• Mediation & Conciliation In India: ADR In India

  • Though our judicial system is one of the best in the world and is highly respected, but there is lot of criticism on account of long delays in the resolution of disputes in a court of law. Now an honest litigant is wary of approaching the court for a decision of his dispute. Hence, we have turned to Alternative Dispute Resolution (ADR) mechanisms. 

    Hello Counsel undertakes referral requests for Alternative Dispute Resolution (ADR), i.e. the Mediation & Conciliation between the Parties, pre & post institution of the Cases in the Courts. For this task, we engage trained Mediators & Conciliators who use special negotiation and communication techniques to help the parties to come to an amicable settlement. We do so purely because of our conviction that the litigation should be avoided at the first instance. Even if the adversary party forces litigation on our clients, we try and get the bone of contention resolved at the earliest available opportunity, during the pendency of the Case in the Courts. 

    Vital Features Of Mediation & Concilliation

    Judgments & Citation: Mediation & Concilliation

    When Out Of The Court Compromises & Settlements Acceptable 

    • Anil Jain v. State of Uttar Pradesh, Criminal Appeal No. 160/2015, Judgment Dated- 22/01/2015, Bench- Sudhansu Jyoti Mukhopadhaya & N.V. Ramana, JJ, Citations- 2015(2) SCALE 111.- Quashing of FIR- Allowed Based On Settlement Before The Mediation & Conciliations- Criminal Procedure Code, 1973- Section 482- Quashing prosecution- Settlement of dispute between parties for offences u/ss 420, 467, 468, 471, 406 & 120-B, IPC, permissibility of- Payment of full and final settlement amount- Settlement Agreement has been signed jointly by the parties including the complainant and their counsel- Whether impugned judgment of the High Court refusing to entertain the petition filed by appellants u/s 482 Cr.P.C. was sustainable? - Held, no - This court allowed the appellants and respondent-complainant to file a settlement agreement and has quashed the proceedings - Penal Code, 1860 - Sections 420, 467, 468, 471, 406 & 120-B - Prosecution for offences -Quashing of.- HELD: In view of the settlement reached between the parties, we allow the prayer and set aside the impugned order dated 11.11.2013 read with order dated 9.12.2013 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 2625 of 2012 and quash the proceedings pursuant to F.I.R. No. 816 of 2009 (Case Crime No. 1068 of 2009 and Criminal Case No. 12175 of 2010-State versus Anil Jain & others), under Sections 420, 467, 468, 471, 406 and 120B of the Indian Penal Code, 1860 at P.S. Sector 20, NOIDA, District Gautam Budh Nagar (Uttar Pradesh) and any order passed pursuant to the said proceedings. The parties will abide by the settlement.  
    • B.S. Joshi & Ors. Versus State of Haryana & Anr., Appeal (Crl.)  383 of 2003, Judgment Dated: 13.03.2003, Bench: Y.K. Sabharwal & H.K. Sema, JJ, Delhi  High Court/ Supreme Court Of India [Full PDF Judgment]- The Court held,  "There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.".
    • Gian Singh vs. State of Punjab & Anr., (2012) 10 SCC 303.
    • K Srinivas Rao Vs D A Deepa, Civil Appeal No.1794 of 2013, Order Dated 22.02.2013, Bench-Aftab Alam & Ranjana Prakash Desai, Supreme Court Of India [Full PDF Judgment]- Mediation & Conciliation in Divorce matters- Cruelty & Desertion Under Section- 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955. 
    • Madan Mohan Abbot Versus State of Punjab, Appeal (Crl.) 555 of 2008, Judgment Dated: 26/03/2008, Bench: Tarun Chatterjee & Harjit Singh Bedi, JJ, Supreme Court Of India [Full PDF Judgment]- Compromise, Mediation & Concilliation
    • Narinder Singh & Ors. Vs. State of Punjab & Anr., CRIMINAL APPEAL NO.686/2014, Judgment Dated: 27.03.2014, Bench: K.S.Radhakrishnan & A.K.Sikri, JJ, Supreme Court Of India [Full PDF Judgment]- Compromise, Mediation & Concilliation.
    • Nikhil Merchant vs. Central Bureau of Investigation & Anr., (2008) 9 SCC 677.
    • Suresh Narayan Kadam & Ors. Versus Central Bank of India & Ors., Petitions For Special Leave To Appeal (C) NOS.1878-1879 OF 2009, Judgment Dated: 05.02.2016, Bench: Madan B. Lokur & R.K. Agrawal, JJ, Supreme Court Of India [Full PDF Judgment] – The SC opened its judgment in this Case with the following observations/ remarks, “1. The proceedings in these petitions as indeed the proceedings in the Bombay High Court (out of which the present petitions have arisen) indicate a clear need for encouraging an amicable settlement process, preferably through mediation, in which the services of a mediator well versed in the art, science and technique of mediation may be taken advantage of. The alternative, of course, is protracted litigation which may not be the best alternative for the contesting parties or for a society that requires expeditious justice delivery. 2. In his Foreword written on 12th April, 2011 to the first edition of “Mediation Practice & Law – The path to successful dispute resolution” written by Mr. Sriram Panchu, Senior Advocate and Mediator, Mr. Fali S. Nariman, a Senior Advocate of this Court and a respected jurist, writes: “[T]he same subject matter of disputation between two parties can be dealt with in two different ways, not necessarily exclusive: first, by attempting to resolve a dispute in such a way that the parties involved win as much as possible and lose as little as possible through the intervention of a third party steeped in the techniques of mediation; and second, (failing this) the dispute would be left to be resolved by each party presenting its case before a disinterested third party with an expectation of a binding decision on the merits of the case: a win-all lose-all, final determination”. The second alternative may not be the best alternative, as already mentioned by us.”.
    • Vikram Anantrai Doshi- State of Maharashtra Vs. Vikram Anantrai Doshi, Criminal Appeal No. 2048/2014, Judgment- 19/09/2014, Bench- Dipak Misra & Vikramajit Sen, JJ, 2014(10) JT 497= 2014(10) SCALE 690= 2014(8) SLT 184= 2014 CrLJ 4879= 2015(2) Crimes 237(SC).- Quashing of FIR- Disallowed- Based On Settlement Before The Mediation & Conciliations- Penal Code, 1860 - Sections 120-B, 406, 420, 467, 468 & 471 - Settlement arrived at between parties - Effect of - As per the charge sheet the respondents-accused got letter of credits (LCs) issued from the bank in favour of fictitious companies propped up by them and the fictitious beneficiary companies got letters of credits discounted by attaching their bogus bills - Names of 10 fictitious companies found mentioned in the chargesheet- Thus, allegation of forgery held to be very much there- Modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong- Rather it appeared a social wrong having immense societal impact - Hence, impugned order of quashing proceedings passed by the High Court on basis of compromise arrived at between the parties set aside - Criminal Procedure Code, 1973 - Sections 320 & 482 - Constitution of India - Article 226- Gian Singh v. State of Punjab and Another, (2012) 10 SCC 303, Gopakumar B. Nair v. CBI and Anr., 2014 (4) SCALE 659 & Central Bureau of Investigation v. Jagjit Singh, (2013) 10 SCC 686, Relied on (Paras 20, 21, 22 and 23)-HELD: On a studied scrutiny of the principles stated in Gain Singh (supra) it is limpid that the three-Judge Bench has ruled that proceeding in respect of heinous and serious offences and the offences under prevention of corruption Act and all other offences committed by public servants while working in that capacity are not to be quashed. That apart, the court has also emphasized on offences having a serious impact on society. It has been further laid down that criminal cases having overwhelmingly and predominantly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature.- Further Held- Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a "no due certificate" and enjoy the benefit of quashing of the criminal proceeding on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court's principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible (Paras 20 and 23).

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