Plea Bargaining

In a very simple sense, Plea Bargaining can be referred to as an agreement between accused and the prosecutor whereby the accused agrees to accept his guild in exchange for the prosecutor to only plead the charges that are less serious in nature and/or drop the serious charges altogether. The concept of plea bargaining was not present in the criminal law at its inception, however with developments in the justice system in India, this concept was legislated under Chapter XXI A of the Code of Criminal Procedure. Plea Bargaining, however, is not available for every offense. An individual cannot claim plea bargaining after committing a heinous crime or for the crimes which are punishable with death or life imprisonment.

The concept of Plea Bargaining is not an indigenous concept of the Indian legal system. It is a part of the recent development of the Indian Criminal Justice System. It was inculcated in the Indian Criminal Justice System after considering the burden of the gargantuan number of long-standing cases pending in the courts.

Criminal Procedure Code and Plea Bargaining

The Section 265A to 265L under Chapter XXI A of the Criminal Procedure Code, deals with the concept of Plea Bargaining. This section was inserted into the code by The Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases:

1. Where the maximum punishment is imprisonment for 7 years;

2. Where the offenses don’t affect the socio-economic condition of the country;

3. When the offenses are not committed against a woman or a child below 14.

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. In pursuance of this recommendation 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 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 the plea bargaining system in the USA to show the importance of Plea Bargaining.

A quick rundown of Section 265A to 265L under the Chapter XXI A of the Code of Criminal Procedure are as follows:

●Section 265A: This section states that 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 seven years. Section 265A (2) of the Code gives the power to notify the offenses to the Central Government.

●Section 265B: Under this section, 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 offenses 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 offense, 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 offense.

●Section 265C: This section lays down the procedure to be followed by the court in mutually satisfactory disposition.

●  Section 265D: This provision talks about the preparation of the report of mutually satisfactory disposition and submission of the same.

●Section 265E: This section 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 265D, 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.

●Section 265F: This section talks about the pronouncement of judgment in terms of mutually satisfactory disposition.

●  Section 265G: This section states that no appeal shall lie against such a judgment, however, a Special Leave Petition (Article 136) or writ petition (under Article 226 or 227) can be filed.

●Section 265H: This section 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 265I: This section states 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.

●Section 265J: This section 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

●Section265K:Thissectionspecifiesthatthestatementsorfactsstatedbytheaccusedinanapplicationundersection265Bshallnotbeusedforanyotherpurposeexceptforthepurposeasmentionedinthechapter.

●Section 265L: This section makes itclear that this chapter willnot be applicable incase of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care andProtectionofChildren)Act,2000.

TypesofPleaBargaining

PleaBargainingisgenerallyofthreetypesnamely:-

1.Sentence bargaining: In this type of bargaining the main motive is to get a lessersentence.InSentencebargaining,thedefendantagreestopleadguiltytothestatedchargeandinreturn,hebargainsforalightersentence.

2.Charge bargaining: This kind of plea bargaining happens for getting less severecharges. This isthe mostcommon form ofplea bargainingin criminalcases. Herethe defendant agrees to plead guilty to a lesser charge in consideration ofdismissinggreatercharges.

3.Fact bargaining: This is generally not used in courts because it is alleged to beagainst theCriminalJusticeSystem.Itoccurswhenadefendantagreestostipulatecertainfactsinordertopreventotherfactsfrombeingintroducedintoevidence.

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 the accused. Furthermore, the 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 corruption, collusion and pollute the pure fount of justice.

Thippaswamy vs State of Karnataka, [1983] 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.

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”.

In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J. 384(386), the Apex Court disparaged the concept of plea bargaining and held this practice as unconstitutional and illegal. Here the Hon’ble Court was of the view that the plea bargaining Court cannot be the basis of disposing of criminal cases. The case has to be decided on the merits. In furtherance of the same, the court said that if the accused confesses his guilt, he must be given the appropriate sentence as required by the law.

Looking at the above mentioned cases, a question that crosses the mind is that if plea bargaining is deemed to be an unconstitutional activity, then why has it been legislated in the first place? The answer to this lies in the underlying goal of disposing of the gargantuan amount of pending cases in the court.

The plea bargaining is beneficial for both the prosecution and the defense because there is no risk of complete loss at trial. It helps the attorneys to defend their clients in an easy way because both the parties possess bargaining power. It is fast and hassle free and the court can reallocate the scarce to tackle the cases that actually require one. Plea Bargaining allows a person to plead guilty for a reduction in the number of charges or the seriousness of the offenses. This results in recording less serious offenses on the official court records of an accused, effectively reducing the critical stigmatization of the individual by the society. Moreover, Plea Bargaining is also a good mechanism to avoid publicity because the longer the case goes the more publicity the accused gets. Therefore plea bargaining avoids such publicity by a fast settlement of the case.

In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709, the Court acknowledged the importance of plea bargaining and said that every “plea of guilty” which is construed to be a part of the statutory process in the criminal trial, should not be understood as a “plea bargaining” ipso facto. It is a matter of matter and has to be decided on a case to case basis. Considering the dynamic nature of law and society, the court said that the very object of the law is to provide an easy, cheap and expeditious justice by resolving disputes.

Conclusion

With the passage of time, considering the encumbrance of the courts, the Indian court has felt the need for the introduction of Plea bargaining in the Indian legal system. The concept of plea bargaining may be seen as the one lying in the blur gray zone of constitutionality and legality, rejecting something only on the basis of its disadvantages would not be justified in any case. Plea bargaining is a very ancient mechanism that can effectively solve the issue of the huge pending cases in the courts quickly and without much hassle.