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ALTERNATE DISPUTE RESOLUTION IN CRIMINAL MATTERS
Question Bank
Q.1. Critically examine the provisions of plea bargaining adopted in criminal administration of justice in India.
Q.2. Explain the meaning, essentials and significance of Negotiation.
Short Notes
- Compoundable offences and ADR.
- Plea bargaining.
Table of Contents
- Introduction- 61
- Provisions of Plea Bargaining in CrPC:- 61
- Applicability (S. 265-A):- 61
- Application for plea bargaining (S. 265-B):- 61
- a) Who files:- 61
- b) Content of application:- 61
- c) Notice by the Court:- 62
- d) Steps by the Court on appearance of parties:- 62
- Guidelines for Mutually satisfactory disposition (S. 256-C):- 62
- Report of the mutually satisfactory disposition (S. 265-D):- 62
- Power of the Court in Plea Bargaining (S. 265-H):- 63
- No use of the statement of the accused (S. 265-K):- 63
“I Accept the Crime”
I. Introduction-
Resolving criminal matters through alternate dispute resolution is very common in U.S. However, it was not inserted in Indian judicial system until recently i.e. in 2006.
In fact Indian criminal justice system was reluctant to adopt alternate dispute resolution in its field. The Law Commission of Indian in its 142nd Report in 1991, in its 154th Rent in the year 1996 and in its 177th report in 2001 had recommended to apply plea bargaining in Criminal Procedure Code.
Justice Malimath Committee on “Reforms of Criminal Justice System”, had endorsed various recommendations of the Law Commissions and favoured for introducing ‘plea bargaining’ system in India. The Committee had submitted its report in 2003.
II. Provisions of Plea Bargaining in CrPC:-
Upon various reports of Law Commissions and Committees, the Criminal Procedure Code, 1908[1] was amended in 2005 and Chapter XXI-A was inserted, containing Ss. 265-A to 265-L, dealing with plea bargaining. The amendment was effected in 2006.
We will discuss these provisions as follows-
1. Applicability (S. 265-A):-
Plea bargaining is available to the accused person who is charged for an offence wherein the maximum imprisonment prescribed is up to 7 years. Moreover, it is not available to an offence affecting socio-economic condition of the county. Also the offence should not have been committed against a woman or a child below 14 years of age. Moreover, this Chapter does not apply to juvenile as defined in Juvenile Justice Act, 2000[2] i.e. to a person who has not completed eighteen years of age (S. 265-L).
2. Application for plea bargaining (S. 265-B):-
a) Who files:-
An application for plea bargaining is to be filed by the accused.
b) Content of application:-
The application shall contain (i) a brief description of the case relating to which the application is filed including the offence to which the case relates and (ii) shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, (after understanding the nature and extent of punishment provided under the law for the offence), the plea bargaining in his case, that (iii) he has not previously been convicted by a court in a case in which he had been charged with the same offence.
c) Notice by the Court:-
The court shall thereafter, issue notices to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused, of the date fixed for the plea bargaining.
d) Steps by the Court on appearance of parties:-
When the parties appear, the court shall examine the accused in-camera wherein the other parties in the case shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.
3. Guidelines for Mutually satisfactory disposition (S. 256-C):-
The section lays down the procedure to be followed by the court in mutually satisfactory disposition.
(i) In a case instituted on a police report, the court shall issue the notice to the public prosecutor concerned, investigating officer of the case, and the victim of the case and the accused to participate in the meeting to work out a satisfactory disposition of the case.
(ii) In a complaint case, the Court shall issue a notice to the accused and the victim of the case.
4. Report of the mutually satisfactory disposition (S. 265-D):-
This section talks about the preparation of the report of mutually satisfactory disposition and submission of the same. There may come two situations namely,-
(a) If in a meeting, a satisfactory disposition of the case has been worked out, the report of such disposition is to be prepared by the court. It shall be signed by the presiding officer of the Court and all other persons who participated in the meeting.
The Court then, has to hear the parties on the quantum of the punishment or accused’s entitlement of release on probation of good conduct or admonition[3]. (a) The Court can either release the accused on probation under the provisions of S. 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force or (b) punish the accused, passing the sentence. While punishing the accused, the Court, at its discretion, (i) can pass sentence of minimum punishment, if the law provides such minimum punishment for the offenses committed by the accused or (ii) if such minimum punishment is not provided, can pass a sentence of one-fourth of the punishment provided for such offense.
(b) But if no such disposition has been worked out, the Court shall record such observation and proceed further in the case, from the stage the application was filed (S. 265-E).
As per S. 428 of the CrPC, the accused gets benefit of a set-off, of the period of detention already undergone by him (S. 265-I)[4].
The Court shall deliver its judgment in the open Court and the same shall be signed by the presiding officer of the Court (S. 265-F).
The judgment delivered by the Court shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment (S. 265 G).
5. Power of the Court in Plea Bargaining (S. 265-H):-
The section talks about the powers of the court in plea bargaining. A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under the Criminal Procedure Code.
6. No use of the statement of the accused (S. 265-K):-
The statements or facts stated by the accused in an application under section 265-B shall not be used for any other purpose except for the purpose as mentioned in the chapter. In other words, the accused would not get any disability because of his confession of the crime[5] before the court in plea-bargaining.
III. Conclusion:-
After inclusion of plea bargaining in CrPC, the courts also have accepted the concept of alternate dispute resolution in criminal matters. It is evident from number of judgments thereafter.
In Gain Singh v. State of Punjab
(2012) 10 SCC 203.
The Supreme Court observed that, “the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing it, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim”.
Thus, the judgment upheld the inherent power of a High Court under S. 482 of the CrPC, even of quashing proceeding before the lower courts.
The Supreme Court has affirmed victim’s interest and acclaimed his right of appeal in following case.
In Malikarjun Kodgali v. State of Karnataka
(2019) 2 SCC 752
Three judge bench of the Supreme Court considered 154th Report of the Law Commission of India submitted on August 1996; The Report of the Committee on Reforms of Criminal Justice System commonly known as Justice Malimath Committee; Draft National Policy on criminal Justice of July, 2007, known as the Professor Madhava Menon Committee and 221st Report of the Law Commission of Indian, submitted in 2009, and observed that “Parliament has been proactive in recognizing the rights of victims of an offence. One such recognition is through the provisions of Chapter XXI-A CrPC which deals with plea bargaining. Parliament has recognised the rights of a victim to participate in a mutually satisfactory disposition of the case. This is a great leap forward in the recognition of the right of a victim to participate in a proceedings of a non-compoundable cases. The Parliament has amended CrPC introducing the right of appeal to the victim of an offence”.
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[1] Henceforth for the sake of brevity called as “CrPC”.
[2] S. 2 (k) “Juvenile” or “Child” means a person who has not completed eighteen years of age.
[3] अरापोको ताडकर / उसे चेतावणी, समज देकर छोडना
[4] पहले भूगती हुई सजा काम कि जाती हैS@
[5] (7). S. 498-A whether compoundable?
The Supreme Court in the case of Ramgapal v. State of MP (2010) 13 SCC 540 and also in Diwakar Singh v. State of Bihar[5] decided in 2008 had suggested to the Law Commission of India to make offence under S. 498-A, of IPC to e compoundable (i) to relieve courts of deciding cases in which the aggrieved parties have themselves arrived at a settlement (ii) to facilitate reconciliation among spouses.
As per the suggestion of Supreme Court, the Law Commission of India and the Government of India decided to examine all aspects of S. 498-A and whether it can be made compoundable.
Accordingly, the Law Commission of India in its 237th report on “Compounding of some (IPC) offences”, submitted in Dec, 2011 has suggested to make 498-A a non-compoundable to compoundable offence with courts permission. S. 498-A prescribes punishment to a husband or his relatives who subject his wife to cruelty.
However, the section could not until recently be made compoundable by the legislature.