1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 18-06-2015

CORAM:

THE HONOURABLE MR. JUSTICE P.DEVADASS

M.P.No.2 of 2014 in

Crl.A.No.402 of 2014 V.Mohan .. Appellant/A-1

vs.

State Represented by: The Inspector of Police, All Women Police Station, Vridhachalam, Cuddalore District. .. Respondent (in Crime No.21 of 2008) Petition filed under Section 389 Cr.P.C., to suspend the

sentence imposed in the Sessions Case in S.C.No.373 of 2009 on the

file of the Additional Sessions Judge, Mahila Court, Cuddalore dated

22.7.2002 and to enlarge the petitioner on bail pending disposal of

Criminal Appeal No.402 of 2014.

For Appellant : Mr.C.Arunkumar

For Respondent : Mr.P.Govindarajan, Additional Public Prosecutor.

2

O R D E R

In this petition filed under Section 389 Cr.P.C., A-1 seeks

suspension of his sentence of imprisonment imposed upon him in the

Sessions Case in S.C.No.373 of 2009 on the file of the learned

Additional Sessions Judge, Mahila Court, Cuddalore.

2. A-1 was prosecuted along with A-2 and A-3. A-2 and A-

3 were acquitted from the charges under Section 417 read with

Section 109 IPC. However, A-1 was convicted under Section 376 IPC

and sentenced to 7 years R.I. and fined Rs.5,000/ in default 1 year

R.I. and under Section 357(3) Cr.P.C., he was directed to pay a

compensation of Rs.2 lakhs to PW-1. He was acquitted from the

charge under Section 417 I.P.C.

3. On 22.12.2014, A-1 was directed to deposit Rs.1 lakh

before the Trial Court. Subsequently, time was extended by this Court.

Now as directed A-1 has deposited Rs.1 lakh in the Trial Court.

4. A-1 is alleged to have raped PW-1, who was stated to

be then a minor. As per the prosecution version, she was stated to

have born on 23.6.1993. But, this was contradicted by A-1.

3

5. It is pertinent to note that PW-1 gave birth to a female

child on 14.7.2009. PW-5, who conducted DNA test confirmed that the

said child was born to PW-1 through A-1.

6. Before the Trial Court, A-1 took the stand that he had

physical contact with PW-1, but it was consensual.

7. PW-1 has no parents. PW-2 is her adoptive mother.

Now, PW-1 has become mother of a child. But as on date, she is

nobody's wife. So, she is an unwed mother.

8. Now there is a big question mark looming large before

PW-1 as well as her child, who is completely innocent. Generally, in

this type of cases, the prosecutrix/PW-1 is stated to be a victim, but

really speaking the child born out of such a physical contact is also a

victim. The child is a victim of circumstances. She had born to suffer a

social stigma for no fault of her. It is a great tragedy.

9. In her 'Women & Law – From Impoverishment to

Empowerment (Eastern Book Company, Lucknow) (1st Edition-2011),

4

at page No.237, Dr.Lalita Dhar Parihar remarked:-

“India is a pluralist country. The reverence for

women is interwoven in its cultural raiment of

which Hinduism and Islam are the main

strands. It is the catchword of Hindu familial

jurisprudence and so of its mythology that

“where women are revered gods live.” So does

Islam venerate motherhood in uneloquent

language, and ordains “underneath mother's

feet is the paradise” besides the Quran

venerates femininity in different contexts. The

religions other Hinduism and Islam venerate

womanhood in different style and in their own

ways. As such in a value oriented society like

India no enactment is required to regulate

bane behaviours, yet human fallibility, which

overtakes sanity cannnot be ignored.”

10. Women are the soft targets of male lust. For anything

and everything, they are being blamed. Very often, they are being

forgotten that they too are humanbeings. They are considered as

chattels, although in our country, they are hailed as 'Sakthi', 'Mother',

'Sister', 'Nurse', 'Life Partner', 'Face Saver', 'All in One'. And behind

every man's success, they are there. They do deserve dignity than

indignation.

5

11. Right to live with human (woman) dignity enshrined in

Article 21, Constitution of India give them right to live with dignity and

proper status. [see Bandhua Mukti Morcha vs. Union of India (1984 (3)

SCC 161) and Vikram Deo Singh Tomar vs. State of Bihar (AIR 1988

SC 1782)]. Yet the position of the women and children in this country

is highly deplorable. They don't want (man's) charity but opportunity

and parity. Proper empowerment to them will be their real

emancipation.

12. As an alternative to the time consuming, cumbersome,

expensive conventional court system, a new dispute resolving

mechanism has been adopted by Indian Legal System. It is Alternative

Dispute Resolution method (A.D.R.).

13. A.D.R. had gained momentum in U.S.A., and also in

certain Western countries. It was statutorily recognised in our country

in Section 89 of the Civil Procedure Code. It has different modes. Such

as 'Mediation', 'Conciliation', 'Settlement', 'Lok Adalat', 'Arbitration'. It

had got strong patronoage under the Legal Services Authorities Act,

1987. And now Legal Services Authorities from Taluk level upto

Supreme Court make use of this ADR System to solve the problems of

6

the litigant public to the liking of both sides.

14. In fact, even in Islam, Hinduism and Christianity, there

are instances of solving the disputes in a non-belligerent manner. The

result of it is very good because there is 'no victor, no vanquished'.

Thus, 'Trinity' propagates humanity.

15. The ADR mechanism is now being used in criminal

cases also. In fact, it is good to the litigants as well as to the State and

to the Court.

16. Section 320 (1) and (2) Cr.P.C., dealing with

compounding of offences also have been used to resolve the conflicts,

in a peaceful manner. The inherent jurisdiction of High Courts under

Section 482 Cr.P.C. also has been invoked to promote compromises.

[see Gian Sigh vs. State of Punjab (2012 (10) SCC 303)], State of

Madhya Pradesh vs. Deepak and Others [2014 (10) SCC 285].

17. Criminal cases, including fit and appropriate cases

registered under Section 376 IPC can also be solved under Alternative

Dispute Resolution System.

7

18. In Ravindra vs. State of Madhya Pradesh {CDJ 2015

SC 163} when the accused who was convicted under Section 376 IPC

has married the victim and there was compromise between them, the

Hon'ble Supreme Court referring to the proviso to Section 376 IPC

considered the said aspects a special reason to reduce the sentence to

the period undergone. [Also see Wasim vs. State {CDJ 2014 DHC

2901}]. Thus, human sentiments and human elements also has been

noticed by the Court.

19. It is march of law. There is no bar to attempt at

reconciliation even in a criminal appeal where the accused has

been convicted under Section 376 IPC.

20. Earlier, in Crl.O.P.No.1881 of 2015 (Samuvel vs. The

Inspector of Police, All Women Police Station, Gummidipoondi,

Thiruvallur District) wherein the accused has been proceeded with

under Section 376 IPC and Section 4 of POCSO Act, the accused

sought for bail on 3.2.2015, while granting him bail, I have directed

both sides to go for Mediation and in the said order, in paragraph

Nos.3 to 5, I have observed as under:-

8

“3. Petitioner is 20, while the prosecutrix

is 17 years old. Prosecution version is that the

petitioner had duped and raped the

prosecutrix. Now the prosecutrix has become

mother of a child, but noboyd's wife.

4. It is a pathetic case of a young

woman. Petitioner is an eligible bachelor. Now

he is in jail for more than 50 days.

5. Some solution has to be arrived at

because there is a big question mark before

the girl. Her future is very important.”

21. Subsequently, in the said matter, as directed by this

Court, the District Legal Services Authority, Thiruvallur and the Tamil

Nadu State Legal Services Authority, Chennai pursued follow up

action. It was reported to this Court that Mr.I.A.Immanuel, Advocate,

Thiruvallur has mediated the matter and ultimately, the accused had

agreed to marry the victim girl. Now the said case is proceeding

towards an happy conclusion.

22. In the facts and circumstances, the case before us is a

fit case for attempting compromise between the parties. 'Mediation'

mode is best suited to them.

9

23. In these circumstances, keeping the appellant inside

the jail and asking him to participate in the Mediation talk will not

result in any fruitful result. He should be enabled to participate in the

deliberations as a freeman and vent his feelings, open his mind and

moorings. 'Where there is a will, there is a way'.

24. In the circumstances, ordered as under:-

(i) Refer this matter to the Mediation Center attached to

this Court;

(ii) The learned Additional Sessions Judge, Mahila Court,

Cuddalore will deposit the deposited Rs.1 lakh in Indian Bank,

Thittakudi, Cuddalore District in a Fixed Deposit in the name of

PW-1;

(iii) The Branch Manager, Indian Bank, Thittakudi shall

regularly disburse the accrued monthly interest on the said deposit to

PW-1;

(iv) Till the Mediation process is over, petitioner/A-1 is

granted interim appeal bail;

(v) There shall be two sureties, who shall be the parents of

the petitioner and they and the petitioner shall execute a bond for

Rs.10,000/- (Rupees Ten Thousand only) each to the satisfaction of

10

the said Judge;

(vi) The Mediation Center will fix a date and send notices

to PW-1 and A-1, close relatives of PW-1 and parents of A-1 shall be

made to participate in the Mediation process;

(vii) The Mediation Center will permit the learned counsels

appearing on both sides to assist the Mediators;

(viii) A-1 shall appear before the Mediation Center as and

when so ordered;

(ix) Compromise, if any, arrived at shall be reduced into a

form of a Memorandum of Understanding (M.O.U.) and it shall be

submitted to this Court.

(x) Violation of spirit of this order and terms and conditions

stated above will entitle PW-1 or the respondent-Police to move this

Court for cancellation of the interim appeal bail granted to the

petitioner.

(xi) Along with the Mediation Report, this miscellaneous

petition shall be reposted before this Court.

18-06-2015 Index : Yes/No. Internet: Yes/No. Svn

11

Copy to: 1.The Principal Sessions Judge, Cuddalore. 2.The Additional Sessions Judge, Mahila Court, Cuddalore. 3.The Member Secretary, Tamil Nadu State Legal Services Authority, Chennai. 4.The Director, Tamil Nadu State Judicial Academy, Greenways Road, Chennai-28.

5.The Secretary, High Court Legal Services Committee, Chennai. 6.The Officer In-charge, Mediation Centre, High Court, Madras.

7.The Public Prosecutor, High Court, Madras. 8.The Superintendent, Central Prison, Cuddalore. 9.The Inspector of Police, All Women Police Station, Vridhachalam, Cuddalore District. 10.The Section Officer, Criminal Section, High Court, Madras.

11.The Manager, Indian Bank, Thittakudi, Cuddalore District.

P.DEVADASS, J.

Svn

12

M.P.No.2 of 2014 in Crl.A.No.402 of 14 18-06-2015