April 23, 2019 8:21:57 pm
The Delhi High Court has held that cases of serious nature having an element of “mental depravity” like rape, and economic fraud cannot be quashed on settlement between parties.
The high court has issued guidelines for criminal courts and mediation centres for dealing with the issue of referring a criminal case to mediation, including whether elements of settlement exist and whether law permits to quash or compound the case.
These observations and guidelines were mentioned by the court while deciding on five separate pleas seeking quashing of criminal cases.
Justice R K Gauba, while dismissing petitions to quash four FIRs relating to credit card frauds on the ground of settlement, said the gravity and seriousness of the offences, the conduct of the accused and the impact on society are good reasons to reject the settlements in these cases as “ill-conceived and unworthy”.
The court also refused to quash the fifth FIR involving the allegations of rape, pornography and obscene calls, saying the magistrate had referred the matter to mediation while ignoring the fact that high court had declined to quash it earlier as well.
“Neither the parties nor their counsel shared with the mediator the earlier order (of this court) rejecting the move. The withholding of such material information from the mediator was dishonest and will have to be condemned in strongest terms. The fact remains that the case involving the element of ‘mental depravity’ cannot be quashed on settlement,” it said.
Lamenting that credit card fraud cases were lodged in 2003 and have not moved to a meaningful stage for over 15 years, the judge said there can be no denial of the ground reality that protracted trials have become the rule and expedition is an exception in criminal cases.
“There seems to be no system, check or discipline, or accountability, on the part of the defence counsel. But, the judge presiding over the criminal trial cannot afford to forfeit the prerogative conferred by law on him. He must always be in full command and control. It is his obligation to take the case forward as expeditiously as possible,” the high court said.
It directed the Chief Metropolitan Magistrate (CMM), before whom the bank fraud cases are pending, to take up the matter on a day-to-day basis and not to give indulgence in case of non-appearance of the parties.
It added that the sessions judge of New Delhi district will monitor the progress of the cases and a compliance report will be filed before the high court on expiry of six months or if the cases are decided earlier.
It said the high court has regularly laid emphasis on timely conclusion of old cases in a time bound manner but treating serious fraud cases for recovery through mediation is no answer to the challenge of huge pendency of old cases in criminal jurisdiction.
It noted the CMM has mentioned in his report that on several days the cases could not be heard due to pre-occupation of the magistrate with administrative work.
“This is not proper. No judge can shun judicial work during court hours for administrative work. The judicial business remains the priority,” it said.
The high court was also informed that the courts of magistrates and civil judges all over Delhi were inundated with criminal complaints under Section 138 Negotiable Instruments Act and said these cases have rendered civil litigation and serious criminal cases secondary, which is not healthy.
“The move in 2008 to create special courts at Dwarka Court Complex for such cases filed by financial institutions had proved to be very effective. It had freed the regular magisterial courts from such work so that they could devote more energy on serious offences,” it said.
The high court added that it is time to reconsider that arrangement again by utilising the now available space at Dwarka Court Complex, after transfer of Labour Courts, by shifting of such work from courts of regular magistrates.
It said this will facilitate progressive movement in regular criminal work and bring timely justice, a goal for achievement of which the court is to always remain committed.
On the issue of pendency of over 10 years old cases in trial courts, it said there is a need for creation of additional criminal courts so that each such court carries only such optimum number of cases as can be expeditiously moved through the procedure to conclusion.
“But, such endeavour would depend on infrastructural support from other agencies of the State. While the court on the administrative side is expected to take up this issue with the concerned quarters, there is also an urgent need for equitable distribution of the judicial business, particularly the old matters, so that collective effort can be made to take the chronic ones to logical conclusion within reasonable time,” the court said.
The judge requested the Chief Justice of Delhi High Court to get these issues examined on the administrative side for such directions to be issued and steps to be undertaken as may be deemed proper.