Delhi District Court
Sh. Lakhpat Sharma vs (1) The State (Govt. Of Nct Of Delhi) on 17 November, 2015
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI
Criminal Rev. No. 23/15
Case ID No. 02402R0390002015
1. Sh. Lakhpat Sharma
S/o Sh. Banarsi Das Sharma
2. Sh. Prem Kumar
S/o Sh. Dumbir Lal
Both R/o. E-9/469, Nehru Vihar,
Dayal Pur, Delhi-110094.
................Petitioners
VERSUS
(1) The State (Govt. of NCT of Delhi)
................Respondent
Date of institution : 04.11.2015
Date of reserving order : 04.11.2015
Date of order : 17.11.2015
ORDER
1. The petitioners challenged order dated 08.10.2015 dismissing the application for plea-bargaining under section 265-B of the Code of Criminal Procedure, 1973 (Hereinafter referred to as 'the Cr.P.C.') with cost of Rs. 10,000/-.
2. The petitioners were facing trial for committing offences punishable under section 186/34, 332/34 and 504/34 of the Indian Penal Code, 1860 (In short 'IPC') in FIR No. 70/2013 PS New Usmanpur.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 1 of 11
3. On 27.05.2015, the petitioners filed a joint application under section 265-B of the Cr.P.C. with affidavits before the Court of Sh. Sharad Gupta, Ld. ACMM, North-East, Karkardooma Courts, Delhi stating therein that they were intending to plea-bargain. The said application was assigned to Ms. Prabh Deep Kaur, Ld. MM, North-East, Karkardooma Courts for disposal.
4. On 01.06.2015, notice of the said application was issued to the complainant and the Investigating Officer of the case with the direction to file report regarding previous conviction of the petitioners.
5. Despite issuance of summons and bailable warrant, Investigating Officer did not appear and thereafter, notice was issued to the Investigating Officer to show cause why penalty of Rs. 10,000/- be not detected from his salary.
6. Vide order dated 16.09.2015, SHO, PS New Usmanpur was directed to depute other Investigating Officer after giving him authority to sign Mutual Satisfactory Disposition (MSD).
7. On 08.10.2015, counsel for petitioner No. 2submitted that the petitioner No. 2 should not be sentenced to fine as he was a government servant and in case, he was sentenced to fine after conviction, he would loose his job. It was submitted that this fact was submitted before the trial Court but the trial Court referred the matter for plea-bargaining.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 2 of 11
8. Ld. trial Court, after taking note of submissions, dismissed the application for plea-bargaining with cost of Rs. 10,000/- to be deposited by each of the petitioners with Delhi Legal Service Authority, North-East, Karkardooma Courts vide order dated 08.10.2015.
9. The order dated 08.10.2015 (impugned order) is reproduced below:
"FIR No : 70/13
PS: : New Usmanpur
U/Sec : 186/332/358/504/34 IPC
08.10.2015
Present: Ld. APP for the State.
Both accused alongwith counsel.
Complainant in person.
IO SI Pankaj in person.
Counsel for accused has submitted
that both accused persons are ready to plead guilty, but accused No. 2 i.e. Prem Singh should not be imposed with fine as he is working in government sector and if, after conviction, he is ordered to pay fine or compensation, then he will loss his job. It has been further argued by the counsel for accused that this submission has made before the Court concerned, but despite that Court concerned has referred the matter for plea-bargaining.
Heard. Perused.
Perusal of record shows that matter is pending for consideration of application under Section 265-B Cr.P.C. for plea-bargaining since last three months and no such submission has been made by the accused persons on any date of hearing. In view thereof, the application under Section 265-B Cr.P.C. for plea-bargaining stands dismissed subject to the cost of Rs. 10,000/- to be deposited in DLSA, North-East, KKD by each of accused. Matter be sent back to the concerned Court for the purpose already fixed i.e. 17.10.2015.
Parties are directed to appear before the Court concerned on the date fixed.
(Prabh Deep Kaur) Link MM/NE/KKD Courts Delhi/08.10.2015"
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 3 of 11
10. Feeling aggrieved, the petitioners challenged the impugned order on the following grounds:
(a) The impugned order was contrary to the provision of plea-bargaining contained in section 265-B of the Cr.P.C.;
(b) The petitioners appeared on every date of hearing of the application for plea-bargaining and they had no intention to delay the matter;
(c) The fact that the petitioner No. 2 is employed as a fourth class employee in the Supreme Court of India is mentioned in the application for plea-bargaining;
(d) The petitioners were entitled to withdraw their application for plea-bargaining at any stage during the proceedings for plea-bargaining;
(e) The impugned order suffers from non-application of mind and liable to be set-aside.
11. I have heard arguments of Sh. Avnish Sharma, Advocate for the petitioners and Sh. Vikas Kumar, Ld. Addl. PP for the State/ respondent and examined the trial Court record.
12. Sh. Avnish Sharma, Advocate for the petitioners submitted that the petitioners can withdraw their application for plea-bargaining at any stage of the proceedings. He submitted that the petitioners applied for plea-bargaining for quick disposal of the case. He submitted that the petitioners appeared on each and every date of hearing on the application for plea-bargaining. He submitted that the Investigating Officer of the case did not appear despite issuance of summons and bailable warrant. He submitted that the impugned order imposing cost of Rs. 10,000/- each upon the petitioners is liable to be set-aside.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 4 of 11
13. Sh. Vikas Kumar, Ld. Addl. PP for the State submitted that the trial Court did not commit any error as the petitioners delayed the trial of the case. He submitted that the application for plea-bargaining were supported by the affidavits of the parties that they applied for plea-bargaining after understanding the implications of the plea-bargaining. He submitted that the petitioner No. 2 cannot seek sentence of his choice. He submitted that the petitioners delayed the trial of the case by filing application for plea-bargaining and when the parties appeared for plea-bargaining, they sought sentence of their choice for proceedings with their applications. He submitted that the trial Court did not commit any error in imposing cost of Rs. 10,000/- each for consuming precious judicial time. He prayed for dismissal of the petition.
14. Before considering the merits of the petition, it would be appropriate to have a glance to the provision of plea- bargaining under section 265B of the Cr.P.C., as under:
"265B. Application for plea bargaining. - (1) A person accused of an offence may file application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 5 of 11 (3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), 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 and where-
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b) the Court finds that the application has been filed voluntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-
section (1).
265C. Guidelines for mutually satisfactory disposition.- In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:-
(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 6 of 11 Provided further that the accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the case;
(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.
265D. Report of the mutually satisfactory disposition to be submitted before the Court.- Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.
15. The provision of plea-bargaining was brought on the statute-book in order to enable the persons accused of offences other than an offence for which punishment of death or of imprisonment for a term exceeding 7 years has been provided, the offences against woman, or a child below the age of 14 years and the notified offences affecting the socio- economic condition of the country. The objective of plea- bargaining is the quick disposal of a criminal case.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 7 of 11
16. Plea-bargaining is a voluntary process in which the parties exercises their informed choice after mutual discussion. An accused intends to plea-bargain for a reduced sentence or compensate the victim of the offence.
17. The process of plea-bargaining must be voluntary.
18. Voluntariness, informed choice and mutuality are the main features of the process of plea-bargaining.
19. The Court has been enjoined upon to ensure the voluntary character of the process of plea-bargaining under sub-section (4) of section 265B of the Cr.P.C.
20. The Court is under a legal duty to examine the accused in camera to satisfy itself that the application was filed by the accused voluntarily. The Court must inform the accused the implications of plea of guilt and possible sentence in the case. The accused must be put to notice that the process of the plea-bargaining was voluntary and mutual and in case, his plea- bargain is accepted, he would be convicted for the offences and sentenced accordingly.
21. Once the Court is satisfied that the accused understood the nature and extent of punishment provided under the law for the offence and the application was filed voluntarily, then the Court should call the parties to work out a mutually satisfactory disposition. If, no such disposition could be worked out, the Court shall record such observation and the case will proceed from the stage such application was filed.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 8 of 11
22. From perusal of record, it is evident that the application for plea-bargaining was filed by the petitioners on 27.05.2015 before the Court of Sh. Sharad Gupta, Ld. ACMM, North-East, Karkardooma Courts, Delhi. He marked the said application to Ms. Prabh Deep Kaur, Ld. MM being First Link MM for disposal as per law for 28.05.2015 at 2.00 p.m.
23. On 28.05.2015, Ms. Prabh Deep Kaur, Ld. MM went to Tihar Jail to conduct Test Identification Parade (TIP) and therefore, the application was adjourned for 01.06.2015 at 2.00 p.m.
24. On 01.06.2015, the petitioners appeared with their counsel. Ms. Prabh Deep Kaur issued notice of the application for plea-bargaining to the complainant and Investigating Officer with the direction to file previous conviction report of the petitioners and fixed the application for plea- bargaining for 01.07.2015 at 2.00 p.m.
25. No proceedings could take place on 01.07.2015 for want of summons to the complainant and therefore, fresh notice was issued to the complainant and the Investigating Officer for 29.07.2015 at 2.00 p.m.
26. On 29.07.2015, the petitioners with their counsel were present. The Presiding Officer was on leave and the application for plea-bargaining was adjourned to 19.08.2015.
27. On 19.08.2015, the petitioners with their counsel and the complainant appeared. Investigating Officer was absent. Bailable warrant was issued against him for 16.09.2015.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 9 of 11
28. On 16.09.2015, the petitioners with their counsel and the complainant appeared. Investigating Officer did not appear despite service of bailable warrant and therefore, a notice was issued against the Investigating Officer to show cause as to why penalty of Rs. 10,000/- be not deducted from his salary. SHO, PS New Usmanpur was directed to depute any other Investigating Officer to sign the Mutually Satisfactory Disposition (MSD). The application for plea-bargaining was adjourned for 08.10.2015.
29. It is therefore, clear that the petitioners were regularly appearing before the trial Court.
30. It is further evident that the trial Court did not examine the petitioners to ascertain that the application for plea-bargaining was filed voluntarily.
31. The trial Court did not ascertain that the petitioners understood the nature and extent of the punishment provided under the law and the implication of plea of guilt.
32. In case, the petitioners were examined by the trial Court in camera to ascertain that the application was filed by the petitioners after understanding the nature and extent of punishment provided under law and implication of plea of guilt, they would have declined to proceed with their application for plea-bargaining. The Court would have reached to the conclusion that the application for plea-bargaining was not filed voluntarily and proceeded further with the case from the stage of filing of application for plea-bargaining.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 10 of 11
33. The petitioners were entitled to withdraw their application for plea-bargaining at any stage of proceedings.
34. No one can be forced to plea-bargain as it would be contrary to the spirit of section 265B of plea-bargaining. The trial Court committed gross error of law by dismissing the application for plea-bargaining with cost of Rs. 10,000/- to be deposited with Delhi Legal Service Authority, North-East District, Karkardooma Courts, Delhi by each of the petitioners.
35. Accordingly, the order dated 08.10.2015 directing each of the petitioners to deposit cost of Rs. 10,000/- with Delhi Legal Service Authority, North-East District, Karkardooma Courts, Delhi is set-aside.
36. A copy of this order be sent to Ld. trial Court alongwith trial Court record for information. The revision file be consigned to Record Room.
Announced in the open court SANJAY SHARMA th on this 17 day of November, 2015. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
Cr. Rev. No. 23/15 Lakhpat Sharma & Ors. vs. State Page No. 11 of 11