Supreme Court - Daily Orders
Vipul vs The State Of Uttar Pradesh on 5 August, 2022
Bench: Sanjay Kishan Kaul, M.M. Sundresh
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1161/2022
(Arising out of Special Leave to Appeal(Crl.)No.3114/2022)
VIPUL Appellant(s)
VERSUS
THE STATE OF UTTAR PRADESH Respondent(s)
WITH
CRIMINAL APPEAL No.1162/2022
(Arising out of Special Leave to Appeal (Crl.) No.7162/2022
arising out of Special Leave to Appeal (Crl.) Diary
No.35524/2019)
O R D E R
CRIMINAL APPEAL NO.1161/2022 (Arising out of SLP (Crl.) No.3114/2022) Leave granted.
The only reason for denying bail to the appellant was that despite being in custody for a period of 13 years and 9 months there were some other cases. We put specific query to learned counsel as to what are these cases, of what vintage, whether in this period of incarceration when he has been granted parole and whether any aggravating circumstances.
The State seems to be blissfully unaware. Signature Not Verified In view of the facts and circumstances, nothing being Digitally signed by RASHMI DHYANI Date: 2022.08.10 pointed out as to cause why the appellant should not get bail 17:21:11 IST Reason: 1 on account of any aggravating circumstance over this period of time of custody, we enlarge the appellant on bail on terms and conditions to the satisfaction of the trial Court. The Criminal appeal stands disposed of.
Pending applications stand disposed of. Criminal Appeal No.1162/2022 (Arising out of Special Leave to Appeal (Crl.) No.7162/2022 arising out of Special Leave to Appeal (Crl.) Diary No.35524/2019) Delay condoned.
Leave granted.
Heard learned counsel for the appellant who has taken us through the evidence on record. what has weighed with the High Court in rejecting the bail is the fact that the recovery was made at his behest. On our query, learned counsel for the State submits that the appellant was in custody for a period of about 7½ months during trial and the remaining period is post his conviction. He has been in custody now for about 6½ years.
There is little doubt that in the given pendency of the criminal appeals in that Court, there is a little chance of it being heard, the appeal being of vintage 2017. In view of the aforesaid facts and circumstances, the appellant is granted bail on terms and conditions to the satisfaction of the trial Court. Apart from any other condition, the appellant would be required to report to the 2 local Police Station in the forenoon of the first Monday of every month.
The criminal appeal stands disposed of.
Pending applications stand disposed of.
………………………………………………………J. (SANJAY KISHAN KAUL) ………………………………………………………J. (M. M. SUNDRESH) NEW DELHI 05th AUGUST, 2022 3 ITEM NO.22 COURT NO.4 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No.3114/2022 (Arising out of impugned final judgment and order dated 17-02-2022 in CRLMSBA No.11/2019 passed by the High Court of Judicature at Allahabad) VIPUL Petitioner(s) VERSUS THE STATE OF UTTAR PRADESH Respondent(s) (I.A. No. 48999/2022 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 49002/2022 - EXEMPTION FROM FILING O.T.) WITH Diary No(s). 35524/2019 (II) (IA No. 160590/2019 - CONDONATION OF DELAY IN FILING IA No. 69290/2020 - EXEMPTION FROM FILING AFFIDAVIT IA No. 162005/2019 - EXEMPTION FROM FILING O.T. IA No. 160591/2019 - EXEMPTION FROM FILING O.T. IA No. 162004/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) SMW(Crl) No. 4/2021 (PIL-W) MA 764/2022 in Crl.A. No. 491/2022 (II) ([FOR DIRECTIONS]) Date : 05-08-2022 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE M.M. SUNDRESH By Courts Motion For Petitioner(s) Mr. Devadatt Kamat, Sr. Adv.
Mr. Rajesh Inamdar, Adv.
Mr. Pai Amit, AOR Mr. Vasim L. Shaikh, Adv.
Mr. Mohd. Irshad Hanif, AOR Mr. Aarif Ali, Adv.4
Mr. Mujahid Ahmad, Adv.
Mr. Rizwan Ahmad, Adv.
Mr. Mohit Kumar, Adv.
Mr. Pankaj Tiwari, Adv.
Mr. Kailesh U. Mere, Adv.
Ms. Nirmala D. Borade, Adv.
Mr. Brijender Chahar, Sr. Adv.
Mr. Nagendra Singh, Adv.
Mr. Ashish Pandey, Adv.
Ms. Akansha, Adv.
Dr. Amardeep Gaur, Adv.
Mr. Ronak Karanpuria, AOR For Respondent(s) Mr. Ardhendumauli Kumar Prasad, AAG Mr. Adarsh Upadhyay, AOR Ms. Shreya Srivastava, Adv.
Mr. Ashish Madaan, Adv.
Ms. Ananya Sahu, Adv.
Mr. K. M. Nataraj, ASG Mr. Adarsh Upadhyay, Adv.
Mr. Anuj Srinivas Udupa, Adv.
Mr. Nakul Chengappa K. K., Adv.
Ms. Garima Prasad, AAG (Sr. Adv.) Mr. Ajay Vikram Singh, AOR Mrs. Priyanka Singh, Adv.
Mr. Shekhar Shrotiya, Adv.
Ms. Pranjali Goel, Adv.
Mr. Vishwa Pal Singh, AOR Mr. Shubham Singh, Adv.
Mr. Karan Thakur, Adv.
Mr. Chirag Anand, Adv.
Mr. Shubham Singh, Adv.
Mr. Ram Singh Baliyan, Adv.
Mr. Ombir Sangwan, Adv.
Mr. Vikas Gothwal, Adv.
Mr. Kedar Nath Tripathy, AOR Mr. Nikhil Goel, AOR Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv.
Mr. Sibo Sankar Mishra, AOR Mr. Niranjan Sahu, Adv.
Mr. Debabrata Dash, Adv.
Ms. Kanika Chug, Adv.
Mr. Arjun Garg, AOR 5 Mr. Shobhit Jain, Adv.
Mr. Aakash Nandolia, Adv.
Mr. Sagun Srivastava, Adv.
Mr. Gopal Jha, AOR UPON hearing the counsel the Court made the following O R D E R CRIMINAL APPEAL NO.1161/2022 (Arising out of SLP (Crl.) No.3114/2022) Leave granted.
In view of the facts and circumstances, nothing being pointed out as to cause why the appellant should not get bail on account of any aggravating circumstance over this period of time of custody, we enlarge the appellant on bail on terms and conditions to the satisfaction of the trial Court.
The Criminal appeal stands disposed of in terms of the signed order.
Pending applications stand disposed of.
Criminal Appeal No.1162/2022 (Arising out of Special Leave to Appeal (Crl.) No.7162/2022 arising out of Special Leave to Appeal (Crl.) Diary No.35524/2019) Delay condoned.
Leave granted.
In view of the aforesaid facts and circumstances, the appellant is granted bail on terms and conditions to the satisfaction of the trial Court. Apart from any other condition, the appellant would be required to report to the 6 local Police Station in the forenoon of the first Monday of every month.
The criminal appeal stands disposed of in terms of the signed order.
Pending applications stand disposed of.SWM (Crl.) No.4/2021
1. Heard learned counsel, the learned Additional Solicitor General and pursued the affidavits filed.
2. Alarmed by the huge pendency of the criminal appeals in 10 States having the maximum numbers, with a constant flow of further cases, this court passed the following Order on 15.06.2020:
“List on 29.07.2020.
The petitioner was convicted under Section 302 of the IPC and sentence to life imprisonment. The appeal preferred by him against the conviction and sentence is pending before the High Court. As the application filed by him for suspension of sentence was rejected by the High Court, the petitioner filed this Special Leave Petition seeking for release on bail. The petitioner submitted that he has already undergone three years imprisonment and there no likelihood of appeal being heard in the near future.
On such submission, by an order dated 4.11.2019, this Court observed that a situation has arisen where a large number of criminal appeals are pending in certain High Courts for long periods of time. The court also observed that expeditious hearing cannot be directed only in cases where convicts approach this Court. At the same time, the Court was of the view that the convicted persons cannot be under incarceration for an indeterminate period of time.
We have heard Mr. Tushar Mehta, learned Solicitor General, Ms. Aishwarya Bhati, learned Additional Advocate General for the State of Uttar Pradesh and Mr. Devadutta Kamat, learned senior counsel for the petitioner.7
According to the available statistics from the website of the National Judicial Data Grid [https://njdg.ecourts.gov.in/hcnjdg_public/main.php accessed on 15 June, 2020] the total number of criminal appeals in such High Courts which have been pending for 30 years or more is 14484. Criminal appeals which have been pending for over twenty years- and up-to thirty years are 33,045; criminal appeals which have been pending for over ten years, upto 20 years are 2,35,914. The following table with regard to pendency of such cases in various High Courts would throw light on the problem:
Sl. High Court 10-20 years 20-30 30 years or No. years more
1. Allahabad 88,738 19734 14,207
2. Rajasthan 22,945 5658 242
3. Madhya 28738 2602 Pradesh 5 Bombay 8474 838 8
6. Orissa 8884 832 8
7. Punjab & 19,864 317 Haryana
8. Jharkhand 19462 645 2
9. Kerala 8671 10 1
10. Gujarat 5,898 546 The above table is illustrative of the nature of the most chronic pendency in the 10 High Courts. Other High Courts have twenty or more-year-old criminal appeals (but less than 30 years old); they have not been mentioned.
These facts pose a challenge to the judicial system, inasmuch as right to speedy trial would also include the right to speedy disposal of appeals of those convicted. If such appeals are not taken up for hearing within a reasonable time, the right of appeal itself would be illusory, inasmuch as incarcerated convicts (who are denied bail) would have undergone a major part- if not whole of the period of their sentence. The other challenge is to ensure that old criminal appeals, where High Courts had earlier, in the course of proceedings, granted bail or suspension of sentence. It is in public interest- and the interests of the convicts, that such appeals too are disposed of on merits expeditiously.
The High Courts of Uttar Pradesh, Rajasthan, Madhya Pradesh, Patna, Rajasthan, Bombay and Orissa shall file affidavits submitting their plan of action for deciding the criminal appeals that have been pending before the High Courts for a long period of time. The High Courts shall, in addition to the figures and data available with them also co-ordinate with the Director General Prisons, in their respective states, to compile data with respect 8 to convicts in jails of those states, who are awaiting hearing of their appeals. While compiling such data, a suitable questionnaire, eliciting information with respect to appeal numbers, (of such convicts); the provisions under which the prisoners have been convicted; the period(s) of sentence undergone, the age(s) and gender of the prisoner/convicts, their health conditions (which of them are suffering from serious/ illnesses, shall be obtained. The state legal service authorities shall assist the DG Prisons, in drawing up suitable questionnaire, which shall be compiled and compared with the pendency of appeals.
The High Courts shall indicate, in their affidavits, the following:
(a) Total number of convicts awaiting hearing of their appeals pending before them.
(b) Segregation of single judge and Division Bench matters;
(c) The number of cases where – in such old pending cases, bail has been granted;
(d) Steps proposed to expedite hearing of appeals, including steps to prioritize hearing of cases of convicts in jail
(e) Steps proposed to trace and ensure hearing of cases of those who were granted bail, and the timeline for starting hearings
(f) Appropriate use of information technology, such as digitization of appeal records/paper books
(g) Feasibility of creation of a dedicated pool of amicus curae who would assist the court in such old matters
(h) Feasibility to creation of dedicated special benches for hearing and disposal of old cases or alternatively assigning a certain number of appeals to a large number of judges to be decided by them, regardless of which rosters they are assigned.
The above are only a few indicative steps, and shall not be considered exhaustive; the concerned High Courts are free to point out other steps and procedures they wish to adopt.
All the concerned state governments, prison authorities, state legal services authorities are directed to co-ordinate with the concerned High Courts in compiling the data.
The learned counsel appearing in this case shall also submit their proposals and suggestions relating to the adjudication of criminal appeals that have been pending for a long time in which cases, the appellants have been 9 released on bail as well as those cases where the appellants have not been released on bail. Suggestions may also be made as to the release of the appellants on bail, after completion of half the sentence.
Any other suggestions pertaining to the problems relating to the delay in disposal of the criminal appeals in the above courts may be made by the High Court as well as the learned counsel appearing in this case. The affidavits of the High Courts and suggestions/note of counsel (which shall not exceed five pages each) shall be filed at least five days in advance of the date of hearing.”
3. Taking note of the worsening situation in the docket explosion of criminal appeals an attempt was made, facilitating the release of the convicts including those whose appeals are pending despite being under incarceration for long years. A direction was issued to the State of Uttar Pradesh to formulate an acceptable policy decision.
4. The following paragraphs which are relevant in Saudan Singh v. State of UP 2022 SCC OnLine SC 697 are as under:
“5.We have also emphasized to learned counsel for the State that in reference to our observation on the last date about consideration of cases under the Uttar Pradesh Prisoners Release on Probation Rules, 1938, there should be better coordination between the States and the Registry of the High Court. Thus, for anybody who has completed 14 years of sentence, the case has to be put before the Board to be examined as per the norms. It is not appropriate that those cases lie in the High Court with sentences much beyond 14 years being served without even being examined on the question of their release under the Policy.
6.We thus call upon the High Court and the State Government to prepare a list of such of the cases where the accused have already served out 14 years of sentence and for one reason or the other, the appeal has not been heard (even if it be fault of the lawyer) and those cases should be put before the Board. It is also possible that in some of these cases, once the accused is released, the person may not at all be interested in prosecuting the appeal.
7. There may be cases where for whatever reason the 10 advocate may not be present as has been set out in the report of the High Court but if they have already completed 14 years of actual sentence, the State itself should take an appropriate stand and the learned Judge can himself pass appropriate orders to at least examine those cases for release and the absence of the advocate cannot come in the way in such a scenario.
xxx xxx xxx
9. The second category of cases can be one where the person has served out more than 10 years of sentence. In these cases also at one go bail can be granted unless there are any extenuating circumstances against him.”
5. A similar issue pertaining to the same State came up before a larger bench of this Court wherein a direction was issued to post Suo Motu Writ Petition 4/2021 along with the other pending matters with a view to avoid multiplicity of proceedings.
6. We are at present concerned with two issues of utmost importance. The first issue is on the disposal of the pending criminal cases by means other than a regular trial. The other is on the premature release of the convicts by the policies of the respective State/Union Government. In both these cases the idea is to effect decongestion in the criminal courts and the prisons.
7. State as the prosecutor, court as the adjudicator are the two principal agents in the criminal dispensation of justice. These two public institutions do have a larger role to play even after the conviction attains finality. If a crime is considered as an act of social deviance, the necessary consequence would be that of a punishment followed by reformation. A mere punishment without reformation would not serve the purpose as it might have the propensity of creating more such actions. The ultimate idea is to 11 bring the convict back to the civil society. For this purpose, innovative solutions with respect to sentencing such as community service as an alternative may also be considered by the states/Union governments in due course. PLEA BARGAINING
8. The concept of plea bargaining has a laudable objective. It is meant to facilitate all the stakeholders, assigning a specified role for the victim to move towards a resolution. It is a voluntary act leading to a satisfactory disposition of a criminal case. The consensus part is restricted to the sentencing part alone as the conviction stays on the acceptance of the guilt by the accused. Additionally, it reduces the burden of the court, the State, the victim, and the accused facing agonizing litigation, while serving the cause of justice.
9. In plea bargaining conviction is rendered on admission and therefore a case involving weak and defective investigation resulting in possible acquittal on the failure to prove beyond reasonable doubt would have the desired result.
10. The concept of plea bargaining has taken off very well, particularly in countries like the United States of America. About 90-95% of the criminal cases end with plea bargaining. However, the situation in India is unfortunately different. Hardly 1% of the cases are taken up for plea bargaining, presumably for the reason that the accused are either illiterate or reluctant to use this better option which would bring the case to a close at an earlier 12 date than expected. We do believe that it would only be appropriate to remind the stakeholders of the laudable objective in plea bargaining, compounding of offenses, and release on probation of good conduct or after admonition. For the said purpose we would like to highlight the respective provisions of the code seeking a suitable response from the States/Union Territories/Union Government.
11. Chapter XXIA deals with plea bargaining. The statement of objects and reasons took note of the huge arrears of criminal cases in various courts. Thus, the concept of pre-trial negotiations was brought into the statute by acknowledging speedy trial as a facet of justice, and the plight of those facing prolonged trial, appeal, and revision with many of them under incarceration.
S.265A CrPC:
“265A. Application of the Chapter -(1) This chapter shall apply in respect of an accused against whom—
(a) the report has been forwarded by the officer in charge of the police station under Section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or
(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204, but does not apply where such offence affects the socio-13
economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.
(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.” COMMENTS The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of section 265A, namely,-
(i) Dowry Prohibition Act, 1961.
(ii) The Commission of Sati Prevention Act, 1987.
(iii) The Indecent Representation of Women (Prohibition) Act, 1986.
(iv) The Immoral Traffic (Prevention) Act, 1956.
(v) The Protection of Women from Domestic Violence Act, 2005.
(vii) Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).
(viii) Provisions of Meat Food Products Orders, 1973 (issued under the Essential Commodities Act, 1955).
(ix) Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under Wildlife (Protection) Act, 1972.
(x) The Scheduled Castes and Scheduled Tribes (Prevention 14 of Atrocities) Act, 1989.
(xi) Offences mentioned in the Protection of Civil Rights Act, 1955.
(xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
(xiii) The Army Act, 1950.
(xiv) The Air Force Act, 1950.
(xv) The Navy Act, 1957.
(xvi) Offences specified in sections 59 to 81 and 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
(xvii) The Explosives Act, 1884.
(xviii) Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995. (xix) The Cinematograph Act, 1952.”
12. This provision amplifies the application of Chapter XXIA to both categories of cases involving the one on a report forwarded by the police officer under Section 173 of the Code and a private complaint leading to the issuance of process under Section 204. It applies only to the offenses punishable up to 7 years while the offenses affecting the socio-economic conditions of the country, committed against a woman or a child below the age of 14 years form exceptions.
S.265B:
“265B. Application for plea bargaining-(1) A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under sub-section (1) shall contain 15 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. (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 involuntarily 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).”
13. Under sub-section (1) it is well open to an accused to file an application seeking plea bargaining starting from the stage mentioned under Section 265A. This process has to be facilitated with due encouragement by the courts. Courts have a significant role to play by duly informing the accused on the availability of plea bargaining.
14. Sub-section (2) speaks of the procedure on the application filed by the court concerned which is duty bound to examine the 16 accused in camera while arriving at its subjective satisfaction on his voluntary action. It is only when it finds that an application is filed involuntarily or there exists a previous conviction for the same offense that it shall proceed further with the trial. The court is thus expected to exercise its power preferably at an earlier stage with due notice to the accused as the idea is to avoid the process of trial.
S.265C:
“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:
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.”
15. As per this section the accused, the prosecutor, and the 17 police officer who had investigated the case, and the victim are to participate in the meeting. As the conviction is rendered voluntarily, the sentence also shall follow suit but with the approval of all the participants. However, the primary role must be that of the victim, of course, under the aegis of the court.
16. The court then shall prepare a report which shall be signed by all the participants with its approval.
S.265E “265E. Disposal of the case.—Where a satisfactory disposition of the case has been worked out under Section 265D, the Court shall dispose of the case in the following manner, namely:—
(a) the Court shall award the compensation to the victim in accordance with the disposition under Section 265D 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 (20 of 1958) 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 (20 of 1958) 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-fourth of the punishment provided or extendable, as the case may be, for such offence.”
17. The above provision deals with compensation, the release of 18 the accused, and imposition of a lesser sentence, depending upon the provisions governing Section 360 of the Code and the provisions of the Probation of Offenders Act, 1958 or any other law in force providing for release of an accused are to be taken note of while disposing of the case qua the sentence.
Other Provisions “265F. Judgment of the Court.—The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court. 265G. Finality of the judgment.—The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment. 265H. Power of the Court in plea bargaining.—A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Code.
265-I. Period of detention undergone by the accused to be set off against the sentence of imprisonment.— The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.
265J. Savings.—The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter. Explanation.—For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25. 265K. Statements of accused not to be used.—Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the 19 purpose of this Chapter.
265L. Non-application of the Chapter.—Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).”
18. The judgment of the court would attain finality with no appellate remedy and the court is at liberty to exercise all its powers vested in it as available in respect of bail, trial, or other matters. A set-off allowed under Section 428 is made applicable and the provisions will have supremacy by the existence of a non-obstante clause. Even in the event the accused is given further protection by barring the statement or facts made by him to be used for any other purpose.
19. We may note, the Code being a comprehensive one, drafted with a view to helping the accused and victim has been kept dormant and used seldom by the courts.
SECTION 320 “320. Compounding of offences.—(1) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table;
TABLE
Offence Section of the Person by whom
Indian Penal offence may be
Code applicable compounded
1 2 3
Uttering words, etc., with 298 The person whose
deliberate intent to wound religious feelings
the religious feelings of any are intended to be
person. wounded.
20
1 2 3
Voluntarily causing hurt. 323 The person to whom
the hurt is caused.
Voluntarily causing hurt on 334 Ditto.
provocation.
Voluntarily causing grievous 335 Ditto.
hurt on grave and sudden
provocation.
Wrongfully restraining or 341, The person restrained
confining any person. 342 or confined.
Wrongfully confining a person 343 The person confined.
for three days or more.
Wrongfully confining a person 344 Ditto.
for ten days or more.
Wrongfully confining a person 346 Ditto.
in secret.
Assault or use of criminal 352, The person assaulted
force. 355, or to whom criminal
358 force is used.
Theft. 379 The owner of the
property stolen.
Dishonest misappropriation of 403 The owner of the
property. property
misappropriated.
Criminal breach of trust by a 407 The owner of the
carrier, wharfinger, etc. property in respect
of which the breach
of trust has been
committed.
21
TABLE
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
1 2 3
Uttering words, etc., with 298 The person whose
deliberate intent to wound religious feelings
the religious feelings of any are intended to be
person. wounded.
Causing hurt. 323, 334 The person to whom
the hurt is caused.
Wrongfully restraining or 341, 342 The person
confining any person. restrained or
confined.
Assault or use of criminal 352, 355, The person
force. 358 assaulted or to
whom criminal force
is used.
Mischief, when the only loss 426, 427 The person to whom
or damage caused is loss or the loss or damage
damage to a private person. is caused.
Criminal trespass. 447 The person in
possession of the
property trespassed
upon.
House-trespass. 448 Ditto.
Criminal breach of contract 491 The person with
of service. whom the offender
has contracted.
Adultery. 497 The husband of the
woman.
Enticing or taking away or 498 Ditto.
detaining with criminal
intent a married woman.
Defamation, except such cases 500 The person
as are specified against defamed.
Section 500 of the Indian
Penal Code (45 of 1860) in
Column 1 of the Table under
sub-section (2).
22
1 2 3
Printing or engraving matter, 501 Ditto.
knowing it to be defamatory.
Sale of printed or engraved 502 Ditto.
substance containing
defamatory matter, knowing it
to contain such matter.
Insult intended to provoke a 504 The person
breach of the peace. insulted.
Criminal intimidation except 506 The person
when the offence is intimidated.
punishable with imprisonment
for seven years.
Act caused by making a person 508 The person against
believe that he will be an whom the offence
object of divine displeasure. was committed.”.
Dishonestly receiving stolen 411 The owner of the
property knowing it to be property stolen.
stolen.
Assisting in the concealment 414 The owner of the
or disposal of stolen property stolen.
property, knowing it to be
stolen.
Cheating. 417 The person
cheated.
Cheating by personation. 419 The person
cheated.
Fraudulent removal or 421 The creditors who
concealment of property, are affected
etc., to prevent distribution thereby.
among creditors.
Fraudulent preventing from 422 The creditors who
being made available for his are affected
creditors a debt or demand thereby.
due to the offender.
Fraudulent execution of deed 423 The person
of transfer containing false affected thereby.
statement of consideration.
Fraudulent removal or 424 The person
concealment of property. affected thereby.
23
1 2 3
Mischief, when the only loss 426, 427 The person to whom
or damage caused is loss or the loss or damage
damage to a private person. is caused.
Mischief by killing or 428 The owner of the
maiming animal. animal.
Mischief by killing or 429 The owner of the
maiming cattle, etc. cattle or animal.
Mischief by injury to works 430 The person to whom
of irrigation by wrongfully the loss or damage
diverting water when the only is caused.
loss or damage caused is loss
or damage to private person.
Criminal trespass. 447 The person in
possession of the
property trespassed
upon.
House-trespass. 448 The person in
possession of the
property trespassed
upon.
House-trespass to commit an 451 The person in
offence (other than theft) possession of the
punishable with imprisonment house trespassed
upon.
Using a false trade or 482 The person to whom
property mark. loss or injury is
caused by such use.
Counterfeiting a trade or 483 The person to whom
property mark used by loss or injury is
another. caused by such use.
Knowingly selling, or 486 The person to whom
exposing or possessing for loss or injury is
sale or for manufacturing caused by such use.
purpose, goods marked with a
counterfeit property mark.
Criminal breach of contract 491 The person with
of service. whom the offender
has contracted.
Adultery. 497 The husband of the
woman.
24
1 2 3
Enticing or taking away or 498 The husband of the
detaining with criminal woman and the
intent a married woman. woman.
Defamation, except such cases 500 The person
as are specified against defamed.
Section 500 of the Indian
Penal Code (45 of 1860) in
column 1 of the Table under
sub-section (2).
Printing or engraving matter, 501 The person
knowing it to be defamatory. defamed.
Sale of printed or engraved 502 The person
substance containing defamed.
defamatory matter, knowing it
to contain such matter.
Insult intended to provoke a 504 The person
breach of the peace. insulted.
Criminal intimidation. 506 The person
intimidated.
Inducing person to believe 508 The person
himself an object of divine induced.
displeasure.
(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table;
TABLE
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
1 2 3
Causing miscarriage. 312 The woman to whom
miscarriage is caused
25
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
Voluntarily causing 325 The person to whom
grievous hurt. hurt is caused.
Causing hurt by doing an 337 The person to whom
act so rashly and hurt is caused.
negligently as to endanger
human life or the personal
safety of others.
Causing grievous hurt by 338 The person to whom
doing an act so rashly, hurt is caused.
and negligently as to
endanger human life or the
personal safety of others.
Assault or criminal force 357 The person assaulted
in attempting wrongfully or to whom the force
to confine a person. was used.
Theft by clerk or servant 381 The owner of the
of property in possession property stolen.
of master.
Criminal breach of 406 The owner of the
trust, where the value property in respect of
of the property does which the breach of
not exceed two thousand trust has been
rupees. committed.
Criminal breach of trust 408 Ditto.
by a clerk or servant,
where the value of the
property does not exceed
two thousand rupees.
Cheating a person whose 418 The person cheated.
interest the offender was
bound, either by law or by
legal contract, to
protect.
Cheating and dishonestly 420 The person cheated.
inducing delivery of
property or the making,
alteration or destruction
of a valuable security.
Marrying again during the 494 The husband or wife
26
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
lifetime of a husband or of the person so
wife. marrying.
Defamation against the 500 The person defamed.
President or the Vice-
President or the Governor
of a State or the
Administrator of a Union
territory or a Minister in
respect of his public
functions when instituted
upon a complaint made by
the Public Prosecutor.
Uttering words or sounds 509 The woman whom it was
or making gestures or intended to insult or
exhibiting any object whose privacy was
intending to insult the intruded upon.
modesty of a woman or
intruding upon the privacy
of a woman.
TABLE
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
1 2 3
Voluntarily causing grievous 325 The person to whom
hurt. hurt is caused.
Voluntarily causing grievous 335 Ditto.
hurt on grave and sudden
provocation.
Causing hurt by doing an act 337 Ditto.
so rashly and negligently as
to endanger human life or the
personal safety of others.
27
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
Causing grievous hurt by 338 Ditto.
doing an act so rashly, and
negligently as to endanger
human life or the personal
safety of others.
Wrongfully confining a 343 The person confined.
person for three days or
more
Wrongfully confining for 344 Ditto.
ten or more days.
Wrongfully confining a 346 Ditto.
person in secret.
Assault or criminal force to 354 The woman assaulted
woman with intent to outrage to whom the criminal
her modesty. force was used.
Assault or criminal force in 357 The person assaulted
attempting wrongfully to or to whom the force
confine a person. was used.
Theft, where the value of 379 The owner of the
property stolen does not property stolen.
exceed two thousand
rupees.
Theft by clerk or servant of 381 Ditto.
property in possession of
master, where the value of
the property stolen does not
exceed two thousand rupees.
Dishonest misappropriation 403 The owner of the
of property. property
misappropriated.
Criminal breach of trust, 406 The owner of the
where the value of the property in respect
property does not exceed of which the breach
two thousand rupees. of trust has been
committed.
Criminal breach of trust 407 Ditto.
by a carrier, wharfinger,
28
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
etc., where the value of
the property does not
exceed two thousand
rupees.
Criminal breach of trust by a 408 Ditto.
clerk or servant, where the
value of the property does
not exceed two thousand
rupees.
Dishonestly receiving 411 The owner of the
stolen property, knowing property stolen.
it to be stolen, when the
value of the stolen
property does not exceed
two thousand rupees.
Assisting in the 414 The owner of the
concealment or disposal of property stolen.
stolen property, knowing
it to be stolen, where the
value of the stolen
property does not exceed
two thousand rupees.
Cheating. 417 The person cheated.
Cheating a person whose 418 Ditto.
interest the offender was
bound, either by law or by
legal contract, to protect.
Cheating by personation. 419 Ditto.
Cheating and dishonestly 420 Ditto.
inducing delivery of property
or the making, alteration or
destruction of a valuable
security.
Fraudulent removal or 421 The creditors who
concealment of property, are affected
etc., to prevent thereby.
distribution among
creditors.
29
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
Fraudulent preventing from 422 Ditto.
being made available for
his creditors a debt or
demand due to the
offender.
Fraudulent execution of 423 The person affected
deed of transfer thereby.
containing false statement
of consideration.
Fraudulent removal or 424 Ditto.
concealment of property.
Mischief by killing or 428 The owner of the
maiming animal of the animal.
value of ten rupees or
upwards.
Mischief by killing or 429 The owner of the
maiming cattle, etc., of cattle or animal.
any value or of any other
animal of the value of
fifty rupees or upwards.
Mischief by injury to 430 The person to whom
works of irrigation by the loss or damage
wrongfully diverting water is caused.
when the only loss or
damage caused is loss or
damage to private person.
House-trespass to commit 451 The person in
an offence (other than possession of the
theft) punishable with house trespassed
imprisonment upon.
Using a false trade or 482 The person to whom
property mark. loss or injury is
caused by such use.
Counterfeiting a trade or 483 The person whose
property mark used by trade or property
another. mark is
counterfeited.
Knowingly selling, or 486 Ditto.
30
Offence Section of Person by whom
the Indian offence may be
Penal Code compounded
applicable
exposing or possessing for
sale or for manufacturing
purpose, goods marked with
a counterfeit property
mark.
Marrying again during the 494 The husband or wife
lifetime of husband or of the person so
wife. marrying.
Defamation against the 500 The person defamed.
President or the Vice-
President or the Governor
of a State or the
Administrator of a Union
territory or a Minister in
respect of his conduct in
the discharge of his
public functions when
instituted upon a
complaint made by the
Public Prosecutor.
Uttering words or sounds 509 The woman whom it
or making gestures or was intended to
exhibiting any object insult or whose
intending to insult the privacy was intruded
modesty of a woman or upon.
intruding upon the privacy
of a woman.
(3) When an offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) or where the accused is liable under Sections 34 or 149 of the Indian Penal Code (45 of 1860) may be compounded in like manner.
(4)(a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf, may, with the permission of the Court compound such offence. 31
(b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the consent of the Court compound such offence.
(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard. (6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this section. (7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.
(8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
(9) No offence shall be compounded except as provided by this section.”
20. As could be seen, a spate of sections punishable under the IPC are made available for compounding. Unfortunately, even this provision has not been put into use. Compounding is to be made obviously between the complainant and the accused. Even here the courts are extremely reluctant to put the provision to use, though warranted only by consent.
SECTION 360 “360. Order to release on probation of good conduct or after admonition.—(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any 32 woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour:
Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such 33 Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of Sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.”
21. Section 360 pertains to an order after conviction, to be passed by the court after admonition, facilitating a release and also probation of good conduct. It is to be exercised on two categories of persons. The first category consists of persons attaining 21 years and above with the proposed punishment for a term of 7 years or less. While the other for a larger term except punishable with death or imprisonment for life. This is made 34 applicable to a convict aged under 21 years or any woman. The court has to weigh the age, character and antecedent of the convict with the circumstances leading to the offense committed. If satisfied, it can release the convict on entering into a bond while a direction to keep the peace and maintain good behaviour can be ordered during the said period. As discussed, this provision can be pressed into service while dealing with Chapter XXIA other than convicting a person after trial. Like the other two provisions involving plea bargaining and compounding, Section 360 of the Code is also a forgotten one.
22. On the aforesaid analysis, we would call upon all those States already represented before us and the others to whom we would like to issue notices to respond.
REMISSION
23. In the light of the order passed by us in Saudan Singh v. State of UP 2022 SCC OnLine SC 697 we would like to hear the responses from all the States/UTs on the policy governing remission. The idea is to arrive at uniformity on certain issues. We would also like them to furnish the particulars of cases pending for more than 10 years and 14 years respectively with the data pertaining to the convicts under incarceration.
24. We have put to Mr. K. M. Nataraj, learned Additional Solicitor General, that when the country is celebrating 75 years of Azadi Ka Amrit Mahotsav, it is an appropriate time to look to the issue of accused who have been incarcerated for a long period of time or who may be from weaker economic and social sections of society with a 35 single incident involved, and as to what administrative orders can be issued in such a scenario to give relief to these persons may also be explored.
25. The clogging of the Courts by the criminal matters on all hues of various vintages is an important aspect. We consider it appropriate to put it to the Government of India, for that matter for discussion with the States as to whether in offences where period in custody before the High Court has acceded a certain percentage of the maximum sentence say one-third or forty percent and the person is willing to submit a bond of good behaviour, those cases can be closed in one go after scrutiny so that the trial Courts are unburdened of these cases and are able to concentrate on more heinous cases. We say so in the context that though plea bargaining has been introduced in the provisions of CrPC, somehow it has not worked because the social stigma of conviction may be preventing the accused from accepting the bail and accepting a plea-bargaining position. In fact, we do not even know in how many cases is the availability of the plea bargain remedy put to the accused and would like to say that the Trial Courts must use this provision usefully.
26. An out-of-the-box thinking is required at least as a one-time measure to unclog the trial Courts and other aspects explored even for matters pending in appeal but this can be used as a one-time measure where the conviction has not taken place, the trial is pending, then the trial Court where cases may be upto 7 years or 10 years maximum sentence, single episode cases, not a multiple episode cases, it can be put to accused that they have served 36 substantive substance, and on the basis of good behaviour these categories can be considered.
27. The learned Additional Solicitor General on our query submitted that on the sentiments expressed by the Hon’ble Prime Minister of India in the recently concluded “First District Legal Services Authorities Meet, 2022” held under the aegis of the National Legal Services Authority, a scheme is under contemplation and would apprise the Court on the next date of hearing.
28. Learned Additional Solicitor General will report on both these aspects by the next date.
29. The Registry is directed to issue notices to all the State Governments/UTs and the High Court’s other than the ones represented before us, indicating the date of hearing. Affidavits will have to be filed by 05.09.2022 after duly serving the learned Additional Solicitor General and Mr. Gaurav Agrawal whom we appoint as amicus curiae for the present case as well, as he is functioning in the said capacity, pertaining to connected issues qua by the criminal courts on behalf of National Legal Services Authority.
30. A copy of the order to accompany the notice to the Union Government, State Governments/Union Territories, and the High Courts.
31. List on 14th September, 2022.
Misc. Application No. 764/2022 in Crl.A. No. 491/2022 It appears from submission of the State counsel and the High Court that they would like to reconcile the figures as there is 37 apparently a discrepancy in respect of what was stated on 25.7.2022.
Registry to look into as to why one more matter dealing with the Allahabad High Court being Writ Petition (Crl.) No.170/2022 was not listed today as accordingly to the learned counsel for the High Court that is also to be listed along with these matters. List on 14th September, 2022.
(RASHMI DHYANI PANT) (POONAM VAID) COURT MASTER COURT MASTER
(Signed order is placed on the file) 38