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PLEA BARGAINING UNDER THE INDIAN LEGAL SYSTEM

ABSTRACT

One of the most appalling problems in the Indian Legal System is the pendency of cases. Which is around two crores of cases. Crime, Criminals and Criminality has always been a serious problem for our society, state and individuals. The Indian Legal System came with a revolutionary tool of Plea Bargaining to solve the pendency of cases. The article shall aim to assess the success of the concept of the Plea Bargaining in India. This research  also measures and creates for providing justice to individual victims. This research  shall also show some light to the American model of Plea Bargaining. This work analyses Plea Bargaining in reference to providing justice to victims in our Indian Legal System.

KEYWORDSCriminal Justice, Plea Bargaining, Victim, Sentence, Compensation, Pendency of Cases.

INTRODUCTION

In recent years many provisions have been added to the Criminal Procedure Code in order to deal with victims to raise their grievances and claim for their justice. So that their suffering should be taken care of and as per the crime decision should be given.

In India, Plea Bargaining was disapproved by the Apex Court. The practice of plea bargaining was even held unconstitutional. However with the development of penology and contemporary practices. Prevalent in the western world, the concept of plea bargaining has been accepted and included in our Criminal Procedure Code, 1973.

Provision related to Plea Bargaining in Indian Criminal Justice System are provided in the chapter XXI-A, “Plea Bargaining” containing Section 265-A – 265-L was added in the Code by Section 4 of Criminal Law (Amendment) Act, 2005 which come into force on 5-07-2006.

Plea Bargaining is based on Restorative Justice, Restorative Justice deals with the justice to the victim who is actually suffering from the criminal acts. Responsibility on the state to provide compensation to victims and proper treatment of psychological and physical injury. In National Human Rights Commission v. State of Gujarat[1] Supreme Court observed

“It needs to be focused that the rights of the accused have to be protected. At the same time, the rights of the victim have to be protected too and the rights of the victim cannot be marginalized. Accused have a right to a fair trial where they are guilty or not can be determined. But from the victim’s perception, the accused should be punished. They should stand equal in the scale of justice.”

RESEARCH METHODOLOGY

In this research, it shows that every system needs to reform from time to time, plea bargaining has even been recognized by various scholars and lawmakers. While applying plea bargaining one has to be a master at negotiations and communication, because it is all about how well you bargain for your client and the better he gets. In the end, this research has two studies, investigating the impact of what happens to the judicial system when plea bargaining was introduced and when it was rejected.

REVIEW OF LITERATURE

Before 2006 Plea Bargaining was not granted in India.

Plea Bargaining has been a pioneer in the American concept. But in the Indian Legal System, it has never been considered an appropriate measure to deal with the crime challenge. It is considered as challenging our whole Criminal Justice System’s view regarding crime. For the first time in India Plea Bargaining, the concept was added by the Criminal Amendment Act of 2005.

The Law Commission in its 142nd report in 1991, 154th report in 1996, and 177th report in 2002 recommended the concept of Plea Bargaining in chapter XXI-A of The Criminal procedure code. The law commission recommended the inclusion of plea bargaining for speedy disposal of cases thereby as a measure to provide speedy justice to victims.

Since 2006 plea bargaining is a permitted procedure of criminal justice in India.

Plea bargaining was added to the Code on the basis of the recommendation of the Law Commission and the report submitted by the Justice Malimath Committee. Before that, Based on an analysis of Plea bargaining as it exists in the United States. The report showed that the practice was not inconsistent, so the Law Commission conducted a survey to ascertain whether the legal system was in support of Plea Bargaining and collect opinions. Of those surveyed a high percentage was in favour of Plea Bargaining also more were in favour to introduce this concept only to specified offences. Afterwards, it was declared that offences punishable under nineteen Acts as offences affecting the socio-economic condition of India, and in that case plea bargaining is not applicable. Such Acts are:

  • Dowry Prohibition Act 1961,
  • Indecent Representation of Women (Prohibition) Act 1986,
  • The Commission of Sati Act 1987,
  • Immoral Traffic (Prevention) Act 1956,
  • SC-ST (Prevention of Atrocities) Act 1989,
  • Protection of women from Domestic Violence Act 2005,
  • Cinematograph Act 1952,
  • The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply, and Distribution) Act, 1992,
  • Provision of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955),
  • Schedule I and Part II of the Schedule II under Wildlife (Protection) Act, 1972,
  • Offences in Protection of Civil Rights Act, 1955,
  • Offences recorded in Section 23 to 28 of the Juvenile Justice (Care and protection of Children) Act, 2000,
  • The Army Act 1950,
  • The Air Force Act 1950,
  • The Navy Act, 1957,
  • The Explosives Act, 1884,
  • Offences specified in Section 11 to 18 of the Cable Television Networks (Regulation) Act, 1995,
  • Offences specified in Section 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
  • Provisions of Fruit Products Order, 1955 (Issued under the Essential Services Commodities Act).

Protection of the socio-economic condition of a country is a responsibility imposed on the state, it can never be jeopardized by the crime done by any person. Section 265-A CrPC also deals with crime against women as we know crimes against women are increasing in a brutal manner, so in the case of offences against women plea bargaining is inapplicable. Under Section 265-A provides that offences against a child below the age of 14 years is inapplicable under plea bargaining. Children are always needed to be protected, they are the future of our society. The Malimath Committee recommended that plea bargaining is not permitted for habitual criminals.

PROCEDURE RELATED TO PLEA BARGAINING IN INDIA

The concept of plea bargaining is based on the principle of “Nolo Contendere”, it means “Willingness to accept the declaration of guilt”

Applicability of plea bargaining (Section 265-A) provides that provisions apply to the case instituted on the police report as well as complaint case. These provisions do not apply to the following offences:

  • Offences punishable with death, life imprisonment or imprisonment for a term exceeding 7 years.
  • Offence relating to socio-economic conditions of the country.
  • Offences committed against women or children below the age of 14 years (the offences involving socio-economic conditions for the time being in force shall be notified by the Central Government)

Section 265-B provides that an accused person may file an application for plea bargaining in the court in which the case is pending for trial. The application must contain a brief description of the case and must be attached with an affidavit sworn by the accused stating therein that:

  1. He had voluntarily preferred the plea bargaining in his case after understanding the nature and extent of punishment provided for the offence.
  2. He has not been previously convicted for the same kind of offence.

Afterwards the court shall issue notice to the Public Prosecutor of the complainant and the accused to appear on the fixed date for the case. The court shall examine the accused in camera in the absence of other parties to satisfy itself that the accused has filed the application voluntarily, if the application is filed voluntarily, the court shall provide time to the parties to work out a mutually satisfactory disposition of the case and thereafter fix the date for further hearing, if the application is filed involuntarily or the accused has been previously convicted, the court shall proceed for further trial in accordance with the provision of the code.

Guideline for mutually satisfactory disposition (Section 265-C), provides that:- In a case instituted on the police report, the Public Prosecutor, the investigating officer, the accused and the victim can participate in the meeting. In a case instituted on complaint, the court shall issue notice to the accused and the victim of the case to participate in a meeting.

 It shall be the duty of the court to ensure the voluntariness of the entire process of the disposition. Section 265-D of CrPC provides that the report of the mutually satisfactory disposition be submitted before the court. Section 265-E provides that where a satisfactory disposition of the case has been worked out the court shall dispose of the case in the following manner the court shall award the compensation to the victim according to the disposition. Subject to the provisions of Section 360 of the Code and the Probation of Offenders Act, 1958 or any other law for the time being in force, the court may impose the punishment. Where the minimum punishment has been provided, the court may sentence the accused to half of such minimum punishment. Where no minimum punishment is provided for offence, the court may sentence the accused to one-fourth of the punishment provided or extendable for such offence.

Section 265-F provided that the court shall deliver the judgment in terms of section 265-E in the open court and the same shall be signed by the presiding officer of the court. Section 265-G provides that the judgment shall be final, and no appeal (except the Special Leave Petition under Article 136 and writ petition under Article 226 & 227 of The Constitution shall lie in any competent court against such judgment. Section 265-I provides that period of detention undergone by the accused to be set off against the sentence of imprisonment. Section 265-K provides that the statement and facts stated in the application of the accused shall not be used for any other purpose. Section 265-L provides that Chapter XXI-A shall not apply to any juvenile or child as defined in Section 2(k) of the Juvenile Justice (Care & Protection of Children) Act, 2000.

JUDICIAL PRONOUNCEMENTS ON PLEA BARGAINING

Before the commencement of Plea Bargaining in The Indian Legal System Supreme Court has shown its strong disagreement regarding Plea Bargaining and said that the practice of plea bargaining is unconstitutional it would always encourage corruption and collusion between the parties.

In Madanlal Ramchandra Daga v. State of Maharashtra[2], in this case Justice M. Hidayatullah held that the order or case should be decided according to the guilt of the accused.

In Kasambhai Abdulrehmanbhai Sheik v. State of Gujarat[3], in this case Apex Court held that “ The practice of Plea Bargaining was unconstitutional and illegal and would tent to embolden corruption, collusion and contaminate the pure fount of justice” in this the accused was convicted for the crime of adulteration. Same decision in Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr[4].

Thippaswamy v. State of Karnataka[5], in this case the Supreme Court delivered a landmark judgement. It was held that Plea Bargaining violates Article 21 of the Constitution of India.

“The Court also stated that “In such cases, the Court of Appeal should set aside the conviction of the accused and remand the case to the trial court so that the accused can defend himself against the charge and if he is found guilty, a proper sentence can be passed against him”.

Murlidhar Meghraj Loya v. State of Maharashtra[6]In this case the accused were being tried for setting adulterated food under the prevention of Food Adulteration Act, 1954, when the accused pleaded guilty before the court under plea bargaining.

Justice Krishna Iyer expressed his anguish over this and said The Indian Criminal Law does not include the scheme of Plea Bargaining.

State of Uttar Pradesh v. Chandrika[7] The apex court deprecated the concept of plea bargaining and held that practice of plea bargaining is unconstitutional and illegal. Court held that on the basis of plea bargaining the court cannot dispose of the Criminal cases such cases have to be decided only on the merit. Further in this case the court held that if the accused confesses his guilt, he must be given the proper sentence as required under the Law.

In the above cases mentions is way before the Plea Bargaining came into Indian Legal System.

Later than the commencement of Plea Bargaining in Indian Legal System. The Gujarat High Court appreciated it and observed in case of State of Gujarat v. Natwar Harchanji Thakor[8] The court acknowledged the importance of Plea Bargaining in the Indian Legal System, the object of law is to provide easy and expeditious Justice by resolution of dispute and considering the present situation of the pendency and delay in the justice to victims.

There should not be anything static. It can thus be observed that plea bargaining is requital and it shall add a new dimension in Judicial reforms.

Pardeep Gupta v. State[9] in this case Honourable Judge observed that the trial court’s rejection of plea bargaining shows that the learned trial court had not bothered to look into the provisions of chapter XXI-A of CrPC meant for the purpose of plea bargaining and rejected the application on the ground that since the applicant is involved in an offence under Section 120-B IPC and the responsibiliy of applicant was not lesser than the other co-accused. The offences in which the petitioner has been booked are not more than seven year punishment. The pleading of plea bargaining is ought to be considered taking into account the role of the accused and the nature of the offence. The High Court directed the Trial Court to reconsider the application of plea bargaining made by the petitioner in the light of provision made in the CrPC and not in a casual manner.

It is clear from the review of pre and post amendments that plea bargaining is in a bad state in the Indian Legal System as the number of cases reported under plea bargaining are very less. Either all the plea bargaining cases were rejected by the courts. The situation has changed after the Amendment of 2005 but still there is some judiciary that tends to have a mixed approach towards this addition to the System.

SUGGESTION

The law relating to the plea bargaining should be encouraged by the judiciary because without which a particular law cannot become a common remedy. The law relating to plea bargaining should be given importance in our judicial system and should be practiced regularly. The awful condition of the courts regarding pendency of cases, plea bargain only seems to be the closest solution that can address the problem successfully provided it should be given a serious thought.  

CONCLUSION

This analysis of Plea Bargaining in The Indian Legal System exposes the pros and cons of  Chapter XXI-A of The Criminal Procedure Code, 1973. Few people have accepted it while others have abandoned it. It is true that plea bargaining speedily disposes the cases but it also does that in an unconstitutional manner. The term plea bargaining can be defined as pretrial negotiation between the victim and the accused. Where the accused pleads guilty and accepts all the terms and conditions done by the prosecutor. So when a change is brought it is hard to accept initially but society needs to grow so is our Legal System.

No doubt there are always any loopholes and drawbacks. In this plea bargaining offer has to be accepted by the victim. When he is not interested in reducing the punishment of the accused or taking compensation then he may refuse and in such cases, the accused will be liable as prescribed by substantive law.

To conclude, the main object of plea bargaining is to reduce the delay involved in our judicial system and punish the accused with a lesser sentence for pleading his guilt.

SRISHTI SINGH

UTTARANCHAL UNIVERSITY, LAW COLLEGE DEHRADUN


[1] NATIONAL HUMAN RIGHTS COMMISSION v. STATE OF GUJARAT & Ors., AIR 2009 SC (Supp) 318

[2] MADANLAL RAMCHANDRA DAGA v. STATE OF MAHARASHTRA, A.I.R 1968 SC 1267

[3] KASAMBHAI ABDULREHMANBHAI SHEIK v. STATE OF GUJARAT, A.I.R 1980 SC 854

[4] KACHHIA PATEL SHANTILAL KODERLAL v. STATE OF GUJARAT AND ANR,1980 Cri LJ 553

[5] THIPPASWAMY v. STATE OF KARNATAKA, AIR 1983 SC 747

[6] MURLIDHAR MEGHRAJ LOYA v. STATE OF MAHARASHTRA, AIR 1976 SC 1929

[7] STATE OF UTTAR PRADESH v. CHANDRIKA AIR 200 SC 164, 2000 Cr.L.J. 380(386)

[8] 2005 Crl.J. 2957, 2005 1 GLR 709

[9] Crl. MA No. 9856/2007, Bail Application No. 1298/2007