Criminal Cases and ADR

By Rahul Deo, CNLU Patna

Editors Note: Courts are overburdened with the cases. It is the temptation that has led the legislature to incorporate the concept of Plea Bargaining in India and hopefully the result will be satisfying in many aspects. The author, in this paper seeks to evaluate this very concept on various counts.

INTRODUCTION

Quality of justice suffers not only when an innocent person is punished or a guilty person is exonerated, but when there is enormous delay in deciding the criminal cases.[i]

A “plea bargain” is an agreement between the prosecutor, the defendant’s attorney and the defendant. In return for the defendant entering a plea of guilty to a criminal charge, the prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial.

Judiciary is the most important organ where people have faith. It is known for its impartiality and independence in deciding the disputes. The Indian judiciary is, nowadays, regarded as the unsuccessful organ of the Indian Government system. Heavy back-log of cases in the courts and inevitable delay in dispensing the justice has been to such an extent that it is shaking public trust and confidence in the legal system and it is tending to erode the quality of social justice and hampering the socio-economic development of the country.[ii]

Speedy trial is the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.[iii]  The theory of “justice delayed is justice denied” can be applied after seeing the Indian context. The lengthy trial procedure takes years or sometimes decade to adjudge the proceeding. The factors which really are the reason for such delays:

  1. increasing number of litigation,
  2. courts overburdened with cases.
  3. number of judges in the Supreme Court, High Courts, and subordinate Courts.

 RELEVANCY OF A.D.R

By Oct.- 3, 2001 there was 2.03 crore backlog pending cases in District Court and High Court. More than 80% of cases were from seven states- Uttar Pradesh, Gujarat, Bihar, Karnataka, Madhya Pradesh, West Bengal, and Maharashtra. There were 35,57,637 case spending in different High Court of the country. Five lakh of them are more than ten years old. Even the Supreme Court has 21,995 cases pending therein.

The Law Commission of India in its 120th Report(1987)[iv] observed that late disposal of backlog cases is because of low judge per capita ratio in the country. The Indian judges are roughly 10.5 judges per million whereas the figure is more than four times in Australia, U.K., U.S.A., and Canada. There was also a suggestion for increase in the number of judicial officers.

Because of the overburdening of Courts with cases, there is gross neglect towards the status of undertrials. Flooding of cases led to an increase in number of convicts and overpopulation of prisoners. Although there is a capacity of 2.56 lakh prisoners there are more than 5 lakh prisoners which are behind the prison.

The State govts. spends more Rupee 55 per day on each prisoner and annual expenditure comes up to Rs 361 crore. If we could have adopted a different method (speedy trial) then the situation would have been totally different. The State Government would be able to reduce the number of undertrials in the jails and also the huge expenditure could have been checked[v].

Fundamental Right to Speedy Trial

The Supreme Court, on various occasions, in its judgments, made it clear that speedy trial is of an essence to criminal justice and there can be no doubt that the delay in the trial, by itself, constitutes denial of justice’.[vi] In yet another case the Supreme Court states:

there can be no doubt that speedy trial, and by speedy trial, we mean a reasonably expeditious trial, is an integral and essential part of fundamental right to life and liberty enshrined in Article 21‘.[vii]

Constitutional Obligation

The preamble of the Constitution enjoins the state to secure social, economic and political justice to all its citizens, making the constitutional mandate for speedy justice inescapable. This Directive Principle of State Policy directs the state to strive for reducing inequalities amongst groups of people in different areas [Art 38 (1)]. This is elaborated by specifically adding that:

The State shall secure that the operation of the legal system promotes justice., to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Art 39A).

While interpreting this provision the Supreme Court held that:

social justice would include ‘legal justice’ which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for the realization of justice for all sections of the people irrespective of their social or economic position or their financial resources.[viii]

Need for a Fair Judge-Population Ratio

The Law Commission of India has repeatedly recommended an increase in the judge-population ratio. However, the same has not been accepted by the Government. The 120th Law Commission Report stated:

If legislative representation can be worked out, as pointed out earlier, on the basis of population and if other services of the state bureaucracy, police, etc, can also be similarly planned, there is no reason at all for the non-extension of this principle to the judicial services. It must also be frankly stated that while population may be a demographic unit, it is also a democratic unit. In other words, we are talking of citizens with democratic rights including the right to access to justice which is the duty of the State to provide.

The 120’th Law Commission Report, while recommending the five-fold increase in judicial strength, at all levels of the Indian judiciary, from 10.5 to 50 judges per million of population, also pointed out how India’s judge-population ratio stands in poor contrast when compared with several other countries. However, the government is still to take any action on the same.

Fast Track Court Scheme

Under the Fast Track Court Scheme, a sum of Rs 502.90 crores was sanctioned as upgradation grant for judicial administration for five years till 2005. At present, there are 1.8 lakh under-trials in jails,6 on whose maintenance the Government was spending about Rs 361 crores a year at the rate of Rs 55 per person, per day, in prison. About two crore cases were expected to be disposed of by 2005. If successfully implemented it would entail substantial saving in jail expenditure, besides addressing a serious human rights problem.

APPLICABILITY OF A.D.R. IN CRIMINAL CASES

These statistics reflect the ubiquity of plea bargaining i.e Relevancy of A.D.R. Plea bargaining involves the prosecutor trading a reduction in the seriousness of the charges or the length of the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced charges. Both sides usually have good reasons for settlement. In a case in which the evidence of guilt is overwhelming, the prosecution can avoid the expense and delay of a trial by offering modest concessions to the defendant. When the evidence is less clearcut the government can avoid the risk of an acquittal by agreeing to a plea to a reduced charge. Because the substantive criminal law authorizes a wide range of charges and sentences for typical criminal conduct, and because the procedural law allows prosecutors wide discretion in selecting charges, the prosecution can almost always give the defense a substantial incentive to plead guilty.

    Even the famous jurist Nani Palkhivala has said,[ix]The greatest drawback of the administration of justice in India today is because of delay of cases……………. The law may or may not be an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to work.”

It is the policy and purpose of the law to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedily untrained and unpolluted justice[x]. The problem of delay and backlog of cases is rather more acute in criminal cases as compared to civil cases.[xi] The Criminal Law (Amendment) Act 2005 has been introduced in order to eradicate challenges in criminal cases.

India’s population is day by day increasing. This increase in population leads to an increase in number of detrimental acts. This increase in number of detrimental acts has to lead to the creation of many new policies. These policies in its practice require number of litigation. As a result, courts are overburdened with cases. It is the temptation that has led the legislature to incorporate the concept of Plea Bargaining in India and hopefully, the result will be satisfying in many aspects[xii].

LEGISLATIVE INTENTS

Right to Speedy Trial

There is a judicially recognized right to speedy trial as part of Art 21 of the Constitution. However, because of inordinate delays, the right to speedy trial is not made available to the citizens making the trial procedure lengthy.

Constitutional Obligation

The preamble of the Constitution enjoins the state to secure social, economic and political justice to all its citizens, making the constitutional mandate for speedy justice inescapable. This Directive Principle of State Policy directs the state to strive for reducing inequalities amongst groups of people in different areas [Art 38 (1)]. This is elaborated by specifically adding that:

The State shall secure that the operation of the legal system promotes justice., to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Art 39A).

While interpreting this provision the Supreme Court held that:

social justice would include ‘legal justice’ which means that the system of administration of justice must provide a cheap, expeditious and effective instrument for the realization of justice for all sections of the people irrespective of their social or economic position or their financial resources.[xiii]

Criminal Case Management Systems

In order to ensure fair, speedy and inexpensive justice, the Supreme Court[xiv]has suggested a model Case Flow Management System in which a judge or an officer of the court would be required to set a time-table and monitor a particular case from its initiation to its disposal.

A bench comprising YK Sabharwal, DM Dharmadhikari and Tarun Chatterjee JJ, while suggesting changes in CPC to incorporate recommendations by Justice Jagannadha Rao Committee, pointed out that a study by the Committee had revealed that case management system had yielded exceedingly good results in other countries.

In a judgment delivered on 3 August 2005[xv], the bench further directed high courts to examine the elaborate model Case Flow Management Rules framed by the Committee, headed by former apex court judge and Law Commission Chairman M Jagannadha Rao J, and consider adopting it with or without modifications within a period of four months.

Though the court had upheld the constitutional validity of the amendments earlier, it had appointed the Committee to frame modalities for the implementation of the provisions inserted by the amendments. The judgment, delivered after the court considered the report, records the suggestions made by the Committee.

The Supreme Court not only wanted to put cases on the fast track, but it also wanted them to be graded as sprint, middle-distance and long-distance according to priority.[xvi] Each category was to have its own deadline.

Under the plan, which has yet to be passed into law by the Parliament, Track I cases are to comprise of crimes punishable with death. So do cases of rape, other sexual offenses, and dowry deaths. The endeavor is to complete the Track I cases within a period of nine months.

Other criminal cases where the accused have been denied bail and kept in jail custody are to be Track II cases and are to be decided within a year. The 12-month deadline is to apply to Track III cases, which relate to mass cheating, economic offenses, illicit liquor tragedy, and food adulteration. Terrorism-related cases under special laws like (the now revoked) Prevention of Terrorism Act, as well as drugs and corruption cases, are to be on Track IV, with a 15-month deadline. All other criminal cases will be on Track V and must be disposed of in 15 months. The Supreme Court has suggested that not only trial courts but each high court, too, classify criminal appeals pending before it into different tracks on the same lines.

In most cases of prisoners where the accused are illiterate or poorly educated and lack the means to hire a lawyer the Supreme Court judgment has suggested that they are allowed the services of amicus curiae or state legal aid counsel.

As for writ petitions before high courts, those of habeas corpus must have the highest priority. The Supreme Court has ruled that high courts should issue notice at the first hearing of such writs and make them returnable within 48 hours. Which means the government or the police must respond within 48 hours of the notice being issued. Other writ petitions are to be classified into three categories: fast-track (deadline: six months)’ normal-track (not more than a year) and slow-track. The last group 0 petitions, subject to the pendency of other cases in the court, should ordinance, be disposed of within a period of two years.

In civil cases, the court of appeal should consider if there is a possibi1. of a settlement, between the parties, at the first hearing, and the court concerned can, if it feels there is a possibility, make a reference mediation or conciliation, for a settlement.

To administer the rule of law and justice, certain necessary steps need to be taken by the state. In case of civil matters there are alternate options available such as alternative dispute resolution mechanisms, thus there is a procedure by which pendency of cases can be tackled. However, such a facility is not available in the administration of criminal justice. There is a need to evolve an alternative approach to resolving criminal cases in a constructive manner. Although, there are very few alternatives to prosecution in a criminal trial, however, the pre-trial processes of investigation and prosecution can be rationalized, and alternatives found to prolonged trial procedures. Compounding of offenses of less serious nature and plea bargaining are some areas, which can help to speed up the trial and increase the conviction rate.

Compounding of offenses: Need to Reframe Section 320 Cr PC

Section 320 of Criminal Procedure Code (Cr PC) provides for compounding of offenses. Part one gives a list of offenses which can be compounded without the consent of the court, while the second part provides for compounding of serious offenses with the court’s permission. Some examples of compoundable offenses are causing hurt, wrongful restraint, criminal trespass, adultery, enticing defamation, criminal intimidation and act caused by making a person believe that he will be an object of divine displeasure.

The second part deals with relatively serious offenses, that can be compounded with the court’s permission. Section 381 talks about theft by clerk or servant of property in possession of master, where the value of the stolen property does not exceed Rs 250. As per sec 320(2), the court’s permission has to be obtained to compound the offense. There are various other provisions in the IPC that require that permission by the court be taken to compound the offense. There is a need to widen the scope of compounding offenses with provision of details for procedure, principles, and safeguards to reduce the burden of prosecution and the trauma of trial.

If an offense falls beyond the scope of compounding, and where the trial is necessitated the accused must get a favorable and fair opportunity to voluntarily plead guilty but with certain safeguards.

PLEA BARGAINING: THE NEED

Concept

Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet become the subject of collateral review. Prosecutors refuse to file charges or dismiss charges in a large number of cases. In the cases prosecutors choose to pursue, the majority end not in trial by jury but by a plea of guilty or a successful motion to dismiss. Statistics vary across jurisdictions, but it would not be uncommon for half of all arrests to result either in no charges or in charges that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas, and for the remaining cases to be tried. The government typically wins a significant but not overwhelming majority of criminal trials; a 70 percent conviction rate at trial would not be unusual. The concept of plea-bargaining in our criminal justice system has been taken from U.S. Legal System. A concept that has been imported from the west for the speedy trial. The Parliament introduced Chapter XXI A in CrPC[xvii] which talks about its procedure and application.

The characteristics of the concept are:

A person accused of an offense may file an application for plea-bargaining in the court in which such offense is pending for trial.[xviii]  The application for plea-bargaining should be filed by the accused voluntarily.[xix] The proceedings are held ‘in camera’.  Time is given to the accused and the complainant for mutually satisfactory disposition of cases including expenses, compensation etc. The secrecy of the matter is maintained as to ensure that the statement made by the accused during plea-bargaining shall be voluntary.  The concept includes women and children below 14 years. Crimes with punishment of more than 7 years or the punishments which are not compoundable under section 320, CrPC have been excluded from the purview of plea-bargaining.

KINDS OF PLEA-BARGAINING

The kinds of bargaining are as follows:

  1. Charge bargaining
  2. Fact bargaining
  3. Sentence bargaining.

1. Charge bargaining: It is the defendant who has to come to plead guilty for reduction of charges. It occurs when the defendant pleads guilty to necessarily included offenses.[xx] For this element, the prosecutor may offer to amend the charges to a lesser offense that carries a lesser penalty. An individual charged with burglary, a felony, may be offered a chance to plead guilty to criminal trespass, which is a misdemeanor. Alternatively, in return for a plea to a specific charge such as driving under the influence, other charges arising out of the same event, perhaps driving on a suspended license, might be dropped.

Charge bargains can be used to avoid mandatory minimum penalties if a charge is changed to one that does not have the same minimums, but the facts fit the alternate charge. The authority to alter charges is within the complete discretion of the prosecutor.

2. Sentence bargaining: In this instance, the prosecutor agrees to make a specific recommendation to the judge of a sentence in return for a guilty plea. Most charges carry a wide range of sentence possibilities. Given the range of possible outcomes, many defendants prefer the certainty of a specific sentence rather than the uncertainty of a sentence following a guilty verdict when the sentence is entirely at the discretion of the judge. Generally, sentence bargains must be approved by the trial judge.

3. Fact bargaining – It involves negotiations and admissions of certain facts stipulating to the truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove them.[xxi] This is a little used possibility and often happens in minor cases that may expose a defendant to civil liability to a crime victim. Fact bargaining involves a stipulation to certain facts or the introduction to certain evidence, thereby eliminating the need for the prosecutor to have to prove them, in return for an agreement not to introduce certain other facts into evidence. The defendant may then technically maintain a plea of not guilty, though it is understood he will be found guilty.

A guilty plea is an admission that may be used against a defendant in another court proceeding as to liability for specific acts. A finding of guilty after a trial is not such an admission. This process achieves a conviction for the prosecution without a full trial and avoids a court admission for the defendant. In some jurisdictions, this same result is achieved by a plea of no contest.

Elements of a valid Plea- agreement:

The accused is provided with many constitutional rights up until his guilty plea is entered. For an agreement to be valid, the following elements must be present:

  • A voluntary waiver of constitutional rights.
  • A knowing waiver of these rights.
  • A factual basis for the charges to which the defendant is pleading.

ORIGIN

It has the origin in the U.S. and before the 1920s, plea-bargaining was scarcely acknowledged to exist in the society.[xxii]  It was described as unfair and inaccurate (466 F 2d 735) and even if its constitutionality has been challenged in Harvard Law Review (1387).[xxiii]

Later on, rule-18 of Bar Association approved standards relating to guilty plea (1968) and recommended for plea of guilty for the accused. The validity of plea bargaining has been upheld saying that it extends benefit to the accused that in turn, extends the benefits to the accused.[xxiv] In Santa Bello v. New York,[xxv] the court said that it is essential for the administration of justice and when properly managed, was to be encouraged.  The court should not act as a facilitator of the bargain.[xxvi]

In 1976, even Justice Potter Steward has stated that the heart and soul of Plea Bargaining are in the benefit to all concerned in a criminal case[xxvii].

At present in the USA, plea bargaining is widely prevalent; it has become a major part in the criminal justice system, it plays a significant role in the disposal of criminal cases. It can be rebutted in many ways but, the agreements attracts three important issues.

  1. The importance of Plea Bargaining to the competence of the system.
  2. How the practice affects the liability of the accused.
  • The extend to which Plea Bargaining represents the proper role of the courts and criminal justice as a whole.

GROWTH OF PLEA BARGAINING IN INDIA: JUDICIAL REVIEW

Here, a crime is a way against the society and state. And the negotiation between the wrongdoer and the aggrieved party or with the state was held unconstitutional and illegal terming, it to be against the public policy[xxviii]. Article 21 has been put for in support of the accused as he would not be getting a fair and reasonable opportunity to defend the case. In number of cases[xxix]the Supreme Court has set aside High Court and remanded the matter to the Judicial Magistrate for trial of the accused in accordance with law as it comes to the conclusion that the conviction and sentence were based on a  coerced admission of guilt as a result of Plea bargaining. But after the amendment in CrPC in 2005,  there is a change in criminal justice. The time has come to take it as norm rather than exception in the Criminal Justice system.

The justice has to be provided in a reasonable time but the backlog of cases has been really questioning the faith of judiciary which people have in it. Judges are second to God, efforts should be made to strengthen this belief. Plea bargaining is such a process through which the criminal justice system can be improved. It has more pros than cons and the legislature has applied in India as in such a manner that minimum misuse can be done. The crime in our country has been really increasing and it is adding up as the day passes. Without the use of plea-bargaining the already over-crowded prisons would be even worse.[xxx]

EFFECT OF PLEA BARGAINING

In lieu to remove the backlog cases, the individual and the collective goal in regard to plea-bargaining can only be achieved when judges, public prosecutors, accused, investigating officers and the victims co-operate and work together.

It leads to minimal risks of undesirable results for either party; avoid the uncertainty of the trial. The reason for plea-bargaining by either side may be several and are as follows:

  1. Plea Bargaining In respect to victims:

Although the crime is against the state and the society it is ultimately the victim which need to be satisfied. This plea-bargaining has come up as a “victim-oriented reform” in the criminal justice system. Perhaps, it is the first time that the recommendation and suggestion of law commission in CrPC have been implemented for taking care of the interest of the victim.[xxxi]It provides greater respect and consideration towards the victim and their rights.[xxxii] There is a scheme for compulsory compensation; and also the satisfactory disposition of the case. Plea bargaining also mandates for giving compensation to the victims of the crime. When the process is complete and the quantum of punishment and possibility of the probation is finished, we can say that the victims are not the forgotten actor rather they have become a key player in the criminal justice system.[xxxiii] The right of the victims are better upheld, and they do not have to satisfy himself with the court decision. They can bargain over the court’s decision.

The victim does not have to produce evidence in the Court and thus led to a reduction in anxiety to the victims and the unpleasantness of hearing all details of crime analyze in length in public[xxxiv]. For those who do give evidence, the process is often stressful[xxxv]. Due to Plea bargaining, the victim may even avoid the stress and publicity of trial; and even the court’s time is saved.

  1. Plea bargaining In respect to Accused:

 The accused are the most benefited person of Plea Bargaining when they confess about the crime. They can even save the Attorney’s fee if they are represented by the Private Counsel. The time consumed in Plea Bargaining is always less as compared to take the case in trial. The other benefits are[xxxvi]:

  1. Getting Out of Jail.
  2. Resolving the Matter Quickly.
  • Having Fewer or less serious offenses on One’s record
  1. Avoiding hassles of finding a good lawyer for preparing for trial.
  2. Avoiding Publicity.
  3. Plea Bargaining in respect to Judges and Prosecutors:

 Many judges and  Prosecutors get powerful incentive because of crowded calendars and overburdening of Prisons. Plea Bargaining help court and prosecutors to manage caseloads[xxxvii]. Judge even presides effective trials because of Plea bargaining, minimize the risk of the ruling being overturned on appeal; and to avoid the necessity of making a ruling during the trial[xxxviii]. 

CAUSES OF CONCERNED IN PLEA BARGAINING

After seeing the above situation the model of Plea Bargaining need to have involvement of three important benefits[xxxix]:

  1. Increasing the predictability of Plea Bargaining,
  2. Enhancing the accuracy and fairness of the Plea.
  • Introducing more openness and transparency in the Plea Negotiations.

CRITICISM

Advocates or attorneys, basically the criminal lawyers, are opposing the plea-bargaining process. As this process is an alternative to the litigation, the prosecutor or the defendant may avoid engaging an attorney. So, criminal lawyers are not in favor of this process. But, the question arises, whether this process should engage the litigating attorneys? Attorneys know the court process, the prosecutors and most importantly, how the law works. When an attorney reviews your case, he or she may find potential legal issues that can result in evidence being excluded or your case being dismissed. If your case goes to jury trial, an attorney will know how to prepare for trial and what needs to be proved. The burden in a criminal case is always on the government to prove your guilt beyond a reasonable doubt. Your attorney does not have to put on any evidence, however, he or she does need to cross-examine the government’s witnesses. Cross-examination is a skill, and a good cross-examination is very effective.

Although the legislature has adopted the concept of Plea Bargaining with certain reservation and cautions. The criticism of this Plea Bargaining is basically of two types: Firstly, the defendants lose up their constitutional rights eg. Right to trial, Right to appeal as guaranteed by CrPC, right to fair procedure (as it should be just, fair and reasonable, right to equality. Secondly, it effects on sentencing policy as it points out that society’s interest in appropriate punishment for crime is reduced by Plea Bargaining[xl]. Its also being criticized by saying that there is a reduction in deterrence as criminal spend less time in jail. It can be rebutted by saying that long processing times are not only costlier in jail time and psychological wear tear, but also tend to remove the probability of conviction[xli].

CONCLUSION & SUGGESTIONS

The general public tends to regard plea bargaining as too lenient.

  The defense bar and others of like mind think it too coercive. 

                                                                                                  –– George Fisher

Whether plea bargaining is an effective method of delivering justice has been a hot burning topic which needs to be handled with proper care and caution. In the modern field of criminal jurisprudence, which is still in its infant stage, it very well needs to be answered as to how is it going to act as a tool for providing justice?

  To save from miscarriage of justice, following safeguards must be followed by all the player of the process.[xlii]

  • Judicial independence and impartiality
  • Complete and timely disclosure of prosecution case
  • Complete record of disposition and discussions to be maintained to promote consistency and transparency
  • To be ensured that the views of the victim and investigating agency are solicited and also to ensure their understanding of the agreement
  • The plea must be voluntarily and there must be an awareness of circumstances and likely consequences.

Due to the unloading of backlog cases, the jails will not be over-packed. The constitutional obligation to provide speedy trial is also being fulfilled; reduction in the number of under-trial prisoners. Due to plea-bargaining, the faith of the people in the criminal justice system can be regained and the crime rate can also be decreased. The plea-bargaining can also reduce serious congestion in the courts. By the words of Earn Warren, “It is the spirit and not the form of law that keeps the justice alive. So, the proceeding must be fair and reasonable to have best results.

Formatted on 28th February 2019.

Footnotes

[i] Government of India, ministry of home affairs, “Report of the committee on reforms of criminal justice system,” vol.1, March 2000.

[ii] A.K.Sikri ” Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA DEEP, Vol.__,2006,p.39-60.

[iii] Hussainara Khatun v. State of Bihar, AIR 1979 SC 1360.

[iv] Law Commission of India, 12oth Report on Manpower Planning in Judiciary: A Blue print , July 1987, pp. 2-3.

[v] P.K.Singh “Plea Bargaining”, CBI , Bulletin, June- Dec. 2008, p. 14.

[vi] Hussainara Khatoon v. State of Bihar AIR 1979 SC1360

[vii] Maneka Gandhi v. Union of India AIR 1978 SC 597

[viii] L Babu Ram v. Raghunathji Maharaj and ors AIR 1976 SC 1734.

[ix] Nani A. Palkhivala, “We the nation – lost decade (1994), UBS Publications, p. 215.

[x] Anil Rai v. Satte of Bihar, AIR 2000 SC 3173.

[xi] Supra 2.

[xiii] L Babu Ram v. Raghunathji Maharaj and ors AIR 1976 SC 1734.

[xiv] Supreme Court of India suggested introduction of case management systems in a recent judgment on 3 August 2005.

[xv] Reported in The Hindu, 4 August 2005; Telegraph, 4 August 2005, Kolkata, p 1.

[xvi] Reported in Telegraph, 4 August 2005, Kolkata.

[xvii] Criminal Law (Amendment Act, 2005 ), inserted by Act 2 of 2008, Section-4, w.e.f.- 5.7.08.

[xviii] Section- 265 A (1)(a) of CrPC, 1973.

[xix] Section- 265 B (4) of CrPC, 1973.

[xx] Daviv Levinson, Encyclopedia of crime and punishment (2003), vol.3, p.1147.

[xxi] Supra 7.

[xxii] Baldevbhai P. Patel, “plea-bargaining – travesty of justice or necessary evil,” Gujarat Law Herald, 2007 (1), p. 16 to 21.

[xxiii] Supra -4.

[xxiv] Brady v. US, 397 U.S. 742 (1970).

[xxv] 404 US 257(1971).

[xxvi] Supra 7.

[xxvii] Blackledge v. Allison, 431 US 63 ( 1977).

[xxviii] Kachhia Patel Shantilal Koderlal v. State of Gujrat and Another ( 1980) 3 SCC 121; UOI v. V. Jasbhai and Another 1981 (8) ELT 902 (MP), State of Gujarat v. Union Bhikhu Prajapati 1992 Cri LJ 626.

[xxix] Ganeshmal Jashraj v. Govt. of Gujarat, 1980 Cri LJ 208: AIR 1980 Sc 264, Trippaswamy v. State of Karnataka, AIR 1983 SC 747.

[xxx] Supra 2.

[xxxi] Supra 2.

[xxxii] Ibid at 26.

[xxxiii] Attorneys Paul Bergman & Sara J. Berman- Barett, “The criminal law handbook: Know your rights, survive the system, (1997) Berkkeley : nolo press.

[xxxiv] Ashworth & Redmayne, “The Criminal Process” ed. 3rd, p. 283.

[xxxv] J.Morgan and L.Zedner,” Child victims: crime, impact, and criminal justice”, 1992.

[xxxvi] Supra note 12.

[xxxvii] Stetan, J Kapsch,” Plea Bargaining”, The guide to American Law: Everyone’s legal Encyclopedia, Minneapolis, MN; West, 1998.

[xxxviii] http:// criminal. Findlaw.com/articles// 1491.html ( last visited on 26/10/2006, as reported in Nyaya Deep).

[xxxix] Jenia Iontcheva Turner, ” judicial Participation in Plea Negotiation: A Comparative View:Winter 2006, The American Journal of Comparative law, Vol. 55(1), p.199.

[xl] Supra 2.

[xli] Ibid 36.

[xlii] Supra 2.

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