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Report No. 177

Chapter IX

Plea bargaining and compounding of offences

It was suggested in the Consultation Paper, para 3.4, that the representatives of the registered Non-governmental Organizations (NGOs) should be allowed to visit the police stations at any time of their choice to check and ensure that no person is illegally detained there or that no person is being ill-treated or otherwise subjected to inhuman treatment. This suggestion has been strongly opposed by all the police officials. It did not find favour with some of the members of the Bar as well though the human rights organizations lent strong support to the said proposal.

On a consideration of the entire matter and keeping in view the recommendations already made in the preceding chapters, we are not inclined to pursue this suggestion; at the same time we are of the opinion that there should be a provision clearly entitling an advocate engaged by or on behalf of the arrested person to visit the police station at any time of his choice to ensure against any violations of constitutional or statutory safeguards. This safeguard coupled with the other safeguards mentioned in the preceding chapters would, in our opinion, be adequate to safeguard the constitutional and legal rights of the accused while in police custody. Accordingly, a new section in the above terms may be inserted in Chapter V. We may refer, in this connection to one of the directions contained in the decision D.K. Basu viz., that "the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation".

The said safeguard is actuated by the same concern which lies behind our proposal. In addition to allowing the lawyer to be present during interrogation, we think it would be more appropriate if the lawyer is permitted to visit the police station at any time of his choice with a view to ensure that his client's constitutional and legal rights are not being infringed while he is in custody. In view of our recommendation to permit the presence of the lawyer at the time of interrogation, no specific provision to the above effect is included in the Bill.

The next proposal in the Consultation Paper, para 3.5, is to increase the compoundability of offences and to incorporate the concept of plea bargaining. It was suggested that the recommendations of the 14th Law Commission contained in their 154th Report on Criminal Procedure Code, Chapters 12 and 13, relating to compounding of offences and plea bargaining, respectively, should be implemented at an early date.

There has practically been no opposition to this proposal except a police officer saying that in view of the low rate of conviction in our country, there is no inducement for any accused to go in for plea bargaining and that any such scheme would not be successful or effective in our country. It is difficult to agree with this assessment.

The rate of conviction may be low but the harassment involved in defending himself in a criminal court including attending the criminal court on every date of hearing over several year.- which is the normal span of a criminal case in this countr.- should be a sufficient inducement for the accused to resort to plea-bargaining and thereby avoid the inquiry and trial and all the hassles that go along with it from the very first date of hearing. He would be rid of the botheration. He can devote himself to his normal pursuits.

With respect to compounding of offences (section 320), the 154th Report sets out the various reasons for which it has recommended the enlargement of the compoundable offences. In particular, it is recommended that a large number of offences be deleted from sub-section (2) of section 320 (offences compoundable with the permission of the court) and place them in sub-section (1) of section 320 (offences compoundable without the permission of the court).

The offences so recommended to be shifted from sub-section (2) to sub-section (1) of section 320 are the offences punishable under sections 324, 325, 335, 343, 344, 346, 379, 403, 406, 407, 411, 414, 417, 419, 421, 422, 423, 424, 428, 429, 430, 451, 482, 483 and 486.

The Report also supported the suggestions made by certain senior police officers and the National Police Commission in its Fourth Report that the investigating officers should be empowered to compound an offence which is compoundable at the investigation stage itself and make a report thereof to the magistrate who shall give effect to the composition of such effect. Accordingly, the Report commended clause 20 of 1994 Amendment Bill which sought to insert a new sub-section, sub-section (3A) in section 173 to the above effect. We commend the above recommendations.

Another recommendation made in the 154th Report is to make the offence under section 498A compoundable and place it in sub-section (2) of section 320 which means that it shall be compoundable with the permission of the court. Though there has been some opposition to this recommendation from certain women's organizations, today there is an overall realization that the said provision is being utilized quite often to harass the relatives of the husband and is being used as a lever of pressure.

We may also mention that over the last several years a number of representations have been received by the Law Commission from individuals and organizations to make the said offence compoundable. We are inclined to agree with the same and accordingly reiterate the recommendation in the 154th Report that the offence should be made compoundable with the permission of the court.

On the issue of plea-bargaining, the 154th Report recommended a new chapter, chapter XXIA to be incorporated in the Code as recommended therein. The said Report indeed referred to the earlier Report of the Law Commission, 142nd Report, which set out in extenso the rationale behind the said concept, its successful functioning in the USA and the manner in which it should be given a statutory shape. The Report recommended that the said concept be made applicable as an experimental measure to offences which are punishable with imprisonment of less than seven years and/or fine including the offences covered by section 320 of the Code.

It was also recommended that plea-bargaining can also be in respect of nature and gravity of the offences and the quantum of punishment. It was observed that the said facility should not be available to habitual offenders and to those who are accused of socio-economic offences of a grave nature and those accused of offences against women and children. The procedure to be followed in the matter has also been indicated in paras 9.1 to 9.9 of the said Report. We do not think it necessary to reproduce the same. Suffice it to say that we support and reiterate the said recommendations.

On the issue of compounding we may refer as well to the Code of Criminal Procedure (Amendment) Bill, 1994. By section 33 of the said Bill, section 320 of the Criminal Procedure Code, which deals with compounding of offences, was sought to be amended. The amendments proposed in the Bill are however very minor in nature. One of the offences, rather the first of the offences mentioned in the table under sub-section (2), viz., "voluntarily causing hurt by dangerous weapons or means" (section 324 IPC) was sought to be omitted along with the words in columns 2 and 3 of the said table against the said entry.

The result of the said amendment, if given effect to, would be to remove the offence under section 324 IPC from the list of offences which can be compounded with the permission of the court and also to raise the monetary limit placed in the several entries in the said table. The Parliamentary Committee on Home Affairs has not made any comment on this provision of the Amendment Bill. We see no reason to exclude the offence under section 324 from the Table.

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