Out-of-court settlements are slowly becoming a common matter in our country. If you are ever unfortunate enough to find yourself in the Sessions Court premises or a police station, it is very likely that you will hear the words 'Mimangsha or compromise' uttered to you by experienced persons who are familiar with this kind of situations.
Out-of-court settlements in civil cases are encouraged and are of course, within the scope of law but it is a bit more restricted in criminal cases. In criminal cases, compromise is allowed only in cases which are compoundable in nature under section 345 of the Code of Criminal Procedure, 1898. The section covers crimes which are considered as less grievous such as causing hurt, wrongfully restraining or confining any person, assault, criminal trespass, adultery, defamation etc. Crimes as serious as culpable homicide, rape, robbery etc are definitely not compoundable in nature and thus, they cannot be compromised in an out-of-court settlement. In this context, compromising means withdrawal of the complaint by the complainant of the case after receiving some consideration in return.
Section 345(7) expressly provides that, 'no offence shall be compounded except as provided by this section.' This means only the offences provided in the section can be settled out-of-court. Compounding offences which are not mentioned in the section shall be unlawful. This provision only gives power to the Magistrate or the Judge to allow parties to compromise; it does not allow the local mediators like the Panchayet or any arbitral body to settle the criminal offences. The courts of Bangladesh have in many circumstances interpreted and used this section. In 1984, the Appellate Division of the Supreme Court of Bangladesh held in the case of Md. Joinal Abedin & Others v Md. Rustam Ali Miah (1984) 4 BLD (AD) 86 that 'Law encourages settlement of dispute either by panchayat or by arbitration or by way of compromise and if it is a criminal offence, the offence can be compounded within the limit of section 345 of CrPC.' So if criminal offences are compounded within the limit of section 345 of the CrPC, it can be compounded only in cases of compoundable offences and with the permission of the court,
Even though arbitrations for non-compoundable offences are expressly prohibited, events of compromise in case of rape cases are often witnessed in our society. More often than not the reason behind these compromises is poverty. In other cases, the reason can be social pressure, fear of facing abuse during the court process, and reputational hazard etc. Anyone who hold public office should be aware of existing laws before participating in the mediation of these offences. It goes without saying that often these local arbitrations create discrimination between the rich and the poor and serve as insults to the judicial system as observed from the Habigonj situation.
Compromises are recurrently made in cases of death caused by rash driving. If the victim belongs to a poor family, more often than not, the family of the victim compromises in exchange for a very moderate consideration. Even though causing death by rash driving or riding on a public way, a crime under section 304B of the Penal Code, 1860 is not a compoundable offence, settlements in such crimes are being made regularly. This may also victimise the accused since even if he is innocent, he will try to get out of the trouble of judicial proceeding through paying a consideration.
Even when the two parties are agreeing to such proceeding, non-compoundable criminal offences should never be settled out-of-court since a crime is not just against a person but the whole state. Anyone other than a competent judge playing the role of a judge in criminal cases is totally unacceptable under any circumstances. All necessary steps should be taken by the authority to prevent these unlawful arbitrations from taking place in the future.
Our judicial system should be made more accessible and victim-friendly for encouraging the victims to go through the proper judicial process rather than resorting to local mediations.
The writer is a student of law, North South University.