52. Let the additional charge framed against him be noted: "The you Somnath Kakaram Thapa during the period you were posted as Additional Collector of Customs, Preventive, Bombay and particularly during the period January, 1993 to February, 1993 in pursuance of the aforesaid criminal conspiracy and in furtherance of its object abetted and knowingly facilitated the commission of terrorists' acts and preparatory to terrorists'' act i.e. bomb blast and such other acts which were committed in Bombay and its suburbs on 12.3.93 by intentionally aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @ Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohmed Dosa Mushtaq @ Ibhrahim @ Tiger Abdul Razak Memon and their associates for the purpose of committing terrorists acts by your non interference inspite of the fact that you had specific information and knowledge that arms ammunition and explosives are being smuggled into the country by terrorists Preventive you were legally bound to prevent it and that you thereby committed an offence punishable under Section 3(3) of TADA (p) Act, 1987 and within my cognizance.

52. Let the additional charge framed against him be noted:
"The you Somnath Kakaram Thapa during the period you were posted as Additional Collector of Customs, Preventive, Bombay and particularly during the period January, 1993 to February, 1993 in pursuance of the aforesaid criminal conspiracy and in furtherance of its object abetted and knowingly facilitated the commission of terrorists' acts and preparatory to terrorists'' act i.e. bomb blast and such other acts which were committed in Bombay and its suburbs on 12.3.93 by intentionally aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dosa and Mushtaq @ Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohmed Dosa Mushtaq @ Ibhrahim @ Tiger Abdul Razak Memon and their associates for the purpose of committing terrorists acts by your non interference inspite of the fact that you had specific information and knowledge that arms ammunition and explosives are being smuggled into the country by terrorists Preventive you were legally bound to prevent it and that you thereby committed an offence punishable under Section 3(3) of TADA (p) Act, 1987 and within my cognizance. 53 According to Shri Tulsi the following materials make out the prima facie case against this appellant: (i) Association with Mohd.Dosa: S.N. Thapa has been an associate of absconding accused Mohd. Dosa, who has played a major role in the conspiracy to cause bomb blasts. The Tel. Nos. (RES. & official) of S.N. Thapa have been found entered in the Tel. diary seized form Mohd. Hanif @ Raju, an employee of Mohd. Dosa. (ii) Association with Tiger Memon: S.N. Thapa has been an associate of Tiger Memon the prime accused in the bomb blast case, who is still absconding. He has been facilitating the smuggling activities of Tiger Memon against illegal gratification. (iii) Meeting with Tiger Memon and Gist of Conversation recorded on Micro cassettes: An absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on 5.8.94. From his possession a number of include a manuscript of gist of conversation recorded on May 19, 1994 on Sony Micro cassettes, in the garden of the house of Yakub Memon in Karachi (Pakistan). Accused Yakub Memon, Syed Arif (Pakistani National) Hazi Taufique Jaliawala (Pakistani National) Tiger Memon, Suleman Memon and Yub Memon had participated in the conversation. This gist of conversation refers to various matter which show close association of Tiger Memon with Sh. Thapa. In the gist of conversation there is reference of ISI of Pakistan and Tiger Memon speaking that one day Sh. Thapa had arrived at sea shore at the time of illegal landing and that Tiger Memon had paid him Rs.22 lacs for allowing the smuggling. The investigation had established that the said gist of conversation is in the hand-writing of accused Yakub Memon. Independent witnesses and the handwriting expert have proved his handwriting. (iv) Statement of L.D. Mhatre, Mhatre Customs Inspr.: L.D. Mhatre introduced a source (witness code No.Q-3360) to S.N. Thapa and it was decided that the source would pass on information about the illegal landings at Shekhadi to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi may be kept at "Sai Morba-Goregoan Junction" because that was the main exit point after the landing. The source gave an information of the landing to Mhatre on 29.1.93 and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on the right of 30 & 31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-Goregoan Road leaving another route open for the escape of smuggled goods. He did not keep Nakabandi at the pre-arranged point. He lifted the Nakabandi after two days without any specific reasons. The source later on informed Thapa through Mhatre that on the night of 3.2.93 instead of silver same chemicals had landed at Shekhadi. Sh.Thapa did not contact the source to ascertain further details. Nor did he inform about it to his senior officers. He also did not submit the Operations Report, as was required. (v) Statement of Sh.R.K. Singh: Shri R.K. Singh in his confession, has stated that on the night of 1.2.93 at about 2.00 At Sh.Thapa gave him a telephonic message saving that something had happened beyond bankot in thelimits of Pune Customs and that he should personally verify. R.K. Singh, deputed custom officers for this job. On 4.2.93 another accused M.S. Syed, Customs Superintendent informed R.K. Singh that the smuggled goods and already passed. R.K. Singh received Rs.3 lacs as illegal gratification for the landing out of which he gave Rs.1 lacs to Sh.S.N. Thapa. (v) Awareness about landing : Sh.S.K. Bhardwaj, Collector of Customs,(Prev.) issued a letter dt. 25.1.93 addressed to Sh.R.K. Singh and A.K. Hassan Asstt.Collectors of Customs, mentioning that intelligence had been received that big quantity of weapons would he smuggled into India by ISI alongwith gold and silver and these were likely to be landed in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The Collector of Customs had directed the subordinate officers to keep a close watch & that all-time alert may be kept. The copy of this letter was also endorsed to Sh.Thapa, who had seen it on 27.1.93. In addition to the aforesaid letter from the statements of the customs officer, who had accompanied Sh. Thapa for akabandi on 30th & 31st Jan., 1993, it is clear that Sh.Thapa had knowledge that arms were likely to he smuggled by Tiger Memon. He had infact disclosed this information to the subordinate officers at the time of nakabandi. Sh.Thapa was conveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs that landing of smuggled contrabants was about to take place near Mhaysla on the night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message that something had happened at Bankot therefore, maximum alert to be Wept in Alibagh region. Bankot is in a different direction and far away from Mhasala. Sh.Doyphode had not mentioned about Bankot. (vii) Vehicle and Vessel Log Book : When Nakabandi was kept on 30.1.95 by Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also taken by Sh.Thapa with him. However, the investigation had disclosed that the pages of the 109 book for the period 26.1.93 to 16.2.93 were missing from the log book, as these had been torn from it. In Alibagh Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided. A logbook is maintained for the vessel. The investigation had disclosed that an entry dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav, Customs Inspr. alongwith subordinate staff did see patroling from Shrivardhan to Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by J.K. Gurav, which is not correct because when compared with the entries made in the wireless logbook of Shrivardhan Customs office it is seen that patrolling commenced at 2345 hrs.

53 According to Shri Tulsi the following materials make out the prima facie case against this appellant: (i) Association with Mohd.Dosa: S.N. Thapa has been an associate of absconding accused Mohd. Dosa, who has played a major role in the conspiracy to cause bomb blasts. The Tel. Nos. (RES. & official) of S.N. Thapa have been found entered in the Tel. diary seized form Mohd. Hanif @ Raju, an employee of Mohd. Dosa. (ii) Association with Tiger Memon: S.N. Thapa has been an associate of Tiger Memon the prime accused in the bomb blast case, who is still absconding. He has been facilitating the smuggling activities of Tiger Memon against illegal gratification. (iii) Meeting with Tiger Memon and Gist of Conversation recorded on Micro cassettes: An absconding accused Yakub Abdul Razak Memon was arrested at New Delhi on 5.8.94. From his possession a number of include a manuscript of gist of conversation recorded on May 19, 1994 on Sony Micro cassettes, in the garden of the house of Yakub Memon in Karachi (Pakistan). Accused Yakub Memon, Syed Arif (Pakistani National) Hazi Taufique Jaliawala (Pakistani National) Tiger Memon, Suleman Memon and Yub Memon had participated in the conversation. This gist of conversation refers to various matter which show close association of Tiger Memon with Sh. Thapa. In the gist of conversation there is reference of ISI of Pakistan and Tiger Memon speaking that one day Sh. Thapa had arrived at sea shore at the time of illegal landing and that Tiger Memon had paid him Rs.22 lacs for allowing the smuggling. The investigation had established that the said gist of conversation is in the hand-writing of accused Yakub Memon. Independent witnesses and the handwriting expert have proved his handwriting. (iv) Statement of L.D. Mhatre, Mhatre Customs Inspr.: L.D. Mhatre introduced a source (witness code No.Q-3360) to S.N. Thapa and it was decided that the source would pass on information about the illegal landings at Shekhadi to Sh.Thapa, through Mhatre and on receipt of the information Nakabandi may be kept at "Sai Morba-Goregoan Junction" because that was the main exit point after the landing. The source gave an information of the landing to Mhatre on 29.1.93 and it was passed on to Sh.Thapa by Mhatre. Thapa kept Nakabandi on the right of 30 & 31st Jan. 1993 at Purar Phata and Behan Phata on Mhasla-Goregoan Road leaving another route open for the escape of smuggled goods. He did not keep Nakabandi at the pre-arranged point. He lifted the Nakabandi after two days without any specific reasons. The source later on informed Thapa through Mhatre that on the night of 3.2.93 instead of silver same chemicals had landed at Shekhadi. Sh.Thapa did not contact the source to ascertain further details. Nor did he inform about it to his senior officers. He also did not submit the Operations Report, as was required. (v) Statement of Sh.R.K. Singh: Shri R.K. Singh in his confession, has stated that on the night of 1.2.93 at about 2.00 At Sh.Thapa gave him a telephonic message saving that something had happened beyond bankot in thelimits of Pune Customs and that he should personally verify. R.K. Singh, deputed custom officers for this job. On 4.2.93 another accused M.S. Syed, Customs Superintendent informed R.K. Singh that the smuggled goods and already passed. R.K. Singh received Rs.3 lacs as illegal gratification for the landing out of which he gave Rs.1 lacs to Sh.S.N. Thapa. (v) Awareness about landing : Sh.S.K. Bhardwaj, Collector of Customs,(Prev.) issued a letter dt. 25.1.93 addressed to Sh.R.K. Singh and A.K. Hassan Asstt.Collectors of Customs, mentioning that intelligence had been received that big quantity of weapons would he smuggled into India by ISI alongwith gold and silver and these were likely to be landed in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc. The Collector of Customs had directed the subordinate officers to keep a close watch & that all-time alert may be kept. The copy of this letter was also endorsed to Sh.Thapa, who had seen it on 27.1.93. In addition to the aforesaid letter from the statements of the customs officer, who had accompanied Sh. Thapa for akabandi on 30th & 31st Jan., 1993, it is clear that Sh.Thapa had knowledge that arms were likely to he smuggled by Tiger Memon. He had infact disclosed this information to the subordinate officers at the time of nakabandi. Sh.Thapa was conveyed by Sh.V.M. Doyphode, another Addl.Collector of Customs that landing of smuggled contrabants was about to take place near Mhaysla on the night of 2.2.93 Sh. Thapa intentionally sent a mis-leading wireless message that something had happened at Bankot therefore, maximum alert to be Wept in Alibagh region. Bankot is in a different direction and far away from Mhasala. Sh.Doyphode had not mentioned about Bankot. (vii) Vehicle and Vessel Log Book : When Nakabandi was kept on 30.1.95 by Sh.Thapa, the Govt. Maruti van No.MH-01-8579 was also taken by Sh.Thapa with him. However, the investigation had disclosed that the pages of the 109 book for the period 26.1.93 to 16.2.93 were missing from the log book, as these had been torn from it. In Alibagh Div. of Customs Deptt. one patrol vessel Al- Nadsem is provided. A logbook is maintained for the vessel. The investigation had disclosed that an entry dt. 2.2.93 has been made in the logbook showing the accused J.K. Gurav, Customs Inspr. alongwith subordinate staff did see patroling from Shrivardhan to Bankot from 2100 hrs of 2.2.93 to 0070 hrs of 3.2.93. The entry is made by J.K. Gurav, which is not correct because when compared with the entries made in the wireless logbook of Shrivardhan Customs office it is seen that patrolling commenced at 2345 hrs.

54. From the above gist it appears that the main allegation to establish the case    against Thapa is his allowing     the smuggling of the aforesaid goods by not doing Nakabandi at the pre-arranged point but at some     distance therefrom leaving an escape route for the smugglers to carry the goods upto Bombay. To appreciate this case of the prosecution, it would be useful to know the topography of the area, as would appear from the following rough sketch handed over by Shri Tulsi:-

55. Shri Tulsi     contended that Thapa had been forewarned by a communication     of Shri S.K. Bhardwaj, Collector of Customs (Preventive) dated 25.1.93 addressed to S/Shri R.K. Singh and A.K. Hassan, Asstt. Collectors of Customs,    that intelligence had been received that big quantity of weapons would be smuggled into     India by Ist    alongwith gold     and silver which were likely to land in next 15-30 days around Bombay, Shrivardhan, Bankot and Ratnagiri etc., a copy of which was endorsed to Thapa, who had seen the same. In fact he disclosed this information    to his    subordinate officers also. (The fact that Thapa had received a copy of     the letter, about which Shri Shirodkar mentioned    many a time, has no    significance as     copy was apparently sent to apprise Thapa of the contents,     requiring him to take such steps as would have been within     the ken and competence of a high custom    official on the preventive side like him). It deserves to be noted that the information was not only about smuggling of gold and silver alone, but of weapons and that too by the ISI-an agency alleged to be extremely inimical to India. This is not all. Indeed, there are material on record to show     that Thapa had information about landing of     RDX (described as 'Kala Sabun' in the under-world) at Shekhadi and Shrivardhan     on 3.2.93. According    to Addl. Solicitor General, Thapa had facilitated     the movement or be used to receive fat sum of money from     Tiger Memon as quid pro quo for help in his smuggling activities.

56. Shri Shirodkar strongly refuted the contentions of the Addl.Solicitor General    and, according to him, Nakabandi had been done at the places suggested by the local officers like Inspectors Agarkar and Kopikar, who had better knowledge of the place of the Nakabandi, and therefore, no fault can be found with Thapa for having done Nakabandi at a wrong place. As to the motive ascribed, the submission was that to sustain the same the only matter is of conversation found from the possession of     absconding accused Yakub Memon who was arrested at New Delhi on 5.8.94. The conversation itself was recorded on a cassette,     which,     according to    Shri Shirodkar, was    not at    all audible as was certified by the Doordarshan Center of Bombay. The learned counsel would also require us to bear in mind that Thapa had been granted bail not only by this Court on 5.9.1994, but subsequently by the Designated Court on 7.2.1795, which had been done bearing in mind the materials which had come on record till then.

57. A perusal    of the     statement made by aforesaid     two Inspectors shows that they had made two statements at two points of time. The first of    these has been described as "original statement' by Shri Shirodkar in his written note and the     second as "further statement". In the original statement, these two Inspectors are said to have told Thapa, on being asked which would be     crucial places     for laying trap, that the same were Purar Phata and Behan Phata, at which places trap was in fact laid. But then, in the further statement the Inspectors are said to have opined that watch should be kept at Sai-Morba-Goregoan junction, because that was the     main exit point for smuggling done at Shrivardhan and Shekhadi. Shri Shirodkar would not like us to rely on what was stated subsequently by these     Inspectors, as that was under pressure of investigation undertaken subsequently by the    C.B.I. We do not think that the law permits us to find out at this stage as to which of the two versions given by two Inspectors is correct. We have said so because at the stage of framing of charge probative value of the statement cannot be gone into, which would come to be decided at the close of the trial. There is no doubt that if the subsequent statement be correct, Nakabandi was done not at the proper place, as that left Sai-Morba Road free for the smugglers to carry the goods upto Bombay.

58. Shri Shirodkar submitted that     the Nakabandi     was organised at Purar Phata and Behan Phata also because a trap has to    be laid     at a little distance from the crucial point so that     it may     not come to the notice of all and sundry, which may prove abortive, as information about the same may be passed on to the smugglers. We do not propose to express any opinion on this submission also,    as this     would be a matter to be decided at the trial when defence version of the case would be examined.

59. As    to the    motive sought to be established on the basis of a gist of the taps     recorded conversation said to have been recovered    from absconding     accused Yakub    Memon, which contained the statement that one day    Thapa had arrived at sea shore at the time of illegal landing and Tiger Memon had paid him Rs. 22 lacs     for allowing    the smuggling,     the submission of the learned counsel is that it     is hard to believe that Yakub Memon would have carried in his pocket a gist like the one at hand. Even if we were    to give some benefit to the appellant on this score, that would tend to demolish the case of the prosecution    mainly relatable to motive, which is not required to be established to bring home an     accusation. As     to Thapa, the allegation relates to facilitating movement of arms,     RDX etc., which act would amount to abetment, as     it would be an assistance, which would attract clause (iii) of section     2(i)(a) of the Act, defining the    word 'abet'. It may    be noted that     the individual charge against Thapa is for commission of offence under section    3(3) of TADA, which,     inter    alia, makes abetment punishable.

60. Shri Shirodkar submitted that the investigating agency wanted to rope in Thapa any how, which was apparent from the fact that it     took recourse     to even manufacturing of evidence, as telephone number    of Dawood Ibrahim was fed in the digital diary found at the residence of this appellant on search being made.    Shri Tulsi explained as to how this aspect of the matter, except observing that investigation at times is either sluggish or over zealous - it may over shoot also.

61. All     told, we are satisfied that charges    were rightly framed against    Thapa. This takes us to the State's appeal arising out of SLP (Crl.) No.     2196 of 1995 in which the prayer is to cancel the bail of Thapa, which was ordered by this court on April 5, 1994 and then by the Desingated Court by its order dated February 7, 1995. A perusal of    this Court's order shows that when it had examined the matter, charge-sheet had not been submitted.    It was, therefore, desired that the Designated Court should reconsider in matter with a view to finding     out whether the evidence collected in    the course of investigation     showed     his involvement. A    perusal of Designated Court's    order shows that though according to it a     case was made out by     the prosecution against Thapa, it    took the view that there was want of     material which     could be tendered as     substantive evidence to prove association of Thapa with Tiger Memon and his associates.     And so, it allowed Thapa to    continue on bail. On these special facts, we are not satisfied if a case for cancellation of bail has been made out,    despite     our taking the view that charges were rightly framed against him. The State's appeal is, therefore, dismissed. Conclusion

62. To    conclude, appeals of Abu Asim Azmi and Amjad Aziz Meherbux are allowed and they stand discharged. Appeals of Raju @    Rajucode Jain and Somnath Thapa are dismissed. The appeal of State is also dismissed.

63. Before parting, we may say that alongwith these appeals we had heard the case of one Mulchand Shah, being covered by SLP (Crl. ) No.894 of 1995. But, by    an order passed on 31.1.1996 that    SLP had     been delinked    from these cases, on the prayer of counsel for Shah and was ordered to be listed separately. So we have not dealt with that SLP.

The following persons shall be treated as qualified and eligible for being enlisted in the panel of mediators under Rule 3,

namely :

(a) (i)    Retired Judges of the Supreme Court of India;

(ii)    Retired Judges of the High Court; (iii)    Retired District and Sessions Judges or retired Judges of the City Civil

Court or Courts of equivalent status. (b)    Legal practitioners with at least fifteen years standing at the Bar at the level of the Supreme Court or the High Court; or the District Courts or Courts of equivalent status.

(c)     Experts or other professionals with at least fifteen years standing; or retired senior bureaucrats or retired senior executives; (d)    Institutions which are themselves experts in mediation and have been recognized as such by the High Court, provided the

names of its members are approved by the High Court initially or whenever there is change in membership.

Rule 5 : Disqualifications of persons : The following persons shall be

deemed to be disqualified for being

empanelled as mediators :

(i)    any person who has been adjudged as insolvent or is declared of unsound mind. (ii)    or any person against whom criminal charges involving moral turpitude are framed by a criminal court and are pending, or

(iii)    any person who has been convicted by a criminal court for any offence involving moral turpitude;

(iv)    any person against whom disciplinary proceedings or charges relating to moral turpitude have been initiated by the

appropriate disciplinary authority which are pending or have resulted in a punishment. (v)    any person who is interested or connected with the subject-matter of dispute or is related to any one of the parties or to those who represent them, unless such objection is waived by all the parties in writing. (vi)    any legal practitioner who has or is appearing for any of the parties in the suit or in any other suit or proceedings.

(vii)    such other categories of persons as may be notified by the High Court.

Rule 6 :    Venue for conducting mediation : The mediator shall conduct the mediation at one or other of the following places: (i)    Venue of the Lok Adalar or permanent Lok Adalat.

(ii)    Any place identified by the District Judge within the Court precincts for the purpose of conducting mediation.

(iii)    Any place identified by the Bar Association or State Bar Council for the purpose of mediation, within the premises of the Bar Association or State Bar Council, as the case may be.

(iv)    Any other place as may be agreed upon by the parties subject to the approval of the Court.

Rule 7:    Preference:

The Court shall, while nominating any person from the panel of mediators referred to in Rule 3, consider his suitability for resolving the particular class of dispute involved in the suit and shall give preference to those who have proven record of successful mediation or who have special qualification or experience in mediation. Rule 8:    Duty of mediator to disclose certain facts :

(a)    When a person is approached in

connection with his possible appointment as a mediator, the person shall disclose in writing to the parties, any circumstances likely to give rise to a justifiable doubt as to his independence or impartiality.

(b)    Every mediator shall, from the time of his appointment and throughout the

continuance of the mediation proceedings, without delay, disclose to the parties in writing, about the existence of any of the circumstances referred to in clause (a). Rule 9 :    Cancellation of appointment : Upon information furnished by the mediator under Rule 8 or upon any other information received from the parties or other persons, if the Court, in which the suit is filed, is satisfied, after conducting such inquiry as it deems fit, and after giving a hearing to the mediator, that the said information has raised a justifiable doubt as to the mediator's independence or impartiality, it shall cancel the appointment by a reasoned order and replace him by another mediator.

Rule 10 :    Removal or deletion from panel : A person whose name is placed in the

panel referred to in Rule 3 may be removed or his name be deleted from the said panel, by the Court which empanelled him, if :

(i)    he resigns or withdraws his name from the panel for any reason;

(ii)    he is declared insolvent or is declared of unsound mind;

(iii)    he is a person against whom criminal charges involving moral turpitude are framed by a criminal court and are pending; (iv)    he is a person who has been convicted by a criminal court for any offence involving moral turpitude;

(v)    he is a person against whom disciplinary proceedings on charges relating to moral turpitude have been initiated by appropriate disciplinary authority which are pending or have resulted in a punishment;

(vi)    he exhibits or displays conduct, during the continuance of the mediation proceedings, which is unbecoming of a mediator;

(vii)    the Court which empanelled, upon receipt of information, if it is satisfied, after conducting such inquiry as it deem fit, is of the view, that it is not possible or desirable to continue the name of that person in the panel,

Provided that, before removing or

deleting his name, under clause (vi) and (vii), the Court shall hear the mediator whose name is proposed to be removed or deleted from the panel and shall pass a reasoned order.

Rule 11 :    Procedure of mediation :

(a)    The parties may agree on the procedure to be followed by the mediator in the conduct of the mediation proceedings.

(b)    Where the parties do not agree on any particular procedure to be followed by the mediator, the mediator shall follow the procedure hereinafter mentioned, namely : (i)    he shall fix, in consultation with the parties, a time schedule, the dates

and the time of each mediation

session, where all parties have to be present;

(ii)    he shall hold the mediation

conference in accordance with the

provisions of Rule 6;

(iii)    he may conduct joint or separate meetings with the parties;

(iv)    each party shall, ten days before a session, provide to the mediator a

brief memorandum setting forth the

issues, which according to it, need to be resolved, and its position in

respect to those issues and all

information reasonably required for

the mediator to understand the issue; such memoranda shall also be

mutually exchanged between the

parties;

(v)    each party shall furnish to the

mediator, copies of pleadings or

documents or such other information

as may be required by him in

connection with the issues to be

resolved.

Provided that where the mediator is

of the opinion that he should look into any original document, the Court

may permit him to look into the

original document before such officer of the Court and on such date or time as the Court may fix.

(vi)    each party shall furnish to the

mediator such other information as

may be required by him in

connection with the issues to be

resolved.

(c)    Where there is more than one mediator, the mediator nominated by each party shall first confer with the party that nominated him and shall thereafter interact with the other mediators, with a view to resolving the disputes.

Rule 12 :    Mediator not bound by Evidence Act, 1872 or Code of Civil Procedure,

1908 :

The mediator shall not be bound by the Code of Civil Procedure 1908 or the Evidence Act, 1872, but shall be guided by principles of fairness and justice, have regard to the rights and obligations of the parties, usages of trade, if any, and the nature of the dispute.

Rule 13 :    Non-attendance of parties at sessions or meetings on due dates :

(a)    The parties shall be present personally or may be represented by their counsel or power of attorney holders at the meetings or sessions notified by the mediator. (b)    If a party fails to attend a session or a meeting notified by the mediator, other parties or the mediator can apply to the Court in which the suit is filed, to issue appropriate directions to that party to attend before the mediator and if the Court finds that a party is absenting himself before the mediator without sufficient reason, the Court may take action against the said party by imposition of costs.

(c)    The parties not resident in India, may be represented by their counsel or power of attorney holders at the sessions or

meetings.

Rule 14 :    Administrative assistance : In order to facilitate the conduct of mediation proceedings, the parties, or the mediator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

Rule 15 :    Offer of settlement by parties : (a)    Any party to the suit may, 'without prejudice', offer a settlement to the other party at any stage of the proceedings, with notice to the mediator.

(b)    Any party to the suit may make a, 'with prejudice' offer, to the other party at any stage of the proceedings, with notice to the mediator.

Rule 16 :    Role of mediator :

The mediator shall attempt to facilitate voluntary resolution of the dispute by the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute, emphasizing that it is the responsibility of the parties to take decision which effect them; he shall not impose any terms of settlement on the parties. Rule 17 :    Parties alone responsible for taking decision :

The parties must understand that the

mediator only facilitates in arriving at a decision to resolve disputes and that he will not and cannot impose any settlement nor does the mediator give any warranty that the mediation will result in a settlement. The mediator shall not impose any decision on the parties.

Rule 18 :    Time limit for completion of mediation : On the expiry of sixty days from the date fixed for the first appearance of the parties before the mediator, the mediation shall stand terminated, unless the Court, which referred the matter, either suo moto, or upon request by the mediator or any of the parties, and upon hearing all the parties, is of the view that extension of time is necessary or may be useful; but such extension shall not be beyond a further period of thirty days. Rule 19 : Parties to act in good faith : While no one can be compelled to commit to settle his case in advance of mediation, all parties shall commit to participate in the proceedings in good faith with the intention to settle the dispute, if possible.

Rule 20 :    Confidentiality, disclosure and inadmissibility of information :

(1)    When a mediator receives confidential information concerning the dispute from any party, he shall disclose the substance of that information to the other party, if permitted in writing by the first party. (2)    when a party gives information to the mediator subject to a specific condition that it be kept confidential, the mediator shall not disclose that information to the other party, nor shall the mediator voluntarily divulge any information regarding the documents or what is conveyed to him

orally as to what transpired during the mediation.

(3)    Receipt or perusal, or preparation of records, reports or other documents by the mediator, or receipt of information orally by the mediator while serving in that capacity, shall be confidential and the mediator shall not be compelled to divulge information regarding the documents nor in regard to the oral information nor as to what

transpired during the mediation.

(4)    Parties shall maintain confidentiality in respect of events that transpired during mediation and shall not rely on or introduce the said information in any other

proceedings as to :

(a)    views expressed by a party in the course of the mediation proceedings;

(b)    documents obtained during the

mediation which were expressly

required to be treated as confidential or other notes, drafts or information given by parties or mediators;

(c)    proposals made or views expressed by the mediator;

(d)    admission made by a party in the

course of mediation proceedings;

(e)    the fact that a party had or had not indicated willingness to accept a

proposal;

(5)    There shall be no stenographic or audio or video recording of the mediation

proceedings.

Rule 21 :    Privacy

Mediation sessions and meetings are

private; only the concerned parties or their counsel or power of attorney holders can attend. Other persons may attend only with the permission of the parties or with the consent of the mediator.

Rule 22 :    Immunity :

No mediator shall be held liable for

anything bona fide done or omitted to be done by him during the mediation proceedings for civil or criminal action nor shall he be summoned by any party to the suit to appear in a Court of law to testify in regard to information received by him or action taken by him or in respect of drafts or records prepared by him or shown to him during the mediation proceedings.

Rule 23 :    Communication between mediator and the Court :

(a)    In order to preserve the confidence of parties in the Court and the neutrality of the mediator, there should be no

communication between the mediator and the Court, except as stated in clauses (b) and (c) of this Rule.

(b)    If any communication between the mediator and the Court is necessary, it shall be in writing and copies of the same shall be given to the parties or their counsel or power of attorney.

(c)    Communication between the mediator and the Court shall be limited to communication by the mediator :

(i)    with the Court about the failure of party to attend;

(ii)    with the Court with the consent of the parties;

(iii)    regarding his assessment that the case is not suited for settlement

through mediation;

(iv)    that the parties have settled the dispute or disputes.

Rule 24 :    Settlement Agreement :

(1)    Where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues, the same shall be reduced to writing and signed by the parties or their power of attorney holder. If any counsel have represented the parties, they shall attest the signature of their respective clients.

(2)    The agreement of the parties so signed and attested shall be submitted to the mediator who shall, with a covering letter signed by him, forward the same to the Court in which the suit is pending.

(3)    Where no agreement is arrived at between the parties, before the time limit stated in Rule 18 or where, the mediator is of the view that no settlement is possible, he shall report the same to the said Court in writing. Rule 25 :    Court to fix a date for recording settlement and passing decree :

(1)    Within seven days of the receipt of any settlement, the Court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement, and the Court shall record the settlement, if it is not collusive.

(2)    The Court shall then pass a decree in accordance with the settlement so

recorded, if the settlement disposes of all the issues in the suit.

(3)    If the settlement disposes of only certain issues arising in the suit, the Court shall record the settlement on the date fixed for recording the settlement and (i) if the issues are servable from other issues and if a decree could be passed to the extent of the settlement covered by those issues, the Court may pass a decree straightaway in accordance with the settlement on those issues without waiting for a decision of the Court on the other issues which are not settled.

(ii)    if the issues are not servable, the Court shall wait for a decision of the Court on the other issues which are not settled.

Rule 26 :    Fee of mediator and costs : (1)    At the time of referring the disputes to mediation, the Court shall, after consulting the mediator and the parties, fix the fee of the mediator.,

(2)    As far as possible a consolidated sum may be fixed rather than for each session or meeting.

(3)    Where there are two mediators as in clause (b) of Rule 2, the Court shall fix the fee payable to the mediators which shall be shared equally by the two sets of parties. (4)    The expense of the mediation including the fee of the mediator, costs of administrative assistance, and other ancillary expenses concerned, shall be borne equally by the various contesting parties or as may be otherwise directed by the Court.

(5)    Each party shall bear the costs for production of witnesses on his side

including experts, or for production of documents.

(6)    The mediator may, before the

commencement of mediation, direct the parties to deposit equal sums, tentatively, to the extent of 40% of the probable costs of the mediation, as referred to in clauses (1), (3) and (4). The remaining 60% shall be deposited with the mediator, after the conclusion of mediation. For the amount of cost paid to the mediator, he shall issue the necessary receipts and a statement of account shall be filed, by the mediator in the Court.

(7)    The expense of mediation including fee, if not paid by the parties, the Court shall, on the application of the mediator or parties, direct the concerned parties to pay, and if they do not pay, the Court shall recover the said amounts as if there was a decree for the said amount.

(8)    Where a party is entitled to legal aid under section 12 of the Legal Services Authority Act, 1987, the amount of fee payable to the mediator and costs shall be paid by the concerned Legal Services Authority under that Act.

Rule 27 : Ethics to be followed by mediator : The mediator shall :

(1)    follow and observe these Rules strictly and with due diligence;

(2)    not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of a mediator;

(3)    uphold the integrity and fairness of the mediation process;

(4)    ensure that the parties involved in the mediation and fairly informed and have an adequate understanding of the procedural aspects of the process;

(5)    satisfy himself/herself that he/she is qualified to undertake and complete the assignment in a professional manner;

(6)    disclose any interest or relationship likely to affect impartiality or which might seek an appearance of partiality or bias;

(7)    avoid, while communicating with the parties, any impropriety or appearance of impropriety;

(8)    be faithful to the relationship of trust and confidentiality imposed in the office of mediator;

(9)    conduct all proceedings related to the resolutions of a dispute, in accordance with the applicable law;

(10)    recognize that mediation is based on principles of self-determination by the parties and that mediation process relies upon the ability of parties to reach a voluntary, undisclosed agreement;

(11)    maintain the reasonable expectations of the parties as to confidentiality;

(12)    refrain from promises or guarantees of results.

Rule 28 :    Transitory provisions :

Until a panel of arbitrators is prepared by the High Court and the District Court, the Courts referred to in Rule 3, may nominate a mediator of their choice if the mediator belongs to the various classes of persons referred to in Rule 4 and is duly qualified and is not disqualified, taking into account the suitability of the mediator for resolving the particular dispute."

Report No.3

Report No.3 deals with the Case Flow Management and Model Rules. The case management policy can yield remarkable results in achieving more disposal of the cases. Its mandate is for the Judge or an officer of the court to set a time-table and monitor a case from its initiation to its disposal. The Committee on survey of the progress made in other countries has come to a conclusion that the case management system has yielded exceedingly good results.

Model Case Flow Management Rules have been separately dealt with for trial courts and first appellate subordinate courts and for High Courts. These draft Rules extensively deal with the various stages of the litigation. The High Courts can examine these Rules, discuss the matter and consider the question of adopting or making case law management and model rules with or without modification, so that a step forward is taken to provide to the litigating public a fair, speedy and inexpensive justice.

The Model Case Flow Management Rules read as under: "MODEL CASE FLOW MANAGEMENT RULES

(A)    Model Case Management Rules for Trial Courts and First Appellate Subordinate Courts

I.    Division of Civil Suits and Appeals into Tracks

II.    Original Suits

1.    Fixation of time limits while issuing notice

2.    Service of Summons/notice and

completion of pleadings

3.    Calling of Cases (Hajri or Call Work or Roll Call)

4.    Procedure on the grant of interim

orders

5.    Referral to Alternate Dispute

Resolution

6.    Procedure on the failure of Alternate Dispute Resolution

7.    Referral to Commissioner for

recordal of evidence

8.    Costs

9.    Proceedings for Perjury

10.    Adjournments

11.    miscellaneous Applications.

III.    First Appeals to Subordinate Courts

1.    Service of Notice of Appeal

2.    Essential Documents to be filed with the Memorandum of Appeal

3.    Fixation of time limits in interlocutory matters

4.    Steps for completion of all formalities (Call Work Hajri)

5.    Procedure on grant of interim-orders

6.    Filing of Written submissions

7.    Costs

IV.    Application/Petition under Special Acts V.    Criminal Trial and Criminal Appeals to Subordinate Courts

(a)    Criminal Trials

(b)    Criminal Appeals

VI.    Notice under section 80 of Code of Civil Procedure

VII.    Note

(B)    Model Case Flow Management Rules in High Court

I.    Division of Cases into Tracks

II.    Writ of Habeas Corpus

III.    Mode of Advance Service

IV.    First Appeals to High Court

V.    Appeals to Division Bench

VI.    Second Appeals.

VII.    Civil Revisions

VIII.    Criminal Appeals

IX.    Note.

..High Court Rules, 2003

In exercise of the power conferred by Part X of the Code of Civil Procedure 1908, (5 of 1908) and . High Court Act, and all other powers enabling, the . High Court hereby makes the following Rules, in regard to case flow management in the subordinate courts. (A)    Model Rules for Trial Courts and First Appellate Subordinate Courts

I.    Division of Civil Suits and Appeals into Tracks

1.    Based on the nature of dispute, the quantum of evidence to be recorded and the time likely to be taken for the completion of suit, the suits shall be channeled into different tracks. Track I may include suits for maintenance, divorce and child custody and visitation rights, grant of letters of administration and succession certificate and simple suits for rent or for eviction (upon notice under Section 106 of Transfer of Property Act). Track 2 may consist of money suits and suits based solely on negotiable instruments. Track 3 may include suits concerning partition and like property disputes, trademarks, copyrights and other intellectual property matters. Track 4 may relate to other matters. All efforts shall be taken to complete the suits in track 1 within a period of 9 months, track 2 within 12 months and suits in track 3 and 4 within 24 months.

This categorization is illustrative and it will be for the High Court to make appropriate categorization. It will be for the judge concerned to make an appropriate assessment as to which track any case can be assigned.

2.    Once in a month, the registry/administrative staff of each Court will prepare a report as to the stage and progress of cases which are proposed to be listed in next month and place the report before the Court. When the matters are listed on each day, the judge concerned may take such decision as he may deem fit in the presence of counsel/parties in regard to each case for removing any obstacles in service of summons, completion of pleadings etc. with a view to make the case ready for disposal.

3.    The judge referred to in clause (2) above, may shift a case from one track to another, depending upon the complexity and other circumstances of the case.

4.    Where computerization is available, the monthly data will be fed into the computer in such a manner that the judge referred to in clause (2) above, will be able to ascertain the position and the stage of every case in every track from the computer screen. Over a period, all cases pending in his Court will be covered. Where computerization is not available, the monitoring must be done manually.

5.    The judge referred to in clause (2) above, shall monitor and control the flow or progress of every case, either from the computer or from the register or data placed before him in the above manner or in some other manner he may innovate.

II.    Original Suit :

1.    Fixation of time limits while issuing notice :

(a)    Wherever notice is issued in a suit, the notice should indicate that the Code

prescribes a maximum of 30 days for filing written statement (which for special

reasons may be extended upto 90 days) and, therefore, the defendants may prepare the written statement expeditiously and that the matter will be listed for that purpose on the expiry of eight weeks from the date of issue of notice (so that it can be a definite date). After the written statement is filed, the replication (if any, proposed and permitted), should be filed within six weeks of receipt of the written statement. If there are more than one defendant, each one of the defendant should comply with this requirement within the time-limit.