ABSTRACT
The most complex issue of the Indian Judiciary System is the pendency of cases.In 2006, for this the concept of plea bargaining was enforced through the Criminal Law (Amendment) Act, 2005. This concept was created so that the Prosecutors could skip the labour intensive, time consuming, costly and no guarantee to grant justice trials.
Plea bargaining is a topic which has both sides of criticism, positive as well as negative. To show this criticism as well as all the perspectives of the plea bargain that exist, this research paper will be quite a help. Starting off with the meaning of the term along with why was it necessary in a country like India wherein a capacity of 400 prisoners 1600 stay.
Moving ahead, the Researcher will also have a brief about the availability, scope and procedure of it as per sec 265A to 265L. All this will be supported with judicial precedents which will indirectly show us the perspective of the judiciary on this concept
This concept has been derived from the US so it is very necessary for us to see the difference in the way of practice in both the countries and compare it for a better result
A very successful example of Canada where in 90% of criminal cases are sorted through plea bargains is a boon to the topic. To sum up and give a clear view of all there is present a conclusion.
KEYWORDS
Guilty, Trial, Plea Bargain, Criminal Law (Amendment) Act 2005
INTRODUCTION
According to the National Judicial Data Grid (NJDG) on February 1,2023, there are 59,87,477 cases pending in High Courts around the country. This pendency of cases, especially in criminal matters leads to the violation of right to equality enriched under Article 14 of the Indian Constitution. An accused under Indian law is presumed to be innocent until and unless proven guilty. Pendency of cases have also been a source of agony for litigants,lawyers and judges alike. A number of cases are delayed to such an extent that the famous phrase of the Judiciary, “Justice delayed is Justice Denied” seemed true.
For the purpose of Plea bargaining, the Parliament had inserted section 264A to 265L to the Code of Criminal Procedure 1973 through the Criminal Law (Amendment) Act 2005.
RESEARCH METHADOLOGY
This research work employs the doctrine approach and is mostly based on secondary sources of data. It refers to numerous statutes controlling the subject areas covered by the paper as well as decisions made by Indian courts. Additionally, some information regarding the topics addressed has been taken from various textbooks, coursebooks, and online resources. Various judgements were examined, and the pertinent portions were picked out and used in this study.
REVIEW OF LITERATURE
Plea Bargaining has always been a shortcut way for cutting through the long process of criminal trials. For this particular research paper the researcher has used the books as under:
R.V. Kelkar’s Criminal Procedure[1] and Ratanlal Dhirajlal[2] : The Code of Criminal Procedure along with various internet resources which are reliable and have been duly researched through.
ORIGIN OF PLEA BARGAINING
The Parliament borrowed the vague concept of plea bargaining from The Constitution of the United States of America. The 142nd report of the Law Commission of India took plea bargaining as an alternative step to the criminal cases trials at large.
Plea bargaining is the negotiation before trial between the prosecution and the defendant where in the accused pleads guilty in exchange for certain concession from the side of the Prosecution. This leads to either the reduction of the sentence or the seriousness of the crime.
The first affluence of plea logrolling was at the appellate position in US right after the Civil War.
While corruption kept plea logrolling alive during the late 19th and early 20th Centuries,over-criminalization led to the necessity of the same and surfaced it into the mainstream felonious procedure and its rise to dominance.
Judges were reluctant because in this concept, it is not sure if the Defendant has pleaded guilty voluntarily or had some type of pressure or coercion to do the same. In the case of Boykin V Alabama[3] it was held that “a defendant who enters a guilty plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers”. Waivers need to be intentional relinquishments or abandonments of known rights or privileges in order to be valid under the Due Process Clause. A defendant’s guilty plea is void if it is not equally voluntary and knowing. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.. In answer to this judgment the American Supreme Court, in the case of Brady V United States[4] held that “a guilty plea is not unconstitutionally compelled when a defendant pleads guilty because they would prefer a certain or probable lesser penalty to the risk of a greater penalty”. Therefore the scope of Plea Bargaining is very high in US and covers almost 95% of the cases. Plea Bargaining was applied in Pakistan especially for corruption cases.
RISE OF PLEA BARGAINING IN INDIA
This relatively new concept came to India only in 2006 for minor criminal offenses. This concept was inspired through the Doctrine of Nolo Contendere .
Nolo Contendere is a latin word which means “I do not wish to contest”. This doctrine is affected by and should be implemented by keeping in mind the social and economic factor prevailing in the country.
The Law commission of India advocated the introduction of ‘Plea Bargaining’ in 142nd, 154th and 177th report. The 142nd report had specified the main scheme of how the plea bargain works and also the functioning of this concept in USA which lead to a successful result. This report specified that in several cases, the time of the accused spent in jail before trial has started exceeds the maximum punishment for which they can be convicted further in respect to the offense they committed. It was recommended under this report that plea bargaining can be in respect to the nature and gravity and quantum of the punishment of the offense committed although the exception to the aspect were the habitual offenders, those who commit socio-economic offenses of a grave nature and also those accused committing offences against women and children as all these 3 categories are a very sensitive aspect of the society and very disturbing for all. The 154th Report of the Law commission explained the need of the decreasing the time of criminal trials while in the 177th report in 2001 supported the contents of the 154th report. Additionally, the Report of the Committee on the Reform of the Criminal Justice System, 2000, under the Chairmanship of Justice (Dr.) Malimath stated that the United States’ experience was evidence of plea bargaining being a means for the resolution of accumulated cases and accelerating the delivery of criminal justice.
PROCEDURE ESTABLISHED OF PLEA BARGAIN UNDER CRPC
This part of article establishes the Chapter XXI-A of Code of Criminal Procedure,1973 which contains 12 sections i.e. 265A to 265L
Plea agreements may be used as described in S. 265 A.The Central Government is given the authority to identify and notify offenders for the purposes of subsection (1) of the offences under the current laws that have an impact on the socioeconomic situation of the nation under section 265A’s subsection (2). This section fails to achieve the precise purpose for which plea bargaining was introduced. Only offences with a sentence of less than seven years are subject to this section’s application.
A plea bargaining application must be filed by the accused under Section 265-B. This application must include a brief description of the case it relates to, as well as the offence it relates to, and it must be accompanied by an affidavit signed by the accused stating that he has voluntarily chosen to accept the plea bargaining in his case after understanding the type and severity of the punishment provided by law for the offence. The concerned public prosecutor, investigating officer, case victim, and accused will thereafter receive notice from the court for the day set aside for this reason.
The requirements for a mutually satisfactory resolution are outlined in S.265 C. In addition to requiring the Court to notify the parties involved, the clause also requires the courts to ensure that the process of determining a satisfactory resolution is voluntary. It does not lay out any guidelines for the court to follow to ensure that there is transparency and that the accused is not coerced at any point in the process.
In the event that a mutually satisfactory solution has been reached, the court is required under Section 265 to prepare a report, which must be signed by all parties present at the Joint Meeting. While his application is being resolved through plea negotiations, an accused may set off the duration of his detention from his sentence of imprisonment.
Once a court issues a decision pursuant to Section 265 F, Section 265 G indicates that the decision is final and that no appeal will be allowed. For the sake of carrying out its duties under this Chapter, the Court is granted all the authority vested in it with regard to bail, the prosecution of offenders, and other case-related issues, according to S. 265H.
According to S.265 I, the accused is allowed to deduct the time spent in custody that he already served in the afore mentioned case during the process but prior to the date of conviction for violating S. 428 alone. Non obstante is a clause found in S.265 J. In addition, S. 265 L declares that the chapter is not applicable to any juvenile or child as defined in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000. S. 256 K states that the statements made by the accused can only be used for plea negotiations and not for any other purpose.
JUDICIAL PRONOUNCEMENTS.
- SITUATION BEFORE THE AMENDMENT ACT,2005
The famous case of Madanlal Ramchandra Daga Vs. State of Maharastra[5] is a prima facia of how the traditional thinking of court worked in which Justice M. Hidayatullah held that the matter should be concerned with the guilt of the convicted party. The Supreme Court emphasised the inappropriateness of plea negotiations.
The Murlidhar Meghraj[6] case provided more support for this ruling wherein According to the Prevention of Food Adulteration Act of 1954, the defendants were being tried for selling contaminated food. The Court had the impression that the accused had entered a guilty plea before the magistrate court in accordance with a loose trilateral arrangement similar to the plea bargaining process utilised in the United States. In spite of his distress about the subject of agreement, Justice Krishna Iyer only reaffirmed that the concept of plea bargaining is not included in Indian criminal law. The learned judge held that the legal community should give plea bargaining some thought at the same time that he voiced his favourable opinion of it.
Additionally, In Kachhia Patel v. State of Gujarat[7], the Apex Court went a step further and ruled that plea bargaining was unconstitutional and would result in widespread corruption.
Plea bargaining is never permitted in India, as the Supreme Court underlined in this case, calling it a “exceptionally inexcusable practise.”
- DEVELOPMENT OF JUDICIARY:
When discussing the idea of plea bargaining, the Gujarat High Court noted in the case State of Gujarat v. Natwar Harchanji Thakor[8] that the goal of the law is to provide simple, inexpensive, and quick justice through the resolution of disputes, including the trial of criminal cases, and that given the current reality of the backlog and delays in the administration of law and justice, fundamental reforms are unavoidable. No static elements should exist. Thus, it may be concluded that it is a genuine measure of redress and that it will provide judicial reforms a new dimension.
In Pardeep Gupta v. State , the Honorable Judge noted that “The trial court’s rejection of the plea bargain shows that the learned trial court had not bothered to look into the provisions of chapter XXI A of Code of Criminal Procedure meant for the purpose of plea bargaining and rejected the application on the grounds that since the applicant is involved in an offence under section 120-B Indian Penal Code and the role of applicant was not lesser than the other co-accused.” None of the crimes were for a punishment of longer than seven years. The request for a plea agreement should be taken into consideration while also taking the accused’s role, the offence’s nature, etc. into account. The High Court ordered the trial court to evaluate the applicability of the accused’s plea agreement according to CRPC procedure.
The court ruled in Joseph P.J. v. State of Kerala[9] that the process of plea bargaining is a compulsion and shall be followed in accordance to section 265A to 265L of CRPC.
Although there has been some improvement since 2005, the courts still tends to treat this important contribution to the criminal justice system with ambivalent feelings, and despite its extremely narrow range of applicability, it is wildly underutilised.
CRITICISM OF PLEA BARGAIN IN INDIA
Plea bargain has not been uniformly accepted throughout India. Some major point of clashes is that the involvement of the police in the plea-bargaining procedure would entice coercion against innocent persons, the accused would have a difficult time establishing his innocence if his appeal for admission of guilt were to be denied.he court’s objectivity is questioned as a result of its participation in the plea-bargaining procedure and involvement of the victim may result in corruption. In addition to all this Plea bargain is also not the final solution, there are many factors cited as justifications for the adoption of plea-bargaining, including the extreme congestion of jails, high rates of acquittal, the abuse of convicts awaiting trial, etc. However, a delay in the trial procedure is the primary cause of all these factors. There are various factors, including how the investigation and judicial systems function in India, the interests of individual lawyers, that can cause cases to be delayed. Therefore, a system overhaul—which might be in terms of structure, composition, and work culture—rather than a trial replacement is what is required right now. With all of these precautions, trials would go quite quickly.
DIFFERENCE BETWEEN US AND INDIA
| BASIS | INDIA | USA |
| Nature of Offence | Any offence keeping in mind the exceptions under Section 265A | Any offence is eligible for plea bargaining |
| Role of Victim | Active role of the victim to either refuse or veto if the parties are unable to reach a mutually satisfactory disposition | No Active Role of the Victim |
| Discretion of the Judge | It is in the hands of the judge to either accept or reject an application by an accused | The judge does not have discretionary power while accepting application of plea bargaining |
| Mechanisms available for enforceability | To ensure that the application for plea bargaining is submitted freely by the accused, the negotiation process does not even begin before the application is filed in India | In the USA, a plea bargaining application is only submitted following the conclusion of negotiations between the prosecution and the accused. |
| Finality | Article 136 gives right to a SLP and Article 226 and 227 gives right to a writ petition of the Indian Constitution either of which may be used to overturn a sentence that the court finds to be insufficient or to be guarded by unjust circumstances. | Herein, the decision is final. |
THE JUDICIAL RESPONSE OF PLEA BARGAINING IN CANADA.
Like in any other country, Plea Bargaining in Canada also has it’s own boon and bane but a major point to note is that 90% of the criminal cases in Canada are solved through the process of plea bargaining.
Plea bargaining was “frowned upon” for a long time, and most criminal justice professionals were reluctant to acknowledge that it even happened. But there has been a marked attitudinal change during the last 15 years. It was advised that the procedure be made more open and ultimately subject to court regulation by the Canadian Sentencing Commission (1987) and the Law Reform Commission of Canada (1989). In Burlingham (1995), the Supreme Court of Canada also declared that a plea agreement is “an integral part of the Canadian criminal justice system.”[10]
SUGGESTIONS
Although Plea Bargaining has been a concept internationally from a long time, in India it is not well used. The first step should be to Expand the Awareness of Plea Bargaining and letting more victims and accused knowing about both its pros and cons for a better implementation.
It is good to know that there are Exceptions to these procedure as major offences should not be included in it but the researcher still feels that expanding the scope of bargaining could help the pendency of cases in the courts.
Since plea bargaining is applicable in so many countries therefore India should look at the international aspects of the concept and how others have applied it and also where can they go forward with it.
CONCLUSION
To help clear the backlog of criminal cases, the plea bargaining system was implemented in India. The criminal justice system in India was to be strengthened as a result. The courts had previously derided the idea of legalising plea bargaining in India and referred to it as a repressible practise. To minimise the amount of pending cases, which caused the criminal justice system’s slowness, the Law Commission Reports advocated for the adoption of plea bargaining in India.
The Criminal Law (Amendment) Act of 2005 introduced the system of plea bargaining in India in Chapter XXI-A, Sections 265-A to 265-L. Since then, the Courts’ perspective on plea bargaining has undergone a complete transformation. Criminals frequently employ plea bargaining to negotiate with the prosecution and victim, which has caused the criminal justice system in India to move more quickly than it did previously. However, there are some drawbacks to the current plea bargaining process in India, including the fact that it may encourage widespread corruption in the legal system and that an accused person cannot use the plea bargaining process if they have been charged with a crime carrying a maximum sentence of more than seven years or with a socioeconomic offence.
Additionally, there is no deadline by which the parties to the lawsuit and the court must finish the full plea negotiating procedure in order to guarantee that the plea bargaining system’s goal, which is to speed up the administration of justice in criminal cases, is realised. The plea bargaining mechanism has proven to be a workable and long-lasting tool of justice, but it is now urgently necessary to evaluate the drawbacks of the current system of plea bargaining in order to make it more effective.
Name:- Ankita Kukreja
[1] R. V. KELKAR , K.N. CHANDRASEKHARAN PILLAI, CRIMINAL PROCEDURE (Eastern Book Company 1990)
[2] 22nd JUSTICE ML SINGHAL ,RATANLAL & DHIRAJLAL’S THE CODE OF CRIMINAL PROCEDURE (ACT II OF 1974) (Lexis Nexis 2021)
[3] Boykin v. Alabama U.S. 238 (1969)
[4] Brady V United States U.S. 742 (1970)
[5] Madanlal Ramachandra Daga V. State of Maharashtra AIR 1968 SC 1267 .
[6] Murlidhar Meghraj v. State of Maharashtra AIR 1929 SCR (1)
[7] Kachhia Patel Shantilal Koderlal v. State of Gujarat and another21
[8] State of Gujarat v. Natwar Harchandji Thakor, 2005 CriLJ 2957.
[9] State of Kerala & Ors Vs. P.J. Joseph 1957
[10] Victim Participation in the Plea Negotiation Process in Canada