Report No. 142
Highlights of the Scheme
(1) The scheme may be invoked only by the offender himself. (See para 9.6).
(2) There will be no negotiations for plea-bargaining with the prosecuting agency or its advocate none of whom will have any role to play in the matter of moving the Competent Authority for invocation of the scheme. (See para 9.7).
(3) The Competent Authority will be a 'plea-judge' designated by the Chief Justice of the concerned High Court from amongst the sitting judges competent to try cases punishable with imprisonment of upto 7 years. And a Bench of two retired High Court Judges nominated in this behalf by the Chief Justice of the State concerned in respect of offences punishable with imprisonment for 7 years or more. (See paras 9.3 and 9.5).
(4) The application will be entertained only after the Competent Authority is, upon ascertaining in the manner specified in the scheme, is satisfied that it is made voluntarily and knowingly. (See paras 9.15 and 9.16).
(5) The Competent Authority will hear the application in the presence of the aggrieved party and the public prosecutor or an assistant publit prosecutor and after affording a short hearing to them. (See paras 9.17 and 9.18).
(6) The Competent Authority shall have the power to impose a jail term, and/or fine and/or direct the accused applicant to pay compensation to the aggrieved party for compounding the offence in regard to the offences which are compoundable with or without the leave of the Court. [See paras 9.17(iii) and 9.27].
(7) The Competent Authority shall award a minimum jail term of say six months or one year in respect of specified offences if the scheme is extended in this behalf in the light of the provisions in the scheme. [See paras 8.2, 9.36 (c)].
(8) The Competent Authority may award a jail term not exceeding one half of the maximum provided by the relevant provision where the Competent Authority is not called upon to exercise the powers to release on probation under the Probation of Offenders Act or under section 360 of the Code of Criminal Procedure in accordance with the guidelines. (See paras 9 24, 9.32, 9.33).
(9) In the first instance, as an experimental measure, the scheme may be made applicable only to offences which are liable for punishment with imprisonment of less than seven years and/or fine if both the Central and the State Government so resolves by notification issued by such Government and published in Government gazette. (See paras 8.4 and 9.37).
(10) The scheme may be made applicable to offences liable to be punished with imprisonment for 7 years and more after properly evaluating and assessing the results of the application of the scheme to offences liable to be punished with imprisonment for less than 7 years. (See paras. 8.4, 8.6 and 9.37).
[The scheme has been outlined elaborately in Chapter IX.]
The scheme may be made inapplicable to socio-economic offences of a non-technical nature in the first phase provided, however, that it may, later on, be made applicable with a rider that an offender will have to undergo a minimum jail term of not less than six months or 1 year or such other period as may be specified, if considered appropriate in the light of the public debate.
Note: In making this recommendation the factors that weigh are:-
(1) A punishment meted out quickly serves a better public purpose than a punishment meted out after a decade of litigation tiring to both the sides and shaking the faith of the public at large.
(2) Once an offender is made to suffer a substantive jail term from the point of view of deterrence, it may not matter much whether it is for 1 year or whether it is for a longer term. (See para 9.35).
The scheme may be made inapplicable to offences against women and children including offences of rape, bride burning, dowry deaths, demand and acceptance of dowry etc. which are viewed by the community with social worth in the context of the age-long history of injustice and suffering on the part of these sections of the society. [See para 9.35 (d)].
Moreover, under section 357(i) of Cr. P.C. it is only from out of the fine imposed by the court that compensation can be awarded. And under section 357(3) compensation can be awarded only whilst imposing a sentence other than that of fine. As at present, compensation cannot be awarded in matters in which parties 'compound' an offence under section 320 of Code of Criminal Procedure because the compounding usually takes place by agreement between the parties in compoundable matters even before the commencement of trial.
Stipulation for payment of compensation cannot under the circumstances, be made a part of an order of the Court or the Competent Authority without recording a conviction. So also larger amount of compensation cannot be ordered where there is a ceiling on the imposition of fine. In order to give effect to the scheme, it is therefore, necessary to amend this section to enable the competent authority to direct payment of compensation to the aggrieved party even in the absence of a plea of guilty and regardless of whether fine is imposed or not.
That is why it is recommended that section 357 of Cr. P.C. be amended so as to empower the Competent Court to order payment of compensation even in cases where no conviction has been recorded and regardless of whether fine is imposed or not if an offence is compounded before the Court or the Competent Authority under the scheme. (See para. 9.38).
The scheme may be restricted to first offenders only. [See para 9.35(a) and (b)].
It is hoped that if appropriate legal measures are taken as soon as practicable in the light of this report it will go a long way in resolving the alarming problem of the mountain of arrears of criminal matters which problem brooks no delay.
We recommend accordingly.
Dated: 22nd August, 1991.