Introduction
The plea-bargaining process as per Indian law is provided under Chapter XXIII of Bharatiya Nagarik Suraksha Sanhita “BNSS” , under a series of Sections ranging from 289 to 300. Among them lies which defines the limited usage of statements provided by the accused during the plea-bargaining process, with the intent to protect the self-incriminatory rights of the accused as provided under Article 20(3) of the Constitution. Similarly, of the Bharatiya Sakshya Adhiniyam “BSA” limits the usage of confession and statements provided by the accused under police custody.
However, there lies an exception under Section 23(2) of the BSA, which recognizes the admissibility of the statement provided by the accused during police custody if it leads to any discovery of fact. By considering the same, this blog will explore the possibilities that can be adopted in forming a similar exception under Section 299 of the BNSS, while maintaining the spirit of equilibrium between factual info extraction and the right against self-incrimination of the accused.
Finding a way from Section 23(2) of BSA to Section 299 of BNSS
A bare reading of Section 23(1) of the BSA and Section 299 of the BNSS highlights the persistent similarities between them, where one prohibits the misuse of confession of the accused under police custody, and the other, in the plea-bargaining process with the opposite party. However, the exception lies in only one.
The Exception in the Form of Section 23(2)
Section 23(2) of the BSA works as an exception to its prior Section 23(1), which prohibits the acceptance of the confession supplied by the accused under police custody. Concerns about the rights of the accused were raised in various cases that recoveries made under police custody can be tainted with custodial violence and the abuse of such opportunities can be taken under the garb of Section 27 of the The case of Pulukuri Kottaya and ors. v. King Emperor clarifies the position, holding that only the factual leading part of the statement, not the other information related to the accused or the case, should be included. This means the accused, even if forced to provide statements related to facts against themselves, will not be accepted unless it is established that they prima facie relate to the facts in the commission of the crime. Further, in the case of Rammi Alias Rameshwar vs State Of Madhya Pradesh, it was held that a mere connection of fact with the case is insufficient and the prosecution was still liable to establish its relevance to the case and its reliability.
Hence, from the above analysis, it can be established that despite the looming possibilities of violation of rights under Section 23(2), the balanced approach adopted by lawmakers and judicial precedents in its application helps both sides with the case. But the main question is whether the same can be applied to Section 299 of the BNSS.
Exception under Section 299 of BNSS
Section 299 of BNSS states that, even if anything contained in any law, the statements or the facts provided by an accused during the plea-bargaining process as provided under Section 290 of BNSS shall not be used for any purpose except for those provided under Chapter XXIII of BNSS.
Under this section, if any proceedings of plea bargaining are filed under of the BNSS, then the information provided by the accused to the opposite party with the intent to reach a mutual agreement cannot be used by the plaintiff in other proceedings. The rationale behind the same is to protect the interest of the accused, who accepts his guilt during the plea-bargaining process, where using the same against him can demotivate the future propagation of such process.
However, the information provided by the accused during the plea bargain process can result in the discovery of vital facts and cogent circumstances related to the respective case or other cases, similar to possibilities defined under Section 23(2) of the BSA, which attracts attention to the discourse of creating similar exception under it.
The Indian Judicial Perspective on Exception under Plea Bargaining Confidentiality
In the case of Navneet Singh v. State, the Delhi High Court held that the statements or facts stated by the accused during plea-bargaining cannot be used for other purposes or proceedings except as provided under Chapter XXIA of the Code of Criminal Procedure(CrPC) (predecessor to Chapter XXIII of BNSS). Thus, the statements provided by the accused during the plea-bargaining process affixing the guilt of other co-accused cannot be entertained by the court. Further, in the case of Pappu Lal Meena v. Commissioner of Police, the principal bench of the Central Administrative Tribunal (CAT) held that statements under (predecessor to Section 290 BNSS) should be dealt with confidentiality to ensure the integrity of the plea-bargaining process.
But under these judgments, a wider deconstructed view of justice is ignored, as the information provided during the plea-bargaining process should not be ignored in toto, especially if it hints towards a fact relating to the case. Because if the plea-bargaining process is unsuccessful, the plaintiff can be deprived of justice even after knowing the crucial factual information of the case and the accused may escape using this procedural escape, violating the principles of comprehensive evidence gathering and natural justice.
Further, as described by Straight C. J. in the case of Queen-Empress vs Babu Lal, provisions like Section 27 of IEA are not intended to expose the confession generally but only such actionable information that sets motion to discover new facts and relates distinctly to facts discovered. The same interpretation can be applied to Section 265K of CrPC (predececessor to Section 299 BNSS) where only factual information statements of the accused, which sets the discovery of relational distinct facts into motions, can be considered.
The International Perspective Over the Issue
Countries like the United States of America (USA) and the United Kingdom (UK) have accepted the usage of factual information provided during plea bargaining in other proceedings. For instance, in the case of United States v. Gomez, the statements made during the plea proceedings led to the discovery of narcotics, and the court held that such statements can be used in later proceedings as they resulted in the discovery of actual incriminating evidence. Further, under the case of R v. Delaney, the defendant’s statements made during plea bargaining led to the discovery of stolen goods, and the court allowed the usage of such statements in subsequent proceedings to establish a chain of custody. The rationale behind the same was that the factual discovery, triggered by statements, had independent evidentiary value.
Therefore, the above interpretation can also be applied in the Indian context, where the factual information received during the plea-bargaining process under Section 290 of the BNSS can be provided with independent evidentiary value, and if it pertains to any explicit incriminating evidence then the same be used without any prejudice against the accused.
Path Towards Formation of Exception under Section 299 of BNSS
Until now, the most probable solution can be the adoption of a balanced approach to plea bargaining, similar to that in other countries by combining flexibility with confidentiality. Further, in the Indian scenario, the same can be based on exceptions related to the discovery of facts, and to achieve its practical application following measures can be taken:
- Establishment of a Judicial Oversight Mechanism
The court already plays an important role in the supervision and functioning of a plea-bargaining process as provided under Sections 291, 292, and 293 of BNSS. On the other hand, state investigative agencies are empowered to investigate the factual evidence based on confessions. Considering the same, a complimentary mechanism can be established between the court and investigative agencies, allowing the latter to operate under the court’s direction. Additionally, the court’s role under Section 292 of the BNSS can be expanded concerning Section 299 of the BNSS, whereby a report produced by the court after the completion of proceedings encompasses an analysis of the accused confessions by bifurcating the confession based on fact and their nature of admissibility. Moreover, the same report can be forwarded to investigative agencies for further investigation.
- Formation of Exception through Legislative Amendment
The above-provided mechanism and the exception under Section 299 of BNSS, can be adopted through a legislative amendment, allowing the parliament to introduce an amendment under Chapter XXIII of BNSS. Though India lacks precedent in such specific amendment. there are international examples illustrative of such exceptions, for instance, The . The implementation of these exceptions’ has been solidified through their adoption in the domestic laws of member countries. Furthermore, a supervisory authority known as the European Data Protection Board (EDPB) has been established to
Conclusion
In conclusion, a limited exception under Section 299 of BNSS, akin to Section 23(2) of the BSA, can effectively balance the need for extracting factual information while safeguarding the accused’s rights against self-incrimination under Article 20(3) of the Constitution. Legislative amendments to Chapter XXIII of BNSS in coherence with the introduction of clear legal frameworks, defining the sphere of admissible statements are necessary. Moreover, a judicial mechanism overseeing investigative agencies and empowered to supervise the plea-bargaining process and segregate statements would promote both fairness and confidentiality. The international precedents have demonstrated the effectiveness of such measures in balancing justice with the protection of the rights of the accused, while preserving the integrity of the legal process.
The post is written by Abeer Sharma, 2nd Year B.A. LL.B. (Hons.) Student, RGNUL.