Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

ACADEMIC SESSION:

2018 – 2019

ALTERNATE DISPUTE RESOLUTION

PROJECT

ADR MECHANISM AND CRIMINAL CASES

Submitted to: Submitted by:

Dr. Shakuntala Sangam Keerti Bharti

Asst. Professor (Law) B.A.LL.B.(Hons.)

RMLNLU VII semester

150101069

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ACKNOWLEDGEMENT
I would take great pleasure in thanking my Alternate Dispute Resolution Law professor,
Dr.Shakuntaka Sangam , for her infallible support all through the course of this project. This
endeavour would not have been in its present shape had she not been there whenever I needed her.
She has been a constant source of support all the while.

Also I would like to extend my sincere thanks to the library staff for always helping me out with
finding excellent books and material almost every time I needed. They too have been a constant
support system in the completion of this project.

Last but surely not the least- I would like to thank my friends for their timely critical analysis of my
work and special feedback that worked towards the betterment of this work.

-KEERTI BHARTI

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TABLE OF CONTENTS

Objectives 4

Significance and scope of the study 4

Review of the literature 4

Research methodology 4

Hypothesis 5

Introduction 5

Definition of ADR 6

Characteristics of ADR 7

Nature of Criminal Justice System in India 8

Problems of Formal Legal System 11

Types of ADR in Criminal Cases 15

Advantages of ADR 15

Disadvantages of ADR 17

Implementation of ADR in Criminal Justice System 17

Victim offender mediation 19

Compoundable offences under 320 and 498(a) of Crpc 21

Conclusion and Suggestions 24

Bibliography 25

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OBJECTIVES

 To point out the problems in the formal legal criminal system

 To enunciate the advantages and disadvantages of introducing an alternative criminal mechanism
 To detail upon the types of ADR mechanisms that can be introduced with regard to criminal cases
along with their appraisal and applicability in Indian scenario
 To suggest necessary steps that can be taken to implement a working model of an alternate dispute
resolution mechanism for criminal case.

SIGNIFICANCE AND SCOPE OF THE STUDY

The scope of the topic ‘Alternative Dispute Resolution Mechanisms and Criminal Cases’ widens up to
the examination and analysis of the need of ADR in the light of the current legal scenario of criminal
cases in India.

REVIEW OF THE LITERATURE

The completion of this paper has required collection of relevant information through a number of law
journals, books by renowned authors on alternative dispute resolution and several websites. Since
ADR is not a new concept, a plethora of information can be found very easily.

RESEARCH METHODOLOGY

This project report is based on analytical and descriptive Research Methodology. Secondary and
Electronic resources have been largely used to gather information and data about the topic.

Books and other reference as guided by Faculty have been primarily helpful in giving this project a
firm structure. Websites, dictionaries and articles have also been referred.

HYPOTHESIS

ADR, though being an ancient means of dispute settlement, cannot be said to be serving the intended
purpose due to several reasons.

INTRODUCTION

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In a rapidly developing society human needs are bound to multiply resulting into conflict of interests.
People become more conscious about their individual rights and litigation becomes an inevitable part
of their life due to rising incidence of disputes among them. The problem is further compounded when
there is lack of discipline in the litigation process and judicial mechanism finds it difficult to cope up
with the enormous caseload. Particularly, in a modern technologically and economically well
advanced society, litigation is a primary means of resolving disputes. When it fails to meet the need of
the people there is oblivious need to search for new alternative methods of dispute resolution. It is in
this context that the alternative modes of dispute resolution have gained primacy in the present
millennium.

The legal system in India is viewed by many as part of ‘colonial legacy’. Undoubtedly, judiciary is the
important institution which has withstood many challenges during the last-more than fifty years to
retain its integrity. But with the mounting pressure of cases especially criminal cases, the workload of
judiciary increased leaps and bound and it has now reached a stage of unmanageable magnitude and
the cases remain undecided for years together for one reason or the other.

The constitution of India ensures “equal access to justice for all”. 1 But the ground reality is that the
law hardly reaches the vulnerable sections of the society here majority of the people are illiterate,
rustic and rural and are ignorant about existence of their legal rights and remedies. And those who are
aware of their right find it difficult to get them translated into reality because of the legal and
procedural ordeals on has to undergo in the process of litigation. The crises therefore, call for an
urgent solution. The cause for such backlog of cases is institutional and the delay in disposal of the
cases is due to procedural laws.2

Unlike the suits and trial cases, Alternative Dispute Resolution (ADR) includes processes that are out
of court proceedings. Due to fact that pendency of court cases and suits have gone through roofs,
ADR has gained paramount significance in almost every civilized dispensation. ADR is generally
classified into at least four types: negotiation, mediation, collaborative law, and arbitration.
Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as
a form of mediation.

1 The preamble to the constitution of India promises to secure socio-economic and political justice and equality
of status and of opportunity to all the citizens. Art. 39-A contains a directive principle which holds that the state
will ensure that the legal system operates in a manner so as to promote justice to all and to ensure that no citizen
is denied the opportunities of securing justice by reason of economic or any other disability. In addition, Art. 14
of Part III of the Constitution ensures” Equality before Law and Equal Protection by Law” to all citizens which
can only be realized by providing “equal access to justice”. The SC also enunciated on this principle in Maneka
Gandhi vs UOI (1978) 1 SCC 248, Sheela Barse v. State of Maharashtra AIR 1983 SC 378 , State of Haryana v.
Darshana Devi AIR 1979 SC 855.
2 [Report on National Juridicare Equal Justice – Social Justice, Ministry of Law, Justice and Company Affairs
(1977)

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A recent trend that can be noticed in the sphere of ADR is its applicability to the criminal matters.
Mediation is the most sought after form of ADR, where the issue of criminal justice is concerned.

DEFINITION OF ADR

Alternative Dispute Resolution (ADR) is a term for describing process of resolving disputes in place
of litigation and includes arbitration, mediation, conciliation, expert determination and early neutral
evaluation by a third person.3 In India, The Arbitration and Conciliation Act, 1996 is a long leap in the
direction of Alternative Dispute Resolution system. It is based on UNCTRAL model. 4Prior to the
enactment of The Arbitration and Conciliation Act, 1996, none of these forms of ADR except
arbitration had any statutory basis in India. Mediation and Conciliation require an independent third
party as mediator or conciliator to assist the parties to settle their disputes. The expert determination
requires independent experts in the subject of disagreement of the parties to decide the case. Such
expert is chosen jointly by the parties and his decision is binding.

The objective of ADR as the phrase itself suggest is to resolve disputes of all sorts outside the
traditional legal mechanism i.e. courts/judicial system. There is a broad spectrum ranging from the
purely consensual mode of resolution of disputes to an executive procedure like arbitration,
conciliation or negotiation. ADR thus offers an alternative route for resolution of disputes. The
emphasis in the ADR, which is informal and flexible, is on “helping the parties to help
themselves”5.The arbitral proceedings being informal, less expansive and relatively speedier, have
proved to be an efficient alternative means for the redressal of disputes and differences between the
parties. Like arbitration, conciliation and mediation as an alternative means of settlement of disputes
also needs to be popularized.

CHARACTERISTICS OF ADR

Although the characteristics of arbitration, mediation, negotiation and other forms of community
justice vary, all share a few common elements of distinction from the formal judicial structure. These
elements permit them to address development objectives in a manner different from judicial systems.
The common characteristics of ADR are given below:

1. ADR operates without formal representation.

2. ADR program applied the doctrine of Equity.6

3 Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.

4 United Nations Commission on International Trade Law (UNCITRAL) prepared a Model Law on
international commercial arbitration in 1985. The General Assembly of the United Nations has recommended
that all member countries should give due consideration to the Model Law, for the desirability of uniformity of
the Law of Arbitral Procedures and the specific needs of International Commercial Arbitration Practice. The
United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Conciliation.
5 Totaro, Gianna., “Avoid court at all costs” The Australian Financial Review Nov. 14 2008.

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 3. ADR system includes more direct participation by the disputants in the process. 7
4. Gives opportunity for communication between the disputants.
5. Neutral case evaluation system.
6. ADR includes early neutral evaluation.
7. Make scope for family group conference.

The nature of ADR mechanisms can be ascertained from the above mentioned characteristics. The
primary object of ADR movement is avoidance of vexation, expense and delay and promotion of the
ideal of “access of justice” for all. ADR system seeks to provide cheap, simple, quick and accessible
justice. ADR is a process distinct from normal judicial process. Under this, disputes are settled with
the assistance of third party, where proceedings are simple and are conducted, by and large, in the
manner agreed to by the parties. ADR stimulates to resolve the disputes expeditiously with less
expenditure of time, talent money with the decision making process towards substantial justice,
maintaining to confidentiality of subject matter. So, precisely saying, ADR aims at providing justice
that not only resolves dispute but also harmonizes the relation of the parties.

NATURE OF CRIMINAL JUSTICE SYSTEM IN INDIA

Under the constitution, criminal jurisdiction belongs concurrently to the central government and the
states. The prevailing law on crime prevention and punishment is embodied in two principal statutes:
the Indian Penal Code and the Code of Criminal Procedure of 1973. These laws take precedence over
any state legislation, and the states cannot alter or amend them. Separate legislation enacted by both
the states and the central government also has established criminal liability for acts such as
smuggling, illegal use of arms and ammunition, and corruption. All legislation, however, remains
subordinate to the constitution.

The Indian Penal Code came into force in 1862; as amended, it continued in force in 1993. Based on
British criminal law, the code defines basic crimes and punishments, applies to resident foreigners and
citizens alike, and recognizes offenses committed abroad by Indian nationals. The penal code
classifies crimes under various categories: crimes against the state, the armed forces, public order, the
human body, and property; and crimes relating to elections, religion, marriage, and health, safety,
decency, and morals. Crimes are cognizable or non-cognizable, comparable to the distinction between
felonies and misdemeanors in legal use in the United States.

6 S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law Publications Allahabad, First
edition, 2012, p.03.
7 Ibid

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Courts of law try cases under procedures that resemble the Anglo-American pattern. The machinery
for prevention and punishment through the criminal court system rests on the Code of Criminal
Procedure of 1973, which came into force on April 1, 1974, replacing a code dating from 1898. The
code includes provisions to expedite the judicial process, increase efficiency, prevent abuses, and
provide legal relief to the poor. The basic framework of the criminal justice system, however, was left
unchanged.

India has an integrated and relatively independent court system. At the apex is the Supreme Court,
which has original, appellate, and advisory jurisdiction. Below it are eighteen high courts that preside
over the states and union territories. The high courts have supervisory authority over all subordinate
courts within their jurisdictions. In general, these include several district courts headed by district
magistrates, who in turn have several subordinate magistrates under their supervision. The Code of
Criminal Procedure8 established three sets of magistrates for the subordinate criminal courts. The first
consists of executive magistrates, whose duties include issuing warrants, advising the police, and
determining proper procedures to deal with public violence. The second consists of judicial
magistrates, who are essentially trial judges. Petty criminal cases are sometimes settled in panchayat
courts.

PROBLEMS OF FORMAL LEGAL SYSTEM

The Formal Legal system to address criminal matters as of now is rigged with the major problems of:

 Awareness: The lack of awareness of legal rights and remedies among common people acts as a
formidable barrier to accessing the formal legal system. Those who are economically and socially
disadvantaged see the entire legal system as irrelevant to them as a tool of empowerment and
survival. The economically disadvantaged litigant stands outside the network of courts. To those
who were unwilling to part with money, these court officials were not prepared even to tell
whether the presiding officer would come and the cases would be heard or not.” The formal
system, as presently ordered, tends to operate to the greater disadvantage of this class of society
which then looks to devising ways of avoiding it rather than engaging with it. Without
fundamental systemic changes, any alternative system, however promising the results may seem,
is bound to be viewed with suspicion. The participatory nature of an ADR mechanism, which
offers a level playing field that encourages a just result and where the control of the result is in the
hands of the parties, and not the lawyers or the judges, would act as a definite incentive to get
parties to embrace it.
 Mystification: The language of the law, invariably in very difficult and complicated English,
makes it unintelligible even to the literate or educated person. Only few attempts have been made

8 Section 6, CRPC, 1973

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 at vernacular sing the language of the law and making it simpler and easily comprehensible to the
person.
 Delays: The greatest challenge that the justice delivery system faces today is the delay in the
disposal of case and prohibitive cost of litigation. Alternative dispute resolution wads thought of
as a weapon to meet this challenge. The average waiting time, both in the civil and criminal
subordinate courts, can extent to several years. This negates fair justice. To this end, there are
several barricades. The judiciary in India is already suffering from a docket explosion. 9 In fact, as
on 31st October 2005, the number of cases pending before the Supreme Court was 253587003.
The huge backlog of cases only makes justice less accessible. The delay in the judicial system
results in loss of public confidence on the confidence on the concept of justice.
 Expenses and Costs: One disincentive for a person to engage with the legal system is the
problem of uncompensated costs that have to be incurred. Apart from court fees, cost of legal
representation, obtaining certified copies and the like, the system fails to acknowledge, and
therefore compensate, bribes paid to the court staff 10, the extra `fees’ to the legal aid 11, the bribes
paid (in criminal cases) to the policemen for obtaining documents, copies of depositions and the
like or to prison officials for small favours. 12 In some instances, even legal aid beneficiaries may
not get services for `free’ after all. 13 In addition, the considerable delay in reaching the conclusion
in any litigation adds to the costs and makes the absence of an effective mechanism for their
recovery even more problematic.

All of the above factors should in fact persuade prospective and present litigants, as well as those
engaging with the formal legal system as judges and lawyers, to reservedly embrace the notion of
ADR, conciliation and mediation.

9 Indian Law Institute, Judicial System and Reforms in Asian Countries: The Case of India, Institute of
Developing Economies, Japan External Trade Organisation (IDE-JETRO), (March 2001) 37. The Parliamentary
Standing Committee on Home Affairs found that as of 2001, there were in 21 High Courts in the country, 35.4
lakh cases pending.
10, V.N.Rajan and M.Z.Khan, Delay in Disposal of Criminal Cases in the Sessions and Lower Courts in Delhi,
Institute of Criminology and Forensic Science, (1982). The authors point out (at 42) “It was seen that those who
greased the palm of the readers and peons were able to get adjournments readily while others waited outside the
court helplessly. To those who were unwilling to part with money, these court officials were not prepared even
to tell whether the presiding officer would come and the cases would be heard or not.”
11 Siraj Sait, “Save the legal aid movement”, The Hindu, June 29, 1997, V: “What is galling is that many sleazy
lawyers who get legal aid cases tell the poor victims that if they want result they must pay them extra over what
the Tamil Nadu Legal Aid Board pays them.”
12 Kumkum Chadha, The Indian Jail: A Contemporary Document, Vikas Publishing Pvt. Ltd., 31 where she
talks of the system of a `setting’ for various tasks involving the prisoner having to depend on the jail official in
Tihar Jail in Delhi: “A minimum `setting’ even for the official to consider the request is Rs.500.”(emphasis in
original) William Chambliss, “Epilogue- Notes on Law, Justice and Society”, in William Chambliss (ed.), Crime
and the Legal Process, McGraw Hill Book Co. (1969) points out (at 421): “When a police force or an entire
legal system is found to be engaged in a symbiotic relationship with professional criminals, the cause of this
unfortunate circumstance is seen as residing in the inherent corruptibility of the individuals involved.”
13 An empirical study of the working of legal aid schemes in Punjab showed that beneficiaries of legal aid
complained that “they were provided only the services of a counsel and nothing beyond” and that they “had to
spend amounts varying between Rs.100 to 900 for their cases in lower courts”: Sujan Singh, Legal Aid: Human
right to Equality, Deep and Deep, (1998), 272.

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TYPES OF ADR IN CRIMINAL CASES

In reference to the criminal justice, the term ADR encompasses a number of practices which are not
considered part of traditional criminal justice such as victim/offender mediation; family group
conferencing; victim offender-panels; victim assistance programs; community crime prevention
programs; sentencing circles; ex-offender assistance; community service; plea bargaining; school
programs. It may also take the shape of cautioning and specialist courts (such as Indigenous Courts
and Drug Courts) or Lok Adalats and Panchayats. These types of ADR mechanisms along with their
appraisal and applicability in Indian scenario have been further detailed upon.

1. 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 offer by the
prosecution or when the judge has informally made the accused aware that his sentence will be
minimized, if the accused pleads guilty. 14In 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.15 The concept of plea bargaining prevails in England, Canada, and most of the other
nations of the British Commonwealth. Earlier Germany was referred to as “the land without plea
bargaining”. Subsequently, due to time-taking trials and increasing white-collar crimes in Germany,
the system of plea bargaining was instituted by statute. 16 In United States of America, plea bargaining
has a vital role to play. White J, in a US case of Brady v. Unites States17 observed the validity of plea
bargaining and upheld its validity. In India, keeping in mind that the pendencies of criminal cases
have gone through the roofs, the Law Commission of India in its 142 nd report suggested reform, which
included implementation of plea bargaining in India. 18 Further, to reduce the delay in disposing
criminal cases, the 154th Report of the Law Commission 19 recommended the introduction of ‘plea
bargaining’ as an alternative method to deal with huge arrears of criminal cases, which found a
support in Malimath Committee Report.20 To give effect to the recommendations, the draft Criminal

14 Sidhartha Mohapatra and Hailshree Saksena, Plea Bargaining: A unique remedy, INDLAW NEWS.COM,
http://www.indlawnews.com/display.aspx?4762
15 Id.
16 K.P. Pradeep, Plea Bargaining- New Horizon in Criminal Jurisprudence, available at http://kja.nic.in/ article/
PLEA%20BARGAINING.pdf.
17 397 U. S. 742 (1970), also available at JUSTIA: US SUPREME COURT CENTRE http://supreme. justia.co
m /us/397/742/case.html
18 LAW COMMISSION OF INDIA REPORTS (101–169), http://lawcommissionofindia.nic.in/101-
169/index101-169.htm
19 Report of the Law Commission, India on the “Code of Criminal Procedure, 1973”
20 Report of Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home
Affairs, March 2003

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Law (Amendment) Bill, 2003 was introduced in the parliament. Despite a very huge hue and cry
against the amendment, the amendment was accepted and with the effect of same, Chapter XXIA was
added in the Code of Criminal Procedure, 1973. The said chapter contains Sections 265 A to 265L,
which deal with plea bargaining.

2. Criminal ADR Programs

As far as the development of Criminal ADR procedures is concerned, it took birth from earlier
“informal justice” programs. 21 There are various criminal ADR programmes that are running
throughout the globe. Some of these are as follows:

 Victim-Offender Mediation Programs (VOM). Also referred to as victim-offender

reconciliation programs (VORP) or victim reparation programs, in most cases, its purpose is to
promote direct communication between victim and offender. Victims who participate are provided
with an opportunity to ask questions, address the emotional trauma caused by the crime and its
aftermath, and seek reparations.22
 Community Dispute Resolution Programmes (CDRP). CDRP seek to dispose of minor conflicts
that have not been disposed off and are clogging criminal dockets.
 Victim-offender Panels (VOP). VOP developed as a result of the rise of the victims’ rights
movement in the last two decades and in particular to the campaign against drunk driving. They
often used to provide the convicted drunk drivers with a chance to appreciate human cost of drunk
driving on victims and survivors. It also intends to decrease the likelihood of repeat offenses. 23
 Victim Assistance Programs24. VOCA established the Crime Victim’s Fund, which is supported by
all fines that are collected from persons who have been convicted of offenses against the United
States, except for fines that are collected through certain environmental statues and other fines
that are specifically designated for certain accounts, such as the Postal Service Fund.
 Community Crime Prevention Programs25. The community crime prevention has included a
plethora of activities, including media anti-drug campaigns, silent observer programs, and
neighbourhood dispute resolution programs.
 Private Complaint Mediation Service (PCMS). It provides the mediation as an alternative to the
formal judicial process of handling criminal misdemeanour disputes between private citizens.

21 Melissa Lewis & Les McCrimmon, The Role of ADR Processes in the Criminal Justice System: A View from
Australia, available at http://www.doj.gov.za/alraesa/conferences/papers/ent_s3_mccrimmon.pdf.
22 John R. Gehm “Victim-Offender Mediation Programs: An Exploration of Practice and Theoretical
Frameworks”, Western Criminology Review 1 (1). [Online]. Available: http://wcr.sonoma.edu/v1n1/gehm.html.]
23 RESTORATIVE JUSTICE ONLINE: Victim Offender Panels, http://www.restorativejustice.or g/university-
classroom /01introduction/tutorial-introduction-to-restorative-justice/processes/panels
24 OVC: OVC Links to Victim Assistance & Compensation Programs, http://www.ojp.usdoj .gov/ovc/help
/links.htm
25 Prevention: Community Programs – The History Of Community Crime Prevention, Chicago Areas Project,
Political Mobilization, Evaluations Of Community Crime Prevention Programs, http://law.jrank.org/pages/1739/
Prevention-Community-Programs.html#ixzz0kxrprMHD

10
 PCMS gets its authority from Administrative Rule 9.02 of the Hamilton County Municipal
Court26.

Apart from the above programmes, there are also available the mechanism of sentencing circles, ex-
offender assistance, community service, school programs, and specialist courts. These programmes
point towards a gradual shift from deterrence to reparation, as a mode of criminal justice in some
nations. In a nutshell, they show the application of restorative justice.

Some criminal ADR programmes like Victim-Offender Mediation Programs have been successfully
mediating to bring justice between crime victims and offenders for over twenty years. There are now
over 300 such programs in the U.S. and Canada and about 500 in England, Germany, Scandinavia,
Eastern Europe, Australia and New Zealand27.

3. Lok Adalats and Panchayats

An important measure taken by the Government to reduce the backlog of cases and burden on the
judiciary28 was the introduction of the ingenious concept ‘Lok Adalats’ (People’s Courts) under The
Legal Services Authorities Act, 198729 to solve disputes by compromise and conciliation. These Lok
Adalats are not akin to regularly constituted courts but they supplement the existing justice
administration system. They provide adequate and effective means of disputes resolution at
reasonable costs. Special status has been assigned to the Lok Adalat under the Legal Services
Authorities Act which provides statutory base to such Lok Adalat, which are regularly organized
primarily by the State Legal Aid and Advice Boards with the help of District Legal Aid and Advice
Committees.30 Some of the Lok Adalats are being sponsored by the various voluntary legal aid
agencies. The whole emphasis in the Lok Adalat proceedings is on conciliation rather than
adjudication. They endeavor to arrive at a compromise and settlement between the parties using the
principles of justice, equity and fair play. Lok Adalats have the power to look into any criminal, civil
or revenue dispute when the parties mutually agree to do so.

26 MEDIATION OF CRIMINAL MISDEMEANOR DISPUTES, http://www.hamilton-co.org/Municipal

Court/ mediation/mediation_of_criminal.htm
27 Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and
Offenders? VORP, available at http://www.vorp.com/articles/crime.html.
28 Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India in the International
Conference on ADR, Conciliation, Mediation and Case Management, May 3-4, 2003.
29 The provisions relating to Lok Adalat are contained in sections 19 to 22 of the Legal Services Authorities
Act, 1987.Section 22B of the Legal Services Authorities Act, 1987, as amended in 2002, enables establishment
of permanent Lok Adalats and its sub-section (1) reads as follows:“Notwithstanding anything contained in
section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish
Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public
utility services and for such areas as may be specified in the notification.”
30 “The Delhi Legal Services Authority has set up 9 permanent Lok Adalats in Government bodies/departments
and 7 MACT permanent Lok Adalats have been functioning regularly in Delhi. Similarly, permanent Lok
Adalats have also been set up in some other States. But, there is a need to establish more permanent Lok Adalats
throughout the country” via http://dlsa.nic.in/lokadalat.html, visited 23.02.2014

11
In a case where no compromise or settlement can be arrived at, it is open to the parties to the
proceeding, to request for transfer of their proceedings before the courts at a later stage from which it
was transferred. Every award of the Lok Adalat is a civil decree and every award made by the Lok
Adalat is deemed to be final and binding on all parties to the proceedings or disputes. No appeal lies
to any court against such an award.31

Panchayati Raj or self-governance at the village level is another revolutionary process in our
democratic governance. Along with powers of administration, system of self-government dispute
resolution can also be delegated to these institutes. If the object of judicial reform is fair, quick and
inexpensive justice to the common people, there can be no better way to pursue the objective than to
invoke participatory systems at the grass-root level for simpler disputes so that judicial time at higher
levels is sought only for hard and complex litigation. According to Law Commission recommendation
a very simple procedure envisaging quick decision, informed by justice, equity and good conscience. 32
In respect of jurisdiction, the Commission preferred criminal jurisdiction covering boundary disputes,
tenancies, irrigation disputes, minor property disputes, family disputes, wage disputes irrespective of
pecuniary value of the dispute.

The establishment of such Lok Adalats and Panchayats is undoubtedly an important step in
encouraging people to settle disputes through conciliation. However the Lok Adalat system has main
drawbacks for criminal cases: Firstly, the requirement of consensus of the parties to approach Lok
Adalats or the requirement of the permission of the Court to approach Lok Adalats on request by any
party. Secondly, Lok Adalats are only organised at intervals and places as deemed fit by the State
Government or District Authorities. Hence it may be difficult for people to get speedy justice and
more often than not, people are likely to face delays. And lastly, Lok Adalats do not have actual
punitive powers but can only endeavour to work for a settlement or compromise or award
compensation. If it is not possible to have a settlement or compromise, the parties are allowed to
resume proceedings in the court. Panchayats are already known to settle disputes informally and
unofficially, often imposing ‘inhuman’ self-styled punishments.

ADR mechanisms like Lok Adalats and Panchayats will not get the expected response till they make a
gradual but conscious effort to offering positive reasons for litigants to be willing consumers of the
ADR processes. Lok Adalats face the challenge of becoming easily accessible and approachable.
Officially delegating authority to panchayats and municipalities to arbitrate trivial disputes will not
only reduce the burden of the judiciary but also allow people to get ‘instant’ justice. It would also be
important to evolve statutory provisions to ‘mandate’ arbitration in less important matters of low

31 P. T. Thomas v. Thomas Job, (2005) 6 SCC 478

32 In Sitanna v. Marivada Viranna AIR 1934 PC 105 the Privy Council affirmed the decision of the Panchayat in
a family dispute.

12
pecuniary limit. Also important is the requirement of provisions to give punitive powers to these local
self-government bodies.
The Nyaya Panchayats Bill, 2009 if passed will be the most important and effective method of
delivering speedy justice as most of the provisions envisioned are similar to the recommendations in
this article. However, implementation and passage of the bill may prove to be difficult.

ADVANTAGES OF ADR

1. The benefits or advantages33 that can be accomplished by the ADR system are summed up here
briefly: Reliable information is an indispensable tool for adjudicator. Judicial proceedings make
halting progress because of reluctance of parties to part with inconvenient information. ADR
moves this drawback in the judicial system. The truth could be difficulty found out by making a
person stand in the witness-box and he pilloried in the public gaze. Information can be gathered
more efficiently by an informal exchange across the table. Therefore, ADR is a step towards
success where judicial system has failed in eliciting facts efficiently.
2. In Mediation or Conciliation, parties are themselves prodded to take a decision, since they are
themselves decision-makers and they are aware of the truth of their position, the obstacle does not
exist. In addition, Mediation has been adopted in various countries as a means to resolve the
criminal disputes. To be specific, mediation has been consistently applied in juvenile justice
programmes. As an example, Romania has been applying mediation to the field of Criminal Law.
Articles 67-70 in the Law 192/2006 of Romania lay down provisions regarding mediation in the
criminal cases34. In countries like Canada, England, Finland, and even in the United States, the
system of mediation is being used to resolve the juvenile offences 35.Though, the mediation of
severely violent crimes is not usual, in a chunk of victim-offender programs, victims and
survivors of severely violent crimes, including murders and sexual assaults, are finding that
confronting their offender in a safe and controlled setting, with the assistance of a mediator,
returns their stolen sense of safety and control in their lives 36. The emphasis is upon healing and

33 In 1990, the Malimath Committee comprising of Hon’ble Mr. Justice V.S. Malimath, the two other members
being Hon’ble Mr. Justice P.D. Desai and Hon’ble Dr. Justice A.S.Anand discussed the problem of the Indian
Judicial System. The Committee which is also known as the Arrears committee, undertook a comprehensive
review of the working of the court system, particularly all aspects of arrears and Law’s delay and made various
useful recommendations for reducing litigation and making justice readily accessible to the people at the
minimum cost, time and money. It underlined the need for alternative dispute resolution mechanism such as
mediation, conciliation, arbitration, Lok Adalats etc. as a viable alternative to the conventional court litigation.

34 Zeno Daniel Sustac, Mediation in the Criminal Law, MEDIATE.COM, http://www.media te.com/article s/sus
tacZ3.cfm
35 Peggy L. Chown, J.D. and John H. Parham, Can We Talk? Mediation In Juvenile Criminal Cases,
http://www.lectlaw.com/files/cjs08.htm
36 Marty Price, Crime and Punishment: Can Mediation Produce Restorative Justice for Victims and Offenders?
VORP,available at http://www.vorp.com/articles/crime.html

13
 closure. But in cases of severely violent crimes, victim-offender mediation cannot replace
punishment.
3. The formality involved in the ADR is lesser than traditional judicial process and costs incurred
are very low in ADR.
4. There is finality of the result, cost involved is less, the time required to be spent is less, and the
mechanism is more efficient as there is a possibility of avoiding disruption.
5. Improve Attorney-client relationship.37
6. ADR supports Court reform 38and ensure justice for disadvantaged group.
7. In rural areas, the court is a taboo for women, ADR process ensure privacy. That means it is a
confidential process.39
8. ADR is a consensual process to enhance social harmony and there is lesser scope for bias or
corruption.

DISADVANTAGES OF ADR

There have been several criticisms against the applicability of ADR in criminal disputes, which render
ADR techniques unlikely to succeed.

1. Extreme power imbalance between the parties: The victim-offender mediation is considered to be
highly emotionally charged. Further, the offender may feel to be under pressure to reach an
agreement, rather than genuinely seeking to repair the harm done.
2. Privatizing the public harm: With the growth of the ADR movement, Owen Fiss in his seminal
article Against Settlement argued that ADR advocates naively painted settlement as a “perfect
substitute for judgment” by trivializing the remedial role of lawsuits and privatizing disputes at
the cost of public justice40.
3. Undermining judicial reforms efforts41
4. There may be lack of legal expertise and since, there is no set system of arriving at a verdict, the
decisions maybe arbitrary.
5. Other criticisms include that ADR is an appropriate remedy, where the parties have an on-going
relationship (which provides a significant motivation to achieve reconciliation). But this is not
usually the case with victim-offender mediations.

IMPLEMENTATION OF ADR IN CRIMINAL JUSTICE SYSTEM

37 Id
38 Id
39 A. Chowdhury Dr. Jamila, ADR Theories and Practices, London College of Legal Studies (South), First
edition, 2013, p.54.
40 Grace, Maggie T., Criminal Alternative Dispute Resolution, Restoring Justice, Respecting Responsibility,
and Renewing Public Norms. Available at http://digitalcommons.law.umaryland.e du/cgi/viewcontent.cgi?
article = 1017&context=student_pubs
41 S.C. Dr. Tripathi, Alternative Dispute Resolution System (ADR), Central Law Publications, Allahabad, First
edition, 2012, p.09.

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The factors that ail the formal legal system if not adequately addressed in the proposed alternative
system may hinder the move for transformation. This assumes particular significance in the context of
suggestions that the ADR, mediation or conciliation processes should be court-annexed and
institutionalised.42 It has been suggested43 that the institutional framework must be brought about at
three stages. The first stage is to bring awareness, the second acceptance and the third
implementation.

Awareness: In view of spreading awareness holding seminars, workshops, etc. would be imperative.
An ADR literacy programme has to be done for mass awareness. Awareness camp should be initiated
to change the mindset of all concerned disputants, the lawyers and judges.

Acceptance: In this regard extensive training should be imparted to those who intend to act as a
facilitator, mediators, and conciliators. Imparting of training should be made a part of continuing
education on different facets of ADR so that judicial officers and judges are well- versed with the
functioning of ADR mechanisms.

Implementation: For this purpose, judicial officers must be trained to identify cases which would be
suitable for taking recourse to a particular form of ADR. In the decision of House of Lords in Dunnett
V. Railtrack ill (In railway administration, [2002]2 All ER 850, the Court had noticed that: “the
encouragement and facilitating of ADR by the court in an aspect of active case management which in
turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in
furthering that objective and therefore, they have a duty to consider seriously the possibility of ADR
procedures being utilized for the purpose of resolving their claim or particular issues within it when
encouraged by the court to do so.”

In this situation for implementation of ADR in criminal cases the following measures are required the
most:

• Mandatory reference to ADRs: To introduce this system in Criminal Justice System it is suggested
that like the Code of Civil Procedure, Code of Criminal Procedure should also be amended. ADR can
be introduced in Code of Criminal Procedure by enlarging the scope of required sections and inserting
a new section and empower the Criminal courts to dispose of criminal cases through ADR.
• Case management by Judges- Case management includes identifying the issues in the case;
summarily disposing of some issues and deciding in which order other issues to be resolved; fixing
timetables for the parties to take particular steps in the case; and limiting disclosure and expert
evidence.
42 LAW COMMISSION OF INDIA, Report No. 222, Need for Justice-dispensation through ADR etc., Govt. of
India, April 2009. In addition, SC in Union of India v. M/S. Singh Builders Syndicate, 2009 (4) SCALE 491 has
suggested that ADR processes be institutionalised.
43 Judicial Reforms in Justice Delivery System, (2004) 4 SCC(Jour) 35. In an address titled “ADR and Access
to Justice: Issues and Perspectives” by Hon’ble Madras HC Justice S.B.Sinha

15
• Committed teams of Judges and Lawyers: The mindset of the members of the Bar is also to be
changed accordingly otherwise it would be difficult it is difficult to implement ADR. The myth that
ADR was alternative decline in Revenue or Alternative Drop in Revenue is now being debunked by
them realizing that as more and more matters get resolved their work would increase and not decrease.
Also, unless the mindset of the judges is changed, there will be no motivation for the lawyers to go to
any of the ADR methods.
• Governmental support and implementation in setting up ADR institutes at every level from district
to national level.
• Support by Litigants: Few parties are usually interested in delay and not hesitate in taking a stand so
as to take the benefit of the delay. Parties have to realize that at the end, litigation in court may prove
very costly to them in terms of both cost and consequence.

VICTIM OFFENDER MEDIATION

Victim offender mediation is a process that provides interested victims an opportunity to meet their
offender, in a safe and structured setting, and engage in a mediated discussion of the crime. With the
assistance of a trained mediator, the victim is able to tell the offender about the crime's physical,
emotional, and financial impact; to receive answers to lingering questions about the crime and the
offender; and to be directly involved in developing a restitution plan for the offender to pay back his
or her financial debt.

This process is different from mediation as it is practiced in civil or commercial disputes, since the
involved parties are not "disputants" nor of similar status - with one an admitted offender and the
other the victim. Also, the process is not primarily focused upon reaching a settlement, although most
sessions do, in fact, result in a signed restitution agreement. Because of these fundamental differences
with standard mediation practices, some programs call the process a victim offender "dialogue,"
"meeting," or "conference."

Currently, there are more than 290 victim offender mediation programs in the United States and more
than 500 in Europe. The American Bar Association recently endorsed victim offender mediation and
recommends its use throughout the country. A recent statewide survey of victim service providers in
Minnesota found that 91 percent of those surveyed believe that victim offender mediation should be
available in every judicial district, since it represents an important victim service.

Goals

The goals of victim offender mediation include:

Support the healing process of victims, by providing a safe and controlled setting for them to meet
and speak with the offender on a strictly voluntary basis.

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Allow the offender to learn about the impact of the crime on the victim and to take direct
responsibility for their behavior.

Provide an opportunity for the victim and offender to develop a mutually acceptable plan that
addresses the harm caused by the crime.

Implementation

Cases may be referred to victim offender mediation programs by judges, probation officers, victim
advocates, prosecutors, defense attorneys, and police. In some programs, cases are primarily referred
as a diversion from prosecution, assuming any agreement reached during the mediation session is
successfully completed. In other programs, cases are usually referred after a formal admission of guilt
has been accepted by the court, with mediation being a condition of probation (if the victim has
volunteered to participate). Some programs receive case referrals at both stages. The majority of
mediation sessions involve juvenile offenders, although the process is occasionally used with adults
and even in very serious violent cases

In implementing any victim offender mediation program, it is critically important to maintain

sensitivity to the needs of the victim. First and foremost, the mediator must do everything possible to
ensure that the victim will not be harmed in any way. Additionally, the victim's participation must be
completely voluntary, as should the participation of the offender. The victim should also be given
choices, whenever possible, concerning decisions such as when and where the mediation session will
take place, who will be present, who will speak first, etc. Cases should be carefully screened
regarding the readiness of both victim and offender to participate. The mediator should conduct in
person, pre-mediation sessions with both parties and make follow-up contacts, including the
monitoring of any agreement reached.

Lessons Learned

A large multi-site study (Umbreit, 1994) of victim offender mediation programs with juvenile
offenders found the following:

3,142 cases were referred to the four study-site programs during a two-year period, with 95 percent of
the mediation sessions resulting in a successfully negotiated restitution agreement to restore the
victim's financial losses.

Victims who met with their offender in the presence of a trained mediator were more likely to be
satisfied (79 percent) with the justice system than similar victims who went through the normal court
process (57 percent).

After meeting the offender, victims were significantly less fearful of being revictimized.

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Offenders who met with their victims were far more likely to successfully complete their restitution
obligation (81 percent) than similar offenders who did not participate in mediation (58 percent).

Fewer offenders who participated in victim offender mediation recidivated (18 percent) than similar
offenders who did not participate in mediation (27 percent); furthermore, participating offenders'
subsequent crimes tended to be less serious.

COMPOUNDABLE OFFENCES UNDER 320 AND 498(A) OF CRPC

Legal provisions regarding compounding of offences under section 320 of the Code of Criminal
Procedure, 1973.

A composition is an arrangement whereby there is settlement of the differences between the injured
party and the person against whom the complaint is made. It is not necessary that the composition
should be in writing. It may be oral.

If both the parties agree that there has been compromise, then the Court has to dispose of the case in
terms of that compromise and the petitioner is to be acquitted. If, on the other hand, parties differ, then
the Court has to call upon them to lead evidence and then record a finding on such evidence.The
offences that may lawfully be compounded are those that are mentioned in Section 320 of the Code of
Criminal Procedure. The offences other than those mentioned cannot be compounded. The offences
punishable laws other than the Penal Code are not compoundable. Only the person named in the third
column of Section 320 can legally compound an offence under Section 320. Any person may set the
criminal law in motion, but it is only the person specified in the third column who can compound the
offence. A case may be compared at any time before sentence is pronounced even whilst the
Magistrate is writing the judgment.

The compounding of an offence signifies that the person against whom the offence has been
committed has received some gratification, not necessarily of a pecuniary character, to act as an
inducement for his desiring to abstain from a prosecution and Section 320 provides that if the offence
be compoundable, composition shall have the effect of an acquittal.

The object of Section 320 of the Code is to promote friendliness between the parties so that peace
between them is restored. Even compounding has been permitted during the hearing of Appeal and
revision in High Court or Supreme Court, but if the accused is previous convict and he is liable to
enhanced or different kinds of punishment from the ordinary punishment then compounding is not
permitted.

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Under 498(A) earlier what used to happen that if a person files a case for domestic violence and seeks
divorce, the divorce was granted easily but with the change in the mind-set of the society, new ways
of solving this kind of family dispute is becoming prevalent these days.

This amendment stops the police from making arbitrary arrests. The very fact that reasons shall have
to be recorded in writing fixes responsibility and makes the Police Officer accountable for justifying
the arrest. Recording an arbitrary reason would be difficult, since it would need to be substantiated
and will also be open to judicial scrutiny.

The amendment lays considerable stress on the importance of investigation before an arrest is made
or not made. This further means that the officer must be convinced about the bonafides of the case. A
mere complaint would not be enough to exercise the power of arrest.

Insertion of Section 41A, pertaining to issue of Notice of Appearance, is in line with the Right to
Life and Liberty of Indian citizens. It would also help bring down the number of arrests, which in turn
would decongest the crowded Indian jails. Simultaneously, the innocents too can feel secure in case
they stand a chance of exposure to implication in false cases.

CASE LAWS

 Shiji Pappu & Ors vs Radhika & Anr on AIR, 2011 SCC 64544

FACTS – when the husband and brother of the complainant were parking the car, 2 people came and
snatched her purse and gold chain from her.after few wekk they were caught due to the evidence from
cctv footage.

HELD- The matter was referred to criminal court and the court held that during the pendency of the
criminal proceedings aforementioned, the parties appear to have amicably settled the matter among
them.

 K. Srinivas Rao vs D.A. Deepa AIR, 2013 SCC 53245

44 AIR 2011 SCC 645

45 AIR 2013 SCC 532

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FACTS – The complainant (wife) filed a divorce petition because of several dispute between them
and the main reason for dispute was that the husband use to snore whenever he was sleeping, so
frustrated by this his wife filed a suit.

HELD – It was held by the court that they should be given a time period of 6 months for resolving
their dispute through a arbitrator by the way of compromise .

CONCLUSION

As has been established through the paper, despite the challenges that face the ADR processes today,
the benefits in the long run that they are capable of generating appear to outweigh the factors that may
in the short run deter their enforcement. The diverse nature of the country’s population defies any
uniform approach or set pattern and this is perhaps the biggest strength of the ADR mechanisms.
Their flexibility and informality, the scope they offer for innovation and creativity, hold out the
promise of a great degree of acceptability lending them the required legitimacy. Their utility as a case
management tool cannot be overemphasised. ADR processes provide the bypasses to handle large
chunks of disputes thus leaving the formal legal system to handle the more complex litigation. It is
baseless to give in to the scepticism that ADR mechanisms would lead to falling out of the formal
criminal legal system. 46

46 Hernando de Soto, The Other Path, Harper & Row (1989). This seminal work could form a model for
initiating a study of the working of the criminal justice system. This might reveal the actual costs involved in
several stages of the system. Since the legitimacy of the ADR mechanism is premised on parties consenting to
the process, the costs of engaging with either the parallel system or benefiting from the ills of the formal system
have to be raised considerably high to drive the parties to consent to the ADR processes.

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However, it must be kept in mind that a successful implementation of ADR processes will have to be
preceded by an identification of categories of cases or specific dispute areas that are most amenable to
their introduction. This system has already been introduced in Civil Litigation System. To introduce
this system in Criminal Justice System it is suggested that like the Code of Civil Procedure, Code of
Criminal Procedure should also be amended. ADR can be introduced in Code of Criminal Procedure
by enlarging the scope of required sections and inserting a new section and empower the Criminal
courts to dispose of criminal cases through ADR.
To conclude, even while they do not offer to be a panacea for all the ills of the formal legal system,
ADR processes offer the best hope yet of complementing and helping to fortify the formal legal
criminal system.

BIBLIOGRAPHY

Books Referred

 Dr. SC Tripathi, Alternative Dispute Resolution, 2nd ed., Central Law Publications
 S.R. Dr. Myneni, Alternative Dispute Resolution, 2nd ed., Asia Law House, Hyderabad, 2012
 Samad Md. Atickus, A Text Book on ADR & Legal Aid, 1 st ed., National Law Publications,
2013

Articles and Committee Reports Referred

 Judicial Reforms in Justice Delivery System, (2004) 4 SCC(Jour) 35

 Law Commission of India, Report No. 222, Need for Justice-dispensation through ADR etc.,
Govt. of India, April 2009.

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 Report of the Expert Committee on Legal Aid: Procedural Justice to the People, Government
of India, Ministry of Law, Justice and Company Affairs (1973)
 Special Address by Dr.S.Muralidhar, Part-time Member, Law Commission of India in the
International Conference on ADR, Conciliation, Mediation and Case Management, May 3-4,
2003

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