India: Plea Bargaining: An Overview

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. It has been introduced in the criminal procedure code in the chapter XXI A wide criminal law (amendment) Act 2005.This has change the prospect & the face of the criminal justice system. It is not applicable in cases where the offence is committed against a women 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 the order.

"Plead Guilty or bargain for lesser sentence" is the straight & shortest possible meaning of plea bargaining. Plea bargaining refers to pre - trail negotiation between the defendant usually conducted by the counsel & the prosecution during which the defendant agrees to plead guilty in the exchange for certain concessions by the prosecutor. Plea bargaining is the result of modern judicial thinking before the introduction of plea bargaining most courts used to ignore Plea Bargaining. The concept of Plea Bargaining was not recognized in jurisprudence of India. However accused used to plead guilty only for petty offences & pay small fine whereupon the case is closed. Initially the concept of Plea Bargaining was opposed by the legal experts, judiciary etc.

The law commission of India advocated the introduction of Plea Bargaining in the 142th, 154th & 177th reports. The 154th report of the Law commission recommended the new XXI A to be incorporated in the criminal procedure code. Based on recommendation of the Law Commission, the new chapter on plea bargaining making plea bargain in cases of offences punishable with imprisonment up to seven years has been included.

RELEVANT PROVISION & PROCEDURE FOR PLEA BARGAINING

  • As Per Section 265-A, the plea bargaining shall be available to the accused who is charged of any offence other than offences 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 power to notify the offences to the Central Government. The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offences affecting the socioeconomic condition of the country.
  • Section 265-B contemplates an application for plea bargaining to be filed by the accused which shall contain a brief details about the case relating to which such application is filed, including the offences to which the case relates and shall be accompanies 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 notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused for the date fixed for the plea bargaining. When the parties appear, the court shall examine the accused in-camera wherein the other parties in the case shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.
  • Section 265-C prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition. In a case instituted on a police report, the court shall issue 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 notice to the accused and the victim of the case.
  • Section 265-D deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. If in a meeting under section 265-C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding office of the Courts and all other persons who participated in the meeting. However, 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 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 S. 265 D, by preparing a report signed by the presiding officer of the Court and parities 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 S. 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, as its discretion, can pass sentence of minimum punishment, if the law provides such minimum punishment for the offences 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 offence. " Section 265-F deals with the pronouncement of judgment in terms of mutually satisfactory disposition.
  • Section 265-G says that no appeal shall be against such judgment.
  • Section 265-H deals with the powers of the court in plea bargaining. A court for the purposes of discharging its functions under Chapter XXI-A, shall have all the powers vested in respect of trial of offences and other matters relating to the disposal of a case in such Court under the Criminal Procedure Code.
  • Section 265-I specifies that Section 428 is applicable to the sentence awarded on plea bargaining.
  • Section 265-J 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 specifies that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose as mentioned in the chapter. " Section 265-L makes chapter not applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

For a valid disposal on plea bargaining it is important to follow the aforesaid procedure contemplated in Chapter XXI-A. Even though 'plea bargaining' is available after the introduction of the said amendment is available, in cases of offences which are not punishable either with death or with imprisonment for life or with imprisonment for a term exceeding seven years, the chapter contemplates a mutually satisfactory disposal of the case which may also include the giving of compensation to victim and other expenses and same cannot be done without including the victim in the process of arriving at such settlement.

The Hon'ble High Court in the case of Sh. Charan Singh v. M.C.D. has held that no disqualification on account of conviction could be attached to petitioner as he had been released on probation. In this case, the Hon'ble Delhi High Court has quoted the case of Trikha Ram v. V. K. Seth and Anr wherein the Hon'ble Supreme Court held that the benefit of Section 12 of The Probation of Offenders ACT, 1958 can be extended to the service of the offender.

CONCLUSION

Plea Bargaining does not solves the entire problem but reduces its severity of penalty. The introduction of plea bargaining is a shortcut aimed at quickly reducing the number of under-trial prisoners and increasing the number of convictions, with or without justice. It is undoubtedly a disputed concept since few have welcomed it while others have abandoned it. The consequences will be felt most obviously by the countless numbers of poor languishing in the country's prisons while awaiting trial. Taking into account the advantages of plea-bargaining, the recommendations of the Law Commission Plea bargaining was clearly recognized as the need of the hour and by no stretch of imagination can the taint of legalizing a crime will attach to it. At this stage it can be safely held that 'Law is not a Panacea. It cannot solve all problems, but it can reduce the severity'. Plea bargaining in India endeavors to address the same, which despite its shortcomings can go a long way in speeding the caseload disposition and attributing efficiency and credibility to Indian Criminal Justice.

Footnote

1. http://www.neerajaarora.com/plea-bargaining-anew-development-in-the-criminal-justice-system/, last retrieved on 10.10.2013.

2. (Writ Petition (Civil) No. 18725/2005)

3. AIR 1988 SC 285

4. Volume I: Report of Committee on reforms in the Criminal Justice System, Govt. of India, Ministry of Home Affairs, India: March 2003.

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