23 October, 2007

First plea bargaining case

15 Oct 2007 The Times of India

MUMBAI: 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 US and Europe, plea bargaining is a widely prevalent practice which helps expedite the legal process. 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.

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.

Plea bargaining was introduced in India through the Criminal Law (Amendment) Act, 2005—passed in the winter session of Parliament—to bring changes in Chapter XXIA of the Criminal Procedure Code.

Under the law, plea bargaining is applicable only in respect of lesser offences for which the maximum punishment is imprisonment of seven years. It does not apply to serious cases or those committed against a woman or a child below the age of 14 years.

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.

For the accused, the real benefit is that by confessing to a crime and bargaining for the prison term, he or she may escape with a lesser punishment than what the court may award after a complete trial.

Plea bargaining in other countries 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.

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 theinvestigators/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 generalised 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.

http://timesofindia.indiatimes.com/articleshow/2458523.cms

With Thanks from THE TIMES OF INDIA

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