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Report No. 142

Chapter X

How the Proposed Scheme overcomes the Objections and Apprehensions entertained by those who doubt the Feasibility of the Concept

10.1. The scheme being propounded by this Report is basically different from the plea-bargaining schemes prevailing elsewhere in five important areas, namely:-

(1) There will be no contact between the public prosecutor and the accused for the purpose of invoking the scheme. The initiative will be solely with the accused who alone can make the application. The public prosecutor will have no role to play.

(2) The decision to accord concessional treatment will rest solely with a judicial officer functioning as a Plea-Judge in respect of offences punishable with imprisonment for less than 7 years or Tribunal comprised of two retired High Court Judges in respect of offences punishable with imprisonment for 7 years or more and will not be the result of an outcome of higgling haggling between public prosecutor on one hand and accused on the other.

(3) There will be no bargaining with the judicial officers and an application once made will not be allowed to be withdrawn and the accused will not know what the judicial officers with do. He will only make a representation and plead for such concessional treatment as, according to him, would be appropriate.

(4) The sole arbiter will be the judicial officer and, therefore, there will be no risk of underhand dealings or for coercion or improper, inducement by the prosecution.

(5) The aggrieved party and the public prosecutor will have a right to be heard and place their points of view.

10.2. In view of these distinctive features, the apprehensions in regard to the feasibility of the scheme will stand allayed, as discussed hereafter:-

(1) In the plea-bargaining scheme prevailing elsewhere, an agreement is an outcome of negotiations and higgling haggling between the prosecution on one hand and the accused on the other. In the proposed scheme, this feature which is considered less than desirable has been eliminated. The higgling-haggling process is viewed with scepticism by the public at large and undermines the faith of the public in the outcome of the process. It also gives scope for doubting the bona fides and the integrity of the prosecutor involved in the negotiations. The criticism on this score is overcome in the proposed scheme which does not envisage any role to be played by the public prosecutor. It also does not visualise any higgling haggling process.

The proposed scheme contemplates that the initiative for invoking the powers for concessional treatment under the scheme must originate from the accused and the application must be addressed directly to the Plea-Judge or the Tribunal constituted in this behalf who will decide whether or not to entertain the application and if it is decided to entertain the same, the Plea-Judge or the concerned Tribunal will decide what concessional treatment would be afforded having regard to all the relevant circumstances in the light of the guidelines and the statutory provisions.

(2) In the scheme obtaining elsewhere, there is a risk of improper inducement being offered inasmuch as there is a contact between the prosecutor and the accused in negotiations for entering a plea of guilty. In the proposed scheme, as the initiative comes from the accused, this risk is substantially eliminated. The possibility of threats or improper inducement having been offered in a clandestine manner also is eliminated since the proposed scheme visualises ascertainment by the competent authority as to whether the application has been made voluntarily without any inducement or threat by making an enquiry in the open court whereat no police officer or person objected to by the accused would be allowed to remain present. Thus, there is an inbuilt safety mechanism to guard against inducement or threat.

(3) The risk of an innocent person pleading guilty is also taken care of in the proposed system since a judicial officer would apply his mind to the material on record and would be required to reject the application if there is prima facie no material spelling out the offence with which the applicant has been charged.

(4) The less than desirable feature of higgling haggling which may be considered less than becoming also does not exist in the proposed scheme, for the accused can only plead and place his point of view before the competent authority but cannot higgle haggle for he will have no power to withdraw the application if the court is not inclined to take as lenient a view as may be considered appropriate in the circumstances of the case.

(5) The risk of a guilty person escaping with unduly lenient punishment will also not exist inasmuch as the competent authority [composed of two retired High Court Judges in relation to offences punishable with imprisonment of 7 years or more] alone would decide what would be the appropriate punishment in the circumstances of the case and also because the aggrieved party will be heard before the competent authority passes an order under the scheme. Besides, the guidelines envisage imposing of a minimum jail term in regard to specified offences as elaborated in Chapter IX.

10.3. It can, therefore, be said with a degree of assurance that the proposed scheme does away with all objectionable features of the American practise and can be safely implemented and there is no cause for entertaining any apprehensions regarding the feasibility or desirability of this course being adopted.

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

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