Plea Bargaining- A New Development in the Criminal Justice System

“Plead Guilty and bargain Lesser Sentence” is the shortest possible meaning of Plea Bargaining. “Plea bargaining” falls into two distinct categories; first category is “charge bargaining” which 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. The second category, “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. The concept of plea bargaining was introduced in India Criminal Justice System in the year 2005 by means of Criminal Law (Amendment) Act, 2005. By this amendment, a new Chapter XXI A has been introduced in the Code of Criminal Procedure.

Earlier the Criminal Jurisprudence of India did not recognize the concept of “plea bargaining” as such. However, reference may be made to section 206 (1) and Section 206 (3) of the Code of Criminal Procedure and section 208 (1) of the Motor Vehicles Act, 1988. These provisions enable the accused to plead guilty for petty offences and to pay small fines whereupon the case is closed.

The Government was hesitant to take a policy decision on the introduction of the plea bargaining in the criminal justice system due to opposition from the legal experts, judiciary etc. The Hon’ble Supreme Court has criticized the concept of Plea Bargaining in its judgment namely, Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929

Further, the Hon’ble Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr 1980CriLJ553 strongly disapproved the practice of plea bargain. The Apex Court held that practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice. Similarly, in Kasambhai v. State of Gujarat, AIR 1980 SC 854 the Supreme Court had expressed an apprehension that such a provision is likely to be abused.

The Law Commission of India advocated the introduction of ‘Plea Bargaining’ in the 142nd, 154th and 177th reports. The Law commission noted that the experience of United States was an evidence of plea bargaining being a means for the disposal of accumulated cases and expediting the delivery of criminal justice.

Based on the recommendation of the Law Commission, the new chapter on plea bargaining making plea bargaining in cases of offences punishable with imprisonment upto seven years has been included in Crl.R.C and the same has come into effect from 05.07.2006. A consideration of Chapter XXI-A dealing with plea bargaining will show that certain procedure prescribed for plea bargaining under Sections 265-A to 265-L of Cr.P.C are to be complied to make it a valid plea bargaining. As per Section 265-A, the plea bargaining shall be available to the accused charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding seven years. Section 265-B contemplates an application for plea bargaining to be filed by the accused which shall contain a brief description of the case relating to which such 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 the 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. Sub-clause 4(a) is to the effect that if the court is satisfied with the voluntary nature of the application, then it shall provide time for working out a mutually satisfactory disposition of the case which may include giving to the victim by the accused compensation and other expenses. Section 265-C prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition. Section 265-D deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. Section 265-E prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. Section 265-F deals with the pronouncement of judgment in terms of such mutually satisfactory disposition. Section 265-G says that no appeal shall lie against such judgment. Section 265-H deals with the powers of the court in plea bargaining. Section 265-I makes Section 428 applicable to the sentence awarded on plea bargaining. Section 265-J contains a non obstante clause that the provisions of the chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A. Section 265-K says that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose of the chapter. Section 265-L makes the chapter not applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

Unless the aforesaid procedure contemplated in Chapter XXI-A is followed the same cannot be a valid disposal on plea bargaining. Even though ‘plea bargaining’ is available after the introduction of the said amendment is available, in cases of offences which are not punishable either with death or with imprisonment for life or with imprisonment for a term exceeding seven years, the chapter contemplates a mutually satisfactory disposition of the case which may also include giving compensation to victim and other expenses. The same cannot be done without involving the victim in the process of arriving at such settlement.

The provisions also mandate the court to give accused the benefit of Probation of Offenders Act where so ever it is permissible. Thus, if an admonition or a supervisory order is passed under the Probation of Offenders Act, 1958, then Section 12 of the said Act provides that it shall not cast any stigma on the offender. Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to the conviction. Thus, the Government employees who are released on probation under the Probation of offenders Act are saved from the disqualification which is attached to conviction. See Sh. Charan Singh Vs. M.C.D. (Writ Petition (Civil) No. 18725/2005) decided on 05/10/2006

Concept of Plea Bargaining should be encouraged and the litigant should be encouraged to avail the remedy of plea bargaining to settle the pending cases. For the successful implementation of plea bargaining and to achieve its objectives, the role of judiciary and the bar is very important.  The member of the bar should encourage the litigant to opt for the plea bargaining rather than to treat the plea bargaining a threat to their profession. With the changing world scenario where all the countries are shifting to ADR from the traditional litigation process which is lengthy as well as complex, the plea bargaining may be one of the best recourse as an ADR mechanism to meet the challenges of disposal of pending cases.

Neeraj Aarora

Advocate

Cyberspace-A new front of war

The incidents of war happened in the real world is mirrored in cyber space, given the recent incidents of hacking of government websites by state or non state group of hackers for political, military, espionage purposes. As the world becomes increasingly dependent on the internet and increasingly connected through it, another threat is beginning to loom large – Hacking and defacement of Government website and other cyber infrastructure. Recently, a hacker group from Pakistan calling itself as ‘Pakistan Cyber Army’ made a mockery of the country’s cyber security by infiltrating into the CBI website supposed to be one of the most secure websites as it is maintained by National Informatics Centre, reported to be employing strict cyber security measures.

Today the CBI’s website, connected to the command centre of world police organisation — Interpol — 24×7 has been hacked, but what about tomorrow? What is the guarantee that next cyber attack may take place on something more critical, like the power grid?

The hacking of Government websites is not new and in past too the hackers group with patronage of government establishment successfully penetrated the highly secure websites belonging to Government of India. However, it is not a one sided affair as there are hacker group from either side who in retaliation or out of political or strategic compulsion hack each other websites. It is no more a secret that our neighbors with whom we have troubled relations find it politically and strategically useful to have arms-length relationship with hackers. One blogger has written that the hackers claim that they are sometimes paid secretly by the Chinese government — a claim the Beijing government denies. There is a number that circulates the web (not confirmed data) that the Chinese government pays to up to 50,000 highly skilled military hackers to use the Internet for specific purposes that are defined by the government officials (cyber expert James Mulvenon told a congressional commission in 2008). The hacker community is diverse with different purposes, for example; (a) Script-kiddies – people, teenagers who are doing it for fun or to show off or to see what they can actually accomplish (b) Criminal Hackers-criminals who are just hacking for financial gains, (c) Patriotic hackers – people that hack websites out of a kind of nationalistic feeling (d) Government backed hackers; There are hackers that are probably employed by the government, probably by the military and the security agencies that are used to attack specific targets for political reasons and last but not the least there are hackers in the military that are thinking about how cyber would be used in an actual military conflict.

The category to which the Pakistani Hackers group who hacked the CBI website is not difficult to imagine. The Pakistan Cyber Army, claim that the Indian Cyber Army had allegedly hacked into the oil and gas regulatory website in Pakistan. The Pakistan Cyber army in retaliation has therefore also hacked the website of CBI. So, the group clearly fall under point (c) mentioned above i.e. patriotic hackers, however it is equally true that they have the government sponsorship too.

As far as the law is concerned, we have Information Technology Act, 2000 on statute book which deals with hacking, particularly the government owned website, say Section 66 (punishing the offence of hacking) read with Section 70 Information Technology Act (punishing access or attempt to access the protected systems). However, these sections are not effective as far as cross border cyber crimes are concerned, more so if one traces the digital footprints of hacking to hostile countries with which we have troubled relations and do not have bilateral treaty. The only solution seems to be is to first identify the critical and vulnerable cyber infrastructure, upgrade their security, setting up of a cyber command structure with experts in cyber security and warfare to continuously look at the cyber security aspects and suggest measures to upgrade the security, make preemptive cyber attacks against enemy cyber infrastructure and last but not the least thwart any similar cyber attacks emanating from foreign land.

The need for international cooperation on these critical issues and the role that international law can play in containing the threat cannot be undermined. As far as the cyber espionage is concerned, there is no known international treaty on this issue, however, on the criminal front there is a convention on cyber-crime drawn up by Council of Europe which is the first international treaty seeking to address Computer crime and Internet crimes by harmonizing national laws, improving investigative techniques and increasing cooperation among nations. However, the problem with this convention or treaty is that most of the major players including India itself have not signed it which could have gone a long way consistent legal enforcement standards across national borders about dealing with instances of cross border cyber crimes. As an alternative to the aforesaid convention, as a short time security measure we can enter into treaty with the Pakistan and China like the one we have with Pakistan to not attack each other nuclear installations, in similar manner we can agree to not launch cyber attacks on each other identified critical cyber installations.

Neeraj Aarora

Advocate

 

FIR in Cyber Squatting: Misinterpretation of IT Act

Recently, a FIR has been lodged by the Economic Offences Wing of the Delhi Police on the complaint of the President Secretariat alleging the existence of the domain name www.pratibhapatil.com having no connection with the Hon’ble President. The preliminary enquiry revealed that a person from Kerala has got it registered and the website was hosted from Germany. The website has been got removed. There was no content on the website except some links of the other websites. The FIR u/s 66/66A IT Act and Section 469 Indian Penal Code was registered by the EOW with the opinion of the Public Prosecutor.

How much it is difficult for a common folk to get register FIR in a genuine case as heinous as rape where police simply turn down the complaint and do not register the FIR except when they are forced to do so by the order of the Court. However, the police acted very promptly on a complaint of President Secretariat where the preliminary enquiry made by police itself reveals that no offence is made out and Sections imputed under the Information Technology Act and Indian Penal Code is gross abuse of law and wastage of time by the investigating agencies that should devote its productive time to curb crimes and do some meaningful investigations into the genuine complaint registered as FIR. The Sections of the IT Act and IPC imputed in the aforesaid FIR has no connection with the allegations as mentioned in the FIR. Section 66 IT Act is applicable when a person dishonestly or fraudulently, does any act referred to in section 43 which contains mainly ten acts which mainly comprises of downloading, copying from computer without permission, introducing virus or contaminant, hacking etc. Clearly, the registration of the domain in the name of the President does not fall under any of the ten acts specified under Section 43 IT Act. Further, Section 66A is applicable for sending offending messages through communication device etc. which is clearly not applicable to allegations as made in the complaint. Lastly, the Section 469 IPC is applicable when electronic record forged is used or intended to be used to harm the reputation of other. The alleged website with the domain name containing the he President istered the name of the President do not attract the Section 66A IT Act either. allegations as mentionname of the President is without any content. Now, the question arises, how can it harm the reputation of the President except misleading the general public.

The aforesaid allegation in the complaint simply discloses the abusive registration of the domain name using the name of the President, which is a case of cyber squatting. The word “cyber squatting” is not defined under the Indian Laws. However, Cyber squatting (also known as domain squatting), according to the United States federal law known as the Anti cyber squatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cyber squatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

The aforesaid case of cyber squatting or domain name squatting is not first of its kind in India. There have been instances where the domain names in the name of the famous personalities have been registered. One such domain name http://www.arunjaitley.com containing the name of Senior Counsel and BJP Leader Mr. Arun Jaitley was registered by the cyber squatter. Mr Jaitley filed the suit in the Hon’ble Delhi High Court, stating that his name was being used by some other person who had made a website using his name. Justice S Murlidhar granted an injunction to use the website and directed Network Solutions & Portfolio Brains Ltd not to sell or transfer the domain in his name until the proceedings of the court were completed.

The recourse available to the prominent person in whose name there is abusive registration of the domain name as alleged in the complaint filed by the President Secretariat is to:-

a)      Filing a case under the Uniform Domain Name Dispute Resolution Policy (UDRP) created by ICANN

b)      Pursuing a litigation in the Court of Law or

c)      Buying the Domain name

Thus, the allegation as contained in the complaint made by the President Secretariat do not attract any provisions of the Information Technology Act or the Indian Penal Code and the registration of the FIR is gross abuse of process of law and wastage of time by investigating agency.

Neeraj Aarora

Advocate