Triple method of plea bargaining, compounding of offences and the Probation of Offenders Act, 1958: Supreme Court’s suggestions on disposal of criminal cases

Supreme Court: In a suo motu writ petition, the division bench of Sanjay Kishan Kaul and Abhay S. Oka, JJ has provided suggestions for effectuating the provisions relating to plea bargaining/ compounding/probation of offenders act; regarding the convicts who are undergoing fixed terms sentences and are in jail, and for the remission of sentence for such convicts.

Suggestions regarding disposal of criminal cases by resorting to the triple method of plea bargaining, compounding of offences and under the Probation of Offenders Act, 1958

1. Select one Court each of Judicial Magistrate 1st Class, Chief Judicial Magistrate(‘CJM’) or Additional CJM, and Court of Sessions in each district may be selected as a pilot case.

2. The said courts will identify cases pending at pre-trial stage, or evidence stage and where the accused is charge sheeted / charged with offence(s) with a maximum sentence of 7 years’ imprisonment, and exclude cases mentioned in Section 265-A Code of Criminal Procedure, 1973 (CrPC), namely offences notified by the Central Government vide notification dated 11.07.2006 or offences committed against women or child/ children less than 14 years.

3. The identified cases can thereafter be posted on a working Saturday or any other day which is suitable to the court with notice to the Public Prosecutor, complainant and the accused. The said notice would indicate that the court proposes to consider disposing of those cases under Plea bargaining, Probation of Offenders Act, 1958 or Compounding. The notice will also indicate that the accused/complainant would be entitled to avail legal aid including the details of the District Legal Services Authority(‘DLSA’). Further, the accused must, and the complainant may remain present with his/her advocate.

4. The Public Prosecutor would be required to ascertain the criminal antecedents of the accused and cases of only first-time offenders would be taken up.

5. On the date fixed, the court can inform the accused of the provisions of plea bargaining and can also persuade the parties to compound the offence, provided the offences are compoundable. Further, the Court can also inform the accused of the benefits of the Probation of Offenders Act, 1958 and the services of panel lawyers from DLSA would also be made available to the accused/ complainant.

6. The Court may give time to the accused/complainant to think over the matter and give another date.

7. In cases where the under trial is in judicial custody, the Trial Court may explain to the accused and his counsel to explore the possibility of plea bargaining or compounding or benefit of Probation of Offenders Act, and the accused can be given time to consider the matter. Further, the services of DLSA can also be made available by providing its secretary with a list of such accused, to depute the lawyers of sufficient seniority to explain the provisions to the accused who are in custody a

8. It was also suggested that a brief training session may also be organised for the Judicial Officers in the Judicial Academies.

9. Further, a timeline of 4 months may be fixed to carry out this exercise namely:-

   • Training of Judicial Officers & Identification of cases – 1 month

   • Notice to the parties – 1 month

   • Consideration of the matter – 2 months

The Court directed the Registrars of each High Court regarding the aforesaid terms to depute a Nodal Officer of the rank of the Registrar in each of the Courts to carry out the monitoring of the same.

The Court further put two caveats that instead of prescribing only one Court in each District, left it to the administrative side of the High Court to prescribe several Courts as may be considered practical by each of the High Court, and in matters where time bound schedule has been laid down by the High Courts or Supreme Court, that schedule should not be disturbed to avoid delay in those cases.

Under trial review committees

The amicus curiae pointed out that consolidated data has been prepared of the under trials who were covered by the Judgment in the case of Inhuman Conditions in 1382 Prisons, In re, (2016) 14 SCC 815, and a timeline was laid down for the meeting of under Trial Review Committees (‘UTRC’) and implementation of recommendations of the said Committee.

The Court noted that the total number of persons identified as under trials as recommended by Under Trial Review Committees (‘UTRC’) is 47618 out of total of 74107 under trials, 24789 has been released, thus, the suggestions states that urgent steps should be taken so that at least 47618 cases are dealt with.

It was prayed that all DLSAs may be directed to ensure that the bail applications in remaining cases are filed expeditiously in any event within 15 days and the Trial Courts may be directed to dispose of the bail applications within 15 days.

The Court granted 30 days instead of 15 days for the bail applications to be filed by the DLSAs and specified that the Trial Courts would also make an endeavor to dispose of the bail applications within 3 weeks, and further directed National Legal Services Authority(‘NALSA’) to give a report about the same, to the Court in 10 weeks.

Suggestions regarding the convicts who are undergoing fixed terms sentences and are in jail

The Court viewed that the following mechanism can be adopted as a one-time measure to convicts who have been convicted for sentence of imprisonment for 10 years or less and have no other criminal antecedent, and gave the following suggestions:

1. The High Court along with the High Court Legal Services Authority can make a list of cases with the following details:

   • Offences for which a convict has been sentenced and sentence imposed

   • Sentence undergone by the convict

2. DLSA can take the case of the convict who is in jail and has undergone 40% of the sentence, and can counsel the accused, that if he is willing to accept his guilt, request can be made to the High Court to reduce the sentence or for releasing the convict on probation of good conduct for the remainder of the sentence. Further, it should be clearly disclosed that the said acceptance of guilt is only for the purposes of closing the matter, and if the High Court is not inclined to accept the plea, then the matter would be considered by the High Court on its own merits and his plea would not come in the way of hearing of the appeal on merits. DLSA will also facilitate the interaction of the convict with his lawyer so that an informed decision is taken by the convict.

3. If the accused is willing to accept the plea and make an application to the High Court, then the list of such accused should be forwarded to the Director General of Police to ascertain the criminal antecedent of the convict.

4. Such plea bargaining at post-conviction level would not be available to such offences which are notified by the Central Government/ State Government and also will not be available where the law provides for a minimum sentence to be undergone by the accused, like in NDPS Act or UAPA Act.

The Court directed the State Governments and Legal Services Authorities to act in tandem to implement these suggestions and to give a report to the Court.

Remission of sentence for convicts undergoing fixed terms sentences

1. For convicts in jails undergoing fixed term sentences, where the convict has been sentenced up to 10 years imprisonment and is a first-time offender and has undergone half the sentence, the State Government can consider whether the remaining sentence can be commuted under Section 432 CrPC as a one-time measure, however, it can provide certain exceptions where this benefit would not be available to the convicts (especially heinous crimes rape, dowry death etc.)

2. The State Government can impose conditions of good conduct upon the convict, wherein the provisions of Model Prison Manual, 2016, especially the Chapter XX dealing with “premature release” can be considered that lays down broad parameters for dealing with such cases

3. Each State Governments can take a decision regarding further benefits which can be conferred on the convicts, which may go beyond the above policy so that larger number of convicts can be benefitted.

The Court further noted that the Government of India had issued a letter dated 10.06.2022 for grant of special remission to prisoners as part of celebrations of Azadi Ka Amrit Mahotsav, wherein the benchmark has been fixed as two third of the completed sentence and viewed that 50% completed sentence would sub-serve the purpose and individual States will be taking their own call even qua the category of prisoners to whom the benefit can be given and not necessarily confined to the said letter.

[In Re: Policy strategy for grant of bail, Suo motu Writ Petition (Criminal) No.4/2021, decided on 14-09-2022]

Advocates who appeared in this case :

Advocate Gaurav Agrawal (Amicus curiae)

For Petitioners: Advocate-On-Record Mohd. Irshad Hanif, Advocate Aarif Ali, Advocate Rizwan Ahmad, Advocare Mujahid Ahmad, Advocate Pankaj Tiwari, Advocate Mohd. Aslam, Advocate Shisir Raj, Advocate Ahmed Parvez, Advocate-On-Record Rishi Malhotra, Advocate Jaydip Pat

Advocate For Respondents: Additional Advocate General Garima Prasad, Advocate-On-Record Ajay Vikram Singh, Advocate Priyanka Singh, Advocate Sharjeel Ahmad, Advocate Pranjali Goel, Advocate-On-Record Sarvesh Singh Baghel, Advocate Vanya Gupta, Advocate-On-Record Nikhil Goel, Senior Advocate Basavaprabhu S. Patil, Advocate-On-Record Raghavendra S. Srivatsa, Advocate Rahat Bansal, Advocate Likhi Chand Bonsle, Advocate Komal Mundhra, Advocate Partha Sil, Advocate-On-Record Tavish B. Prasad, Advocate V. Balachandran, Advocate Mr. Siddharth Naidu, Advocate-On-Record Uttara Babbar, Advocate-On-Record Manish Kumar, Advocate-On-Record Tapesh Kumar Singh, Advocate Aditya Pratap Singh, Advocate Sukant Vikram, Advocate-On-Record Sahil Tagotra, Abhishek Pandey, Advocate Abhivyakti Banerjee, Advocate-On-Record Divyakant Lahoti, Advocate-Parikshit Ahuja, Advocate-On-Record Praveena Bisht, Advocate Vindhya Mehra, Advocate Madhur Jhavar, Advocate Kartik Lahoti, Advocate-On-Record Sumeer Sodhi, Advocate Gaurav Arora, Advocate-On-Record P. I. Jose, Advocate Jenis Francis, Advocate-On-Record Sameer Abhyankar, Advocate Vani Vandana Chhetri, Advocate Abhinav Mishra, Advocate-On-Record Nishi Sangtani, Advocate Yeshi Rinchhen, Advocate Avneesh Arputham, Advocate Anuradha Arputham, Advocate-Praveen Kr. Singh, Advocate Sharan Thakur, Advocate-On-Record Mahesh Thakur, Advocate Siddharth Thakur, Advocate Vipasha Singh, Ajay Kanojiya, Shivani, Bishwendra Singh, Mustafa Sajad, Additional Solicitor Genral Jayant Sud, Advocate Piyush Beriwal, Advocate-On-Record Gurmeet Singh Makker, Advocate-On-Record Aravindh S. Advocate Aabas B, Advocate-On-Record Kedar Nath Tripathy, Advocate-On-Record Vanshaja Shukla, Advocate Rachna Gandhi, Advocate Sajal Singhai, Advocate-On-Record Abhimanyu Tewari, Advocate Eliza Bar, Deputy Advocate General Shekhar Raj Sharma, Advocate Paras Dutta, Advocate-On-Record Monika Gusain, Advocate-On-Record Prashant Shrikant Kenjale, Advocate-On-Record Sanjai Kumar Pathak, Advocate Shashi Pathak, Advocate-On-Record Kanhaiya Singhal, Senior Advocate Hariprasad, Advocate-On-Record V. K. Biju , Advocate Swathi H. Prasad, Advocate Ria Sachthey, Advocate Chetanya Singh, Advocate Amlendu Kumar, Advocate Akhilesh Kumar Jha, Advocate Ranjeet Bharti, Rubina Jawed, Advocate-On-Record Mukesh K. Giri, Advocate-On-Record Gopal Jha, Baijnath Patel, Advocate-On-Record Arjun Garg, Advocate Shobhit Jain, Advocate Aakash Nandolia, Advocate Sagun Srivastava, Advocate-On-Record Sibo Sankar Mishra, Advocate Debabrata Dash, Advocate Niranjan Sahu, Advocate Rajesh Kumar Nayak,. Advocate Umakant Mishra, Advocate Kanhaiya Singhal, Advocate Vani Singhal, Advocate Priyanka, Advocate Chetan Bhardwaj, Advocate K. Enatoli Sema, Advocate Amit Kumar Singh, Advocate Limayinla Jamir, Advocate Chubalemla Chang, Advocate-On-Record Ajay Pal,Mayank Dahiya, Advocate Siddharath Dharmadhikari, Advocate-On-Record Aaditya A. Pande, Advocate Bharat Bagla, Advocate-On-Record Avijit Mani Tripathi, Advocate T. K. Nayak, Advocate Shaurya Sahay