Plea Bargaining : A Revaluation

(By Dr. Abraham P. Meachinkara, Advocate, High Court of Kerala)

 

1. Introduction

The irony of our legal system is that the major legal framework of ours is an adaption of the west. Whether it is the Constitution, the Criminal Law or the Evidence, all find the better shades of the laws which were prevalent in the west. And even today, when nothing seems to work and the present legal system flatters, our law makers eye the western concept of law and justice delivery. Despite the strict approach adopted by the Apex Court towards plea bargaining, our Parliament approved¹ the concept of plea bargaining with the firm belief that it could handle the massive criminal loads, which has afflicted the legal system for long.

The concept of plea bargaining was incorporated into the statute book by an amendment to the Code of Criminal Procedure Code, in the year 2006 and enforced² on 5th July 2006. Down four years, it is high time to scrutinize the concept of plea bargaining and analyze the prospects and problems, which has been carried out in the following paragraphs.

 

2. Principles of Criminal Trial

Criminal trial is based on two systems, adversary system and inquisitorial system. In the inquisitorial system, even the Presiding Officer can take over the responsibility of supervising the investigation of cases and it is the responsibility of the Presiding Officer to discover the truth. The role of the parties is restricted to suggesting the question that may be put to witnesses³. It is the Presiding Officer who puts the questions to the witness and there is no cross-examination as such. The accused does not get a fair opportunity of testing the evidence tendered against him which is one of the essential requirements of fair trial.

Unlike inquisitorial system, in the adversarial system, fairness of trial is adequately assured by the presiding officers maintaining a position of neutrality and the parties getting full opportunity of adducing evidence and cross-examining the witness. This system of criminal trial is based on the principle that every case has two sides to it. In this system the prosecutor representing the State claims that the accused is guilty, while the accused pleads innocence⁴. The principle underlying this model is that truth will emerge from the respective version of fact, evidence and arguments presented by the parties before an impartial Judge. For centuries, cases are determined in genuinely contested adversary proceedings.

 

3.  Concept and Development

The delay in the rendering of judicial decisions became enormous problem and different experiments were carried out to overcome this issue. One simple way for early disposal of cases was to try for a settlement at the pre-trial stage itself. Plea bargaining is an obvious tool that has been put into use in the process of settling dispute at the pre-trial stage. Initially, the concept was evolved and adopted by United States. In Brady v.United States⁵, the United States Supreme Court upheld the validity of plea bargaining. The Court opined that it is not unconstitutional for the State to extend a benefit to an accused that in turn extends a substantial benefit to the State.

 

Plea bargaining is of three types: (i) Charge Bargaining; (ii) Sentence Bargaining; and (iii) Fact Bargaining. Plea bargaining entails pre-trial negotiation between the accused and prosecutor, where the accused has the option of admitting guilt and settling for a lesser punishment is sentence bargaining. Negotiating for the dropping of some charges, in case of multiple charge or settling for a less grave charge than one put of guilt is called charge bargaining. The third negotiation which involves an admissions to certain facts in return for an agreement not to introduce certain other facts is fact bargaining.

In America, plea bargaining has been a success resulting into ninety-five percent of conviction in the federal level courts. The most important reasons are that⁶:

(1)  Courts and Judges  tend to favour prosecutors as many Judges were former prosecutors and were appointed as Judges because of that background, with the hope and expectation that they will continue to support ‘law and order’ as seen from a prosecutor’s point of view;

(2)  The high cost for litigation (high fee of defense lawyer and high court fee and other expenses) which many the accused does not have especially when the accused assets are attached in advance. Cost of defense is not affordable by ninety-eight percent of the accused;

(3)  The accused must be brought to trial within six months of a not guilty plea⁷. If the trial is not held within six months, the case is dismissed. In most jurisdictions, they do not have enough Judges, prosecutors or court rooms to try criminal cases before a jury within six months. By plea bargaining, a prosecutor can reduce the number of cases set for trial so that cases do not get dismissed; and

(4)  Plea bargaining acts as a pressure on the accused to plead guilty. The prosecutor uses the threat of much greater punishment resulting from trial if the accused does not accept the prosecutor’s offer of a lesser sentence.

 

4.  Approach  of  Indian  Judiciary

The Apex Court has examined the concept of plea bargaining and has taken a very strict approach in the following cases: Madanlal Ram Chandra Daga v. State of Maharahtra⁸; Murlidhar Mehgaraj Loya v. State of Maharashtra⁹; Kasmbhi Abdual Rehmabhai Sheik v. State of Gujarath¹⁰; Thippaswamy v.State of Karnataka¹¹; and State of U. P. v.Chandrika¹².  A crime is essentially a wrong against the society and the State. Therefore, any compromise between the accused person and the individual victim of the crime, or for that matter the State should not absolve the accused from criminal liability. It is this line of approach Indian judiciary has adopted. Indian legal system did not recognize the concept of plea bargaining and considered it as illegal and unconstitutional.

The first case in which concept of plea bargaining was considered was Madanlal Ramachander Daga v. State of Maharashtra¹³, in which the Apex Court observed¹⁴:

“In our opinion, it is very wrong for a court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence. But the court should never be a party to bargain by which money is recovered for the complainant through their agency. We do not approve of the action adopted by the High Court...”

In Murlidhar Megh Raj Loys v. State of Maharashtra¹⁵, again question of plea bargaining was considered and disapproved in the following words¹⁶:

“To begin with are free to, we confess to a hunch that the appellants had hastened with their plea of guilt hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance. Many economic offenders resort to practices the American 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 subrosa ante-room settlement. The businessmen culprit, confronted by a sure prospect of agency and ignominy of tendency of a prison cell, ‘trades out’ of the situation, the bargain begin a plea of guilt, coupled with a promise of ‘no jail’… It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences this practice intrudes on society’s interest by opposing society’s decision expressed through pre-determined legislative fixation of minimum sentences and by subtly subverting the mandate of the law. The jurist across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justified it philosophically as a sentences concession to a defendant who that has, by his plea ‘aided in ensuring the prompt and certain application of correctional measures to him’...”

The Apex Court in cases Ganeshmal Jasraj v. Government of Gujarat and Another¹⁷ and Thippeswamy v. State of Karnataka¹⁸ set aside the order passed by the High Court’s enhancing the sentence in a food adulteration case and remanded the matter to the Trial Court for trial in accordance with law, as the conviction and sentence were based on admission of guilt as a consequence of plea bargaining. The Apex Court observed that it would be violative of Article 21 of the Constitution to induce an accused to plead guilty under an assurance that he would be treated lightly and then in appeal or revision the sentence is enhanced. Such a procedure would be clearly unfair, unjust and unreasonable in view of the dimensions unfolded in Maneka Gandhi vUnion of India^19.

In Kasambhai Abdul Rehmanbhai Sheikh v. State of Gujarat²⁰ and Kochhta Patel Shantilal Koderlal v. State of Gujarat²¹ the Apex Court ruled that the practice of plea bargaining in unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the justice system because it might induce an innocent accused to plead guilty and to suffer a lighter and inconsequential punishment instead of going through a long and arduous criminal trial which is not only expensive and time consuming but also uncertain and unpredictable in its result. The Judge may also be deflected from the path of justice and may convict the innocent by accepting the plea of guilt or let off a guilty accused with a lighter sentence. The process of plea bargaining has squarely been criticized upon by the Apex Court in the following words^22:

“It is obvious that such convictions based on the plea of guilty entered by the appellant as result of plea bargaining cannot be sustained. It is to our mind contrary to public policy to allow a conviction to be recorded against an accused by including him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilt he will be let off every lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of this new activist dimension of Article 21 of the Constitution unfolded inManekaGandhi’s case. It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial”.

In Kripal Singh v. State of Haryana²³ a case involving offences under Sections 392 and 397 I.P.C. where minimum punishment of seven years of rigorous imprisonment by the law has been provided, it was held by the Apex Court that concept  of plea bargaining cannot be adopted to circumvent the minimum punishment of seven years prescribed by the law. Neither the High Court nor the Trial Court has the jurisdiction to bypass the minimum limit of sentence prescribed by law on the pretext that a plea bargaining was clinched by the accused on the assumption that Court would award him punishment even less than minimum prescribed by law and let him off lightly. This procedure was held to be unfair, unjust and unreasonable and hence violative of Article 21 of the Constitution of India. Similar observations were made by the Apex Court in State of U.P. v. Nasruddin²⁴ a case under section 304 I.P.C. where plea bargaining on the question of sentence was held to be not permissible under the law.

The same approach was taken in State of U.P. v. Chandrika²⁵ and has reiterated the law relating to plea bargaining. It opined that it is now a settled law, that concept of plea bargaining is not recognized and is against public policy under Indian criminal justice system. Except compounding of offences under Section 320 of Cr. P. C., the concept of negotiated settlement in criminal cases is not permissible. Mere admission of the guilt should not be a ground for reduction of sentence. The accused cannot bargain with the court that since he is pleading guilty so consequently his sentence be reduced.

From the above cases it could be considered that: (i) court should not be a party to plea bargaining; (ii) in economic offences and food adulteration cases plea bargaining should be disapproved; (iii) enhancement of sentences by Appellate or Revisional Court on the basis of plea bargaining is unconstitutional under Article 21 of the Constitution; and (iv) that there should be no plea bargaining in non-compoundable offences. Thus we can see Indian criminal jurisprudence did not recognize concept of plea bargaining and considered it as unconstitutional, illegal, immoral and against public policy.

 

5.  Recommendation  of  the  Law  Commission

The criminal jurisprudence of India did recognize the concept of pleading guilty for petty offences, under Section 206(1) of the Code of Criminal Procedure and section 208(1) of the Motor Vehicles Act, 1988, but not the concept of plea bargaining. The Law Commission of India in its 142nd and 154th Reports²⁶ having considered the concept of plea bargaining as is being practiced in other countries, recommended that the scheme for concessional treatment to offenders who plead guilty on their own volition in lieu of promise to reduce the charge, to drop some of the charges or getting lesser punishment be statutory. Justice Malimath Committee on Criminal Justice Reforms, 2003²⁷ also recommended the implementation of the reports of the Law Commission of India with regard to settlement of cases without trial.

The Law Commission in its 142nd report stated that it is desirable to infuse life into reformative provisions embodied in Section 360 Cr. P. C. and the Probation of Offenders Act, which according to the Law Commission remained unutilized. Law Commission noted the advantages of plea bargaining which ensures speedy trial with benefits such as (i) speedy trial; (ii) end of uncertainty; (iii) saving of cost of litigation; and (iv) relieving of the anxiety. The Law Commission also noted that it would enable the accused to start a fresh life after undergoing a lesser sentence. Law Commission also observed that plea bargaining would be a viable alternative to be explored to deal with huge arrears of criminal cases. On the recommendation of the Malimath Committee, a new Chapter XXI-A on Plea Bargaining had been inserted in the Criminal Procedure Code, 1973.

 

6.  Salient Features of the Concept

The salient features of Plea Bargaining under Chapter XXI-A of the Criminal Procedure Code, 1973 inter alia includes:

         (1)    The plea bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of seven years²⁸;

         (2)    It does not apply where such offences affect the socio-economic condition of the country and has been committed against a women or a child below the age of fourteen years²⁹;

         (3)    The application for plea bargaining should be filed by the accused voluntarily³⁰;

         (4)    Habitual offenders are not entitled for the benefit of plea bargaining³¹;

         (5)    A person accused of an offence may file an application for plea bargaining in the court in which such offences is pending for trial³²;

         (6)    After receiving the above application, the court shall issue notice to the public prosecutor or the complainant of the case, as the case may be, and the accused to appear on the date fixed for the case³³;

         (7)    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 case³⁴;

         (8)    Guidelines for mutually satisfactory disposition with the basic objective that it is completed voluntarily by the parties participating in the process³⁵;

         (9)    Where a satisfactory disposition of the case has been worked out, the Court shall dispose by awarding compensation to the victim in accordance with the disposition and it may release the accused on probation or provide the benefit any law in force³⁶;

         (10)  Where minimum punishment has been provided under the law for the offence committed by the accused, sentence the accused to half of such minimum punishment³⁷;

         (11)         If the offence is not covered under the above two category, the  court may sentence to one-fourth of the punishment provided or extendable for such offences³⁸;

         (12)  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 bargaining³⁹;

         (13)  Period of detention undergone by the accused to be set off against the sentence of imprisonment⁴⁰; and

         (14)  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 judgment⁴¹.

 

7.   Constitutionality

Our Constitution guarantees certain fundamental trial rights of an accused within the meaning of Articles 14, 19, 20 and 21. Plea bargaining is no more than offering of incentive to have these trial rights. Now the question as to what is waiver or doctrine of waiver.

The doctrine of waiver has no application to the provision of law enshrined in Part III of the Constitution. It is not open to an accused person to waive or give up his constitutional right and get convicted⁴². Waiver of fundamental right as interpreted by the Apex Court is not possible⁴³. The Apex Court in Muthiah and others v. Commissioner of  Income Tax,  Madras and others⁴⁴ held that it is not open to a citizen to waive any of the fundamental rights conferred by Part III of the Indian Constitution. It has further held that these rights have been part in the Constitution not merely for the benefit of individual but as a matter of public policy for the benefit of the general public. It is an obligation imposed upon the State by the Constitution.

It is the duty of the court to protect their rights against themselves. The views of the Apex Court that the doctrine of waiver, as formulated by some American Judges in interpreting the American Constitution cannot be applied in interpreting the Indian Constitution. Since, waiver of fundamental rights as interpreted by our Apex Court is not possible.

Right against self incrimination has recommended itself to be one of the cardinal principles of administration of criminal justice system to rise to constitutional status of which Article 20(3) of the Indian Constitution says “No person accused of an offence shall be compelled to be a witness against himself”. Thus, plea bargaining makes serious intrusion into this constitutional value for the accused compelled to self-incrimination or plead guilty by the concession held out the form of either lesser charge or reduced sentences. In such a way it can be stated that his act is not voluntary or least voluntary. Mercy should be given but not be exchanged.

Right  to  Fair  Procedure

The Apex Court has forcefully asserted in Karta Singh v. State of Punjab⁴⁵ that the procedure contemplated under Article 21 should be ‘right, just and fair’. In order that the procedure is ‘right, just and fair’ it must conform to natural justice. The plea bargaining only goes to the level of ‘mutually satisfactory disposition’ without any guiding principles to determine what this mutually satisfactory disposition is? Under Section 265D, the presiding officer of the Court has the discretion to report a mutually satisfactory disposition between two parties who enter into plea bargaining. While the judicial process of adjudication ensures that both parties are kept at an equal pedestal as far as possible. In plea bargaining provision there is no check to see whether the mutually satisfactory disposition is indeed voluntary or coerced.

Principle of plea bargaining imply that the accused ‘voluntarily’ accept his guilt⁴⁶. There are no guidelines what so ever to check whether the disposition has truly achieved the object it sought to achieve, or whether the disposition has been made according to the whims and will of only party to the bargain. Thus, granting such unfettered and uncontrolled power to the presiding officer without any guidelines throws again the gates for these procedures to be abused by an evil eye and unequal hand⁴⁷. The widening definition of Article 21 encompasses the principles of natural justice. Principles of natural justice are these rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights.

 

Right  to  Appeal

Assurance of a fair trial is the first imperative of the dispensation of justice⁴⁸. The decision making process should be fair, transparent and open⁴⁹. Plea bargaining takes away from the accused his right to appeal as guaranteed by the Criminal Procedure Code. The only alternative left with the accused, in case he is dissatisfied with the result of the bargaining or imposed sentence is to file Writ Petition.

 

Right  to  Equality

Plea Bargaining fails on the touchstone of equality before law and equal protection of law as it does not satisfy the dual test. It was held by the Apex Court in The State of West Bengal v. Anwar Ali Sarkar and another⁵⁰ that: (i) the classification must be founded on an intelligible differentia, which distinguishes persons, or things that are grouped together from others left out of group; and (ii) the differentia must have a rational relation to the object sought to be achieved by statute in question.

The grouping done is unreasonable to the extent that it does not categorically define the offences in which the plea bargaining can be done, since the offences that constitute socio economic offences have to be notified by the Central Government from time to time. Hence, the classification is subject to change from time to time and is not pre-determined. The classification thus, being incomplete, is unreasonable and violative of Article 14.

It can be seen that if one accused is given concessions of a certain kind and the other equally placed accused is denied those concessions, it is clearly discriminatory and the latter may complain of violation of Article 14⁵¹.

 

Unreasonable  Classification

Classification of persons who may enter into plea bargaining and those who may not, is dependent on the punishment of the offences. Offences which are punishable with more than seven years of imprisonment cannot be plea bargained. For example, under Section 308 ofthe I.P.C., punishment for attempt to commit culpable homicide is three years. A person who attempts to commit culpable homicide can easily take advantage of the plea bargaining provisions, even though the offence committed is of a high degree of severity. As such we can see that the number of years of punishment may not always be an indicator of the degree of severity of the offence and the object of the segregating ‘high offences’ from ‘petty offences’ is not met by this yardstick.

 

8.   Provisions  of  the  Criminal  Procedure  Code

When a Judge or a magistrate frames a charge, the charge is read and explained to the accused and the accused is asked whether he pleads guilty of the offence charged or claims to be tried. If the accused plead guilty the Judge or a magistrate records the plea and can in his discretion commit the accused therein. If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted on his plea of guilty, the Judge or a magistrate fixes a date for examination of witnesses. If on the date of evidence, the accused wants to change his pleas and prefers to admit guilt what can the Judge or magistrate do as per the provisions of the Code.

In a trial before a Court of Sessions, following three provisions in the Code namely Section228(2), 229 and 230 speak of the plea of guilty. Similar provisions are contained in Section 240(2), 241 and 242 of Cr. P.C. for trial of warrant cases instituted on Police Report by Magistrate. For warrant cases instituted otherwise than on police report provisions for the purpose can be read in Section 246(1) to 246(4) of the Code. For trial of summons cases relevant provisions can be found in Sections 251, 252, 253(2) and 254 of the Code. Procedure for summary trial as mandated in Section 262 of the Code. Lastly, Section 313 of the Code also provides an opportunity to the accused to admit his guilt.

The mandate of Section 4 of the Code is clear that trial shall be conducted in accordance with the provisions of the Code. A subsequent plea of guilt smacks of plea bargaining which still is not permitted by the law. The breach of the provisions of the Code indicating the stage when the plea of guilty to be recorded will “bring about the result that the trial was conducted in a manner different from that prescribed by the Code” resulting in an illegality.  The law laid down⁵² by the different High Courts in this regard is in consonance with the provisions of the Code and is correct.

The courts are required by the Code to record the plea of guilty or otherwise in the stages of trial indicated by the specific provisions of the statute and in answer to the questions under Section 313 of the Code. The recording and acting on a plea of guilty in an intermediate stage of the trial will be an illegality within Willie (William) Slaney v. State of Madhya Pradesh⁵³ amounting to conducting a trial different from the procedure prescribed by the Code. Till the law is altered by the Legislature or by the Apex Court through interpretation it appears to be the law on the question of validity of a subsequent plea of guilt⁵⁴.

 

9.   Drawbacks

(1)  The Amendment Act excluded offences of which punishment of death or life imprisonment or imprisonment for a term exceeding seven years have been done. It also excluded all offences which have been committed against a woman or a child below 14 years or which affect the socio-economic condition of the country from its purview. Such offences constitute the bulk of cases of Indian courts and in such kinds of offences compensation is required to be given to the victims or state agencies against whom the crime is committed.

(2)  Sections 265(C), (D) and (E) of the Cr.P.C. have been provided minimum but fixed sentence of imprisonment as punishment, there is no reason as to why these offences are being excluded from the purview of the Act.

(3)  The Act excluded previous convicts from enjoying the benefits of plea bargaining and therefore habitual offenders cannot resort to plea bargaining. These provisions could be struck down as unconstitutional as Section 303 of I.P.C⁵⁵.

(4)  When the restrictions for contesting elections for previous convicts are still in force in the Representation of People’s Act of 1955 and restrictions for entering into any Government or other jobs are also apparent in various service codes for the previous convicts and also to get admission for higher studies, it is very unlikely that a young offender or a service holder would even come forwarded for plea bargaining even for petty offences, like that committed unintentionally under the Motor Vehicles Act.

(5)  Crime affecting socio-economic conditions of the country is also excluded from the provisions of the Act. Socio economic offences encompass as many as nineteen acts starting from the Dowry Prohibition Act, 1961 to most recent Acts like Protection of Women from Domestic Violence Act, 2005⁵⁶. With exclusion of these Acts which added with the offences of I.P.C. etc, during submission of charge sheet after completion of investigation, the very purpose of the Amendment Act in reducing the case load of the court appears to be a distant dream.

(6)  Proviso to Section 436 Cr.P. C. states that if an accused is unable to furnish bail within a week of his arrest, he is too treated as an indigent person and the court shall discharge him on his executing a bond without any surety.

(7) No stipulated time frame is provided for completion of the process of plea bargaining and nothing is prescribed under Section 265 (B) 4(a) as to within how much time the mutually satisfactory disposition shall be worked out and compensation as awarded under Section265(E) (a) shall be paid to the victims.

(8)  If the plea bargaining fails because no mutually satisfactory disposition could be arrived at or if the same become insolvency, then the trial shall commence in which event the entire period spent for plea bargaining goes waste, i.e. the trial of those cases would consume more time than trial without the offer of plea bargaining processing process.

(9)           Engaging the same court in the plea bargaining process and not  devising any other forum as envisaged under Section 89 of C.P.C. for settlement of civil disputes would  further delay the trial of other cases pending in the same court and not subject to plea bargaining. By involving the court in plea bargaining process, the courts impartially is impugned.

(10)                Over all conviction rate is as low as 8 to 10 percent and where the procedure of trial is quite lengthy, the accused would not volunteer for plea bargaining when he is not sure that his trial would end in conviction.

(11)                It may discriminate against offenders who choose to pursue their legal right and contest the case.

(12)                The concept also suffers with unnecessary involvement of police and the prosecutor, at the stage of satisfactory disposition negotiation. Involving the police in plea bargaining process would invite coercion.

(13)                The role of prosecutor is very passive in practice and notorious to extract extraneous consideration from the accused to make the case weak.

(14)                The Apex Court has observed that neither the Trial Court nor the High Court has jurisdiction to bypass the minimum sentence prescribed by the law in the premise that a plea bargaining was adopted by the accused⁵⁷.

(15)                Counsel representing the accused is unwilling to advise confession invoking the scheme, because there is every fear if the said advice is given; the accused loses faith in the counsel representing him and will engage another counsel.

(16)                Country’s social condition do not justify the concept of plea bargaining. Poor will be the ultimate victims of the concept of plea bargaining.

(17)                Involving the victim in plea bargaining process would invite corruption.

(18)                The statement of the witnesses recorded under Section 161 Cr. P. C. by the police; do not give any guarantee that the witnesses would support the prosecution case in the court in trial. A lawyer will always go for a trial than plea bargaining⁵⁸.

(19)                Accepting guilt would cast stigma on the accused which would be disadvantageous to his social position.

(20)                If the plead guilty application of the accused is rejected then the accused would face great hardship to prove himself innocent.

 

10.  Prospects

In most cases, the plea bargaining is to avoid the uncertainty of the trial, and minimize the risk of undesirable results for either side. Certain inherent advantage in it inter-alia includes:

(1)  Plea bargaining is speedier- through plea bargaining, a matter can be resolved in a matter of months, even weeks, while a trial can take years;

(2)  Plea bargaining saves money- court costs, counsel’s fee and expert fee;

(3)  Plea bargaining permits more participation- parties including victims may have more chances to tell their side of the story, while working for the mutual satisfactory disposition, than in court and may have more control over the outcome;

(4)  Plea bargaining is co-operative- the accused with or without his counsel, prosecutor, victim and police officer may work out mutually satisfactory disposition among themselves;

(5)  Plea bargaining reduces stress- the parties don’t have a trial hanging over their heads for years and it is speedier and saves money.

 

11.  Recommendation

Some recommendations for the better and meaningful implementation of the amended provision could be⁵⁹:

(1)  A provision may be made in Chapter XII-A of the Code making it mandatory for the Court to inform the accused who appears in connection with trial of an offence, to which Chapter XXI-A applies, that it is open to the accused to take the advantage of plea bargaining. A similar provision to some extent has been provided, obviously in a different context, in Order XXXIIA, Rule 3 of the Civil Procedure Code.

(2)  The Probation Officers, Welfare Officers of the Jail and the Superintendent of Jails must be made responsible to conduct the programme among the under trial prisoners so that they may get ‘informed knowledge’ to take the benefit of the concept of plea bargaining.

(3)  Training of Judicial Officers at the National, Regional and State Judicial Academies on the subject is very essential. By training, we could achieve positive change of attitude and concern, to invoke the provision of plea bargaining

(4)  Training of Prosecutors and Defense lawyers by the Bar Council of India, State Bar Council, National and State Legal Service Authorities in the subject of plea bargaining under the scheme of Continuing Legal Education.

(5)  Habitual offenders should be given at least one chance to plead guilty.

(6)  More offences should be brought within the ambit of plea bargaining.

 

12.  Conclusion

After the amendment, the concept found acceptance among Judges in India. The High Court of Kerala in In re:122 Prisoner⁶⁰ issued necessary direction to all Criminal Courts in the State, alerting them to invoke provisions relating to plea bargaining in appropriate cases, especially in cases involving prisoners. A similar view was taken by the High Court of Delhi in Rajinder Kumar Sharma and another v. The State and another⁶¹, in which the Court held that criminals who admit their guilt and repent upon, a lenient view should be taken, while awarding punishment. Gujarat High Court also had a similar view in State of Gujarat v. Natwar Harchanji Thakor⁶².              

If the concept of plea bargaining is to be adopted in its true spirit, proper care need to be taken to scrutinize whether the ‘mutually satisfactory disposition’ reached between the parties is of voluntary nature and is not coerced. Further, a mere acceptance or admission of guilt should not be ground for reduction of sentence by way of bargaining because there being possibility that such acceptance of guilt is coerced by several dictating circumstances. The Criminal (Amendment Act) of 2005 is half baked cake. It can be made acceptable only by effecting changes. Its constitutionality can be challenged. Experience of the last four years show that the Criminal (Amendment) Act of 2005 incorporating plea bargaining is neither accepted and applied by the legal fraternity nor helpful in reducing the criminal workload.

 

 

Foot Note:

 

1.   Criminal Law (Amendment ) Act, 2005.

2.   Notification No. S. O. 990 (E) dated 3rd July, 2006, Published in Gazette of India, New Delhi.

3.     Suman Rai, Law Relating to Plea Bargaining, Orient Publishing Company, Allahabad (2007), p. 165.

4.  K.N.Chandrasekharan Pillai, R.V.Kelkar’s Criminal Procedure, Eastern Book Company, Lucknow. (2001).

5. 297 U.S. 742(1970).

6.   Suvendu Kumar Pati, A Plea Against Plea Bargaining, I.B. R.,Vol. XXXIII (2006), pp. 71-72.

7.   Ibid., p.72. Speedy Trial Act of 1974 applied to cases prosecuted in Federal Courts.

8.   AIR 1968 SC 1267.         

9.  AIR 1976 SC 1929.          

10. AIR 1980 SC 854.

11. AIR 1983 SC 247.       

 12.  AIR 2000 SC 164.         

13. Supra n.8.

14.           Id. at p.1280.

15. Supra n 9.                              

16.  Id.at pp. 1933-1934.                        

17.  AIR 1980 SC 264.

18. Supra n. 11.                           

19.  AIR 1978 SC 597.                          

20.  Supra n. 10

21.           AIR 1980 SC 854.       

22.  Id.at pp. 855-856.            

23. 1999 Crl. L.J. 5031 (SC).                                

24.  2000 Crl. L.J. 4996(1) (SC).

25. Supra n 12.

26. The Law Commission of India, One Hundred and Forty Second Report on Concessional Treatment for Offenders who on their own initiative choose to Plead Guilty without any Bargaining, Government of India (1991) and Law Commission of India, 154th Report on “The Code of Criminal Procedure, 1973”, 1996.

27.           Committee headed by Justice V.S. Malimath, the former Chief Justice of Karnataka and Kerala High Courts.

28.    Section 265-A(1), Cr. P.C.                                            

29.  Ibid.

30.    Section 265-B (2), Cr. P.C.

31.  Ibid.                                 

32.    Section 265-B (1), Cr.P.C.                                            

33.  Section 265-B (3), Cr.P.C.              

34.    Section 265-B (4), Cr.P.C.                                            

35.  Section 265-C, Cr.P.C.                   

36.    Section 265-E(a) and (b), Cr. P.C.                                

37.  Section 265-E (c), Cr.P.C.

38. Section 265-E (d), Cr.P.C.

39.  Section 265-K, Cr.P.C.                                   

40.  Section 265-I, Cr.P.C.                     

41  Section 265-G, Cr.P.C.

42. Behram  Khurshid Pesikaka  v . State of Bombay, AIR 1955 SC 123 at p.146.

43.    Basheshar Nath  v. Commissioner of Income Tax, Delhi and Rajasthan and another,  AIR 1959 SC 149.

44. AIR 1956 SC 269.                                           

45. 1994 Crl. L.J. 3139.

46. Section 265-D Cr.P.C.                     

47. Ramesh Thapar  v . The State of Madras, 1950 SCR 594; Chitamanrao and another  v . The State of Madhya Pradesh,  AIR 1951 SC 118.

48.    Police Commissioner, Delhi and another v. Registrar, Delhi High Court, New Delhi, AIR 1997 SC 95.

49. Dutta Associates Pvt. Ltd. v.  Mercantile Pvt. Ltd., (1997) 1 SCC 53 .

50..          AIR 1952 SC 75.

51. Sunil Batra v. Delhi Administration,  AIR 1980 SC 1579.

52 .  Lalji Ram  v. Corporation of Calcutta,  AIR 1928 Cal. 243; Daveed Chelayan  v . The State,  AIR 1957 T.C. 89 ; Shivanarayan  v . State,  1960 J.L.J. 1015 ; Jayanti Luxman v. State of Gujarat,  1963 (2) Crl.L.J. 86 ; In re, R Kothanadapani,  AIR 1968 Mad. 59; and K.P.Hanumappa v. The State of Mysore,  1972 Crl.L.J. 699.

53. AIR 1956 SC 116.

54. Ranjana Dattatray Reddy, New Horizon Opens in Criminal Law: Plea Bargaining,  2007 Crl.L.J. (J) 120 at p.128.

55 .          Mithu v. State of Punjab,  AIR 1983 SC 473.

56. Vide Notification No. S.O.1042 (E), dated 11th July, 2006, published in Gazette of India, Extraordinary.

57. Kirpal Singh v. State of Haryana, 1999 Crl. L.J. 5031(SC).

58. V.K. Babu Prakash, Plea Bargaining - A Mission That Would Fail, 2007 (3)K.L.T.(J)26.

59. M.Y. Eqbal, Concept of Plea Bargaining, Nyaya Deep, 9(1) 2008 (Jan), 50 at pp. 58-59.

60. 2006(4) K.L.T. 597.

61. Crl.M.C. Nos. 1216-17 of 2006, High Court of Delhi  c.i. Saumya Misra, The Criminal Justice System and Plea Bargaining in India, 2008 Crl. L.J.(J.) 145 at p. 148.

62.           2005 Crl.L.J. 2957(Guj.).

Co-operative  Society --  Is  it  A  Public Authority?
Decision of Delhi High Court -- A New Dimension

(By R.Muralidharan, Deputy Registrar (Legal), Co-op.Department, Puducherry)

 

“In the context of the working of multi-State co-operative societies, which by their very nature facilitate participatory decision-making through a network of elected bodies at different levels, the opening up of their working to public scrutiny through the R.T.I. Act can only be in their best interests. Instead of shying away from the R.T.I. Act, large multi-State co-operative societies like KRIBHCO, NCCF and NAFED should view it as an opportunity.”

Hon’ble  Justice S. Muralidhar

The question whether the co-operative society is a public authority under the Right to Information Act, 2005 continues to engage the High Courts and Information Commissions in as much as the query whether the co-operative society is amenable to writ jurisdiction under Art.226 of the Constitution of India.  In neither case an acceptable decision is just eluding and the various decisions on these subjects are true in the facts and circumstances of the particular cases. 

 

The initial attempt by most organizations and entities is to avoid the obligations under the R.T.I. Act. Since the culture of transparency has not fully set in, and old habits die hard,
there is a resistance on the part of institutions and entities to avoid being declared a ‘public authority’. So it is with the three petitioners, KRIBHCO, NCCF and NAFED (Paragraph 8).

None of these entities is a body that answers the description of being established or constituted under a Constitution, or by a law made by the Parliament or by the State Legislature. The question that next arises is, if any of them is a body established or constituted “by notification issued or order made by the appropriate Government” in terms of S.2 (h) (d) of the R.T.I. Act. The answer would be in negative.  That leaves with the remaining limb of S.2 (h) (d) which is conjoined with the main provision by the words “and includes”. What requires to be examined is whether each of these entities is, in terms of S.2 (h) (d) (i), a body owned, controlled, or substantially financed by the appropriate Government, or in terms of S.2 (h) (d) (ii), a non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Government?

 

Implication of “includes”

The word “includes” is generally understood in statutory interpretation as enlarging the meaning the words or phrases in the body of the statute.  The learned Judge noticed that S.2 (h) (d) (i) and (ii) have not been happily worded. The provision has added to the confusion rather than clarifying the position. Perhaps an appropriate manner of reading the said provision would be to ask:

         (i)     Is the entity in question a body owned by the appropriate Government? or controlled by the appropriate Government? or substantially financed by the appropriate Government? or

         (ii)    Is the entity a non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Government?

 

“Controlled”

The expressions “controlled” or “substantially financed” have not been defined. In order to understand whether a body is “controlled” by the appropriate Government one would have to examine its organizational structure, its bye-laws and memorandum and articles of association, if any, and the statutory provisions which envisage control over such bodies by the appropriate Government. For the limited purpose of understanding the word “controlled”, an examination is also to be undertaken of the pattern of shareholding or any other form of control of such bodies by the appropriate Government. It is in this last context that the provisions of the MSCS Act are relevant.

 

In the context of the R.T.I. Act it may well be that a  body which is neither a “State” for the purposes of Art.12 nor a body discharging public functions for the purpose of Art.226 of the Constitution might still be a ‘public authority’ within the meaning of S.2 (h) (d) (i) of the R.T.I. Act. To state it differently, while a ‘body’ which is either a ‘State’ for the purposes of Art.12 or a ‘body’ discharging public functions for the purpose of Art.226 is likely to answer the description of ‘public authority’ in terms of S.2 (h) (d) (i) of the R.T.I. Act, the mere fact that such body is neither, will not take it out of the definition of ‘public authority’ under S.2 (h) (d) (i) of the R.T.I. Act. To explain further, it will be noticed that in all the decisions concerning the interpretation of the word ‘state’ under Art.12 the test evolved is that of “deep and pervasive” control whereas in the context of the R.T.I Act there are no such qualifying adjectives “deep” and “pervasive” vis-à-vis the word “controlled.”  Since S.2 (h) (d) (i) R.T.I. Act uses the word “controlled” without any qualification as to the degree of control, it is not to enough show that there is “no deep or pervasive control” over these entities by the appropriate Government. The question is not whether there is “deep” control, whether there is “dominance” by the appropriate Government or whether the Government’s nominee directors are in ‘majority’. If they are, no doubt, it would indicate that the entity is a ‘public authority’ but if they are not, that does not mean that the entity is on that ground not a public authority for the purposes of the R.T.I. Act. What may be a ‘public authority’ for the purposes of the R.T.I. Act need not be ‘State’ under Art.12 or amenable to Art.226 of the Constitution. It is the context of transparency and accountability, of accessibility of its working to the public that controls the interpretation of the expression ‘public authority’, not the amenability to judicial review of its decisions. If one asks the wrong question in the context of the R.T.I. Act one is unlikely to get the right answer. In the present cases, the petitioners would have to show that there was or is no control or there is unlikely to be any control whatsoever over their affairs by the appropriate Government if they want to escape the definition of ‘public authority’ under the R.T.I. Act.

 

The key words as far as the R.T.I. Act is concerned are the opening words of S.2 which read: “unless the context otherwise requires”. Therefore, the interpretation of the words “public authority” has to be in the context that has been laid out in the Statement of Objects and Reasons, the preamble, the long title and other provisions of the R.T.I. Act itself. The question is not whether there is “deep” and “pervasive” control of the bodies in question by the appropriate Government, but whether there is the absence of any “control” over such bodies by the appropriate Government.

 

“Substantially  financed”

The word ‘substantial’ does not necessarily connote majority financing.  Merely because percentage-wise the financing does not constitute a majority of the total finances of that entity will not mean the financing is not substantial.  The word ‘substantial’ is not synonymous with ‘dominant’ or ‘majority’.  It is closer to ‘material’ or ‘important’ or ‘of considerable value’.  ‘Substantially’ is closer to ‘essentially’.  Both the words can signify varying degree depending on the context.

 

To drive home this point, profitable references were from the decisions of Delhi High Court in Indian Olympic Association v. Meeresh Malik (W.P. No.876/2007 dated 7th January 2010), Diamond Jubilee Higher Secondary School v. Union of India (2007) 3 MLJ 77 :2009 (1) ID 102 (Madras High Court), DAV College Trust and Management Society v. Director of Public Instruction (AIR 2008 P&H 117) : 2008 (2) ID 382),Dhara Singh Girls High School v. State of Uttar Pradesh (AIR 2008 All 92 : (2008 (2) ID 179) , Committee of Management, Shanti Niketan Inter College v. State of Uttar Pradesh(AIR 2009 All 7 : 2009 (1) ID 223),Tamil Nadu Road Development Co. Ltd. v. Tamil Nadu Information Commission (2008-3-LW-904  :  (2008) 6 MLJ 737 :2009 (1) ID 85)(Madras High Court) and R. Anbazhagan v. State Information Commission (2008) 5 MLJ 200 : 2009 (1) ID 7 (Madras High Court). 

 

The contrary view found in Dattaprasad Co-operative Housing Society Ltd. v. Karnataka Chief Information Commissioner & Ors. (cited above)was distinguished on the ground that the said judgment did not examine the concerned statute under which the society was registered to determine if there was any control over the society by the Government. 

 

Therefore for the purposes of S.2 (h) (d) (i) for determining whether there is ‘control’ over the entity or there is ‘substantial financing’ of such entity by the appropriate Government the approach should not be to ask if there is ‘predominant’ or ‘majority’ control or financing by the appropriate Government. The financing may not be a majority one and yet be ‘substantial’. The shareholding or the membership of the nominee directors on the board may not be in themajority and yet there may be 'control’. The provisions of the statute under which the entity is registered have also to be examined for this purpose. One other aspect that needs to be mentioned is that the 'control’ or 'substantial financing’ need not necessarily be in presenti. An entity had in the past been controlled or substantially financed by the appropriate Government, and has ceased to be so at present, need not cease to be a 'public authority’ as long as the potential for being so controlled or substantially financed in future exists. Also, once an entity has been established or substantially financed by the appropriate Government at any point in time it acquires the tag of a 'public authority’ for the purposes of the R.T.I. Act.

 

The  MSCS  Act  vis-a-vis VIS KRIBHCO,  NCCF  &  NAFED  

The Court was listing out through various provisions of the MSCS Act. The Central Government or the State Government exercise control over the multi-State co-operative societies.  It is significant that Government of India’s paid-up share capital in KRIBHCO in monetary terms was Rs.268 crores as on 31st March, 2007. It was reduced to Rs.188.90 crores subsequently. Investing in share capital is a known means of financing an entity. A sum of Rs.189 crores, cannot be said to be insubstantial financing. A shareholding of 48.36% cannot mean that Government has no ‘control’ over KRIBHCO. ‘Substantial’ financing does not have to mean ‘majority’ or ‘dominant’ financing. A ‘controlling’ interest through shareholding does not necessarily mean ‘majority’ shareholding.  As regards ‘controlled’, it is significant that the Registrar of the MSCS is an officer appointed by the Central Government. Direct or indirect control over the affairs of an MSCS like KRIBHCO is possible even through the nominee directors of the Central Government. The nominee directors may not constitute a majority of the board of directors. However, they could well influence, directly or indirectly control its decisions. In the meeting of the board of directors, even if some members are in a minority, they may still be able to persuade the others to agree to their point of view. On a case by case, it is very difficult to say that three among 21 members of a board do not or cannot exercise control over its decisions. There is a mistake in assuming that word ‘control’ has to mean majority control. There can be a control by a minority as well. The controlling interest need not be numerically in the majority.

 

Regarding NCCF, the Court was unable to accept the submission that because the Government does not hold a majority of the shares or that its nominees do not constitute a majority of the board of directors, there is no control over the NCCF by the appropriate Government. Even as regards financing, the financing through the holding of shares cannot be said to be insubstantial. The total paid up capital is Rs.13.79 crores in which the contribution of Government of India is Rs.10.74 crores. NCCF provides technical guidance to its constituent members to sub-serve the interests of consumer co-operation movement in India. On a conspectus of the above factors, the Court was unable to find any error in the conclusion of the CIC that NCCF is a public authority within the meaning of S.2 (h) of the R.T.I. Act.

 

As far as NAFED is concerned, it is a nodal agency of the Government of India for the purchase of agricultural and non-agricultural commodities (not covered under Price Support System) under Market Intervention Scheme and the losses incurred in the implementation of the schemes by NAFED are shared by the Government of India and the State Government concerned in the ratio of 50:50. The Market Intervention Schemes affect a large number of farmers all over the country. It has bearing on the vast market of agricultural commodities. It affects the way the agricultural commodities market behaves. NAFED plays a central role in this context. The cumulative effect of these factors goes to show that there is control over the activities of NAFED by the Central Government. Further, even if at a given point in time thereis no tangible, visible control, the structure of an MSCS like NAFED is such that it is always amenable to Government control. This is what is relevant for the purpose of the definition of ‘public authority’ under S.2 (h) of the R.T.I. Act.

 

Epilogue

The Court upheld the decision of the CIC is holding that these three societies fall within the four corners of ‘public authority’ and dismissed the Writ Petitions with cost.  What is said by way of epilogue brings out the real concern of the Court for the masses.  Kindly read on these passages.

 

Waiting for little bits of information to percolate to them on urea prices, fertilizer stocks and their movements, the market position and availability of agricultural commodities are millions of farmers all over the country, some of whom may be members of the myriad co-operative societies that in an indirect manner participate in the functioning of multi-state co-operative societies like KRIBHCO, NCCF and NAFED. The information held by these entities is relevant not just to the farmers but millions of workers on land and traders in the agricultural commodities sector. The information held by these entities is also vital to the lives and livelihoods of millions of ‘little’ persons that look to the sky every morning to hope that they will be able to survive the day. Then there are those who are interested in how the various schemes that are to be implemented through the multi-State co-operative societies are in fact being implemented. Are the monies well spent? Are the schemes benefiting those whom it should? And so on. This information too is held by these three and other multi State co-operative societies.

 

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” –  Justice V.R. Krishna Iyer inMohinder Singh Gill v. The Chief Election Commissioner (1978) 1  SCC 405)quoting from Winston Churchil.

 

Just as the right to vote of the ‘little’ citizen is of profound significance in a democracy, so is the right to information. It is another small but potent key in the hands of India’s ‘little’ people that can ‘unlock’ and lay bare the internal workings of public authorities whose decisions affect their daily lives in myriad unknown ways. What was said of the working of a Government in a democracy in S.P.Gupta v. Union of India ((1981) Supp. SCC 87)should hold good for the working of a multi-State co-operative society too. The Court there said: “In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.”

 

My Word

Co-operative societies, where democracy is the watch word, should be proactive and should willingly provide information under the Act, rather than try to wriggle out on technicalities.  The societies are looked upon as limbs of the Government and so much of funds are pumped in for the development of co-operatives every year.  They should show the world that they are accountable, responsive and responsible.  There could be no better answer to the little man, the tax payer.  They owe a response, nay a duty, to him.