Compounding of Sexual Offences - The Need for Development of Concrete Guidelines
Compounding the offence is the term attributed to the compromise entered by the aggrieved person/persons with the accused in which the aggrieved person/persons agree to drop the charges against the accused. Only certain offences of the Indian Penal Code (IPC) which are listed in Section 320 of the Code of Criminal Procedure (CrPC) can be compounded.
There is a paucity of judicial pronouncements and legislative research that provide a lucid understanding of why there is a need for compounding sexual offences, except for offences that fall under the category of heinous crimes. There is even less clarity on how and when they can be compounded. National Crime Records Bureau (NCRB) statistics of 2019 show that crimes against women are at an all-time high and the conviction rate is atrociously low which is why it calls for an urgent implementation of compounding of sexual offences.
The 41st Report of the Law Commission of India recommended making the offence of assault of criminal force on a woman with intent to outrage her modesty (S.354A of Indian Penal Code) compoundable, without providing any justification as to why it is needed. The 154th Report of the Law Commission of India recommended making cruelty on a woman by her husband or his relatives (S.498A of Indian Penal Code) compoundable. But, same as before, it did not outline any guidelines about the procedure. The 237th Report of the Law Commission of India, again failed to elaborate on the procedure and the requirements for legal compounding of an offence. Advocates have overcome this lacuna in the legislation with the aid of S. 482 of The Code of Criminal Procedure (CrPC). They have approached the Court under this provision and the Courts have made accommodations as and when they have deemed it to be necessary. Nevertheless, there is a need for concrete guidelines to ensure that the ends of justice are fully met.
This article aims to analyse why there is a need for development of concrete guidelines for compounding sexual offences which are not heinous in nature and when and how it can take place within the Indian criminal justice system.
The need for compounding sexual offences except for offences that fall under the category of heinous crimes
Considering the grim ground reality of the inefficiency of the law enforcement system in India and the huge pendency of cases in courts, there is a dire need for compounding sexual offences which are not heinous in nature. In the recent judgement of Shilpa Mittal v. State of NCT of Delhi and Ors., the Supreme Court reiterated its stand on the definition of heinous crimes. Only those crimes for which the minimum punishment is seven years or more in the Indian Penal Code (IPC) or any other law in force shall come under the category of ‘heinous’ crimes.
The need to compound sexual offences arises from the acute lack of conviction in sexual offences. This is because of several factors that come into play. In most cases, during the course of the trial, the witnesses turn hostile. The learned Judge, in the case of Maru Ram v. The Union of India had made the observation that in most cases, not only strangers, but even immediate family members and neighbors turn hostile as the trial proceeds. The threat meted out to them by the hardened and professional criminals and the lack of an effective witness protection program results in this. Due to lack of evidence and the witnesses turning hostile, most of the time, the sentence awarded is reduced to an extent that it is nothing compared to the offence that has been committed.
Compounding the offence shall result in the criminal being at large. The principal purpose of justice which is deterrence and preservation of the society’s sense of security shall remain unfulfilled. But the unfortunate, yet undisputed fact remains that the condition of prisons in India is such that by the time a prisoner is released from the prison, the chances of him/her feeling remorse for his/her actions is next to nothing. If prisons were actually successful in inculcating repentance in the criminals, then most prisoners wouldn’t have a record of past crimes against their name. However, that is not the case. In addition to this is the fact that even after the existence of fast track courts, criminal trials drag on for years. Justice delayed is justice denied and compounding of the offence at the option of the victim shall deliver justice at a swifter date.
Taking into account all the factors stated above, it won’t be surprising if a victim would rather reach a settlement in which he/she is gratified in some tangible way instead of choosing reformative justice. The learned Judge, taking into consideration the financial standing of the perpetrator and the facts of the case, can order a settlement that does justice to the crime committed. The present article does not advocate for the rich getting away with anything. In this scenario, the perpetrator, irrespective of being rich or poor is getting away, but at a significant cost. The awarding of the compensation could be done in the manner similar to that of awarding of maintenance in divorce cases; i.e., by taking into account the financial status of the perpetrator and the suffering caused to the victim. Needless to say, no amount of money can ever compensate the trauma caused to the victim but the tangible gratification will invariably be much more beneficial to the victim than a prison sentence of an insignificant time period. The present article manifests that sexual offences should be made compoundable only when it is evident to the learned Judge that an offence has been committed, but due to the inefficiency of the law enforcement officials, witness and evidence tampering, the Judge is unable to bring the perpetrator to justice through reformative means.
The Indian criminal justice system is such that the accused has been bestowed with several rights, particularly from the notion of ‘innocent until proven guilty’ to the right to representation and protection of life and personal liberty, except in accordance with procedure established by law. Whereas, the victim is a mere onlooker of the proceedings. In the case of Rieman v. Morrison, it was concisely observed by the learned Judge that compounding is nothing but giving the agency back in the hands of the victim to choose an outcome that is more restorative than retributive in nature. Compounding an offence at the option of the victim, balances the power play to an extent and gives the victim a say in the matter.
In a society as diverse as India, there cannot be a straitjacket formula to serve justice to a crime that is sexual in nature. The purpose of justice can be fulfilled only if he/she is in a better position than they were when they approached the Court. Bearing in mind that when a crime of this intensity takes place, the society is scandalized as well. But the purpose of justice will be fulfilled only when the victim is compensated to some acceptable extent. The victim should be allowed a free hand to decide if he/she wants reformative justice or a settlement. The settlement of a sexual offence must be done under the supervision of the learned Judge. This would ensure a fair settlement, devoid of undue influence and that too only in cases where justice through reformative means is inadequate. Therefore, it is high time that concrete guidelines are developed to compound sexual offences in order to ensure that the ends of justice are fully met.
Endnotes:  Shilpa Mittal v. State of NCT of Delhi and Ors., (2020) 2 SCC 787.  Maru Ram v. The Union of India, (1981) 1 SCC 107.  Rieman v. Morrison, (1914, Supreme Court of Illinois, United States).