To Err Is Human ; To Forgive Is Divine

October 24, 2014 - admin

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Published by Advocate John S. Ralph

The article PLEA BARGAINING – A MISSION THAT WOULD FAIL published in 2007 (3) KLT Journal Section P.26 has considered the introduction of plea bargaining in Indian Criminal Judicial System from many angles, but unfortunately in a pessimistic manner !

     Of course, one of the reasons for the introduction of plea bargaining is reducing the pendency in criminal courts. But at the same time it has a moral, social, religious and philosophical side of giving pardon to the accused by the victim with a view to reform the delinquent.

     In some countries where Islamic law is being followed, the near relatives of the deceased can save the accused from the gallows and in turn the accused should compensate them through blood money. Barring the barbarian nomenclature of the system of paying blood money, it has some moral, social and religious purposes. It is based on the moral theory of “to err is human ; to forgive is divine ”  The sublime object of every religion is an attempt to make its disciples to make them mature themselves to forgive the sins done against them. Religions are social codes of conduct for the betterment of society. Laws are on the same footing. So, what religious codes are trying to achieve through pardon, if can be achieved through the criminal courts, it will tend to create harmony in the society. Of course plea bargaining in India is applicable only to lesser offences.

   Take the example of a fight between two neighbors. It will always be better for the parties to have a settlement through the plea bargaining system rather than sending the offender to the jail for a couple of years, for the sole reason that it will only tend to create another family feud. The same applies even if the accused is acquitted for the reason that the injured will loose faith in the judicial system which acquitted the person who caused hurt to him and the frustrated mind of the victim will wait for a chance to retaliate. But when the matter is settled through a plea bargaining, both can have peace of mind. Especially for the victim who can believing that the accused is set at liberty by his mercy !

       Recently, in Delhi a woman was raped and her husband was murdered in front of her. A group of young social activists were able to make the victim pardon the accused. She visited the accused in prison while he is undergoing the life sentence. Hearing her words of consolation, the prisoner broke down emotionally and went into an uncontrollable sob. What else reform is necessary for a hardent delinquent ?!

   The glaring features of the newly introduced chapter XXI-A in Cr.P.C are

(1) there should be a “ Mutually satisfactory disposition” {265-C} Which necessarily means that the victims should consent for the settlement.

(2) the court “Shall award compensation” {265-E(a) } So that every victim will be compensated.

(3) the Probation of offenders act will be applied to the offender  {265-E (a) & (b) } So that the court can ensure that the accused will not commit any offence in the period of bond which may be up to three years.

(4) it apples only to first offenders and not to habitual offenders    { 265-B (4)(b) } which means that the court is giving the first offender an opportunity to reform.

     All these factors point out to the undoubted proposition that the chapter is meant for reformation of the offender on the one hand and compensating the victim on the other hand. Any other unwanted apprehensions of accused persons “walking away with flee bite sentences” are unwarranted.

Hence the pessimistic apprehensions expressed in the article cited supra which concludes that the mission ( the mission of plea bargaining) would fail is a misapprehension.

     The learned author in Para 3 of his article observed that “ A lawyer will always consider his professional interest first, therefore he will never advice to finish the case in the first rung” There may be few lawyers who are interested in prolonging the matter. But a generalization to that effect, that too from a judicial officer ( the author) was so unfortunate. The interest of the lawyer is always to have a speedy disposal of the matter if it can be done for the interest of his client. The lawyers as a class should also contribute to a speedy disposal of each and every case and thereby ensure that the pendency in courts is reduced to a minimal level. Then only they can expect quality judgments from the bench. If the bench is over burdened with workload, obviously it won’t get time to meticulously study the case and case law on the subject and as a corollary the quality of the judgments and administration of justice will be abridged. So reducing the workload of the bench is and should be the Professional Interest of the Lawyer and not in dragging the matter as the learned author observed.

To conclude, it is not the accused alone who is benefited by the newly enacted provisions for plea bargaining. The victims, the administration of justice and through that the society at large is the beneficiaries of it.