This article is written by Trisha Saha, a student of B.A. LL.B (Hons.) at Amity University, Kolkata.
Plea bargaining is essentially derived from the principal of ‘Nalo Contendere’ which literary means ‘I do not wish to contend’. The Apex Court has interpreted this doctrine as an “implied confession, a quasi confession of guilt, a formal declaration that the accused will not contend, a query directed to the court to decide a plea guilt, a promise between the Government and the accused and a government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only. A new chapter, that is Chapter XXI1on Plea Bargaining has been introduced in the Criminal Procedure Code. It was introduced through the Criminal Law (Amendment) Act, 2005. It became effective from 5th July 2006. Originally Plea Bargaining is an American concept its origin can be traced back in America during the 19th Century. Over the years Plea bargaining has emerged as a prominent feature of the American Judicial System.
In India Plea Bargaining certainly changed the face of the Indian Criminal Justice System. Plea Bargaining is applicable in respect of those offences for which punishment is up to a period of 7 years. Moreover it does not apply to cases where the offence committed is a Socio-Economic offence or where the offence is committed against a woman or a child below the age of 14 years. Also once the court passes an order in the case of Plea Bargaining no appeal shall lie to any court against that order.
It is an agreement as a result of negotiation between the prosecution and defense (at time, also the judge) which settles a criminal case, usually in exchange for a more lenient punishment. The defendant pleads guilty to reduce the burden of crime or for a more few charges than originally charged, in exchange for a more lenient punishment than the defendant would get if convicted at trial.
Plea Bargaining can conclude a criminal case without a trial. When it is successful, Plea Bargaining results in a plea agreement between the prosecutor and defendant. In this agreement, the defendant agrees to plead guilty without a trial, and, in return the prosecutor agrees to dismiss certain charges or make favorable sentence recommendation to the court. Plea Bargaining is expressly authorized in statutes and in court rules.
Plea Bargaining can be described as a process whereby the accused may bargain with the prosecution for a lesser punishment. In simple words, Plea Bargaining is an agreement (contract) between the accused and the prosecution regarding disposition of the criminal charge leveled by the prosecution against the accused. In layman’s language, it is bargaining done by the accused of a serious and severe offence, with the authority for a lighter punishment in lieu of a full fledged trial.
The concept of Plea Bargaining found favor of courts only in the recent past. In fact it is used in the American Judiciary in 19thcentury itself. The bill of Rights makes no mention of the practice when establishing the fair trial principle in the sixth amendment but the constitutionality of the Plea Bargaining had constantly been upheld there. In the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luther King, Jr. to avoid execution sentence. He finally got an imprisonment of 99 years
In a landmark judgment Bordenkircher Vs Hayes5, the United State Supreme Court held that, “the constitutional rationale for Plea Bargaining is that no element of punishment or retaliation so long as the accused is free to accept or reject the prosecutions offer. The Apex Court however upheld the life imprisonment of the accused because he reject the ‘Plea Guilty” offer of 5 years imprisonment. The Supreme Court in the same case however in a different context observed that, it is always for the interest of the party under duress to choose the lesser of the two evils. The courts have employed similar reasoning in tort disputes between private parties also. In countries such as England and Wales, Victoria, Australia, “Plea Bargaining” is allowed only to the extent that the prosecutors and defense can agree that the defendant will plead to some charges and the prosecutor shall drop the reminder.
Plea Bargaining In Indian Context
To lessen the delay in disposing criminal cases, the 154thReport of the law commission first recommendation the introduction of Plea Bargaining is an alternative method to deal with huge arrears of criminal cases. This recommendation of the Law Committee finally found a support in “Malimath Committee Report”. The NDA government had formed a committee, headed by the former Chief Justice of the Karnataka and Kerala High Court, Justice V.S. Malimath to come up with some recommendations to tackle the ever growing number of criminal cases. In its Report, the Malimath Committee recommended that a system of Plea Bargaining be initiated in the Indian Criminal Justice System to regulate the earlier disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed out the success of Plea Bargaining system in U.S.A.
The concept of Plea Bargaining attracted enormous public debate. Critics said it is not recognized and against public policy under our criminal justice system. The Supreme Court also time and again blasted the concept of Plea Bargaining saying that negotiable in criminal cases is not permissible.
Moreover in State of Uttar Pradesh Vs Chandrika , the Apex court held that it is settled law that on the basis of Plea Bargaining court cannot dispose of the criminal case. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented. The court further held in the same case that, mere acceptance or admission of the guilt should not be a ground for reduction of sentence, nor can be the accused bargain with the court that as he is pleading guilty the sentence be reduced despite this huge hue and cry, the government found it acceptable and finally Section 265A – 265L, have added in the Code of Criminal Procedure so as to provide for raising the Plea Bargaining in certain types of criminal cases.
Salient Features of Plea Bargaining
Following are the silent features of Plea Bargaining;
1.It is applicable in respect of those offences for which punishment is up to a period of 7 years.
2.It does not apply to cases where offence is committed against a woman or a child below the age of 14 years
3.When court passes an order in the case of plea bargaining no appeal shall lie to any court against that order.
4.It reduces the charge.
5.It drops multiple counts and press only one charge.
6.It makes recommendation to the courts about punishment or sentence.
Object of Plea Bargaining
By introducing the concept of Plea Bargaining in the Criminal Procedure the object of the legislature is;
1) To reduce the pending litigation
2) To decrees the number of under trial prisoners.
3) To make provision of compensation to the victim of crimes by the accused.
4) To cut delay the disposal of criminal cases.
Criminal Procedure Code and Plea Bargaining
Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases: Where the maximum punishment is imprisonment for 7 years;
Where the offenses don’t affect the socio-economic condition of the country;
When the offenses are not committed against a woman or a child below 14 are excluded
The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in Indian Criminal Justice System. It defined Plea Bargaining as an alternative method which should be introduced to deal with huge arrears of criminal cases in Indian courts.
Then under the NDA government, a committee was constituted which was headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to tackle the issue of escalating number of criminal cases. The Malimath Committee recommended for the plea bargaining system in India. The committee said that it would facilitate the expedite disposal of criminal cases and reduce the burden of the courts. Moreover, the Malimath Committee pointed out the success of plea bargaining system in the USA to show the importance of Plea Bargaining.
Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country, which is inundate with a plethora of criminal cases and overabundant delay in their disposal on the one hand and very low rate of conviction in cases involving serious crimes on the other. The Criminal Law (Amendment) Bill, 2003 focused on following key issues of the criminal justice system:-
(i) Witnesses turning hostile
(iii) Compounding the offense under Section 498A, IPC (Husband or relative of husband of a woman subjecting her to cruelty) and
(iv) Evidence of scientific experts in cases relating to fake currency notes.
Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea bargaining in India. The following are provisions which it added:-
Section 265-A (Application of Chapter) the plea bargaining shall be available to the accused who is charged with any offense other than offenses punishable with death or imprisonment or for life or of an imprisonment for a term exceeding to seven years. Section 265 A (2) of the Code gives the power to notify the offenses to the Central Government.
The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offenses affecting the socio-economic condition of the country.
Section 265-B (Application for Plea Bargaining)
A person accused of an offense may file the application of plea bargaining in trails which are pending.
The application for plea bargaining is to be filed by the accused containing brief details about the case relating to which such application is filed. It includes the offences to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred the application, the plea bargaining the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case that he has not previously been convicted by a court in a case in which he had been charged with the same offence.
The court will thereafter issue the notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused of the date fixed for the plea bargaining.
When the parties appear, the court shall examine the accused in-camera wherein the other parties sin the case shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.
Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the procedure to be followed by the court in mutually satisfactory disposition. In a case instituted on a police report, the court shall issue the notice to the public prosecutor concerned, investigating officer of the case, and the victim of the case and the accused to participate in the meeting to work out a satisfactory disposition of the case. In a complaint case, the Court shall issue a notice to the accused and the victim of the case.
Section 265-D (Report of the mutually satisfactory disposition) This provision talks about the preparation of the report of mutually satisfactory disposition and submission of the same. Two situations may arise here namely
If in a meeting under section 265-C, a satisfactory disposition of the case has been worked out, the report of such disposition is to be prepared by the court. It shall be signed by the presiding officer of the Courts and all other persons who participated in the meeting.
If no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265-B has been filed in such case.
Section 265-E (Disposal of the case) prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. After completion of proceedings under Section 265-D, by preparing a report signed by the presiding officer of the Court and parties in the meeting, the Court has to hear the parties on the quantum of the punishment or accused entitlement of release on probation of good conduct or after admonition. Court can either release the accused on probation under the provisions of Section 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force or punish the accused, passing the sentence. While punishing the accused, the Court, at its discretion, can pass sentence of minimum punishment, if the law provides such minimum punishment for the offenses committed by the accused or if such minimum punishment is not provided, can pass a sentence of one-fourth of the punishment provided for such offense. ”
Section 265-F (Judgment of the Court) talks about the pronouncement of judgment in terms of mutually satisfactory disposition.
Section 265-G (Finality of Judgment) says that no appeal shall be against such judgment but Special Leave Petition (Article 136) or writ petition (under Article 226 or 227) can be filed.
Section 265-H (Power of the Court in Plea Bargaining) talks about the powers of the court in plea bargaining. These powers include powers in respect of bail, the trial of offenses and other matters relating to the disposal of a case in such court under Criminal Procedure Code.
Section 265-I (Period of detention undergone by the accused to be set off against the sentence of imprisonment) says that Section 428 of CrPC is applicable for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this chapter.
265-J (Savings) talks about the provisions of the chapter which 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 (Statement of the accused to be used) specifies that the statements or facts stated by the accused in an application under section 265-B shall not be used for any other purpose except for the purpose as mentioned in the chapter.
Section 265-L (Non-application of the chapter) makes it clear that this chapter will not be applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.
Merits of Plea Bargaining
Some of the main merits are as follows –
- Fast disposal of cases.
- Less serious offence on ones record
- Hassle free approach
- It avoids publicity
Demerits of Plea Bargaining
Some of the major drawbacks of the concept of Plea Bargaining as is recognized in India are as under;
1) Threat to right to fair trial.
2) Involving the Police in Plea Bargaining process would invite coercion.
3) By involving the court in Plea Bargaining process the court impartially is impugned.
4)Involving the victim in Plea Bargaining process would invite corruption.
5)If the plead guilty application of the accused in reject then the accused would face great hardship to prove himself innocent.
In Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), The Hon’ble Supreme Court criticized the concept of Plea Bargaining and said that it intrudes upon the society’s interests.
In Kasambhai vs State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal Koderlal vs State of Gujarat and Anr, the Apex court said that the Plea Bargaining is against public policy. Moreover, it regretted the fact that the magistrate accepted the plea bargaining of accused. Furthermore, Hon’ble Court described this concept as a highly reprehensible practice.
The Court also held that practice of plea bargaining as illegal and unconstitutional and tends to encourage the corruption, collusion and pollute the pure fount of justice.
Thippaswamy vs State of Karnataka,  1 SCC 194, the Court said that inducing or leading an accused to plead guilty under a promise or assurance would be violative of Article 21 of the Constitution of India.
The Court also stated that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes defend himself against the charge and if he is found guilty, proper sentence can be passed against him”.
To conclude, Plea Bargaining is undoubtedly, a disputed concept few people have welcomed it while others have abandoned it. It is true that Plea Bargaining speeds up caseload disposition, but it does that in an unconstitutional manner. But perhaps we have no other choice but to adopt this technique. The criminal court are too over burdened to allow each and every case to go on trial. Only time will tell if the introduction of this concept is justified or not.
The concept of plea bargaining is not entirely new in India. Indian has already recognized it when it got its constitution in 1950. Article 20(3) of Indian constitution prohibits self-incrimination. People accuse plea bargaining of violatory of the said article. But with the passage of time the considering the encumbrance on the courts, the Indian court has felt the need of Plea bargaining in Indian legal system. When a change is brought it is hard to accept it initially but society needs to grow so is our legal system. Everything has advantages and disadvantages and both have to be analyzed in order reach a sound conclusion. Rejecting something only on the basis of its disadvantages would not be justified in any case. The concept of plea bargaining is evolving in India and it is not appropriate to expect it to be perfect. It can only be improved by debate, discussions, and discourses.
1 Section 265 A to 265 L, The Criminal Procedure Code, 1973
2 Legal Service India
3 Legal Dictionary
4 Shree Ram’s The Law, Vol. II, Issue X October 2014, A monthly Journal cum Magazine on Law and Judiciary.
5 Bordenkircher Vs Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604, 1978 U.S.
6 By Advocate Subha Ghosh, Legal Service India.
7 Supranote 4 at 25 – 26.
8 Santobellov. New York, 404 U.S. 257, 260, 1971.
9 Malimath Committee Report
10 State of Uttar Pradesh Vs Chandrika, 2000 Cr. L.J. 384(386), A.I.R. 2000 SC 164.
11 Criminal (Amendment) Act, 2005
12 Mrs Patil Deepa Praveen, Analysis of Plea Bargaining in India