It is an agreement of negotiation between the prosecution and defense (at the time, also the judge) which settles a criminal case, usually in exchange for more lenient punishment. In other words, it may be described as a process where the accused may bargain with the prosecution for a lesser punishment in a full-fledged trial.
A new chapter that is Chapter XX11 on Plea Bargaining has been introduced in the Criminal Procedure Code. It was introduced through the Criminal Law (Amendment) Act, 2005, which was passed by the Parliament in its winter session.
In a landmark judgment, Borden Kircher v Hayes, The Supreme Court of the United States ruled that’ the substantive justification for Plea Bargaining is that there is no element of penalty or revenge as long as the accused is free to accept or reject the offer of prosecution. However, the Apex Court upheld the accused’s life imprisonment because he rejected the 5-year jail offer of’ Plea Guilty. Nevertheless, in the same case, the Supreme Court noted in a different context that choosing the lesser of the two evils is always in the interest of the party under duress. Specific logic has also been used by the courts in tort cases between private parties. Canada, Australia, and nations like England and Wales. “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
In India, Plea Bargaining has certainly changed the face of the Indian Criminal Justice System. Plea Bargaining is applicable in respect of those offenses for which punishment is up to a period of 7 years. Moreover, it does not apply to cases where the offense committed is a Socio-Economic offense or where the offense 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.
To minimize the delay in disposing of criminal cases, the 154thReport of the law commission first recommendation the implementation of Plea Bargaining as an effective way to deal with large arrears of criminal cases. This suggestion of the Law Committee finally found help in the “Malimath Committee Report”. The NDA government had set up a committee, led by the Karnataka and Kerala High Court’s former Chief Justice, Justice V.S. Malimath, to come up with suggestions to resolve the ever-increasing number of criminal cases. In its report, the Malimath Committee recommended that the Indian Criminal Justice System adopted a plea bargaining system to promote the earlier disposal of offenders and to reduce the burden of courts.
Moreover, in the State of Uttar Pradesh v Chandrika, the Apex court held that it is settled law that the criminal case cannot be disposed of on the basis of the Plea Bargaining trial. The court is obligated to decide on merits. If the accused confesses his guilt, an appropriate sentence must be levied. In the same case, the court also held that mere recognition or acknowledgment of the guilt should not be a justification for the reduction of the sentence, nor can the accused agree with the court that, because he pleads guilty, the sentence should be reduced in spite of this enormous hue and cry, the government found it acceptable and finally added Section 265A – 265L11 in the Code of Criminal Procedure so as to provide for raising the Plea Bargaining in certain type of cases.
Further, this added Section 265A to 265L of Chapter XXIA and introduced the concept of plea bargaining in India.
Section 265-A (Application of Chapter) of the plea bargaining shall be open to the criminal who is charged with any crime other than death or imprisonment or life or imprisonment for a period of more than seven years. Section 265 A(2) of the Code provides power to inform the Central Government of the offenses.
Section 265-B (Application of the Plea Bargaining)
- An individual charged with an offense may file a plea bargaining application in pending trails.
- The motion for plea bargaining shall be made by the complainant and shall contain brief details of the case for which such complaint is lodged. This contains the crimes covered by the prosecution and is followed by an affidavit by the offender indicating that he willingly chose the offer, the plea resolving the nature and extent of the penalty given Of the penalty provided for under the law for the offense, the plea bargaining in his case that he had not previously been convicted by a court in a case in which he was charged with the same offense.
- 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 must investigate the accused in-camera where there is no involvement of the other parties in the case, with the justification for alleging that the accused has voluntarily submitted the application.
Section 265-C (Mutually Acceptable Disposition Guidelines) sets out the protocol to be followed by the court in mutually satisfactory disposition. In a case brought on a police report, the court shall give the notice to the prosecutor concerned, the investigating officer of the case, the victim of the case and the accused to engage in the meeting in order to obtain 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. Here, two situations arise:
- If a suitable disposition of the case has been worked out at a meeting under section 265-C, the court shall prepare the report of such disposition. The presiding officer of the Courts and all other persons who took part in the meeting shall sign it.
- If no suitable disposition of the case has been worked out at a meeting under section 265-B(1), the court shall record observations and proceed further in accordance with the provisions of this code from the stage the application has been filed in the case.
Section 265-E (Disposal of the case) prescribes the process to be followed when a suitable disposition of the case is worked out. Upon completion of the 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 under the provisions of section 360 of the Code or under Probation of Offenders Act, 1958 under any other legal provisions in force or punish the accused, passing the sentence or after admonition.
Section 265-F (Judgment of the Court) talks about judgment being pronounced in terms of a mutually satisfactory disposition.
Section 265-G (Finality of the 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 the Criminal Procedure Code.
Section 265-I (Duration of detention of the accused to be set off against the imprisonment sentence) states that Section 428 of the CrPC refers to setting aside the duration of detention of the accused against the imprisonment sentence imposed under this provision.
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.
Types of Plea Bargaining
- Charge Bargain: This kind of plea bargaining happens for getting less severe charges. This the most common form of plea bargaining in criminal cases. Here the defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges.
- Sentence Bargain: In this type of bargaining the main motive is to get a lesser sentence. In this, the defendant agrees to plead guilty to the stated charge and in return, he bargains for a lighter sentence.
- Fact Bargain: This is generally not used in courts because it is alleged to be against the Criminal Justice System. It occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence.
Drawbacks of Plea Bargaining
- The threat to the right to a fair trial
- Involvement of coercion by the investigating agencies and corruption in the process.
Plea Bargaining shall meet the following minimum requirements, namely, to ensure fair justice:
- The hearing must take place in court.
- It must satisfy the court that the accused is pleading guilty knowingly and voluntarily.
- Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.
In India, the idea of plea bargaining isn’t completely new. It was already recognized by Indians when they got their Constitution in 1950. Self-incrimination is forbidden under Article 20(3) of the Indian constitution. People are accusing that the said article violates plea bargaining. But the Indian court has felt the need for Plea bargaining in the Indian legal system with the passage of time considering the pressure on the courts. Firstly, when reform is made, it is difficult to accept it, but so is our legal system that society needs to grow. Everything has advantages and disadvantages and both have to be examined for a sound conclusion to be drawn. In any event, it would not be acceptable to condemn anything just on the basis of its disadvantages. In India, the idea of plea bargaining is changing, and it is not necessary to presume that it is flawless. It can only be changed by dialogue, debate, and discourse.
Hence, Plea Bargaining may serve as a strong silver lining in India’s criminal justice delivery system, if properly propagated and implemented, thereby benefiting millions of under-trials languishing in prisons for identified crimes and saving high expenses and spaceborne by the State in their maintenance.