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Report No. 142

9.6. How to set in motion the machinery.-

It is appropriate to provide that the machinery shall be set in motion by a written application to be made by an accused desirous of seeking the benefit of the scheme.

9.7. In the scheme prevailing in U.S.A. and which has been proposed in the Working Paper by the Law Reforms Commission of Canada, the framework of the scheme provides for making an application by the public prosecutor and the accused after a process of negotiations between them. The scheme evolved by the present Commission makes a departure and contemplates machinery being moved solely at the instance of the accused. There are four good reasons for making this departure.

In the first place, the Commission considers it inappropriate that any negotiations or bargaining between the accused and the public prosecutor should take place. Such bargaining or higgling haggling results in the confidence of the people being shaken. When a crime has been committed, the last word must be with a judicial officer acting as Competent Authority and the public prosecutor should not have any role to play as a negotiator for the purpose of bargaining. In fact, bargaining itself may be considered somewhat odious.

This can be avoided only provided the bargaining and higgling haggling part is done away with and the accused alone is authorised to move the Competent Authority to invoke the scheme. In the second place, in the present times, even the probity of a public prosecutor may be considered suspect by a section of the public or by the administration. An apprehension may perhaps be entertained that some underhand understanding might have been arrived at between the public prosecutor and the accused on account of oblique considerations.

All this can be avoided if the public prosecutor has no role to play in moving the machinery under the scheme and the initiative in this behalf is to be taken solely by the accused person. Thirdly, the apprehension that the public prosecutor might have exercised some pressure on the accused to make him plead guilty would also be removed if there is no contact between the public prosecutor and the accused and the public prosecutor has no authority to initiate the proceedings under the scheme whereas the accused alone can do so.

When the making of the decision whether or not to move the application rests solely in the hands of the accused, there is practically no risk of any pressure having been exercised on him by the public prosecutor. Fourthly, it will also ensure that the application has been moved voluntarily and after due deliberations, having considered the pros and cons of the step taken by the accused.

9.8. When can the application be made?-

An application may be made at any time after the filing of the charge sheet in a case instituted by the police by lodging an FIR.

Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining Back

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