Meaning of Plea Bargaining
It is the practice of negotiating an agreement between the prosecution and the defense whereby the defendant pleads guilty to a lesser offense or (in the case of multiple offenses) to one or more of the offenses charged in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges. Plea bargains are not always easy to recognize. Negotiations that result in formal agreements are termed “explicit plea bargains.” However, some plea bargains are called “implicit plea bargains” because they involve no guarantee of leniency. This is a deal where a defendant pleads guilty to a lesser charge and in return the prosecution drops a more serious charge. It is not available for all types of crime e.g. No person can claim for the plea bargaining after committing heinous crimes or for offenses which are punishable with death or life imprisonment.
History of Plea Bargaining
In the jury system, the need to plea bargaining was not felt as there was no legal representation. Later, in 1960 legal representation was allowed and the need for Plea bargaining was felt. However, the concept of Plea bargaining has traces of its origins in American legal history. This concept has been used since the 19th century. The judges used this bargaining to encourage confession.
Plea Bargaining in India
Plea Bargaining is not an indigenous concept of the Indian legal system. It is a part of the recent development of the Indian Criminal Justice System (ICJS). It was included in the Indian criminal justice system in view of the burden of long running cases on the judiciary.
Criminal Procedure Code and Plea Bargaining
Sections 265A to 265L, Chapter XXIA of the Code of Criminal Procedure, relate to the concept of plea bargaining. It was inserted in the Criminal Law (Amendment) Act, 2005.
This allows arguments for cases:
- Where the maximum sentence is 7 years imprisonment;
- Where crimes do not affect the socio-economic status of the country;
- When offenses are not committed against a woman or child under 14 years of age.
The 154th report of the Law Commission was the first to recommend ‘plea bargaining’ in the Indian criminal justice system. It defined plea bargaining as an alternative method that should be introduced in Indian courts to deal with the heavy arrears of criminal cases.
Then under the NDA government, a committee was formed, headed by former Chief Justice of Karnataka and Kerala High Courts, Justice vs. Malimath to deal with the increasing number of criminal cases. The Malimath Committee recommended for a plea bargaining system in India.
The committee said that this would facilitate speedy disposal of criminal cases and reduce the burden of courts. In addition, the Malimath Committee pointed to the success of the debate system in the United States to demonstrate the importance of plea bargaining in the United States.
Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was tabled in Parliament and finally became an Indian law in force from 5 July 2006. It sought the process of amending the Indian Penal Code 1860 (IPC, Criminal Code), 1973 (CRPC) and the Indian Evidence Act, 1892 to reform the existing criminal justice system in the country, which is based on the plethora of criminal cases and overabundant delay in disposal of cases on the one hand and very low rates of conviction of cases include serious offenses on the other.
The Criminal Law (Amendment) Bill, 2003 focuses on the major issues of the criminal justice system: –
- Hostile witness
- Plea bargaining
- Section 498A, IPC (Cruelty against husband or relative of woman’s husband and subjecting to cruelty).
- Evidence of scientific experts in matters relating to counterfeit notes.
Finally, it introduced Chapter XXIA from Sections 265A to 265L and brought the concept of plea to India. The following provisions are what it added: –
- Section 265 (A) (Chapter’s application) – shall be available to the accused in the petition for any offense other than an offense punishable with death or for life imprisonment or imprisonment for up to seven years. Section 265 A (2) of the Code empowers the Central Government to notify offenses. The Central Government issued notification number SO1042 (II) dated 11-7 / 2006 specifying the offenses affecting the socio-economic status of the country.
- Section 265 (B) (Application for Plea Bargaining) –
- A person accused of a crime, can file an application of plea bargaining in trials which are pending.
- The application for plea bargaining is to be filed by the accused with a brief description of the case in which such application has been filed. It covers the offenses to which the case relates and shall be accompanied by an affidavit by the accused stating that he has voluntarily preferred the application, pleading the nature and extent of the punishment provided under the law for the offense. And plea bargaining in his case that he has not previously been convicted by a court in a case in which he was charged with the same crime.
- The court can then issue notice to the concerned public prosecutor, the investigating officer of the case, the victim of the case and the accused on the date fixed for the plea bargaining.
- When the parties appear, the court will see the accused in-camera with no other parties to the case present, with the purpose to satisfy them that the accused has voluntarily filed an application.
- Section 265 (C) (Guidelines for Mutually satisfactory disposition) – this completes the procedure followed by the court in a mutually satisfactory nature. In a case levied on the police report, the court will issue notice to the concerned public prosecutor, the investigating officer of the case, and notice to the victim and accused of the case to attend the meeting to satisfactorily settle the case. In case of a complaint, the court will issue notice to the accused and the victim of the case.
- Section 265 (D) (Report of mutually satisfactory dispute) – This provision talks about preparing a mutually satisfactory dispute report and submitting the same. Two conditions may arise here:
- If at a meeting under section 265-C, satisfactory disposal 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 attending the meeting.
- If no such disposition is made, the court shall record such observation and proceed in accordance with the provisions of this code, in such a case, filed an application in the case under sub-section (1) of section 265-B.
- Section 265 (E) (Settlement of Case) – prescribes the procedure to be followed in disposal of cases when the matter is satisfactorily disposed of. After completion of proceedings under Section 265-D, by preparing a report signed by the presiding officer and the parties to the court, the court has to hear the accused on the quantum of sentence or the right of release on charges of good conduct or after admonition. The court can either release the accused or force the accused under the provisions of Section 360 of the Code or under the Criminal Probation Act, 1958 or under any other legal provisions. While punishing the accused, the court may, at its discretion, pass a minimum sentence of punishment, if the law provides for such minimum punishment for offenses committed by the accused or if such minimum punishment is not provided, one-fourth. May pass sentence of Punishment awarded for such a crime.
- Section 265 (F) (Judgment of Court) – talks about declaration of judgment in the context of a mutually satisfactory disposition.
- Section 265 (G) (finality of decision) – states that there will be no appeal against such decision but a special leave petition (Article 136) or writ petition (under Article 226 or 227) can be filed.
- Section 265 (H) (Power of Court for Plea Bargaining) – talks about the powers of the court. These powers include powers in relation to bail, hearing of offenses and other matters relating to disposal of a case in such court under the Criminal Procedure Code.
- Section 265 (I) (the period of detention by the accused against the sentence of imprisonment) – states that section 428 of the CrPC applies to the period of detention by the accused against the imprisonment imposed under this chapter.
- Section 265 (J) (Savings) – talks about the provisions of the Chapter, which shall have the effect of anything inconsistent contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain any provision of Chapter XXI-A.
- Section 265 (K) (statement of accused used) – specifies that statements or facts made by the accused in an application under section 265-B shall not be used for any purpose other than the purpose mentioned in the chapter.
- Section 265 (L) (Non-Application of Chapter) – makes it clear that this chapter shall not apply in the case of a juvenile or child as defined in Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Types of Plea bargain
There are generally three types:
- Sentence bargain; Sentence bargaining involves assurances of lighter or alternative sentences in return for a defendant’s pleading guilty. One of the most visible forms of sentence bargaining occurs when defendants plead guilty to murder in order to avoid the death penalty. Sentence bargains also occur in less-serious cases, such as pleading guilty to a charge in exchange for a sentence of “time served,” which generally means that the defendant will be immediately released.
- Charge bargaining; In charge bargaining, the defendant agrees to plead guilty to reduced charges (e.g., aggravated assault rather than attempted murder).
- Count bargaining; in which defendants who face multiple charges may be allowed to plead guilty to fewer counts. The charges need not be identical: the prosecutor may drop any charge or charges in exchange for a guilty plea on the remaining charges
The Hon’ble Supreme Court criticized the concept of Plea bargaining and said that it violates the interests of society.
- Kasambhai vs. State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal Koderlal vs. State of Gujarat and Anr
The apex court said that plea bargaining is against public policy. Further, it is regretted by the fact that the magistrate accepted the plea bargaining of the accused. Further, the Honorable Court termed this concept as a highly condemnable practice.
The court also said that the plea bargaining was illegal and unconstitutional and tried to encourage corruption, collusion and pollute the pure fountain of justice.
The apex court rejected the concept of plea bargaining and considered the practice unconstitutional and illegal. Here the opinion of the Hon’ble Court was that the Court could not become the basis for the disposal of criminal cases on arguments. The case is to be decided on the basis of merit. Further, the court said that if the accused confesses his crime, he should be given appropriate punishment as per law.
The court acknowledged the importance of plea bargaining and held that every “plea of guilty” that is considered a part of the statutory process in a criminal trial should not be construed as “plea bargaining”. It is a matter and has to be decided on case to case basis. Considering the dynamic nature of law and society, the court stated that the very purpose of law is to provide an easy, cheap and speedy justice by resolving disputes.