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What is Plea Bargaining ?

Plea Bargaining in India


Introduction

Plea Bargaining means that the accuse in a criminal case plead guilty and does not claim his right to go for a full trial. The accuse then can negotiate with the prosecution for a lesser punishment than what is provided under the law.

 

History

The concept of the plea bargain was first introduced in America as their criminal cases were the most time consuming and most expensive proceedings in the world. Then this concept emerges as an effective mechanism to avoid the complexity of the criminal cases. The plea won the approval from the American Supreme Court and thereafter it became an essential component in administration of justice. The 15th Chief Justice of America, Jts. Warren E. Burger explains plea bargaining as:

“If every criminal charge were subjected to a full-scale trial, the state and the federal government would need time to multiply by many times the number of judges the court facilitates.”

In India, it was submitted by the 154th Report of the law commission (1973) and recommended the introduction of the concept of plea bargaining as an alternate method to deal with the huge arrears of the criminal cases.

 

Justice Malimath Committee, 2000

The NDA government formed a committee under the chairmanship of former chief justice of Karnataka and Kerala High Court, Jts. V.S. Malimathto. They were given the task to come up with an idea to tackle the increasing number of criminal cases in Indian Courts.

The committee in order to ensure speedy trial introduce d this concept. It ends the uncertainty of the criminal cases and saves the parties from legal expenses. The committee predicted this move to have a drastic impact over the conviction rates in India.  

 

Plea Bargaining in India

It was inserted into the CrPC through Criminal Amendment Act, 2005 and was effective from 5th July 2006. It is given in the chapter XXI-A of the code, under section 265 (A) to 265 (L). It was recommended by 142nd Law Commission of India report, it stated that concessional treatment shall be provided to the accuse who plead guilty but at the same time it shall not involve haggle or barter with the prosecutor.

 

When to use it?

Plea bargaining can be used in any criminal offence, other than the offences for which the punishment of hang till death or life imprisonment or imprisonment for more than 7 years is prescribed. The request for the plea bargaining can only be initiated at the stage cognizance of offence by the court of law. The offence related to the socio-economic condition of the country or offences against women or children below 14 years of age are excluded from the purview of plea bargaining.[1]  The offences involving socio-economic conditions for the time being in force shall be notified by the Central Government u/s 265 (A)(2).

Offences which affects the social and economic conditions of the country are called socio-economic offences. They are non-conventional crimes which do not involve means rea (means, that only wrongful actions are enough to be proven and it is not necessary to prove ill-intent or knowledge in the court). Such offences affect the society at large and not any single person, like – corruption, tax evasion, adulteration of food or drug etc. The accuse has to initiate steps for plea bargaining by way of an application with its accompaniments.    

 

What is meant by taking cognizance of offence by the court?

It means, taking judicial notice of an offence by the magistrate. It literally means ‘to be aware of’.  For taking the cognizance of the offence it does not require any formal process but if the magistrate turns his mind in the alleged crime for the purpose of taking any further action under CrPC thereafter, it is said that the cognizance has been taken by the court. The aim and objective of the principle ‘cognizance’ is to maintain a judicial check by the judicial officer over the police by taking cognizance court examines whether or not the offence has committed. The provision is mentioned under section 190 of the CrPC “Cognizance of offences by Magistrate”.  

In plea bargaining is approached to the court with the petition along with an affidavit. The accuse shall voluntarily give it after understanding the nature and scope of punishment of the offence. The court shall determine the voluntary action of the accuse through an in-camera proceeding in which the opposite party shall not be present. 

In the Plea Bargaining, the cognizance is taken by the magistrate u/s 265 (A)(1), after examining the complainant and witness’s u/s 200 (examination on oath), issued the process u/s 204 (summons and warrant). But does not apply to the above-mentioned exceptional cases – life imprisonment or imprisonment more than 7 years or hang till death punishment and even in the cases of offence against women and child below 14 years. Summons are notices sent to the person to appear before the court and warrant are the written authorization to the police or any public officials to perform any specified act, that otherwise if performed would amount to a violation of fundamental right.     

 

Types of Plea Bargaining

1. Charge Bargain – it is the most widely used bargain, it involves the negotiation of the specific charges that the accuse will face in the trial. The accuse pleads for a lesser charge than the original charge.

2. Sentence Bargain – it involves the negotiation of the lighter sentence in return of a stated charge rather than a reduce charge.  

3. Fact Bargain – it is the least used bargain by the accuse, in which the negotiation involves an admission of certain facts in return for an agreement to not to introduce certain other facts. As the omitted fact would have increased the sentence for the accuse as per the law.  


Court proceedings

The accuse shall file the application for plea bargaining u/s 265 (B)(1) in the court where the trial is pending. The application must contain a brief description of the case, an affidavit was sworn by the accused to show that it is voluntarily filed u/s 265 (B)(2).  

The court on the receipt of an application for Plea Bargaining requires all the concerned parties such as the complainant, public prosecutor and the accused to appear before the court u/s 265 (B)(3) and then the court may examine the accuse in-camera to ascertain that whether the application was given voluntary or not as per section 265 (B)(4).

This code enacts that:

1. When the court is satisfied that the application has been filed voluntarily, then it may provide time to the public prosecutor or the complainant (as the case may be), and the accuse to work out a mutually satisfactory disposition of the case which should also include the compensation and other expenses during the case and thereafter also fix the date for further hearing. 

2. When the court finds that the application has been voluntarily filed, or the accuse has been previously convicted by the court under the same charge of the same offence, the court may then proceed further in accordance with the provisions of this code from the stage of such application.     


Then the court has to mandatorily follow the prescribed procedure.[2] If it is not done as per the procedure laid down in this chapter, then the revision may lie and the case shall be remitted from the trial court.[3] If the accuse is found out to be given the application involuntarily under some coercion or undue influence, then the case shall not be governed as per under this chapter and he may be tried under the usual procedure in this code.  

If the case is instituted on the police report then the court shall issue notice u/s 265 (C) to the victim, public prosecutor, accuse and the investigating officer of that case to participate in the meeting for the satisfactory disposition of the case. Provided that it is the duty of the court that the entire process is completed voluntarily y both the parties. And also, that the accuse may participate in the meeting with his pleader. 

Whereas the case is instituted otherwise than a police report, then the entire process will be the same except for the fact that no notice shall be sent to investigating officer and public prosecutor. And both the parties may participate in the meeting with their pleader if wanted.

 

Judgement and power of the court  

If disposition is worked out - The court shall prepare a report of such disposition which shall be signed by the presiding judicial officer and all other people who were present in the meeting.

If disposition is not worked out - The court shall record such observations and proceed further as per the procedure laid down in the code from the stage the application of plea bargaining was filed.  

The execution of plea bargaining is also been provided for. The court may give the benefit under section 360 (order for release on probation of good conduct or after admonition) of the CrPC or under the provision of Probation of Offenders Act 1958 or any such law in the light of disposition.

In case of the minimum sentence for imprisonment is prescribed in the code, the court may give half of the minimum punishment mentioned for that offence on plea bargaining, along with compensation and other expenses to the victim. In another case, the court may award one-fourth of the minimum punishment prescribed in the code.

It is provided that even in case there is no minimum sentence prescribed for that offence in the code, then the court may award with one-fourth of the punishment prescribed for an offence, along with the compensation and other expenses to the victim. The court may look into the mitigating factors (evidence in favour of the accuse) to reduce the quantum of sentence.[4]  Whereas the Bombay High Court has ruled that the courts have no jurisdiction to award sentence other than that provided for u/s 265 (E)(d) of the code.[5] The judgement passed by the court shall be final. All appeal except u/a 226 and 227 (to the High Court) have been barred.       

The rule of set-off u/s 428 CrPC shall be applicable to the punishment awarded to the accused under plea bargaining. Set-off means that the time duration for which the accuse was imprisoned during investigation, inquiry or trial proceedings, that particular time duration will be set-off from the final judgement of imprisonment.    

The accuse statement given under this chapter for plea bargaining cannot be used for any other purposes.[6]  This chapter is not applicable under the Juvenile Justice (Care and protection of Children) Act, 2000.

 

Do courts have the power to release the convict on probation or admonition?

The court can release the convict on probation or admonition (warning) under the following circumstances. ­

When a person of 21 years of age or less or any woman, is convicted for any offence not punishable with imprisonment for life or death sentence or any person above the age of 21 years, convicted for an offence not punishable with more than 7 years of imprisonment - if they are not previously convicted of any offence, then if the court thinks looking at factors like age, character, the antecedent of the convict may release on probation of good conduct (not more than 3 years). The court can ask him to sign a bond with or without sureties. The court may if thinks fit may also appoint the probation officer (for no less than 1 year) in order to supervise is conduct.  

If the person is below the age of 21 years then it is the duty of the court to not straight away sentence him jail unless the court is satisfied that under the circumstances of the case it is not desirable to deal with him u/s 3 or 4 of the Probation of Offenders Act, 1958 u/s 6 of the same.

In case of an offence punishable with a maximum imprisonment of 2 years and the convict was not previously convicted, the court may instead of sentencing him to release him after due admonition.    

Under the appellant and revisionary jurisdiction, the senior court has the power to use this section. Or if the order is made under section 360 of the code, it could be appealed to the higher court as well.

 

Conclusion

It is seen that in the case instituted by police report the victim’s counsel is not seen as an authorised person to participate in the process of disposition. On the contrary, the complainant if wanted may bring his counsel for the meeting. Probably, it was done with the intent that the interest of the victim shall be taken care of by the public prosecutor. But it seems that in the changed circumstances this position should be revised. 

It is argued by many judges, jurists and advocates that mere acceptance of guilt shall not be the basis of reducing the punishment of the offence and they disagree with bargaining with the offenders. This was also held by the Supreme Court in the case of State of Uttar Pradesh v Chandrika[7], that on the basis of plea bargaining court cannot settle the criminal case, but rather the case has to be decided on its merits. This also hampers the victim’s right of fair trial and receive full justice as there are many instances reported of coercion and undue influence of the investigating agencies in the process. This is also argued that this concept of plea bargaining is against the fundamental right u/a 20(3) of the Constitution which provides immunity to an accused against self-incrimination. This article clearly says that no accuse can be compelled to a witness against himself – ‘nemo teneteur prodre accussare seipsum’.     

The concept of plea bargaining can help the guilty person to start a new life. This will reduce the prolonged imprisonment of under-trial cases, which goes on without any progress and hence result in overcrowding of prison cells problem. This is a potential way of improving the litigation efficiency of the Indian courts and also to rationalize the judicial resources, expenses and infrastructures.      




[1] S. 265(A) (1), Lokesh v State, (2011) 184 DLT 680

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

[3] V. Subramanian v State, Criminal R.C. No. 109 of 2006, order dated 28-10-2009 (Mad).

[4] Ranbir Singh v State, (2012) I RCR (Cri) 928 (Del).

[5] Guerrero Lugo Elvia Grissel v State of Maharashtra, 2012 Cri LJ 1136 (Bom).

[6] Thomas v State of Kerala, 2013 Cri LJ 825 (Ker).

[7] State of UP v Chandrika, AIR 2000 SC 164 

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