Madras High Court: In a criminal original petition filed under Section 482 of the Code of Criminal Procedure Code, 1973 (‘CrPC’), to quash the charge sheet filed for offences under Sections 173, 294(b), 323, 342, 353, 427 of the Penal Code , 1860 (‘IPC’) and Section 4 of Tamil Nadu Prohibition of Women Harassment Act on the complaint given by a woman aged 53 years working as Junior Bailiff at District Court, Dr. G. Jayachandran, J. said that the term “offences against women” which is excluded from plea bargaining would mean only gender-centric or gender-neutral offences and not non-gender offences committed against women. Thus, only gender centric offences are excluded from the scope of plea bargaining.
Background:
According to the complainant, on 02-04-2021, she went to the residence of the Village School Headmistress to serve the garnishee summon in connection with Salary attachment. When the headmistress refused to receive the warrant and insisted the Junior Bailiff to record “Door locked”, the Junior Bailiff declined her request and insisted to receive the summon. At that time, the accused, husband of the headmistress came down from the upstairs and prevented the bailiff from serving the Summons. He also started abusing the Junior Bailiff in filthy words. The Junior Bailiff, to record her attempt to serve the notice, took a photograph on her cellphone. Infuriated by this, the accused repeatedly slapped the Junior Bailiff and tore her blouse. He twisted her hand and pushed her down. The accused locked the gate of the house and wrongfully restrained her inside the house, insisting to delete the photo and hand over the phone. He snatched the summons and tore it. On hearing her scream, one of her relatives and others opened the gate and rescued her. Hence, the complaint.
Thereafter, the accused realised his mistake and wished to apologise for his conduct. Thus, the Court recorded that, if the accused wants to apologise for his conduct, he can resort to Section 265 B CrPC and directed the Trial Court that if any application is filed for plea bargaining, the Trial Court shall follow the procedure and proceed in accordance with law.
The Trial Court did not entertain the application, one of the charges against him is under Section 353 of IPC and the matter cannot be settled through Mediation. Thus, the Court reopened the matter, to ascertain why procedure for plea bargaining was not entertained as per its order.
Analysis and Decision:
The Court noted that under Section 265 C1 of CrPC guidelines for Mutually Satisfactory Disposition (MSD) is provided. On the application of the accused for plea bargaining and the Court being satisfied that the accused is eligible to file application for plea bargaining and the application is filed voluntarily, it shall issue notice to the Public Prosecutor, the Investigation Officer, the victim and the accused to participate in the meeting to work out satisfactory disposition of the case.
The Court noted that the object of introducing the Chapter on Plea Bargain, after much deliberation by the Law Makers was to ensure speedy trial, save litigation costs and relieve the parties from anxiety and to enable the offender make a fresh start of life as early as possible without being uncertain about the outcome of the criminal case. A plea bargain process shall commence only on the application by the accused. At this stage, the wish of the victim/complainant is not material.
The Court clarified that the offenders who apply for plea bargaining and go through the process of MSD need not apprehend that he will be certainly imposed with sentence of imprisonment. The Act prescribes half the sentence of imprisonment in case of the offence where minimum sentence is prescribed. In all other cases, where the sentence of imprisonment is extendable to a certain period, then the Court may not impose sentence of imprisonment, if the sentence prescribed for the said offence is ‘maybe imprisonment or with fine’. The Imprisonment may be till Raising of the Court to the maximum of 1/4 th period prescribed under the Act.
The Court said that as far as the expression, ‘offence committed against a woman’ or ‘child below 14 years’ in the Code and the expression ‘offence committed against a woman’, or a ‘child’ in BNSS, a restricted interpretation has to be given which will sufficiently protect the woman victim who had been victimised because of her gender. This cannot extend to the offences for commission of a non-gender offence. The exclusion should apply only to gender centric offences.
The Court said that Bharatiya Nyaya Sanhita (‘BNS’) has made certain offences gender neutral. But still, they are gender centric offences and not non-gender offences. There is a sharp difference between gender centric or gender-neutral offence and a non-gender offence. As, offences like theft and cheating are non-gender offences. Offences like harassment to woman under the Special Act or sexual offences, criminal force and assault against woman or offences related to marriage where the victim is the woman will fall under gender centric offences. Unlike Penal Code, BNS has brought all these offences under one chapter and grouped in Chapter V of BNS under the caption “of offences against woman and child.”
The Court viewed that only those offences will fall under gender centric or gender-neutral offences to attract the expression “offence against a woman” and be excluded from the scope of plea bargaining.
The Court concluded that in the instant case, the offences are non-gender in nature. Hence, the chapter XXII-A of the CrPC will apply.
For effective implementation of the provisions under Chapter XXII-A of the Code/Chapter XXIII of the BNSS, the Court gave the following suggestions to the Courts below for future guidance:
-
The Courts, soon after framing charges, shall in writing inform the accused who are all eligible to invoke plea bargaining, about his right under the Chapter plea bargaining. If the accused answers in affirmative, necessary time to be given for him to file application. This will ensure the accused exercises his right before expiry of 30 days from the date of framing charges as prescribed under Section 290 of BNSS, 2023.
-
The Courts can take the assistance of persons associated with District Legal Services Authority/Tamil Nadu State Legal Service Authority wherever it is necessary to facilitate the process of MSD.
-
The Courts shall take note of the clarification given in this order regarding period of sentence which can be imposed in case of plea bargaining and decide accordingly.
-
The Courts below shall take note that the disposal of the cases under plea bargain is considered for fixation of units while deciding their performance.
-
Whenever the Courts undertake the process of MSD, it is its duty to ensure that the accused has come forward to apply voluntarily and it is his informed choice of plea bargaining.
-
The Courts shall also take note that the offences which are excluded shall not be disposed of under this chapter. The notification of the Ministry of Home Affairs in No:1042 (E) dated 11-07-2006 to be referred to decide whether the offence is a socio-economic offence affecting the country.
The Court noted that the memorandum of the accused sent after passing the order on 21-06-2024, expresses apprehension of bias and allegation against some of the Court staff.
To dispel this apprehension, the Court transferred the case on the file of District Munsif cum Judicial Magistrate, Kilvalur, Nagapattinam District to the file of Judicial Magistrate-I, Mayiladuthurai.
The Court also directed the Judicial Magistrate-I that if the petitioner opts for plea bargain, his application to be taken on file and disposed as per the procedure laid in Chapter XXI-A of CrPC.
[G.Venkateshan v. State, 2024 SCC OnLine Mad 3861, decided on 07-08-2024]
Advocates who appeared in this case :
For Petitioner: Mr.C.Emalias
For Respondents: Mr.K.M.D.Muhilan, Government Advocate, Mr.J.Chandran Sundar Sashikumar, Mr.R.John Sathyan, Senior Counsel, Mr.C.K.Chandrasekkar, Standing Counsel, for TNSLSA
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
1. Section 291 of BNSS, 2023
