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OVERVIEW ON THE CONCEPT OF PLEA BARGAINING UNDER THE INDIAN LEGAL SYSTEM

Publications
Abstract                                                                                                                                1
Keywords                                                                                                                             2
Introduction                                                                                                                          2
Section 265 A – Section 265 L, Crpc                                                                                3-5
Types of Plea Bargaining                                                                                                     6
Salient features of Plea Bargaining                                                                                      7
Pros and Cons of Plea Bargaining                                                                                      7-8
Indian Judiciary and Plea Bargaining                                                                                  9
Indian and American model of Plea Bargaining                                                                 9
Research Methodology                                                                                                       10
Review of Literature                                                                                                           10
Suggestions                                                                                                                         11
Conclusion                                                                                                                          12

ABSTRACT –

A very famous quote: “Justice delayed is Justice denied” as said by William Edward Gladstone, the former PM of England depicts the judicial system predominant in our country. This quote carries utmost importance when the concept of Plea Bargaining is discussed. The term ‘Plea Bargaining’ meaning pretrial negotiation between the person who is charged with a criminal offense that is the ‘accused’ who negotiates with the ‘prosecutor’ appointed by the State for a lesser severe punishment than what is provided by the law by pleading guilty in exchange for certain concessions by the prosecution. The concept basically connotes, “I save you time by pleading guilty, you let me off with a lighter punishment.” This theory was introduced because of the long procedures of trial and evidence, pendency of a large number of criminal cases and inferior court infrastructure. The concept is recognized and accepted in numerous countries and incorporated in the Criminal Procedure Code of India, 1973. The right to fair, reasonable and speedy trial is an integral part of Article 21 (Right to Life and Personal Liberty) of the Indian Constitution as stated in the case of “Hussainara Khatoon and Ors. Vs. Home Secretary, State of Bihar” (1979). This paper focuses on the application, procedure, features, strengths and weaknesses of the concept of Plea bargaining in India compared to the American Module.

KEYWORDS –

Plea bargaining, Crpc, punishment, offenses, Law

INTRODUCTION –

Judiciary plays a very crucial role in the administration and establishment of justice for all the people around the world. The concept of Plea Bargaining was extensively used in the United States of America. It had been successfully utilized to avoid strenuous and complicated trials. In the case of “Santobello vs New York”[1], 1971, the theory of Plea bargaining was introduced in the USA as it played a very important role in delivering speedy justice to people as stated by the Chief Justice of the Supreme Court of America. The conviction rates in the USA were very high. Drawing attention from the USA, the need of introducing the idea of Plea Bargaining inspired India. During that phase, there were more than 4 crore cases pending in the Indian District and the Taluka Courts. More than 70% inmates in Indian prisons were under trial. Thus, India felt the need to incorporate the concept of Plea bargaining in the Crpc, 1973 under the Chapter XXI-A comprising Section 265 A to Section 265 L which was added by the Criminal Law Amendment Act, 2005. The Law Commission of India is an executive body established by the Indian Government to bring major reforms in the justice delivery system for speedy trials in criminal cases. The 154th report of the Law Commission recommended the concept of Plea Bargaining in the Indian criminal justice system.[2] It defined Plea Bargaining as an alternative method which should be introduced to deal with huge arrears of criminal cases in the Indian Courts. Later, this recommendation was supported and reiterated in the 177th report of the Law Commission. The Malimath Committee was formed in the year 2000 under the chairmanship of Justice Malimath. The aim of this committee was to review the 177th report of the Law Commission and on the basis of findings and directions of the Committee, a bill was proposed in the year 2005. The bill was thereby further accepted in the year 2006 and Chapter 21 A was inserted in the Crpc, 1973.

SECTION 265 A, Crpc – APPLICATION OF CHAPTER

245 out of 400 offenses in the Indian Penal Code, 1860 are allowed to get settled through the process of Plea Bargaining. The concept is applicable on all the crimes that are punishable other than Death or imprisonment for life or imprisonment for a term exceeding a period of 7 years. There is no application of this chapter on the following offenses –

  1. Offenses against Women which comprise of various punishable offenses under the Indian Penal Code, 1860 are as follows:
  2.  Rape (Section 375),
  3.  Stalking (Section 354 D),
  4.  Sexual Harassment (Section 354 A),
  5.  Voyeurism (Section 354 C),
  6.  Dowry Death (Section 304 B) etc.
  7. Offenses against children below the age of 14 years under the Indian Penal Code, 1860 include:
  8. Kidnapping (Section 360)
  9. Sex trafficking of minors (Section 372)
  10. Prohibiting the sale of any obscene material (Section 292) etc.
  11. Socio-economic offenses – The offenses which pose a threat to the economic stability of the country. They are,
  12. Money Laundering
  13. Food Adulteration etc. [3]

SECTION 265 B – APPLICATION FOR PLEA BARGAINING

The application for Plea Bargaining can be filed only in the Court where cases are pending for the trial meaning in the pre-trial stage. It may involve bargaining on the charge or in the quantum of the sentence. The application for plea bargaining must include –

1. A brief description of the case specifying a certain offense.

2. An affidavit to be filed by the accused voluntarily preferred by him and not induced by undue influence or coercion.

3. The accused must not be previously convicted for the same offense.

After the submission of the application, two notices are served by the Court. One notice to the Public Prosecutor or the Complainant and the second notice to the Accused. Lastly, examination of the accused takes place mainly to keep a check whether the accused has voluntarily preferred the application or preferred it under undue influence/coercion. The examination done by the Court shall be recorded in the cameras.

SECTION 265 C – MUTUALLY SATISFACTORY DISPOSITION

This Section describes the process to be followed by the court in formulating a mutually satisfactory disposition. In a case instituted on a police report, the court shall issue notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused to participate in the meeting to devise a satisfactory disposition of the case. In a complaint case, the Court shall issue notice to the accused and the victim of the case.

SECTION 265 D – SUBMISSION OF THE MUTUALLY SATISFACTORY DISPOSITION REPORT

Where a mutually satisfactory disposition has worked out, the Court shall prepare a report which must be signed by the Presiding officer and all the other members of the meeting. Where a mutually satisfactory disposition has not worked out, the Court shall record the observation and thereby proceed further from the stage of application in accordance with the Crpc.

SECTION 265 E – DISPOSAL OF THE CASE

When the Satisfactory disposition has worked out, the Court shall award compensation to the victim and hear both the parties on the quantum of punishment. [4]Thereafter, the Court may –

  1. Release the accused on probation of good conduct.
  2. Release the accused after admonition under Section 360 of Crpc.
  3. Sentence the accused to half of minimum imprisonment.
  4. If no such punishment is prescribed, sentence one fourth of the punishment provided or extendable to the accused, as the case may be.
  5. Provide a gain of period sustained in custody under Section 428 of the Crpc.

SECTION 265 F – JUDGEMENT OF THE COURT –

The final judgment must be pronounced in the Open Court and it must be then signed by the Presiding officer of the Court.

SECTION 265 G – FINALITY OF THE JUDGEMENT

The judgment must be final and no appeal shall lie in any Court except the Special Leave Petition (Article 136) and the Writ Petition (Article 226, Article 227) in the High Court.

SECTION 265 H – POWER OF THE COURT

The Court shall have all the powers regarding the trial, bail and other matters. It also possesses the powers relating to disposal of various cases.

SECTION 265 I – PERIOD OF DETENTION OF THE ACCUSED

This Section makes Section 428 of the Crpc applicable to the sentence awarded on plea bargaining.

SECTION 265 J – SAVINGS

If any provision of the Criminal Procedure Code is inconsistent with any provision of Chapter XXI, then the provision of Chapter XXI shall be preferred.

SECTION 265 K – STATEMENT OF THE ACCUSED

The statements or the important facts mentioned by the accused in the application for Plea Bargaining shall not be used for any other purposes against the accused.

SECTION 265 L – NON-APPLICABILITY

Nothing in this Chapter shall apply to any Juvenile or a child. Juvenile meaning any person who is below the age of 18 years.

 TYPES OF PLEA BARGAINING –

  1. Sentence Bargaining – The main motive is to get a lesser severe punishment. The defendant agrees to plead guilty with respect to the charges pressed against him and in return he bargains for a lighter punishment. Sentence Bargaining is the most common forms of Plea Bargaining in criminal cases.
  2. Charge Bargaining – The defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges.
  3. Fact Bargaining – The defendant agrees to stipulate certain facts to prevent introduction of other facts into the evidence. Amongst all the three types, Fact Bargaining is not practiced in India because it is alleged to be against the criminal justice system. [5]

 SALIENT FEATURES OF PLEA BARGAINING IN INDIA –

The Concept of Plea Bargaining comprises of very essential characteristics which are as follows:

  1. Only the Accused can make an application for Plea Bargaining.
  2. The examination of the accused must be mandatorily done in the camera.
  3. The Judge plays an active role in the process of Plea Bargaining.
  4. The judgment has to be pronounced in Open Court only.
  5. The statements and the facts pronounced by the accused cannot be used for any other purposes.
  6. The judgement observed shall be final and no appeal must lie against it.
  7. There are various restrictions where an application of Plea Bargaining cannot be availed.[6]

PROS OF PLEA BARGAINING –

  1. Speeds up the process of trials –

Plea bargaining is an essential in reorganizing offenders by allowing them to admit to the blame for their trial and by permitting them to voluntarily comply before the law—without having time-consuming trials.

  • Terminates a case’s unreliability –

The major advantage of this concept is to abolish the unreliability of a trial. It assists the defendants with making sure they will not acquire additional severe punishments for the criminal misdeeds filed against them.

  • Brings in certainty to find the criminal guilty –

Sometimes it does occur that the Court needs proper witnesses or evidence, and the end result is likely acquittal, it is credible that the prosecuting party will still perceive the accused liable for the offense.

  • Alternative Dispute Resolution –

This concept of plea bargaining is regarded as a mode of alternate dispute resolution and the advocates believe that it is advisable to afford the accused and the State the option to come to terms with respect to the factual and legal disputes.[7]

  • Prompt disposal of cases –

A usual common trial takes more time to end than the process of Plea bargaining. Due to this process, case trials end quickly and justice is served speedily without any inconveniences.

  • Hassle free approach –

Plea bargaining is a method through which cases can be resolved quickly. It is a hassle free approach and it is presumed to create less errors. The process is not time consuming and also saves money.

CONS OF PLEA BARGAINING IN INDIA –

  1. May be biased to the prosecution party –

Plea bargaining may permit prosecutors to take benefit of accepting criminal activities in the weakest trials. The more beneficial will be a guilty claim for the prosecution if the trial ends in acquittal.

  • Unfair conviction –

After the accused has committed a serious criminal offense, the accused can affirm the plea bargaining and can easily get away with the liability and place the sufferer in an unfavorable position where the damages suffered by the sufferer cannot be remunerated.

  • Unauthorized and outlawed procedure –

It is unauthorized and it takes away the innate right of a fair, just and reasonable trial of the defense. If the defendant is compelled to enter into such an agreement, then this argument may have a substantial weightage.

  • May charge the innocent people guilty for the offense –

Even if a person is innocent, but has accorded to a guilty plea, then he still has to pay a certain amount of fine or he/she may be imprisoned for a crime that they haven’t carried out. Not only this, but the person is also entitled to have a criminal record which cannot be struck out.

  •  Eliminates the chance of appeal –

 If a case goes to trial and a defendant loses, there may be grounds on the basis of which an appeal can be filed in the Court. Because a plea bargain requires a defendant to plead guilty to the charges, even though they are reduced, it eliminates the ability to file an appeal in almost any circumstance.

  • Imperfect investigation procedure –

Majority of the criminal cases are registered for plea bargain instead of a trial, therefore, there is an argument made that this concept leads to uninspired investigation practices. Attorneys may not spend time preparing a case because they have a presumption that it will plead out. Rather than attempting to secure justice, the plan is to make a deal, and it could be contended that contemplating a deal really is not justice.

In the case of “Murlidhar Meghraj Loya vs State of Maharashtra” (AIR 1976 SC 1929) – The Hon’ble Supreme Court criticized the concept of Plea Bargaining and pronounced that the concept intrudes upon the interests of the people of the society.

In the case of “Thippeswamy vs State of Karnataka” (1983) – The Hon’ble Court asserted that, inducing or leading an accused to plead guilty under a promise or assurance would be violative of Article 21 of the Indian Constitution.

  PLEA BARGAINING AND THE INDIAN JUDICIARY –

Is it mandatory for the Court to admit the application of Plea Bargaining?
In the case of Pradeep Gupta vs State, 2007 – The Delhi High Court stated that, “The request of   Plea Bargaining made by the accused in the light of the provisions made in the Crpc, 1973 and not in the casual manner.”

State of Gujarat v. Natwar Harchanji Thakor – In this case, the court held that the most essential object of the law is to provide inexpensive and speedy justice by resolution of disputes, including the trial of criminal cases. Hence, it can be said that the concept of plea bargaining is a measure of redressal and it shall add a new dimension in the realm of judicial reforms.

Rahul Kumpawat vs Union of India – In this case, the accused claimed plea bargaining and his application was rejected by the Metropolitan Magistrate of Rajasthan and he also appealed before the Rajasthan High Court and allowed his petition and quashed the order passed by the learned trial court and remanded back to the trial court and ordered it to consider the application for plea bargaining by the accused. Although this concept of plea bargaining helps in rendering speedy justice it puts the victim in a disadvantaged position and their loss cannot be compensated by sentencing the accused to a lesser sentence.[8]

JUXTAPOSITION OF THE AMERICAN AND INDIAN MODEL OF PLEA BARGAINING –

The Indian model is very different from the American model. Application of the concept of Plea Bargaining in India is very restricted and it is yet to be accepted by the common people as an important part of the Indian Judicial System. The difference between the two models is as follows:

The plea bargaining in India is unavailable where the sufferer is a woman or child below 14 years of age. The American model does not put such riders in such a manner of plea bargaining. The other riders put in the Indian model are that the plea is unavailable to juvenile, habitual offenders and the offenders of socio economic offenses. The American model entertains all the cases without putting any such riders present in the Indian model. The Indian model directs the accused to apply for the plea, whereas in the American model, the prosecutor and the accused make the application after the negotiations between them are over. In the Indian model of plea bargaining the sufferer has a power to veto the bargain reached. On the other hand, in the American model, the victims have the restricted ability to control the terms of the plea bargaining. [9]

              RESEARCH METHODOLOGY –

This research makes use of a mixed research method of legal research on selected international, regional, national practices on the basis of the concept of plea bargaining. The mixed methods approach lends a hand to recognize the minimum standards for setting a foot in a plea bargain and scrutinize the standard of genuineness involved in plea bargaining. The center of attention of this article is upon conceptual analysis, jurisprudence of the court, and qualified plea bargaining practice to examine how voluntary plea bargaining operates. The research method compares the Indian and the American model of plea bargaining.

  REVIEW OF LITERATURE –

Coercion to Compromise: Plea Bargaining, the Courts and the making of Political Authority (Oxford socio-legal studies) – The book showcases that Plea bargaining arose during the 1830s and 1840s as a part of the process of political stabilization. The tradition of episodic leniency from British common law was recreated into a new cultural form–plea bargaining–that drew conflicts into the courts while maintaining elite discretion over sentencing policy.

Ethics of Plea Bargaining: The practice of plea bargaining plays a hugely significant role in the adjudication of criminal charges and has provoked intense debate about its legitimacy. This book offers the first full-length philosophical analysis of the ethics of plea bargaining. It develops a sustained argument for restrained forms of the practice and against the free-wheeling versions that predominate in the United States.

Jury Trials and Plea Bargaining: A true history – This illustrates a study of the social transformation of criminal justice, its institutions, its method of case disposition and the source of its legitimacy.

Law relating to Plea Bargaining (International and National scenario) – It depicts the national and international scenario relating to the concept along with steps towards criminal justice reforms. 

Plea Bargaining: A necessary evil? – University of Arkansas at Little Rock Law Journal Volume: 2 Issue: 2 Dated: (1979): The positive and the negative effects of the process of plea bargaining have been delved into.

SUGGESTIONS –

Although, Section 265 A – Section 265 L has been added into the Crpc, 173 by the Criminal Amendment Act, 2005, there must be lucidity concerning various offenses. Instructions must be bestowed to the official authorities concerning on which grounds a certain offense can be recognized as a socio-economic offense. The categorization for the interest of Plea Bargaining must not be entirely based on the number of years of punishment for a specific offense but should ponder upon the intensity and gravity of the crime. An aligned network shall be set up to review cases dealing with Plea Bargaining. Also, a time scale must be set forth for a mutually satisfactory disposition to formulate properly. A specified deadline must be set down within which if a trial has not started off the under trial, then the prisoner must be given freedom. The Police, judiciary and prosecution must be made answerable for hindrances in their own personal arenas, not the under trial prisoners.

CONCLUSION –

The concept of Plea Bargaining has both advantages and disadvantages. It has always been a topic of debate. It is correct that it quickens the load of pending cases, but it also does that in an unreliable manner. The sufferer is put into an immoderate place and his/her right to free and fair trial is violated. Additionally, no compensation is provided to the sufferer or his family members. This concept is not entirely new in India. India had recognized it back in the year 1950 when it adopted its Constitution. Article 20(3) of the Indian Constitution prohibits self-incrimination. Many people accuse the concept of Plea Bargaining to be violative of this Article. But with the time considering hindrance on the Courts, the Indian Courts felt the need of incorporating this concept by taking inspiration from the American Courts. When a change is brought, it is hard to accept it initially but our society needs to grow. The legislation associated with the concept of plea bargaining must be given importance and should be run through efficiently. To mark the terrible state of the judiciary with regard to pendency of cases, plea bargaining appears to look like the closest solution which can address the issue effectively, on the condition that it must be given a serious and genuine thought.

SALONI DOSHI

BLS LLB

5 YEAR COURSE

YEAR 3

LORDS UNIVERSAL COLLEGE OF LAW, MUMBAI

[1] Santobello vs New York  https://www.lawpipe.com/U.S.-Supreme-Court/Santobello_v_New_York.html

[2] Law Commission of India and Plea Bargaining https://criminallawstudiesnluj.wordpress.com/2019/03/14/tracing-the-development-of-plea-bargaining-in-india-part-ii/

[3] Plea Bargaining: The Indian Experience https://www.readcube.com/articles/10.2139%2Fssrn.2049826

[4] Plea Bargaining in Indian Legal system http://www.legalservicesindia.com/article/1836/Plea-Bargaining-in-Indian-Legal-System.html

[5] What are the different kinds of Plea Bargaining? https://www.nolo.com/legal-encyclopedia/what-the-different-kinds-plea-bargains.html

[6] Plea Bargaining: Challenges for Implementation http://docs.manupatra.in/newsline/articles/Upload/4C2F9AF3-AAC9-4059-A312-A7E5A00A5F0B.pdf

[7] Pros and Cons: Plea Bargain https://www.criminaldefenselawyer.com/resources/criminal-defense/criminal-defense-case/plea-bargaining-pros-cons.html

[8] Concept of Plea Bargaining under Crpc https://www.youtube.com/watch?v=Dc4TitnxdgU

[9] Plea Bargaining in Indian and US criminal law http://www.commonlii.org/in/journals/NALSARLawRw/2013/7.pdf