PLEA BARGAINING

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Origin and History

In India Law Plea Bargaining is define in Chapter XXI-A of CrPC. From section (265A-265L) it was inserted into the Criminal procedure code (CrPC) vide the criminal law (amendment) act 2005 with the effect from 5th July 2006.

The concept of Plea bargaining was taken from the USA and it is known as “Charge Bargaining”. It is an important mechanism it reduces the burden on the courts we all know Indian courts are overcrowded (21 judges/million people)[1] with under-trial prisoners.  Plea bargaining is Latin maxim Nolo Contendere which means “I do not contend”. It is an agreement between the prosecution and defense side that if the accused pleads guilty (instead of pleading not guilty) to the crime he is charged with, his sentence will be reduced.

To trace the history of Plea bargaining in USA reference can be made to Boykin v. Alabama, 395 U.S. 238 (1969)[2]. Even in India if we look towards the history of Plea bargaining in judgement of  Kasambhai Abdul Rehman Bhai Sheikhv. State of Gujarat 1980[3] in which it was held that “the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice”.  State of UP v.Chandrika[4] where the court held that “Mere acceptance or admission of guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty, the sentence should be reduced”. Plea bargaining was firstly recommended by the 154th report of law commission.

Meaning

Plea bargaining is a type of pre-trial negotiation in which the accused agrees to plead guilty. It is not available for all types of crimes; for example, after committing heinous crimes or crimes punishable by death or life imprisonment, a person cannot claim plea bargaining.

Criminal Procedure code and Plea Bargaining

Chapter XXI-A consisting of sections 265-A TO 265-L talks about plea bargaining. Plea bargaining can be use in the case of offenses other than the offenses for which the punishment is more than 7 years. The request of plea bargaining can be initiated only at the stage of cognizance taken by the court. Offences involving socio-economic conditions of the country or offences against women and children below 14 years of age are excluded from the pure view of plea bargaining[5].

Plea bargaining is allowed in the following cases-

  1. In those offences whose punishment is below 7years.
  2. In those offences which are not against women and children below 14 years of age.
  3. In the offences which doesn’t effect the social-economic condition of the country.
  4. Who is not a habitual offendor.

Provisions

S.265-A – Application of the chapter

S. 265A discusses the application of this chapter and states that it only applies to offences in which the punishment is not more than 7 years and where the offence is not against women and children where either-

1. The officer in charge of the police station has forwarded a report under S.173 stating that an offence punishable by imprisonment for less than seven years appears to have been committed. OR

2. After examining the complainant and witnesses and under S.200 of the CrPC (Examination of Complainant), a magistrate has taken cognizance of an offence punishable with less than seven years imprisonment and has issued the process mentioned in S.204 of the CrPC (Issue of Process).

The section also specifies that the Central Government will decide on offenses that have an impact on the country’s socio-economic situation. For the time being, this list includes

  • Dowry Prohibition Act, 1961.
  • The Commission of Sati Prevention Act, 1987.
  • The Indecent Representation of Women (Prohibition) Act, 1986
  • The Immoral Traffic (Prevention) Act, 1956.
  • The Protection of Women from Domestic Violence Act, 2005
  • The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.
  • Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).
  • Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955)
  • Offences concerning animals that find a place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under the Wildlife (Protection) Act, 1972.
  • Offences mentioned in the Protection of Civil Rights Act, 1955.
  • Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
  • Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995.
  • The Army Act, 1950; The Air Force Act, 1950 and The Navy Act, 1957.
  • The Cinematograph Act, 1952
  • The Explosives Act, 1884.
  • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

S.265-B – Application for plea bargaining

On the application for plea bargaining, the court will ensure that the application has been filed by the accused voluntarily. The court may require all the parties (public prosecutor, complainant, accused) to appear in court to work out a mutually satisfactory disposition of the case. It may include compensation and other expenses of the trial given by the accused to victim.

If the court finds that the application is filed by accused in involuntarily or he has been previously convicted by the court it shall proceed further in accordance with the provisions of the code from the stage of such application has been filed under sub-section (1). The procedure laid down in this chapter has been held to be mandatory[6].

The code enacts guidelines for mutually satisfactory disposition in sections 265-C and 265-D of CrPC.

S.256- D – Report of the mutually satisfactory disposition to be submitted before the court

Under section 256-D the court shall make the report of mutual satisfactory disposition (whether it is worked out or not) which shall be signed by the presiding officer of the court and by the parties who participated in it.

S.256-E – Disposal of case

If under section 256-D the disposition of the case has been worked out the court shall dispose of the case in following manner-

  1. The court shall award compensation to the victim and release the accused under-:
    1. On probation good conduct
    1. Admonition under section 360
    1. Or deal with the accused under probation of offender act or any law for time being in force.
  2. In last 2 points {1-(b),(c)}  it is the court may released the accused on probation or under any other law, then court shall sentence the accused but if there is no minimum punishment described in the offence then the court will sentence one-fourth punishment provided fir such offence or if the minimum punishment is provided then the court will sentence half of the minimum punishment.

S.265-F – Judgement of the court

The court shall deliver the judgment in open court and shall be signed by presiding officer of the court.

S.256-G – Finality of Judgement

This provision talks about that no appeal shall lie against such judgement but under article 136 (SLP) or writ petition under article 226 or 227 can be filed.

S.256-H – Power of the court in Plea Bargaining

This provision talks about the powers of the court in plea bargaining. Power in respect of bail, trial of offense, and other matters relating to disposal of the case.

S.256-I – Period of detention undergone by the accused to be set off against the sentence of imprisonment.

The provisions given under section 428 shall apply for setting off the period of detention under gone by accused for the sentence given to accused under this section.

S.256-J – Savings

It is a saving clause which talks about the provisions of the chapter that will take effect notwithstanding anything in the Code that is inconsistent with them, and nothing in the Code shall be construed to contain the meaning of any provision of chapter XXI-A.

S.256-K – Statements of accused not to be used

The statement or facts which is given by accused under S256.B shall not be used for any purpose except for the purpose of this chapter.

S.256-L – Non- application of the chapter

This provision makes it clear that this chapter will not pe apply to any juvenile or child as defined in section 2(k) of juvenile justice act,2000.

Types of Plea bargaining

There are 3 types of plea bargaining

  1. Charge bargaining
    1. Sentence bargaining
      1. Fact bargaining
  1. Charge bargaining

This is the most common type of plea bargaining which is practiced in Indian courts. In this the accused pleads guilty in consideration for the dismissal of greater charge. For example- pleading for theft for dropping of the charges of robbery.

  • Sentence bargaining

In this type of bargaining the accused pleads guilty and request for lesser sentence or lighter sentence for the offence he committed.

  • Fact bargaining

This is not commonly used in courts because it is thought to be in violation of the Criminal Justice System. When a defendant agrees to stipulate to certain facts in order to prevent the introduction of other facts into evidence, this is known as a plea bargain.

Advantages and dis-advantages of Plea bargaining

Advantages -:

  • Lighter sentence for crime
  • Reduced charges
  • Fast disposal of case

Dis-advantages -:

  • Chance of coercion
  • Chance of corruption

Demerits of the provision

The very purpose of introducing plea bargaining in India is fast disposal of case. Section 265-A excludes a great number of provisions and statutes from its pure view. Even when it comes to the Central Government’s power to decide on offences that affect the country’s socioeconomic conditions, the Act only contains an arbitrary one-liner with no guidelines as to how such a decision should be made.

Moreover, Section 265-B (4) only states that the parties must reach a mutually satisfactory resolution, but no timeline is given, which is a significant flaw in the design given that the whole point of the amendment was to bring speedy justice and quick case resolution.

Furthermore, while courts have been charged with ensuring transparency in participatory meetings in order to reach a mutually satisfactory disposition, no details on how they will do so have been provided.

Short overview of section / Conclusion

The “plea bargaining” method of resolving cases is an alternative to dealing with the massive backlog of criminal cases. It is truly a measure and remedy, and because it has been enacted into law, it has also added new dimensions to the realm of law reforms in the judiciary. Plea-bargaining refers to pre-trial negotiations between the defendant and the prosecution in which the defendant agrees to plead guilty in exchange for certain concessions from the prosecution. If an accused charged with one of the crimes listed in the preceding section wishes to take advantage of the benefit or concession of plea bargaining, he or she must file an application in the court where the crime is being tried. A brief description of the case to which the application is made must be included the application is filed, along with the crime to which the case relates, and it shall be accompanied by an affidavit signed by the defendant, stating that he has voluntarily preferred, and that he has never been found guilty by a court before. He had been charged with the same crime in that case.

The legislature has established guidelines to ensure that the accused’s Plea bargaining process results in genuine terms of settlement on the basis of which the accused may benefit from plea bargaining. The Court has the responsibility to ensure that the parties are voluntarily participating in the process of reaching a satisfactory resolution of the case. If the victim or the accused so desires, they may seek the assistance of their respective pleaders in settling the case. if a mutually satisfaction report has been worked out between the parties; a report on it must be submitted to the court. Court. The presiding officer of the Court, as well as all parties involved, must sign the report.who attended the meeting and who took part in it If no such agreement has been reached, the situation will be handled as follows:

The court must take note of this observation and continue the case from this point forward.when a plea bargaining application was submitted.

The accused is protected from self-incrimination under this section. Any statement made by the accused in his plea bargaining application cannot be used for any purpose other than plea bargaining.


[1] http://164.100.24.220/loksabhaquestions/annex/177/AU2133.pdf

[2] https://supreme.justia.com/cases/federal/us/395/238/

[3] https://indiankanoon.org/doc/455419/

[4] https://indiankanoon.org/doc/1460353/

[5] S.256-A. See, Lokesh v. state (2011)184 DLT 680.

[6] See, Rajesh Narayan Jaiswal v. State of Maharashtra, WP No.35 of 2011, order date 1-3-2012(Bom).

Author: Kartikeya Misra, JIMS Greater Noida

Editor: Kanishka VaishSenior Editor, LexLife India