POCSO Cases Cannot Be Referred to Mediation; Delhi HC Dismisses Revival Plea Citing Delay, Motive, and Judicial Errors

New Delhi: In a significant ruling, the High Court of Delhi has emphatically declared that cases registered under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), which are non-compoundable and serious in nature, cannot be referred to or settled through mediation. The judgment came in response to a plea by a father seeking to revive a POCSO complaint against his brother-in-law, which had been closed seven years prior based on a mediated settlement involving the parents.

Justice Swarana Kanta Sharma , presiding over the case of Rajeev Dagar vs State & Ors. (W.P.(CRL)-3080/2023), highlighted several "disturbing facts" surrounding the original handling of the POCSO complaint, including its reference to and settlement through mediation. However, the Court ultimately dismissed the petitioner's plea for revival, primarily citing unexplained delay, the petitioner's own conduct in previously settling the matter, and the apparent motive behind the revival attempt, which the Court inferred was linked to recent matrimonial discord and maintenance orders.

Case Background

The petitioner, Rajeev Dagar, filed a complaint under Section 7 read with Section 33 of the POCSO Act in 2014, alleging sexual assault on his two minor children (then aged 9 and 6) by their maternal uncle (respondent no. 2). The complaint followed earlier disputes between the petitioner and his wife (respondent no. 3), who is the accused's sister.

The Special Court dealing with the POCSO complaint initially directed the police to record the children's statements. Despite the children allegedly supporting the allegations in statements to the police and subsequently before the Court under Section 35 of the POCSO Act, the Special Court, on July 28, 2014, referred the matter to mediation "at the request of both parties to explore the possibilities for compromise between them."

A settlement agreement was reached in the Mediation Centre on August 27, 2014, primarily between the petitioner and his wife, covering matrimonial disputes and agreeing to the withdrawal of the POCSO complaint. Based on the petitioner's statement confirming the settlement, the Special Court dismissed the complaint as withdrawn on April 8, 2015.

Following the settlement, the petitioner and his wife reconciled, lived together, and had a third child in 2015. Other cross-FIRs between them were also quashed based on settlement. However, the wife and children left the matrimonial home in 2018, and the wife initiated proceedings under the Protection of Women from Domestic Violence Act, 2005. In March 2023, a Mahila Court ordered the petitioner to pay interim maintenance of Rs. 80,000/- per month to his wife and children. The petitioner filed the present writ petition seeking revival of the 2014 POCSO complaint shortly thereafter, in October 2023, after withdrawing a similar application before the Sessions Court.

Arguments Presented

The petitioner argued that the Special Court lacked the power to refer a POCSO case to mediation or dismiss it based on a settlement, especially after taking cognizance and recording the victims' statements. He contended the order was a misuse of process and sought restoration of the complaint.

Respondents, the wife and the accused brother-in-law, opposed the plea, arguing the petition was a misuse of process, filed with ulterior motives (as a counter-blast to the maintenance order), and suffered from a significant delay of nearly a decade with no proper explanation. They claimed the original complaint was false and motivated to gain child custody.

Mediation in POCSO Cases: A Strict Prohibition

The High Court undertook a detailed analysis of whether criminal cases, particularly serious non-compoundable offences like those under POCSO, can be referred to mediation. Citing precedents from the Supreme Court and the Delhi High Court, including Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) and Abhishek @ Love v. State of NCT of Delhi (2023), the Court reiterated the established principle that serious criminal offences, such as those under POCSO, cannot be compounded or compromised through mediated settlements.

The Court referenced the Supreme Court Mediation Manual and the Delhi District Courts’ Delhi Mediation Centre guidelines, noting that while certain criminal matters like matrimonial disputes (under Section 498A IPC) or cheque bounce cases (Section 138 NI Act) are considered suitable for mediation, serious non-compoundable offences are explicitly excluded.

The judgment unequivocally stated: "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." The Court warned that allowing such settlements would trivialize the gravity of the offence and undermine the rights of minor victims.

Judicial and Procedural Errors Highlighted

The Court found it "shocking" that the Special Court had referred the POCSO case to mediation, ignoring established principles and precedents. It also noted the error by the Mediator in mediating and settling the case, especially when the accused was not a party and the settlement centered on matrimonial disputes.

Further, the Court pointed out procedural errors from the outset, including the police's failure to register an FIR despite clear allegations of sexual assault and the Special Court's irregular procedure in entertaining the complaint and directing statements without formally taking cognizance or following the correct process under the Cr.P.C. or POCSO Act.

Delay and Petitioner's Conduct Fatal to the Plea

Despite finding significant errors in the original handling of the case, the High Court refused to grant the petitioner's request for revival. The Court applied the doctrine of delay and laches, noting the unexplained delay of over nine years in challenging the 2015 order of dismissal.

Crucially, the Court scrutinized the petitioner's conduct. It observed that the petitioner himself had voluntarily agreed to the settlement and withdrawn the complaint on oath before the Special Court. The Court found it "most disturbing" that the petitioner had "woken up" to seek revival only after an adverse maintenance order was passed against him in March 2023.

Citing the Supreme Court case of Mahmood Ali v. State of Uttar Pradesh (2023), which emphasized the need for courts to "read in between the lines" in cases potentially filed with ulterior motives, the Delhi High Court inferred that the petitioner's plea was likely motivated by the recent matrimonial disputes and maintenance order, rather than genuine concern for his children after such a long period.

The Court stated, "It is most disturbing that though the petition has been camouflaged in words which may project as if the petition arises out of love and concern for the children, however, the Courts of law are not ostriches who bury their heads in the sand instead of the facts of the case."

Considering that the children, now aged about 20 and 17 and living with their mother, had not themselves sought the revival of the complaint, the Court found it would be insensitive to order the reopening of their "old healed wounds of a forgotten sexual assault," especially when the petition appeared to stem from parental conflict rather than the victims' desire for justice.

Conclusion and Implications

The High Court dismissed the writ petition, rejecting the prayer to quash the 2015 dismissal order and revive the POCSO complaint.

The judgment serves as a strong reminder and directive to all judges and mediators: cases involving serious offences, particularly those under the POCSO Act, are absolutely barred from any form of mediation or compromise. Any attempt to do so undermines justice and victims' rights.

The Court urged the judiciary and mediators to embrace the spirit of mediation for suitable cases but stressed the need to adhere strictly to legal principles regarding non-compoundable offences. It provided a list of links to relevant mediation manuals and judgments for quick reference, emphasizing that while the partnership between "lawyer power" and "judicial power" has advanced ADR, it must always operate within the bounds of law and justice.

The Court concluded by forwarding copies of the judgment to the Delhi High Court Mediation and Conciliation Centre, all District Court Mediation Centres, and the Delhi Judicial Academy for necessary action and circulation among mediators.