By Swarnalee Halder, Calcutta University Department of Law.
A new Chapter (Chapter XXI A) on Plea Bargaining has been inserted in the Criminal Procedure Code 1973. A notification to bring into effect the new provision has been issued and it has come into effect from 5th July, 2006. Plea Bargaining was introduced through the Criminal Law (Amendment) Act, 2005 which was passed by the Parliament in the winter session of 2005.[1]
Plea bargaining is essentially derived from the principal of ‘Nalo Contendere’, which literary means ‘I do not wish to contend’.[2] Plea bargaining usually occurs prior to a trial but may also occur any time before a judgment is rendered. Black’s Law Dictionary defines it as: “The process whereby the accused and the prosecutor in criminal case work out a mutually satisfactory disposition of the case subject to the Court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the Courts of a multi-count indictment in return for a lighter than that possible for the graver charge.”[3]
Object
The object of ‘Plea Bargaining’ is to reduce the risk of undesirable orders for either side. Another reason for introducing the concept of ‘Plea Bargaining’ is, the fact that most of the criminal courts are over-burdened and hence unable to dispose-of the cases on merits effectively. Criminal trial may take a day, week, month and sometimes even a year while plea of guilt can be arranged in minutes.[4]
The Origin
The Law Commission of India advocated the introduction of Plea Bargaining in its 142th, 154th & 177th reports. To reduce the delay in disposing criminal cases, the 154th report of the Law Commission first recommended the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases. This recommendation of the Law Commission finally found a support in the Malimath Committee Report. The NDA government had formed a Committee, headed by the former Chief Justice of Karnataka and Kerala High Courts, Justice V.S.Malimath, to come up with some suggestion to tackle with the over-growing number of criminal cases. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in the Indian Criminal Justice System to facilitate speedy disposal of criminal cases and to reduce the burden of the Courts.[5]
Supreme Court on the concept of plea bargaining
The Hon’ble Supreme Court has criticized the concept of plea-bargaining in its judgment namely, Murlidhar Meghraj Loya v. State of Maharashtra.[6]Further, the Hon’ble Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr [7], strongly disapproved the practice of plea bargain. Similarly, in Kasambhai v. State of Gujarat[8], the Supreme Court had expressed an apprehension that such a provision is likely to be abused.
Change in Judicial thinking
It was Gujarat High Court that recognized the utility of this method in State of Gujarat v. Natwar Harchandji Thakor[9] , as an alternative measure of redressal to deal with huge arrears in criminal cases.[10]
Salient Features
- Plea-bargaining can be claimed only for offences that are punishable with imprisonment below seven years. {265 A Cr.P.C. (Application of the Chapter)}.
- If the accused have been previously convicted for a similar offence by any Court, then he/she will not to be entitled to plea bargaining.
- Plea-bargaining is not available for offences which might affect the socio-economic conditions of the country.
- Also, plea-bargaining is not available for an offence committed against a woman or a child below fourteen years of age {265 L Cr.P.C.- Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).”}
The opportunity of plea bargaining is not available to a person accused of serious crimes such as murder, rape etc. It does not apply to serious offences wherein the punishment is death or life imprisonment or a term exceeding seven years or offences committed against a woman or a child below the age of 14 years.[11]
Advantages
For most accused, the principal benefit of plea-bargaining is receiving a lighter sentence than what might result from taking the case to trial and getting convicted, the accused may save a huge amount of money which they might otherwise spend on advocates. It always takes more time and effort to bring a case to trial than to negotiate and handle plea-bargain. Over crowded Courts do not allow the Judges to try every case that comes before them. It also reduces the caseload of the Public Prosecutors. The accused might be a beneficiary as he might get half of minimum prescribed punishment. While punishing the accused, the Court, at its discretion, can pass a sentence of minimum punishment, if no such minimum punishment is prescribed, the accused might get one fourth of punishment prescribed[12], or released on probation or after admonition or get concession of considering the period undergone in custody as suffering the sentence under Section 428 of Criminal Procedure Code. [13]
Disadvantages
The prosecution is capable of presenting accused with unconscionable pressure. There are chances of it being coerced. A plea bargain results in a conviction whether the accused is guilty or innocent. All the consequences of having a conviction on one’s record are realized by an accused whether the accused was actually guilty or simply accepted a plea bargain to avoid a trial. Another disadvantage to a plea bargain is that the Public Prosecutors and even Judges are not bound by the bargain. Public Prosecutors may promise to request leniency during sentencing, but then equivocate when it actually comes time to request sentences. Also, it may seem unfair; it is very difficult to retract a guilty plea, even when the Public Prosecutors promise not to seek a certain punishment but then doesn’t follow through with the promise.[14]
Examination and deposition of the accused
Generally a Judge will authorize a plea bargain if the accused waives his or her right to a trial knowingly and voluntarily. If the Court feels, after examination of the accused, the application is involuntarily submitted or the accused is not eligible for plea bargaining on the ground of earlier conviction in a case charged with same offence, the Court has to drop the proceedings and proceed further with the trial. After examination of the accused, if the Court feels that the case is fit for plea bargaining, then it may proceed further for a settlement.[15]
Moreover, the Judge does not participate in plea bargaining discussions. Further, the judgment delivered by the Court in case of plea-bargaining shall be final and no appeal shall lie in any Court against the judgment.[16] The Law also makes it mandatory to pronounce the judgment in an open Court.[17]
Conclusion
Basically, ‘Plea Bargaining’ is a deal offered by the prosecutor to induce the accused to plead guilty. However, not everyone agrees that plea-bargaining is really a good deal for the accused, especially where many of the considerations seem to favor like time, expense and convenience over justice.[18] Moreover, accused may seek plea bargain just to avoid the circus that may accompany a trial and may agree to plea bargain simply out of fear or ignorance, and in that case no one is well served-the system or the accused.[19]
[1] A Unique Remedy to Reduce Backlog in Indian Courts. (www.manupatrafast.com).
[2] India: Plea Bargaining: An Overview by Sugandha Nayak.
[3]shodhganga.inflibnet.ac.in
[4] Plea Bargaining – An Analysis of the concept. (www.legalserviceindia.com/articles).
[5] http://legal-dictionary.thefreedictionary.com/Plea+Bargaining.
[6] AIR 1976 SC 1929.
[7] 1980CriLJ553.
[8] AIR 1980 SC 854
[9] 2005 CriLJ 2957, (2005) 1 GLR 709
[10] Plea Bargaining (www.academia.edu)
[11] Plea Bargaining in Us and Indian Criminal Law Confessions for Concessions by- K.V.K. Santhy.
[12] Section 265F of Cr.P.C.
[13] Advantages and Disadvantages of Plea Bargaining. (Occupytheory.org)
[14] http://criminal-law.freeadvice.com/criminal-law/criminal-law/plea-bargain.htm.
[15] Section 265B(4) (Q) of Cr.P.C.
[16] 265G, Cr.P.C.
[17] 265E, Cr.P.C.
[18] criminal.findlaw.com
[19] criminal.findlaw.com