronym that
survives as a matter of convenience only. A
California task force observed, “not only is
3
‘alternative’ unhelpful-alternative to what?- but
“appropriate” better conveys the concept of
“method best suited to resolving the dispute”.
Professor Jean R. Sternlight has preferred the
phrase ADR as “Appropriate Dispute
Resolution” rather than “Alternative Dispute
Resolution”
Chapter II
HISTORY OF LAW ALTERNATIVE
DISPUTE RESOLUTION (ADR)
Origin of ADR
As a means of non adversarial system, alternative
dispute resolution (ADR) is a buzz phrase and
much talked about mechanism at almost every
legal system varying from adversarial to
inquisitorial one. ADR as a consensual form of
dispute resolution is being practiced almost in all
disputes from family to business except grievous
4
criminal issues and also has proven to be
effective mechanism for dispensation of justice.
It refers the ways of settling disputes outside of
the traditional court room setting and also within
court as a format of court sponsored one with and
without the intervention of the court. Over the
ages, the disillusionment and frustration of
people over the cost, inordinate delay in
dispensation of justice through judicial dispute
resolution (JDR) looms large as a great threat to
erode the confidence of people in the justice
system expanding the use and scope of ADR.
The means of JDR can be traced throughout
history in various laws and religious codes over
the past 5000 years, starting with the laws of
Hammurabi, a Babylonian ruler from about 2500
BC while the ADR perhaps can be founded even
long before the development of code and laws
5
but with the existence of human being in the
earth. The basis for JDR is to determine the
rights and obligations of the parties and award
the winners and also punish the losers reflecting
a zero some theory of game while the basis of
ADR is social consciousness and moral
obligation with voluntary participation to settle
the disputes to restore social harmony and peace.
The philosophical basis of ADR is perhaps
drawn from Confucianism which in a phrase
‘calling for ruling by virtue’ during 551-478 BC,
although the Chinese predisposition to seek
dispute resolution through ADR as opposed to
litigation is rooted in at least three sources viz.
Confucian philosophy, the unavailability and
inadequacy of the court system, and a social
structure that emphasized small, stable units.
6
In ancient China, inspired by Confucianism,
ADR became the primary method of settling
disagreements. The philosophy of Confucius,
was, in essence, one of harmony, of peace and of
compromise and according to him the best way
of resolving disagreement or dispute is by moral
persuasion and compromise instead of by
sovereign coercion. Chinese agreed that the
foundations of the community are ethical rules
which require that the state of a natural harmony
in human affairs should not be disrupted. These
are based on the strong belief that laws are the
not the appropriate way to regulate daily life and
hence should only play a secondary role
reflecting ancient adages of China i.e. ‘in death
avoid hell and in life avoid the law courts’ and
also ‘going to court means getting a goat selling
a cow’.
7
Experience of Developed Countries
All countries, following the common law system,
have faced this problem of delay and excessive
expenses in the disposal of civil cases at some
point or the other in their respective legal history,
as also the problem of apathy of judges and
lawyers. Developed countries like the U.S.A.,
Australia and Canada have witnessed a few
decades back huge backlog of cases, excessive
legal costs and expenses and litigants’ misery, as
we are witnessing now in our country.
Lawyers and judges of developed countries did
not look upon the Government to solve what was
essentially a problem of administration of justice
that concerned lawyers and judges themselves. In
many areas of these countries, some thirty plus
years back, public-spirited judges and lawyers
put their heads together and devised a common
8
strategy to solve the problem of huge backlog of
cases, delay in the disposal of cases and
excessive expenses in litigation.
Their Perception of Adversarial System
What they found was that the adversarial system
prevalent in common law countries were no
longer adequate to address the growingly
complicated technical legal problems of modem-
day litigation. The adversarial system creates two
mutually contending, exclusive, hostile,
competitive, confrontational and
uncompromising parties to litigation. This
system does not generate a climate of consensus,
compromise and co-operation. As litigation
progresses it generates conflict after conflict. At
the end of litigation one party emerges as the
victor and the other party is put to the position of
the vanquished. Adversarial litigation does not
9
end in a harmony. It creates more bitterness
between the parties that manifests itself in more
litigation between them or even their successors.
However, judges and lawyers of developed
countries found that the alternative is not to do
away altogether with the adversarial system. The
adversarial system plays a positive role too. It
settles through adversarial hearing complicated
and disputed questions of fact and law. The law
that superior courts lay down to be followed by
subordinate courts and tribunals can never be
arrived at without following the adversarial
procedure. Any court cannot lay down any law
by way of compromise, consent or consensus of
parties to litigation.
Their Adoption of Consensual System as an
Alternative not Substitute
10
Beyond the territory of complicated questions of
fact and law there lies a vast area of litigation
where the adversarial system must yield to a
consensual type of dispute resolution, even
though there are complicated technical legal
problems in this vast area as well. The
consensual type is essentially a type and a
process of dispute resolution that requires judges,
lawyers and the litigant public to change their
century’s old mind-set and to adjust gradually to
play a combined and co-operative role in the
resolution of disputes. In an adversarial system a
judge has a passive role to play. He/she will take
the evidence as it comes, hear the parties and
deliver his/her judgment without getting involved
in the entire dispute resolution process. In a
consensual system the judge, the lawyers,
litigants and outside mediator or evaluator are all
11
active parties to the resolution of dispute. It is
informal, confidential, speedy and less
expensive. It preserves the jurisdiction of the trial
court to try the case on merit, if A.D.R. fails.
Chapter III
Purpose of ADR:
The ADR Practitioners’ Guide spells out how
ADR can serve different objectives.It explains
that ADR systems may be designed tomeet a
wide variety of different goals.Some of these
goals are directly related to improving the
administration ofjustice and rule of law.Some,
however, are related to other development
objectives,such as economic restructuring, orthe
management of tensions and conflicts in
communities.Efficient dispute resolution
procedures may be critical to economic
12
development objectives where court delays or
corruption inhibit foreign investment and
economic restructuring.
Purposes in the context of Rule of Law:
Within the context of rule of law initiatives,ADR
programs can:
1.Support and complement court reform;
2.By-pass ineffective and discredited court
system and procedure;
3.Increase popular satisfaction with dispute
resolution;
4.Increas access to justice for disadvantaged
group;
5.Reduce delay in the resolution of dispute;
6.Reduce the cost of resolving dispute;
Purposes in the context of other developments:
In the context of other development
objectives,ADR programs can:
13
1. Increase civic engagement and create public
processes to facilitate economic restructuring and
other social change;
2. help reduce the level of tension and conflict
in a community;
3. Manage disputes and conflicts that may
directly impair.
ADR can help accomplish rule of law objectives:
ADR programmes may support and complement
court reforms by:
(i) removing case backlog which impairs court
effectiveness.
(ii) Assisting illiterate or poor who cannot afford
can better or manage their way within them.
(iii) Introducing small informal systems which
can better reach geographically dispersed
population.
14
ADR programs can support a mission objective
to reform the court stystem in several ways. ADR
can be used by the judiciary to test and
demonstrate new procedures that might later be
extended to or integrated with existing court
procedures. ADR systems can be created as an
option within the judicial system, either
associated with the courts as a way of managing
existing caseloads, or separate from the courts to
provide dispute resolution for conflicts or
constituencies not well served by the courts.
ADR may be a mode of providing Justice for
populations not well-served by the courts:
In South “Africa, India, and Bangladesh, ADR
programs were developed to by-pass corrupt,
biased, or otherwise discredited court systems
that could not provide reasonable justice for at
least certain parts of the population (backs, the
15
poor, or women). In Sri Lanka, the reputation of
the courts is relatively good, but they were
ineffecgtive in resolving many local and small
disputes because of high costs and long delays.
The Mediation Boards there have evolved as a
substitute for the courts, but enjoy the support of
the judicial system. Bolivia, Haiti, Ecuador, and
El Salvador are developing systems involiving
government support for independent, local,
informal dispute resolution panels to serve parts
of the population for whom the courts are
ineffective.
ADR can increase satisfaction of disputants with
outcomes
High cost, long delay, and limited access
undermine satisfaction with existing judicial
processes.
16
Cultural norms emphasize the importance of
reconciliation and relationships over “winning’
in dispute resolution.
Considerations of equity indicate that
creativity and flexibility are needed to produce
outcomes satisfactory to the parties.
Low lrates of compliance with court
judgments (or a high rate of enforcement actions)
indicate a need for systems that maximize the
likelihood of voluntary compliance.
The legal system is not very responsive to
local conditions or local conditions vary.
When evaluations of ADR systems have
included an assessment of overall user
satisfaction, the ADR systems have generally
compared favorably to formal legal structures.
ADR programs can increase access to justice for
disadvantaged groups:
17
Use of formal court systems requires
resources unavailable to sectors of the
population.
Formal court systems are biased against
women minorities, or other groups.
Illiteracy prevents part of the population
from using formal court systems.
Distance from the courts impairs effective
use for rural populations.
Reducing the cost to parties:
Many poor are denied access simply because
they cannot afford to pay the registration and
representation fees necessary to enter the formal
legal system. ADR system can help reducing this
cost.
Reducing the formality of the legal process:
Several studies indicate that the formaligty of
court stystems intimidates and discourages use.
18
In India and Bangladesh, for example, the court
requirement of legal representation is both costly
and intimidating for people who may not be
comfortable interacting with lawyers from a
different caste or class. All of these factors
contribute to greater usage of and preference for
informal processes.
Overcoming the barrier of illiteracy :
In some countries, access is effectively denied
because the formal system requires a level of
literacy that many in the country do not have. In
these countries, the formal legal processes are
especially intimidating for large numbers of
illiterate citizens. In Bangladesh, the Madaripur
Legal Aid Association was originally established
to provide assistance and representation for the
poor and illiterate.
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ADR programs can reduce delay in the resolution
of disputes :
Delays are caused by complex formal
procedures.
Court resources are insufficient to keep up
with case backlog.
Delays are endemic in most court systems
throughout the world and affect a number of
development objectives. In some cases, delays
are so extreme that they effectively deny justice,
particulary to disadvantaged groups who may not
be able to “grease the wheels” of the justice
system. In other cases, delays in the resoluation
of commercial disputes impair economic
development and undermine the efficiency of the
economy. Informal dispute resolution (mediation
and settlement programs), or simplified
procedures for dispute resolution (arbitration
20
systems), can significantly reduce dispute
resolution delay, and indirectly reduce court
backlog by redirecting cases that would
otherwise go to court.
Chapter IV
Types of ADR in Criminal Cases:
ADR in criminal cases may be of two types:
compounding of offences and plea bargaining. In
Bangladesh section 345 of the criminal
Procedure Code provides for in-built provisions
in for compounding although there is no such
provision of plea bargaining in the Code.
PLEA BARGAINING.
Plea bargaining may be defined as an agreement
in a criminal case between the prosecution and
the defence by which the accused changes his
plea from not guilty to guilty in return for an
21
offer by the prosecution or when the judge has
informally made the accused aware that his
sentence will be minimized, if the accused pleads
guiltyin other words, it is an instrument of
criminal procedure which reduces enforcement
costs (for both parties) and allows the prosecutor
to concentrate on more meritorious cases.
Types of Pea Bargaining:
’Plea Bargaining’ can be of two types. Charge
bargain and se ntence bargain. Charge bargain
happens when the prosecution allows a defendant
to plead guilty to a lesser charge or to only some
of the charges framed against him. Prosecution
generally has vast discretion in framing charges
and therefore they have the option to charge the
defendant with the highest charge that are
applicable. ‘Charge Bargain’ gives the accused
an opportunity to negotiate with the prosecution
22
and reduce the number of charges that may have
framed against him. As far as sentence bargain is
concerned, it happens when an accused or
defendant is told in advance what his sentence
will be if he pleads guilty. A sentence bargain
may allow the prosecutor to obtain a conviction
in the most serious charge, while assuring the
defendant of an acceptable sentence.
How does the System of Plea Bargaining
operate?
For this topic it would be helpful to discuss the
Indian provisions of plea bargaining. A new
chapter, that is chapter XXIA on ‘Plea
Bargaining’, has been introduced through the
Criminal Law (Amendment) Act, 2005. Features
of this scheme are as under:
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1. A person accused of an offence may file an
application for Plea Bargaining in the court in
which such offence is pending for trial.
2. The court, on receiving the application, must
examine the accused in camera to ascertain
whether the application has been filed
voluntarily. The court must then issue notice to
the Public Prosecutor or the complainant to work
out a mutually satisfactory disposition of the
case. The negotiation of such a mutually
acceptable settlement is left to the free will of the
prosecution (including the victim) and the
accused. The complainant and the accused are
given the case, which may include giving to the
victim by the accused, compensation and other
expenses incurred during the case.
3. Where a satisfactory disposition of the case
has been worked out, the Court shall dispose of
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the case by sentencing the accused to one-fourth
of the punishment provided or extendable, as the
case may be for such offence. If a settlement is
reached, the court can award compensation based
on it to the victim and then hear the parties on the
issue of punishment. The court may release the
accused on probation if the law allows for it; if a
minimum sentence is provided for the offence
committed, the accused may be sentenced to half
such minimum punishment; if the offence
committed does not fall within the scope of the
above, then the accused may be sentenced to
one-fourth of the punishment provided or
extendable for such offence. The accused may
also avail of the benefit under Section 428 of the
Code of Criminal Procedure, 1973 which allows
setting off the period of detention undergone by
25
the accused against the sentence of imprisonment
in plea-bargained settlements.
4. The statement or facts stated by an accused
in an application for plea bargaining shall not be
used for any other purpose other than for plea
bargaining.
5. Once the court passes an order in the case of
‘Plea Bargaining’ no appeal shall lie to any court
against that order.
Limits of Plea Bargaining:

In a country like Bangladesh the provision of
plea bargaining should not be introduced for all
offences. For instance, in India three categories
of offences have been left outside of net of plea
bargaining.
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1. Those offences affecting socio-economic
conditions of this country, which the
Government would notify.
2. The second category of exclusion comprises
offences committed against women.
3. The opportunity category second category of
exclusion comprises offences committed against
women.
4. The third consists of offences committed
against children below the age of 14. Despite
such vast areas of exclusion there are many
offences for which the accused will be entitled to
avail themselves of the advantages of plea
bargain.
Objects of Plea Bargaining:
Although the Indian Supreme Court has time and
again blasted the concept of plea bargaining
when the Government introduced the concept in
27
the CrPC in line with the recommendation of the
Law commission, the court stated in Rajinder
Kumar Sharma and Anr v. The State that the
legislature has introduced plea bargaining under
law so as to benefit such accused persons who
repent upon their criminal act and are prepared to
suffer some punishment for the act. The purpose
of plea bargaining is also to see that the criminals
who admit their guilt and repent upon, a lenient
view should be taken while awarding punishment
to them. The statement of objects and reasons in
the Indian Bill on Plea Bargaining specifies that
the disposal of criminal trials in the courts takes
considerable time and that in many cases trial do
not remitted to judicial custody. Plea bargaining
although not recognized by the criminal
jurisprudence, it is seen as an alternative method
to deal with the huge arrears of criminal cases.
28
In Bangladesh the need and objects of
introducing plea bargaining may be viewed from
the following four aspects:
1. From the viewpoint of public interest (the

criminal justices system as a whole);
2. From the viewpoint of the accused person;
3. From the viewpoint of the prosecutors; and
4. From the viewpoint of the victim of the
offence.
Benefit to Criminal Justice System (Public
Interest):
2. In Bangladesh courts are over burdened with
pending cases, the trial life span is inordinately
long and the expenditure is very high. The
abnormal delays in the disposal of criminal trials
and appeals have been a matter of grate concern
from the view point of administering criminal
29
justice. As of December, 2006 a total of 7,69,582
criminal cases are pending before lower courts
(2,05,211 in Sessions Courts and 5,64,371 in
Magistrates’ courts) against a limited number of
583 judges and magistrates (64 Sessions Judges
98 Additional Sessions Judges, 583 Magistrates
of which all are not trial magistrates). This huge
number of pending cases is a matter of great
concern not only for the state but also for
prisoners reduce this horrendous number of
pending cases as the introduction of the same in
various countries has resulted in tremendous
success.
3. If an accused person in not released on bail,
he rots in the jail custody increasing the already
over crowded prisons which have been
accommodating triple the number of its capacity
of inmates. As of July, 2008, the total number of
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prisoners in 67 prisons in Bangladesh stood at
about 87,011 against a capacity of 27,451. There
are huge number of inmates who cannot bear the
financial burden of taking his case in prison. It is
likely that if plea bargaining is introduced
thousands of inmates would apply for plea
bargaining. With lighter sentence rather than
languishing in jail for an indefinite period.
4. The rate of conviction is very low. Although
there is no official statistics on conviction and
acquittal, one researcher suggests that the
conviction rate in all courts of Bangladesh is
only around 10%. In other words, at the end of
long awaiting trial if majority offenders get
acquittal, the merit-based trial system is bound to
come under serious question. The reasons for this
low rate of conviction is weak, faulty and
manipulated police investigation, inefficient,
31
political and transitory nature of public
prosecutors’ work and large scale corruption
practiced in the law courts by stakeholders.
5. Resources both in the form of finance and
manpower would have to be significantly
increased to provide a country like Bangladesh.
If plea bargaining is introduced, this burden on
the part of the state would be reduced
considerably. Considerable resources of the state
would be saved.
Benefit to the Accused and Prisoner:
1. For most defendants the principal benefit of
plea-bargaining is receiving a lighter sentence
than what might result from taking the case to
trial and losing. Another benefit which the
defendant gets is that they can save a huge
amount of money which they might otherwise
spend on advocates. It always takes more time
32
and effort to bring a case to trial than to negotiate
and handle a plea-bargain. Incentives for
accepting plea-bargaining, as far as judges and
prosecutors are concerned are obvious.
Overcrowded courts do not allow the judges to
try ever case that comes before them. It also
reduces the caseloads of the prosecutors.
2. The defense is saved from the anxiety of
uncertainty of the result of the trial and the cost
of defending the case on the assurance of lighter
known sentence to be suffered by him.
3. If an accused deprived of the privilege of
bail, especially indigent ones, spends long period
in jail custody he may be persuaded to enter a
guilty plea in initiative can be taken by the
prosecutor or the judge in case the accused is
undefended.
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4. Rehabilitation process of offender would be
initiated early.
Benefit to the Prosecutors:
1. The prosecutor is relieved of the long
process of proof, legal technicalities and long
arguments, punctuated by revisional excursions
to higher courts.
2. By using plea bargaining both the
prosecution and judges can save times and avoid
uncertainty of the result of a contested trial in
disposing of criminal cases.
Benefit to the Victim:

Victims would be spared the order of giving
evidence in court, which could be a distressing
experience depending on the nature of the case.
Victim would be benefited in the sense that
accused is at the end of the day coming out with
34
a guilty verdict, although with a lesser
punishment. At present through a long and tiring
saga of trial in lower court, appeal and/or
revision in the accused comes out with acquittal
in almost 90-95% criminal cases, every
languishing hope of the victim is deshed and
very often he or she feels cheated by justice
system itself. In such situation the victim will get
the sense of justice by introducing plea
bargaining.
In view of the above points it is clear that
although plea bargaining is a disputed concept
and it undermines the public’s confidence in the
criminal justice system, we have no other choice
but to adopt this technique like India. The
criminal courts are too over burdened to allow
each and every case to go on trial.
Concerns with Plea Bargaining:
35
First, it is often argued that if plea bargaining is
introduced, the incidence of crime might increase
due to criminals being let-off easily. However,
experience suggests hat this is not true because
the judge or the authority considering the
acceptance or otherwise of the request for
confessional treatment would weigh all pros and
cons and look into the nature of the offence and
exercise its discretion in granting or rejection the
request.
Second, it is also argued that if plea bargaining is
introduced, criminals may escape with impunity
and escape due punishment. This is also not true
because the plea bargaining scheme provides
stigma of conviction would persist always.
36
There are some other concerns with plea
bargaining which are as follows:
1. Involving the police in plea bargaining
process would invite coercion.
2. By involving the court in plea bargaining
process, the court’s impartiality is impugned.
3. Involving the victim in plea bargaining
process would invite corruption.
4. If the plead guilty application of the accused
in rejected then the accused would face great
hardship to prove himself innocent.
Plea Bargaining and Compounding of Offences:
It is sometimes argued that instead of introducing
the provision of plea bargaining expanding the
list of compoundable offences would serve the
purpose of reducing pending cases. However,
extending the list of compoundable offences is
not a wise option. This is because of two main
37
reasons. First, compoundable offences are
essentially those offences which are of private
nature and can be reconciliated in principle with
the victim. Some of them are compoundable with
the permission of the court and some are
compoundable without permission of the court.
Second, compounding of offences has the effect
of an acquittal and there is no admission of guilt
by the accused envisaged in the process. This,
however cannot be applicable to serious
offences. Since a crime is essentially a wrong
against society, a compromise between the
accused and the victim does not ideally serve to
absolve the accused from criminal responsibility
particularly for those offences which are not
private in nature. This is why there is no
alternative to plea bargaining for serious offences
and in this scheme the accused must plead guilty
38
although he will come out with lesser
punishment. It is on this basis that the argument
for extending compoundable offences so as to
allow courts to function expeditiously is
misplaced.
CHAPTER-V
Different types of ADR in Bangladesh:

there are three streams of ADR in Bangladesh:
1. Extra- judicial or community based ADR
(informal);
2. ADR in Quasi-formal systems; and
Formal ADR in different laws are shown in the
diagram below:
Formal ADR in
Bangladesh
39
Code of Civil Procedure (sec. 89A, 89B, 89C
Family courts Ordinance, 1985 (sec. 10)
Muslim Family Laws Ordinance 1961 (sec. 7, 8)
ArtharinAdalat Ain, 2003 (sec. 21, 22)
Negotiation,Conciliation, Arbitration (sec. 210 of

the Labour Code, 2006)
Pre-Litigation
Part of litigation
3.3. Informal ADR in Bangladesh
40
Informal ADR in Bangladesh includes traditional
shalish and NGO modified Shalish. Quasi-formal
ADR includes village court and Board of
Conciliation have originated from the informal
shalish system and this is why they all have been
shown in the following single diagram.
3.4. ADR in different Bangladeshi Laws:
1. The Code of civil procedure, 1908.
2. The Code of Criminal procedure, 1898.
3. The Artha Rin Adalat Ain, 2003.
4. The arbitration Act, 2001.
5. The Bankruptcy Act, 1997.
6. The Muslim Family Court Ordinance, 1985.
7. The Muslim Family Law Ordinance, 1961.
8. The Gram Adalat Ain, 2006.
9. The Settlement of Disputes (Paura Area)
Board Act, 2004.
ADR Under code of civil procedure 1908
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89B. Arbitration.- (1) If the parties to a suit, at
any stage of the proceeding, apply to the Court
for withdrawal of the suit on ground that they
will refer the dispute or disputes in the suit to
arbitration for settlement, the Court shall allow
the application and permit the suit to be
withdrawn; and the dispute or disputes,
thereafter, shall be settled in accordance with
Salish Ain, 2001 (Act No. 1 of 2001) so far as
may be applicable:
Provided that, if, for any reason, the arbitration
proceeding referred to above does not take place
or an arbitral award is not given, the parties shall
be entitled to re-institute the suit permitted to be
withdrawn under this sub-section.
(2) An application under sub-section (1) shall be
deemed to be an arbitration agreement under
42
section 9 of the Salish Ain, 2001 (Act No. 1 of
2001).
89C. Mediation in Appeal.- (1) An Appellate
Court may mediate in an appeal or refer the
appeal for mediation in order to settle the dispute
or disputes in that appeal, if the appeal is an
appeal from original decree under Order XLI,
and is between the same parties who contested in
the original suit or the parties who have been
substituted for the original contesting parties.
(2) In mediation under sub-section (1), the
Appellate Court shall, as far as possible, follow
the provisions of mediation as contained in
section 89A with necessary changes {mutatis
mutandis) as may be expedient.
Modes of ADR in Artharin Adalat Ain:
The Act provides for single mode of ADR and
this is mediation s defined and described in
43
section 22 of the Act. Unlike before the adoption
of the process of mediation is compulsory after
Submission of written statement. Once the
written statement is submitted, the court must
send the suit to appointed lawyer or to ite parties
to settle the suit matter by way of mediation.
ADR in Criminal Cases:
ADR in criminal cases may be of two types:
compounding of offences and plea bargaining. In
Bangladesh section 345 of the Criminal
Procedure Code provides for in-built provisions
for compounding although there is no such
provision of plea bargaining in the Code.
Compounding Offence:
Compounding means compromise or amicable
settlement. In civil proceedings there are
provisions of arbitration, mediation, conciliation
and lots of other compromise between plaintiff
44
and defendants. In criminal proceedings, on the
other hand, the usual rule is that all crimes are
against the state and therefore no compromise is
possible between the offender and the victim
without the intervention of the state. However,
the law on CrPC makes some provisions which
allow some specific offences to be compounded.
Offences which may lawfully be compounded
are mentioned in section 345. An offence created
by a special law is non-compoundable. The court
cannot allow compounding of an offence which
is not compoundable under section 345. Neither
can the offender and the victim make an
agreement to compound, settle or withdraw a
complaint with regard to an offence which is not
mentioned in section 345. If any compounding is
made otherwise than mentioned in section 345,
that compounding will be illegal and section 213
45
and 214 provide punishment for illegal
compounding. Thus for the purpose of
compromise in criminal groups: compoundable
offences and non-compoundable offences.
Offences mentioned in section 345 are
compoundable and the rest are non-
compoundable.
Categories of Compoundable Offences:

Compoundable offences may be of two types:
1. Those which can be compounded without
the permission from the court; and
2. Those which cannot be compounded without
Both the categories have been shown in table
below.
Object of Compounding:
The principle of English law is that the
composition of an offence is illegal if the offence
46
is one of public concern, but lawful if the offence
is of private nature and for which damages may
be recovered in a civil action. This principle is
adopted in our system and the CrPC lays down
the cases which are compoundable. The
tabulation of the offences removes all uncertainty
and must be taken as a complete guide. The
policy of the legislature adopted in section 345 is
that in the case of certain minor offences, where
the interests of the public are not vitally affected,
the complainant should be permitted to come to
compromise with the party against whom he
complains.
Other Conditions about Compounding: There are
some other conditions with regard to
compounding offences under section 345 which
are as follows:
47
1. 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.
2. 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.
3. When the accused has been sent 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 sent or, as the case may be, before which
the appeal is to be heard.
48
4. The High Court Division acting in the
exercise of its powers of revision under section
439 and a Court of Session so acting under
section 439A, may allow any person to
compound any offence which he is competent to
compound under this section.
5. 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.
6. No offence shall be compounded except as
provided by this section. Therefore, offences
punishable under laws other than the Penal code
are not compoundable.
Who can compound?
1. Only the person named in the third columns
of section 345 can legally compound an offence.
Any person may set the criminal law in motion,
49
but it is only the person specified in the third
column who can compound the offence.
2. To constitute a valid composition it must be
shown that the parties were free from influence
of any kind, and were fully aware of their
respective rights. If the consent of a party is
obtained by threat or coercion, there is no valid
composition.
3. When compounding possible?
A case may be compounded at any time before
sentence is pronounced even whilst the
magistrate is writing up the judgment.
Effect of Composition:
It is specifically mentioned in section 345 that
the composition of an offence shall have the
effect of an acquittal of the accused with whom
the offence has been compounded.
50
Compounding without the permission from the
Court:
Section 345(1) provides the list of offences
which can be compounded without permission
from the court. They are as follows:
The offences punishable under the section of the
Penal Code 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. Sections of Penal Code applicable.
Persons by whom offence may be
compounded.
Uttering works, etc, with deliberate intent to
wound the religious feelings of any person.
Causing hurt ….. 298 ,323, 334 The person
whose religious feelings are intended to be
wounded.
51
The person to whom the hurt is caused.
Wrongfully restraining of confining any person.
341, 342The person restrained or confined.
Assault or use of criminal force 352, 355,
358 The person assaulted or to whom criminal
force is used.
Unlawful compulsory labour 374 The person
compelled to labour.
Mischief, when the only loss or damage caused is
loss damage to a private person. 426, 427The
person to whom the loss or damage is caused.
Criminal trespass
House-trespass 447
448 The person in possession of the property

trespassed upon.
52
Criminal breach of contract of service. 490,
491, 492 The person with whom the offender has
contracted.
Adultery
Enticing or taking away or detaining with

criminal intent a married woman. 497
498 The husband of the woman.

Defamation
Printing or engraving matter, knowing it to be

defamatory.
Sale of printed or engraved substance containing

defamatory matter, knowing it to contain such
matter.
53
The person defamed
Insult intended to provoke a breach of the peace.
Criminal intimidation except when the offence is
punishable with imprisonment for seven years.
Act caused by making a person believe that he
will be an object of divine discipline.
The person against whom the offence was

committed.
Compounding with the permission from the

Court:
Section 345(2) provides the list of offences
which can be compounded only with the
permission from the court. They are as follows:
54
The offences punishable under the section of the
Penal Code 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:-
Offence Sections of the Penal Code applicable.
Persons by whom offence may be
compounded.
Rioting 147 The person against whom force or
violence has been used.
Rioting armed with deadly weapon.148 Ditto.
Voluntarily causing hurt by dangerous weapons
or means. 324 The person to whom hurt is
caused.
Voluntarily causing grievous hurt. 325 Ditto.
55
Voluntarily causing grievous hurt on grave and
sudden provocation. 335 Ditto.
Act endangering human life or the personal
safety of others. 336 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.
Wrongfully confining a person in secret. 346
Ditto.
56
Wrongful confinement to extort property or
constrain to illegal act. 347 The person
wrongfully confined.
Wrongful confinement to extort confession or
compel restoration of property. 348 Ditto.
Assault or criminal to women with intent to
outrage her modesty. 354 The women assaulted
or to whom the criminal force was used.
Assault or criminal force in attempt to commit
theft of property worn or carried by a person.
356 The person assaulted or to whom
criminal force is used.
Assault or criminal force in attempting
wrongfully to confine a person.357 The person
assaulted or to whom the force was used.
Theft 379 The owner of the property stolen.
Theft in dwelling house 380 Ditto.
57
Theft by clerk or servant of property in
possession of master 381 The owner of the
property misappropriated.
Dishonest misappropriation of property. 403 The
owner of the property in respect of which the
breach of trust has been committed.
Criminal breach of trust 406
Criminal breach of trust by a carrier wharfing,
etc. 407 Ditto.
Criminal breach of trust by a clerk or servant408
Ditto.
Dishonestly receiving stolen property, knowing it
to be stolen 411 The owner of the property
stolen.
Assisting in the concealment or disposal of stole
n property knowing it to be stolen 414 The
owner of the property stolen.
Cheating 417 The person cheated.
58
Cheating a person whose interest the offender
was bound, by low or by legal contract, to
protect. 418 Ditto.
Cheating by personation 419 Ditto.
Cheating and dishonestly inducing delivery of
property of 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 debt 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.
59
Mischief by killing or maiming animal etc. 428
The owner of the animal.
Mischief by killing or maiming cattle, etc., 429
The person to whom the loss or damage is
caused.
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 is possession of the
house passed upon.
House-trespass to commit an offence (other than
theft) punishable with imprisonment. 451 The
person to whom loss or injury is caused by such
use.
Using a false trade or property mark. 482
Counterfeiting a trade or property mark used by
another 483
60
Knowingly selling, or exposing or possessing for
sale or for trade or manufacturing purpose, goods
marked with a counterfeit trade or property mark.
486
Cohabitation caused by a man deceitfully
including a belief of lawful marriage. 493
Marrying again during the life-time of a husband
or wife. 494
Uttering words 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
Attempting to commit offences punishable with
transportation or imprisonment 511
ADR in the village court Act 2006:

Section 5 specifies hat a Village Court shall
consist of a Chairman and four members. Of
61
these four members two are to be nominated by
each of the parties to the dispute. One of two
members to be nominated by each party should
be a member of die Union Parishad concerned.
However, any party to dispute, with the
permission of the Chairman, may nominate any
person other than the members of the Union
Parishad members of the Village Court.
Sub-section (2) of section 5 states that the
Chairman of the Union Parishad shall be the
Chairman of the Village Court. However if the
Chairman is unable to act as Chairman for any
reason, or if his impartiality is challenged by any
party to the dispute, any other member of the
Union Parishad will become Chairman of the
Village Court.
ADR in the Muslim Family court ordinance 1985
:
62
1. The Family Courts Ordinance 1985 provides
the courts with arms to exercise mediation in
suits pending before it both at the pre trial stage
under section 10 and after close of evidence
following framing of issues and fixing a date of
preliminary hearing under section 13.
2. Another reason for recommending mediation
in Family Courts is that it involves the direct
participation of the parties in dispute. They are
required to meet along with their legal
representatives and other interested persons at
confidential meetings at any time during the law
suit in the presence of a neutral third party who, a
judge, is a trained facilitator at conflict
resolution.
ADR in Labor Act 2006 :
Negotiation:
63
If a dispute is likely between an employer and an
employee, the employer or the CBA shall
communicate the same in writing to the other
party. Within ten days the parties will try to
resolve the matter by way of negotiation; if a
settlement reached, a memorandum shall be
recorded accordingly (Section 210(1, 2, 3)).
Under sub-section 210(4) 30 days time is
allowed to complete negotiation.
Conciliation:
Failing a negotiation under sub-section 210(1, 2),
any party may report to the conciliator that the
negotiation have failed and request the
conciliator in writing to conciliate the dispute
and conciliator shall, on receipt of such request,
proceed to conciliate in the dispute. Under
section 210(6) the conciliator has ten days time
for conciliation.
64
Arbitration:
If conciliation fails the conciliator shall try to
persuade the parties to agree to refer to the
dispute to an Arbitrator. In case the parties agree,
they shall make a joint request in writing for
reference of the dispute to an Arbitrator agreed
upon by them. The arbitrator shall give his award
within thirty days from the date on which the
dispute is referred to him or within such period
as may be agreed upon by the parties. The award
of the arbitrator shall be final and no appeal shall
lie against it (section 210(16)).
ADR under the Muslim Family Laws Ordinance,
1961:
Under this law provision for reconciliation or
alternative dispute resolution through arbitration
council has been provided for in three
circumstances:
65
(i) in case of polygamy under section 6;
(ii) in case of giving talaq and making it effective
under section 7; and
(iii) in case of failure of the husband to provide
maintenance of his wife under section
4. Basic ADR process :
Negotiation, mediation and arbitration are the
most common features of ADR techniques in
Bangladesh. Let us discuss the three important
ways of dispute resolution.
o Negotiation: Negotiation is the process
whereby the parties within the dispute seek to
settle or resolve the dispute. The negotiation
process provides the parties or disputants and
opportunity to exchange ideas, identify the
irritant points of differences, find a solution, and
get commitment from each other to reach an
66
agreement. Bargaining is a common feature of
the negotiation process.
o Mediation: Mediation is simply an extension
of the negotiation process. Mediators are
individuals experienced in the negotiation
process who bring disputing parties together and
make attempts to work out a settlement or
agreement that both parties can accept or reject.
Mediation is used for a wide ganrulof case types,
including interpersonal, local business and
national issues. Mediation is generally
understood as a third party intervention between
conflicting parties to promote reconciliation,
settlement or compromise. Shalish. local process
– combination of negotiation and mediation
process, provides a traditional alternative to
dispute resolution in a community and covers
both civil and criminal cases of varying intensity
67
and degree. Shalish is used in settling 60 to 70%
of local disputes.
o Arbitration: Next to mediation and
negotiation, arbitration is another dispute
resolution tool. In arbitration systems, the court
authorizes a neutral person or a third party to
resolve -the dispute at the place of occurrence.
The Arbitration Act of 1940 was introduced to
settle disputes through this process. But the
practice of arbitration by the courtisnpt popular.
o
5.Advantages of Alternative Dispute Resolution
(ADR)
There are some potential advantages of using
ADR. Such as:
1. Save Time: A dispute often can be settled or
decided much sooner with ADR; often in a
68
matter of months, even weeks, while bringing a
lawsuit to trial can take a year or more.
2. Save Money: When cases are resolved earlier
through ADR, the parties may save some of the
money they would have spent on attorney fees,
court costs, and experts’ fees.’
3. Increase Control over the Process and the
Outcome: In ADR, parties typically play a
greater role in shaping both the process and its
outcome. In most ADR processes, parties have
more opportunity to tell their side of the story
than they do at trial. Some ADR processes, such
as mediation, allow the parties to fashion creative
resolutions that are not available in a trial. Other
ADR processes, such as arbitration, allow the
parties to choose an expert in a particular field to
decide the dispute.
69
4. Preserve Relationships: ADR can be a less
adversarial and hostile way to resolve a dispute.
For example, an experienced mediator can help
the parties effectively communicate their needs
and point of view to the other side. This can be
an important advantage where the parties have a
relationship to preserve.
5. Increase Satisfaction: In a trial, there is
typically a winner and a loser. The loser is not
likely to be happy, and even the winner may not
be completely satisfied with the outcome. ADR
can help the parties find win-win solutions and
achieve their real goals. This, along with all of
ADR’s other potential advantages, may increase
the parties’ overall satisfaction with both the
dispute resolution process and the outcome.
6. Improve Attorney-Client Relationships:
Attorneys may also benefit from ADR by being
70
seen as problem-solvers rather than combatants.
Quick, cost-effective, and satisfying resolutions
are likely to produce happier clients and thus
generate repeat business from clients and
referrals of their friends and associates.
Because of these potential advantages, it is worth
considering using ADR early in a lawsuit or even
before you file a lawsuit,
6.Disadvantages of ADR
Generally ADR are usually faster, and cheaper
than litigation they are also private and informal
when also compared to litigation and it gets both
parties involved in the settlement process and the
decisions are not necessarily final. However
ADR does not alway guarantee an agreed upon
decision and with arbitration the decision is final.
The problems of ADR are given below:
71
1. Unequal Bargaining Power - In certain
situations one side is able to dominate the other,
for example, employment and divorce cases,
making the courts a better option for a weak
party.
2. Lack of Legal Expertise - Where a .dispute
involves”-difficult legal points a mediator or
arbitrator is unlikely to have the same legal
expertise and knowledge as a judge.
3. No System of Precedent - It isn’t easy to
predict the outcome of a dispute decided through
ADR as there is no system of precedent.
4. Enforceability - Most •forms of ADR are not
legally binding, making any award difficult to
enforce.
5. A Court action may still be required - If using
ADR fails to resolve the parties’ dispute, court
action may Still be needed. This adds to the costs
72
and delays compared to taking a dispute direct to
the courts in the first place.
6. No guaranteed resolution- There is no
guaranteed resolution. With the exception of
arbitration, alternative dispute resolution
processes do not always lead to a resolution. That
means it is possible that you could invest the
time and money in trying to resolve the dispute
out-of-court and still end up having to go to
court.
Though there are some disadvantages of ADR, it
is the most easier and swiftest trial process in the
judicial system of any country. So its popularity
is increasing day by day.
73
BIBLIOGRAPHY
1.
http://en.wikipedia.org/wiki/Alternative_dispute_
resolution
2. ADR In Bangladesh; Issues and Challenges-
Barrister MD. Abdul Halim
3. DR. S. R. MYNENI- ALTERNATIVE
DISPUTE RESOLUTION
74
75

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RESEARCH MONOGRAPH

Alternative Dispute Resolution (ADR) is an

Limits of Plea Bargaining:

1. From the viewpoint of public interest (the

Benefit to the Victim:

Different types of ADR in Bangladesh:

Family courts Ordinance, 1985 (sec. 10)

Muslim Family Laws Ordinance 1961 (sec. 7, 8)

ArtharinAdalat Ain, 2003 (sec. 21, 22)

Negotiation,Conciliation, Arbitration (sec. 210 of

3.3. Informal ADR in Bangladesh

Categories of Compoundable Offences:

448 The person in possession of the property

Enticing or taking away or detaining with

498 The husband of the woman.

Printing or engraving matter, knowing it to be

Sale of printed or engraved substance containing

The person against whom the offence was

Compounding with the permission from the

ADR in the village court Act 2006:

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