Legal View Point
Controversial Cr. P.C Amendment Act ‘‘Plea Bargaining’’

By Justice R P Sethi

Lured by the Criminal Justice System prevalent in the US, UK and other western countries, recommendations of the Law Commission of India and hurriedly approved by the Malimath Committee on Reforms of Criminal Justice System, the Government of India has introduced the Criminal Law (Amendment Bill, 2003) being Bill No. LX of 2003, introducing various amendments in the laws relating to Criminal Justice System in India. One of the Chapter (XXIA) pertains to Plea Bargaining. The proposed Amendment would facilitate the accused to compensate the victim or the complainant and bargain for a punishment apparently lesser than what is provided under the statute. As evident from the heading of the chapter ''Bargaining'' has been permitted to be introduced in the criminal Justice System of the country where most of the people, whether accused or victim belong to the poor sections of the society. Trading in crime would not, as shown and projected, in anyway reduce the prevalent crime but on the contrary would encourage the rich and the influential to indulge in so called minor crimes and bargain with the victims or the complainant with his money and might. The poor and the exploited sections of the society, compelled by their poverty, social status, illiteracy and ignorance are likely to succumb to the influential and rich criminals.

The Amendment Bill is applicable to the accused against whom a report has been forwarded in the court by an Officer Incharge of the Police Station under Section 173 of the Criminal Procedure Code alleging that an offence has been committed by such persons other than an offence for which the punishment of death or of imprisonment for life or imprisonment for a term exceeding 7 years has been provided under the law for the time being in force. In other words, any person accused of an offence punishable with imprisonment up to 7 years is entitled to the benefit of the ''Plea Bargaining''. An accused has been given the option to file an application for such Bargaining Plea stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence. After receiving the application the court is required to issue notice to the Public Prosecutor or the complainant of the case, as the case may be. After notice, the court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily. It may be noticed at this stage that no notice is required to be given to a victim of the crime reported in the court by the State consequent upon, completion of the investigation in pursuance to an FIR, though he is to be associated with the process of ''satisfactory disposition''.

On being satisfied that the application has been filed by the accused voluntarily, the court shall provide time to the Public Prosecutor or the complainant, and the accused to work out a mutually satisfactory disposition of the case, which may include giving the victim by the accused, the compensation and other expenses during the case. The victim and the complainant have been given the discretion of participating in the meeting to work out a satisfactory disposition of the case but the victim in a police case is not empowered to accept or reject the proposed settlement. It may be recalled that under the Medieval Period of history a criminal case could not be settled without the voluntary consent of the victim or his heirs. In a case instituted on a police report all powers are conferred upon the court for satisfaction to work out a satisfactory disposition. Even if the victim in such a case is allowed to participate in the working out of a satisfactory disposition, no safeguard appears to have been provided to ensure that the accused in that case was not taking undue advantage of the victim's poverty, social background, ignorance, illiteracy and other relevant considerations.

After the so-called ''satisfactory disposition'' has been worked out the court has been empowered to dispose off the case, in the following manner:-

(a) the Court shall award the compensation to the victim in accordance with the disposition under Section 265 D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under Section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 or under the Juvenile Justice (Care and Protection of Children) Act, 2000 or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused.

(b) after hearing the parties under clause (a), if the Court is of the view that Section 360 or the provisions of the Probation of Offenders Act, 1958 or the Juvenile Justice (Care and Protection of Children) Act, 2000 or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;

(c) after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment;

(d) in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c) then, it may sentence the accused to one-forth of the punishment provided or extendable, as the case may be, for such offence.

Though apparently it looks that the accused who has earned the ''Plea Bargaining'' is sentenced to the punishment yet infact such accused has been given the benefit of Section 360 of the Criminal Procedure Code, the Probation of Offenders Act, 1958 and the Juvenile Justice (Care and Protection of Children) Act, 2000. Not only that another provision has been proposed for the benefit of the accused providing no disability for his punishment under the Chapter. Section 265F of the proposed Amendment mandates that the punishment imposed in a ''Plea Bargaining'' process shall not be considered expiatory in nature and the person punished shall not be liable to any disability under any law for the time being in force on the ground that he has been punished in consequence of such a plea. The judgment delivered by the court in ''Plea Bargaining'' proceedings has been made final without any right of appeal. The provisions of the chapter relating to ''Plea Bargaining'' are required to be given effect notwithstanding anything inconsistent contained in any other law, thereby superceding even the provisions relating to the withdrawal or the compounding of the criminal cases.

The proposed amendment completely ignores the plight of the victim and is mainly concerned with the beneficial provisions for the accused who, if has the resources and the means, is permitted to raise the Plea and Bargain either with the prosecution or the complainant. The amendment completely ignores the socio-economic system and the illiteracy prevalent in our society. By amending the law relating to Criminal Justice System, the State proposes to equate the poor and exploited, socially and economically backward people of the country to the rich and prosperous, educated and well-placed people of the western world. Such a provision is ultimately likely to widen the gap between the rich and the poor, the exploiter and exploited, educated and illiterate. If encouraged such a widening gap may plague the Justice Dispensation System and make the Courts bargaining outlets for crime. The cherished and proclaimed wish and desire of reducing the crime, may in the process be frustrated by the unscrupulous rich and influential sections of the society like ours.

The amendment does not envisage of distinguishing the nature of crimes, notwithstanding the punishment provided for except the offences affecting the socio-economic condition of the country or the woman and children. Even for determining the nature of offences affecting the socio-economic conditions of the country, the authority is given to the Central Government to determine such offences and notify them. Offences like-- Sedition, Public servant negligently suffering prisoner of State or war in his custody to escape, Abetment of desertion and harbouring of an Officer, Soldier, Sailor or Airmen, being member or joining unlawful assembly armed with deadly weapons, rioting with deadly weapons, promoting enmity between classes, imputations, assertions prejudicial to National Integration, Public servant accepting gratification, public servant disobeying the direction of the law or framing an incorrect document or unlawfully engaging in trade or being guilty of personation, bribery, undue influence at an election, giving or fabricating false evidence, secreting or destroying any document to prevent its production as evidence, taking gift etc, to screen an offender, harbouring robbers and dacoits, counterfeiting of crimes, sale of counterfeit Government stamps, offences relating to weights and measures, many offences affecting the public health, safety, decency, convenience and morality, offences relating to religion, attempt to commit culpable homicide, causing miscarriage, voluntarily causing hurt with dangerous weapons, grievous hurt, wrongful restraint, wrongful confinement, kidnapping, unlawful compulsory labour, adultery, theft, extortion, attempt to commit robbery, criminal breach of trust, dishonestly receiving stolen property, cheating, mischief, criminal trespass, house trespass, forgery, falsification of accounts, criminal breach of contract of service, offences relating to marriage, cruelty by husband or his relatives, defamation, criminal intimidation, insult and annoyance-- are some of the offences which can be ''bargained'' by a culprit under the proposed amendment. In this way, almost all major crimes with the exception of few are within the ambit and scope of the proposed amendment regarding ''Plea Bargaining''.

The proposed amendment though apparently in aqueous yet if considered in its applicability, is a matter of concern. It requires to be further probed and studied by the jurists, academicians, Judges and the Members of the Bar before it is incorporating in the statute Book. The legislature may feel in its wisdom appropriate to notify the offences affecting the socio-economic condition or authorise some expert committee representing the cross-sections of the society to notify such offences and not leave it to the unguided discretion of the Central Government. The provisions regarding ''Plea Bargaining'' appear to have been incorporated in the Amendment Bill (LX of 2003) in a hurry and apparently without taking into consideration the hard ground realities in the field of Criminal Justice Dispensation System in voyage in the country for more than two centuries. As stressed by the Law Commission of India and highlighted by the Malimath Committee on Reforms of Criminal Justice System, more attention is required to be given to the victim of crime and the present Criminal Justice System of being the ''accused friendly'' needs a change. As pointed earlier, such ''Plea of Bargaining'' though prevalent in our society at some point of time during the regime of Muslim Rulers could not be given effect to unless the victim of the crime or his relations agreed to the settlement.

That feudal and outdated approach of compounding the offences was negativated by the Criminal Justice System adopted in the country during modern times. ''Plea Bargaining'' should not be permitted to look like Bargaining in law relating to crime, the commission of which ostensibly is not against a person but infact against the society.

Bangladesh new haven for Islamic terrorists

By I.S. Chadha

The report that fundamentalist elements in Bangladesh, like the Jamaat-e-Islami (JeL) are helping cadres of the Students Islamic Movement of India (SIMI) and the Muslim Liberation Tigers of Assam (MULTA) to be trained in subversion by experts of Pakistan-sponsored terrorist outfits like the Azad Kashmir Front (AKF) and Al-Naseeran, merits serious attention. It indicates that the Bangladesh Government is extending its anti-India activities, hitherto confined to assisting secessionist insurgent groups of the Northeast, to other parts of India, and giving these a specifically fundamentalist Islamist dimension.

The idea is clearly to use Muslims all over India as instruments in its bid to destabilise this country. Both SIMI (which has been banned) and MULTA are fundamentalist Islamist organisations engaged in violent activities and linked with terrorist outfits in Pakistan and Bangladesh. While the MULTA is active mainly in Assam, the SIMI has been active almost all over India, including the strategic border State of West Bengal. The Government has specific information. A meeting held in Chitagong on July 9-10, was attended by representatives of Pakistan-based terrorist outfits like the Hizbul Mujahideen, the Lashkar-e-Toiba, the J&K Liberation Front and the AKF, as well as those of SIMI and MULTA. It discussed several anti-India moves and strategies for establishing closer links among fundamentalist Islamist forces, and targeting those opposed to these. More recently, the SIMI held two meetings in West-Bengal–one in Malda on August 27 under the banner of the Islamic Action Force, and another in Mograhat in the North 24-Parganas from August 27 to September 1 under the aegis of the Islamic Shiksha Shivir. Both, attended by representatives of the Islamic Chhatra Shibir, the minority-baiting, heavily-armed students wing of the JeL, discussed plans to infiltrate madarsas, Muslim clubs, libraries and other cultural bodies for covert mobilisation of Islamist forces in India.

The JeL is a part of the ruling coalition headed by Prime Minister Khaleda Zia of the Bangladesh Nationalist Party. She cannot evade responsibility for what it does. Besides, it is widely known that she actively encourages anti-India activity. As the leader of the Opposition in Bangladesh when Sheikh Hasina was Prime Minister, she had publicly described north-eastern India’s secessionist rebels as freedom fighters. Not only that, the Bangladesh Government’s Parliamentary Affairs Adviser, Salahuddin Quader Chaudhury, who collaborated with the Pakistani Army during the 1971 Liberation War in Bangladesh, had, a couple of months ago, described Anup Chetia, a ULFA fugitive operating in luxury from a Bangladeshi jail, as a "greater freedom fighter" than Sheikh Mujibur Rahman! Clearly, enough is enough! India must find a way of conveying to Bangladesh that it is playing a dangerous game which can have serious consequences.

Al-Hikima featured in a list of a dozen Pakistan-backed organisations active in Bangladesh that the Deputy Prime Minister, Mr. L.K. Advani, had handed over to the Bangladesh’s Foreign Minister, Mr. Mohammed Morshed Khan, when the latter called on him while visiting this country in February. It remains to be seen what Dhaka does about the other organisations as well as the 99 camps, run by Pakistan’s Inter-Services Intelligence (ISI) Directorate in Bangladesh, for training insurgents operating in North-Eastern India.

The same information, including the precise location of the camps and the names of the insurgent outfits being trained in these, were earlier given to the Director General of Bangladesh Riffles when he had visited India in November 2002, for talks with the Director-General of the Border Security Force, Mr. Ajay Raj Sharma. No action, however, has followed. One also needs to see whether Bangladesh repatriates to this country 88 insurgents, including Sanjit Dev Barman of the All-Tripura Tiger Force (AATF) and Anup Chetia of United Liberation Front of Asom (ULFA), active on it soil.

It now turns out that 99 were a conservative estimate. More recently, a list of 155 training camps and, as on the earlier occasions, the names of the terrorist outfits involved, was provided. The organisations were, apart from the ATTF and ULFA, National Socialist Council of Nagalim (Isak-Muivah) or NSCN (I-M), People’s Liberation Army (PLA) and United National Liberation Front (UNLF) of Manipur, the National Democratic Front of Bodoland (NDFB), National Liberation Front of Muslim United Liberation Front of Tripura (NLFT), the Muslim United Liberation Tigers of Assam (MULTA), the Achik National Volunteer Council (ANVC), the Chakma National Liberation Front (CNLF) and the Dima Halam Daoga (DHD). The list of insurgents wanted back was put at 85.

One needs to be careful because statements by Bangladeshi leaders have often been unrelated to facts as well as their real intentions. Thus its Foreign Minister, Mr. Mohammed Morshed Khan, had denied in Dhaka, that his country harboured insurgents from North-eastern India. Reacting to an allegation by his Indian counterpart, Mr. Yashwant Sinha, he had said, "There is no follower of Osama bin Laden and no anti-Indian activity in Bangladesh." Dhaka perhaps found it difficult to deny the existence of Al-Hikima because it was provided with ample proof of the latter’s activities, including the distribution of posters and pamphlets in Rajshahi and other parts of Bangladesh recently.

Even then, Bangladesh, which had earlier blandly denied carefully documented Indian allegations about its harbouring and assisting insurgent groups from north-eastern India, might not have banned the outfit but for the change in post-9/11 world climate. Western countries, particularly the US, aid from which plays a critical role in keeping its economy afloat, now view Islamist fundamentalism and its terrorist auxiliaries as serious menaces. Dhaka also knows that its assiduous promotion of Islamic fundamentalism and unleashing of a savage reign of terror on liberal and secular intellectuals, writers, playwrights, filmmakers, journalists and scholars is now widely known abroad.

The US has included Bangladesh among terrorism-prone countries whose male nationals above 16 years of age have to register with its Immigration and Naturalisation Services. A series of articles in the Far Eastern Economic Review, Asia Times, Time magazine and the <I>New York Post, last year have portrayed an alarming picture of the rise of Islamic fundamentalism and religious intolerance threatening secular and moderate Islam in Bangladesh, which had also become a haven for Al Qaeda and Taliban escapees from Afghanistan who were active there in training Islamic fundamentalist militia and secessionist insurgents from India.

That Bangladesh is seriously worried about the impact of these reports is clear from the angry protests the ones in Far Eastern Economic Review and Time magazine have provoked. Begum Zia herself told a Conference of the Commonwealth Journalists’ Association in Dhaka that foreign media were "undermining the position" of her country by carrying out a campaign that her government wielded power with the help of fundamentalist Islamist parties, patronised fundamentalists, harboured anti-India terrorists and hosted jihadis from Afghanistan and beyond.

Though Bangladesh is clearly on the defensive, India must maintain a hard line towards it until it stops aiding insurgents from North-eastern India and persecuting secular and liberal elements in the country with the aim of destroying its secular civil society and all cultural, intellectual and social opposition to the spread of fundamentalist Islamist doctrines. A Talibanised Bangladesh, which will be the inevitable outcome, will be a major threat to India, particularly to its Eastern and North-eastern parts. Specifically, New Delhi has demanded curbs on the Harkat-ul-Jihadi-Islami (HUJI), a fundamentalist Islamic outfit that claimed responsibility for the attack on the American Centre in Calcutta on January 22, 2002. Set up in 1992 during Begum Khaleda Zia’s first tenure as Prime Minister, and reportedly with financial help from Osama bin laden himself, it now has strength of 15,000-armed cadre and 19 "training establishments" all over Bangladesh. Involved in training insurgents from India and engineering terrorist acts in this country, it has close links with the present four-party ruling coalition of which the largest component is Begum Khaleda Zia’s Bangladesh Nationalist Party (BNP). Any serious attempt to end anti-India activities in Bangladesh must begin with the banning of HUJI. INAV