Plea Bargaining


Plea Bargaining refers to a person charged with a criminal offence (accused) negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence. It primarily involves pretrial negotiations between the accused and the prosecutor. It may involve bargaining on the charge or in the quantum of sentence.

Plea bargaining is essentially derived from the principal of ‘Nalo Contendere’ which literary means ‘I do not wish to contend’. The Apex Court has interpreted this doctrine as an “implied confession, a quasi confession of guilt, a formal declaration that the accused will not contend, a query directed to the court to decide a plea guilt, a promise between the Government and the accused and a government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only. It has been introduced in the criminal procedure code in the chapter XXI A wide criminal law (amendment) Act 2005.This has change the prospect & the face of the criminal justice system. It is not applicable in cases where the offence is committed against a women or a child below the age of 14 years. Also once the court passes an order in the case of plea bargaining, no appeal shall lie to any court against the order.

“Plead Guilty or bargain for lesser sentence” is the straight & shortest possible meaning of plea bargaining. Plea bargaining refers to pre – trail negotiation between the defendant usually conducted by the counsel & the prosecution during which the defendant agrees to plead guilty in the exchange for certain concessions by the prosecutor. Plea bargaining is the result of modern judicial thinking before the introduction of plea bargaining most courts used to ignore Plea Bargaining. The concept of Plea Bargaining was not recognized in jurisprudence of India. However accused used to plead guilty only for petty offences & pay small fine whereupon the case is closed. Initially the concept of Plea Bargaining was opposed by the legal experts, judiciary etc.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases:

  • Where the maximum punishment is imprisonment for 7 years;
  • Where the offenses don’t affect the socio-economic condition of the country;
  • When the offenses are not committed against a woman or a child below 14 are excluded

The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in Indian Criminal Justice System. It defined Plea Bargaining as an alternative method which should be introduced to deal with huge arrears of criminal cases in Indian courts.

Then under the NDA government, a committee was constituted which was headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to tackle the issue of escalating number of criminal cases. The Malimath Committee recommended for the plea bargaining system in India. The committee said that it would facilitate the expedite disposal of criminal cases and reduce the burden of the courts. Moreover, the Malimath Committee pointed out the success of plea bargaining system in the USA to show the importance of Plea Bargaining.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country, which is inundate with a plethora of criminal cases and overabundant delay in their disposal on the one hand and very low rate of conviction in cases involving serious crimes on the other. The Criminal Law (Amendment) Bill, 2003 focused on following key issues of the criminal justice system: –

  1. Witnesses turning hostile
  2.  Plea-bargaining
  3. Compounding the offense under Section 498A, IPC (Husband or relative of husband of a woman subjecting her to cruelty) and
  4. Evidence of scientific experts in cases relating to fake currency notes.

The law commission of India advocated the introduction of Plea Bargaining in the 142th, 154th & 177th reports. The 154th report of the Law commission recommended the new XXI A to be incorporated in the criminal procedure code. Based on recommendation of the Law Commission, the new chapter on plea bargaining making plea bargain in cases of offences punishable with imprisonment up to seven years has been included.

As Per Section 265-A, the plea bargaining shall be available to the accused who is charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding to seven years. Section 265 A (2) of the Code gives power to notify the offences to the Central Government. The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offences affecting the socioeconomic condition of the country.

Section 265-B contemplates an application for plea bargaining to be filed by the accused.

  1. A person accused of an offense may file the application of plea bargaining in trails which are pending.
  2. The application for plea bargaining is to be filed by the accused containing brief details about the case relating to which such application is filed. It includes the offences to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred the application, the plea bargaining the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case that he has not previously been convicted by a court in a case in which he had been charged with the same offence.
  3. The court will thereafter issue the notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused of the date fixed for the plea bargaining.
  4. When the parties appear, the court shall examine the accused in-camera wherein the other parties in the case shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.

Section 265-C prescribes the procedure to be followed by the court in working out 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, and the victim of the case and the accused to participate in the meeting to work out 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 deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. Two situations may arise here namely

  1. If in a meeting under section 265-C, a satisfactory disposition of the case has been worked out, the report of such disposition is to be prepared by the court. It shall be signed by the presiding officer of the Courts and all other persons who participated in the meeting.
  2. If no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265-B has been filed in such case.

Section 265-E prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. After completion of proceedings under S. 265 D, by preparing a report signed by the presiding officer of the Court and parities in the meeting, the Court has to hear the parties on the quantum of the punishment or accused entitlement of release on probation of good conduct or after admonition. Court can either release the accused on probation under the provisions of S. 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force, or punish the accused, passing the sentence. While punishing the accused, the Court, as its discretion, can pass sentence of minimum punishment, if the law provides such minimum punishment for the offences committed by the accused or if such minimum punishment is not provided, can pass a sentence of one fourth of the punishment provided for such offence. ” Section 265-F deals with the pronouncement of judgment in terms of mutually satisfactory disposition.

Section 265-G says that no appeal shall be against such judgment.

Section 265-H deals with the powers of the court in plea bargaining. A court for the purposes of discharging its functions under Chapter XXI-A, shall have all the powers vested in respect of trial of offences and other matters relating to the disposal of a case in such Court under the Criminal Procedure Code.

Section 265-I specifies that Section 428 is applicable to the sentence awarded on plea bargaining.

Section 265-J talks about the provisions of the chapter which shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A.

Section 265-K specifies that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose as mentioned in the chapter. ” Section 265-L makes chapter not applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

Types of Plea Bargaining

Plea Bargaining is generally of three types namely: –

  1. Sentence bargaining: In this type of bargaining the main motive is to get a lesser sentence. In Sentence bargaining, the defendant agrees to plead guilty to the stated charge and in return, he bargains for a lighter sentence.
  • Charge bargaining: This kind of plea bargaining happens for getting less severe charges. This the most common form of plea bargaining in criminal cases. Here the defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges. E.g. Pleading for manslaughter for dropping the charges of murder.
  • Fact bargaining: This is generally not used in courts because it is alleged to be against Criminal Justice System. It occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence.

In Kasambhai vs State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal Koderlal vs State of Gujarat and Anr, the Apex court said that the Plea Bargaining is against public policy. Moreover, it regretted the fact that the magistrate accepted the plea bargaining of accused. Furthermore, Hon’ble Court described this concept as a highly reprehensible practice. The Court also held that practice of plea bargaining as illegal and unconstitutional and tends to encourage the corruption, collusion and pollute the pure fount of justice.

The Hon’ble High Court in the case of Sh. Charan Singh v. M.C.D. has held that no disqualification on account of conviction could be attached to petitioner as he had been released on probation. In this case, the Hon’ble Delhi High Court has quoted the case of Trikha Ram v. V. K. Seth and Anr wherein the Hon’ble Supreme Court held that the benefit of Section 12 of The Probation of Offenders ACT, 1958 can be extended to the service of the offender.

In Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), The Hon’ble Supreme Court criticized the concept of Plea Bargaining and said that it intrudes upon the society’s interests.

Thippaswamy vs State of Karnataka, [1983] 1 SCC 194, the Court said that inducing or leading an accused to plead guilty under a promise or assurance would be violative of Article 21 of the Constitution. The Court also stated that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes defend himself against the charge and if he is found guilty, proper sentence can be passed against him”. 

Arguments in Favor of Plea bargaining:

  • As per the Justice Malimath Committee on reforms of the criminal justice system (formed in 2000):
    • This ensures speedy trial, ends uncertainty over the outcome of criminal cases, saves litigation costs and relieves the parties of anxiety.
    • It would also have a dramatic impact on conviction rates.
      • It is common in the USA, and has been a successful method of avoiding protracted and complicated trials. As a result, conviction rates are significantly high there.
    • Prolonged imprisonment of undertrials without any progress in the case for years and overcrowding of prisons are also other factors that may be cited in support of reducing pendency of cases and decongesting prisons through plea bargaining.
    • It may help offenders make a fresh start in life.

Arguments Against Plea Bargaining:

  • People who are pushed to plea bargain are those who do not have the wherewithal to arrange for bail.
    • Even courts are also very particular about the voluntary nature of the exercise, as poverty, ignorance and prosecution pressure should not lead to someone pleading guilty of offences that may not have been committed.
      • The Judiciary in its earlier verdicts (especially before the introduction of the process) had disapproved of bargaining with offenders, and pointed out that lenient sentences could be considered as part of the circumstances of the case after a regular trial. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence.
    • Further, it may hamper the victim’s right to fair trial, involvement of coercion by the investigating agencies and corruption in the process.
    • Some argue that it is against Article 20 (3)of the Constitution which provides immunity to an accused against self-incrimination.

Plea Bargaining does not solve the entire problem but reduces its severity of penalty. The introduction of plea bargaining is a shortcut aimed at quickly reducing the number of under-trial prisoners and increasing the number of convictions, with or without justice. It is undoubtedly a disputed concept since few have welcomed it while others have abandoned it. The consequences will be felt most obviously by the countless numbers of poor languishing in the country’s prisons while awaiting trial. Taking into account the advantages of plea-bargaining, the recommendations of the Law Commission Plea bargaining was clearly recognized as the need of the hour and by no stretch of imagination can the taint of legalizing a crime will attach to it. At this stage it can be safely held that ‘Law is not a Panacea. It cannot solve all problems, but it can reduce the severity’. Plea bargaining in India endeavors to address the same, which despite its shortcomings can go a long way in speeding the caseload disposition and attributing efficiency and credibility to Indian Criminal Justice.

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