Only Gender Centric Offences Excluded From Plea Bargaining: Madras High Court Lays Down Suggestions For Trial Courts

“Offences like harassment to woman under the Special Act or sexual offences, criminal force and assault against woman or offences related to marriage were the victim is the woman will fall under gender centric/gender neutral offences. Unlike I.P.C fortunately, the Bharathiya Nayaya Sanhita (BNS) has brought all these offences under one chapter and grouped in Chapter V of BNS under the caption “of offences against woman and child.” In the considered view of this Court, only those offences will fall under gender centric or gender neutral offences to attract the expression “offence against a woman” and be excluded from the scope of plea bargaining,” the court observed.

Justice G Jayachandran also laid down suggestions which the trial courts could look into while dealing with applications for plea bargaining.

The court suggested that the trial courts could inform the accused about his right to invoke plea bargaining soon after the framing charges, thus allowing the accused to exercise his right before the expiry of 30 days from the date of framing charges as prescribed under Section 290 of BNSS.

The court also suggested that to facilitate the Mutually Satisfactory Disposition (MSD) process, the courts could take the assistance of the persons associated with the DLSA or the Tamil Nadu State Legal Service Authority. Further, the court added that whenever the process is undertaken, the trial courts should ensure that the accused has come forward to apply voluntarily and has made an informed choice of plea bargaining.

The court also asked the trial courts to ensure that the offences that are excluded shall not be dealt with in plea bargaining.

The court clarified that when an application for plea bargaining is made, the offenders need not apprehend that they will be imposed with the sentence of imprisonment. The court went on to clarify that wherever a minimum sentence is prescribed for an offence, the imprisonment would be for half the sentence. The court added that in all other situations, the imprisonment may be till rising of the court or to the maximum of 1/4^th of the period prescribed.

“The Act prescribes half the sentence of imprisonment in case of the offence where minimum sentence is prescribed. In all other cases where the sentence of imprisonment is extendable to a certain period, then the Court may not impose sentence of imprisonment, if the sentence prescribed for the said offence is 'may be imprisonment or with fine'. The Imprisonment, may be till Raising of the Court to the maximum of 1/4 th period prescribed under the Act,” the court said.

The court made the observations on a petition filed by Venkatesan against the order of the District cum Judicial Magistrate, Kilvelur refusing to accept his application for plea bargaining. The allegation against Venkatesan was that he had caused hurt to a female Junior Bailiff who came to serve a summons to his wife and wrongfully restrained her.

When Venkatesan filed a petition to quash the final report, the High Court had found prima facie material to proceed against him and refused to quash the petition. Thereafter, Venkatesan informed the court that he had realised his mistake and that he wanted to apologise for his conduct. The High Court had directed him to make an application for plea bargaining and directed the trial court to follow the procedure. The trial court however rejected his application which prompted him to approach the High Court again. He also expressed apprehension that the Magistrate was not bothered with the case as the de-facto complainant was a court staff.

The court took note of the submissions and to dispel the apprehensions, directed the case to be transferred to the District Magistrate, Mayiladuthurai. The court also said that if Venkatesan opted for plea bargaining before the Mayiladuthurai District Magistrate, the magistrate shall take the application on file and dispose it as per the procedure.

Counsel for the Petitioner: Mr.C.Emalias

Counsel for the Respondent: Mr.K.M.D.Muhilan Government Advocate (Crl. Side), Mr J. Chandran Sundar Sashikumar, Mr. R. John Sathyan, Senior Counsel, Assisted by. Mr.C.K.Chandrasekkar, Standing Counsel, for T.N.S.L.S.A

Citation: 2024 LiveLaw (Mad) 319

Case Title: Mr G Venkateshan v The State

Case No: Crl. O.P.No.14485 of 2024