Report No. 142
9.32. Guidelines for determining the quantum of substantive punishment of imprisonment in jail in cases [excluding cases relating to offences punishable with death or imprisonment for life] other than the cases where the P.O. Act or section 320, Cr. P.C., or the provision pertaining to compoundable offences is not made applicable.-
The guidelines spelt out earlier at the appropriate stage deal with the question as to how matters where the power to release of on probation under the relevant provisions or the power to record a finding of guilt and direct payment of compensation to the aggrieved party instead of imposing a substantive sentence of imprisonment in jail are required to be exercised by the Competent Authority.
However, in cases [excluding those relating to offences punishable with death or imprisonment for life] where the Competent Authority forms the opinion that, having regard to the gravity of the offence and the circumstances of the case viewed in totality, the ends of justice demand that substantive sentence of imprisonment in jail deserves to be imposed on an offender who pleads guilty whilst invoking the scheme for concessional treatment, appropriate guidelines will have to be formulated.
9.33. In considering this aspect, it is necessary to examine the background in which the scheme is being framed. Since it is considered inadvisable to adopt the scheme for plea-bargaining which obtains in U.S.A. for weighty reasons in the context of the prevailing conditions in India, a practical difficulty requires to be overcome. In the American system, an offender would approach the court in a situation where the prosecution is agreeable to a concessional treatment as well as the 'extent' of the concessional treatment.
In other word, when he invoke the plea-bargaining procedure before the court, he is assured of the extent of concession he is likely to secure in the event of the application being granted by the court. In case the application is rejected, he is not worse off. But in case the application is granted, he is sure of the extent of concession that he is likely to obtain by pleading guilty. Unless there is a reasonable chance of his securing some advantage, no offender would be able to persuade himself to avail of the scheme.
He would feel persuaded only if he can foresee either an advantage or a situation where he is not worse off. In other words, if the only option open to him is to give up his right to claim a trial at the risk of gaining no advantage or even possibly facing the maximum sentence, no offender is likely to avail of the scheme which may remain a dead letter on the statute book.
It is true that if he is given an option to withdraw the application in case the proposed punishment is considered to be unacceptable to him, every offender might like to take a chance in the hope of gaining an advantage and the competent authority would be flooded with work which may ultimately come to sought. But then if there is no attraction for him and, on the other hand, he is facing an unknown hazard, no offender would avail of the scheme.
Since bargaining with the prosecutor which provides the offender with an attraction to avail of the scheme is considered hazardous in the Indian context, some other formula requires to be evolved in order to make the scheme reasonably attractive or workable.
The formula which is considered just, fair, proper and acceptable would appear to be to make a provision in the scheme that in the event of the application for concessional treatment being entertained by the competent authority, he may impose such punishment as may be considered appropriate in the facts and circumstances of the case subject to the rider that the jail term that can be imposed shall not exceed one half of the maximum term provided by the statute for the concerned offence.
If this formula is adopted in a case where the maximum sentence is 10 years, the competent authority would have an option to impose a sentence not exceeding 5 years. In that event, the scheme can be made applicable to all offences excluding the offences punishable with death or imprisonment for life. If the serious offences, such as murder, for which penalty of death or imprisonment for life is provided, are excluded, the scheme might be considered to be acceptable without any reservation.