Plea Bargain

Ankur Mittal, Additional Advocate General

Date : 28/02/2019

Plea Bargain

Under the criminal justice system, the offender for any offence is required to be punished as per law of land. It is duty of the State/prosecution to prove the guilt of the accused for the criminal charges framed against him, beyond the shadow of reasonable doubt. However, Plea Bargaining is a concept wherein an agreement is executed between the State and the accused whereby if the accused pleads guilty for the offences committed by him, some leniency/concession in charges or punishment can be granted to the accused in exchange for the accused pleading guilty as the same helps in avoiding the lengthy trial procedure.

The term Plea Bargaining', is essentially derived from the principal of 'Nalo Contendere' which literary means 'I do not wish to contend'. The Hon'ble 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.

The concept of Plea Bargaining finds its origin in United States of America, however, the same has eventually gained international recognition and is now accepted worldwide. The said concept has spread its roots from USA to most of the world and every major country has accepted this concept entirely or in parts. Until the year 2005, the Indian judicial System did not appreciate/accept the concept of Plea Bargaining and has criticized the said concept in catena of judgments. However, with the passage of time and evolution of the legal system, the concept of Plea Bargaining was adopted by India by way of amendment in the Criminal Procedure Code, 1973 (Cr.P.C.) vide Act 2 of 2006 and by incorporation of Chapter XXI-A in the Cr.P.C., which came into effect on 05.07.2006.

Similarly, countries like England and China also recognized the concept of Plea Bargaining. Though the concept of Plea Bargaining is accepted widely throughout the world, however, the nature of the offences for which the Plea Bargaining is accepted is different in most countries. For instance, the Indian law allows Plea Bargaining only for the offences having punishment less than 7 years, whereas China allows the said concept only where punishment is less than 3 years.

After the concept of Plea Bargaining was introduced in Cr.P.C., the same changed the prospects and face of the criminal justice system. However, it is pertinent to mention here that the said concept is not applicable wherein the punishment provided for the offence (s) is more than 7 years as also where the offence is committed against either a women or a child below the age of 14 years. It is further apposite to mention here that once the accused pleads guilty under the concept of Plea Bargaining and the competent court of law passes the verdict/order/judgment, no appeal shall lie to any court of law against the said verdict/order/judgment.

In view of the above, the question that arises is that as to what changed the minds of the Indian judicial system to accept the concept of Plea Bargaining after its reluctance and criticism by the Courts of Law. The answer to the said question lies in the report nos. 142, 154 and 177 of the Law Commission of India, wherein the introduction of Plea Bargaining in the Indian Law was strongly advocated and recommended. It was in the 154th report of the Law Commission of India wherein the recommendation for introduction/incorporation of the new chapter XXI-A in the criminal procedure code was made and based on the said recommendation of the Law Commission of India, the new chapter No. XXI-A on Plea Bargaining was introduced in the Cr.P.C. wherein making Plea Bargaining in cases of offences punishable with imprisonment not exceeding the term of seven years was applicable.

Chapter XXI-A contain Sections 265-A to 265-L. Under Section 265-A of the Cr.P.C., Plea Bargaining is not applicable for the offences for which the punishment is

life imprisonment or death sentence. It is only applicable for the offences for which punishment is less than 7 years of imprisonment. Further offences affecting socioeconomic condition of the country or committed against women or children below 14 years of age have been excluded from the ambit of Plea Bargaining. In pursuant thereof, the Central Government had notified the list of 19 Acts of Parliament declaring offences therein as affecting the socio-economic conditions of the country for which Plea Bargaining is not acceptable.

There are three types of Plea Bargaining i.e., Charge Bargaining, Sentence Bargaining and Fact bargaining. In the Charge Bargaining, the negotiations for dropping some charges in a case of multiple charges or settling for less grave charge are done. The concept of Sentence Bargaining comes to picture where the accused has no option of admitting guilt but for settling for lesser punishment. Fact bargaining means negotiations which involves an admission to certain facts in return for an agreement not to introduce certain other facts.

The same is different from guilty plea' as the facts accepted by the accused during Plea Bargaining cannot be used against him anywhere in a legal proceeding under Section 265-K of the Code. The accused may get less punishment, be released on probation or admonition under Section 265-E of the Cr.P.C. It is pertinent to mention here that no appeal lies against such judgment except Special Leave to Appeal under Article 136 and Writ Petitions under Articles 226 and 227 of the Constitution of India under Section 265-G of the Cr.P.C.

It is pertinent to mention here that prior to the said Amendment Act, the Indian judicial system did not recognize the concept of Plea Bargaining and rather the same was opposed on different counts and the Hon'ble Apex Court had repeatedly declared the concept of Plea Bargaining to be against the public policy.

In the case titled Murlidhar Meghraj Loya v. State of Maharashtra (AIR 1976 SC 1929), the Hon'ble Supreme Court of India while criticizing the concept of Plea Bargaining' observed that, "It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society's interests by opposing society's decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law."

Similarly, in the case titled Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat (1980 AIR 854J, the Hon'ble Supreme Court of India was pleased to hold that, "The practice of Plea Bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice."

Subsequently, in the case titled State of Uttar Pradesh v. Chandrika (2000) Cr.L. J. 384 (386) the Supreme Court was pleased to observe that, "It is settled law that on the basis of Plea Bargaining Court cannot dispose of the criminal cases. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced. "

However, with the passage of time and after acceptance of the concept of Plea Bargaining by the judicial systems of the world, the Indian judicial system saw a change in the recognition of the concept of Plea Bargaining. It is apposite to mention here that the Committee formulated by the Law Commission of India had obtained the views regarding the concept of Plea Bargaining from the Hon'ble Judges, eminent Lawyers, Bar Associations in the Country, etc and on the basis of the recommendations/views obtained therein, the recommendation had been made in its 154th Report for introduction of the concept of Plea Bargaining in the Indian Legal System. The recognition of the Plea Bargaining in Indian Legal System has made an unfathomable impact over the years and has become a pivotal part of criminal jurisprudence in India.

It is worth mentioning here that the Hon'ble Division Bench of the Gujarat High Court while deciding the challenge to the concept of Plea Bargaining in the case titled State of Gujarat V. Natwar Harchanji Thakor (2005) 1 GLR 709, acknowledged the importance of Plea Bargaining' and observed that, "the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static."

The benefits of Plea Bargaining are that Less time and money are consumed ending uncertainties involved in a criminal trial and the victim also gets benefitted by Plea Bargaining as the same provides quick justice for victim and fast compensation.

The cons in the concept of plea bargain are that the same may hamper with victim's right to fair trial, involvement of coercion by the investigating agencies and corruption in the process. Section 265-C provides for guidelines for mutually satisfactory disposition, where a victim is called to participate in a meeting with accused to work out disposition, along with his pleader. However, knowing the nature of prevalent corruption, unless all the processes and proceedings pertaining to plea bargain are recorded and supervised by Magistrates, the chances of coercion with the victim would be writ large. Similar is true for persons who are falsely implicated in offences and are forced to admit crimes and thereafter further forced for Plea Bargaining under Section 265-B of the Code to justify State's action against such persons.

In conclusion to the present article, it is requisite to mention here that although the concept of Plea Bargaining is beneficial to the accused and victim of a crime, however, safeguards are required to prevent the abuse of this process. Plea Bargaining

is a pragmatic vision to overcome crowded criminal courts and prisons and a potential way to improve litigation, efficiency and also to rationalize judicial resources, infrastructure and expenses. Lack of infrastructure, facilities and inadequate appointment of judges is a cry far from over for last so many decades and thus, the concept of Plea Bargaining acts as a stark silver lining in the criminal justice delivery system of India, if rightly propagated and applied, thereby benefitting millions of undertrials who are languishing in jails for defined crimes and saving high expenses and space borne by State in maintaining them.

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