BLOCK 3 TRIAL PROCESS

In this block we will introduce you how the rights of victims and accused are safeguarded
during the trial process of criminal justice administration. In this context we will examine
what are the protective provisions given in the Code of Criminal Procedure, Evidence Act
and Indian Penal Code. We will also elaborate what measures have been suggested by the
judiciary, law commission and other committees on administration of criminal justice in
India.
In the first unit, we will explain the rights of accused as protected by Constitution of
India and other procedural laws. We will also discuss rights of legal consultation and
Legal Aid as secured to the accused by the legislature and judiciary.
In the second unit we will introduce you to compensatory jurisprudence and its
legislative framework in India and other countries. Recently Law Commission of India
has come out with a compensatory scheme and judiciary has also played a vital role in
providing solace to the victims of various crimes. We will explain all these recent
developments in this unit.
As in other countries provisions regarding “Plea Bargaining” has been introduced in india
by incorporating a new Chapter XXIA by the Code of Criminal Procedure,(Amendment)
Act, 2005. Now an accused in a criminal case can get his sentence reduced by pleading
guilty and paying compensation if required. This Amendment will go a long way in
reducing burden on courts and expediting the process of criminal justice in India. In the
third unit we will explain both advantages and disadvantages of introducing plea
bargaining in India.
Fourth unit covers provisions regarding acquittal and conviction on plea of guilty as
given in the Code of Criminal Procedure (Cr.P.C.). In this unit we will also discuss
general provisions regarding judgments of acquittal and conviction and principles
developed over the years by the judiciary.
Course 3 block 3
UNIT 1 RIGHTS OF ACCUSED

Structure
1.1 Introduction
1.2 Objectives
1.3 Constitutional Rights of the Accused
1.4 Procedural Safeguards to the accused
1.5 Rights to legal consultation and Legal Aid
1.6 Summary
1.7 Terminal questions
1.8 Answers and Hints
1.9 References and Suggested Readings

1.1 Introduction
With the rise of concerns for human rights, International Conventions have included the basic
rights of an accused and have made it mandatory for signatory countries to follow them
stringently. Any law interfering with the basic privileges would go against the notions of
liberty and humanity. Some of these aspects have been included in the Universal
Declaration of Human Rights, 1948 (UDHR). Article 3 of UDHR declares that “Everyone
has the right to life, liberty and security of person” The same principle has been reiterated
emphatically in Article 21 of the Constitution of India. It is matter of common knowledge and
experience that the principle of liberty is being violated everywhere, and by those very people
who are supposed to protect it. In order to fill the gap between theory and practice, the legis-
lators have provided for legal provisions to secure the adequate implementation of the rights
of accused. In this Unit we will discuss the Constitutional provisions regarding liberty and
protection of human rights of the accused. These constitutional provisions have been given
concrete shape by the Code of Criminal Procedure which confers a number of rights and
liberties upon an accused, which implies corresponding duties on the arresting authorities.
Apart from analyzing the constitutional provisions, this unit shall also cover the various rights
awarded to the accused persons by the Code of Criminal Procedure, Indian Penal Code and
Evidence Act under different heads dealing specifically with the rights at the time of arrest,
the post arrest rights, and the right of legal aid and consultation. The present unit also
incorporates the recent amendments incorporated in the Cr. P.C., which has affected a
number of changes to the existing provisions regarding the rights of the accused along with
recent case laws to analyse their impact on the current law on the subject.
1.2 Objectives
After going through this Unit, you shall be able to:
• Analyse the constitutional rights of the accused
• Identify various rights of the accused in substantive law
• Identify various safeguards available to the accused in procedural laws
• Understand right of accused to legal consultation and legal aid
• Analyse how judiciary has interpreted various provisions to secure the rights of the
accused

1.3 Constitutional Rights of the Accused

a) Presumption of Innocence
The basic principle of criminal law jurisprudence that an individual is presumed to be
innocent till the contrary is proved against him has been enshrined in Article 21 of Indian
Constitution along with Article 14(2) of the International Covenant of Civil and Political
Rights, 1966. Article 11 of the Universal Declaration of Human Rights declares that
Everyone charged with a penal offence has the right to be presumed innocent until proven
guilty according to law in a public trial at which he has had all the guarantees necessary for
his defense.
Section 101 of the Indian Evidence Act casts a reasonable burden upon the prosecution to
prove the case against the accused, as every accused has the right to have the benefit of
presumption of innocence till his guilt is proved beyond reasonable doubt.
b) Right to Fair Trial
The most important principle that no person shall be deprived of his life and liberty except
according to the procedure established by law has been enshrined in Article 21 of the
Constitution, whose scope has been extended by judicial interpretation by the Supreme Court.
It gives protection not only against executive action but also against legislation. This
principle is also contained in Article 9 of the International Covenant on Civil and Political
Rights 1966.
Article 21 implies some inalienable rights for all people including the accused and the
condemned. To reinforce the effect of Article 21, Article 20 and 22 specifically provide for
certain express rights in respect of arrest, detention and conviction for offences. The
European Convention for the Protection of Human Rights and Fundamental Freedoms has
incorporated this right as a basic human right and states in Article 6(1) that "every person
charged has a right to fair trial" and in Article 6(2) that "everyone charged with a criminal
offence will be presumed to be innocent until proven guilty according to law."
Moreover, the judiciary through its decisions has laid down several provisions guaranteeing
many more rights to the accused as well as to the convicts securing their right to live with
dignity. Such rights include prohibition of inhuman prison practices such as solitary
confinement1, handcuffing2, and torture3. Prisoners also have other rights like right to medical
attention4, free legal aid5, speedy trial6, fair trial7 to get paid for their work in prisons8 and the
right to get bail after twenty-four hours in police custody9 etc. A number of landmark
judgments such as Sunil Batra v. Delhi Administration10 and Charles Sobhraj v. Superinten-
dent, Central Jail, Tihar, New Delhi11, D. K. Basu v. State of West Bengal12 etc. have further
widened the ambit of the rights of the accused. The accused has also been given right to
appeal in cases of conviction (Articles 132(1), 134(1) and 136(1) of the constitution)13 Right
to fair trial secures that the accused has right to produce defence witnesses14.Besides, an
accused shall be tried by an independent and impartial judge15 and he must have right to get
copy of the judgment when sentenced to imprisonment.16
c) Right Against Ex-Post Facto Operation of Criminal Law

1
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : 1978 Cri LJ 1741
2
Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535 : 1980 Cri LJ 930.
3
Rakesh Kaushik v. B.I. Vig., Superintendent, Central Jail, New Delhi* AIR 1981 SC 1767.
4
Sec. 54. Code of Criminal Procedure, 1973.
5
M. H. Hoskot v. State of Maharashtra, AIR 1978 SC 597, See Section 304, Cr. P.C.
6
Sukanraj v. State ofRajasthan, AIR 1967 Raj 267; Shivanarayan v. State of Madras, AIR 1967 SC
986
7
Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.
8
P. B. Vijay Kumar v. State of Andhra Pradesh, AIR 1988 AP 295
9
Article 22(2), Constitution of India, 1950.
10
AIR 1978 SC 1675 : 1978 Cri LJ 1741.
11
AIR 1978 SC 1514 : 1978 Cri LJ 1534.
12
AIR 1997 SC 610 : 1997 Cri LJ 743.
13
See also Ss. 351, 374, 379 & 380 Cr.P.C.
14
See Section 243 of Cr.P.C.
15
See section 479 of Cr.P.C.
16
See section 363 of Cr.P.C.
The second principle is that no person can be accused and convicted of an offence for an act,
which was not an offence under the law in force on the date when it was committed. This is a
guarantee against ex-post facto operation of Criminal Law. This principle has been enshrined
in Article 20(1) of the constitution of India and Article 11(2) of the Universal Declaration of
Human Rights which says that “No one shall be held guilty of any penal offence on account
of any act or omission, which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence was committed”.
Article 20 (1) specifically lays down that no person shall be convicted of an offence which
has not been declared so by a law in force, and if a person is convicted of an offence, he
cannot be subjected to a more stringent punishment than what has been specified by the law
having force at that given time.
d) Protection against Double Jeopardy
The third important principle in ensuring Human Rights to the accused is the 'Protection
against double jeopardy' – that is no person can be punished for the same offence twice. This
has been enshrined in the Indian Constitution in Article 20 (2) which lays down that no
person can be prosecuted and convicted for the same offence more than once. This provision
also finds mention in the Code of Criminal Procedure (hereinafter referred to as Code) in
Section 300, which says that if a person has been either acquitted or convicted by a Court of
competent jurisdiction, he cannot be tried for the same offence again, nor for another offence
on the same facts. However, if the consequences of the act tried for, constitute a separate and
distinct offence, he may be tried for the consequent offence if it be established that the act
had not resulted in the consequences at the time when the earlier trial had-taken place, or that
the Court trying him of the previous offence was unaware of the consequences of his act.
e) Immunity against Self-Incrimination Article 20(3) of the Constitution
Right against self incrimination as envisaged in Article 20(3) of the Constitution of India is
fundamental right of an accused to; remain silent to questions relating to the offence alleged
against him. This privilege has been conferred upon by the Doctrine of Presumption of
Innocence, which is considered as a cardinal principal in the administration of criminal
justice in all countries. This principle has been accommodated in the Code under different
sections like Section 313(2), which lays down that the accused shall not be administered oath.
This provision follows from the principle tenet of criminal law that the burden of proof in all
criminal cases is on the prosecution. Hence, the accused cannot be compelled to be a witness
against himself. However, if in course of examination, the accused gives some answers which
may be used as evidence against him, the prosecution is not barred from using them in course
of the trial. Also, there is no bar against compelling the accused to produce documentary or
real evidence which may be used against him in course of the trial.17
The Indian Constitution guarantees some fundamental rights to the citizens against State,
which represent the basic value of a civilized society and so are given paramount importance.
No law, ordinance, custom, usage or administrative order can abridge one's fundamental
rights. There are two fundamental rights under the Constitution, which have acquired the
status of non-derogable human rights and are contained in Articles 20 and 21.
The Constitutional rights under Article 20 prohibit ex-post facto operation of criminal law
and confer immunity against double jeopardy and protection against self-incrimination. Since
the nature of these rights is non-derogable, they cannot be suspended at any time, not even
during an Emergency by virtue of Article 359.18
In its 180th report issued in May 2002, the Law Commission of India has stated un-
equivocally "To draw an adverse inference from the refusal to testify is indeed to punish a
person who seeks to exercise his right under Art. 20(3). "
When Article 20 of the Constitution came up for discussion in the Constituent Asseirrbly on
2nd. 3rd and 6th December 1948; there was not a single voice of dissent in the phraseology of
the Article. Even legal luminaries like Alladi Krishnaswami Iyer and K.M. Munshi agreed on
the principle that right against self-incrimination should, be made a fundamental right without
any restriction. International Covenant on Civil and Political Rights, to which India is a
signatory, also states in Article 14(3)(g) that an accused has the right "not to be compelled to
testify against himself or to confess guilt."
Self Assessment Questions
1. Discuss Constitutional rights of the accused.
………………………………………………………………..
……………………………………………………………………

17
See Sections 51 to 53, Code of Criminal Procedure, 1973. See also Sections 8 and 9 of the Cr. P.C.
(Amendment) Act, 2005, which have amended Section 53 of the existing Code.
18
Article 359(1) Suspension of the enforcement of the. rights conferred by Part III during
emergencies: Where a Proclamation of Emergency is in operation, the President may by order
declare that the right to move any Court for the enforcement of such of [the rights conferred by Part
III (except Articles 20 and 21)] as may, be mentioned in the order and all proceedings pending in any
Court for/the enforcement of the rights so mentioned shall remain suspended for the period during
which the Proclamation is in force or for such shorter period as may be specified in the order.
2. How Indian judiciary has interpreted constitutional rights guaranteed to the
accused?
……………………………………………………………………………………….
………………………………………………………………………………………

1.4 Procedural Safeguards to the accused

The Criminal Procedure Code (CrPC) expressly lays down a number of provisions relating to
the rights of the accused at the time of arrest and during the pendency of the trial. Indian
Penal Code (IPC) and Evidence Act also make some provisions in this regard. This section
will deal with those rights which the accused is entitled to at the time of arrest and after his
arrest has been affected under the Code. These rights are of extreme essence for the ends of
justice to be met.
a) At the Time of Arrest
No arrest can be made because it is lawful for the police officer to do so. The police officer
must be able to justify the arrest.19 Section 46 of the Code lays down the procedure to be
followed to affect the arrest of a person. Arrest being a restraint of liberty of a person, it can
be effected by actually contacting or touching the body of such person or by his submission
to the custody of the person making the arrest20. Since in most cases, there is no submission
of the arrestee by word or action, actual contact is required to affect an arrest21. However,
where a person confesses to the police officer of having committed an offence it shall amount
to a submission to the custody of the police officer by the person and there is no need for
touching in such a case22. Sub-section (2) of the section says that the arresting authority may
use all reasonable means to affect such arrest, subject to the condition that he is prohibited to
use such force as well cause death to such person, who is not accused of an offence
punishable with death or imprisonment for life. Here, the intention of the framers of the Code
is very clear that the amount of force used to affect the arrest should be reasonable, and any
deviation from this reasonability test will amount to violation of the law. By an amendment to
the Code in 2005, a special provision has been laid down to affect the arrest of a woman.
Section 6 of the Amendment Act has added an additional clause 4 to Section 46 of the

19
Joginder Kumar v. State of U.P. (1994) 4SCC 260
20
Pillai. K.N.C. (rev.) (2004) R. V. Kelkar's Criminal Procedure, 4th edition, Lucknow, Eastern Book
Company, p.66.
21
Thanil Victor v. State, 1991 Cri LJ 2416 (Mad); Har Mohan Lal v. Emperor, 30: Cri LJ 128.
22
Bharose Ram Dayal v. Emperor, AIR 1911 Nag 86.
existing Code, which says that "save in exceptional circumstances, no woman shall be
arrested after sunset and before sunrise, and where such exceptional circumstances exist, the
woman police officer shall, by making a written report, obtain the prior permission of the
Judicial Magistrate of the First Class within whose local jurisdiction the offence is committed
or the arrest is to be made". Thus, there is an express bar on the police to affect the arrest of a
woman between sunset and sunrise23.
Moreover, it has been laid down that the arrested person cannot be subjected to unreasonable
restraint and any restraint in excess of what is required to prevent his escape shall be deemed
unlawful24. The Malimath Committee Report had recommended that a police officer carrying
out an arrest shall prepare a memo of arrest at the time of arrest, which shall be attested by at
least one person, who may be either a member of the family of the arrestee, or a respectable
member of the locality from where the arrest has been made25. In order to prevent arbitrary
action, Section 44 of the Police Act, 1861, requires the arresting officer to maintain a diary
recording all the particulars of the arrest, including the articles seized at the time of arrest and
subsequent to it.
b) Safeguards against Search of the Person, Property or Belongings of the Accused
Even regarding search, the Code lays down certain procedure to be followed, which has been
covered under Section 51 of the Code. (See also Ss. 93, 94, 97, 100(4) to (8) and S. 165 of
Cr.P.C.)Section 51(2) lays down that if a woman needs to be searched, the search must be
done by another woman with strict regard to decency. Also it has laid down that if a search is
to be conducted in a house which is under the occupation of a female, who according to her
custom does not appear in public, she must be served a prior notice stating the proposed
search thereby affording her an opportunity to withdraw herself before the search is
conducted. Though the Code is silent on the presence of witnesses at the time of conducting
the search. Section 44 of the Police Act. 1861 impliedly requires the police officer to search a
person in the presence of witnesses, and mention the full particulars of the search in a Police
diary.
c) Right Against Torture
Some protective provisions are contained in the Indian Penal Code, which seek to punish
violation of right to life. Section 220 of IPC provides for punishment to an officer or

23
This provision is modeled on the 84th Law Commission Report Recommendation
24
Section 49. Code of Criminal Procedure, 1973.
25
Malimath Committee Report on Reforms on the Criminal Justice System, (2003) p. 48.
authority who detains or keeps a person in confinement with a corrupt or malicious motive.
Sections 330 and 331 of IPC provide for punishment of those who inflict injury or grievous
hurt on a person to extort confession or information in regard to commission of an offence.
Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in
order to induce him to confess the commission of a crime or to induce him to point out places
where stolen property is deposited. Section 330, therefore, directly makes torture during
interrogation and investigation punishable under the Indian Penal Code. Prosecution of the
offender is an obligation of the State in case of every crime. Section 25 of the Evidence Act
also provides that no confession made to a police officer, shall be, proved as against a person
accused of any offence.
d) Right to Know the Grounds of Arrest
The right to be informed of the grounds of arrest is a precious right of the arrested person26.
Article 22 (1) of Indian constitution says that “no person who is arrested shall be detained in
custody without being informed of the grounds of arrest.” Section 50(1) specifies that in case
of an arrest without warrant, the person so arrested must be intimated about the full
particulars of the offence or the grounds of such arrest. It is reasonable, rather
commonsensical to expect that the grounds of arrest should be communicated to him in a
language understood by him; otherwise it would amount to violation of the constitutional
norm27. If the arresting authority does not specify the grounds of such arrest or notify the
substance of the warrant under which the arrest has been made, the arrest would be
unlawful28. If the arrest was made by a subordinate police officer so deputed by a senior
officer, such subordinate officer must notify to the accused the substance of the order issued
by his superior, specifying the offence or other cause of the arrest29. Violation of this
provision shall vitiate the arrest making it illegal30.
Section 7 of the Cr. P.C. (Amendment) Act, 2005 adds an additional Section 50A to the
existing provision, which lays down that if a person who has been arrested or detained and is
being held in custody in a police station or interrogation centre or other lockup, he shall be

26
Udayabhan Shukhi v. State of Uttar Pradesh, 1999 Cr LJ 274 (All H.C.).
27
Article 22(1) of the Constitution of India, which says that no person shall be detained in custody
without being informed of the grounds of such arrest.
28
Satish Chandra Rai v. Jodu Nahdan Singh, ILR 1926 Cal 748.
29
Pillai. K.N.C. (rev.) (2004) R. V. Kelkar's Criminal Procedure, 4th edition, Lucknow, Eastern Book
Company, p. 73.
30
Ajit Kumar v. State of Assam, 1976 Cri LJ 1303 (Gau H.C.).
entitled to nominate a friend, relative or other person known to him or having interest in his
welfare who shall be informed about the arrest and the place of detention31.
The details regarding the requirements of the section being fulfilled must be maintained in a
book which shall be kept in the police station.32
e) Right of Accused to Know of the Accusation—Fair trial requires that the accused person
is given adequate opportunity to defend himself. Sections 228, 240, 246 and 251 of the Code
provide in unambiguous terms that when an accused person is brought before the court for
trial, the particulars of the offence of which he is accused shall be stated to him. In case of
serious offences, the court is required to frame in writing a formal charge and then to read
and explain the charge to the accused person.33
f) Right to Bail
The right of bail is one of the most important rights granted to the accused by the Code.
Section 436 says that it is the right of every accused arrested on a bailable offence to be
released on bail. Section 50(2) specifies that where the person is arrested for a bailable
offence, the police officer shall inform him of the right to be released on bail so that he can
arrange for sureties. In Hussainara Khatoon v. Home Secretary, State of Bihar34, the Supreme
Court held that pre-trial release on personal bond should be allowed where the person to be
released on ball is indigent, not having the adequate, means to furnish bond and there is no
substantial risk of his absconding. Section 35 of the 2005 Amendment Act added an
explanation Section 436 which says that if an accused is unable to give bail within a period of
one week, it shall raise a presumption that such person is indigent for the purpose of the
section.
Even in non-bailable offences, the accused may be released on bail at the discretion of the
Court if it is reasonably satisfied that such release will not endanger public peace35.
Moreover, certain special concessions have been made for women, children and the infirm
with regard to their right of acquiring bail in non-bailable offences.

31
This amendment was recommendeded by the Malimath Committee Report on Reforms on the
Criminal Justice System, Volume-1; 2003, p. 48.
32
Section 50A(3), Code of Criminal Procedure, as amended by the Code of Criminal Procedure
(Amendment) Act, 2005.
33
See Ss. 228,240,246 251, Code of Criminal Procedure
34
AIR 1979 SC 1360 : 1979 Cri LJ 1036.
35
See Section 437, Code of Criminal Procedure, 1973.
Further, Section 36 of the Amendment Act has provided that no person shall be kept in
detention for a period longer than the maximum period provided for the offence charged
with. Moreover, it has been provided that if a person has already undergone detention for a
period amounting to one-half of the maximum period prescribed for the offence, he shall be
released on personal bond with or without security. These are extremely welcome provisions
in view of the fact that overcrowding of prisons by under trials is a grave problem in India. It
is hoped that the plight of under trials will improve in future.
g) Right against Illegal Detention, and Provision for Production before Magistrate
Sections 56, 57 and 76 of the Code gives effect to Article 22(2) of the Constitution which
says that any person who is arrested and detained in custody shall be produced before the
nearest Magistrate within a period of twenty-four hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the Court of the Magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
Magistrate.36 Section 56 of the Code specifies that any police officer making an arrest
without a warrant must, without unnecessary delay produce the arrested person before a Mag-
istrate or the officer-in-charge of the police station. If the arrest is made under the authority of
a warrant, such an arrested person must be produced before a Magistrate within a period of
twenty-four hours, excluding the time required for transporting the accused from the place of
arrest to the Magistrate's Court37. That apart, it has been laid down that no person arrested
without a warrant shall be detained for a period exceeding twenty-four hours, without the ex-
press permission of a Magistrate under Section 167.
The provision for judicial scrutiny has been created with view :—
(i) to prevent unlawful and violent means of extracting confessions,
(ii) to protect the right of every person not to be punished without establishment of guilt,
(iii) to afford the audience of a judicial officer, and an early recourse on all questions of
bail and discharge38.
If a police officer fails to produce an arrested person before a Magistrate within twenty‐four hours,
39
he shall be guilty of wrongful detention . The Supreme Court in Anwar Hussain v. Ajoy Kumar

36
See also S.151(2) of Cr.P.C.
37
See Sec. 76, Code of Criminal Procedure, 1973.
38
Mohd. Suleman v. King Emperor, 30 CWN 985, see Pillai. K.N.C. (rev.) (2004) R. V. Kelkar's
Criminal Procedure, 4th Edition, Lucknow, Eastern Book Company, p. 76.
39
Sharifbai v. Abdul Razak, AIR 1961 Bom 42.
Mukherjee40, held that if the arrest by a public service is illegal, it will amount to false
imprisonment, and person so arrested is entitled to bring a civil suit against such erring
officer to recover damages. The Supreme Court in Khatri (11) v. State of Bihar,41 urged upon
all States to ensure that this constitutional requirement be effectively implemented, and asked
the Magistrate to be ever vigilant, and in case of violation, to take punitive action against the
concerned police official.
h) Evidence to Be Taken In Presence of Accused
Section 273 of the Code requires that all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his personal attendance is
dispensed with, in the presence of his pleader to ensure fair trial. The right created by the
section is further supplemented by S. 278, which inter alia provides that wherever the law
requires the evidence of a witness to be read over to him after its completion, the reading
shall be done in the presence of the accused, or of his pleader if the accused appears by
pleader and in a language understood by the accused person.42 Besides section 138 of the
Evidence Act gives the accused right to test the evidence by cross examination.
i) Right to Speedy Trial
Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in
the accused to be tried speedily. Right to speedy trial flowing from Article 21 encompasses
all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. A
criminal trial which drags on for unreasonably long time is not a fair trial. The court may
drop proceedings on account of long delay. Section 309(1) of the Code gives directions to the
courts with a view to have speedy trials and quick disposals. It says “In every inquiry or trial,
the proceedings shall be held as expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be continued from day to day until
all the witnesses in attendance have been examined, unless the court finds the adjournment of
the same beyond the following day to be necessary for reasons to be recorded”. In
Hussainora Khatoon (IV) v. State of Bihar,43 the Supreme Court considered the problem in
all its seriousness and declared that speedy trial is an essential ingredient of 'reasonable, fair
and just' procedure guaranteed by Art. 21 and that it is the constitutional obligation of the
State to devise such a procedure as would ensure speedy trial to the accused. "The State

40
AIR 1965 SC 1651 : 1965 (2) Cri LJ 686.
41
1981 Cri LJ 470 : AIR 1981 SC 928.
42
See S. 279 and S. 317(2) of Code of Criminal Procedure
43
(1980) 1 SCC 98,107: 1980 SCC (Cri) 40,49: 1979 Cri LJ 1045, 1051.
cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading
financial or administrative inability. The spirit underlying these observations have been
consistently rekindled by the Supreme Court in several cases.44 This has again been expressed
in Raj Deo Sharma II v. State of Bihar45 wherein the court ordered to close the prosecution
cases, if the trial had been delayed beyond a certain period in specified cases involving
serious offences.
In Moti Lai Saraf vs State of Jammu & Kashmir,46 not a single witness could be examined by
the prosecution in 26 years without there being any lapse on behalf of the appellant.
Permitting the State to continue with the prosecution and trial, the court held any further
delay would be total abuse of the process of law. Consequently, the criminal proceedings
were quashed.
j) Right to Medical Examination
When any person is arrested, he shall be examined by a registered medical practitioner and
where arrested person is female, the examination of her body shall be made only by a
registered female medical practitioner. 47
k) Right to Health and Safety
It shall be duty of the person having the custody of an accused to take reasonable care of the
health and safety of the accused.48

Self Assessment Question

3. Analyse in detail procedural safeguards guaranteed to the accused under the Code of
Criminal Procedure.
……………………………………………………………………………………………
……………………………………………………………………………………………..
1.5 Rights to Legal Consultation and Legal Aid
This section will deal with the aspect of the criminal justice system which ensures the right of
an accused of legal advice for a trial, which in case of indigent accused may be extended to
free legal aid at the expense of the State.

44
See A.R. Antulay, (1992) 1 SCC 225: 1992 SCC (Cri) 93 'Common Cause'—A Registered Society,
(1996) 6 SCC 775: 1997 SCC (Cri) 42.
45
(1998) 7 SCC 507: 1998 SCC (Cri) 1692.
46
(2006) 10 SCC 560
47
S.54 Cr.P.C. as amended by Act 5 of 2009
48
S.55A Cr.P.C. as inserted by Act 5 of 2009
a) Right of Accused to Consult a Legal Practitioner of His Choice
Article 22(1) of the Constitution of India provides inter alia, that no person who is arrested
shall be denied the right to consult and to be defended by a legal practitioner of his choice.
Defence by a lawyer of one's own choice is one of the characteristic features of the
adversarial system that is practised in India, without which the ends of natural justice will be
frustrated. The right of the accused to have a counsel of his choice is fundamental and
essential to a fair trial49. This constitutional provision has been ratified by the Code in Section
303, which says that "any person accused of an offence before a criminal Court, or against
whom proceedings are instituted, may of right be defended by pleader of his choice."
This right commences from the moment of arrest50, and it is the duty on part of the Court to
give a just and fair hearing to the defence counsel and any violation of this rule will vitiate
the trial51. The right to be defended by a legal practitioner of one's own choice has its roots in
the landmark American case of Powell v. Alabama52, where the American Supreme Court
held that the right to be heard would be wasted if it did not comprehend the right to be
represented by a counsel. Even an intelligent man is often incapable to understand the
intricacies of legal procedure, and hence without the service of a qualified lawyer, he stands
the risk of being put on trial without a proper charge, and convicted upon incompetent
evidence or evidence irrelevant to the issue. Hence, the right of interview with a qualified
legal practitioner is of extreme essence for the ends of justice to be met.
This section not only talks about the right to be defended by a pleader, but also implies that if
he is in custody, he should have a reasonable opportunity of holding a conversation with his
legal adviser for the purpose of his defense53. The lawyer may be permitted to meet his
lawyer during the investigation though not throughout. the interrogation54 Though there is no
express bar on the presence of a police officer at the venue of such interview with the lawyer,
it would be unjust to have them within the hearing of the police55. According to Section 126
of the Indian Evidence Act, 1872, the communications between the accused and his lawyer
are privileged and confidential, and hence, inadmissible before a Court of law. In order that

49
Chandrachud, .V. et. al. (rev.) (2005) Ratanlal and Dhirajlal's The Code of Criminal Procedure, 17th
edition, Nagpur, Wadhwa and Company Law Publishers, p. 577.
50
Moti Bai v. State, AIR 1954 Raj 241.
51
Muthu Karuppa Seervai v. Emperor, AIR 1928 Mad-1234
52
287 US 45 (1932).
53
Kailash Nath v. Emperor, AIR 1947 All 436.
54
D. K. Basu v. State of West Bengal. AIR 1997 SC 610 : 1997 Cri LJ 743.
55
Sunder Singh v. Emperor, 1932 Cri LJ,
this provision be given full effect, it is submitted that suitable amendments should be made to
the law on the subject thus barring the presence of a police officer at the venue of the
interview between the accused and his lawyer.
b) Right of Free Legal Aid For An Indigent Accused
In case of an indigent accused who is too poor to afford the services of a lawyer, the
Constitution through Article 21 implicitly guarantees the right of free legal aid at the expense
of the State. This constitutional right has been given practical implication by its inclusion in
the Code under Section 304. Such an impoverished accused may apply for this right under
that section for the fulfillment of his right. However, it cannot be denied simply because he
had failed to apply for it56.
The right of free legal aid commences from the moment the accused is produced before the
Magistrate for the first time in accordance with the requirement of Section 57 of the Code.
Such pleader shall be assigned to the accused, by Sessions Court, and shall be remunerated
by the State Government, according to the rules framed by the High Court. In Ranchod
Mathur Wasawa v. State of Gujarat57, Justice Krishna Iyer in his eloquent style said that it
shall be the duty of the Court to ensure that the pleaders so appointed should have the
competence to handle complex cases, and this practice of appointing lawyers should not be
extended as a patronising gesture to raw entrants at the Bar. He further went on to say that the
lawyer so appointed should be given sufficient time and facility to prepare for his defence so
that the cause of justice may be served58.
However, the accused claiming free legal assistance has to prove his economic status, and
cannot claim the benefit of the provision if he has the sufficient means to engage a lawyer on
his own. In Ashok Kumar v. State of Rajasthan59, it was held that the fact that the accused has
already engaged a lawyer will go against his claim of destitution. Unless expressly refused
with a sufficient and justified cause, the failure to provide free legal aid would vitiate the
trial, entailing the conviction and the sentence to be set aside60. However, if the accused had
not availed of the free legal assistance provided under the Legal Aid Scheme, and prefers to

56
Suk Das v. Union Territory of Arunachal Pradesh, 1986 Cri LJ 1084 : AIR 1986 SC 991
57
AIR 1974 SC 1143.
58
See also Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1377 : 1979 Cri LJ
1052.
59
1995 Cri LJ 1231 (Raj).
60
Kailash Nath v. Emperor, AIR 1947 All 436.
plead guilty, the trial will not be vitiated if the Judge is satisfied that the plea of guilt was
voluntary and genuine61.
The Code of Criminal Procedure provides a set of just and fair rights to the accused so that he
can maintain his basic human dignity as envisaged by the founding fathers of our
Constitution. These rights have been further reinforced by a number of judicial decisions that
have come about in the past several years in conformity with most of the set international
standards.
Self Assessment Question
4. What are the provisions regarding legal consultation and legal aid to the accused ?
Refer to relevant case laws also.
………………………………………………………………………..
………………………………………………………………………….

1.6 Summary
Let us sum up the contents of this unit:
• Rights of the accused are incorporated in the Constitution and in various enactments like
the Criminal Procedure Code (Cr.P.C.) Indian Penal Code and the Indian Evidence Act.
• An accused is presumed to be innocent till the contrary is proved against him has been
enshrined in Article 21 of Indian Constitution and in Article 14(2) of the International
Covenant of Civil and Rights 1966. Section 101 of the Evidence Act provides that an
accused shall be presumed to be Innocent till his guilt is proved beyond reasonable doubt .
• Right to restrain police from intrusion on his privacy (Article 21 of the Constitution)
• No person can be accused and convicted of an offence for an act, which was not an
offence under the law in force on the date when it was committed. This is a guarantee
against ex-post facto operation of criminal law. This principle has been enshrined in
Article 20(1) of the constitution of India and Article 11(2) of the Universal Declaration of
Human Rights.
• 'Protection against double jeopardy' – that is no person can be punished for the same
offence twice. This has been enshrined in the Indian Constitution in Article 20 (2) and
also in Section 300 of the Criminal Procedure Code.

61
Tyron Nazarath v. State of Maharashtra, 1989 Cri LJ 1232 (Bom).
• Right not to be a witness against himself [Article 20(3) of the Constitution]
• No person shall be deprived of his life and liberty except according to the procedure
established by law has been enshrined in Article 21 of the Constitution, whose scope has
been extended by judicial interpretation by the Supreme Court. It gives protection not
only against executive action but also against legislation. This principle is also contained
in Article 9 of the International Covenant on Civil and Political Rights 1966.
• Protection against arbitrary on unlawful arrest (Article 22 of the constitution and
section 41, 55 and 151 Cr.P.C.
• Right to be produced before a magistrate within 24 hours of his arrest [Article 22(1)
of the Constitution and Section 57 and 76 Cr.P.C.]
• Protection against arbitrary or unlawful searches (sections 93, 94, 97, 100 (4) to (8)
and 165 Cr.P.C.).
• Protection against arbitrary or illegal detention in custody [Article 22 of the
constitution and Sections 56, 57 and 76 Cr.P.C.]
• Right to be informed of the grounds immediately after the arrest [Article 22(1) of the
Constitution and Section 50 Cr. P.C., as also sections 55 and 75 Cr.P.C.]
• Right of the arrested person not to be subjected to unnecessary restraint [Section 49
Cr.P.C.]
• Right to consult a lawyer of his own choice (Article 22(1) of constitution and Section
303 Cr.P.C.)
• Right to be released on ball, if arrested [Sections 436, 437 and 439 Cr. P.C., also
Section 50(2) and 167 Cr.P.C.]
• Right to release of a convicted person on bail pending appeal (Section 380 Cr.P.C.)
• Right to get copies of the documents and statements of witnesses on which the
prosecution relies [Section 173 (7), 207, 208 and 238 Cr.P.C.]
• Right to insist that evidence be recorded in his presence except in some special
circumstances (Section 273 Cr.P.C.; also section 317 Cr.P.C.)
• Right to have due notice of the charges (Section 218, 228(2), 240 (2), etc of Cr.P.C.)
• Right to test the evidence by cross examination (Section 138 Evidence Act)
• Right to have an opportunity for explaining the circumstances appearing in evidence
against him at the trial (Section 313 Cr.P.C.)
• Right to medical examination (Section 54 Cr.P.C.)
• Right to produce defence witnesses (Section 243 Cr.P.C.)
• Right to submit written arguments at conclusion of the trial in addition to oral
submission (Section 314 Cr.P.C.)
• Right to fair and speedy investigation and trial (Section 309 Cr.P.C.)
• Right to appeal in case of conviction (Section 351, 374, 379, 380 Cr.P.C. and Articles
132(1), 134(1) and 136(1) of the constitution)
• Right to be tried by an independent and impartial judge (Section 479 of Cr.P.C.)
• Right to get copy of the judgment when sentenced to imprisonment (Section 363
Cr.P.C.)

1.7 Terminal questions

1. Discuss various safeguards given to the accused under Constitutional law and other
procedural laws.
2. Analyse how judiciary has interpreted various constitutional and procedural safeguards to
secure the rights of the accused.

1.7 Answers and Hints

Self Assessment Questions
1. Provisions regarding liberty and protection of human rights of the accused have been given under
Articles 20, 21 and 22 of the Indian Constitution. These rights include presumption of innocence, fair
trial, right against ex-post facto operation of criminal law, protection against double jeopardy and
immunity against self-incrimination. These constitutional provisions have been given concrete shape
by the Code of Criminal Procedure which confers a number of rights and liberties upon an accused.
2. The judiciary through its landmark decisions has laid down several provisions guar-
anteeing many rights to the accused as well as to the convicts. Such rights include right to
live with dignity, prohibition of inhuman prison practices such as solitary confinement,
handcuffing, and torture. Accused also have other rights like right to medical attention, free
legal aid, speedy trial, fair trial, to get paid for their work in prisons and the right to get bail
after twenty-four hours in police custody etc.
3. The Criminal Procedure Code (CrPC) expressly lays down a number of provisions relating
to the rights of the accused at the time of arrest and during the pendency of the trial. These
specifically include right to speedy trial, right to medical examination, right to bail, right
against torture, right against arbitrary arrest, search of person and property etc. Refer to
Section 1.4 for more details.
4. Article 22(1) of the Constitution of India provides that no person who is arrested shall be
denied the right to consult and to be defended by a legal practitioner of his choice. This
constitutional provision has been ratified by the Section 303 of the Code of Criminal
Procedure. Indian Constitution through its Article 21 implicitly guarantees the right of free
legal aid at the expense of the State to an indigent accused who is very poor to afford a
lawyer, This constitutional right has been given practical implication by the Section 304 of
the Criminal Procedure Code. Refer to Section 1.5 for relevant case laws.
Terminal questions
1. Refer to Sections 1.3 to 1.5 of the reading material and consult list of suggested readings.
2. Refer to case laws mentioned in Sections 1.3 to 1.5 of the reading material

1.9 References and Suggested Readings

- Bare Act of Criminal Procedure Code,1973 with Latest Amendments
- Pillai. K.N.C. (rev.) (2008) R. V. Kelkar's Criminal Procedure, Eastern Book
Company Lucknow
- Ashutosh, (2009) Rights of Accused, Universal Law Publishing Co. Pvt. Ltd., New
Delhi
- Verma, S.K. and Wani, Afzal M.(2000), Right to Bail, Indian Law Institute, New
Delhi
- Sakhrani, Monika (2009), Citizen’s Guide to Criminal Law, Universal Law
Publishing Co. Pvt. Ltd., New Delhi
- Arindam, Madhuryya, “Rights of the Accused under Indian Laws- A Study of the
Constitutional and other Procedural Provisions”, 2006 Criminal Law Journal 266 (Jr)
- Chopra, Nirmal, “Rights of an Accused and the Ground Realities” 2008 Criminal
Law Journal 6 (Jr)
Course 3, block -3
Unit 3 Plea Bargaining

Structure

3.1 Introduction
3.2 Objectives
3.3 Meaning of Plea Bargaining
3.4 Types of Plea Bargaining
3.5 Plea Bargaining in US and Other Countries
3.6 Recommendations of Law Commission of India
3.7 Plea Bargaining in India
3.8 Judicial Pronouncements on Plea Bargaining
3.9 Advantages and Disadvantages of Plea Bargaining
3.10 Summary
3.11 Terminal Question
3.12 Answers and Hints
3.13 References and Suggested Readings

3.1 Introduction
In a radical move to reform the criminal justice system, provision regarding “Plea
Bargaining” has been introduced in India by incorporating a new Chapter XXI A by the
Code of Criminal Procedure,(Amendment) Act, 2005. Now an accused in a criminal case
can hope to reduce his sentence by pleading guilty and paying compensation if required.
The accused will have to file for a plea bargain before his trial begins and it will be
accepted if mutually accepted to both the prosecution and defense, and as long as the
court is convinced that the plea is made voluntarily. However, the move will only be
applied to crimes which attract a maximum sentence of seven years and does not cover
more serious felonies such as murder or crimes against women and children.
India has a notoriously slow legal system under which prisoners can spend several years
in jail without being tried. The new concept of Plea Bargaining will be fruitful in
resolving pending criminal cases and under trial in jails for years. Plea Bargaining will go
a long way in reducing pressure on the courts. The government believes that plea
bargaining will affect more than 50,000 prisoners who are currently in jail. It as a
progressive piece of legislation and will lead to speedy disposal of a lot of cases and ease
pressure on trial courts
The Unit explains the meaning and types of Plea Bargaining in India. It traces the history
of plea bargaining in other countries and throws light on the recommendations made by
Law Commission of India from time to time for introducing plea bargaining in India.
Present Unit also highlights advantages and disadvantages of plea bargaining along with
some recent cases reported in media regarding plea bargaining.
3.2 Objectives
After going through this unit, you should be able to-
• Explain the meaning and nature of plea bargaining .
• Explain the need of introducing plea bargaining in India.
• Analyse the provisions of plea bargaining.
• Identify the cases for granting plea bargaining.
• Analyse the future of plea bargaining in India.

3.3 Meaning of Plea Bargaining

In the most traditional and general sense “Plea bargaining” may be defined as an
agreement in a criminal case between the prosecution and the defense by which the
accused changes his plea from not guilty to guilty in return for an offer by the prosecution
or when the judge has informally let it be known that he will minimize the sentence if the
accused pleads guilty. It is an instrument of criminal procedure which reduces
enforcement costs (for both parties) and allows the prosecutor to concentrate on more
meritorious cases. Plea bargaining allows the accused to bargain with the court on the
sentence that will be awarded. A key aspect is that the facts stated in an application for
plea bargaining are not meant to be used for any other purposes. It is generally seen in
these days that most of the criminal defendants are offered plea bargain because of the
fact that it gives an opportunity to the criminal to reduce his/her punishment by honestly
accepting his own guilt.

The practice of what has come to be known as ‘plea bargaining’ has been the subject of
considerable debate over the last few decades. In Canada, the discussion has centered on
the exact nature of the practice and on the term by which it should be known. In 1975, the
Law Reform Commission of Canada defined ‘plea bargaining’ as ‘any agreement by the
accused to plead guilty in return for the promise of some benefit’. But over the years,
considerable objections grew against designating the practice in any way that implied that
justice could be purchased at the bargaining table. Consequently, there was a movement
away from the use of the term ‘plea bargaining’ and toward more neutral expressions
such as ‘plea discussions’, ‘resolution discussions’, ‘plea negotiations’ and ‘plea
agreements’. The use of such expressions marked an evolution in the practice itself, since
they implicitly acknowledged it to be much more wide ranging than simple bargaining
and to involve the consideration of issues beyond merely that of an accused pleading
guilty in exchange for a reduced penalty.
Delay in providing law to the citizens has become a hindrance in crime prevention. What
is seen today is that the crime rate increases at a greater rate than the punishment of those
offenders. So the requirement of today is that there needs to be some mechanism which
can bring equilibrium between the commitment of crime as well as punishment of those
offenders. Plea Bargaining is one of the methods which can be used to reduce the burden
of the courts. The move has been announced by the government as part of a process to
reform the country's archaic criminal code with many of its laws dating back to colonial
times.
The government believes that plea bargaining will affect more than 50,000 prisoners who
are currently in jail. Lawyers say "it as a progressive piece of legislation and will lead to
speedy disposal of a lot of cases and ease pressure on trial courts," At the moment, India
has 10 judges for every million people because of which the average length of a trial is
about 15 years. However, the move will only be applied to crimes which attract a
maximum sentence of seven years and does not cover more serious felonies such as
murder or crimes against women and children. "It is a good beginning but in the future it
should be extended to cover those crimes as well."

3.4 Types of Plea Bargaining

Charge Bargaining

“Charge Bargaining” refers to a promise by the prosecutor to reduce or dismiss some of

the charges brought against the defendant in exchange for a guilty plea. This can be
further classified into multiple charge and unique charge. In multiple charges some
charges are dropped in return for a plea guilty to one of them. In a unique charge, a
serious charge is dropped in exchange for a plea of guilty to a less serious charge.

Fact Bargaining

In fact bargaining, a prosecutor agrees not to contest an accused‘s version of the facts or
agrees not to reveal aggravating factual circumstances to the court. There is an agreement
for a selective presentation of facts in return for a plea of guilty.

Specific Fact Bargaining

In this type of bargaining there is an acceptance of sanction without pleading guilty

which is known as the nolo contendere pleas. Another category of pleas in this category
is known as the Alford pleas where there is acceptance of sanction but the defendant
asserts innocence.

Sentence Bargaining

“Sentence Bargaining” refers to a promise by the prosecutor to recommend a specific

sentence or to refrain from making any sentence recommendation in exchange for a
guilty plea. In cases of sentence bargaining, trial judges, ordinarily, opt to impose
sentences not more severe than those recommended by prosecutors or else afford accused
an opportunity to withdraw their guilty pleas.

Self Assessment Questions

1. What do you understand by Plea Bargaining ?

………………………………………………………..
………………………………………………………….
2. Explain various forms of Plea Bargaining.
…………………………………………………………..
…………………………………………………………..

3.5 Plea Bargaining in US and Other Countries

“When one’s own legal system flounders, one naturally looks towards practices in other
countries, which seem to provide the solution. In a criminal trial in the United States, the
accused has three options as far as pleas are concerned guilty, not guilty or a plea of ‘nolo
contendere’. A plea-bargain is a contractual agreement between the prosecution and the
accused concerning the disposition of a criminal charge. However, unlike most
contractual agreements, it is not enforceable until a judge approves it. Plea-bargaining
thus refers to pre-trial negotiations between the defence and the prosecution, in which the
accused agrees to plead guilty in exchange for certain concessions guaranteed by the
prosecutor.

Plea-bargaining has, over the years, emerged as a prominent feature of the American
criminal justice system. While courts were initially skeptical towards the practice4, the
1920s witnessed the rise of plea-bargaining making its correlation with the increasing
complexity in the American criminal trial process apparent. In the United States, the
criminal trial is an elaborate exercise with extended voir dire and peremptory challenges
during jury selection, numerous evidentiary objections, complex jury instructions,
motions for exclusion, etc. and though it provides the accused with every means to
dispute the charges against him, it has become the most expensive and time-consuming in
the world. Mechanisms to evade this complex process gained popularity and the most
prominent was of course, plea bargaining.

In the US, plea bargaining is a significant part of the criminal justice system; the vast
majority of criminal cases is settled by plea bargain rather than by a jury trial. But plea
bargains are subject to the approval of the court, and different states and jurisdictions
have different rules. In 1967, both the American Bar Association and the President's
Commission on Law Enforcement and Administration of Justice approved the concept of
plea bargaining. In 1970, the constitutional validity of plea-bargaining was upheld in
Brady v. United States (297 US 742 ; 25 L.Ed. 2d 747) where it was stated that it was not
unconstitutional to extend a benefit to an accused that in turn extends a benefit to the
State. In Santobello v New York (404 US 257), the US Supreme Court has recognized
plea bargaining as both an essential and desirable element of the criminal justice system.
Around 95% of all convictions in the US are secured with guilty plea. The courts are of
the view that the justice system is benefited from plea bargaining as it reduces the court
congestion, alleviation of the risks and uncertainties of the trial. ( People v Glendenning,
127 Misc.2d 880, 1985 )
Plea bargaining in Pakistan was introduced by the National Accountability Ordinance,
1999, an anti-corruption law. The accused applies for it accepting his guilt and offers to
return the proceeds of corruption as determined by the investigators / prosecutors.
After endorsement by the chairman of the National Accountability Bureau, the request is
presented before a court. In case the court accepts the request for plea bargain, the
accused stands convicted but is not sentenced if in trial, nor does he undergo a sentence
previously pronounced by a lower court if in appeal. However, the accused is disqualified
from taking part in elections, holding public office and obtaining a bank loan, besides
being dismissed from service if he is a government officer.
In Italy, the procedure of ‘pentito’ (literally, he who has repented) was introduced for
counter-terrorism purposes, and generalized during the Maxi trial against the mafia in
1986-1987. The procedure has been contested, as the pentiti received lighter sentences as
long as they supplied information to the magistrates. Many of them have been accused of
deliberately misleading the justice system. [ (2006) 2 SCC (Cri) J-12]

3.6 Recommendations of Law Commission of India

The subject of the 142nd Report of the Law Commission of India (1991) and the
subsequent conclusions and recommendations were motivated by the abnormal delays in
the disposal of criminal trials and appeals. In this context the system of plea-bargaining in
the United States drew attention to itself and the Law Commission outlined a scheme of
plea-bargaining for India. The Commission noted that because no improvement had been
made in the situation and there was little scope for streamlining the system, the problem
was a grave one and clamored for urgent attention.

Based on an analysis of plea bargaining as it exists in the United States, the report stated
that the practice was not inconsistent either with the Constitution or the fairness principle
and was, on the whole, worthy of emulation with appropriate safeguards. The
Commission conducted a survey to ascertain whether the legal community was in support
of plea-bargaining and also to gather opinions on the applicability of the practice if the
earlier response was in the affirmative. Of those surveyed, a high percentage was in
favour of the introduction of the scheme; additionally, most were in favour of introducing
the concept only to specified offences. The report concluded that an improved version of
the scheme suitable to the law and legal ethos of India should be considered with
seriousness and with a sense of urgency.

The report also attempted to address some reservations that were expressed as regards the
introduction of plea-bargaining. The scheme would not be successful in India due to
illiteracy, which is comparatively much higher than in the United States and thus people
would not adequately understand the consequences of pleading guilty. The Commission
was of the opinion that because the contention fails to distinguish between literacy and
common sense, it does not hold ground. Further, the proposed scheme accounts for this
objection by providing for judicial officers to be plea judges, who would explain to the
accused persons, the consequences of pleading guilty under the scheme.

Prosecution pressures may cause innocent people to yield and forego their right to trial.
The Commission opined that such concerns could be dispelled if the judicial officer
explained the implications of the scheme and was satisfied that the application was made
by the accused of his own volition and not as a result of coercion or duress.
In the existing situation where the acquittal rate is as high as 90% to 95%, it is the poor
who will be the victims of the concept and come forward to make confessions and suffer
the consequent conviction. The Commission stated that the argument that the scheme
may not succeed was merely a matter of opinion and was not good enough a reason to
oppose the scheme. Also, in the trade-off between languishing in jail as an under trial
prisoner and suffering imprisonment for a lesser or similar period, the latter would be the
rational choice as long periods in jail brought about economic and social ruin.

The incidence of crime might increase due to criminals being let-off easily. The
Commission regarded this concern as unfounded as the authority considering the
acceptance or otherwise of the request for concessional treatment would weigh all pros
and cons and look into the nature of the offence and exercise its discretion in granting or
rejecting the request.

Criminals may escape with impunity and escape due punishment. The Commission stated
that the scheme provides for concessional treatment and not for any punishment and the
stigma of conviction would persist.

As additional justifications, the Commission stated that considerable resources would be

saved and that the rehabilitation process of the offender would be initiated early. The
Commission concluded that the scheme for concessional treatment in respect of those
offenders, who on their own volition invoked the scheme, which incorporated appropriate
safeguards, might prove beneficial.

The Commission envisaged that in due time, the scheme would encompass all offences,
but proposed that initially the scheme should be extended only to offences that provide
for imprisonment for a period of less than seven years. The extension of the scheme
would then be considered after a scrutiny of the results and in the light of public opinion.
The Commission also suggested further subdivision for a more effective and phased
application.

In its 154th Report, the Law Commission (1996) reiterated the need for remedial
legislative measures to reduce the delays in the disposal of criminal trials and appeals and
also to alleviate the suffering of under trial prisoners. The 177th Report of the Law
Commission, 2001 also sought to incorporate the concept of plea-bargaining. The Report
of the Committee on Reforms of the Criminal Justice System, 2003 stated that the
experience of the United States was an evidence of plea-bargaining being a means for the
disposal of accumulated cases and expediting the delivery of criminal justice; the
Committee thus affirmed the recommendations of the Law Commission of India in its
142ndth Reports. and 154

The 154th Report of the Law Commission points out that an order accepting the plea
passed by the competent authority on such a plea shall be final and no appeal shall lie
against the same.
As regards the procedure to be followed in cases where a minimum sentence is provided
for the offence, the competent authority may, after following the aforementioned
procedure, accept the plea of guilty and record an order of conviction and impose a
sentence to the tune of half of the minimum term of jail provided by the statute for the
offence concerned. A statutory provision empowering the competent authority would
have to be made so that the provision prescribing the minimum sentence is not violated.

The competent authority shall have the power to record a conviction for an offence of
lesser gravity than that for which the offender has been charged in the charge-sheet or if
the facts and materials constitute an offence of lesser gravity.

The Law Commission was of the opinion that bargaining with the prosecutor which
provides the offender with an attraction to avail of the scheme is hazardous in the Indian
context, and that a just, fair, proper and acceptable scheme would be that the competent
authority can impose such punishment as may seem appropriate as regards the facts and
circumstances of the case subject to a limit of one-half of the maximum term provided by
the statute for the offence concerned.

The scheme also bars habitual offenders, that is, persons convicted for an offence under
the same provision from invoking the scheme. There is, therefore, no merit in the
apprehension that those who secure concessional treatment may indulge in the same
activity again in the hope of being let off lightly once more. Persons charged with
offences against women and children are also excluded from the purview of the scheme.

The scheme allows for no negotiation between the accused and the State or the prosecutor
or with the court itself, which is a fundamental difference the scheme maintains from the
practice, as it exists in the United States. The scheme does not mention any provision or
procedure for withdrawal of pleas. These include subsequent withdrawal of the nature of
stating that the plea was not taken voluntarily. The scheme however maintains a
difference between the courts examining the case on merits and a totally separate
institution i.e. the competent authority for the purposes of the plea bargaining
proceedings. It is important to note that this separation ensures that the right to fair trial is
not eroded.

Since the competent authority is an autonomous body to decide the fate of the accused
over the application made by him voluntarily and knowingly which has the effect of
eliminating the possibility of the prosecuting agency obtaining the plea through fraud,
misrepresentation or coercion.

As regards determination of the quantum of substantive punishment, it needs to be noted

that in the American system, an offender would approach the court in a situation where
the prosecution is agreeable to a concessional treatment as well as the extent of the same.
Thus, in the United States, the offender is assured as to the extent of the concession that
is likely to be secured in the event of the court agreeing to the bargain. In India, the
offender would be facing an unknown hazard, and may prompt him to avoid availing of
the scheme.
However, this is qualified to the extent that the competent authority, upon acceptance of
the plea of guilty, is more or less limited in terms of the sentence that can be awarded and
the accused can be assured as to a substantial level of leniency on most occasions. Such a
situation creates an undue level of pressure on the accused to plead guilty so as to avail of
the scheme. The trade-off for an innocent accused with a strong case against him amounts
to a choice between the expected difference between sentence at trial and sentence
subsequent to availing of the scheme which would become an increasingly safe
prediction in time; and the risk of continuing with the trial and maintaining his innocence.

This situation will result in the innocent pleading guilty unless the equilibrium situation is
corrected by reducing the difference between sentences at trial and sentences awarded by
the competent authority. The unpredictability of the trial is also a factor that should also
be taken into account. The innocent will plead guilty due to the feeling of hopelessness at
attempting to rebut the evidence of the police, the severity of the sentence anticipated,
and the weariness of the case dragging on and the attractiveness of the existent scheme.

It should be noted that no programme of rehabilitation can be effective on a prisoner who

is convinced in his own mind that he is in prison because he is the victim of a mindless,
undirected, and corrupt system of justice and in this manner the very basis of a criminal
justice system will be undermined. Understandably, the entire scheme owes its existence
to the severe pressure on the resources of the court. However, the scheme fails to make
the distinction between efficiency at the level of inception and the same being the
motivation for guilty pleas from the accused. The motivation for leniency is
acknowledgement of error and a desire to reform, not the conservation of resources. The
failure to take into account this basic distinction is a fallacy that needs to be addressed.

Also, accused will inevitably assume some level of leniency in an implicit manner. In a
natural state that is, in the absence of plea bargaining, 50% to 75% of accused plead
guilty. Increase in case pressure may affect plea-bargaining but it would be fallacious to
assume that plea-bargaining is caused by caseload. This is however, the reason for
introducing the scheme under the 142nd Report of the Law Commission. In fact,
prosecutors are the main propagators of plea-bargaining. It is contended that plea-
bargaining went hand-in-hand with the imposition of mandatory sentencing, which
implies that prosecutors will plea-bargain when judicial discretion is bound.

Thus, it may be inferred that even the scheme proposed by the Law Commission of India
may not be advantageous. At this juncture, it may be helpful to examine compounding of
offences under Section 320 of the Code of Criminal Procedure, 1973. The issue is
whether expanding the list of compoundable offences will be an effective solution for the
problem of overcrowded courts and whether this can then serve as an alternative to the
introduction of plea-bargaining. Since a crime is essentially a wrong against society, a
compromise between the accused and the victim does not ideally serve to absolve the
accused from criminal responsibility. However, offences, which are essentially of a
private nature, are recognized as compoundable offences while some others are
compoundable with the permission of the court. Compounding of offences has the effect
of an acquittal and there is no admission of guilt envisaged in the process.

The extension of the list of compoundable offences seems to be inconsistent with the
logic underlying the same, which is that the offence is essentially a private one. Also, the
compounding of offences has the effect of an acquittal, which certainly cannot be
maintained for serious offences. The scope for consideration being involved in the
transaction is prima facie against public policy especially for more serious offences and
the same would operate to the detriment of the financially weaker classes. The
compounding of offences does not require the admission of guilt, which is an essential
requirement of commencing the rehabilitation and reformation of the accused. It is on this
basis that the argument for extending compoundable offences so as to allow courts to
function expeditiously is misplaced, as the scope of any such expansion will be severely
restricted due to the aforementioned reasons.

The 154th report of the Law Commission (1996) recommended that plea bargaining
should be included as a separate chapter in the Indian criminal jurisprudence. In the 12th
Law Commission Report (1991) the conception of idea behind incorporating the idea of
plea bargaining was mentioned wherein it was stated that there needs to be some remedial
legislative measures to reduce the delays in the disposal of criminal trials and appeals and
also to alleviate the sufferings of under trial prisoners awaiting the commencement of
trials. The NDA government formed a committee, headed by the former Chief Justice of
the Karnataka and Kerala High Courts, where Justice V.S.Malimath came up with some
suggestions to tackle the ever-growing number of criminal cases. In its report, the
Malimath Committee recommended that a system of plea bargaining be introduced in the
Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to
reduce the burden of the courts. Accordingly, the draft Criminal Law (Amendment) Bill,
2003 was introduced in the parliament. The statement of objects and reasons, inter alia,
mentions that, the disposal of criminal trials in the courts takes considerable time and that
in many cases trial do not commence for as long as 3 to 5 years after the accused was
remitted to judicial custody. Though it could not be recognized by the criminal
jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal
cases. The bill attracted enormous public debate. Critics say that it should not be
recognized as it would go against the public policy under our criminal justice system. The
Supreme Court has also time and again reiterated the concept of plea bargaining saying
that negotiation in criminal cases is not permissible.

Self Assessment Questions

3. What has been the position of plea bargaining in other countries?

…………………………………………………………………………………….

……………………………………………………………………………………….
4. Analyse the recommendations of Law commission of India regarding plea
bargaining.

…………………………………………………………………………………………….

………………………………………………………………………………………….

3.7 Plea Bargaining in India

The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere.
The doctrine has been under consideration by India for introduction and employment in
the Criminal Justice System. Indian Criminal Justice System has been ineffective in
providing speedy and economical justice. Because Courts are flooded with astronomical
arrears, the trial life span is inordinately long and the expenditure is very high.
Subsequently majority of cases are arising from criminal jurisdiction and the rate of
conviction is very low.

The fact that courts resources would have to be significantly increased to provide a trial
for every charge has been cited as both justification and reason for the inevitability of
plea-bargaining. Proponents of plea-bargaining argued that it would remove the risks and
uncertainties involved in a trial, thus introducing flexibility into a rigid, often-erratic
system of justice. It would also enable the court to avoid dealing with cases that involve
no real dispute and try only those where there is a real basis for dispute. Victims would
be spared the ordeal of giving evidence in court, which could be a distressing experience
depending on the nature of the case.

Recently the Government of India has accepted the Doctrine of Nolo Contendere or Plea
Bargaining, on the Recommendations of the Law Commission. Doctrine of Nolo
Contendere has been considered in a manner according to social and economical
conditions prevailing in the country. Appropriate amendment has been incorporated in
the Criminal Procedure Code, 1973. The new concept of Plea Bargaining will be fruitful
in resolving pending criminal cases and under trial in jails for years.

Plea bargaining has been inserted through Chapter XXI A in the Criminal Procedure
Code. It provides for pre - trail negotiations between the defence and the prosecution
during which an accused might plead guilty in exchange for certain concessions by the
prosecution.

Objectives of Plea Bargaining in India

Statistics as regards the criminal justice system in India are startling in 2001; the number
of inmates housed in Indian jails was almost 1, 00,000 more than their capacity. It was
estimated that 70.5% of all inmates were under trials and of these 0.6% had been detained
in jail for more than 5 years at the end of 2001.”
The reasons that are cited for the introduction of plea-bargaining include the tremendous
overcrowding of jails, high rates of acquittal, torture undergone by prisoners awaiting
trial, etc. can all be traced back to one major factor, and that is delay in the trial process.
Since one reason for overburdened dockets in the United States was the nature of jury
trials, the experience of some jurisdictions suggested that shortening the trial period could
solve the problem. In India, the reason behind delay in trials can be traced to the
operation of the investigative agencies as well as the judiciary. Expanding the list of
compoundable offences is not a wise option and what is actually needed is not a
substitute for trial but an overhaul of the system, in terms of structure, composition as
well as work culture to ensure reasonably swift trials. If then the trial procedure itself
proves to be too long drawn out and unmanageable, then one may think of launching an
alternative to trial. Therefore reformation of the existing system may be a more prudent
approach rather than introducing a parallel arrangement (as recommended by the Law
Commission) or supplementing the present arrangement (as suggested by the Act).

Therefore, plea bargaining has been introduced as a prescription to the problem of

overcrowded jails, overburdened courts and abnormal delays. It cannot be denied that the
practice may result in faster disposal of cases; because delayed trials are problematic in
many aspects, the proposal may seem appealing.

Plea Bargaining
Chapter XXI A inserted by Cr. P.C. Amendment Act, 2005

Plea Bargaining was introduced in India by the Criminal Law (Amendment) Act, 2005 by
the Parliament in the winter session of 2005, which amended the Code of Criminal
Procedure and introduced a new chapter XXI (A) in the code containing sections 265A to
265L which came into effect from July 5, 2006. It was due to the inspiration that has been
gained from America which made Indian to experiment the concept of plea bargaining in
the country. Provisions are as follows-

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-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.

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 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).

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 may, if he so desires, 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.

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.
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 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.".

The salient features of the Plea Bargaining are as follows:-

Section 265A of Chapter XXIA of the Criminal Procedure Code deals with applicability
of the Plea bargaining. Benefit of Plea bargaining can be extended in two circumstances.
One is, if a report is forwarded by a Station House Officer of a Police Station after the
completion of investigation to the Magistrate. The other is, if the Magistrate has taken
cognizance of an offence on a complaint under S. 190(a) followed by examination of a
complainant and witness under S.200 or S.202 and issuance of process under Section
204. Thus, it means, after commencement of proceedings upon a private complaint under
S. 190(a) of the Code.

The Plea Bargaining is applicable only in respect of those offences for which punishment
of imprisonment is up to a period of 7 years. It does not apply where such offence affects
the socio- economic condition of the country (like offences under Food Adulteration Act
etc) or has been committed against a woman or a child below the age of 14 years. The
application for Plea Bargaining should be filed by the accused voluntarily. A person
accused of an offence may file an application for Plea Bargaining in the court in which
such offence is pending for trial. The court, on receiving the application, must examine
the accused in camera to ascertain whether the application has been filed voluntarily. The
court must then issue notice to the Public Prosecutor or the complainant to work out a
mutually satisfactory disposition of the case. The negotiation of such a mutually
acceptable settlement is left to the free will of the prosecution (including the victim) and
the accused. If a settlement is reached, the court can award compensation based on it to
the victim and then hear the parties on the issue of punishment. The court may release the
accused on probation if the law allows for it; if a minimum sentence is provided for the
offence committed, the accused may be sentenced to half of such minimum punishment;
if the offence committed does not fall within the scope of the above, then the accused
may be sentenced to one-fourth of the punishment provided or extendable for such
offence. The accused may also avail of the benefit under Section 428 of the Code of
Criminal Procedure, 1973 which allows setting off the period of detention undergone by
the accused against the sentence of imprisonment in plea-bargained settlements. The
court must deliver the judgment in open court according to the terms of the mutually
agreed disposition and the formula prescribed for sentencing including victim
compensation. It may be noted that this judgment is final and no appeal lies apart from a
writ petition to the State High Court under Articles 226 and 227 of the Constitution or a
special leave petition to the Supreme Court under Article 136 of the Constitution. The
judge would decide if the plea bargaining was resorted to with malafide or bonafide
intention. The statement or facts stated by an accused in an application for plea
bargaining shall not be used for any other purpose other than for plea bargaining.

The positive aspect of the Act is that the offences in which a mutually satisfactory
agreement can be reached are limited. Secondly, the judge is not completely excluded
from the process and exerts supervisory control. Therefore at least theoretically,
administrative control of the process of granting concessions to those who plead guilty is
ensured. Thirdly, the Act ensures that such an opportunity will not be available to
habitual offenders. Fourthly, the fact that the Act does not provide for an ordinary appeal
from the judgment in such a case is a step towards expediting the disposal of cases. At the
same time, a process for reviewing illegal or unethical bargains does exist though it may
be noted that Article 136 of the Constitution does not confer a right of appeal on a party
as such but confers a wide discretionary power on the Supreme Court to grant special
leave. Also, though the remedy under Articles 226 and 227 of the Constitution can be
made use of, it is unclear whether the victim of the offence can utilize this remedy.
Self Assessment Questions

5. Discuss objectives of introducing plea bargaining in India

………………………………………………………….

………………………………………………………………

6. Analyse important provisions regarding plea bargaining as introduced by Cr.P.C.

Amendment Act 2005.

…………………………………………………………………………………………

…………………………………………………………………………………

3.8 Judicial Pronouncements on Plea Bargaining

1) For the first time in Mumbai, an application for plea bargaining was made before a
sessions court recently when a former Reserve Bank of India clerk—accused in a
cheating case—sought a lesser punishment in return for confessing to his crime. In the
present case, Sakha-ram Bandekar, a grade I employee, was accused of siphoning off Rs
1.48 crore from the RBI by issuing vouchers against fictitious names from 1993 to 1997
and transferring the money to his personal account. He was arrested by the CBI on
October 24, 1997, and released on bail in November the same year. The case came up
before special CBI judge A R Joshi and charges were framed on March 2 this year.

The accused then moved an application before the court on August 18 stating that he was
58 years old and would seek plea bargaining. The court directed the prosecution to file its
reply. The judgment delivered in a case of plea bargaining is final and no appeals are
allowed against such verdicts. The accused may also be released on probation if he is a
first-time offender. The CBI, while opposing the application, said, "The accused is facing
serious charges and plea bargaining should not be allowed in such cases.’’ It continued,
"Corruption is a serious disease like cancer. It is so severe that it maligns the quality of
the country, leading to disastrous consequences. Plea bargaining may please everyone
except the distant victims and the silent society.’’ Based on these submissions, the court
rejected Bandekar’s application. Although Bandekar’s plea was not accepted, the case is
an indicator to an emerging legal trend. According to experts, plea bargaining could
reduce the heavy backlog of cases in Indian courts. As it requires the accused to confess
to a crime and does away with a lengthy trial, the time currently spent by courts on
dealing with lakhs of cases could be reduced drastically.
(http://www.legalserviceindia.com/articles/plea_bar.htm)

2) In the case of Pradeep Gupta v. State, (Judgment delivered on September 03, 2007)
where a bail application was filed by the petitioner for plea bargaining, the court said that
prayer of plea bargaining can be made by an accused against whom a report under section
173 CrPC has been filed for offences punishable for seven years or less than seven years.
Also the request can be considered taking into account the role of the accused, and the
nature of offence etc. The court also supported the view of the trial court saying that the
application for plea bargaining cannot be rejected on the ground that he was involved in
Section 120B IPC and therefore the request for plea bargaining was not available to him.

3) In another case of State of Uttar Pradesh v. Chandrika, (AIR 1999 SC 164) the court
held that the practice of plea bargaining is unconstitutional, illegal and would tend to
encourage corruption, collusion and pollute the pure fount of justice because it might
induce an innocent accused to plead guilty to suffer a light and inconsequential
punishment rather than go through a long and arduous criminal trial which, having regard
to our cumbrous and unsatisfactory system of administration of justice, is not only long
drawn out and ruinous in terms of time and money, but also uncertain and unpredictable
in its result and the judge also might be likely to be deflected from the path of duty to do
justice and he might either convict an innocent accused by accepting the plea of guilty or
let of a guilty accused with a light sentence, thus, subverting the process of law and
frustrating the social objective and purpose of the anti-adulteration statute. This practice
would also tend to encourage corruption and collusion and as a direct consequence,
contribute to the lowering of the standard of justice.

4) Further in the case of Kasambhai Abdulrehmanbhai Sheik etc. v. State of Gujarat

and another AIR 1980 SC 854 where the accused was convicted for the crime of
adulteration, the court held that plea bargaining is unconstitutional and illegal and would
subvert the process of law and frustrate social objective and purpose of anti-adulteration
statute.

5) In another landmark judgment Bordenkircher v. Hayes, 434 U.S. 357 (1978) the US
Supreme Court held that, the constitutional rationale for plea bargaining is that no
element of punishment or retaliation so long as the accused is free to accept or reject the
prosecutions offer. The Apex Court however upheld the life imprisonment of the accused
because he rejected the Plea Guilty offer of 5 years imprisonment.

6) In a significant case of copyright infringement under the concept of plea bargaining,

the Indian Music Industry (IMI) won a compensation amount of Rs 12 lakhs in a
copyright case. According to Savio D'souza, Secretary General, IMI, "Intellectual
property for artists is their bread and butter and people like the accused are stealing the
huge chunk of potential revenue from Indian artists. Plea bargaining is an important way
to amicably settle cases instead of dragging them forever. Here, for instance, we asked
for a compensation of Rs 100 per CD, but the accused moved another application
admitting his guilt and settling for negotiation. So we agreed to settle the case at Rs 60
per CD seized. When the applications were presented at the specialised intellectual
property court in Delhi for hearing, the matter was negotiated with the company's owner
and it was settled at Rs 12 lakhs (Two lakh on behalf of the company - Siddartha Optical
and 10 lakhs on the owner's behalf). Besides, the court ordered the company to pay Rs 2
lakhs to the state for violating the copyright act. This is India's biggest plea bargaining
case as no other victim has ever been paid Rs 12 lakhs."
During a raid carried out at the Siddartha Optical Disc (CD plant), 22,000 CDs including
large numbers of mp3 CDs, porno CDs (10,600), 2 CD recording machines, printers,
computers, etc. were seized, of which mp3 CDs / master stampers belonged to music
companies which were members of IMI. Cases U/Ss 63, 65, 68A CR Act and 292 IPC
were registered against Surendra Wadhwa, owner and managing director of Siddartha
Optical Disc as well as against the company, following which IMI claimed Rs 100 per
CD seized as compensation.
Established on February 28, 1936, IMI today represents almost 75 per cent of the
legitimate recording industry in India. This non-profit and non-commercial organization
is the second oldest music association in the world. Registered under the West Bengal
Societies Registration Act in 1936, IMI primarily intends to resuscitate the lost stature of
Indian music industry. IMI has over 142 music companies as members including several
prominent regional and national labels such as SAREGAMA, Universal Music, Tips,
Venus, BMG Crescendo, Sangeetha, Sony Music, Virgin, Aditya Music. IMI has filed
19,385 cases so far, of which 3000 cases have been settled, while the rest are pending.(
Source: Business Standard, 29/10/2009)

3.9 Advantages and Disadvantages of Plea Bargaining

Plea bargaining is a concept having both sides of the same coin. It can be used as a
beneficial tool as well as can be used as a method of ruining the justice delivery system.
When we look into the conceptual aspect of plea bargaining, we feel that, now the back
logging in courts will be reduced and justice can be delivered quickly and efficiently. The
most beneficial part of this system is that the under trial prisoners who have to remain for
more time than that of the punishment term can go for plea bargaining and reduce their
punishment. Karnataka was the first state to introduce the concept of plea bargaining in
India. According to Karnatakas Law Minister HK Patil the concept of plea bargaining
will help in clearing the backlog from the courts. Even Arvind Narrain, a lawyer with the
Alternative Law Forum opined that this is one of the ways of clearing the backlog.

When we look at the other side of the coin we feel that it is going to benefit the accused
persons at large. If we analyse the reason as to why the criminals go for plea bargaining,
then it comes to the fact that because they are able to reduce their punishment, which if
they would not do quickly will make them stay in arrest for more time through litigation.
Moreover, it is presumed that when an accused pleads guilty, the punishment of the
accused gets reduced. Also the benefit which the guilty gets by plea bargaining is the
reduction of the costs and time consuming trial of his case. It is also presumed that the
accused gains responsibility in his favour to enter the correctional system in a frame of
mind that may afford hope for rehabilitation over a shorter period of time.

Plea bargaining may be effective mechanism for removing the back log in courts. But the
problem arises afterwards when it is seen that the innocents are unnecessarily punished in
this speedy disposal of cases. Although it may be a method of reducing cost and allows
the prosecutor to allocate resources more effectively but it may not reduce the amount of
risk to which the criminals are made to face.

The disadvantageous part of plea bargaining is that sometimes the prosecutor forces the
accused to admit his guilt with unconscionable pressures. Even the accused may go
escape with less punishment by pleading his guilt and thereby diverting a little favourable
decision in his favour. But most of the times it happens that the accused do not have the
required amount of resources available at their disposal to minutely investigate each and
every case. Critics suggest that plea bargaining deprecates human liberty and the
purposes of the criminal sanction by commodifying these things, that is, treating them as
instrumental economic goods. It is also apprehended that it would encourage corruption
and collusion and as a direct consequence, contribute to the lowering of the standard of
justice. It may happen that judiciary might either convict an innocent accused by
accepting the plea of guilty or let off a guilty accused with a light sentence, thus
subverting the process of law and frustrating the social objective. (142nd Report of Law
Commission of India, 1991)

Another disadvantage is that it can very well be mis-used by the police asking the
criminals to accept their crime and reduce the punishment rather than suffering the
painful merciless powerful hits of the police.

The effective implementation of the plea bargaining requires that the judges be given a
lot of discretion and integrity along with some safeguards. If law provides for entering a
voluntary plea of guilty and a concessional treatment is accorded in the light of statutory
authority of law in accordance with the prescribed guidelines by judicial authority, it
would not be possible to say that the conviction based on the plea of guilty is erroneous.

For better implementation of plea-bargaining in India, the deciding authority must be

independent from the trial court and instead of the Public Prosecutor retaining most of the
power, the deciding authority must be given a greater role in the process. If the deciding
authority is the sole arbiter, the risk of coercion into pleading guilty and of underhand
dealings can be eliminated substantially. Therefore not only will the victims needs be
addressed but also the susceptibility of the system of being misused by the Public
Prosecutor, the police and even the affluent will be considerably reduced. In this respect,
the scheme proposed by the 142nd Report of the Law Commission of India is prudent, as
it does not seek to carelessly replicate the American model of plea-bargaining. ( (2006) 2
SCC (Cri) J-12 )

It cannot be denied that the scheme ignores the fact that many lack the resources for
proper legal representation and is more a formalization of the unwritten rule of showing
leniency to those who plead guilty rather than plea-bargaining. Plea bargaining is mainly
a contract between two parties so what can be expected from it is that it will enhance the
social welfare on the condition that it is voluntarily performed. But to what extent will it
succeed will depend upon the law and order of the prevailing circumstance with the
decision of the judges from case to case.
Self Assessment Questions

7. Point out recent cases of plea bargaining in India.

……………………………………………………….

………………………………………………………………

8. Highlight advantages and disadvantages of plea bargaining

……………………………………………………………………..

3.10 Summary

Let us sum up the contents of this unit-

• Plea Bargaining refers to pre trial negotiations between the defendant, usually
conducted by the counsel and the prosecution, during which the defendant agrees
to plead guilty in exchange for certain concessions by the prosecutor.
• Plea bargaining may be classified into charge bargaining, fact and specific fact
bargaining and sentence bargaining.
• Plea bargaining introduced in India by Cr. P.C. Amendment Act, 2005 by
inserting Chapter XXI A, Sections 265A to 265L.
• The Plea Bargaining is applicable only in respect of those offences for which
punishment of imprisonment is upto a period of 7 years.
• It does not apply where such offence affects the socio- economic condition of the
country or has been committed against a woman or a child below the age of 14
years.
• The application for Plea Bargaining should be filed by the accused voluntarily.
• A person accused of an offence may file an application for Plea Bargaining in the
court in which such offence is pending for trial.
• The complainant and the accused are given time to work out a mutually
satisfactory disposition of the case, which may include giving to the victim by the
accused, compensation and other expenses incurred during the case.
• Where a satisfactory disposition of the case has been worked out, the Court shall
dispose of the case by sentencing the accused to one-fourth of the punishment
provided or extendable, as the case may be for such offence.
• The statement or facts stated by an accused in an application for plea bargaining
shall not be used for any other purpose other than for plea bargaining.
 • The judgment delivered by the Court in the case of plea-bargaining shall be final
and no appeal shall lie in any court against such judgment.
• Plea bargaining will reduce back logging in courts and justice can be delivered
quickly and efficiently.
• Plea bargaining may be made effective by laying down judicial safeguards.

3.11 Terminal Question

1. Explain history and development of plea bargaining in India and also analyse
provisions as given in Chapter XXI A of the Code of Criminal Procedure.

3.12 Answers and Hints

Self Assessment Questions
1. Plea bargaining refers to pre-trial negotiations between the defendant, usually
conducted by the counsel and the prosecution, during which the defendant agrees to plead
guilty in exchange for certain concessions by the prosecutor.
2. It is usually of four types Charge bargaining, fact and specific fact bargaining ,
sentence bargaining.
3. Refer to Section 3.5
4. Law Commission of India in its 142nd Report emphasized upon the need of plea
bargaining in India to lessen the burden on courts. A survey by Law Commission
revealed that number of under trials in jails are very large hence some remedial
legislative measures should be introduced to reduce the delays in the disposal of criminal
trials and appeals and also to alleviate the sufferings of under trial prisoners awaiting the
commencement of trials in jails. Law Commission again reiterated the need for plea
bargaining in its 154th and 177th Report.
5. Refer to section 3.7
6. Look into the provisions of Chapter XXI A of the Code of Criminal Procedure from
Sections 265A to 265L
7. See section 3.8
8. Plea bargaining can be used as a beneficial tool as back logging in courts will be
reduced and justice will be delivered quickly and efficiently The disadvantageous part of
plea bargaining can be that sometimes the prosecutor may force the accused to admit his
guilt with unconscionable pressures.

Terminal Question
1. Refer to sections 3.5 to 3.7 and see Chapter XXI A of the Code of Criminal Procedure
along with recommendations of Law Commission of India
3.13 References and Suggested Readings
- Bare Act of Criminal Procedure Code,1973 with Latest Amendments
- Bewari, Sulabh and Aggarwal, Tanya, “Wanna Make a Deal? The Introduction of Plea
Bargaining in India” (2006) 2 SCC (Cri) J-12
- Brady v. United States 297 US 742 ; 25 L.Ed. 2d 747
- Business Standard, 29/10/2009
- http://www.legalserviceindia.com/articles/plea_bar.htm
- Kasambhai Abdulrehmanbhai Sheik etc. v. State of Gujarat and another AIR 1980 SC
854
- Law Commission of India 142nd Report 1991
- Law Commission of India 154th Report 1996
- Law Commission of India 177th Report 2001
- Mohapatra Sidhartha & Saksena Hailshree, Plea Bargaining: A unique remedy,
www.indlaw.com
- Murlidhar Meghraj Loya etc. v. State of Maharashtra,etc. AIR 1976 SC 1929
- People v Glendenning, 127 Misc.2d 880, 1985
- Pillai. K.N.C. (rev.) (2008) R. V. Kelkar's Criminal Procedure, Eastern Book Company
Lucknow
- Pradeep Gupta vs State, (Judgment delivered on September 03, 2007)
- Santobello v New York (404 US 257)
- State of Uttar Pradesh vs Chandrika, (AIR 1999 SC 164)
Unit 2 COMPENSATORY JURISPRUDENCE

Structure

2.1 Introduction
2.2 Objectives
2.3 History of compensatory jurisprudence
2.4 Compensatory jurisprudence in India
2.5 Legislative Provisions in India
2.6 Judicial Response Towards Payment of Compensation to the Victims
2.7 Compensation and Women Victims
2.8 Summary
2.9 Terminal Question
2.10 Answers and Hints
2.11 References and Suggested Readings

2.1 Introduction
Crime is seen as cancer of society which is steadily increasing. It has been observed that the
administration of criminal justice remained generally unsatisfactory from the point of view of
the victims of crime. The basic object of the Criminal Justice is to protect the society against
crime and to punish the offender. However, Criminal Justice System does not show equal
concern to the victims of crime, who have suffered loss or injury. The satisfaction the
victims get from justice is the punishment inflicted upon the criminal. The tendency of
modern criminologists is to stress on the reform, rehabilitation and legal aid of the accused.
The object of the punishment is not merely to shelter and reform the criminals but there is
need for safeguarding the interests of the victims also.
To maintain the law and order in the society, the civilized state does not allow a victim to
take the law in his hands either to punish the wrongdoer or re-compensate the loss suffered or
injury sustained. Traditionally, Criminal Administration of Justice assumes that the claim of
the victim is sufficiently satisfied by the conviction and the sentence of the offenders.
However, in the present scenario this traditional thinking seems to be unjust, unfair and
inequitable when society and state are resorting to every possible measure for correction and
rehabilitation of the offender and on the other side not displaying equal concern for
compensating victims of crime. While the principles of retribution and retaliation as an
approach to punishment of criminals cannot be accepted in today’s criminal law
jurisprudence, the injury and suffering caused to the victims should also not be neglected
Compensatory jurisprudence as new part of criminal law is fast developing as it serves two
purposes, firstly, a victim is not lost sight of in the criminal justice system and secondly, an
accused convicted is made to realize that he has a duty towards those injured by his actions.
Currently, movement is growing in several countries, including our own, to reexamine the
problem of compensation or restitution to the victim. Realizing that the offender is in no
position to pay the indemnity for his act, criminal lawyers, criminologists and social workers,
are contemplating the possibility of the State making compensation to the victim.

2.2 Objectives

After reading this Unit you should be able to-

• trace the history of compensatory jurisprudence

 • understand the need and object of compensation to the victims
• examine and evaluate existing laws governing compensation to the victims
• understand role played by judiciary in granting compensation to the victims
• identify the future of compensatory jurisprudence in India

2.3 History of compensatory jurisprudence

In the evolution of criminal jurisprudence, the concept of compensation of the victim of the
wrong occupied a major place in most legal systems. In early law1, an injured person or the
relatives of one killed could exact similar vengeance from the wrong doer and his kin
provided that no more was sought than was justly due. Later it was accepted that blood
money2 could be paid in lieu of pursuing the blood-feud, though the injured person or the
relative was allowed by law the option of taking money or taking blood for certain offences.
The principle of compensation for victims of crime occupied a prominent place in mosaic law
and the Penal Codes of ancient Greece and Rome. In the Penal Code of Solon (Athens) a thief
had to forfeit twice the value of the articles stolen to the victims as well as to the public
treasury. The Roman Law specified progressive rise in compensation payable depending
upon the stage of nature of the crime. Apart from theft, assault, libel and trespass were other
offences in which compensation was payable.
The principle of compensation reached the high water mark of development in England in the
Anglo Saxon period. The 'Anglor-Saxons"3 first systematically used monetary payments in
the form of damages or compensation to the victim of wrongs. In Anglo Saxon England the
criminal had to make compensatory payments, the Wer or Bot to the victim or his relative
and the writ to the King or the Feudal Lord. The money value set on a man according to his
rank was 'wer' and the compensation 'wergild' or 'bot'. In addition there was wite, a penal fine
payable to the King or other public authority as a penalty for having broken the King's peace.

Towards the end of the middle ages, however the institution of compensation began to lose its
force, due to the simultaneous growth of Royal and Ecclesiastical power which had a sharp
distinction between torts and crimes. The concept of compensation was closely related to that
of punishment and it was merged to some extent in the Penal Law, but at the same time, a
number of offences like murder, robbery and rape were no longer regarded as torts which
could be settled by compensation, but were regarded as crimes against society and were
punishable as such. Gradually, as the State monopolised the institutions of punishment, the
rights of the injured were separated from the Penal Law and the obligations to pay damages
or compensation became a part of the Civil Procedure.
The demand for compensation for the victims of crimes was revived during the Penal reforms
movement of the 19th Century. Some penal philosophers strongly advocated for
compensation and restitution to the victim. Among those were Bonneville, Lombrose, and
Garofalo. Bonneville was a strong voice in the field of penal reforms who stressed on "public

1
David M. Walker,Tthe Oxford Companion to Law (1980), p. 138; See also Pollock and F. Maitland,
The History of English Law (1898).
2
David M. Walker, The Companion to Law (1980), p. 138
3
Hugh D: Barlow, Introduction to Criminology (1970), p. 453. See also H. Chadwick, Studies on
Anglo-Saxon Institutions (1905)
responsibility" to the victim. Lombroso4 supported the idea of victim compensation and
recommended that the victim of a crime should be properly compensated for injury. This
would not only be an ideal punishment but would benefit the victim as well, he thought. He
recognised the difficulties in administering such a proposal, but his idea was that "the victim
should be legally entitled to receive a part of the proceeds from work done by culprit during
detention". Garofalo5 supported the idea of "enforced reparation". He thought, the damages
are to be assessed in sufficient amount not only adequate for complete indemnification of the
injured party but to cover the expenses incurred by the state as a result of the offender’s
dereliction. If the offender’s means are inadequate his labour must be devoted to the required
reparation. At the First Congress of Criminal Anthropology in Rome (1885), a resolution was
passed which essentially followed the suggestion of Garofalo. The Third International
Juridical Congress at Florence (1891) also recommended the institution of a "Compensation
Fund".
The issue was discussed at fifth International Prison Congress in the later half of the century.
Despite the strong advocacy of Jeremy Bentham and a number of leading penologists, the
acceptance of the principle of the state liability to pay compensation to the victims of crime
remained a distant dream.6
Some western countries such as New Zealand (1963), Great Britain (1964), and U.S.A.
(California, 1965) introduced a type of state sponsored compensation programme in their
criminal justice system at least for crimes of personal violence.7 In the following sections of
the unit we will see how in present times the administration of criminal justice has been
reoriented so that it can also be of some benefit to the victim who has suffered at the hand of
the criminal.

Self Assessment Question

1 Trace the history of compensatory jurisprudence in legal systems of the world.
………………………………………………………………………….
………………………………………………………………………

2.4 Compensatory Jurisprudence in India

Various Reports of Law Commission of India as well of Committees on Reforms of Criminal

Justice administration have played a pivotal role in developing compensatory jurisprudence
in India. The Law commission of India in its hitherto submitted Reports on the Indian Penal
Code,1860 (IPC)and the Code of Criminal Procedure,1898 and of 1973 has deliberated upon
the issue of justice to victims of crime and has also suggested some proposals for reform. The
Malimath Committee (2003) on Reforms of Criminal Justice System in India has also laid
emphasis on the participation of victims in the criminal justice processes and has advocated
for compensation and restitution of the victims.

4
"Cesare Lombroso" in Mannheim, Pioneers, p.279
5
"Raffaele Garoofalo" in Manneheim, Pioneers, p.331. The views of Bentham on 'Pecuniary
satisfaction' also provide an interesting comparison (Bentham, Theory of Legislation, 1971, p.282).
6
Bajpai, Kausal Kishore, “The History of Compensation of the victims of crime” 2006 Cri. L.J.26 (Jr)
7
See Singh, S.C. “Compensation and Restitution to the Victims of Crime” 1992 Cri.L.J. 100 (Jr)
42nd Report of Law Commission, 1971- Recommendation Regarding
Compensation under Indian Penal Code, 1860

In India, criminal law does not provide for payment of compensation to victim of crime for
any 'loss' or 'injury' — physical, mental or psychological caused to him by the offender8.
With a view to give prominence in the Indian Penal Code, 1860 to the payment of
compensation out of fine imposed and to give a substantive power to the trial Court to this
effect, Law Commission of India in its 42nd report (1971) suggested the insertion of Section
62 in the Penal Code.9
The Parliament did not pay attention to the recommendations of the Law Commission. But,
the existing provision relating to compensation was inserted in the Code of Criminal
Procedure through amendment and its application was expanded.It was provided in the
modified Section 357 (545 of old Code) of Criminal Procedure Code,1973 that, in every case
where the new Section 62 of the Penal Code is attracted, but the Court decides not to make an
order for payment of compensation out of the fine, it should record its reasons.
However, Justice R. L. Narasimham, member of the Law Commission opined that Section
357 (Section 545 of Criminal Procedure Code, 1898) is wholly unsatisfactory because of
some reason. Firstly, under Section 545, Cr. P.C. (357 New Code) compensation can be given
only in money, to the injured party. There is no provision for direct reparation for the harm
caused. Secondly, the procedure involved in the section is circuitous, dilatory, expensive and
caused much harassment to the injured complainant. Besides, it does not cover cases of those
accused persons who are unable to pay the fine. The evil effect of short term imprisonment
persists and the complainant also may not be able to derive any advantage as far as reparation
is concerned.
Accordingly Justice R. L. Narasimham recommended deletion of Section 545 (Section 357
New Code) from the Criminal Procedure Code and insertion of a new section in Indian Penal
Code10 to make improvements in the law concerning payment of compensation by the
8
See Vibhute K. I.. Compensating Victims of Crime in India : An Appraisal, 1990 JILI Vol. 32 : 1, p.
68.
9
“Whenever a person is convicted of an offence punishable under Chapter XVI, Chapter XVII or
Chapter XXI of this Code or of an abetment of such offence or of a criminal conspiracy to commit
such offence and is sentenced to a fine whether with or without opinion that compensation is recover-
able by civil suit by any person for loss or injury caused to him by that offence, it shall be competent
to the Court to direct by the sentence that the whole or any part of the fine realized from the offender
shall be paid by way of compensation to such person for the said loss or injury.
Explanation— Expenses properly incurred by such person in the prosecution of the case shall be
deemed part of the loss caused to him by the offence.” See 42nd Report of law commission, 1971,pp
53-54
10
70A (1) In the case of conviction for an offence against the human body and offence against
property, defamation or an offence against privacy, the Court may direct that the person convicted
shall pay compensation to the person mentioned in sub-section (4).
(2) Such compensation need not necessarily be monetary and it may be in any form which the Court
considers to be sufficient recompense to the injured party. But, while passing the order for
compensation, the Court shall estimate its monetary value for the purpose of execution of the order.
(3) The Court shall not, under this Section direct payment of compensation whose monetary value
exceeds the amount of fine which it is empowered to impose.
(4) An order under sub-section (1) may be made—
(a) In addition to any other punishment to which the person convicted may have been sentenced.
(b) In substitution of fine, where the offence not being a capital offence, is one punishable with fine.
offender. Basically it gave emphasis to compensation by a convict out of the fine imposed
upon him for committing an offence against the human body, property, defamation or abet-
ment of or criminal conspiracy to commit such offence. Secondly, the provision favored
compensation to the victim by pleading for imposition of a statutory duty on offenders to re-
compensate monetarily or otherwise, the victim.
The second approach not only shows equal concern to victim of crime but also visualizes a
real and reasonable compensation of victim. Unfortunately, whole of the recommendations of
the Law Commission did not find a place in the provision of the Indian Penal Code, 1860.

156th Report of Law Commission, 1997

In 1997, The 14th Law Commission, in its 156th Report on the IPC recalling its earlier
recommendations made in 1994 in its 152nd Report and in its 154th Report 1996, on the
Cr.P.C. for framing a ‘Victim Compensation Scheme’ by State governments and realizing
that the payment of compensation as an ‘additional punishment’ not only requires an inquiry
into a variety of circumstances but also a few cases may not warrant compensation by way of
punishment, opined that it would be ‘not appropriate’ to include order of payment of
compensation by way of punishment.

226th Report of Law Commission, July 2009, Recommendation Regarding

Compensation under Indian Penal Code, 1860

The law commission submitted its report to the Hon’ble Supreme Court of India for its
consideration in the pending proceedings filed by one Laxmi in W.P. (Crl.) No. 129 of
2006 on “The Inclusion of Acid Attacks as Specific Offences in the Indian Penal Code
and a law for Compensation for Victims of Crime”
Law commission recommended that a separate Act should be proposed for dealing with
compensation to victims of acid attacks, rape, sexual assault, kidnapping etc. It suggested a
broader legislation so that it can deal with the problems of victims of different crimes
who need rehabilitation and compensation for survival.
Malimath Committee Report11, 2003

In March 2003, the Malimath committee in its Report on reforms on the Criminal Justice
System in India, has, among other things also delved into ‘justice to victims’ and urged the

(5) The compensation under this section may be directed to be paid—

(a) to any person who has incurred expenses in prosecution for defraying expenses properly incurred;
(b) to any person for any loss or injury caused by the offence, when compensation is in the opinion of
the Court, recoverable by such person in a civil Court;
(c) in the case of conviction of any offence for having caused the death of another person or of having
abetted the Commission of such offence, to the person who are, under the Fatal Accident Act. 1855,
entitled to recover damages to the person sentenced, for the loss resulting to them from such death; or
(d) In the case of a conviction for any offence which includes, theft, criminal misappropriation,
criminal breach of trust, or cheating or of having voluntarily assisted in disposing of, stolen property
knowing or having reason to believe the same to be stolen, to any bona fide purchaser of such prop-
erty for the loss of the same, if such property is restored to the possession of the person entitled
thereto.
11
Government of India, committee on Reforms of Criminal justice System, 2003 p.271
legislature to draft a law on the subject. Like Law Commission, Malimath committee also felt
that compensating victims of crime is a state obligation and proposed a ‘victim compensation
law’ providing for the creation of a ‘victim compensation fund’ to be possibly administered
by the Legal Services Authorities created under the Legal Services Authority Act, 1987. It
also laid down the categories of offences where compensation can be awarded, not be
awarded and withdrawn. The merit of Malimath committee report is that it, for the first time,
delved into the ‘participation’ of victims in criminal processes as an inseparable component
of justice.

Self Assessment Question

2. How compensatory jurisprudence has developed in India ? Refer to Law Commission
reports in this regard.
…………………………………………………………………………………
……………………………………………………………………………….
3. Discuss recommendations made by Malimath committee on compensation to victims of
crime?

2.5 Legislative Provisions Regarding Compensation

There is neither a comprehensive legislation nor a well designed statutory scheme or a public
policy in India either allowing a victim of crime to seek compensation from the offender
and/or state or to participate, as a matter of right, in the criminal justice process. However, a
careful reading of provisions of Code of Criminal Procedure, 1973 as amended on date and
that of Probation of Offender’s Act, 1958 reveals that a few sections contained therein can be
invoked to provide justice and compensation to the victims of crime.

Provisions in India

There is no comprehensive legislation providing for compensation by the State or by the

offender to the victims of crime. The Criminal Procedure Code is the first and may be the
oldest legislation in India to deal with the subject of compensation to the victims of crime.
The provisions of Criminal Procedure Code concerning victim compensation occupy a
prominent place in the progressive development of the law relating to victim compensation
through judicial approach.
The provisions for compensation envisaged in the Code of Criminal Procedure, 1973 are
contained in Sections 357, 358, 359 and 357-A of the Code. Some other provisions on the
subject matter are under Sections 237 and 250 of the Criminal Procedure Code, 1973.

Power of Court to Pay Compensation on Conviction

Specifically, Section 357 of the Criminal Procedure Code, 1973 enables the passing of an
order of compensation by the trial Court, the Appellate Court and the High Court or Court of
Session in revision at the time of passing of judgment, out of fine imposed by the Court under
the following circumstances :
Firstly, (a) to the complainant, for meeting expenses properly incurred in the prosecution; (b)
to a person, who has suffered loss or injury by the offender, when he can recover
compensation in Civil Court; (c) to a person entitled to recover damages under the Fatal
Accidents Act, when there is a conviction for causing death or abetment thereof; (d) to a bona
fide purchaser of property, which has become the subject of theft, criminal misappropriation,
criminal breach of trust, cheating, or receiving or disposing of stolen property and which is
ordered to be restored to its rightful owner.
Secondly, where there is an appeal against any sentence or fine, no compensation shall be
paid till the appeal period lapses.
Thirdly, in all cases where no fine is imposed, the Court may order the payment of
compensation to the victims of crime who have suffered any loss or injury.
Whenever compensation is paid under Section 357 it shall be taken into account by any Civil
Court which subsequently takes up the civil suit claiming compensation. Section 357
visualizes a wide range of situations under which compensation may be ordered to be paid to
the victims of crime. Under the section, the categories of victims which become entitled to
claim compensation are the complainant victim or any person who has suffered loss or injury
because of the offence. He can recover compensation in Civil Courts under the Fatal Acci-
dents Act, 1855 and when there is a conviction causing death or abetment thereof or a bona
fide purchaser of property, etc. can claim compensation. But this Section 357 of Code of
Criminal Procedure does not provide interim or immediate compensation to the victim on
motor accidents claim cases
Considering Section 357, sub-section (1) of the Code empowers a Criminal Court to award
the whole or any portion of the fine recovered for the purposes mentioned in clauses (a) to
(d). Further clauses (a) and (d) in essence, deal with defraying pecuniary losses incurred by a
person in prosecution 12 and by a bona fide purchaser of stolen goods, respectively. Clause
(b) and clause (c), on the other hand, respectively deals with re-compensating 'any loss'
(pecuniary or otherwise) or injury caused by any offence13 and by death.__
In order to claim compensation under clause (b) it is necessary to show that person suffered a
loss. 'Loss' means that can be compensated in money including some substantial detriment
from a worldly point of view and loss of support and even loss of mere gratuitous liberty
while the word 'injury' has been given a very wide meaning and connection in Indian Penal
Code, 1860.
The compensation under this section not only corresponds to damages awarded in civil
proceedings but is also to be taken into consideration by a Civil Court in determining the
quantum of damages in a subsequent civil suit relating to the same matter.
Further, sub-section (3) was inserted in Section 357 of the Code of Criminal Procedure, in
1973, unlike sub-section (1), empowers a Criminal Court, in its discretion, to order the
accused to pay by way of compensation a specified amount to victims of the offence even if
fine does not form part of the sentence imposed on him.
Keeping this in view, Section 357(3) of Criminal Procedure Code has not only recognized the
philosophy of the compensation simplicitor to the victims of crime even in the situation
where no sentence of fine has been imposed but it also added a new dimension to the idea of
re-compensating them. Prior to inclusion of this clause no compensation could be awarded

12
See, Code of Criminal Procedure, 1973, Section 359 also empowers a Court, in its discretion to
order a convict in addition the penalty imposed upon him, to pay reasonable costs, in whole or in part,
incurred by the complainant in prosecution of a non-cognizable offence.
13
Ibid; Sec. 358 also empowers a Magistrate; in his discretion to award a compensation, not
exceeding Rs. 1000 (subs. by Act 25 of 2005, w.e.f. 23-6-2006) to an accused from a complainant for
loss of time and expenses incurred on account of being groundlessly arrested at the instance of the
complainant.
unless a substantive sentence of fine was passed and then too this was limited only to the
extent of the fine actually realized. So it can be for any amount and not limited to the amount
of fine imposed or recovered.

Compensation to the Persons Groundlessly Arrested

Thus, Section 358 visualizes when any person has been caused to be arrested by the police, at
the instigation of a person and the Magistrate finds that such arrest was caused on insufficient
grounds, than he may order a sum of rupees not exceeding one thousand14 to be paid to the
victim of such arrest. In these instances the State is to proceed against the erring officials and
release the amount awarded as compensation.
Further, it is pertinent to note that Section 358 obviously aims at protecting the
constitutionally guaranteed personal liberty of the person under Article 21 of the Constitution
of India and also save them from illegal and arbitrary arrest, even without reference to any
accusations or charge leveled against such person. Thus, this is definitely, important piece of
legislation against groundless arrest by the police which upholds the rule of law by having
democratic values.15

Order to Pay Costs in Non-Cognizable Cases

Under Section 359 of the Code when any person has been convicted in non-cognizable case
the Court may order for the refund of expenses incurred by the complaint in launching the
prosecution. So under Section 359, the complaint victim is entitled to claim only the expenses
incurred in the launching of the prosecution for loss or injury suffered by him.

Compensation for accusation without reasonable cause

Similarly, Section 250 of the Code also lays down special provision for the payment of
compensation to the accused person in cases where he is discharged or acquitted as a result of
finding no reasonable ground existing for launching such prosecution.
Section 250 of the Code of Criminal Procedure, thus, covers only those specific cases where
case has been instituted upon a complainant or upon the information given to police or to the
Magistrate accusing some person of having committed certain act or offence triable by a
Magistrate and the case should have been ended in an acquittal when the Magistrate trying
the case should have found that complaint or the information given was false and either
frivolous then the Magistrate may order the informant to pay compensation.
Further, Section 237 of the Code lays down that the Court of Session taking cognizance of an
offence under sub-section (2) of Section 199 shall try the case in accordance with the
procedure for the trial of warrant cases instituted otherwise than on a police report before a
Court of Magistrate.
This Section lays down the provision of the payment of compensation to victims of crime by
the Sessions Court in the cases involving the defamation of a person. The maximum amount
of compensation that the Court may award under this Section is Rs. 1000/-.

14
Subs. By act 25 of 2005, w.e.f. 23.6.2006, earlier it was 100 Rs. only
15
See Mundrathi, Sammaiah, Law on Compensation to Victims of Crime and Abuse of Power,
(2002), p. 75.
Under Section 237 to award the compensation the accused must have been discharged or
acquitted on the ground that no reasonable cause for making the acquisition against the
accused exists.
It is clear from the observations that the Court is empowered to award compensation to the
victim or his dependents out of the fine imposed upon the offender. After considering all the
provisions of the Code it is; clear that Section 357(3) confer wider powers on the Court to
award compensation irrespective of the fine amount imposed. Further, it is clear from the
above provision which at least visualize a minimum scheme of compensation, for the victims.
If the provision of Section 357(3) is excluded then the purpose of the provision, become
futile in case the offender is unable to pay the fine imposed. Therefore, in most of the cases,
where compensation is awarded, it remains unreal.

Recent Amendment in Cr P C

After section 357 of the principal Act, Section 357A has been inserted providing for
Victim Compensation Scheme16 —

Victim Compensation Scheme

357A. (1) Every State Government in co-ordination with the Central Government shall
prepare a scheme for providing funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require
rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal
Service Authority or the State Legal Service Authority, as the case may be, shall decide
the quantum of compensation to be awarded under the scheme referred to in sub-section
(1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation
awarded under section 357 is not adequate for such rehabilitation, or where the cases
end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation
for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial
takes place, the victim or his dependents may make an application to the State or the District Legal
Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the
District Legal Services Authority shall, after due enquiry award adequate compensation by
completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the
suffering of the victim, may order for immediate first-aid facility or medical benefits to be
made available free of cost on the certificate of the police officer not below the rank of the
officer in charge of the police station or a Magistrate of the area concerned, or any other interim
relief as the appropriate authority deems fit.

Compensation Under Probation of Offenders Act, 1958

The whole object of the Probation of Offenders Act,1958 is to prevent conversion of youthful
offender into obdurate criminals of matured age, in case they are sentenced to undergo
16
Inserted by act 5 of 2009, w.e.f. 31/12/2009 (incorporates recommendations of Law
commission,152nd Report,1994)
substantive imprisonment in jail. The Probation of Offenders Act enables the Court, directing
release of an offender under Section 3 and Section 4 in its discretion to grant 'reasonable
compensation' to any person for loss or injury caused to him by commission of the offence
and costs of the proceedings._

Sub-section 5(1) lays down powers of Court to Require Released Offenders to pay
Compensation and Costs as under:

(1) The Court directing the release of an offender under Section 3 or Section 4, may, if it
thinks fit, make at the same time a further order directing him to pay—
(a) Such compensation as the Court thinks reasonable for loss or injury caused to 'any person
by the commission of the offence; and
(b) Such costs of the proceedings as the Court thinks reasonable.
(2) The amount ordered to be paid under sub-section (1) may be recovered as fine in
accordance with the provisions of Sections 386 and 387 of the Code.
(3) A civil Court trying any suit, arising out of the same matter for which the offender is
prosecuted, shall take into account any amount paid or recovered as compensation under sub-
section (1) in awarding damages.
After considering the language of the Section an inference can be drawn that the provisions
are inadequate from the victim's point of view. The award of compensation and costs is at the
discretion of the Court. Similarly, under Probation of Offenders Act, 1958 the Court's
discretion plays vital role when act is both a tort and a crime."17 The dependent may be paid
compensation from within the fine amount which a Magistrate may impose on the accused
under Section 357 of the Criminal Procedure Code.
It is amply clear that power to award compensation vests only with the Court releasing an
offender and is purely within its discretion. Even the Appellate Court or High Court cannot
interfere unless it is of the view that such power has been exercised capriciously and
unreasonably.18
The most significant aspect which is worth mentioning is that although the Probation of
Offenders Act has self-contained provision for award of compensation to the victim who has
suffered at the hands of the offender, provisions under Probation of Offenders Act, 1958 are
very rarely pressed into by the trial Courts. As a general notion, it is agitated on the issue of
releasing the offender straightway without grant of any compensation to the victim of the
crime. Unfortunately in our legal system, in quite large number of cases, the victim and the
aggrieved party who has suffered mental and physical agony is left in the lurch and has to
reconcile to his fate as law is inadequate to protect him.

In Other Select Countries

In some of the western countries like Finland, France, Israel, Japan, Norway and United
states and other countries the compensation to victims of crime is being given by the state. In
USA compensation is being given by the state as well as by the offender. In Austria and
Belgium the offender has to compensate the victim of crime. In some countries like
Columbia, Germany, Switzerland, Ireland, Czech Republic the law does not specify whether
the compensation is being given by the state or by the accused.19

17
Nanak Singh v. State of Punjab. 1983 Cri LJ 232 (P&H)
18
Rajeswari Prasad v. R. B. Gupta. AIR 1961 Pat 19.
19
Siddique, Ahmed, “Criminology, Problems and Perspectives” (2009) p.609
In Canada

The Commission has also examined the Canadian legislation for payment of
compensation under the “ Compensation for Victims of Crime Act”. This act applies to
compensation claims arising from an injury or death resulting from certain offences.
Thus, the act provides for compensation inter-alia to victims of offences like sexual
assault, aggravated sexual assault, murder, manslaughter, sexual exploitation, assault,
kidnapping etc. The act sets up a Criminal Injuries Compensation Board, which can pay
compensation to the victim or a person who is responsible for maintenance of the victim or
where death has occurred, the dependants or any of them of the victim or the person who was
responsible for the victim’s maintenance. The compensation can be awarded under the
following heads –
a) Expenses actually and reasonably incurred or to be incurred as a result of the victims
injury or death;
b) Pecuniary loss or damages incurred by the victim as a result of total or partial disability
affecting the victims capacity for work;
c) Pecuniary loss or damages incurred by the dependants as a result of the victim’s death;
d) Pain and suffering ;
e) Maintenance of a child born as a result of sexual assault;

f) Other pecuniary loss or damages resulting from the victims injury and any expense that in
the opinion of the board it is reasonable to incur.
Interim payments to the applicant preceding the award can also be made. The total
compensation ordered to be paid cannot exceed $100,000 in lump sum payments for one
occurrence. The payment of the compensation has to be paid out of the consolidated fund.

In United Kingdom (UK)

The UK Criminal Injuries Compensation Act 1995 makes the government responsible for
setting up a scheme and states as under-
(1) The Secretary of State shall make arrangements for the payment of compensation to, or in
respect of, persons who have sustained one or more criminal injuries.
(2) Any such arrangements shall include the making of a scheme providing, in particular,
for—
(a) the circumstances in which awards may be made; and
(b) the categories of person to whom awards may be made.
(3) The scheme shall be known as the Criminal Injuries Compensation20

It states that a standard amount of compensation will be determined by reference of the

nature of the injury and additional amounts with respect to special expenses and fatal injuries
can be provided for. The act states that the government should prepare a table showing the
amount which should be paid in different cases or for different injuries. A claim officer to
award the claim and adjudicators to hear an appeal have also been specified under the Act
It has been pointed out that Financial Compensation for the victim can be very generous in
the UK.21

20
Section 1 of Criminal Injuries Compensation Act, 1995
21
Cited from 226th Report of Law commission of India, 2009, pp.40‐41
Self Assessment Questions
4. Discuss the conditions under which compensation can be awarded to the victim under
Code of Criminal procedure,1973.
………………………………………………………………………………….
……………………………………………………………………………………
5. Analyse provisions of Probation of Offender’s Act for providing relief to the victims of
crime.
………………………………………………………………………………..
………………………………………………………………………………….

2.6 Judicial Response Towards Payment of Compensation to the Victims

Court has very limited discretion under Section 357(1) to award compensation only out of the
fine, if imposed on the offender. The Court has, however much more discretion under sub-
section (3) of Section 357, though only if fine does not form a part of the sentence. No doubt,
sub-section (3) of Section 357 was added, as recommended by the Law Commission in its
41st Report, in the new Criminal Procedure Code, 1973. If the Section is read simply, the
power of the Court is unlimited, though practically a Magistrate can order for higher
compensation than the amount of fine he can impose.
In Nand Ballabh Pant v. State (Union Territory of Delhi)22 the appellant was convicted
under Section 304-A, Indian Penal Code, 1869. He was sentenced to two months' rigorous
imprisonment with a fine of Rs. 500/-. On appeal to the Apex Court, the sentence was
reduced to one month but the fine was enhanced to Rs. 1000/- with the direction that the same
be paid to the wife of the deceased by way of compensation. In another case of Palaniappa
Gounder v. State23 the Supreme Court has expressed its disapproval of combining the
punishment with the death sentence and even with life imprisonment. In the said case the
High Court had reduced the punishment of death sentence to life imprisonment awarded by
the trial Court and imposed a fine of Rs. 20,000/- on the offender payable to the heirs of the
deceased. The Supreme Court of India held that the amount of compensation must not be
excessive. The Court further stated that it is not proper to first decide what compensation
should be paid and then to impose fine which is higher than the compensation.
In another case of Sarwan Singh v. State of Punjab24 where the deceased was murdered by
his two brothers and their sons. Both the trial Court and High Court convicted all the
offenders under Section 302 read with Section 149 of the Indian Penal Code. The Apex Court
set aside the conviction under Section 302 read with Section 149 and found the appellant
guilty under Section 304(1) read with Section 149 of the Indian Penal Code and sentenced
them to five years rigorous imprisonment with a fine of Rs. 3500/- each with the direction
that same be paid as compensation to the widow of the deceased. While awarding compensa-
tion the Court observed that - "the object of the Section, is to provide compensation payable
to the persons who are entitled to recover damages from the person sentenced even though
fine does not form part of the sentence.”
In Guruswami v. State of Tamil Nadu25 Supreme Court remarked that in case of murder it is
only fair that proper compensation should be provided for the dependents of the deceased. In

22
AIR 1977 SC 892 : 1977 Cri LJ 549.
23
AIR 1977 SC 1323 : 1977 Cri LJ 992.
24
AIR 1978 SC 1525 : 1978 Cri LJ 1598.
25
AIR 1979 SC 1177 : 1979 Cri LJ 704.
the instant case the accused was convicted on a charge of murder. The victims were his father
and brother. The accused was found guilty in two Courts under Section 302, Indian Penal
Code and was sentenced to death by each Court. The conviction of the appellant was
confirmed by the Apex Court but the sentence was reduced to imprisonment for life. In
Prabhu Prasad Sah v. State of Bihar, 26 the Apex Court imposed a fine of Rs. 10,000/- on
the offender to be paid to the heirs of the deceased. It was observed by the Supreme Court
that “criminal justice has many dimensions beyond conviction, sentence, acquittal and
innocence. The victim is not to be forgotten but must be restored to the extent possible”.
In another case of Rattan Kumar v. Ranjit Singh27 understanding the plight of the victim,
declare the payment under insurance, and that he should also be paid out of fine, as
compensation bears no kinship and cannot be equated to insurance payments.
The major breakthrough in compensatory jurisprudence came through the decision of the
Supreme Court in the case of Hari Kishan and State of Haryana v. Sukhbir Singh & Ors 28
where it was recommended to all Courts in the country “to exercise the power of awarding
compensation to the victims of offence in accordance with Section 357 of Criminal Procedure
Code, 1973, so as to achieve the goal of social justice…It is an important provision but
Courts have seldom invoked it, perhaps due to ignorance of the object of it. It empowers the
Court to award compensation to victim while passing judgment of conviction. In addition to
conviction, the Court may order the accused to pay some amount by way of compensation to
the victim who has suffered by the action of the accused. It may be noted that this power of
the Courts to award compensation is not ancillary to other sentences but it is in addition
thereto."29
The Court again observed that power in this area must be used liberally and reasonably. It
should not be excessive, having regard to the circumstances of the case like motivation of the
offence, pecuniary gain likely to have been made by the offender and his means to pay the
fine.30The quantum of compensation maybe determined by taking into account the nature of
crime, the justness of claim by the victim and the ability of accused to pay it.
In Babu Raghunath Naik v. Mrs. T. P. Fauna,31 Judicial Commissioner of Goa held that the
accused-appellant was ordered to be released under Section 3 of the Probation of Offenders
Act, as he had committed theft of coconut tree for the purpose of using the same as sifters to
build his cottage. While releasing the accused after due admonition, in the circumstance of
the offence and the character of the offender, the Judicial Commissioner granted him the
benefit of the Probation of Offenders Act, directing him to pay a compensation of Rs. 50/- to
the complainant.
In another case of Mangilal v. State of Madhya Pradesh32, incorporating the principles of
natural justice, Supreme Court observed that “a court is required to hear an accused before
fixing quantum of compensation.”

26
AIR 1977 SC 704: See also Sukhdeo Singh v. State of Punjab, 1982 SCC (Cri) 467.
27
AIR 1983 P & H 160.
28
AIR 1988 SC 2127.
29
Ibid. p. 2131, Also refer to Balaji v. State of U.P.. 1995 Cri LJ 3217.
30
Palaniappa Gounder v. Tamil Nadu. AIR 1977 SC 1323; Sarwan Singh v. Punjab, AIR 1978 SC
1525 : (1978) 4 SCC 111
31
AIR 1967 Goa 95 : 1967 Cri LJ 1005.
32
2004Cri LJ 880; AIR 2004 SC1280
The above decisions of the Supreme Court clearly indicate that judicial trend in com-
pensating the victim is attaining new dimensions.

Self Assessment Question

6. How judiciary has contributed to development of law on compensation to victims in India?
……………………………………………………………………………………
……………………………………………………………………………………

2.7 Compensation and Women Victims

The judiciary has actively responded to women victims of rape, as they need a real, moral,
ethical, legal and economic support to face the trauma. Some of the important judgments where
compensation was awarded to the victims of rape are-
In Mukumda Martand Chatnis v. Madhuri33 for mud slinging and character assassination of
the wife, husband was find Rs. 1 lakh and Rs. 36,000 was to be paid as compensation to the
victim woman. In Dudalure M.J. Cherian v. Union of India34 the Supreme Court directed the
State of U.P. to pay Rs. 2,50,000 as compensation to each of the victims of rape.
In Rupaldeo Bajaj v K.P.S. Gill 35 Supreme court fixed the liability of offender and
gave monetary relief to the victim as the alleged act of Mr. Gill slapping Mrs. Bajaj
on her bosom amounted to “outraging of her modesty” . it was further held that it was
not only an affront to the normal sense of feminine decency but also an affront to the
dignity of the lady.
In the Delhi Domestic Working Women’s Forum v. union of India case36 the Supreme
Court of India had pronounced upon the need by the government to setup a Criminal
Injuries Compensation Board for rape victims within 6 months. The Supreme Court had
suggested that this board should give compensation whether or not a conviction takes
place. The Supreme Court explained the justification for this proposal as under-“It is
necessary, having regard to the Directive Principles contained under Article 38(I) of the
Constitution of India to setup Criminal Injuries Compensation Board. Rape victims
frequently incur substantial financial loss. Some, for example are too traumatized to
continue in employment.
Compensation for victims should be awarded by the court on conviction of the offender
and by the Criminal Injuries Compensation Board whether or not a conviction takes
place. The board will take into account pain suffering and shocks as well as loss of
earnings due to pregnancy and the expenses of the child but if it occurred as a result of
rape...”

In Bodhisattwa Gautam v. Shubhra Chakraborty37, the supreme Court again reiterated the
above decision and further laid down that courts had arrived to award interim
compensation which should also be provided for in the scheme.

33
AIR 1992 SC 1804
34
1995 SCC (Cri) 925
35
(1995) 6 SCC 194
36
(1995) 1 SCC 14
37
AIR 1996 SCC 922
In Uttrakhand Sanghrash Samiti, Mussorie v. State of Uttar Pradesh and others38
compensation to victims of the women molested and raped, the court viewed the
circumstances of these cases the same as in death and grievous hurt and held that of
those women who were molested and subjected to rape each shall be entitled to
receive compensation being the same as for victim of death.
In The Chairman, Railway Board and Others v. Mrs. Chandrima Das and Other. 39 a
sum of Rs.10 lakhs was awarded as compensation for Smt. Hanuffa Khaton as the
High Court was of the opinion that the rape is not a mere matter of violation of an
ordinary right of a person but the violation of Fundamental Rights which is involved.
An examination of acid attack cases again underlines the urgent need for a scheme of
compensation for the victims. Acid attack victims often have to, as stated earlier,
undergo multiple surgeries costing Lakhs of Rupees. They are also in urgent need of
rehabilitation as they often need financial help to exist. They may not be able to seek
employment.
The National commission for Women (NCW) has suggested a separate legislation to deal
with the offence of acid attack and as part of the proposed legislation has suggested
that the Central government should establish a National Acid Attack Victims Assistance
Board which will provide assistance to the acid attack victims by way of ensuring medical
treatment and other services such as psychological counseling. The board has also been
given the task to recommend to the Government strategies to regulate and control inter-
alia the production and sale of acids. It has been suggested that the board administers a
fund to be called The National Acid Attack Victims Assistance Fund to which the Central
and State government can give grants apart from others. It has been provided that the board
can give interim financial relief upto Rs. 1 Lakh within a period of 30 days directly to
the hospital. Apart from other issues the main problem with the suggestions of the
N.C.W is that it is restricting the function of the board to only acid attack cases.

Keeping in view the whole scenario of compensatory jurisprudence the ambit of criminal
justice system needs to be expanded keeping in view the overall change in the approaches,
thinking and circumstances. The victim should not be forgotten while administering justice.
He should fairly be compensated for the injury caused by the act of offender. This would
prove to be an effective means to attain the ends of justice.
The Courts should be empowered to impose compensation even in cases where the fine does
not form part of sentence. The discretionary power of the Court should be converted into a
legal mandate requiring it in all suitable cases to pass compensation orders and when it
decides not to do so it may be made obligatory to record reasons for doing so. The victim of
an offence be legally allowed to intervene in the criminal proceeding against the offender to
claim compensation for loss or injury. Such a provision will certainly enhance the use of'
statutory provisions to compensate victims of crime, as it would amount almost to presume
that the compensation is to be considered in every case.

Self Assessment Questions

7. Analyse recent case laws providing compensation for women victims of crime.
…………………………………………………………………………………
………………………………………………………………………………..
8. What suggestion has been made by National commission of women in this context?
38
[(1996)UPLBEC 461]AUHC
39
(2000) INSC 26 (28 January 2000) www.commonlii.org accessed on 28/05/2009
…………………………………………………………………………………………………
…………………………………………………………………………………………

2.8 Summary

Let us sum up the contents of this unit-

• Criminal Justice System does not show equal concern to the victims of crime, who
have suffered loss or injury.
• The tendency of modern criminologists is to stress on the reform, rehabilitation and
legal aid of the accused. The object of the punishment is not merely to shelter and
reform the criminals but there is need for safeguarding the interests of the victims
also.
• Compensatory jurisprudence as new part of criminal law is fast developing as it
serves two purposes, firstly, a victim is not lost sight of in the criminal justice system
and secondly, an accused convicted is made to realize that he has a duty towards those
injured by his actions.

• The principle of compensation for victims of crime occupied a prominent place in

mosaic law and the Penal Codes of ancient Greece and Rome.

• The demand for compensation for the victims of crimes was revived during the Penal
reforms movement of the 19th Century. Some penal philosophers such as Bonneville,
Lombrose, and Garofalo strongly advocated for compensation and restitution to the
victim.

• In the later part of the 19th century compensatory jurisprudence was reoriented to
provide compensation and restitution to the victims of crime.

• Section 357 (1)of the Criminal Procedure Code, 1973 makes provisions for payment
of compensation to the victim or his family out of the fine imposed on the accused.
• Section 357 (3) of Criminal Procedure Code empowers a Criminal Court to award
compensation out of fine imposed as a sentence as well as a specified amount as
compensation when the fine not treated as a part of the sentence.
• In normal circumstances, no compensation is ordered by the Court in such cases
where there is no provision of fine. The award of compensation is solely at the dis-
cretion of the Court.
• Section 358 of Code of Criminal Procedure, 1973 enables payment of compensation
for the misuse of power by the State like compensation for groundless arrest or when
police do acts contrary to law.
• Basic differences between Section 357 and Section 358 is that under previous one it's
offender's liability and in the latter case it is State's liability.
• 42nd Report of Law Commission of India gave prominence to compensating victims
of offences in Indian Penal Code, 1860
• 226th Report of law Commission of India again proposed a separate Act dealing with
compensation to victims of acid attacks, rape, sexual assault, kidnapping etc.
• Malimath Committees on Reforms of Criminal Justice Administration emphasized on
the participation of victims in criminal justice process.
 • Judiciary has positively contributed to compensatory jurisprudence through various
case laws.

2.9 Terminal Questions

1. Discuss provisions contained in Code of Criminal procedure for providing compensation to

the victims of crime. What recent Amendment has been made in this regard ?
2. Analyse role played by Indian judiciary in developing compensatory jurisprudence in India
?

2.10 Answers and Hints

Self Assessment Questions

1. In early times an injured person or the relatives of one killed could take vengeance
from the wrong doer and his kin. Later on the injured person or the relative was
allowed by law the option of taking money or taking blood for certain offences.
Anglo Saxons first systematically used monetary payments in the form of damages or
compensation to the victim of wrongs. Some penal philosophers like Bonneville,
Lombrose, and Garofalo strongly advocated for compensation and restitution to the
victims of crime. In the later part of the 19th century compensatory jurisprudence was
reoriented to provide compensation and restitution to the victims of crime. Refer to
section 2.3 and 2.4
2. The Law commission of India in its hitherto submitted Reports on the Indian Penal
Code,1860 (IPC)and the Code of Criminal Procedure,1898 and of 1973 has
deliberated upon the issue of justice to victims of crime and has also suggested some
proposals for reform. See section 2.4 and refer to the book of Vibhute, K.I.,
“Criminal Justice” 2004, pp381-387
3. The Malimath Committee (2003) on Reforms of Criminal Justice System in India has
also laid emphasis on the participation of victims in the criminal justice processes and
has advocated for compensation and restitution of the victims. Malimath committee
also felt that compensating victims of crime is a state obligation and proposed a
‘victim compensation law’ providing for the creation of a ‘victim compensation fund’,
See section 2.4 and refer to page 271 of the Report
4. The provisions for compensation are contained in Sections 357, 358, 359 and 357-A
of the Code of Criminal Procedure, 1973Code. Some other provisions are given under
Sections 237 and 250 of the Criminal Procedure Code, 1973. Refer to section 2.5
5. Section 5(1) of the Probation of Offenders Act enables the Court, directing release of
an offender under Section 3 and Section 4 in its discretion to grant 'reasonable com-
pensation' to any person for loss or injury caused to him by commission of the offence
and costs of the proceedings. Refer to section 2.5
6. See section 2.6 of the reading material
7. See cases of Delhi Domestic Working Women’s Forum v. union of India,
Bodhisattwa Gautam v. Shubhra Chakraborty, The Chairman, Railway Board and
Others v. Mrs. Chandrima Das etc. as given in section 2.7 of the reading material
8. See section 2.7 of the reading material

Terminal Questions
 1. The provisions for compensation are contained in Sections 357, 358, 359 and 357-
A of the Code of Criminal Procedure, 1973Code. Some other provisions are given
under Sections 237 and 250 of the Criminal Procedure Code, 1973. Refer to
section 2.5 of reading material and Section 357A of the Cr PC as inserted by Act 5
of 2009
2. Refer to landmark decision of the Supreme Court in the case of Hari Kishan and
State of Haryana v. Sukhbir Singh & Ors (1988).Refer to other case laws as given
in sections 2.6 and 2.7

2.11 References and Suggested Readings

- Law Commission of India, 42nd Report, 1971
- Law Commission of India, 152nd Report, 1994
- Law Commission of India, 154th Report, 1996
- Law Commission of India,156th Report, 1997
- Law Commission of India,226th Report, 2009
-Malimath Committee Report on Reforms of Criminal Justice System in India, 2003
-Singh, Mool, “Compensatory Justice in Criminal Law-A Goal of Social Justice” in Crime
and Criminology (ed) K.B. Agarwal & R,K. Raizada, Univ Book House (P) Ltd, 2004
-Bajpai, K.K. “The History of Compensation of the Victims of Crime” 2006 Cr.l.J. 26(Jr)
-Deb, R., Principles of Criminology Criminal law and Investigation, S.C. Sarkar & Sons,
Calcutta, 1991
-Sindhu, Sanjay, “Compensatory Jurisprudence Under Criminal Law : Flaws in Existing
Laws That Needs Reforms” 2007 Cr. L.J.59 (Jr)
- Rajawat, J.S., “Reparation to Victim of Crime”, CBI Bulletin, December, 1994
- Singh, S.C., “ Compensation and Restitution to the Victims of Crime”, 1992 Cr. L.J. 100(Jr)
- Mahajan, R.K., “Justice to Victims” 1990 Supreme Court Journal 9(Jr)
- Mundrathi, Sammaiah, “Law on Compensation to Victims of Crime and Abuse of Power”
Deep & Deep Publications Pvt. Ltd. , Delhi, 2002
- Vibhute, K.I., “Criminal Justice” Eastern Book Co. Lucknow, 2004
- Siddique, Ahmed, “Criminology, Problems and Perspectives” Eastern Book Co. Lucknow,
2009
Course 3 block 3

UNIT 4 ACQUITTAL AND CONVICTION

Structure
4.1 Introduction
4.2 Objectives
4.3 Meaning of Acquittal
4.4 Conviction for Offence Charged
4.5 Conviction on Plea of Guilty
4.6 Post Conviction Orders
4.7 Judgment of acquittal or conviction
4.8 Proof of previous conviction or acquittal
4.9 General Provisions relating to Acquittal and Conviction
4.10 Summary
4.11 Terminal Question
4.12 Answers and Hints
4.13 References and Suggested Readings

4.1 Introduction
The Next stage of Criminal trial after argument is the "Judgment". After appreciating the
evidence, conclusion of arguments by the prosecutor and defence, and hearing the accused
the judge pronounces his judgment in the trial. The accused may be acquitted or convicted.
If court pronounces the judgment of acquittal, it shall state the offence of which the
accused is acquitted and direct that he be set at liberty. If the accused pleads guilty, the
judge shall record the plea and may, in his discretion, convict him thereon. The judge may
weigh the mitigating and aggravating circumstances before convicting an accused. He may
also ponder over the option of probation of good conduct instead of immediately
punishing him, or enhancing the sentence of the accused due to his previous conviction.
Present Unit explains the meaning of acquittal and conviction and provisions relating
thereto in the Code of Criminal Procedure. Unit also discusses in detail principles
governing judgments of acquittal and conviction along with relevant case laws.

1
 4.2 Objectives
After going through this Unit, you shall be able to-
• Understand meaning of acquittal and conviction
• Describe provisions relating to acquittal and conviction
• Analyse effects of acquittal and conviction on pleading guilty
• Identify general rules relating to acquittal and conviction
• Explain principles of judgment on acquittal and conviction
• Analyse effect of previous acquittal and conviction

4.3 Acquittal
a) Meaning of
The term ‘acquittal’ has been explained in negative terms by saying that the dismissal of a
complaint, or the discharge of the accused is not "acquittal" [Explanation to S. 300]. An
order of acquittal establishes innocence of the accused after full fledged trial. It is recorded
after framing of charge against an accused and recording evidence and after the judgment
on merit. An order of acquittal bars a fresh trial and it is not open to a court to prosecute
such person once again on the ground that fresh facts, further evidence or additional
materials are available against him. The verdict of acquittal pronounced by a competent
court on a lawful charge and after a lawful trial is binding and conclusive in all subsequent
proceedings between the parties to the adjudication.1
The word "acquittal" does not mean complete acquittal but acquittal of the offence with
which the accused was charged. In Tarachand v. State of Maharashtra2 the accused was
tried for an offence of murder under Section 302, IPC but was convicted by the trial court
under Section 304, Part-I, IPC. On appeal filed by the State, the High Court convicted the
accused under Section 302, IPC and sentenced him to death. He applied for certificate
under Article 134 (l) (a) of the Constitution which was refused by the High Court
upholding the contention of the State that the word "acquittal" meant complete acquittal.
And when the trial court also convicted the accused under Section 304, Part-I, IPC, it
could not be said that the High Court "has on appeal reversed an order of acquittal of an

1
Ratilal Bhanji v. State of Maharashtra, AIR 1979 SC 94; State of Bombay v. Apte, AIR 1961 SC
578
2
AIR 1962 SC 130 : (1962) 2 SCR 275 : (1962) 1 Cr.L.J. 196.

2
 accused person and sentenced him to death". The accused approached the Supreme Court
under Article 136. The Supreme Court rightly observed that the decision of the case was to
depend upon the construction of the word "acquittal".
Following the law laid down by the Privy Council3 and holding that the appellant-accused
was entitled to certificate under Article 134(l) (a), the Supreme Court observed that the
word "acquittal" does not mean that the trial must have ended in a complete acquittal of
the charge but acquittal of the offence charged and conviction for a minor offence (than
that for which the accused was tried) is included in the word "acquittal". If court
pronounces the judgment of acquittal, it shall state the offence of which the accused is
acquitted and direct that he be set at liberty.4

Self Assessment Question

1. How the term ‘Acquittal’ is defined under the Code of Criminal Procedure ?
…………………………………………………………………………
…………………………………………………………………………..

b) Provisions as to Acquittal of Accused Persons of Unsound Mind

If the judgment of acquittal is given on the ground that the accused was insane at the time
at which he is alleged to have committed the offence charged, the accused shall not be set
at liberty by the judgment of acquittal.
But when the accused appears to be of sound mind at the time of inquiry or trial, and the
magistrate is satisfied from the evidence given before him that there is reason to believe
that the accused committed an act, which, if he had been of sound mind, would have been
an offence, and that he was, at the time when the act was committed, by reason of
unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or
contrary to law, S. 333 requires the magistrate to proceed with the case, and, if the accused
ought to be tried by a court of session, to commit him for trial before the court of session.
Whenever any person is acquitted upon the ground that, at the time at which he is alleged
to have committed an offence, he was, by reason of unsoundness of mind, incapable of
knowing the nature of the act alleged as constituting the offence, or that it was wrong or

3
Kishan Singh v. Emperor, AIR 1928 PC 254 : 55 IA 390 : 29 Cr.L.J. 828; AIR 1962SC 130
4 S. 354 (1)(d) of Code of Criminal Procedure

3
 contrary to law, the finding shall state specifically whether he committed the act or not (S.
334).
Section 3355 provides for the detention in safe custody of persons acquitted on such
ground.
The primary object of the detention order under S. 335 is rehabilitation of the accused
(now acquitted) and to prevent any trouble if he should relapse into insanity.6

Self Assessment Question

2. Discuss provisions relating to acquittal of accused persons of unsound mind.
……………………………………………………………………………..
…………………………………………………………………………………

4.4 Conviction for offence charged

Conviction For minor offence when major offence is charged
This principle is embodied in S. 222 of the Cr.P.C.7 Where the accused person is charged
with an offence consisting of several particulars, some of which when combined and

5
S. 335 Person acquitted on such ground to be detained in safe custody— (1) Whenever the
finding states that the accused person committed the act alleged, the Magistrate or Court before whom
or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted
an offence—
(a) order such person to be detained in safe custody in such place and manner as the Magistrate or
Court thinks fit; or
(b) order such person to be delivered to any relative or friend of such person.
(2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of
sub-sec. (1) otherwise than in accordance with such rules as the State Government may have made
under the Indian Lunacy Act, 1912 (4 of 1912).
(3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of
sub-sec. (1), except upon the application of such relative or friend and on his giving security to the
satisfaction of the Magistrate or Court that the person delivered shall—
(a) be properly taken care of and prevented from doing injury to himself or to any other person;
(b) be produced for the inspection of such officer, and at such times and places, as the State
Government may direct.
(4) The Magistrate or Court shall report to the State Government the action taken under sub-sec. (1).
6
See R.v. Kelker’s , Criminal Procedure, 2008, p.262
7
S. 222 When offence proved included in offence charged.— (1) When a person is charged with an
offence consisting of several particulars, a combination of some only of which constitutes a complete
minor offence, and such combination is proved, but the remaining particulars are not proved, he may
be convicted of the minor offence, though he was not charged with it.

4
 proved form a complete minor offence, he may be convicted of minor offence though he
was not charged with such minor offence. That is in cases where the minor offence is a
component of the major offence. For example, a person charged under S. 326 IPC can be
punished under S. 324 IPC. There is also another situation where facts are proved which
reduces the offence charged to a minor offence. Here the offence for which punishment is
imposed need not be a component of the major offence. But the major offence must be
more or less a cognate offence. For example, in the case of an accused charged under S.
302 IPC if any of the exceptions to Section 300 is proved to exist, he could be punished
under S. 304 IPC even though there is no charge under that section.8 The proposition is
based on the principle that graver charge gives notice to the accused of all the
circumstances going to constitute the minor one of which he may be convicted.
If an accused is charged of a major offence but is not found guilty there under, he
can be convicted of minor offence, if the facts established indicate that such minor
offence has been committed. 9The Court is entitled to convict a person of an offence which
is minor in comparison to the one for which he is tried.10
The minor offence for the purposes of S. 222 is not something independent of the main
offence or which is simply punishable with lesser punishment. The major and minor
offences must be cognate offences and not such as are totally constituted by different
elements. As already discussed the minor one must be constituted by some of the elements
of the main offence.11 As such S. 306 IPC cannot be said to be a minor offence in relation

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence,
he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such
offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the
conditions requisite for the initiation of proceedings in respect of that minor offence have not been
satisfied.
8
State v. Rajappan Nair, 1987 C
9
State of Himanchal Pradesh v. Tara Dutta, AIR 2000 SC 297
10
Sangarabonia Sreenu v. State of Andhra Pradesh, (1997) 4 Supreme 214
11
Makkhan v. Emperor, AIR 1945 All 81, 85: (1945) 46 Cri LJ 750; Raman Ambalam, Re, AIR 1951
Mad 258; Mohd. Nabi v. Emperor, AIR 1934 Oudh 251, 253: (1934) 35 Cri LJ 943; Emperor v.
Abdul Wahab, AIR 1945 Bom 110; Vazhambalakkal Thomachan v. State of Kerala, 1978 Cri LJ 498,
501 (Ker HC); see also State v. Rajappan Nair, 1987 CriLJ 1257 (KerHC).

5
 to an offence under S. 302 IPC within the meaning of Section 222 Cr.P.C. for the offences
are of distinct and different categories.12
According to sub-sec. (3), when a person is charged with an offence, he may be convicted
of an attempt to commit such offence although he is not separately charged. The sub-
section does not cover abetment of an offence. The conviction for abetment would not be
permissible under this section13, but that might be possible under S. 221.14
Illustrations
(a) A is charged, under S. 407 of the Indian Penal Code (45 of 1860), with criminal breach
of trust in respect of property entrusted to him as a carrier. It appears, that he did commit
criminal breach of trust under S. 406 of that Code in respect of the property, but that it was
not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the
said S. 406.
(b) A is charged, under S. 325 of the Indian Penal Code (45 of 1860), with causing grievous
hurt. He proves that he acted on grave and sudden provocation. He may be convicted
under S. 335 of that Code.

Self Assessment Question

3. If an accused is charged of a major offence but is not found guilty there under, whether he
can be convicted of minor offence?
………………………………………………………………………………….
…………………………………………………………………………………

4.5 Conviction on plea of guilty

a) In a trial by court of Session
If the accused pleads guilty, the judge shall record the plea and may, in his discretion,
convict him thereon. [S.229]. It is, however, not obligatory for the Court to convict the
accused on such plea. It is in the discretion of the Court and such discretion has to be
exercised with due care, caution and circumspection and on sound judicial principles
bearing in mind the ultimate objective to do justice to the accused. Such plea must be

12
Sangaraboina Sreenu v. State of A. P., (1997) 5 SCC 348: 1997 SCC (Cri) 690; Lokendra Singh v.
State ofM.P., 1999 SCC (Cri) 371; Ram Ballah Mandal v. State of Bihar, 1999 Cri LJ 3945 (Pat HC).
13
Emperor v. Raghya Nagya, AIR 1924 Bom 432: (1924) 25 Cri LJ 1135; Chotey v. Emperor, AIR
1948 All 168, 170: (1948) 49 Cri LJ 168, 169; Hulas Chand Baid v. Emperor, AIR 1927 Cal 63, 64:
(1927) 28 Cri LJ 2, 3.
14
Bhagat Ram v. State of Punjab, AIR 1954 SC 621: 1954 Cri LJ 1645, 1654.

6
 clear, unambiguous and unequivocal. It must distinctly admit each and every fact
necessary to constitute the offence. Where a 'plea of guilty' is qualified or accompanied by
some reservations, it cannot be said to be a 'plea of guilty'. The Judge also should satisfy
himself whether or not the accused understood the charge in order to ascertain whether
such plea was voluntary. The plea of guilty must be made by the accused himself and not
by his pleader unless the pleader is permitted by the Court to appear in the place of the
accused.15 Before recording plea of guilty, the accused must be confronted with summary
of allegations.16
A plea of guilty no less than a confession must be accepted with caution. The Court before
recording conviction on the basis of such plea, ought to explain the charge to the accused
and satisfy itself that the accused fully understood the implications of such plea. Usually in
serious cases and offences punishable with death or imprisonment for life the Court would
be rather reluctant to convict the accused only on the basis of the plea of guilty. Though
there is no legal bar to recording conviction in such cases, ordinarily the Court will
proceed with the trial by recording the evidence. "The more grievous the charge, the more
care and circumspection is expected to be exercised by the Court in accepting and acting
upon the plea of guilty."17
A plea of guilty can be permitted to be withdrawn by the Court if it is satisfied that there
was mistake or misunderstanding on the part of the accused or it would be desirable that
the accused should be allowed to join issue.18
The stage of pleading guilty is immediately after framing of the charge by the Court.
Therefore, after the trial is started and some witnesses have been examined, no plea of
guilty can legally be recorded. In such cases, the court has to convict or acquit the accused
on consideration of evidence led before the court.19

15
Abdul Kadar v. Emperor, AIR 1947 Bom 345 : 48 CrLJ 329 (FB); Karam Singh v. State of H.P.,
1982 CrLJ (NOC) 215; Ramesan v. State, 1981 CrLJ 451; Anand v. State, AIR 1960 JK 139; Dan-
dopani, in re, AIR 1968 Mad 59 : 1968 CrLJ 26; Thippaswamy v. State of Karnaiaka, AIR 1983 SC
747 : (1983) 1 SCC 194 : 1983 CrLJ 1271; Kanchan Bai v. State, AIR 1959 MP 150: 1959 Cri LJ
602, 603
16
Pawan Kumar v. State ofHaryana, AIR 1996 SC 3300 : (1996) 4 SCC 17 : 1996 SCC (Cri) 583.
17
Gavisiddappa, in re, AIR 1968 Mys 145 : 1968 CrLJ 762; Ramesan v. State (Id.); Tyron v. Slate,
1989 CrLJ 123, Mohanlal v. Wagh, 1981 CrLJ 454; Hasruddin Mohammad v. Emperor, AIR 1928
Cal 775: 30 Cri LJ 508, 509; Laxmya Shiddappa v. Emperor, (1917) 18 Cri LJ 699, 700 (Bom HC);
Queen-Empress v. Bhadu, ILR (1896) 19 All 119, 120-121.
18
HALSBURY'S LAWS OF ENGLAND, (4th edn.), Vol. II, para 248; R. v. Mc Nolly, (1954) 2 All ER 372.
19
Dandopani, in re, AIR 1968 Mad 59: 1968 Cr LJ 26.

7
 When there is a joint trial against more than one accused and one of the accused pleads
guilty, the court may record his plea and convict him and proceed with the trial against the
other accused.20 When the accused has been convicted on the plea of guilty and appeal is
filed for enhancement of sentence, the appellate court may set aside the sentence and order
re-trial if it is satisfied that lenient sentence was imposed on the accused by plea
bargaining.21
After hearing the arguments, the Judge will deliver judgment. If the accused is convicted,
the judge must hear him on the question of sentence and then impose sentence on him in
accordance with law. No such hearing may be necessary if the accused is released on
probation of good behaviour or after admonition under Section 360 of the Code.22
In case of allegation of previous conviction by the prosecution and denial by the accused,
the judge after recording conviction against the accused may take evidence of such
previous conviction and shall record his finding thereon. This provision is intended to
determine the liability of the accused to enhanced punishment due to previous
conviction.23

Self Assessment Question

4. Discuss provisions of S. 229 of Cr.P.C. with principles underlining therein.
……………………………………………………………………………..
……………………………………………………………………………..

b) In a trial of warrant Case by Magistrate

If the accused pleads guilty, the magistrate shall record the plea and may, in his discretion,
convict him thereon. [S. 241]
If the facts alleged against the accused do not constitute a crime, a plea of guilty under
such circumstances is only admission of facts and not an admission of guilt.24 If the
accused is convicted on his plea of guilty, the magistrate shall, unless he proceeds in

20
Mahadeo v. King, AIR 1936 PC 242: 37 Cr LJ 914, Swami, in re, AIR 1957 Mad 379.
21
Thippaswamy v. State of Karnataka, AIR 1983 SC 747 : (1983) I SCC 194:1983 CrLJ 1271
22
S. 235, see also Dagdu v. Slate of Maharashtra. AIR 1977 SC 1579 : (1977) 3 SCC 68 : 1977 Cr LJ
1206.
23
S.236 ; See also Pratap v. State of U.P. AIR 1973SC 786; 1973 Cr.L.J.565
24
Gannon Dunkerley & Co, Re, AIR 1950 Mad 837, 838: (1950) 51 Cri LJ 1567; State of M.P. v.
Mustaq Hussain, AIR 1965 MP 137, 138: (1965) 1 Cri LJ 711; Basant Singh v. Emperor, (1926) 27
Cri LJ 907, 908 (Lah HC).

8
 accordance with the provisions of S. 325 or S. 36025, hear the accused on the question of
sentence and then pass sentence on him according to law.
In case where previous conviction is charged under S. 211(7) and the accused does not
admit that he has been previously convicted as alleged in the charge, the magistrate after
recording the conviction against the accused may take evidence of such previous
conviction and shall record his finding thereon.26 (Principles discussed in 4.5 a are also
relevant for this section)

c) Conviction on plea of guilty in a trial of summon Cases

S. 252 Cr. P.C. says that If the accused pleads guilty, the magistrate shall record the plea
as nearly as possible in the words used by the accused and may, in his discretion convict
him thereon. The requirements of S. 252 are mandatory in character to secure proper
administration of justice and a violation of these provisions vitiates the trial and renders
the conviction legally invalid.27
It is important that the terms of the section are strictly complied with because the right of
appeal of the accused depends upon the circumstance whether he pleaded guilty or not and
it is for this reason that the legislature requires that the exact words used by the accused in
his plea of guilty should as nearly as possible be recorded in his own language in order to
prevent any mistake or misapprehension.28 If there are a number of accused persons, the
plea of each of the accused should be separately recorded and, in his own words after the
accusation was read over to each one of them. Where there are number of accused persons
and the accusation is read over to them jointly and the magistrate records their plea of
admission jointly, such admission is bad in law.29 If the facts mentioned in the "charge" do
not constitute the offence, the mere plea of guilty cannot render the accused liable to be
convicted on such plea which does not contain any admission constituting all the
ingredients of the offence.30

25
For the text of Ss. 325 & 360 See Code of criminal procedure
26
See S.248(3) of Code of criminal procedure
27
Mahant Kaushalaya Das v. State of Madras, AIR 1966 SC 22: 1966 Cri LJ 66, 68; Chotu
Bhagirath v. State of Gujarat, 1972 Cri LJ 548, 550-551 (Guj HC).
28
Mahant Kaushalaya Das v. State of Madras, AIR 1966 SC 22: 1966 Cri LJ 66, 68; Aithappa v.
State of Mysore, 1973 Cri LJ 360 (Mys HC).
29
State of Mysore v. Shivanna, 1972 Cri LJ 1146, 1148 (Mys HC); Chhotu Bhagirath v. State of
Gujarat, 1972 Cri LJ 548, 550 (Guj HC); Hansraj v. State, AIR 1956 All 641: 1956 Cri LJ 1267,
1270. See also Anand Vithoba Lokhare v. State of Maharashtra, 1999 Cri LJ 2857 (Bom HC).
30
State ofM.P. v. Kapurchand, 1973 Cri LJ 417, 419 (MP HC).

9
 The magistrate has discretion to accept or not to accept the plea of guilty. If he decides to
accept the plea of guilty he can call evidence to decide the question of proper sentence.31
Before accepting the plea of guilty it is the bounden duty of the Magistrate to satisfy
himself that the concerned accused has understood the charge or the substance of the
accusation against him and the concerned accused has after understanding the same
pleaded guilty and also after realizing the consequences that follow.32
If the magistrate accepts the plea of guilty and convicts the accused person he shall pass
sentence on him according to law unless he proceeds in accordance with the provisions of
S. 325 or S. 360. [S. 255(2)]
A magistrate may convict the accused of any offence (triable under S. 252 or S.255 of
Chapter XX of Cr.P.C.)33, which from the facts admitted he appears to have committed,
whatever may be the nature of the complaint or summons, if the magistrate is satisfied that
the accused would not be prejudiced thereby [S. 255(3)]. (Principles discussed in 4.5 a are
also relevant for this section)

Self Assessment Question

5. Explain the provisions for convicting accused on plea of guilty in a trial of warrant and
summon cases.
…………………………………………………………………………….
……………………………………………………………………………

d) Conviction on plea of guilty in absence of accused in petty cases34—S. 206 provides

that in the case of certain petty offences, an accused who is willing to plead guilty need
not appear in the court either in person or through his pleader provided he satisfies the
31
Emperor v. Janardan Kashinath Abhyankar, AIR 1931 Bom 195: (1931) 32 Cri LJ 719, 720 (FB).
32
State ofKarnataka v. Mallappa Shidlingappa Gangai, 1979 Cri LJ 1482, 1484 (Kant HC).
33
Chapter XX of Cr.P.C. deals with Trial of Summon Cases by Magistrates
34
S. 253 Conviction on plea of guilty in absence of accused in petty cases—(1) Where a summons
has been issued under Section 206 and the accused desires to plead guilty to the charge without
appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter
containing his plea and also the amount of fine specified in the summons.
(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and
sentence him to pay the fine specified in the summons, and the amount transmitted by the accused
shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads
guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words
used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as
aforesaid.

10
 conditions of that section. The object obviously is to avoid unnecessary trouble to
offenders who have committed petty offences and are willing to pay the penalty. Section
253 prescribes the procedure where a person to whom a summons has been issued under
S. 206 has transmitted to the magistrate his plea of guilty without appearing before such
magistrate.
The provision is only an enabling one. The magistrate has been given the discretion to
convict and sentence the accused person on such a plea of guilty. The section allows a
lawyer appearing on behalf of the accused person to plead guilty on his behalf.

Self Assessment Question

6. Whether presence of accused is compulsory in petty cases for convicting him on the plea of
guilty?
………………………………………………………………………………
………………………………………………………………………………

4.6 Post-conviction Orders

In Ediga Anamma v. State of A.P., the Supreme Court observed that once guilt is established,
the punitive dilemma begins.35 The Code provides that in every trial, when the accused is
found guilty and convicted, the court shall proceed to pass sentence on him.36 Thus, when
the court finds an accused guilty it has got the discretion either to punish the offender or
to release him after admonition or on probation of good conduct under S. 360 or under Ss.
3 and 4 of the Probation of Offenders Act.
This mandatory rule has two exceptions : (1) In trials of warrant cases and summons cases,
whenever a magistrate is of the opinion, after hearing the evidence, that the accused is
guilty and that he ought to receive a punishment different in kind from, or more severe
than, that which such magistrate is empowered to inflict, he may record the opinion and
submit his proceedings to the Chief Judicial Magistrate. The Chief Judicial Magistrate
then shall proceed to pass such judgment, sentence or order in the case as he thinks fit.37
This provision enables the magistrate to get the post-conviction orders passed by a court of
wider competence and authority. (2) In cases where the court considers it desirable to
proceed in accordance with the provisions of S. 360 the court may, having regard to the

35
(1974) 4 SCC 443: 1974 SCC (Cri) 479, 485: 1974 Cri LJ 683, 686.
36
See Ss. 235(2), 248(2), 255(2) of the Code of Criminal Procedure
37
See S. 325 of the Code of Criminal procedure

11
 age, character, antecedents or physical or mental condition of the offender and to the
circumstances in which the offence was committed, instead of sentencing the accused
person to any punishment, release him after admonition or on probation of good conduct.
The Probation of Offenders Act is much wider in its sweep with its special emphasis on
the reformation and rehabilitation of the offenders. Notwithstanding anything contained in
any other law for the time being in force, the Act enables the court to release offenders
after admonition or on probation of good conduct under certain circumstances.

4.7 Judgment of acquittal or conviction

Section 235,248 and 255 of the Cr.P.C. deal with judgment of acquittal and conviction.
Now we shall discuss each of these sections-
S. 235 of Cr.P.C. Judgment of acquittal or conviction :-
1. After hearing the arguments and points of law (if any), the Judge shall give a Judgment in
the case.
2. If the accused is convicted, the Judge shall, unless he proceeds in accordance with the
provisions of Section 360, hear the accused on the question of sentence, and then pass
sentence on him according to law.
(S. 235 Cr.P.C. applies to offences exclusively triable by Session's Judge)

S. 248 of Cr.P.C. Acquittal or conviction:-

1. If, in any case under this chapter in which a charge has been framed, the Magistrate finds
the accused not guilty, he shall record an order of acquittal.
2. Where, in any case under this chapter, the Magistrate finds the accused guilty, but does not
proceed in accordance with the provisions of Section 325 or Section 360, he shall, after
hearing the accused on the question of sentence, pass sentence upon him according to law.
3. Where, in any case under this chapter, a previous conviction is charged under the provisions
of sub-section (7) of Section 211, and the accused does not admit that he has been
previously convicted as alleged in the charge, the Magistrate may, after he has convicted
the said accused, take evidence in respect of the alleged previous conviction, and shall
record a finding thereon:
Provided that no such charge shall be read out by the Magistrate nor shall the accused be
asked to plead thereto nor shall the previous conviction be referred to by the prosecution

12
 or in any evidence adduced by it, unless and until the accused has been convicted under
sub-section (2).
(S. 248 Cr.P.C. applies to offences triable by Magistrate) (warrant cases)

S. 255 of Cr.P.C. Acquittal or conviction:-

1. If the Magistrate, upon taken the evidence referred to in Section 254 and such further
evidence, if any, as he may, of his own motion, cause to be produced, finds the; accused
not guilty, he shall record an order of acquittal.
2. Where the Magistrate does not proceed in accordance with the provisions of Section 325 or
360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
3. A Magistrate may, under Section 252 or Section 255, convict the accused of offence triable
under this chapter, which from the facts admitted or proved he appears to have committed,
what ever may be the nature of the complaint or summons, if the Magistrate is satisfied
that the accused would not be prejudiced thereby.
(Section 255 Cr.P.C. deals with summons cases triable by Magistrate and from the
very nature, these are not grave offences. Hence the Magistrate need not give an
opportunity to the accused to be heard on the quantum of punishment after finding him
guilty unlike in the other two sections.)

Principles of Judgment of Acquittal or Conviction

Certain principles have been evolved by the Court with regard to judgments on acquittal
and conviction-
a) Right to be Heard
It has been observed that Section 235(2) is a salutary provision which enjoins upon the
Court a duty to hear the accused. This should not be relegated to an empty formality. The
imperative language leaves no room for doubt that the provision is mandatory and
obligatory and non-compliance thereof goes to the root of the matter. Failure to afford
such opportunity to the accused will vitiate the sentence. The conviction will, however,
stand and the accused cannot claim de novo trial.38
In Santa Singh v. State of Punjab39 Supreme Court rightly observed that "…having regard
to the object and the setting in which the new provision of Section 235(2) was inserted in

38
Nirpal Singh v. State of Haryana. AIR 1977 SC 1066 : 1977 Cr.L.J. 642; Tarlok Singh v. Slate of
Punjab, MR 1977 SC 1747 : (1977) 3 SCC 218
39
AIR 1976 SC 2386

13
 the 1973 Code, there can be no doubt that it is one of the most fundamental parts of the
criminal procedure and non-compliance thereof will ex facie vitiate the order. Even if it be
regarded as an irregularity, the prejudice caused to the accused would be inherent and
implicit because of the infraction of the rules of natural justice which have been
incorporated in this statutory provision, because the accused has been completely
deprived of an opportunity to represent to the Court regarding the proposed sentence and
which manifestly results in a serious failure of justice."40
In Dagdu v. State of Maharashtra41, The Supreme Court observed that-"…the court on
convicting an accused must unquestionably hear him on the question of sentence. But if
for any reason it omits to do so and the accused makes a grievance of it in the Higher
Court, it would be open to that court to remedy the breach by giving a hearing to the
accused on the question of sentence.
The opportunity has to be real and effective, which means that the accused must be
permitted to adduce before the court all the data which he desires to adduce on the
question of sentence. For a proper and effective implementation of the provision contained
in Section 235 (2) of Cr.P.C. it is not always necessary to remand the matter to the court
which has recorded the conviction. Remand is an exception not the rule, and ought
therefore to be avoided as far as possible in the interest of expeditious though fair, disposal
of cases."
S. 235 of Cr.P.C. involves of grave offence and the court is duty bound to hear the accused
regarding sentence to be inflicted upon him. Before passing the grave sentence, the court
has to even take into consideration the socio-economic conditions of the accused.42
b) Conviction and sentence cannot be passed on the same day
After convicting the accused the court should adjourn the matter to a future date to hear
the accused on sentence. In Allauddin Mian v. State of Bihar,43the Supreme Court
opined that after convicting the accused, the matter should be adjourned to enable the
convict to prepare his arguments on the sentence, meaning that sentence should not be

40
AIR 1976 SC 2386 : 1976 CrLJ 1875.
41
A.I.R. 1977 SC 1579: (1977 Cr.L.J. 1206); See also Shri Kishore Chand v. State of Punjab, 1994
Cr.LJ. 1464 (Delhi)
42
Dadu v. State of Maharashtra, (2000) 8 SCC 437 : 2000 CrLJ 4619.
43
A.I.R. 1989 SC 1456:1989 Cr.L.J. 1466; see also Bishnu v. State, 1996 Cr.L.J. 3572 (Delhi)

14
 passed on the same day. Hence conviction and sentence cannot be passed on the same day
and doing so would be against the mandates of law.
c) Trial is vitiated if conviction and sentence is pronounced on the same day
Relying upon Section 235 (2), Cr.P.C. and the construction placed there on by Supreme
Court, in Allaudin Mian v. State of Bihar,44 again in the case of Matloob v. State (Delhi),45
it was held that the trial is vitiated if conviction and sentence is pronounced on the same
day.

Self Assessment Question

7. Discuss principles evolved by the judiciary for giving judgments on acquittal and
conviction.
…………………………………………………………………………………..
…………………………………………………………………………………

4.8 Proof of previous conviction or acquittal

Section 298 provides how a previous conviction or acquittal can be proved-
In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal
may be proved, in addition to any other mode provided by any law for the time being in
force,—
(a) by an extract certified under the hand of the officer having the custody of the records of
the court in which such conviction or acquittal was held, to be a copy of the sentence or
order, or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail
in which the punishment or any part thereof was undergone, or by production of the
warrant of commitment under which the punishment was suffered
together with, in each of such cases, evidence as to the identity of the accused person with
the person so convicted or acquitted.
Proof of previous conviction may become necessary when the question of awarding
enhanced punishment arises, as for instance in cases where S.75 of the IPC becomes
applicable. The modes of proof provided by S. 298 above are in addition to other modes
provided in any other law.

44
A.I.R.1989 SC 145
45
1997 (3) crimes 98 (Delhi)

15
 Self Assessment Question
8. What is the relevance of previous conviction in awarding punishment?
………………………………………………………………………………
………………………………………………………………………………

4.9 General Provisions relating to Acquittal and Conviction

Article 20(2) of the Constitution recognizes the principle of “protection against Double
Jeopardy” as a fundamental right. It says, "no person shall be prosecuted and punished for
the same offence more than once". While Article 20(2) does not in terms maintain a
previous acquittal, S. 300 of the Criminal procedure Code fully incorporates the principle
and explains in detail the implications of the expression "same offence"46
The Pleas of autrefois acquit and autrefois convict are taken as a bar to criminal trial on
the ground that the accused person had been once already charged and tried for the same
alleged offence and was either acquitted or convicted. These rules or pleas are based on
the principle that "a man may not be put twice in jeopardy for the same offence". Six
illustrations accompany this section explaining in concrete terms the different situations
which the courts may have to deal with.47
An analysis of S. 300 brings out the following points-
1) The basic rule is that ‘a person who has once been tried by a court of competent
jurisdiction for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again for the same
offence’. (s.300 (1))
For the purpose of the above basic rule and also for the purposes of the other parts of S.
300, the term ‘acquittal’ has been explained in negative terms by saying that the dismissal
of a complaint, or the discharge of the accused is not "acquittal" [Explanation to S. 300].
The reason is the dismissal of a complaint or the discharge of the accused is not
considered as the final decisions regarding the innocence of the accused person. It may
however be noted that when a court applies a wrong provision of law erroneously, it
would be deemed that the order in effect, was one under the provision of law applicable to
the facts of the case. Where in a summons case, the magistrate passed an order of

46
See discussions in Natarajan v. State, 1991 Cri LJ 2329 (Mad HC).
47
See R.V. Kelkar’s Criminal Procedure, (2008) p.478-484

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 "discharge" under S. 245(2) owing to the absence of the complaint the order of
"discharge" under S. 245(2) must be read as an order of acquittal passed under S.25648.
The word "tried" in S. 300(1) does not necessarily mean tried on the merits. The
composition of an offence under S. 320, or a withdrawal from the prosecution by the
Public Prosecutor under S. 321, would result in an acquittal of the accused even though the
accused is not tried on merits. Such an acquittal would bar the trial of the accused on the
same facts on a subsequent complaint49.
In order to get the benefit of the basic rule contained in S. 300(1) it is necessary for an
accused person to establish that he had been tried by a "court of competent jurisdiction"
for an offence. Further, in order to apply the principle of autrefois acquit, it is not enough
that the court which acquitted the accused in the first trial had in fact the jurisdiction and
competence to try the case. It is also necessary that the court believed that it had such
jurisdiction and competence. An order of acquittal passed by a court which believes
(though erroneously) that it has no jurisdiction to take cognizance of the offence or to try
the case, is a nullity and the subsequent trial for the same offence is not barred by the
principle of autrefois acquit50.
Another requirement for attracting the basic rule of S. 300 is, that the offences are the
same, i.e., they should be identical. It is therefore necessary to analyse and compare not
the allegations in the two complaints but the ingredients of the two offences and see
whether their identity is made out.51 Section 300 bars the trial for the same offence and not
for different offences which may result from the commission or omission of the same set
of acts.52 Where the Legislature provides that on the same facts proceedings could be
taken under two different sections and the penalties provided in those sections are also
different, it is obviously intended to treat the two sections as distinct. In such a case S. 300
cannot apply.53

48
Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (Ori HC); see also Rajkumar Manisana
Singh v Nameirakpam Angon Singh, 1969 Cri LJ 844 (Mani HC); Public Prosecutor v. Hindustan
Motors Ltd., 1970 Cri LJ 659 (AP HC).
49
Shankar Dettatraya Vaze v. Dattatray Sadashiv Tendulkar, AIR 1929 Bom 408, 409: (1930) 31 Cri
LJ 1000; Kashigar Ratangar v. State of Gujarat, 1975 Cri LJ 963, 964-65 (Guj HC).
50
Mohammad Safi v. State of W.B., (1966) 1 Cri LJ 75: AIR 1966 SC 69.
51
State of Bombay v. S.L. Apte, AIR 1961 SC 578: (1961) 1 Cri LJ 725.
52
Maidhan Gupta v. State of U.P., 1976 Cri LJ 868, 869 (All HC); Hari Nath Poddar v. State, 1978
Cri LJ 1018 (Cal HC); see Vijayalakshmi v. Vasudevan, (1994) 4 SCC 656: 1994 SCC (Cri) 1317.
53
See the observations of the Supreme Court in Corpn. of Calcutta v. Mulchand Agarwalla, AIR 1956
SC 110; V.K. Agarwal v. Vasantral Bhagwanji Bhatia, (1988) 3 SCC 467: 1988 Cri LJ 1106; State of
Bihar v. Murad Ali Khan, 1989 SCC (Cri) 27: 1989 Cri LJ 1005.

17
 (2) Even though the offence in the second trial is not "the same offence", still the second
trial will be barred if it is based on the same facts for any other offence for which a
different charge from the one made against him [such accused person] might have been
made under S. 221(1), or for which he might have been convicted under S. 221(2). [S.
300(1)]
It may be noted that the words ' 'for which a different charge from the one made against
him might have been made" are not intended to exclude a case in which a charge in the
alternative has actually been made under S. 221.54
Illustrations:
(i) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while
the acquittal remains in force, be charged with theft as a servant, or, upon the same fact,
with theft simply, or with criminal breach of trust. [Illustration (a) to S. 300]
(ii) A is charged before the court of session and convicted of the culpable homicide of B. A
may not afterwards be tried on the same facts for the murder of B. [Illustration (c) to S. 300]
(3) A person acquitted or convicted of any offence may be afterwards tried with the
consent of the State Government, for any distinct offence for which a separate charge
might have been made against him in the former trial under S. 220(1). [S. 300(2)]
Where a person has been acquitted or convicted of any offence and a separate charge for
another offence could have been made but was not made against him in the former trial, he
should not be liable to be again prosecuted for the other offence as a matter of course
because this might lend itself to abuse.55 To provide a check against such abuse S. 300(2)
makes it obligatory to obtain the consent of the State Government before a new
prosecution is launched against any person for any distinct offence for which a separate
charge might have been made against him at the former trial under S. 220(1).
The provision envisages a wholesome protection to the accused person. Consent of the
State Government is expected to be given only after due consideration of all the facts and
circumstances of the case and with the main intendment of the law, viz., promotion of
justice.56
(4) A person convicted of any offence constituted by any act causing consequences
which together with such act, constituted a different offence from that of which he was

54
Emperor v. Bashir Bundekhan, AIR 1947 Bom 366: (1947) 48 Cri LJ 436, 440.
55
See Supra Note 46
56
Inguva Mallikarjuna Sharma v. State of A.P., 1978 Cri LJ 392 (AP HC).

18
 convicted, may be afterwards tried for such last-mentioned offence, if the consequences
had not happened, or were not known to the Court to have happened, at the time when
he was convicted. [S. 300(3)]
Illustrations
(i) A is tried for causing grievous hurt and convicted. The person injured afterwards dies.
A may be tried again for culpable homicide. [Illustration (b) to S. 300]
(ii) A is charged by a magistrate of the first class with, and convicted by him of,
voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing
grievous hurt to B on the same facts unless the case comes within S. 300(3) above.
[Illustration (d) to S. 300]
It may be noted that S. 300(3) above is applicable in cases where there is "a person
convicted of any offence" and not where "a person convicted or acquitted of any
offence.....".If the previous decision is one of acquittal the rule in S. 300(3) is not
applicable at all.
(5) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and tried
for, any other offence constituted by the same acts which he may have committed if the
court by which he was first tried was not competent to try the offence with which he is
subsequently charged. [S. 300(4)]
Illustrations:
(i) A is charged by a magistrate of the second class with, and convicted by him of, theft of
property from the person of B. A may subsequently be charged with, and tried for, robbery
on the same facts. [Illustration (e) to S. 300]
(ii) A, B and C are charged by a magistrate of the first class with, and convicted by him of,
robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same
facts. [Illustration (f)to S. 300].
These illustrations indicate that the former court in each illustration being incompetent,
subsequent trial for an offence on the same facts is not barred by S. 300(4).57
(6) A person discharged under S. 258 shall not be tried again for the same offence
except with the consent of the court by which he was discharged or of any other court to
which the first mentioned court is subordinate. [S. 300(5)]

57
Sambasivan v. Inspector, Railway Protection Force, 1976 Cri LJ 36 (Mad HC).

19
 In a summons-case instituted otherwise than upon a complaint the court has got power
under S. 258 to stop the proceedings at any stage without pronouncing judgment. If the
stoppage of proceedings is made before the recording of the evidence of principal
witnesses, it shall have the effect of discharge of the accused person. However, according
to S. 300(5) such accused person cannot be tried again for the same offence without the
consent of the concerned court. It is believed that this provision will be helpful as a
safeguard against the abuse of power of fresh prosecution in such cases.
As seen earlier the principle of autrefois acquit is not applicable where the previous trial
had ended in an order of discharge and not of acquittal. To this-
S. 300(5) is an exception with certain limitations. However the protection of autrefois
acquit is sometimes extended by courts to cases of discharge in order to stop the
harassment of the accused or to prevent the abuse of the process of the law.58
(7) Nothing contained in S. 300 [as mentioned in the above points (1) to (6)] shall affect
the provisions of S. 26 of the General Clauses Act, 1897 (10 of 1897), or of S. 188 of the
Code. [S. 300(6)]
Section 26 of the General Clauses Act referred to above says:
Where an act or omission constitutes an offence under two or more enactments, then the
offender shall be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same offence.
Although S. 26 refers to "the act or omission constituting an offence under two or more
enactments", the emphasis is not on the facts alleged in the two complaints, but rather on
ingredients which constitute the two offences with which a person is charged. This is
obvious from the concluding portion of the section which refers to "shall not be liable to
be punished twice for the same offence". If the offences are not the same but are distinct,
the ban imposed by S. 26 cannot be invoked.59

Self Assessment Question

9. Explain the plea of autrefois acquit and autrefois convict?
…………………………………………………………………………
………………………………………………………………………….

58
Rangamoyee Choudhury v. Sudhir Kumar Bhowmik, (1965) 2 Cri LJ 412, 415 (Tri HC); see also
Kunnu v. Budhu Sahu, AIR 1966 Ori 71: 1966 Cri LJ 430, 432.
59
State of Bombay v. S.L. Apte, AIR 1961 SC 578: (1961) 1 Cri LJ 725, 730.

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 4.10 Summary
• After appreciating the evidence, conclusion of arguments by the prosecutor and defence,
and hearing the accused the judge pronounces his judgment in the trial. The accused may
be acquitted or convicted.
• An order of acquittal establishes innocence of the accused after full fledged trial. If the
Magistrate does not find the accused guilty, he shall record an order of acquittal.
• If court pronounces the judgment of acquittal, it shall state the offence of which the accused
is acquitted and direct that he be set at liberty. [ S.354(1)(d)]
• But if the accused pleads guilty, the judge shall record the plea and may, in his discretion,
convict him thereon. (Ss. 229,241,252) S. 206 provides for the conviction on plea of guilty
even in absence of accused in petty cases.
• When the court finds an accused guilty it has got the discretion either to punish the offender
or to release him after admonition or on probation of good conduct under S. 360 or under
Ss. 3 and 4 of the Probation of Offenders Act.
• If on the other hand, the magistrate finds the accused guilty, and does not forward him to the
chief judicial magistrate under section 325 or does not release him on probation of good
behavior or after admonition under section 360 the magistrate will impose appropriate
sentence on the accused after hearing him. (S.248(1),(2) Cr.P.C.)
• After convicting the accused, the court should adjourn the matter to future date to hear the
accused on sentence. The court is duty bound to hear the accused regarding sentence to be
inflicted upon him. (S. 235 of Cr.P.C.)
• Section 235, 248 and 255 of the Cr.P.C. deal with judgment of acquittal and conviction. S.
235 Cr.P.C. applies to offences exclusively triable by Session's Judge. S. 248 Cr.P.C.
applies to offences triable by Magistrate (warrant cases) Section 255 Cr.P.C. deals with
summons cases triable by Magistrate, which are not of grave nature.
• Conviction and sentence cannot be passed on the same day. After convicting the accused the
court should adjourn the matter to a future date to hear the accused on sentence. Order of
conviction and sentence passed on same day is held to be illegal. If an accused is charged
of a major offence but is not found guilty there under, he can be convicted of minor
offence. (S.222)

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• A person who has once been tried by a court of competent jurisdiction for an offence and
convicted or acquitted of such offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence.(S.300 (1))
• Even though the offence in the second trial is not "the same offence", still the second trial
will be barred if it is based on the same facts for any other offence for which a different
charge from the one made against him [such accused person] might have been made under
S. 221(1), or for which he might have been convicted under S. 221(2). [S. 300(1)]
• A person acquitted or convicted of any offence may be afterwards tried with the consent of
the State Government, for any distinct offence for which a separate charge might have
been made against him in the former trial under S. 220(1). [S. 300(2)]
• A person convicted of any offence constituted by any act causing consequences which
together with such act, constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned offence, if the consequences
had not happened, or were not known to the Court to have happened, at the time when he
was convicted. [S. 300(3)]
• A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and tried for,
any other offence constituted by the same acts which he may have committed if the court
by which he was first tried was not competent to try the offence with which he is
subsequently charged. [S. 300(4)]
• A person discharged under S. 258 shall not be tried again for the same offence except with
the consent of the court by which he was discharged or of any other court to which the
first mentioned court is subordinate. [S. 300(5)]

4.11 Terminal Questions

1. Explain in detail provisions relating to conviction on plea of guilty in a trial by court of
Session and also discuss the principles evolved by court in this context.
2. Discuss provisions relating to judgments of acquittal and conviction with relevant case laws.
3. Examine in detail general provisions as given in S. 300 of Cr.P.C. relating to acquittal and
conviction.

4.12 Answers and Hints

22
 Self Assessment Questions
1. An order of acquittal establishes innocence of the accused after full fledged trial. It is
recorded after framing of charge against an accused and recording of evidence and after
the judgment on merit. Refer to section 4.3 of the material
2. Refer to Sections 334 and 335 of the Cr.P.C. along with section 4.3 of the reading material.
3. An accused can be convicted for a minor offence when major offence is charged. The
principle is embodied in S. 222 of the Cr.P.C. Refer to section 4.4 along with illustrations
given.
4. Refer to section 4.5 a
5. Refer to sections 241,252 and 255 of Cr.P.C. and to section 4.5 b & c of the reading
material
6. Refer to Section 206 of Cr.P.C.
7. Refer to section 4.7 of the reading material with cases given therein.
8. Refer to Section 298 of Cr.P.C.
9. Refer to section 4.9 of the material.
Terminal Questions
1. Under section 229 of the Cr.P. C. if the accused pleads guilty, the judge shall record the plea
and may convict him thereon. It is not obligatory for the Court to convict the accused on
such plea. It is in the discretion of the Court and such discretion has to be exercised with
due care and caution. The judgment of court should be based on sound judicial principles
with an objective to do justice to the accused. Refer to case laws given in section 4.5 a
2. Section 235, 248 and 255 of the Cr.P.C. deal with judgment of acquittal and conviction.
Refer to cases of Santa Singh v. State of Punjab (1976), Dagdu v. State of Maharashtra
(1977) and other cases given in section 4.7 of the material.
3. Refer to Section 4.9 of the reading material.

4.13 References and Suggested Readings

- Bare Act of Criminal Procedure Code,1973 with Latest Amendments

- Pillai. K.N.C. (rev.) (2008) “R. V. Kelkar's Criminal Procedure”, Eastern Book
Company Lucknow
- Sakhrani, Monika (2009), “Citizen’s Guide to Criminal Law”, Universal Law
Publishing Co. Pvt. Ltd., New Delhi
- Joy, P.P. and Taneja, Sangeeta (2009), “How to Get an Acquittal in Criminal Cases’,
Karnataka Law House, Bangalore

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- Takwani,C.K.(2009),‘Criminal Procedure”, LexisNexis, Butterworths wadhwa,
Nagpur

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