Tag: Criminal LAw Notes

Critical Analysis of Revision of order passed under Section 156(3) CrPC

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Introduction

Criminal procedural law, in general, kick starts with the registration of a First Information Report (FIR) by the complainant, with the police having jurisdiction over the place of the offence. As opposed to the civil procedure wherein there is no involvement of this institution of police, in criminal law jurisprudence, they do not just have one of the roles in this criminal procedure but also, therefore, form the starting point in the entire criminal procedure with the registration of FIR, extending further to the most vital aspect in this procedure, viz., the Investigation stage. Therefore, registration of FIR and conducting the wholesome process of investigation, which includes inter-alia, and the adducing of evidence to support the prosecution case, are the twin purposes of police in the entire criminal law domain.

The Code of Criminal Procedure 1973 deals in great detail with the entire procedural law, wrt criminal cases, in which Chapter XII is dedicated to the stage of investigation and the rules governing it, including the registration of FIR. To again reiterate, registration of a complaint or any other information regarding the commission of an offence, given to the police officer in charge of the police station, forms the basis for initiation of the other procedural requirements under CrPC. In cases of cognizable offences, in which police have the power to carry on an investigation without any order from the Magistrate, the complaint must be reduced to writing into a formal document known as the First Information Report (FIR). Even in non-cognizable offences cases, information must be entered in a station diary or any other written format. Sections 154 and 155 of CrPC, respectively, deal with both these cases. Coupled with these statutory provisions, the honourable Supreme Court, in the landmark case of Lalita Kumari v. Government of UP, reiterated that police officers must and should register FIR upon receiving information regarding the commission of a cognizable offence1. At the same time, CrPC does not leave the informant of the complaint remediless where police refuse to register the FIR to take the complaint. Section 154(3) authorizes the aggrieved informant to directly send the information to the Superintendent of Police concerned, who may then direct his subordinates to investigate or carry the same himself. In a more extreme circumstance wherein the complaint is still not acknowledged by either the SHO or the SP, a final remedy is conferred u/s 156(3) CrPC to directly approach the Judicial Magistrate empowered to take cognizance of the offence stated, u/s 190 CrPC, pleading for ordering an investigation.

Guidelines for exercising power to order u/s 156(3)

The investigation is that stage of the criminal procedure that exclusively involves how police officers must adduce the evidence and build up the prosecution case. This investigation function is therefore considered the most crucial duty of the police, apart from the general duties of maintaining law and order. This is why the honourable courts have reiterated over and again that investigation, especially in cognizable offences, is exclusively reserved for the investigating agency (viz., generally the police), whose powers are unfettered so long as the investigating officer exercises his investigating powers within the provisions of the law and the legal bounds2. And also, the Judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry3, observing further that the field of investigation is exclusively reserved for the executive through the police dept4. With this set of guidelines running opposite to 156(3) on the face of it, since the Magistrate here is ordering police to investigate, courts have evolved further guidelines to maintain a balanced approach, conferring additional duties upon the courts.

Duties of the Magistrate before ordering u/s 156(3)

To primarily begin on the aspect in which circumstances and facts that the Magistrate can exercise powers under this section, the courts have dealt in great detail, on a circumstantial level, so that the courts do not use this power in an unfettered manner. In the landmark case of Priyanka Srivastava v. State of UP, the honourable Supreme Court has emphasized the need for exercising due diligence and vigilance while passing an order directing investigation u/s 156(3). The apex court held that no direction should be issued by the magistrate u/s 156(3) without the application of judicial mind, as opposed to a routine passage of directions5. The Magistrate needs to be vigilant with respect to the nature of allegations to identify whether the petition was motivated and had been maliciously instituted with an ulterior motive6. In the absence of such due diligence, the order is liable to be quashed u/s 482 CrPC7. A further duty is conferred on the Magistrate to seek an affidavit from the complainant, on oath compulsorily, to verify the truth and also verify the veracity of the allegations to avoid the harassment faced by the opposite party8 and to ensure fair investigation9.

When can the power u/s 156(3) be exercised?

As discussed in the introduction to this article, it is primarily the officer in charge of the police station (SHO) who registers the FIR u/s 154(1). Upon SHO denying to take the complaint is when the second remedy to approach the Superintendent of Police (SP) chips in, u/s 154(3). It is the final remedy under this pertinent section 156(3) that the complainant can approach the Magistrate. This reading of the sections clearly, but not explicitly, shows a hierarchy of the complainant’s rights. To remove this tussle, the honourable Supreme Court in Sakiri Vasu vs. State of UP clearly lays down this implied hierarchy within CrPC, in which a complainant can exercise his power to register an FIR. The apex court further explains that even after seeking remedy u/s 156(3), one cannot directly approach the High Court u/s 482 but has another hierarchical remedy to file a criminal complaint u/s 200 CrPC10. Therefore, in a couple of recent cases before the high courts, observations were made stating that if magistrates start accepting petitions u/s 156(3) directly, without following the hierarchy mentioned implicitly under CrPC, High courts would be flooded and will not be able to do other work11.

Restrictions on Magistrate’s power

With the increasing misuse of the powers conferred u/s 156(3) by complaints, the courts have placed well-structured restrictions on the magistrates, over and above the already-mentioned guidelines, above. On the most fundamental level, the territorial jurisdiction limitation on the Magistrate continues, as is the case with other general provisions under CrPC. Furthermore, this magisterial power cannot be stretched beyond directing an SHO to conduct the investigation, including ordering any superior officer12, or any other investigative agency such as the CBI/CID13. Apart from this, more straightforwardly, the Gujarat High, in order to curtail the growing trend of directly approaching magistrates u/s 156(3), opined that magistrates should focus on one fundamental aspect, i.e., allowing the application only in cases where the assistance of the police is essential that the complainant on his own may not be in a position to collect and produce the evidence in support of the accusations14.

Tussle between taking cognizance u/s 200, and order passed u/s 156(3)

Section 190(1) of CrPC deals with the fundamental yet crucial concept of taking cognizance of an offence by a Magistrate, which forms the first step in initiating criminal proceedings before the supervision of the court of law. The Magistrate must apply his judicial mind and decide whether there is a prima facie case that can be made out with the complaint, either when a police officer submits a preliminary report u/s 157 CrPC to take cognizance or when an aggrieved party directly files a private complaint before the Magistrate, or when the court itself takes the cognizance Suo-moto. The second category of taking cognizance is essential at this moment, i.e., through a private complaint made with the Magistrate by the victim. Even upon taking cognizance u/s 190(1), a magistrate can order police to investigate further through the concept of postponement of issuance of process u/s 202(1) CrPC. Such an investigation, however, is of a limited nature, aiming only to help the Magistrate decide whether there is sufficient ground for him to proceed further. This concept of private complaint and petition filed u/s 156(3) CrPC, therefore, resembles and tends to overlap. This is especially so because, as per the judicial precedents discussed above, wherein the courts have obliged magistrates to apply their judicial minds and to take affidavits from the complaint before passing an order u/s 156(3), all of which is statutorily made mandatory for taking cognizance u/s 190. To settle this difference between the two provisions, the honourable Supreme Court in Srinivas Gundluri v. Sepco Electric Power Construction Corporation clarified that u/s 156(3), Magistrate applies his judicial mind to deciding whether or not there is sufficient ground for proceeding, which is actually required u/s 202, but whether or not to direct the police for investigation. Only upon investigation and submission of the final report does the Magistrate decides to cognizance or not15.

Is a revision to order u/s 156(3) maintainable

Every conclusion arrived at by a magistrate during the hearing of a matter is called general as a court order which becomes legally binding on the parties against whom it was issued or decided. This order follows so much rigour that any non-compliance with the said order attracts the contempt of court provision, punishable u/s 12 of the Contempt of Court Act, 1971 and u/s 166A of IPC (public servant disobeying direction under law). With this in place, the only remedy for the party against whom an order has been passed is to file a revision petition before a higher court u/s 397 CrPC. While Sessions and Additional Sessions Judges exercise revision powers u/s 399 and 400, High Court exercises this power u/s 401 CrPC. With the inclusion of these sections, it might sound to a reader that it is pretty straightforward to deal with the revision of an order u/s 156(3), like any other order passed by a criminal court in general. However, an order under 156(3) is largely different from other orders due to the stage at which it is issued and based on the nature of the order in the criminal procedural law. An order directing the police to investigate u/s 156(3), as mentioned in the preceding section of this article, is only issued at the pre-cognizance stage16, thereby not examining the case on the merits of the claim. Therefore, the machinery provided under Chapter XV of CrPC, which includes the issuance or postponement of the issuance of process, is not set into motion by the Magistrate. In such a circumstance, no order of the Magistrate can be revised u/s 397 r/w Section 401 CrPC. What is therefore revisable is only the correctness and legality of any finding, sentence, or order, recorded or passed17. On similar lines, the Allahabad High Court held that in this pre-cognizance stage, neither the complainant nor the accused are brought on record to the court, thereby rendering them devoid of any locus standi to challenge that order. Usually, an accused is conferred with the right to raise his defence when the Magistrate proceeds to take cognizance and cannot intervene or raise his defence unless a summons is issued. This, therefore, renders an order u/s 156(3) to be interlocutory, thus not subject to revision as per section 397(2) CrPC18.

In contrast, the Bombay High Court has held that after ordering u/s 156(3), nothing is pending before the Magistrate after such order is made, thus rendering it a final order and not interlocutory19. Therefore, such an order is revisable under the revisional powers of Sessions and the High Court. This view was also reiterated by the Delhi High Court in Nishu Wadhwa v. Siddharth Wadhwa case, conferring order u/s 156(3) a final order status20.

Keeping both these points of view aside, another approach can also be witnessed from the analysis made by the Chhattisgarh High Court, wherein a common question of procedural law arose as to whether a Sessions court can exercise a revision power against an order made by the Magistrate ordering the registration of FIR and further investigation. The court, in this case, held that if the sessions court is allowed to exercise its revisional powers u/s 399, it will result in the nature of quashing the FIR, which only the High Court has, u/s 482 CrPC21. Therefore, the high court set aside the revision order made by the sessions court, also holding that order u/s 156(3) is an interlocutory order, rendering it alien to the remedy of a criminal revision.

Conclusion

The above discussion on this one sub-section viz., also a simple, one-lined phrase, shows how nuanced and technical the criminal procedural law is. Even to the present day, there still exists a need for landmark precedent to be delivered in this issue of revision of 156(3) order, taking into note all the contrasting points of view mentioned above. Recent times have also witnessed the growing trend of police-ruling party nexus, rendering opponents of the ruling party in a vindictive state. The very fact of approaching Magistrate u/s 156(3) is because of the reason of getting aggrieved by the non-compliant behaviour of the police department. This implies that there is a collusion between the accused and the concerned police officials, rendering the complainant in a helpless state. So, when the aggrieved complaint moves before the Magistrate to order an investigation, this might not give an unbiased, fair, transparent, and legal outcome, which therefore requires a separate pleading by the complaint’s counsel for investigation by another independent investigative agency such as CID, CBI or by any other Special Investigation Team (SIT). Such pleadings have become rampant in recent times, raising further questions on the independence of police departments and the increasing powers conferred on the Judiciary in regulating the executive affair of investigation. Therefore, the author wishes to conclude that the discussion around this concept is not just restricted to CrPC but largely involves the other pressing concerns in criminal law jurisprudence.

References

  1. Lalita Kumari v. Govt. of UP, AIR 2012 SC 1515.
  2. P. Chidambaram v. Directorate of Enforcement, 2019(9) SCC 24.
  3. King Emperor v. Khwaja Nazir Ahmad AIR 1944 PC 18;
  4. Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117; State of Bihar and another v. JAC Saldanha and others (1980) 1 SCC 554.
  5. Priyanka Srivastava & Anr v. State Of UP & Ors, (2015) 6 SCC 287.
  6. KL Prabakar v. The State and another, 2022 LiveLaw (Mad) 336.
  7. M. Shyama Sundar Naidu v. State of Andhra Pradesh, 2022 LiveLaw (AP) 78
  8. Babu Venkatesh vs. State of Karnataka, 2022 SCC OnLine SC 200.
  9. Madhav Singh v. State of UP and Another, 2022 LiveLaw (AB) 94.
  10. Sakiri Vasu Vs. State of UP and others (2008) 2 SCC 409.
  11. Saurabh Tiwari v. State Of UP, 2022 LiveLaw (AB) 216; Kameshbhai Niranjanbhai Sopariwala v. State of Gujarat, R/SCR.A/12607/2021.
  12. State of Maharashtra v. Ibrahim A. Patel, 2008 CriLJ 1496.
  13. Central Bureau of Investigation v. State of Rajasthan and Anr., (2001) 3 SCC 333.
  14. Arvindbhai Ravjibhai Patel Vs. Dhirubhai Sambhubhai, 1998 (1) Crimes 351.
  15. Srinivas Gundluri v. Sepco Electric Power Construction Corporation (2010) 3 SCC (Cri) 652).
  16. Tula Ram & Ors v. Kishore Singh, 1977 AIR 2401.
  17. Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
  18. Father Thomas v. State of UP and another, 2011(1) ADJ 333.
  19. Avinash Trimbakrao Dhondage v. State of Maharashtra 2016-ALL MR. (Cri)-985.
  20. Nishu Wadhwa vs. Sidharth Wadhwa: 2017 SCC Online Del 6444.
  21. Amarnath Agrawal v. Jai Singh Agrawal, 2015 SCC OnLine Chh 14.

This article is written by Mokshith Venkata Shiva Bhyri, a 2nd-Year Law Student (BA., LLB [Hons) student from the National Academy of Legal Studies and Applied Research (NALSAR), Hyderabad.

Plea Bargaining in India

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When discussing the idea of plea bargaining, the adage “Justice delayed is justice denied” has the utmost weight. Although the quantity of court cases pending is astounding, people have come to accept it as routine. Because individuals have begun to accept this as their fate, these startling statistics are no longer shocking. Since the start of criminal law, the idea of a plea agreement has not existed. Indian legal experts and jurists took this situation into account when incorporating this idea into Indian criminal law. It is an agreement between the accused and the prosecution, as the name suggests. This idea has been adopted by the criminal justice systems of many nations.

What does Plea Bargaining mean?

Plea bargaining is a pre-trial agreement in which the accused offers to plead guilty in exchange for the prosecution making specific concessions. In exchange for the prosecution dropping more serious accusations, the defendant enters a plea agreement to a lower offense. It is not possible for all crimes; for example, one cannot use a plea deal after committing a serious crime or a crime that carries a death sentence or a life sentence.

History of Plea Bargaining

The jury system did not feel the necessity for plea bargaining because the defendants were not represented by counsel. Later, in 1960, when legal representation was permitted, plea bargaining became necessary. Although the history of American law contains the earliest indications of the concept of plea bargaining. Since the late 19th century, this idea has been in use. Judges encouraged confessions by engaging in this bartering.

India’s Plea Bargaining

Plea Bargaining is not a concept that emerged from the Indian legal system. It is a recent improvement in the Indian Criminal Justice System (ICJS). It was incorporated into the Indian Criminal Justice System after a load of pending cases on the judiciary was taken into account.

The Criminal Procedure Code and Plea Bargaining

Sections 265A through 265L of Chapter XXIA of the Criminal Procedure Code deal with plea bargaining. It was a part of the Criminal Law (Amendment) Act of 2005. It allows plea discussions in certain situations:

  • When the acts are not committed against women or children under the age of 14.
  • when the maximum sentence is seven years in prison, and
  • when the offenses have no impact on the nation’s socioeconomic situation.

The first suggestions for “plea bargaining” in the Indian Criminal Justice System were made in the Law Commission’s 154th Report. Plea Bargaining was described as an alternate strategy that ought to be used to address the massive backlog of criminal cases in Indian courts.

The NDA administration then constituted a committee to address the issue of the growing number of criminal cases, which was headed by Justice V. S. Malimath, a former Chief Justice of the Karnataka and Kerala High Courts. The Malimath Committee recommended that India put the plea bargaining system into place. According to the committee, it will facilitate a quicker resolution of criminal cases and lessen the burden on the legal system. The Malimath Committee also emphasized the effectiveness of the US system to highlight the importance of plea negotiations.

As a result, the draught Criminal Law (Amendment) Bill, 2003 was presented to the legislature, and on July 5, 2006, it finally passed and was put into effect across India. It aimed to change the Indian Penal Code.

(i) witnessed becoming antagonistic

(ii) Plea-bargaining

(iii) Combining Section 498A of the IPC (Husband or relative of the husband of a woman subjecting her to cruelty) with another offense; and

(iv) Scientific expert testimony in cases involving phony money notes.

Finally, it brought the idea of plea bargaining to India by introducing Chapter XXIA Sections 265A to 265L. The following provisions were added by it:-

Anyone charged with a crime that is not punishable by death, life in prison, or a sentence of more than seven years has the option of entering into a plea agreement, according to Section 265-A (Application of Chapter). Violations may be reported to the Central Government, under Section 265 A (2) of the Code.

The violations that affect the nation’s socioeconomic position are listed in Central Government Notification No. SO1042 (II) dated 11/7/2006.

Article 265-B (Application for Plea Bargaining)

  1. Anyone who has been charged with a crime is eligible to apply for a plea agreement in cases that are still in progress.
  2. Brief information regarding the case must be included in the accused’s application for plea negotiations, which they must submit. It includes the offenses to which the case relates and must be submitted along with an affidavit signed by the accused stating that he has voluntarily applied, a plea agreement outlining the nature and severity of the punishment prescribed by law for the offense, and a statement stating that the accused has never before been found guilty of the same offense.
  3. The concerned public prosecutor, the case’s investigating officer, the case’s victim, and the accused will then receive notice from the court of the date set for the plea negotiation.
  4. When the parties attend, the court will interview the accused in secret without the other parties to the case present to ensure that the applicant has applied freely.
  5. Article 265-C (Guidelines for Mutually satisfactory disposition) outlines the steps the court must take to reach a mutually acceptable resolution. In a case brought based on a police report, the court must notify the public prosecutor involved, the case’s investigating officer, the victim, and the accused to attend a meeting to discuss how best to resolve the case. The Court must notify both the accused and the case’s victim in a complaint case.
  6. Article 265-D (Report of the mutually satisfactory disposition) This clause discusses the creation and submission of a report on a mutually satisfactory resolution.

Here, two scenarios could occur, namely

  1. If a suitable resolution to the issue has been reached in a conference held by section 265-C, the court is required to prepare a report detailing that resolution. It needs to be signed by everyone who attended the meeting, including the court’s presiding officer.
  2. The Court shall record such observation and continue by the provisions of this Code from the stage the application under sub-section (1) of section 265-B has been filed in such matter, if no such disposition has been reached.
    • When a suitable resolution to the case is reached, the method to be followed is prescribed in Section 265-E (Disposal of the Case). The Court must hear from the parties regarding the severity of the punishment or the accused’s eligibility for release on probation for good behavior or after admonition after the proceedings under Section 265-D have been completed and a report has been prepared and signed by the presiding officer of the Court and parties present. The accused may be sentenced to prison or released on probation under the terms of Section 360 of the Code, the Probation of Offenders Act of 1958, or any other applicable legislative laws. When sentencing the accused, the Court may, at its discretion, impose the minimum punishment prescribed by law for the offenses committed by the accused or, in the absence of such a provision, impose a sentence equal to one-fourth of the punishment specified for the offense.
    • The Court’s Pronouncement of Judgment in Terms of Mutually Satisfactory Disposition is discussed in Section 265-F (Judgment of the Court).
    • No appeal may be made against such a verdict, according to Section 265-G (Finality of Judgment), although a Special Leave Petition (under Article 136) or a writ petition (under Article 226 or 227) may be submitted.
    • The powers of the court during plea negotiations are covered in Section 265-H (Power of the Court in Plea Bargaining). These powers include those related to bail, criminal offense trials, and other aspects of how a case is resolved in this court under the Criminal Procedure Code.
    • According to Section 265-I (The accused’s term of detention shall be set off against the sentence of imprisonment), the accused’s period of detention shall be set off against the sentence of imprisonment imposed under this chapter by Section 428 of the Criminal Procedure Code.
    • The declarations or facts provided by the accused in a section 265-B application may only be utilized for the purposes listed in the chapter, according to section 265-K (Statement of the Accused to be Used).
    • This chapter will not apply to any juvenile or child as specified in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, according to Section 265-L (Non-application of the Chapter).

Kinds of Plea Negotiations

Plea bargaining typically comes in three forms, specifically:

  • Sentence Negotiating: The primary goal of this form of negotiating is to obtain a lighter sentence. In a sentencing deal, the offender agrees to admit guilt to the charged offense in exchange for a lenient punishment.
  • Charge negotiating: This type of plea bargaining takes place to get less serious charges. This is the most typical type of plea agreement used in criminal cases. In this case, the defendant consents to admit guilt to a lower charge in exchange for the dismissal of more serious accusations. For instance, pleading guilty to manslaughter in exchange for dismissing the murder charges
  • Fact bargaining: Due to allegations that it violates the criminal justice system, this is typically not used in court. It happens when a defendant consents to admit certain facts to exclude other facts from the evidence.

Plea Negotiations and Court Decisions

  • The Hon’ble Supreme Court attacked plea bargaining in Murlidhar Meghraj Loya v. State of Maharashtra and claimed that it interferes with society’s interests.
  • The Supreme Court declared that plea bargaining is against public policy in the cases Kasambhai v. State of Gujarat and Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr. Additionally, it regretted the magistrate accepting the accused’s plea agreement. Additionally, the Hon’ble Court called this idea a particularly despicable practice. The Court further declared plea bargaining to be illegal and unconstitutional conduct that tends to promote corruption and collusion while tainting the pure source of justice.
  • In Thippaswamy v. the State of Karnataka, the Court ruled that it would be against Article 21 of the Constitution to pressure or coerce an accused into entering a guilty plea under a promise or assurance.
  • In addition, the Court said that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can if he so desires, defend himself against the charge and if he is found guilty, a proper sentence can be passed against him.”
  • The Supreme Court derided the idea of plea bargaining and declared the practice to be illegal and unconstitutional in the State of Uttar Pradesh vs. Chandrika. Here, the Honorable Court held that the plea negotiating process could not be used as a foundation for concluding criminal matters. A merit-based decision must be made in the case. In support of this, the court ruled that if the accused admits guilt, he must receive the proper punishment stipulated by law.
  • In the case of State of Gujarat v. Natwar Harchandji Thakor, the court recognized the value of plea negotiations and stated that not every “plea of guilty” is considered to be a component of the legal procedure in a criminal trial should be interpreted as a “plea bargaining” per se. It is a legal issue that must be resolved on a case-by-case basis. The court stated that the entire purpose of the law is to give easy, inexpensive, and quick justice by resolving conflicts, taking into account the dynamic character of law and society.

Reasons to oppose plea negotiations in India

  • Mechanism adopted voluntarily

According to the legal clause governing plea bargaining, it is a voluntary process that is only considered when the accused chooses it voluntarily. However, the legislation is mute on the issue of whether or not the settlement achieved is at odds with the goals of the justice system.

  • Participation of Police

Critics also criticized the police’s involvement in plea negotiations. Because police in India are notorious for torturing prisoners, The idea of plea bargaining is more likely to make things worse in this instance.

  • Corruption

Additionally, the victims’ role in the plea negotiation process is undervalued. The victim’s position in this procedure would encourage corruption, which would ultimately negate the goal of the action.

  • A Separate judicial body

The Plea-Bargaining provisions do not establish a separate court authority to review plea-bargaining applications. This is one of the most obvious arguments against it. The court’s in-camera questioning of the accused may cause public skepticism and mistrust of the plea-bargaining process. Any court judgment denying an application that is not kept confidential may result in bias against the applicant.

Justifications for plea negotiations in India

  • Quickly Removing Cases

Because there is no chance of losing the case outright at trial, plea negotiations are advantageous for both the prosecution and the defense. Since both parties have bargaining power, it makes it easier for attorneys to represent their clients. Long-running disagreements can be settled in this way, and the court won’t have to deal with a backlog of case files. Plea bargaining also helps the courts save limited resources for the cases that need them.

  • Less serious infractions on a person’s record

In a nation like India, society is essential. A person finds it extremely challenging to survive once they are stigmatized by society. Ostracism frequently follows stigmatization. Plea bargaining in this situation enables a defendant to enter a guilty or no contest plea in exchange for a decrease in the number of charges or the severity of the offenses. As a result, less serious violations are listed on an accused person’s official court records. This may work in the accused’s favor if he is ultimately found guilty.

  • It keeps quiet about it

Plea bargaining is also a useful tool for preventing exposure because the longer the case drags on, the more attention the accuser receives. Plea bargaining thereby prevents such publicity by hastening the resolution of the case. renowned and common People whose livelihood depends on their standing in the community and those who wish to avoid unwarranted shame. When compared to news of a trial, the news of the plea itself may be public, but it only persists for a brief period.

  • A painless strategy

India is renowned for its protracted legal dispute. Many court cases drag on for 8 to 10 years, which hurts both sides. In certain cases, the accused was sentenced to longer time in prison than the maximum allowed by law. Such incidents demonstrate a serious violation of their human rights. A person can enter a guilty plea through plea negotiating without retaining legal counsel. However, if they waited to go to trial, they would have to look for and engage a lawyer, as well as invest time in working with the attorney to prepare for trial and pay the attorney. The idea of a plea bargain protects these people’s interests by sparing them the difficulties they experience when the case is still pending.

How to manage plea negotiations?

There is no exact science or quantitative technique to become adept at plea bargaining. Experience is the only way to become an expert, and the only way to gain experience is to do the thing. One needs to be skilled at negotiating and communicating to become a master of plea bargaining. Plea Bargaining ultimately comes down to negotiating. How well you negotiate on your client’s behalf is key. The better outcomes you get for your client, the better bargainer you are. Knowing the facts and the pertinent laws is necessary to handle plea negotiations. Your ability to persuade people is one way that you stand out. Every case in the legal field presents a fresh opportunity to learn because cases are unique in and of themselves. You will get more skilled at plea negotiating as you negotiate more cases. In addition to these abilities, the ability to reason logically and analytically is particularly important for plea bargaining because it is exceedingly difficult to refute a claim supported by solid reasoning. As a result, having a combination of all these abilities makes you an expert at plea negotiations.

Conclusion

Plea bargaining is not altogether a foreign concept in India. It was acknowledged when India received its constitution in 1950. The Indian Constitution’s Article 20(3) forbids self-incrimination. People claim that plea bargaining violates the aforementioned article. However, as time went on and the burden on the courts increased, the Indian court realized the importance of plea bargaining for the country’s judicial system. It can be difficult to embrace change at first, but society and our legal system both need to develop. Everything has benefits and drawbacks, and both must be considered in order to draw a wise judgment. In any event, it would not be fair to reject anything solely because of its drawbacks. It is inappropriate to expect the notion of plea bargaining to be perfect in India because it is still in its infancy. Only conversation, argument, and debate can make it better.

References

  1. Encyclopedia Britannica．[Online][Cited: 21 September 2022．]https://www.britannica.com/topic/plea-bargaining．
  2. Plea Bargaining in Indian Legal System．[Online][Cited: 21 September 2022．]http://www.legalservicesindia.com/article/1836/Plea-Bargaining-in-Indian-Legal-System.html．
  3. Tripaksha Litigation．[Online][Cited: 21 September 2022．]https://tripakshalitigation.com/concept-of-plea-bargaining/．
  4. Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929
  5. Kasambhai v. State of Gujarat (1980) AIR 854
  6. Thippaswamy v. the State of Karnataka, [1983] 1 SCC 194
  7. State of Uttar Pradesh vs. Chandrika 2000 Cr.L.J. 384(386).
  8. State of Gujarat v. Natwar Harchandji Thakor (2005) 1 GLR 708

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.

INTRODUCTION

‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.

In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.

Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.

Kidnapping

Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.

  • Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
  • Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
  • Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.  

Essential ingredients of the section are

  1. Taking or enticing away a minor or a person of unsound mind by someone
  2. Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
  3. The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
  4. Such taking or enticing of the minor must be without the consent of the lawful guardian.

Taking or enticing

To prove the presence of taking or enticing element it is required to show some active part played by the accused.

In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not  ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.

The word ‘entice’  embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.   

Keeping of lawful guardian

The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.

In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.

Age of Minor

As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.

In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.

The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

Abduction

Section-362, Indian Penal Code deals with ‘Abduction’

  • Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Essential ingredients of this section are

  1. Forcible compulsion or inducement by deceitful means.
  2. The object with which such compulsion or inducement caused must be to make a person go from someplace.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:

Age

  • Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
  • Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.

Removal From Lawful Guardianship

  • In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
  • In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.

Means

  • In Kidnapping, the means used are irrelevant.
  • In Abduction, means of force, compulsion and deceitful means are used.

Consent

  • In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
  • In Abduction, person condones the offence of abduction.

Continuity of crime

  • Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
  • Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.

Punishment

  • Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
  • Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.

Conclusion

So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.

Reference

  • PSA Pillai 13th Edition
  • K D Gaur 6th Edition
  • NCRB report 2018

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