Acceptance of Guilt for a Lesser Punishment: The Concept of Plea Bargaining

As per the Niti Aayog’s New India @75 report, 65% of undertrial prisoners are awaiting their trial. This fact highlights the grim picture of delay in the criminal justice system. In order to overcome the burden of the courts, the concept of plea bargaining was introduced in the Criminal Procedure Code. Justice Malimath Committee Report and the Law Commission Report mooted the idea of introducing the concept of plea bargaining in the Indian Criminal Procedure Code.

A recent example of plea bargaining is that may members of Tablighi Jamaat, belonging to different countries who violated visa norms have obtained release from court cases by the process of plea bargaining. They violated visa norms and attended a congregation in Delhi. They pleaded guilty to the minor offences and walked free after paying the stipulated fine.

Index

• What is Plea Bargaining?
• The Concept of Plea Bargaining and the Criminal Procedure code 
• Types of Plea bargaining 
• Relevant Procedure for Plea Bargaining 
• Finality of Judgement/Bar on Appeal 
• What are the Exceptions to the concept of Plea Bargaining?
• Benefits of Plea Bargaining 
• Conclusion 

What is Plea Bargaining?

Plea Bargaining refers to the pre-trial negotiations in between the accused and the prosecution wherein the accused in return of pleading guilty is promised some concessions by the prosecution. It is based on the legal maxim, ‘Nolo Contedere’ which means “I do not wish to contend”. It is not available for serious/heinous crimes. In generic terms, it is a bargain in between the accused and the prosecution for a lesser charge in place of a more serious charge.

Even though the concept of plea bargaining was introduced in the statute book in 2006 but still it is not very common. However, it is quite common in US and is used as a tool to avoid long cumbersome trials for minor offences. 

The Concept of Plea Bargaining and the Criminal Procedure Code

The concept of plea bargaining was not mentioned in the Criminal Procedure Code since its inception. It was introduced in the year 2006 in order to reduce the burden of litigation on the courts. 

Plea bargaining was introduced in the Chapter XXI of the Criminal Procedure Code, containing provisions from Sections 265A to 265L. 

Types of Plea Bargaining

Plea bargaining is generally of 3 types. 

• Sentence Bargaining-

  In this type of bargaining, the accused tries to get a lesser sentence. The defendant in return of pleading guilty to the charge prays for a lesser sentence.

• Charge Bargaining-

  This is the most common type of plea bargaining. It is the kind of plea bargaining for getting less severe charges. In this case, the defendant agrees to plead guilty in return for a lesser severe charge.

• Fact Bargaining-

  This concept is generally not used as is against the criminal justice system. In this system, the accused agrees to some facts so that other alternate facts are not considered.

 

    Relevant Procedure for Plea Bargaining 

• The process of plea bargaining can be initiated by the accused if he is charged with an offence for which maximum punishment is 7 years.
•  Unlike US, where the prosecutor plays a major role and bargains with the offender, in India, on the other hand it is the accused who can initiate the plea-bargaining proceedings. 
• Section 265-K states that the statements or facts that are stated by the accused in an application for plea bargaining must not be used against him for any other purpose other than for the purpose of this Chapter.

 

• Application Stage 

The accuse may move an application to the concerned court with the details of its case, if it wishes to plead guilty, voluntarily under this concept. He must support his application with an affidavit declaring that-

1. The application is presented voluntarily. 
2. The accused understands the nature of the sentence. 
3. The accused has not been previously convicted for the same offence any time before. 

On receipt of Application– Once the court receives the application and affidavit from the accused, the concerned trial court issues a notice to the public prosecutor or the complainant as the case maybe and to the accused to appear before it on the stipulated date.

On the date fixed for appearance, the court examines the accused in camera and satisfies itself that the application was filed by him voluntarily and he is eligible to present such an application.

On Examination, if the court finds out that the application was not given by the accused voluntarily or if the accused was previously convicted for the same offence, then the court rejects the application and sends the case back for trial.

 

• Guidelines for Satisfactory Disposal of Cases Mutually 

The Section 265(c) of CrPC allows for mutually satisfactory disposition of cases-

• If a case is instituted under police report –

In such a scenario, the court issues notice to the Public Prosecutor, the investigating officer, the accused and the victim of the case to discuss and reach a satisfactory disposition of the case. The pleader of the accused may also be present in the discussion.

• If a case is instituted other than the police report 

In this case, both the accused and the victim are issued a notice to participate in a meeting to discuss satisfactory disposition of the case. The pleader of both the parties are also allowed to participate in the discussion. The court ensures that the disposition is carried out voluntarily.

 

• Bargaining/Negotiation Stage

When the court is satisfied by the fact that the accused is not previously convicted of the same offence before, he understands the nature of the offence and he is above the age of 18 years, then the court shall provide time to prosecutor/victim and the accused to work out a settlement and dispose off the case mutually. In this scenario, the court might also ask the accused to pay compensation to the victim or fix a date for future hearing.

The aid of an advocate may also be taken for the preparation of the report and negotiations.

1. Examination and Report 

After the receipt of the report, the court prepares its own report and takes the signature of all the members who had participated in the negotiation. If no such disposition is reached then the court records observations and proceeds further from the stage of the application. 

 

• Judgement Stage 

Where the satisfactory disposition of the case is reached-

• The court may award the compensation to the victim as was decided in the disposition and after hearing the parties on the punishment, the court may release the accused on probation of good conduct or after admonition under section 360. The court may deal with the accused under the Probation of Offenders Act, 1958,

• The court may award the sentence to the accused which is half of the minimum punishment provided under the law for the offence committed by the accused.
• If the minimum sentence is not provided under the law, the court may sentence the accused to one fourth of the punishment provided for the offence or as the case maybe. 

Finality of Judgement/ Bar on Appeal 

The judgement delivered under this provision is final. No appeal lies against it and only an SLP under Article 136 or a writ petition under Article 32 or 226 can be filed against the said judgment.

 What are the Exceptions to the concept of Plea Bargaining? 

• Plea Bargaining is available to an accused who is charged with an offence other than one punishable with sentence of death or life imprisonment.
• The accused can only initiate the proceedings for plea bargaining if he is charged with an offence punishable upto 7 years. 
• This concept is not applicable if a person is accused for the same offence more than once.
• The concept of plea bargaining does not apply in cases where a person is charged with an offence that affects the socio-economic condition of the country. The power to determine the socio-economic offences is with the central government. The central government has determined the socio-economic offences affecting the country vide Notification No. SO1042 (II) dated 11-7/2006. Some of these offences include Dowry Prohibition Act, 1961, The Commission of Sati Prevention Act, 1987, The Indecent Representation of Women (Prohibition) Act, 1986, The Immoral Traffic (Prevention) Act, 1956, The Protection of Women from Domestic Violence Act, 2005, The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992, etc. 
• This concept is also not applicable if the person has committed a crime against woman or against a child below the age of 14 years.
• As per section 265L of CrPC, this concept is not applicable on any juvenile or child as defined in the Juvenile Justice (Care and Protection of Children) Act, 2000.

Benefits of Plea Bargaining 

• Fast disposal of cases-

  The concept of plea-bargaining leads to a faster disposal of cases. it prevents from long trials and cumbersome litigation. It also helps in saving time and money.

• One is charged with a lesser offence on record-

  There is a social factor involved to the nature of crimes. If a person pleads guilty of a serious offence, it might also face the societal ramifications. Plea bargaining allows the accused to plead guilty in exchange for a lesser punishment which also saves from the wraths of the society.

• Hassle free approach –

  It takes around minimum 8-10 years for the disposal of a case. In some scenarios, the accused has served longer jail durations even more than the maximum punishment. In such cases, the concept of plea bargaining comes as a respite and can be effectively used.

• Avoidance of Publicity-

  The longer the duration of the case, the more publicity it attracts. The concept of plea bargaining allows for a faster disposal of the case and hence attracts lesser publicity. 

• Faster justice for the victim-

  The concept of plea bargaining allows for faster disposal of cases. In this way the victim gets faster justice than the court-based trial.

• Compensation to the Victim-

  The victim can get compensation at the discretion of the Magistrate.

• Lack of Uncertainty-

  It reduces the uncertainty in cases which in case of court-based trials ends only after the final disposal of cases. 

Conclusion 

The concept of plea bargaining is a lesser used but a lucrative concept for minor offences. It not only saves on time and money but also ensures speedier disposal of cases. Our experts at RCIC are well versed with the concept of plea-bargaining. They are not only an expert in the pre-trial negotiations but best-serve the client throughout the case. They evaluate each case based on the subject matter and help in providing the most-suitable, cost-effective and practical solution.