As most of us are already aware that in India, our courts of law are overburdened at present and because of this, in most cases, a Justice seeker may have to face several challenges and time constraints to finally be able to get justice. But at a place like India, the punishment at the end of trial is not the only punishment one undergoes. The whole trial sometimes becomes aa punishment for the once being tried and also sometime for the people seeking justice from the courts. This obviously does not happen on purpose by the courts, but it cannot be denied that for whatever reasons in place, delays do happen and people do feel unsatisfied with the justice process.
In this
situation if we go ahead and add a situation where a person commits any petty
offence, like theft of a pair of slippers, in desperation to get food for his
family, for which the maximum punishment is less than 7 years imprisonment, is
triable by Judicial magistrate of First Class (JMFC), and is obviously not an
offence against the society or Women or Children. He gets caught for this and
now he knows that even after the trial, because of the circumstances and value
of the case he would not get a severe punishment, but to get to that point he
will have to face trial for let’s say 2-3 years just to be able to get his
punishment. In such a situation, he will be unable to focus on working and
reforming and if he is paying for his legal expenses then even financially his
prospects are not looking great either.
For similar
situations, our lawmakers have very intelligently added provision of Plea
Bargaining in Chapter XXIII, Section 289- 300 of Bhartiya Nagarik Suraksha
Sanhita (BNSS) (Previously Section 265B, Code of Criminal Procedure, CrPC),
where the accused has the option to go ahead, admit his guilt and then if the
circumstances so provide, expect a reduction of sentence and trial to be
concluded. In this blog article we will learn more about Section 290 BNSS, how
is it different from Section 265B CrPC, and other aspects necessary for
complete understanding of the concept of plea bargaining. So, keep a bare act
with you and let’s Probe.
Section 289: Application of Chapter
This section
primarily talks about the applicability of this chapter. Provides for
conditions and nature of cases that are applicable to have an application for
plea bargaining heard before the court of law. Following are the conditions
prescribed under this section:
- If a police in charge has in his charge Sheet under
Section 193 BNSS has alleged offence or If the magistrate has taken
cognizance of an offence on a complaint, that is punishable by a maximum
punishment of 7 years or less is prescribed under law, such an accused can
file application before the JMFC/ Court under this chapter.
- The crime/ offence should not fall under the category
of a Socio- economic offence or crime against women and children. For the
purpose of this section, Socio- economic offences include offences that
disturb the social fabric, for example Murder, rape, acid attacking,
offences in POCSO Act etc. Central Government from time to time will
notify such offences.
Section 290: Application for Plea Bargaining
- In this section an accused can file his application
for plea bargaining before the magistrate within 30 days from the date of
filing of charges in court. This means that if X is an accused of theft
committed on 1st September 2024. But the charges are
framed against him on 30th September 2024, then he has
time till 30th of October 2024 to file his application for
plea bargaining before the concerned magistrate court in which his case is
being tried. This is a new addition in BNSS compared to equivalent
provisions under CrPC, which did not have any time limit.
- That application must have brief contents of the case
in which he wants to plea bargain along with a sworn affidavit by the
accused showing that he understands the nature and extent of the offence
and punishments he is liable to and that he has volunteered for the
process and is under no pressure to file such an application.
- He must not have been previously been convicted by
any court with a similar offence. This is to ensure that provisions under
this chapter are not misused by any accused.
- The court if satisfied prima facie, shall call upon
the public prosecutor in a case instituted on a Police report or the
Complainant in a complaint case, as the case may be, to appear and put
their side of reply in front of court with respect to the Application U/S
290 BNSS.
- The court shall then examine the accused in absence
of the Public prosecutor and/ or the complainant to verify that the
accused has a free consent in filing of this application and is doing this
voluntarily without any threats or inducements from any party.
- If satisfied, the court shall then ask the public
prosecutor and/ or the complainant in the matter to work out a settlement/
mutually satisfactory disposition, between them to give compensation to
the victim of the offence or other expenses. This has to be completed
within 60 days since the court asked for the mutual satisfactory
disposition.
- If court does not find the application to be
voluntary or the accused to be a repeat offender, the court may dispose
off the application and continue with the trial as if no such application
was filed.
The Bargain (Section 291, 292)
Picture this as
a legal deal-making process:
- The accused acknowledges their guilt (or a part of
it) in exchange for a lesser punishment. The prosecution agrees to reduce
the charges or recommend a milder sentence.
- Accused agrees to compensate the victim of the
offence, victim also agrees to such compensation voluntarily. The Public
prosecutor can call the police officer who has investigated the matter and
the Complainant is allowed to have the victim of the offence with his
advocate called in this meeting.
- The whole meeting/ process of getting a mutually
satisfactory disposition is monitored by the court and it’s the duty of
the court to ensure that everyone is free to their will and acting
voluntarily. Once ensured, the court will prepare a report of the mutually
satisfactory disposition and have all the conditions and steps mentioned
in it, signed by the presiding officer himself. If no such agreement is
reached within 60 days, then application to be disposed off and case to
continue. (Section 291 BNSS)
The Disposal (Section 293-300 BNSS)
When all parties
reach a settlement, the court shall award the compensation and other expenses
as agreed in the mutually satisfactory disposition, hear the parties on quantum
of punishment and release the accused on probation of good conduct/ admonition/
under provisions of probation of Offenders Act/ Any other law in place.
If the court
finds on hearing the parties that the accused falls in 401 BNSS/ Probation of
offenders act/ any other law, it may release the accused of
probation. The court may sentence the accused half of the minimum
punishment prescribed for the offence. If first time offender, the court can
grant up to one fourth of the minimum punishment prescribed for the
offence.
If the court
finds the case to not fall in any case as above mentioned laws and provisions,
it can sentence the accused to a range of punishment from one fourth of the
punishment prescribed to one sixth of the punishment prescribed from the
first-time offenders.
The court shall
deliver a judgement in open court (Section 294 BNSS), which shall be final and
no appeal except SLP in Supreme Court of India or Writ under Article 32 and 226
of the Constitution of India, be allowed against it. (Section 295 BNSS). If the
accused has already undergone imprisonment during trial, it shall be set off as
per provisions of Section 468 BNSS.
Accused’s
Statement with regards to the application cannot be used for anything else
other than deciding the application for plea bargaining. This is particularly
is necessary to avoid any situation in which prosecution or complaint may use
it against the accused. For Example, X, on inducement from the public
prosecutor that if he does file application for plea bargaining, he will ensure
he be released Scott free. Accused under the inducement follows by filing the
Application where he agrees to have committed the offence. Now the public
prosecutor refuses to have the mutual satisfactory disposition and asks the
court to treat the statement of accused in application as a confession. He may
not do so. Provisions of Section 299 BNSS provides against it. No
juvenile or Child can file such application (Section 300 BNSS)
Conclusion and The Fine Print
In conclusion
Plea bargaining is a wonderful tool to avoid long and unfruitful legal battles,
for the accused. The process ensures that other parties are also effectively
involved and that the accused does pay for his actions in form of compensation
and expenses to the victim. In return he gets a reduced sentence for his
actions which he may have done in the heat of the moment. It is important to
remember that:
- Plea bargaining isn’t available for all offences. In
cases relating to women, children and Socio- economic offences there are
no benefits of Plea bargaining allowed.
- It’s a voluntary process which means the accused can
choose not to participate.
- The court is to ensures fairness and transparency
throughout the whole process. Free will cannot be taken lightly.
- Effect of plea bargaining is conviction. Hence the
accused must look into the effects of filing such an application, weigh in
the pros and cons of filing the application with his legal advisor.
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Sources:
1. Comparison Summary BNSS to CrPC
2. Press Information Bureau - CrPC and BNSS Comparative Analysis
Related Blogs:
ComplaintCases under Section 223 BNSS/ 200 CrPC: An In-Depth Analysis
Disclaimer:
This Article/essay provides general information and does not constitute legal
advice. Consult a qualified legal professional for specific cases.
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