ABSTRACT:
The Indian judiciary is known for its approach of independence, impartiality and fairness is providing justice in the criminal law system. The increasing number of cases and the unavoidable delay in the delivery of justice has been such that the trust and faith of the people in the judicial system has been shaken. Speedy disposal of cases is the core of criminal justice and the delay is in itself denial of justice. Therefore, India’s Law Commission proposed the idea of plea bargaining and hence, plea bargaining was introduced in India with the intention of lightening the load of pending litigation and speedy disposition of cases. This concept has not been welcomed by the Apex Court of India. This article will deal with the origin and meaning of plea bargaining, the relevant provisions dealing with it and the objective of it in India. The article further analyses the response of the courts towards the concept of plea bargaining.
KEYWORDS – plea, bargaining, criminal, justice, CrPC, 1973, accused, guilty, judiciary.
INTRODUCTION:
In India, since the last two decades, various Supreme Court cases had rejected to accept the idea of plea bargaining in the Criminal justice systemi. In 1991, for the first time the 142nd Law Commission Report addressed the question of the implementation of plea bargaining in criminal justice. Then, the 154th Report of the Law Commission of India recommended the adoption of a scheme of plea bargaining for disposal of the huge pending cases in criminal courts. The 154th Law Commission Report was also approved and considered by Malimath Committee Report, 2003ii for the implementation of the concept of plea bargaining in the Indian criminal justice system. All these recommendations were taken into account and Sections 265.A to 265.L of Chapter XXI-A of the Code of Criminal Procedure, 1973, was inserted by the Criminal Law (Amendment) Act, 2005 lays down provisions relating to Plea Bargaining.
The Criminal Law (Amendment) Act, 2005 which has come into effect since 5th July, 2006 has given statutory recognition to the plea bargaining in the criminal law system in India. The Chapter does not define plea bargaining. Plea bargaining takes place when a person who is charged with an offence i.e. the accused accepts the fact that he is guilty in return of reduced a sentence or charge than what he would originally be punishable with. Plea Bargaining is an alternative method to deal with huge amount of pending criminal cases. It is a measure and redressal mechanism and its addition has added new dimensions in the realm of judicial reforms.
DEFINITION:
Plea Bargaining means, pre-trial negotiations between the accused and prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.
According to the Black’s Law Dictionary, plea bargaining is “a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more lenient sentence or a dismissal of the other charges.
The 142nd Law Commission Report, 1991 defines plea bargaining as “any agreement by the accused to plead guilty in return for the prosecutor’s agreeing to take or refrain from taking a particular course of action.”
RELEVANT PROVISIONS DEALING WITH PLEA BARGAINING:
Section 265.A deals with application of the Chapter XXI-A. It states that - (i) Plea Bargaining is applicable only in respect of offences for which punishment of imprisonment is upto 7 years; and (ii) The accused has not been convicted for the same offence previously; and (iii) It does not apply where the offence is in nature of socio- economic crimes or has been committed against a woman or a child below the age of 14.
Benefits of Plea Bargaining can be asserted in two circumstances – First, when the officer in charge sends a report to the Magistrate after the investigation has been concluded pursuant to Section 173 of Crpc, 1973 where a crime seems to have been committed by an individual rather than a crime for which was punishable with death penalty and imprisonment for more than 7 years and Secondly, if the Magistrate has taken notice of a complaint offence in reference to Section 190(1) of the Code accompanied by an investigation of a plaintiff and witness pursuant to Section 200 and the initiation of proceedings pursuant to Section 204 i.e. after the commencement of proceedings on a private complaint.
Sec.265.B deals with application for plea bargaining. It requires that the application be filed by the accused voluntarily. Such application has to be filed in the Court in which the offence of the accused is to be tried or is pending trial. The application which is filed should consist of the following:
1. A brief summary of the case along with the nature of the offence committed 2. An affidavit made by the accused alleging that:
a) The submission has been voluntarily made by him
b) He knows the nature of the offence and the penalty for the same
c) He has not been previously convicted for the same offence
A notice is then issued to the public prosecutor or the complainant by the Court and the person who is accused shall be examined in camera where the complainant or the public prosecutor shall not be present so as to make sure that the accused has voluntarily filed an application and no pressure has been imposed on him/her to accept the guilt.
Sec.265.C deals with guidelines for mutually satisfactory disposition. In a case brought on the basis of a police report, the court shall inform the public prosecutor, the police officer who has investigated the case, the victims and the accused of the case to engage in the meeting in order to decide a fair outcome of the case. It is responsibility of the court to ensure that the parties involved in the case willingly complete the whole procedure. In the case brought by a private complainant, the court shall inform the accused and the victim of the case of to take part in the meeting in order to settle the case in a suitable manner. If the parties so wish, they will engage in a meeting with their pleaders in the case and the court must ensure that the procedure is carried out on a voluntary basis.
Sec.265.D deals with report of the mutually satisfactory disposition to be submitted before the Court. It states that if a satisfactory disposition of the case has been made as prescribed under Section 265.C, a report shall be prepared by the Court which will require the signature of the Presiding officer of the Court and all the other people who took part in the meeting. However,
if a disposition has not been worked out, the Court shall record those findings and proceed in compliance with the provisions of the code as if the application was filed under Section 265.B(1).
Sec.265.E deals with disposal of the case. Where the satisfactory disposition of the case has been mutually worked out by the parties, the Court will dispose of the case by sentencing the accused to one-fourth of the punishment provided on extendable as the case may be, in such offence. If the accused is a first-time offender, the Court will have the option of releasing him/her on probation of good conduct under the Probation of Offenders Act, 1958. Alternatively, the Court may grant half the minimum punishment for the particular offence of which the accused is charged with.
Sec.265.F deals with judgment of the Court.
Sec.265.G deals with finality of the judgment. The judgement delivered by the Court in the case of plea- bargaining shall be final and no separate appeal shall lie in any Court against such judgements except by a special leave petition under Article 136 and Writ Petition under Articles 226 and 227 of the Constitution.
Sec.265.H deals with power of the Court in plea bargaining. It states that the Court shall have all the powers as provided in the Code of Criminal Procedure, 1973 in respect of bail, trial of offences and other offences.
Sec.265.I deals with period of detention undergone by the accused to be set off against the sentence of imprisonment.
Sec.265.J deals with savings. It states that provisions of the chapter will have effect in spite of something conflicting to it is found in any other provisions of the Code and nothing in those other provisions shall be considered to reflect the purpose of any provisions of Chapter XXI A.
Sec.265.K deals with statements of accused not to be used except for provisions laid down in Chapter XXI-A.
Sec.265 L deals with non-application of the chapter. It states that the chapter shall not be applicable in case of a child or a juvenile as defined in the Juvenile Justice (Care and Protection) of Children Act, 2000.
OBJECTIVES OF INTRODUCING PLEA BARGAINING
1. Rapid disposal of cases and reduction of pending cases
2. Efficient and time saving
3. Saves legal costs of the parties
4. If the accused in innocent, it prevents overcrowding of jails
5. The uncertainty of the case finally comes to an end
6. If the accused is innocent then he will recognize his culpability and therefore, it is not rational to keep him/her with hard core offenders.
7. Presently in India, most of the criminal cases lead to acquittal of the accused and therefore such a system is beneficial.
TYPES OF PLEA BARGAINING:
1. Charge Bargaining: It is a deal or a bargain between the accused and the prosecutor for deducting some of the charges brought against the accused/defendant in return of the defendant pleading guilty for his/her wrongdoing. The bargaining will take place with the consent of the prosecutors and depends entirely on the prosecutor. The prosecutor may either accept or reject it.
2. Sentence Bargaining: It is a promise or bargain by the prosecutor after the accused has accepted his/her guilt, that the accused will receive lesser punishment or charge. Before this, the accused must be informed about the amount of punishment if he/she does not admit the guilt or the wrongdoing but if he/she accepts then the prosecutor seeks for a lesser punishment than the one which was earlier being demanded because of the innocence shown by the accused and for saving the Court’s time.
JUDICIAL TREND:
Before the inclusion of Chapter XXI-A in the Code of Criminal Procedure, 1973, the Courts did not approve the concept of plea bargaining in India. Plea bargaining in the form of leniency in the nature of punishment had been in practice in India even before the statutory recognition
to plea bargaining by the Criminal Law (Amendment) Act, 2005, but the Courts generally showed reluctance to accept it legally and constitutionally as evident from number of cases.
In the case of State of UP v. Chandrika, the Supreme Court held that “the disposal of cases on the basis of plea bargaining is not permissible.” The Court noted that mere acceptance or admission of guilt should not be a ground for reduction of sentence. The practice would tend to encourage corruption and contribute to lowering the standard of criminal justice system.
In the case of Kasambhai Abdulrehman Bhai Seikh v. State of Gujarat Bhagwati, J, of the Apex Court declared plea bargaining as unconstitutional and illegal and set aside the conviction of the accused based on plea of guilty and remanded the case to the Trial Court for being decided in accordance with the law. The Court in this case observed that plea bargaining procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 21 of the Constitution. It would pollute the pure function of justice as it might induce an innocent accused to plead guilty to suffer a lighter punishment rather than go through a long drawn arduous criminal trial with unpredictable results.
Earlier also, similar views had been expressed by Justice Hidayatullah in Mandalal Ram Chandra Daga v. State of Maharashtra wherein the Court disapproved the practice of observed plea bargaining and stated that “In our opinion, it is very wrong for a Court to enter into a bargain of his character Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case, it may impose a lighter sentence but the Court should never be a party to bargain by which money is recovered for the complainant through their agency.”
In Thippeswamy v. State of Karnataka, the Apex Court held that imposition of sentence in revision or appeal after the accused had bargained the plea for a lighter sentence is wholly unconstitutional and violative of Article 21, it may lead to corrupt practices in dispensation of criminal justice in India.
THE SCENARIO AFTER THE CRIMINAL LAW (AMENDMENT) ACT, 2005:
Despite legal and statutory recognition given to plea bargaining in the Indian criminal law system, very few people seem to have welcomed it and the general opinion in this regard is that in an anxiety to reduce the pendency of criminal cases, the experimentation in the form of plea bargaining has been adopted to speed up case load disposition. The reluctance legal fraternity no accept the system of plea-bargain wholeheartedly is evident from cases which are far and few, on this crucial aspect of dispensation of criminal justice system.
In the case of Pradeep Gupta v. State, the Delhi High Court expressed concern for the apathy of the trial Court which had rejected the accused's plea of charge bargaining without going through the provisions of Chapter XXI-A of Cr. P.C. and directed the trial Court to reconsider the application of the accused for plea bargaining and dispose it of accordance with the provisions of Sections 265-A to 265-L of the Cr. P.C. Allowing the plea bargaining petition, the Delhi Metropolitan Magistrate Court its decision handed down on April 11, 2007 reduced the sentence of the petitioner to days. The accused had allegedly barged into the neighbour's house ten years ago and could have been sentenced to three years imprisonment for this offence. But the Court disposed of the case as the accused had applied voluntarily for plea bargain and both the parties had reconciled mutually. As the accused had confessed the offence and bargained for a lesser punishment, his case fell within the ambit of Chapter XXI-A of Cr.PC.
The Supreme Court in State of Haryana v. Janak Singh and Ors. clarified that the offence of rape being the most heinous crime against women as it dwarfs her personality erodes her confidence and violates her right to life, sentence bargaining is not permitted in rape.
However, the concept of plea bargaining was acknowledged by the Court in the case of State of Gujarat v. Natwar Harchandji Thakor. The importance and objective of plea bargaining was recognized in this case wherein it was held that “ It is true that the idea of "plea bargaining" in jurisdictions in India is not permissible, but in view of the changed circumstances and present state of affairs of the criminal justice delivery system in our country, a Bill has been introduced by the Government, known as "The Criminal Law (Amendment) Bill, 2003 (Bill No. LX of 2003)" in which Chapter XXIA, relating to "plea bargaining" is proposed to be introduced in the Code of Criminal Procedure, 1973. In the said Bill, new Sections, i.e. Section 265A to Section 265K are proposed to be added in the Code of Criminal Procedure so as to provide for raising the "plea bargaining" in certain types of Criminal Cases. One of the main aims and objects of introduction of certain provisions in general and for the introduction of "plea bargaining" by amendment in the Code of Criminal Procedure in particular, has been the speedy disposal of criminal cases. The disposal of criminal cases in Courts, unquestionably, takes considerable long time and in that, in many cases, trials do not commence for as long as period as 3 to 5 years after the accused has been remitted to the judicial custody. Large number of persons accused of criminal offences particularly, indigent, illiterate and rustic persons are unable to secure bail, for one or the other reason and have to languish in jail, as undertrial prisoners, for years. Though, not recognised so far by the Criminal Jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. It is really a measure and redressal, if brought on statute and also operative, it shall also add a new dimension in the realm of Judicial Reforms. To reduce the delay in the disposal of criminal trials and appeals as also to alleviate the suffering of undertrial prisoners, as well as, their dependents and keeping in mind the real purpose of Victimology, it has been rightly proposed to introduce the concept of "plea bargaining", as recommended by the Law Commission of India, in its 154th Report, on the Code of Criminal Procedure, 1973”
CONCLUSION:
Thus, Plea Bargaining is a controversial term as it has been accepted by some while others have rejected it. It doesn't fix the whole problem but reduces the severity of the punishment if the accused voluntarily pleads guilty. The implementation of the concept of plea bargaining is aimed at drastically decreasing the number of under trial prisoners. The criminal justice system has, however, changed over time and made plea bargaining conducive to the norms of law and society. With the enormous number of criminal cases piling up the courts, the plea-bargaining principle is crucial, as it offers the simple and expeditious means of disposing of cases. To sum up, while plea bargaining is helpful to the accused and the victim of a crime, adequate protections are needed to put an end to potential violations of this process. Plea bargaining is a realistic strategy for addressing overloaded criminal courts and prisons and a possible means of enhancing the quality of justice and streamlining judicial services, facilities and costs.
By- Devanshi Lohia
Amity University, Kolkata.
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