POCSO cases cannot be referred to mediation & can’t be settled or compromised through mediated agreements: Delhi HC issues mandatory reminder
Justice Swarana Kanta Sharma [07-03-2024]

Read Order: RAJEEV DAGAR v. STATE & ORS [DEL HC- W.P.(CRL) 3080/2023]

Tulip Kanth

New Delhi, March 11, 2024: The Delhi High Court has clarified that in cases involving offences of serious nature, particularly those falling under the Protection of Children from Sexual Offences (POCSO) Act, no form of mediation is permissible. The High Court also highlighted that mediation jurisprudence is found in our old religious texts including Ramayana, Mahabharata, Bhagavad Gita.

As disclosed from the petition, the petitioner is the husband of respondent no. 3, and respondent no. 2 is the brother-in-law of petitioner. It was stated that the children of the petitioner, namely "Ms. X" who was aged about 9 years and "Mr. Y" who was aged about 6 years, were victim of sexual assault at the hands of respondent no. 2, in the year 2013-14. It was stated that the petitioner had caught respondent no. 2 inappropriately touching his children, and he had also filed a complaint. It was further stated that the petitioner's wife had left the matrimonial home and her kids, and she had initiated proceedings against the petitioner including the proceedings for custody of the children and she was granted visitation rights.

It was alleged that during the visitation period, the petitioner had come to know, upon being informed by his children, that respondent no. 2 had touched the private parts of both the children of the petitioner. However, no action was taken by the police on the petitioner’s complaint and therefore, the petitioner being the father and the natural guardian of the children had filed a complaint under Section 33 of POCSO Act for the heinous offences committed by the maternal uncle of the children.

The petitioner's minor son and minor daughter had supported their case, as alleged in the complaint and they had also deposed before the Special Court about the alleged incident.

A Memorandum of Understanding was pinned down between the petitioner and his wife and it was agreed that they would apply for mutual divorce, giving the custody of the children to the father i.e. the petitioner. It was submitted that the petitioner had withdrawn the present complaint in view of the terms of the mediation. The parties had also started residing together at their matrimonial home only. As per the petitioner, the accused/respondent no. 2, in a well-hatched conspiracy with his sister, had tricked the petitioner into withdrawing the present complaint case filed under the POCSO Act. The agreement stated that the parties would be at liberty to revive the cases which were pending against them in case of any non-compliance with the agreement. Therefore, the writ petition had been filed before the Court.

The first issue before the Single Judge Bench of Justice Swarana Kanta Sharma was whether mediation can be preferred in cases registered under the POCSO Act or cases of sexual assault.

The Bench noticed that the evidence of the children was recorded before the Court wherein they had levelled specific allegations of sexual assault against their maternal uncle. Therefore, it was presumed that the Court had now again reverted back to the procedure under Section 200 to 202 of Cr.P.C. Yet again, even though both the minor victims had alleged sexual assault by their maternal uncle in the statements given to the police as well as before the Special Court, the Court had still referred the matter to the mediation i.e. after taking cognizance of the offence under Section 33 of POCSO Act and having recorded the evidence of the minor victims as CW-1 and CW-2, leaving the proceedings mid-way. The Bench opined that the matter could have been taken to a logical end as per law if the Court had allowed the complainant to withdraw his complaint, in view of the mediated settlement agreement.

“Such an approach adopted by the learned Special Court resulted in gross miscarriage of justice, since the children who were allegedly sexually abused, being minors of tender age, had to be taken care of by a court of law they had approached through one parent”, it added.

The Bench answered the aforementioned issue by ruling, “Thus, in view of the aforesaid discussion, this Court has no hesitation to hold that the offences under POCSO Act, which are non-compoundable in nature and are even rarely quashed by the Constitutional Courts, cannot be referred to mediation by the Courts and cannot be settled or compromised through mediated agreements, nor should they be subject to resolution through monetary payments or similar arrangements. Allowing such serious and grave offences to be settled through mediated agreements, especially since such settlement is acceded to by the parent or guardian of the minor victim and not the victim himself or herself who is a minor, would amount to trivialising the gravity of the offence and undermining the rights of minor victims of sexual abuse to seek appropriate legal recourse and justice.”

As per the Bench, reference of case under POCSO Act to mediation & mediating and settling it by the mediator was one of the main judicial error committed in this matter. On the issue of procedural errors, the Bench observed that the Special Court should have also gone behind the facts of the case, as well as the procedure to be adopted in a complaint received under POCSO Act.

On the issue of delay and latches, the Bench commented that in case of any unreasonable delay, the petitioner who is approaching a Constitutional Court in the writ jurisdiction must explain the circumstances as to why there is an inordinate delay in seeking a remedy which he could have sought earlier. The High Court was also unable to infer or discern any reason as to why this petition was preferred in the year 2023 i.e. about nine years after the impugned order was passed. There couldn’t be any connection between the matrimonial dispute between him and his wife and the sexual abuse of his children by third party, which he himself compromised in a mediated settlement.

The Bench opined that the parties in the present case were misusing their children to settle scores with each other. Both the parties i.e. the petitioner and respondent no. 3 had jointly submitted before the Special Court that they may be referred to mediation centre since they wanted to settle their disputes and it was the petitioner himself who had given a statement on oath before the Special Court that he wished to withdraw the said complaint in view of the settlement agreement entered into between the parties.

“This Court, however, is of firm and considered view that it cannot be a party to exhibit insensitivity by ordering to reopen chapter of lives of the minors, one of whom has now attained majority and the other is 17 years of age, are not party to re-opening of their complaint, and thereby re-opening the wounds which they have closed in their memory”, the Bench held while rejecting the relief of quashing of order and restoration/revival of complaint which was filed under POCSO Act before the Special Court when the victims themselves had not prayed for the same.

Highlighting the importance of mediation, the Bench stated, “This Court thus, opines that it is not on the basis of the British or other foreign Jurisprudences alone but on the basis of unplundered wealth of ancient Indian Judicial and mediation jurisprudence which is found in our old texts including Ramayana, Mahabharata, Bhagavad Gita, when read and understood in detail in context of the messages conveyed in certain chapters, subject to their true interpretation and understanding without being referred to as religious texts alone.”

Noting that in the midst of conflict, mediation is the bridge to resolution and under no circumstances the bridge will be allowed to collapse, the Bench held that POCSO cases cannot be referred to or resolved through mediation by any Court.

Thus, rejecting the prayer raised in the petition, the Bench said, “The series of errors committed and orders passed, in this case, have forced this Court to yet again make an effort to remind and reiterate the process of mediation, the do's and don'ts of mediation, especially the don'ts which have somehow escaped the notice of the judge and the mediator concerned, lest such mistakes are committed again in future.”