[This Article has been authored by Kritvee Sharma, a second-year, B.A. LL.B. (Hons.) student and Ritwik Sharma, a fourth-year, B.A. LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab.]

Introduction

In September 2025, Justice B.V. Nagarathna advocated expanding the scope of mediation beyond commercial disputes in India. Settlement agreements reached through mediation can reduce the burden of pendency on courts even in criminal law, where settlements between the victim and the offender can lead to compounding of offences under Section 320 of the Code of Criminal Procedure, 1973 (‘CrPC’) or Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’). Considering that compounding is restricted to the offences listed under these sections, settlements made for non-compoundable offences do not yield compounding even when the complainant wishes to withdraw the case. The Supreme Court in Ramgopal v. State of M.P. suggested that the list of compoundable offences should be expanded to promote reconciliation between parties. However, for certain non-compoundable offences such as rape, the Court has rejected the possibility of compromises as doing so adds additional burden on the victim. In State of M.P. v. Madalal (‘Madanlal’), the Supreme Court observed that for offences which defile a human being’s dignity and reputation, a liberal approach or mediation is thoroughly and completely illegal. 

Nevertheless, it remains possible under Section 482 of the CrPC or Section 528 of the BNSS for a High Court to quash criminal proceedings in non-compoundable offences on the ground of a settlement between the victim and the offender. In Gian Singh v. State of Punjab (‘Gian Singh’), the Supreme Court identified criminal offences that predominantly bear a “civil flavour,” in which the wrong, in essence, is in personam. It was held that the High Court can quash the criminal proceeding to secure the ends of justice if there is a full and complete settlement between the victim and the offender. In furtherance of the discourse on which offences can be categorised as having a civil flavour, capable of being resolved through alternative dispute resolution mechanisms, this piece advocates the use of victim-offender mediation (‘VOM’) as a means of restorative justice in criminal cases.

Recognized Statutory Practices of Restorative Justice in India’s Criminal Law Framework

Presently, VOM does not enjoy any express statutory recognition in India. We argue that it can be incorporated as a tool for restorative justice in civil-flavour criminal cases within the existing BNSS framework. For example, compounding under Section 359 provides the offender with acquittal at any time before the judgment is delivered, if the victim freely consents to this arrangement. Additionally, the option of plea bargaining is also available under Chapter XXIII of the BNSS at the pre-trial stage. However, the ‘restorative’ nature of these options is questionable until the process of reaching a settlement is formalized akin to VOM. Since terms such as ‘compounding’ and ‘settlement’ are not statutorily defined under the Sanhita and are largely interpreted by courts, there is a scope for misuse until a well-defined term such as ‘mediation’ is used. Under the Mediation Act, 2023 (‘Mediation Act’), the settlement agreement reached as a result of the mediation is recognised formally, and the integrity of the process is protected by statutory safeguards to ensure the autonomy and consent of each party. Hence, employing VOM as a formal process in criminal cases can help reduce the burden on courts, without causing prejudice to the victim.

A. VOM as a Tool to Reach Settlement Agreements for Compounding or Quashing

Settlement agreements between the victim and the offender through VOM can be used for compounding as well as quashing of offences. In Gian Singh, the Supreme Court explained the procedural distinction between compounding under Section 320 of the BNSS and the quashing of a criminal proceeding by a High Court under Section 482 of the CrPC in exercise of its inherent jurisdiction. The primary difference between the two is that compounding can occur only for the offences listed under Section 320, subject to the procedural requirements set out thereunder, whereas Section 482 is a discretionary power exercisable only by the High Court to secure the ends of justice. 

The Supreme Court in Shiji @ Pappu & Ors v. Radhika & Anr. held that a High Court cannot refuse to exercise its power under Section 482 CrPC merely because an offence is not compoundable under Section 320 CrPC. The Court specifically recognised that where a criminal case has its origins in a civil dispute between the parties, and the dispute has been amicably resolved by the parties, the continuance of the proceedings would become an empty formality and could justifiably be quashed under Section 482. The Supreme Court in Ashok Sadarangani & Anr vs Union Of India & Ors built upon this position further by stating that Section 482 is invoked when exceptional circumstances warrant the exercise of such power, and when the continuance of a criminal proceeding would either amount to an abuse of the process of the Court or turn out to be a futile exercise.

The Supreme Court in Gian Singh referred to both of the aforesaid judgements to emphasise that offences bearing a civil flavour ought to be quashed under Section 482 if a settlement between the parties is reached, rendering the probability of conviction minuscule thereafter. In this context, VOM can act as a tool to reach settlement agreements in compoundable as well as non-compoundable offences, as long as they are of a civil nature and arise from a civil dispute, the continuance of which would become an empty formality and a futile exercise that is contrary to the ends of justice. This position is supported by Narinder Singh & Ors. v. State Of Punjab (‘Narinder Singh’), where the Supreme Court laid down principles to guide High Courts on when to exercise the power under Section 482 to accept a settlement and quash a proceeding.

Based on the interpretation of Narinder Singh, the most relevant factors of consideration for a settlement reached through VOM include (i) the nature of the crime; (ii) whether it has been committed under a special statute; and (iii) who the offender is. Following the Court’s principles, a settlement reached through VOM can be lead to the quashing of the criminal proceeding only when the offense is, firstly, a private one and not a heinous or serious crime of mental depravity such as murder or dacoity; secondly, is committed under a general statute such as the Bharatiya Nyaya Sanhita, 2023 (‘BNS’) and not a special statute such as the Narcotic Drugs and Psychotropic Substances Act, 1985; and thirdly, is committed by an ordinary citizen and not a Public Servant under Section 2(28) of the BNS.

Naturally, this interpretation is also in line with the position in Madanlal. Since courts have already excluded the possibility of reaching a settlement in heinous offences such as rape, VOM cannot be misused by offenders to coerce victims into reaching a settlement.

B. Impact of the Mediation Act on VOM

Before the enactment of the Mediation Act, compounding under the BNSS could not be interpreted as institutional mediation, since the concept was never statutorily recognised. It is, however, important to note that, even when mediation was not recognised under the BNSS, it still allowed offences to be compounded after parties reached a voluntary settlement. Presently, the expression ‘mediation’ under Section 3(h) includes within its ambit a broader definition. The use of the term ‘an expression of similar import’, followed by ‘whereby parties attempt to reach an amicable settlement’, indicates that compounding of offences can be considered through the result of a VOM as long as the dispute is resolved with the assistance of a third-party.

The first proviso to Section 6 of the Mediation Act, 2023, empowers any court to refer a dispute relating to compoundable offences to mediation, notwithstanding other criminal offences which are not considered fit for mediation under the Act. Thus, no criminal offence can be submitted to mediation unless it is a compoundable offence, since disputes involving prosecution for criminal offences are not considered fit for mediation under Section 3 of the First Schedule of the Mediation Act. Consequently, a non-compoundable offence cannot be submitted to VOM under the Act, even if it is one of a civil flavour as described in Gian Singh.

This means that a settlement through VOM is possible for both non-compoundable and compoundable offences, effectuated through the High Court’s power under Section 482 of the CrPC for criminal proceedings instituted before September 15, 2023, i.e., when the Mediation Act came into force. However, for proceedings instituted afterwards, compoundable offences may be compounded under Section 359 of the BNSS after a settlement agreement is reached through VOM recognised under the first proviso to Section 6 of the Mediation Act. For non-compoundable offences, a settlement agreement cannot be recognised under the Mediation Act, but a voluntary agreement between the parties can still be given effect to through the High Court’s power to quash the proceedings under Section 528 of the BNSS. While that wouldn’t be considered a result of mediation under the Act, it still qualifies as a restorative practice that is described in other jurisdictions as “victim-offender dialogue” (‘VOD’). 

The Way Forward

The 237^th Law Commission Report (‘the Report’) on compounding of offences cited Ramgopal v. State of M.P., in which the Supreme Court observed that there is a need to amend the criminal law statutes to expand the list of compoundable offenses as it not only helps reduce pendency of cases, but also furthers reconciliation between the parties. While the Report rightly emphasises the potential ramifications of expanding the list, VOM can be considered a possible solution to address such challenges while protecting the victim from unintended consequences. Using VOM to reach settlements through institutional mediation in private offences not only promotes restorative justice but also provides for an in-built safeguard mechanism to prevent misuse. While the High Court’s power under Section 528 of the BNSS is wide enough to include effectuating settlement agreements reached through VOM for compoundable offences and VOD for non-compoundable offences, the well-settled position of law to exercise this power with great caution after Gian Singh can prevent misuse.

Therefore, akin to jurisdictions such as the United States, where VOM has been used extensively in criminal justice administration to repair the harm caused to victims, the Indian jurisdiction must also make prudent use of Section 528 to further the prevalence of VOM in India. Doing so will help truly utilise the mechanisms provided for in the Mediation Act to promote reconciliation and restorative justice.