How ADR can play a bigger role in criminal cases

An agreement of 9 lakh taka has not stopped the legal controversy and the case around the recent Baridhara road crash. A 17-year-old boy accused of driving the car that killed construction worker Mehedi Hasan Mim was refused bail by a Dhaka juvenile court on 4 October. A report forwarded by the police to the court says investigators reviewed CCTV footage of the scene and surrounding areas, and it shows that the teenager was involved. The case brings up a question: when can a criminal case be settled by an agreement between the people involved, and when should the State continue with the trial?

In the civil justice system of Bangladesh, Alternative Dispute Resolution (ADR) is firmly embedded in the form of mediation, arbitration, and conciliation, especially in sections 89A to 89E of the Code of Civil Procedure, 1908. But its application in the criminal justice system is not so widespread. However, delays due to case backlogs, shortage of judges, and problems of obtaining witness evidence should prompt one to wonder whether ADR can play a bigger role in criminal cases as well. 

Compounding of offences, as per section 345 of the Code of Criminal Procedure, 1898, is a significant form of criminal ADR. Compounding implies a compromise arrangement between the alleged victim and the accused to terminate the criminal procedure. However, simply because the two parties wish the criminal proceeding to end does not make it legal. 

Section 345 identifies offences that may be compounded. In general, there are two categories: section 345(1) lists offences that are compoundable without the permission of the court, and section 345(2) deals with offences that require the court’s permission. Offences with a clear public element cannot automatically be converted into private offences simply because some form of compensation has been made. Under Section 345(6), lawful compounding results in the acquittal of the accused person with whom the offence is compounded.

The Appellate Division of the Supreme Court of Bangladesh also recognised the importance of compromise within the statutory framework in Md Joynal v Md Rustom Ali (1984). The case is frequently cited in discussions of compromise as a form of ADR. 

Coming back to the Baridhara case, the action was brought under sections 98 and 105 of the Road Transport Act, 2018. Section 117 of the 2018 Act makes the offences mentioned under sections 66, 72, 75, 87, 89 and 92 compoundable, while sections 98 and 105 are not compoundable. Hence, I believe even when the relatives of the deceased accept Tk 9 lakh voluntarily, the private compromise cannot end the proceeding. 

However, the punishment provided under sections 98 and 105 is noteworthy as well. Section 98 provides imprisonment for a term which shall not exceed three years, or a fine not exceeding Tk 3 lakh, or both, and such fine may be paid in whole or in part to the aggrieved party by the court. Under section 105, an offender is liable to imprisonment for a term which shall not exceed five years, or a fine not exceeding Tk 5 lakh, or both. The reason behind considering the settlement of Tk 9 lakh as an ADR issue may be that the said settlement is above the maximum limit of fine prescribed in both the sections. The question thus arises whether there exists any mechanism within the legal system which can allow this allegedly voluntary settlement on the part of the victims’ family?

However, this is not to suggest that such issues can simply be swept aside. For Bangladesh, there could be a system where a judge ensures that compensation, consent, and the interests of the victim are considered while giving the government the right to ensure that the state interest is also protected. This discussion has become pertinent considering the amendment made in the Code of Criminal Procedure in 2026. Section 345(8) lays out that the court has the power to help in the compounding of compoundable offences when both parties agree to do so or refer the matter to the Legal Aid Officer or advocates. Such an agreement can be put on record and can be executed provided the rights of third parties are safeguarded.

It is also possible that Bangladesh may introduce a plea-bargaining scheme, which will be properly regulated. Contrary to compounding, plea bargaining will involve the acceptance of guilt in exchange for some legal bargain. Some examples of plea bargaining include charge bargaining, sentence bargaining, and fact bargaining, but it should be done very cautiously.

There is a need for criminal ADR in Bangladesh that should neither be dismissed completely nor considered without any caution. There is a need for a system in Bangladesh through which the minor crimes that deserve it can be disposed of through an efficient system, but the serious crimes must continue to attract public accountability. It is important for the courts to ensure that such agreements are made voluntarily, the parties are informed, and the agreements are legal, especially when vulnerable crime victims are forced to accept money. Only with sufficient safeguards in place will such a system work. 

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Ashraful Islam Plabon is a law student at Bangladesh University of Professionals (BUP).

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