Chapter- I


Alternative Dispute Resolution (ADR) is an alternative route for reaching a speedier and less-expensive mode of settlement of disputes. It includes mediation, settlement of disputes, arbitration and other ways that are voluntary and not compulsory.

Most countries of the world have adopted ADR mechanism and achieved tremendous success in reducing backlog and increasing access to justice for the poor.

What is ADR?

The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are short of,  alternative to,  full-scale court processes or judicial process. In other words, when disputes between parties are resolved through means which are alternative to formal litigation,  this is called alternative dispute resolution.  ADR is a process which may be freestanding  (non-judicial) or court annexed (judicial),  binding or non-binding,  formal or informal,  mandatory or voluntary in nature.  It is to be emphasized that the term ‘ADR’ is misleading in a sense that it is not always alternative to formal litigation and very often it is a part of litigation particularly for those ADR process which are court connected.  Professor Thomas J.  stipanowich states that the name ADR is an outmoded  acronym that survives as a matter of convenience only.  A California task force observed,  “not  only is ‘alternative’ unhelpful-alternative to what?- but “appropriate” better conveys the concept of “method best suited to resolving the dispute”. Professor Jean R.  Sternlight has preferred the phrase ADR as “Appropriate Dispute Resolution” rather than “Alternative Dispute Resolution”

Chapter II


Origin of ADR

As a means of non adversarial system, alternative dispute resolution (ADR) is a buzz phrase and much talked about mechanism at almost every legal system varying from adversarial to inquisitorial one. ADR as a consensual form of dispute resolution is being practiced almost in all disputes from family to business except grievous criminal issues and also has proven to be effective mechanism for dispensation of justice. It refers the ways of settling disputes outside of the traditional court room setting and also within court as a format of court sponsored one with and without the intervention of the court. Over the ages, the disillusionment and frustration of people over the cost, inordinate delay in dispensation of justice through judicial dispute resolution (JDR) looms large as a great threat to erode the confidence of people in the justice system expanding the use and scope of ADR.

The means of JDR can be traced throughout history in various laws and religious codes over the past 5000 years, starting with the laws of Hammurabi, a Babylonian ruler from about 2500 BC while the ADR perhaps can be founded even long before the development of code and laws but with the existence of human being in the earth. The basis for JDR is to determine the rights and obligations of the parties and award the winners and also punish the losers reflecting a zero some theory of game while the basis of ADR is social consciousness and moral obligation with voluntary participation to settle the disputes to restore social harmony and peace.

The philosophical basis of ADR is perhaps drawn from Confucianism which in a phrase ‘calling for ruling by virtue’ during 551-478 BC, although the Chinese predisposition to seek dispute resolution through ADR as opposed to litigation is rooted in at least three sources viz. Confucian philosophy, the unavailability and inadequacy of the court system, and a social structure that emphasized small, stable units.

In ancient China, inspired by Confucianism, ADR became the primary method of settling disagreements. The philosophy of Confucius, was, in essence, one of harmony, of peace and of compromise and according to him the best way of resolving disagreement or dispute is by moral persuasion and compromise instead of by sovereign coercion. Chinese agreed that the foundations of the community are ethical rules which require that the state of a natural harmony in human affairs should not be disrupted. These are based on the strong belief that laws are the not the appropriate way to regulate daily life and hence should only play a secondary role reflecting ancient adages of China i.e. ‘in death avoid hell and in life avoid the law courts’ and also ‘going to court means getting a goat selling a cow’.

Experience of Developed Countries

All countries, following the common law system, have faced this problem of delay and excessive expenses in the disposal of civil cases at some point or the other in their respective legal history, as also the problem of apathy of judges and lawyers. Developed countries like the U.S.A., Australia and Canada have witnessed a few decades back huge backlog of cases, excessive legal costs and expenses and litigants’ misery, as we are witnessing now in our country.

Lawyers and judges of developed countries did not look upon the Government to solve what was essentially a problem of administration of justice that concerned lawyers and judges themselves. In many areas of these countries, some thirty plus years back, public-spirited judges and lawyers put their heads together and devised a common strategy to solve the problem of huge backlog of cases, delay in the disposal of cases and excessive expenses in litigation.

Their Perception of Adversarial System

What they found was that the adversarial system prevalent in common law countries were no longer adequate to address the growingly complicated technical legal problems of modem-day litigation. The adversarial system creates two mutually contending, exclusive, hostile, competitive, confrontational and uncompromising parties to litigation. This system does not generate a climate of consensus, compromise and co-operation. As litigation progresses it generates conflict after conflict. At the end of litigation one party emerges as the victor and the other party is put to the position of the vanquished. Adversarial litigation does not end in a harmony. It creates more bitterness between the parties that manifests itself in more litigation between them or even their successors. However, judges and lawyers of developed countries found that the alternative is not to do away altogether with the adversarial system. The adversarial system plays a positive role too. It settles through adversarial hearing complicated and disputed questions of fact and law. The law that superior courts lay down to be followed by subordinate courts and tribunals can never be arrived at without following the adversarial procedure. Any court cannot lay down any law by way of compromise, consent or consensus of parties to litigation.

Their Adoption of Consensual System as an Alternative not Substitute

Beyond the territory of complicated questions of fact and law there lies a vast area of litigation where the adversarial system must yield to a consensual type of dispute resolution, even though there are complicated technical legal problems in this vast area as well. The consensual type is essentially a type and a process of dispute resolution that requires judges, lawyers and the litigant public to change their century’s old mind-set and to adjust gradually to play a combined and co-operative role in the resolution of disputes. In an adversarial system a judge has a passive role to play. He/she will take the evidence as it comes, hear the parties and deliver his/her judgment without getting involved in the entire dispute resolution process. In a consensual system the judge, the lawyers, litigants and outside mediator or evaluator are all active parties to the resolution of dispute. It is informal, confidential, speedy and less expensive. It preserves the jurisdiction of the trial court to try the case on merit, if A.D.R. fails.

Chapter III

Purpose of ADR:

The ADR Practitioners’ Guide spells out how ADR can serve different objectives.It explains that ADR systems may be designed tomeet a wide variety of different goals.Some of these goals are directly related to improving the administration ofjustice and rule of law.Some, however, are related to other development objectives,such as economic restructuring, orthe management of tensions and conflicts in communities.Efficient dispute resolution procedures may be critical to economic development objectives where court delays or corruption inhibit foreign investment and economic restructuring.

Purposes in the context of Rule of Law:

Within the context of rule of law initiatives,ADR programs can:

1.Support and complement court reform;

2.By-pass ineffective and discredited court system and procedure;

3.Increase popular satisfaction with dispute resolution;

4.Increas access to justice for disadvantaged group;

5.Reduce delay in the resolution of dispute;

6.Reduce the cost of resolving dispute;

Purposes in the context of other developments:

In the context of other development objectives,ADR programs can:

  1. Increase civic engagement and create public processes to facilitate economic restructuring and other social change;
  2. help reduce the level of tension and conflict in a community;
  3. Manage disputes and conflicts that may directly impair.

ADR can help accomplish rule of law objectives:

ADR programmes may support and complement court reforms by:

(i)   removing case backlog which impairs court effectiveness.

(ii)  Assisting illiterate or poor who cannot afford can better or manage their way within them.

(iii) Introducing small informal systems which can better reach geographically dispersed population.

ADR programs can support a mission objective to reform the court stystem in several ways. ADR can be used by the judiciary to test and demonstrate new procedures that might later be extended to or integrated with existing court procedures. ADR systems can be created as an option within the judicial system, either associated with the courts as a way of managing existing caseloads, or separate from the courts to provide dispute resolution for conflicts or constituencies not well served by the courts.

ADR may be a mode of providing Justice for populations not well-served by the courts:

In South “Africa, India, and Bangladesh, ADR programs were developed to by-pass corrupt, biased, or otherwise discredited court systems that could not provide reasonable justice for at least certain parts of the population (backs, the poor, or women). In Sri Lanka, the reputation of the courts is relatively good, but they were ineffecgtive in resolving many local and small disputes because of high costs and long delays. The Mediation Boards there have evolved as a substitute for the courts, but enjoy the support of the judicial system. Bolivia, Haiti, Ecuador, and El Salvador are developing systems involiving government support for independent, local, informal dispute resolution panels to serve parts of the population  for whom the courts are ineffective.

ADR can increase satisfaction of disputants with outcomes

    High cost, long delay, and limited access undermine satisfaction with existing judicial processes.

    Cultural norms emphasize the importance of reconciliation and relationships over “winning’ in dispute resolution.

    Considerations of equity indicate that creativity and flexibility are  needed to produce outcomes satisfactory to the parties.

    Low lrates of compliance with court judgments (or a high rate of enforcement actions) indicate a need for systems that maximize the likelihood of voluntary compliance.

    The legal system is not very responsive to local conditions or local conditions vary.

When evaluations of ADR systems have included an assessment of overall user satisfaction, the ADR systems have generally compared favorably to formal legal structures.

ADR programs can increase access to justice for disadvantaged groups:

    Use of formal court systems requires resources unavailable to sectors of the population.

    Formal court systems are biased against women minorities, or other groups.

    Illiteracy prevents part of the population from using formal court systems.

    Distance from the courts impairs effective use for rural populations.

Reducing the cost to parties:

Many poor are denied access simply because they cannot afford to pay the registration and representation fees necessary to enter the formal legal system. ADR system can help reducing this cost.

Reducing the formality of the legal process:

Several studies indicate that the formaligty of court stystems intimidates and discourages use. In India and Bangladesh, for example, the court requirement of legal representation is both costly and intimidating for people who may not be comfortable interacting with lawyers from a different caste or class. All of these factors contribute to greater usage of and preference for informal processes.

Overcoming the barrier of illiteracy :

In some countries, access is effectively denied because the formal system requires a level of literacy that many in the country do not have. In these countries, the formal legal processes are especially intimidating for large numbers of illiterate citizens. In Bangladesh, the Madaripur Legal Aid Association was originally established to provide assistance and representation for the poor and illiterate.

ADR programs can reduce delay in the resolution of disputes :

    Delays are caused by complex formal procedures.

    Court resources are insufficient to keep up with case backlog.

Delays are endemic in most court systems throughout the world and affect a number of development objectives. In some cases, delays are so extreme that they effectively deny justice, particulary to disadvantaged groups who may not be able to “grease the wheels” of the justice system. In other cases, delays in the resoluation of commercial disputes impair economic development and undermine the efficiency of the economy. Informal dispute resolution (mediation and settlement programs), or simplified procedures for dispute resolution (arbitration systems), can significantly reduce dispute resolution delay, and indirectly reduce court backlog by redirecting cases that would otherwise go to court.

Chapter IV

Types of ADR in Criminal Cases:

ADR in criminal cases may be of two types: compounding of offences and plea bargaining. In Bangladesh section 345 of the criminal Procedure Code provides for in-built provisions in for compounding although there is no such provision of plea bargaining in the Code.


Plea bargaining may be defined as an agreement in a criminal case between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally made the accused aware that his sentence will be minimized, if the accused pleads guiltyin other words, it is an instrument of criminal procedure which reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases.

Types of Pea Bargaining:

’Plea Bargaining’ can be of two types. Charge bargain and se ntence bargain. Charge bargain happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only some of the charges framed against him. Prosecution generally has vast discretion  in framing charges and therefore they have the option to charge the defendant with the highest charge that are applicable.  ‘Charge Bargain’ gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may have framed against him. As far as sentence bargain is concerned, it happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty. A sentence bargain may allow the prosecutor to obtain a conviction in the most serious charge, while assuring the defendant of an acceptable sentence.

How does the System of Plea Bargaining operate?

For this topic it would be helpful to discuss the Indian provisions of plea bargaining. A new chapter, that is chapter XXIA on ‘Plea Bargaining’, has been introduced through the Criminal Law (Amendment) Act, 2005. Features of this scheme are as under:

  1. A person accused of an offence may file an application for Plea Bargaining in the court in which such offence is pending for trial.
  2. The court, on receiving the application, must examine the accused in camera to ascertain whether the application has been filed voluntarily. The court must then issue notice to the Public Prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation of such a mutually acceptable settlement is left to the free will of the prosecution (including the victim) and the accused. The complainant and the accused are given the case, which may include giving to the victim by the accused, compensation and other expenses incurred during the case.
  3. Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for such offence. If a settlement is reached, the court can award compensation based on it to the victim and then hear the parties on the issue of punishment. The court may release the accused on probation if the law allows for it; if a minimum sentence is provided for the offence committed, the accused may be sentenced to half such minimum punishment; if the offence committed does not fall within the scope of the above, then the accused may be sentenced to one-fourth of the punishment provided or extendable for such offence. The accused may also avail of the benefit under Section 428 of the Code of Criminal Procedure, 1973 which allows setting off the period of detention undergone by the accused against the sentence of imprisonment in plea-bargained settlements.
  4. The statement or facts stated by an accused in an application for plea bargaining shall not be used for any other purpose other than for plea bargaining.
  5. Once the court passes an order in the case of ‘Plea Bargaining’ no appeal shall lie to any court against that order.

Limits of Plea Bargaining:

In a country like Bangladesh the provision of plea bargaining should not be introduced for all offences. For instance, in India three categories of offences have been left outside of net of plea bargaining.

  1. Those offences affecting socio-economic conditions of this country, which the Government would notify.
  2. The second category of exclusion comprises offences committed against women.
  3. The opportunity category second category of exclusion comprises offences committed against women.
  4. The third consists of offences committed against children below the age of 14. Despite such vast areas of exclusion there are many offences for which the accused will be entitled to avail themselves of the advantages of plea bargain.

Objects of Plea Bargaining:

Although the Indian Supreme Court has time and again blasted the concept of plea bargaining when the Government introduced the concept in the CrPC in line with the recommendation of the Law commission, the court stated in Rajinder Kumar Sharma and Anr v. The State that the legislature has introduced plea bargaining under law so as to benefit such accused persons who repent upon their criminal act and are prepared to suffer some punishment for the act. The purpose of plea bargaining is also to see that the criminals who admit their guilt and repent upon, a lenient view should be taken while awarding punishment to them. The statement of objects and reasons in the Indian Bill on Plea Bargaining specifies that the disposal of criminal trials in the courts takes considerable time and that in many cases trial do not remitted to judicial custody. Plea bargaining although not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases.

In Bangladesh the need and objects of introducing plea bargaining may be viewed from the following four aspects:

  1. From the viewpoint of public interest (the criminal justices system as a whole);
  2. From the viewpoint of the accused person;
  3. From the viewpoint of the prosecutors; and
  4. From the viewpoint of the victim of the offence.

Benefit to Criminal Justice System (Public Interest):

  1. In Bangladesh courts are over burdened with pending cases, the trial life span is inordinately long and the expenditure is very high. The abnormal delays in the disposal of criminal trials and appeals have been a matter of grate concern from the view point of administering criminal justice. As of December, 2006 a total of 7,69,582 criminal cases are pending before lower courts (2,05,211 in Sessions Courts and 5,64,371 in Magistrates’ courts) against a limited number of 583 judges and magistrates (64 Sessions Judges 98 Additional Sessions Judges, 583 Magistrates of which all are not trial magistrates). This huge number of pending cases is a matter of great concern not only for the state but also for prisoners reduce this horrendous number of pending cases as the introduction of the same in various countries has resulted in tremendous success.
  2. If an accused person in not released on bail, he rots in the jail custody increasing the already over crowded prisons which have been accommodating triple the number of its capacity of inmates. As of July, 2008, the total number of prisoners in 67 prisons in Bangladesh stood at about 87,011 against a capacity of 27,451. There are huge number of inmates who cannot bear the financial burden of taking his case in prison. It is likely that if plea bargaining is introduced thousands of inmates would apply for plea bargaining. With lighter sentence rather than languishing in jail for an indefinite period.
  3. The rate of conviction is very low. Although there is no official statistics on conviction and acquittal, one researcher suggests that the conviction rate in all courts of Bangladesh is only around 10%. In other words, at the end of long awaiting trial if majority offenders get acquittal, the merit-based trial system is bound to come under serious question. The reasons for this low rate of conviction is weak, faulty and manipulated police investigation, inefficient, political and transitory nature of public prosecutors’ work and large scale corruption practiced in the law courts by stakeholders.
  4. Resources both in the form of finance and manpower would have to be significantly increased to provide a country like Bangladesh. If plea bargaining is introduced, this burden on the part of the state would be reduced considerably. Considerable resources of the state would be saved.

Benefit to the Accused and Prisoner:

  1. For most defendants the principal benefit of plea-bargaining is receiving a lighter sentence than what might result from taking the case to trial and losing. Another benefit which the defendant gets is that they can save a huge amount of money which they might otherwise spend on advocates. It always takes more time and effort to bring a case to trial than to negotiate and handle a plea-bargain. Incentives for accepting plea-bargaining, as far as judges and prosecutors are concerned are obvious. Overcrowded courts do not allow the judges to try ever case that comes before them. It also reduces the caseloads of the prosecutors.
  2. The defense is saved from the anxiety of uncertainty of the result of the trial and the cost of defending the case on the assurance of lighter known sentence to be suffered by him.
  3. If an accused deprived of the privilege of bail, especially indigent ones, spends long period in jail custody he may be persuaded to enter a guilty plea in initiative can be taken by the prosecutor or the judge in case the accused is undefended.
  4. Rehabilitation process of offender would be initiated early.

Benefit to the Prosecutors:

  1. The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to higher courts.
  2. By using plea bargaining both the prosecution and judges can save times and avoid uncertainty of the result of a contested trial in disposing of criminal cases.

Benefit to the Victim:

Victims would be spared the order of giving evidence in court, which could be a distressing experience depending on the nature of the case. Victim would be benefited in the sense that accused is at the end of the day coming out with a guilty verdict, although with a lesser punishment. At present through a long and tiring saga of trial in lower court, appeal and/or revision in the accused comes out with acquittal in almost 90-95% criminal cases, every languishing hope of the victim is deshed and very often he or she feels cheated by justice system itself. In such situation the victim will get the sense of justice by introducing plea bargaining.

In view of the above points it is clear that although plea bargaining is a disputed concept and it undermines the public’s confidence in the criminal justice system, we have no other choice but to adopt this technique like India. The criminal courts are too over burdened to allow each and every case to go on trial.

Concerns with Plea Bargaining:

First, it is often argued that if plea bargaining is introduced, the incidence of crime might increase due to criminals being let-off easily. However, experience suggests hat this is not true because the judge or the authority considering the acceptance or otherwise of the request for confessional treatment would weigh all pros and cons and look into the nature of the offence and exercise its discretion in granting or rejection the request.

Second, it is also argued that if plea bargaining is introduced, criminals may escape with impunity and escape due punishment. This is also not true because the plea bargaining scheme provides stigma of conviction would persist always.

There are some other concerns with plea bargaining which are as follows:

  1. Involving the police in plea bargaining process would invite coercion.
  2. By involving the court in plea bargaining process, the court’s impartiality is impugned.
  3. Involving the victim in plea bargaining process would invite corruption.
  4. If the plead guilty application of the accused in rejected then the accused would face great hardship to prove himself innocent.

Plea Bargaining and Compounding of Offences:

It is sometimes argued that instead of introducing the provision of plea bargaining expanding the list of compoundable offences would serve the purpose of reducing pending cases. However, extending the list of compoundable offences is not a wise option. This is because of two main reasons. First, compoundable offences are essentially those offences which are of private nature and can be reconciliated in principle with the victim. Some of them are compoundable with the permission of the court and some are compoundable without permission of the court. Second, compounding of offences has the effect of an acquittal and there is no admission of guilt by the accused envisaged in the process. This, however cannot be applicable to serious offences. Since a crime is essentially a wrong against society, a compromise between the accused and the victim does not ideally serve to absolve the accused from criminal responsibility particularly for those offences which are not private in nature. This is why there is no alternative to plea bargaining for serious offences and in this scheme the accused must plead guilty although he will come out with lesser punishment. It is on this basis that the argument for extending compoundable offences so as to allow courts to function expeditiously is misplaced.


Different types of ADR in Bangladesh:

there are three streams of ADR in Bangladesh:

  1. Extra- judicial or community based ADR (informal);
  2. ADR in Quasi-formal systems; and

Formal ADR in different laws are shown in the diagram below:

Formal ADR in


Code of Civil Procedure (sec. 89A, 89B, 89C

Family courts Ordinance, 1985 (sec. 10)

Muslim Family Laws Ordinance 1961 (sec. 7, 8)

ArtharinAdalat Ain, 2003 (sec. 21, 22)

Negotiation,Conciliation, Arbitration (sec. 210 of the Labour Code, 2006)


Part of litigation

3.3. Informal ADR in Bangladesh

Informal ADR in Bangladesh includes traditional shalish and NGO modified Shalish. Quasi-formal ADR includes village court and Board of Conciliation have originated from the informal shalish system and this is why they all have been shown in the following single diagram.

3.4. ADR in different Bangladeshi Laws:

  1. The Code of civil procedure, 1908.
  2. The Code of Criminal procedure, 1898.
  3. The Artha Rin Adalat Ain, 2003.
  4. The arbitration Act, 2001.
  5. The Bankruptcy Act, 1997.
  6. The Muslim Family Court Ordinance, 1985.
  7. The Muslim Family Law Ordinance, 1961.
  8. The Gram Adalat Ain, 2006.
  9. The Settlement of Disputes (Paura Area) Board Act, 2004.

ADR Under code of civil procedure 1908

89B. Arbitration.- (1) If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the Court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes, thereafter, shall be settled in accordance with Salish Ain, 2001 (Act No. 1 of 2001) so far as may be applicable:

Provided that, if, for any reason, the arbitration proceeding referred to above does not take place or an arbitral award is not given, the parties shall be entitled to re-institute the suit permitted to be withdrawn under this sub-section.

(2) An application under sub-section (1) shall be deemed to be an arbitration agreement under section 9 of the Salish Ain, 2001 (Act No. 1 of 2001).

89C. Mediation in Appeal.- (1) An Appellate Court may mediate in an appeal or refer the appeal for mediation in order to settle the dispute or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.

(2) In mediation under sub-section (1), the Appellate Court shall, as far as possible, follow the provisions of mediation as contained in section 89A with necessary changes {mutatis mutandis) as may be expedient.

Modes of ADR in Artharin Adalat Ain:

The Act provides for single mode of ADR and this is mediation s defined and described in section 22 of the Act. Unlike before the adoption of the process of mediation is compulsory after Submission of written statement. Once the written statement is submitted, the court must send the suit to appointed lawyer or to ite parties to settle the suit matter by way of mediation.

ADR in Criminal Cases:

ADR in criminal cases may be of two types: compounding of offences and plea bargaining. In Bangladesh section 345 of the Criminal Procedure Code provides for in-built provisions for compounding although there is no such provision of plea bargaining in the Code.

Compounding Offence:

Compounding means compromise or amicable settlement. In civil proceedings there are provisions of arbitration, mediation, conciliation and lots of other compromise between plaintiff and defendants. In criminal proceedings, on the other hand, the usual rule is that all crimes are against the state and therefore no compromise is possible between the offender and the victim without the intervention of the state. However, the law on CrPC makes some provisions which allow some specific offences to be compounded. Offences which may lawfully be compounded are mentioned in section 345. An offence created by a special law is non-compoundable. The court cannot allow compounding of an offence which is not compoundable under section 345. Neither can the offender and the victim make an agreement to compound, settle or withdraw a complaint with regard to an offence which is not mentioned in section 345. If any compounding is made otherwise than mentioned in section 345, that compounding will be illegal and section 213 and 214 provide punishment for illegal compounding. Thus for the purpose of compromise in criminal groups: compoundable offences and non-compoundable offences. Offences mentioned in section 345 are compoundable and the rest are non-compoundable.

Categories of Compoundable Offences: Compoundable offences may be of two types:

  1. Those which can be compounded without the permission from the court; and
  2. Those which cannot be compounded without Both the categories have been shown in table below.

Object of Compounding:

The principle of English law is that the composition of an offence is illegal if the offence is one of public concern, but lawful if the offence is of private nature and for which damages may be recovered in a civil action. This principle is adopted in our system and the CrPC lays down the cases which are compoundable. The tabulation of the offences removes all uncertainty and must be taken as a complete guide. The policy of the legislature adopted in section 345 is that in the case of certain minor offences, where the interests of the public are not vitally affected, the complainant should be permitted to come to compromise with the party against whom he complains.

Other Conditions about Compounding: There are some other conditions with regard to compounding offences under section 345 which are as follows:

  1. When any offence is compoundable under this section the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.
  2. When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence.
  3. When the accused has been sent for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is sent or, as the case may be, before which the appeal is to be heard.
  4. The High Court Division acting in the exercise of its powers of revision under section 439 and a Court of Session so acting under section 439A, may allow any person to compound any offence which he is competent to compound under this section.
  5. The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
  6. No offence shall be compounded except as provided by this section. Therefore, offences punishable under laws other than the Penal code are not compoundable.

Who can compound?

  1. Only the person named in the third columns of section 345 can legally compound an offence. Any person may set the criminal law in motion, but it is only the person specified in the third column who can compound the offence.
  2. To constitute a valid composition it must be shown that the parties were free from influence of any kind, and were fully aware of their respective rights. If the consent of a party is obtained by threat or coercion, there is no valid composition.
  3. When compounding possible?

A case may be compounded at any time before sentence is pronounced even whilst the magistrate is writing up the judgment.

Effect of Composition:

It is specifically mentioned in section 345 that the composition of an offence shall have the effect of an acquittal of the accused with whom the offence has been compounded.

Compounding without the permission from the Court:

Section 345(1) provides the list of offences which can be compounded without permission from the court. They are as follows:

The offences punishable under the section of the Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:-

Offence. Sections of Penal Code applicable. Persons by whom offence may be compounded.

Uttering works, etc, with deliberate intent to wound the religious feelings of any person.

Causing hurt ….. 298 ,323, 334      The person whose religious feelings are intended to be wounded.

The person to whom the hurt is caused.

Wrongfully restraining of confining any person.  341, 342 The person restrained or confined.

Assault or use of criminal force      352, 355, 358      The person assaulted or to whom criminal force is used.

Unlawful compulsory labour    374 The person compelled to labour.

Mischief, when the only loss or damage caused is loss damage to a private person.    426, 427 The person to whom the loss or damage is caused.

Criminal trespass

House-trespass    447

448 The person in possession of the property trespassed upon.

Criminal breach of contract of service.  490, 491, 492      The person with whom the offender has contracted.


Enticing or taking away or detaining with criminal intent a married woman. 497

498 The husband of the woman.


Printing or engraving matter, knowing it to be defamatory.

Sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter.

The person defamed

Insult intended to provoke a breach of the peace.

Criminal intimidation except when the offence is punishable with imprisonment for seven years.

Act caused by making a person believe that he will be an object of divine discipline.

The person against whom the offence was committed.

Compounding with the permission from the Court:

Section 345(2) provides the list of offences which can be compounded only with the permission from the court. They are as follows:

The offences punishable under the section of the Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table:-

Offence Sections of the Penal Code applicable.   Persons by whom offence may be compounded.

Rioting  147 The person against whom force or violence has been used.

Rioting armed with deadly weapon. 148 Ditto.

Voluntarily causing hurt by dangerous weapons or means. 324       The person to whom hurt is caused.

Voluntarily causing grievous hurt.  325 Ditto.

Voluntarily causing grievous hurt on grave and sudden provocation. 335 Ditto.

Act endangering human life or the personal safety of others.       336 Ditto.

Causing hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others.  337 Ditto.

Causing grievous hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others.    338       Ditto.

Wrongfully confining a person for three days or more.      343       The person confined.

Wrongfully confining for ten or more days.  344 Ditto.

Wrongfully confining a person in secret.      346 Ditto.

Wrongful confinement to extort property or constrain to illegal act.       347 The person wrongfully confined.

Wrongful confinement to extort confession or compel restoration of property.  348 Ditto.

Assault or criminal to women with intent to outrage her modesty.       354 The women assaulted or to whom the criminal force was used.

Assault or criminal force in attempt to commit theft of property worn or carried by a person.     356 The person assaulted or to whom criminal force is used.

Assault or criminal force in attempting wrongfully to confine a person.  357 The person assaulted or to whom the force was used.

Theft     379 The owner of the property stolen.

Theft in dwelling house    380 Ditto.

Theft by clerk or servant of property in possession of master       381 The owner of the property misappropriated.

Dishonest misappropriation of property. 403 The owner of the property in respect of which the breach of trust has been committed.

Criminal breach of trust    406

Criminal breach of trust by a carrier wharfing, etc.     407 Ditto.

Criminal breach of trust by a clerk or servant      408 Ditto.

Dishonestly receiving stolen property, knowing it to be stolen       411 The owner of the property stolen.

Assisting in the concealment or disposal of stole n property knowing it to be stolen      414 The owner of the property  stolen.

Cheating      417 The person cheated.

Cheating a person whose interest the offender was bound, by low or by legal contract, to protect. 418 Ditto.

Cheating by personation   419 Ditto.

Cheating and dishonestly inducing delivery of property of the making, alteration or destruction of a valuable security.    420       Ditto.

Fraudulent removal or concealment of property, etc., to prevent distribution among creditors.   421 The creditors who are affected thereby

Fraudulently preventing from being made available for his creditors a debt or demand due to the offender.    422 Ditto.

Fraudulent execution of deed of transfer containing false statement of consideration. 423 The person affected thereby.

Fraudulent removal or concealment of property.  424 Ditto.

Mischief by killing or maiming animal etc.   428 The owner of the animal.

Mischief by killing or maiming cattle, etc.,   429 The person to whom the loss or damage is caused.

Mischief by injury to work of irrigation by wrongfully diverting water when the only loss or damage caused is loss or damage to a private person.    430 The person is possession of the house passed upon.

House-trespass to commit an offence (other than theft) punishable with imprisonment.    451 The person to whom loss or injury is caused by such use.

Using a false trade or property mark.     482

Counterfeiting a trade or property mark used by another   483

Knowingly selling, or exposing or possessing for sale or for trade or manufacturing purpose, goods marked with a counterfeit trade or property mark. 486

Cohabitation caused by a man deceitfully including a belief of lawful marriage. 493

Marrying again during the life-time of a husband or wife. 494

Uttering words or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman.  509

Attempting to commit offences punishable with transportation or imprisonment      511

ADR in the village court Act 2006:

Section 5 specifies hat a Village Court shall consist of a Chairman and four members. Of these four members two are to be nominated by each of the parties to the dispute. One of two members to be nominated by each party should be a member of die Union Parishad concerned. However, any party to dispute, with the permission of the Chairman, may nominate any person other than the members of the Union Parishad members of the Village Court.

Sub-section (2) of section 5 states that the Chairman of the Union Parishad shall be the Chairman of the Village Court. However if the Chairman is unable to act as Chairman for any reason, or if his impartiality is challenged by any party to the dispute, any other member of the Union Parishad will become Chairman of the Village Court.

ADR in the Muslim Family court ordinance 1985 :

  1. The Family Courts Ordinance 1985 provides the courts with arms to exercise mediation in suits pending before it both at the pre trial stage under section 10 and after close of evidence following framing of issues and fixing a date of preliminary hearing under section 13.
  2. Another reason for recommending mediation in Family Courts is that it involves the direct participation of the parties in dispute. They are required to meet along with their legal representatives and other interested persons at confidential meetings at any time during the law suit in the presence of a neutral third party who, a judge, is a trained facilitator at conflict resolution.

ADR in Labor Act 2006 :


If a dispute is likely between an employer and an employee, the employer or the CBA shall communicate the same in writing to the other party. Within ten days the parties will try to resolve the matter by way of negotiation; if a settlement reached, a memorandum shall be recorded accordingly (Section 210(1, 2, 3)). Under sub-section 210(4) 30 days time is allowed to complete negotiation.


Failing a negotiation under sub-section 210(1, 2), any party may report to the conciliator that the negotiation have failed and request the conciliator in writing to conciliate the dispute and conciliator shall, on receipt of such request, proceed to conciliate in the dispute. Under section 210(6) the conciliator has ten days time for conciliation.


If conciliation fails the conciliator shall try to persuade the parties to agree to refer to the dispute to an Arbitrator. In case the parties agree, they shall make a joint request in writing for reference of the dispute to an Arbitrator agreed upon by them. The arbitrator shall give his award within thirty days from the date on which the dispute is referred to him or within such period as may be agreed upon by the parties. The award of the arbitrator shall be final and no appeal shall lie against it (section 210(16)).

ADR under the Muslim Family Laws Ordinance, 1961:

Under this law provision for reconciliation or alternative dispute resolution through arbitration council has been provided for in three circumstances:

(i) in case of polygamy under section 6;

(ii) in case of giving talaq and making it effective under section 7; and

(iii) in case of failure of the husband to provide maintenance of his wife under section

  1. Basic ADR process :

Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh. Let us discuss the three important ways of dispute resolution.

o     Negotiation: Negotiation is the process whereby the parties within the dispute seek to settle or resolve the dispute. The negotiation process provides the parties or disputants and opportunity to exchange ideas, identify the irritant points of differences, find a solution, and get commitment from each other to reach an agreement. Bargaining is a common feature of the negotiation process.

o     Mediation: Mediation is simply an extension of the negotiation process. Mediators are individuals experienced in the negotiation process who bring disputing parties together and make attempts to work out a settlement or agreement that both parties can accept or reject. Mediation is used for a wide ganrulof case types, including interpersonal, local business and national issues. Mediation is generally understood as a third party intervention between conflicting parties to promote reconciliation, settlement or compromise. Shalish. local process – combination of negotiation and mediation process, provides a traditional alternative to dispute resolution in a community and covers both civil and criminal cases of varying intensity and degree. Shalish is used in settling 60 to 70% of local disputes.

o     Arbitration: Next to mediation and negotiation, arbitration is another dispute resolution tool. In arbitration systems, the court authorizes a neutral person or a third party to resolve -the dispute at the place of occurrence. The Arbitration Act of 1940 was introduced to settle disputes through this process. But the practice of arbitration by the courtisnpt popular.

5.Advantages of Alternative Dispute Resolution (ADR)

There are some potential advantages of using ADR. Such as:

  1. Save Time: A dispute often can be settled or decided much sooner with ADR; often in a matter of months, even weeks, while bringing a lawsuit to trial can take a year or more.
  2. Save Money: When cases are resolved earlier through ADR, the parties may save some of the money they would have spent on attorney fees, court costs, and experts’ fees.’
  3. Increase Control over the Process and the Outcome: In ADR, parties typically play a greater role in shaping both the process and its outcome. In most ADR processes, parties have more opportunity to tell their side of the story than they do at trial. Some ADR processes, such as mediation, allow the parties to fashion creative resolutions that are not available in a trial. Other ADR processes, such as arbitration, allow the parties to choose an expert in a particular field to decide the dispute.
  4. Preserve Relationships: ADR can be a less adversarial and hostile way to resolve a dispute. For example, an experienced mediator can help the parties effectively communicate their needs and point of view to the other side. This can be an important advantage where the parties have a relationship to preserve.
  5. Increase Satisfaction: In a trial, there is typically a winner and a loser. The loser is not likely to be happy, and even the winner may not be completely satisfied with the outcome. ADR can help the parties find win-win solutions and achieve their real goals. This, along with all of ADR’s other potential advantages, may increase the parties’ overall satisfaction with both the dispute resolution process and the outcome.
  6. Improve Attorney-Client Relationships: Attorneys may also benefit from ADR by being seen as problem-solvers rather than combatants. Quick, cost-effective, and satisfying resolutions are likely to produce happier clients and thus generate repeat business from clients and referrals of their friends and associates.

Because of these potential advantages, it is worth considering using ADR early in a lawsuit or even before you file a lawsuit,

6.Disadvantages of ADR

Generally ADR are usually faster, and cheaper than litigation they are also private and informal when also compared to litigation and it gets both parties involved in the settlement process and the decisions are not necessarily final. However ADR does not alway guarantee an agreed upon decision and with arbitration the decision is final. The problems of ADR are given below:

  1. Unequal Bargaining Power – In certain situations one side is able to dominate the other, for example, employment and divorce cases, making the courts a better option for a weak party.
  2. Lack of Legal Expertise – Where a .dispute involves”-difficult legal points a mediator or arbitrator is unlikely to have the same legal expertise and knowledge as a judge.
  3. No System of Precedent – It isn’t easy to predict the outcome of a dispute decided through ADR as there is no system of precedent.
  4. Enforceability – Most •forms of ADR are not legally binding, making any award difficult to enforce.
  5. A Court action may still be required – If using ADR fails to resolve the parties’ dispute, court action may Still be needed. This adds to the costs and delays compared to taking a dispute direct to the courts in the first place.
  6. No guaranteed resolution- There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and money in trying to resolve the dispute out-of-court and still end up having to go to court.

Though there are some disadvantages of ADR, it is the most easier and swiftest trial process in the judicial system of any country. So its popularity is increasing day by day.


  2. ADR In Bangladesh; Issues and Challenges- Barrister MD. Abdul Halim