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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