Final Draft of Crpc

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FINAL draft for partial fulfilment OF criminal law-

2 ON THE TOPIC:-

“determinig appropriate punishment”

PRESENTED BY: - KUMAR MANGALAM

B.A.LLB, 4th SEMESTER, 2nd YEAR

ROLL NO.:- 936

SUBMITTED TO: - father peter ladis

Date:-

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1. INTRODUCTION

One of the leading lawyer Nani Palkhivala, said: ― “The greatest drawback of

the administration of justice in India today is because of delay of cases…The law

may or may not be an ass, but in India, it is certainly a snail and our cases

proceed at a pace which would be regarded as unduly slow in the community of

snails. Justice has to be blind but I see no reason why it should be lame. Here it

just hobbles along, barely able to work.” India’s efficiency in crime investigation,

prosecution and trial process is under a shadow of doubt and crisis of credibility

because more than seventy per cent accused are acquitted. When it is difficult or

impossible to secure evidence to establish crime through able investigation,

“what are the alternatives to send the criminals to jails?” One limited answer is

“plea bargaining” where confessions will be bargained from criminal under

judicial supervision which might result in speedy trial and sentencing. This

article intends to examine the utility of plea bargaining. This research work will

also deal with various provisions related to trials, trial before a court of session,

trial of warrant and summon cases by magistrate, conclusion of the trial and case

laws related to it. Concept of fair trial is very recent concept, earlier it was not in

the society. With the passage of time and with establishment of court, gave rise to

concept of fair trial. It has been universally accepted that a person accused of any

offence should not be punished unless he has given a fair trial and his guilt has

been proved beyond reasonable doubt, fairness in trial is a relative concept and

could be measured only in relation to gravity of the accusation, the time and

resources which the society could reasonably afford to spend. Now, coming to

plea bargaining, it is also called plea agreement, plea deal or copping a plea,

which is an agreement between the prosecutor and defendant whereby the

defendant agrees to plead guilty to a particular charge in return for some

concession from the prosecutor. It is a Pre-Trial procedure whereby a bargain

or deal is struck between the accused of an offence and the prosecution with the

active participation of the trial judge. It can further be explained as:

(i) Withdrawal of one or more charges against an accused in return for a

plea of guilty,

(ii) Reduction of a charge from a more serious charge to a lesser charge in

return for a plea of guilty.

(iii) Recommendation by the prosecutor to sentencing judges as to leniency

of sentence in lieu of plea of guilty.

Unlike the accused, victims in India have virtually no rights in criminal

proceedings, supposedly conducted on their behalf by state agencies. When state

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agencies fail to successfully prosecute offenders, as is oftentimes the case, victims

are left to either suffer injustice silently or seek personal retribution by taking

the law into their own hands.1 Ironically, the “guilty man is lodged, fed, clothed,

warmed, lighted and entertained in a model cell at the expense of the State, from the

taxes that the victim pays to the treasury.

OBJECT OF THE STUDY

The researcher, by doing this research wants to achieve:-

1. Does every accused get a chance of fair trial before being punished?

2. What is plea- bargaining and its importance in determing appropriate

punishment?

SCOPE OF THE STUDY

The end product of this research work will be:-

1. Importance of plea- bargaining.

2. Correct way to determine appropriate punishment.

3. Application of various decided cases in present time.

HYPOTHESIS

The hypothesis of the researcher is that:-

1. The present way of trial is the appropriate way to determine punishment.

RESEARCH METHODOLOGY.

The researcher has used doctrinal method of research. The researcher has

confined his study to various books related to criminal law.

Primary sources: - Code of Criminal Procedure, 1973

Secondary sources: - N.V. Paranjape, the Code of Criminal Procedure, 4th

Edition, Central Law Agency publication; R.V. Kelkar’s Criminal Procedure, 6th

Edition, various online database.

1 Taken from N.R. Madhava Menon, Victim’s rights and criminal justice reforms, The Hindu, Mar. 27, 2006,

available at http://www.thehindu.com/2006/03/27/stories/2006032703131000.htm.

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TENTATIVE CHAPTERISATION

1. Introduction

2. Trial before a court of sessions.

3. Trial of warrant and summon cases before magistrate

4. Plea-bargaining

5. Conclusion, criticism and suggestions

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2. TRIAL BEFORE COURT OF SESSIONS

It is settled principle of criminal law that a person who is charged of an offence

cannot be punished unless he has been tried by the competent Court and his guilt

is proved. The Public Prosecutor appointed under section 24 of the code

represents the state in all trials before the Court of Sessions and it is only he who

is entitled to conduct prosecutions in a Court of Sessions.2 When it appears to the

Magistrate that the case is triable exclusively by the Court of Session3, he shall

commit the case to that court and send all the records, documents, and articles,

etc. to it, and remand the accussed to custody or grant him bail and notify it to

the Public Prosecutor. Then the public prosecutor will open the case before the

session court, by explaining the charge or charges brought against the accused

and the evidence he is going to produce to prove the guilt of the accused. If, upon

consideration of the record of the case and the documents submitted and after

hearing the submissions of the accused and the prosecution in this behalf , the

judge considers that there is no sufficient ground for proceeding against the

accused, he shall discourage the accused and the record his reason for so doing.

The Supreme Court, in the case of Alamoham Das v. State of West Bengal4 had

also observed that “A magistrate holding injury is not intended to act merely a

recording machine. He is entitled to shift and weigh the material on record but

only for seeing whether there is sufficient evidence for conviction. if there is no

prime facie evidence or the evidence of totally unworthy of credit, it is the duty to

discharge the accused, and if there is some evidence on which a conviction mar

reasonably be based, he must commit the case.

The framing of charges are done, in the writing a charge against the accused, if

exclusively triable by the court. If the accused pleads guilty, the Judge shall

record the plea and may in his discretion, convict him thereon.5 A plea of guilt is

no less than confession. If the accused wants to plea guilty he should do so

personally rather by doing it through legal counsel. But where the personal

attendance of the accused is dispensed with, he may plead guilty made by the

through his pleader.6 The Judge should take all such evidence as may be

produced in support of prosecution on the date so fixed. 7after hearing both the

2 Section 225 of chapter 18 of CrPC

3 Section 226 of Chapter 18 of CrPC

4 AIR 1970 SC 863

5 Section 229 of Chapter 18 of CrPC

6 Kanchan Baiv. State of Nagaland, 1983, CrLJ 57 (Gau).

7 Section 231 of Chapter 18 of CrPC

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prosecution and defence counsel, judge could order of acquittal or conviction and

finally judgement of acquittal and conviction should be given by the Judge.8

8 Section 234 and Section 235 of Chapter 18 of CrPC.

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3. Conclusion of the trial9

Once charge is framed in warrant cases, the Magistrate has no power to

discharge the accused. He must acquit or convict him unless he decides to

proceed under section 32510 or section 36011. When the proceedings have been

instituted upon complaint, and on any day fixed for the hearing of the case, the

complainant is absent, and the offence may be lawfully compounded or is not

cognizable offence, the Magistrate may, in his discretion, notwithstanding

anything hereinbefore contained at any time before the charge has been framed,

discharged the accused.12 Payment of compensation to those accused against

whom complaints of accusation were made without any reasonable ground.13

This section reserves the power to award compensation only to magistrate who

has heard the case and has set aside the conviction and sentence against the

accused, no other magistrate or the court of appeal can pass an order of

compensation under this section. This view finds support in the Supreme Court’s

decision14 , where in the court ruled that the same magistrate who acquitted the

accused setting aside his conviction and sentence, alone can initiate action and

pass the final orders of compensation under this section.15

9 Section 248 to Section 250 of Chapter18 of CrPC

10 Magistrate could not pass sentence sufficiently severe.

11 Release of the accused on probation of good conduct or after admonition.

12 Section 249 of CrPC:- ABSENCE OF COMPLAINANT

13 Section 250 of CrPC :- compensation for accusation without reasonable cause.

14 Krishnarao Nirgire v. Junanath Laxman Kushalkar(1998) 2 SCC 355

15 Section 250 of CrPC

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4. Trial of warrant and summon cases

Warrant cases:-

A warrant case relates to “offences punishable with death, imprisonment for life

or imprisonment for a term exceeding two years.”16 The CrPC provides for two

types of procedure for the trial of warrant cases by a magistrate, triable by a

magistrate:-

a. Those instituted upon a police report and,

b. Those instituted upon complaint.

In respect of cases instituted on police report, it provides for the magistrate to

discharge the accused upon consideration of the police report and documents

sent with it. In respect of the cases instituted otherwise than on police report, the

magistrate hears the prosecution and takes the evidence. If there is no case, the

accused is discharged. If the accused is not discharged, the magistrate holds

regular trial after framing the charge, etc. In respect of offences punishable with

death, life imprisonment or imprisonment for a term exceeding seven years, the

trial is conducted in a Sessions Court after being committed or forwarded to the

court by a magistrate.

Summon Cases:-

A summons case means “A case relating to an offence not being a warrant case,

implying all cases relating to offences punishable with imprisonment not

exceeding two years.”17 In respect of summons cases, there is no need to frame a

charge. The court gives substance of the accusation, which is called “notice”, to

the accused when the person appears in pursuance to the summons. The court

has the power to convert a summons case into a warrant case, if the magistrate

thinks that it is in the interest of justice. No charge needs to be framed only the

particulars of the offence need to be conveyed to the accused. Accused may plead

guilty by post without appearing before the magistrate.18

In a case19, High court of Delhi ruled that where accused did not plead guilty, the

magistrate has simply to ask the accused if he had any defence to make and

nothing beyond that. The Magistrate could not at initial stage compel the accused

16

Taken rom http://www.article2.org/mainfile.php/0702/313/ at 12.00 on 21.04.2015. 17

Taken from http://www.article2.org/mainfile.php/0702/313/ at 12.08 on 21.04.2015. 18

http://hanumant.com/CrPC-DifferencesShortNotes.html at 12.17 on 21.04.2015 19

Sant Kumar Singh v. State 2005, Cri LJ 4760(Del.)

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to disclose his defence in detail. In the instant case, while giving the notice of

substance of accusation to the accused asking several question to accused to find

out whether he was driving offending vehicle rashly and negligently was liable to

set aside being beyond the ambit of the provisions contained in section 251 of

CrPC.

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5. Plea bargaining

The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere.20 The doctrine has been under consideration by India for introduction and employment in the Criminal Justice System.21 Indian Criminal Justice System has been ineffective in providing speedy and economical justice. Because Courts are flooded with astronomical arrears, the trial life span is inordinately long and the expenditure is very high. Subsequently majority of cases are arising from criminal jurisdiction and the rate of conviction is very low. Plea bargaining has been inserted through Chapter XXI A22 in the Criminal Procedure Code. It provides for pre - trail negotiations between the defence and the prosecution during which an accused might plead guilty in exchange for certain concessions by the prosecution. The judge would decide if the plea bargaining was resorted to with malafide or bonafide intention. There are certain exceptions laid down to plea bargaining under the Bill. It has been proposed that there will be no plea bargaining in three cases namely, offences against women, children below the age of 14 years and socio-economic offences (like offences under Food Adulteration Act etc). There can be plea bargaining for offences where punishment prescribed is 7 years or less. Charge Bargaining is basically an exchange of concessions by both the sides which may also mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence. Sentence bargaining is the process which is introduced in India where the accused with the consent of the prosecutor and complainant or victim would bargain for a lesser sentence than prescribed for the offence.

The salient features are as follows:-

The Plea Bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years.

It does not apply where such offence affects the socio- economic condition of the country or has been committed against a woman or a child below the age of 14 years.

The application for Plea Bargaining should be filed by the accused voluntarily.

A person accused of an offence may file an application for Plea Bargaining in the court in which such offence is pending for trial.

20

A Nolo contendere plea is also referred to as a plea of No Contest. In criminal trials entering a plea of Nolo

Contendere is a plea in which the person charged with a criminal offense neither admits nor disputes the charges

brought against them. A Nolo Contendere plea, while not technically a guilty plea, will have the same

immediate effect as a guilty plea, and is often offered as part of a plea bargain. A plea by which a defendant in a criminal prosecution accepts conviction but does not plead or admit guilt. 21

http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html visited at 12.40 on 21.04.2015 22

Chapter XXI A includes Section 265A to Section 265L.

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The complainant and the accused are given time to work out a mutually satisfactory disposition of the case, which may include giving to the victim by the accused, compensation and other expenses incurred during the case.

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.

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.

The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie in any court against such judgment

The 154th Report of the Law Commission points out that an order accepting the plea passed by the competent authority on such a plea shall be final and no appeal shall lie against the same.23 Plea bargaining cannot be availed of in respect of offences punishable with a sentence exceeding seven years. In other words, plea bargaining would not apply to serious offences. On July 11, 2006 the Central Government actually issued a notification cataloguing 19 statutes as affecting the socio-economic conditions of the country and the offences in those statutes now stand excluded from the plea bargaining process.24 The positive aspect of PLEA BARGAINING is that the offences in which a mutually satisfactory agreement can be reached are limited. Secondly, the judge is not completely excluded from the process and exerts supervisory control.25 Thirdly, the Act ensures that such an opportunity will not be available to habitual offenders. Fourthly, the fact that the Act does not provide for an ordinary appeal from the judgment in such a case is a step towards expediting the disposal of cases.26 At the same time, a process for reviewing illegal or unethical bargains does exist though it may be noted that Article 136 of the Constitution does not confer a right of appeal on a party as such but confers a wide discretionary power on the Supreme Court to grant special leave. Also, though the remedy under Articles 226 and 227 of the Constitution can be made use of, it is unclear whether the victim of the offence can utilize this remedy. The Hon‟ble Supreme Court has criticized the concept of Plea Bargaining in its judgment, Murlidhar Meghraj Loya v. State of Maharashtra27

“Call plea bargaining‘, plea negotiation‘, trading out‘ and compromise in criminal cases‘ and the trial magistrate drowned by a docket burden nods assent to the

23

http://shodhganga.inflibnet.ac.in/bitstream/10603/32064/6/06_chapter%204.pdf VISITED AT 12.55 ON

21.04.2015 24

http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html visited at 01.00 on 21.04.2015. 25

http://www.ebc-india.com/lawyer/articles/2006_2cri_12.htm VISITED AT 4.00 ON 22.04.2015. 26

https://www.academia.edu/9589240/PLEA_BARGAINING_AN_ANALYSIS_IN_CONTEXT_OF_INDIA_

AND_United_Kingdom visited at 4.04 on 22 April, 2015. 27

AIR 1976 SC 1929.

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sub rosa anteroom settlement. The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, trades out‘ of the situation, the bargain being a plea of guilt, coupled with a promise of no jail‘. These advance arrangements please everyone except the distant victim, the silent society…”

Further, the Hon‟ble Supreme Court in a case strongly disapproved the practice of plea bargain.28 The Apex Court held that practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice. Similarly, in Kasambhai v. State of Gujarat29, the Supreme Court had expressed an apprehension that such a provision is likely to be abused.

Based on the recommendation of the Law Commission, the new chapter on plea bargaining making plea bargaining in cases of offences punishable with imprisonment upto seven years has been included in Crl.R.C and the same has come into effect from 05.07.2006. A consideration of Chapter XXI-A dealing with plea bargaining will show that certain procedure prescribed for plea bargaining under Sections 265-A to 265-L of Cr.P.C are to be complied to make it a valid plea bargaining.30 As per Section 265-A, the plea bargaining shall be available to the accused charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding seven years. Section 265-B contemplates an application for plea bargaining to be filed by the accused which shall contain a brief description of the case relating to which such application is filed, including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a court in a case in which he had been charged with the same offence. Sub-clause 4(a) is to the effect that if the court is satisfied with the voluntary nature of the application, then it shall provide time for working out a mutually satisfactory disposition of the case which may include giving to the victim by the accused compensation and other expenses. Section 265-C prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition. Section 265-D deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. Section 265-E prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. Section 265-F deals with the pronouncement of judgment in terms of such mutually satisfactory disposition. Section 265-G says that no appeal shall lie against such judgment. Section 265-H deals with the powers of the court in plea bargaining. Section 265-I makes Section 428 applicable to the sentence 28

Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr 1980CriLJ 553 29

AIR 1980 SC 854 30

https://www.academia.edu/9589240/PLEA_BARGAINING_AN_ANALYSIS_IN_CONTEXT_OF_INDIA_

AND_United_Kingdom visited at 4.30 on 22.04.2015

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awarded on plea bargaining. Section 265-J contains a non obstante clause that the provisions of (2005) Cr.L.J.2957, the chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A. Section 265-K says that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose of the chapter. Section 265-L makes the chapter not applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

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6. Conclusion

After doing the research work, the researcher has came to the conclusion that for determining appropriate punishment, a fair trial should be initiated. The right to equality before the law is sometimes regarded as part of the rights to a fair trial. It is typically guaranteed under a separate article in international human rights instruments. Fair trial is based on principle of natural justice. Constitution of India also provide for fair trial of the accused. It has been universally accepted in the present day of civilization that as a human value no person accused of any offence should be punished unless he has been given a fair trial and his guilt has been proved in such trial. The notion of fair trial cannot e explained in absolute terms. Fairness is relative concept and therefore fairness in criminal trial could be measured only in relation to the available time and resources and the prevailing human values in the society. Article 21 provides the protection of life and personal liberty means “No person shall be deprived of his liberty except according to procedure established by law.” Article 20 of the constitution provides protection in respect of conviction for offence, means “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the offence, nor be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” However, justice and fair play require that no one be punished without a fair trial. A person might be under a thick cloud of suspicion of guilt, he might have been even caught red-handed, and yet he is not to be punished unless and until he is tried and adjudged to be guilty by a competent court. In the administration of justice it is of prime importance that justice should not only be done but must also appear to have been done. Further, it is one of the cardinal principles of criminal law that everyone is presumed to be innocence unless his guilt is proved beyond reasonable doubt in a trial before a impartial and competent court.

Therefore it becomes absolutely necessary that every person accused of crime is brought before the court for trial and that all the evidence appearing against him is made available to the court for deciding as to his guilt or innocence.

After so many provisions and laws people are still not having a fair trial which is one of the main reasons for non determination of appropriate punishment.

The reasons that are cited for the introduction of plea-bargaining include the tremendous overcrowding of jails, high rates of acquittal, torture undergone by prisoners awaiting trial, etc. can all be traced back to one major factor, and that is delay in the trial process. It is a weakness of our jurisprudence that victims of crime and the dependents of the victims do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our law. This is the deficiency in the system, which must be rectified by the legislature.

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Suggestions

One of the leading lawyer Nani Palkhivala, said: ― “The greatest drawback of the administration of justice in India today is because of delay of cases…The law may or may not be an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to work.” The principle behind Indian Legal System is that “even if 100 criminals escape from getting punishment but a not even one innocent person should be punished. In my opinion the establishment of more speedy courts, mobile courts and establishment of more trial courts could help in determing appropriate punishment. The public must have faith in judiciary and other legal bodies. Some people only take the wrong way because of the delay in justice. If the correct justice is done at correct time, then it may happen that many crimes could be stopped.

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Bibliography

1. The Code Of Criminal Procedure, Dr. N.V. Paranjape, 4th Edition, reprint 2013, Central Law Agency.

2. R.V. Kelkar’s Criminal Procedure, K.N. Chandtashekharan Pillai, 6th Edition, 2014, Eastern Book Company.

3. Professional’s Code of Criminal Procedure, 1973, Professional Book Publishers.

4. http://www.thehindu.com/2006/03/27/stories/2006032703131000.htm. 5. http://www.article2.org/mainfile.php/0702/313/ 6. http://hanumant.com/CrPC-DifferencesShortNotes.html 7. http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html 8. https://www.academia.edu/9589240/PLEA_BARGAINING_AN_ANALYSIS_IN_CO

NTEXT_OF_INDIA_AND_United_Kingdom 9. http://shodhganga.inflibnet.ac.in/bitstream/10603/32064/6/06_chapter

%204.pdf 10. http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html 11. http://www.ebc-india.com/lawyer/articles/2006_2cri_12.htm