Non-Gender Offences Against Women Are Not Excluded From The Scope Of Plea Bargaining: Madras HC

The Madras High Court observed that non-gender offences are not excluded from the scope of plea bargaining.

The Court said that ‘offence committed against a woman’ or ‘child below 14 years’ in the Code of Criminal Procedure and the expression ‘offence committed against a woman’, or a ‘child’ in BNSS, a restricted interpretation has to be given which will sufficiently protect the woman victim who had been victimised because of her gender. This cannot extend to the offences which are for commission of a non-gender offences.

In that context, the Bench of Justice G Jayachandran observed that, "offences like theft and cheating are non gender offences. 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 ChapterV 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."

In this case, Venkatesan was accused of causing hurt to a female Junior Bailiff who came to serve a summons to his wife and wrongfully restraining her. After the High Court refused to quash the case against him, finding sufficient grounds to proceed, Venkatesan acknowledged his mistake and sought to apologize. He filed an application for plea bargaining as directed by the High Court. However, the District cum Judicial Magistrate in Kilvelur rejected his application, leading Venkatesan to approach the High Court once more. He also expressed concerns that the Magistrate was indifferent to the case because the complainant was a Court staff member.

The High Court observed that the offences in the case were non-gender in nature, and hence, chapter XXII-A of the Cr.P.C will apply.

Subsequently, the Court made the following suggestions to the Courts below for future guidance.

a) The Courts, soon after framing charges shall in writing inform the accused who are all eligible to invoke plea bargaining, about his right under the Chapter plea bargaining. If the accused answers in affirmative, necessary time to be given for him to file application. This will ensure, the accused to exercise his right before expiry of 30 days from the date of framing charges as prescribed under Section 290 of BNSS, 2023.

b) The Courts can take the assistance of persons associated with District Legal Services Authority/Tamil Nadu State Legal Service Authority wherever it is necessary to facilitate the process of Mutually Satisfactory Disposition (MSD). 

c) The Courts shall take note of the clarification given in this order regarding period of sentence which can be imposed in case of plea bargaining and decide accordingly.

d) The Courts below shall take note that the disposal of the cases under plea bargain is considered for fixation of units while deciding their performance.

e) Whenever the Courts undertake the process of Mutually Satisfactory Disposition (MSD), it is its duty to ensure that the accused has come forward to apply voluntarily and it is his informed choice of plea bargaining.

f) The Courts shall also take note that the offences which are excluded shall not be disposed under this chapter. The notification of the Ministry of Home Affairs in No:1042 (E) dated 11th July 2006 to be referred to decide whether the offence is a socio-economic offence affecting the country.

The Court acknowledged the concerns raised by Venkatesan and, to address them, ordered the case to be transferred to the District Magistrate of Mayiladuthurai. The Court further stated that if Venkatesan chose to pursue plea bargaining before the Mayiladuthurai District Magistrate, the magistrate should accept the application and handle it according to the proper legal procedure.

Cause Title: G.Venkateshan vs The State

Click here to read/download the Judgment