Supreme Court issues guidelines on disposing cases through plea bargaining, compounding of offences & probation of offenders act

The Supreme Court, in an order passed last month, issued the following guidelines for 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. As a pilot case, one court each of Ld. Judicial Magistrate 1^st class, Ld. ACJM or CJM, and Court of Sessions in each district may be selected.
2. The said courts may 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 year’ imprisonment. The Ld. Court would exclude cases mentioned in section 265A Cr.P.C, namely offenses notified by the Central Government wide notification dated 11.07.2006 or offences committed gainst 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 sad notice would indicate that the court proposes to consider disposing of those cases under Chapter XXIA of Cr.P.C. plea bargaining, probation of offenders act 1958 or compounding i.e section 320 Cr.P.C. . The notice will also indicate that the accused / complainant would be entitled    to avail legal aid and details of the district legal service authority would be made available in the said notice. It would also be made clear that the accused has to remain present with his/her advocate and the complainant may also remain present with his/her advocate.
4. The Public Prosecutor would be required to ascertain the criminal antecedent of the accused. Only cases of first time offenders would be taken up.
5. On the date fixed, the court can inform the accused of the provisions of plea bargaining. The court can also persuade the parties to compound the offence ( if the offences are compoundable). The court can also inform the accused of the benefits of probation of offenders act,1958. The service of penal lawyers from District Legal Services Authority 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 the   learned counsel appearing for the accused to explore the possibility of plea bargaining or compounding or benefit of Probation Of Offenders Act. The accused can be given time to consider the matter. The services of Penal lawyers of Districts Legal Service Authority can also be made available. For this purpose, a list of such accused can be furnished to the secretary, DLSA to depute the penal lawyers of sufficient seniority to explain the provisions to the accused, who are in custody.
8. It is suggested that a brief training session may also be organized for the Ld. Judicial Academies.
9. A timeline of 4 months may be fixed to carry out this exercise namely:-

1. Training of     Judicial Officers & identification of cases -1month
2. Notice to the parties – 1 month
3. Consideration of the matter – 2 months

The above are part of the detailed and comprehensive suggestions submitted to court by by the three Amici Curiae viz. Advocates Gaurav Agrawal, Liz Mathew and Devansh A. Mohta, after discussion with ASG K. M. Nataraj.

The bench of Justices Sanjay Kishan Kaul and Abhay S. Oka observed that High Courts may depute a Nodal Officer of the rank of the Registrar in each of the Courts to carry out the monitoring of the above. It also added the following two caveats:

1. Instead of prescribing only one Court in each District, as specified in clause 3.1 above, we leave it to the administrative side of the High Court to prescribe such number of Courts as may be considered practical by each of the High Court.

1. In matters where time bound schedule has been laid down by the High Courts or Supreme Court of India, that schedule should not be disturbed so as to avoid delay in those cases.

Suggestions where the convicts are undergoing fixed sentences and are in jail terms

The court also accepted the suggestions made by the Amicus Curiae:

1.  The following mechanism can be adopted as one-time measure to convicts who have been convicted for sentence of imprisonment for 10 years’ or less and have criminal antecedent.
2.  The High Court along with the High Court Legal Services Authority can make a list of cases with the following details: i) Offences for which a convict has been sentenced and sentence imposed; ii) Sentence undergone by the convict;
3.  If the convict is in jail and has undergone 40% of the sentence, his case can be taken up by the District Legal Services Authority. The District Legal Services Authority, through a lawyer of sufficient seniority, 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. It should be clearly disclosed that the said acceptance of guilt is only for the purposes of closing the matter and in case 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. 6.4 The District Legal Services Authority would also facilitate the interaction of the convict with his lawyer so that an informed decision is taken by the convict.
4.  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.
5.  Such plea bargaining at post conviction level would not be available to such offences which are notified by the Central Government/ State Government. The said plea bargaining will not be available where the law provides for a minimum sentence to be undergone by the accused, for example under the NDPS Act or UAPA Act similar such Acts (State Law/ Central Law)]”

Case details:-

RE: POLICY STRATEGY FOR GRANT OF BAIL / SUO MOTO WRIT PETITION (CRL) No. 4/2021 / 14 september 2022