Search
  • Divah Sprik Law Notes

WHAT IS PLEA BARGAINING?










Published by: Aakansha Singh


INTRODUCTION

Plea bargaining is a process where the accused negotiate with the prosecution for a lessor punishment and agrees to plead guilty. It is a pretrial stage that allows the parties to reach into an agreement and dispose of their case mutually with the authority of law. Therefore it is an escape from a long-lasting trail. It is also known as the Doctrine of Nolo Contendere.


HISTORY OF PLEA BARGAINING

The concept of Plea bargaining evolved in the USA during the 19th century when courts were overloaded with cases because of the exhaustive criminal procedure and the procedure was not only lethargic but most expensive and time-consuming in the world. Therefore, the supreme court of America recognized the concept of plea bargaining and very soon, it became popular. Now, it is widely used in trial cases, and every minute a criminal case is disposed of by way of plea bargaining.


In India, plea bargaining has a recent origin when first time Law Commission of India suggested for Plea Bargainingin its 142nd and 154th reports. Later on, the MalimathCommittee on criminal justice reforms also recommended that plea bargaining must be introduced into the Indian legal system to facilitate the earlier disposal of criminal cases and to reduce the burden of the court. Therefore, by the Criminal Law (Amendment) Act, 2005, Chapter XXIA, inserted into CrPC to establish a system of plea bargaining in India.


OBJECTS OF PLEA BARGAINING

· To reduce the burden of courts.

· To decrees the number of under-trial prisoners.

· To provide compensation to the victim.

· And For the speedy disposal of criminal cases.


PROCEDURE OF PLEA BARGAINING

The procedure of plea bargaining is given in Chapter XXIA (Section 265A to 265L) of the Criminal Procedure Code, 2005.

1) Section 265-A says that the provisions of plea bargainingare not available where punishment can be:

· the death penalty,

· life imprisonment, or

· a prison term of seven years.


Further, the central government under section 265-A(2) notified that offenses relating to the socio-economic condition of the country shall also not eligible for plea bargaining e.g., rape domestic violence, etc. It is also not applicable in cases where the offense is committed against women or a child below the age of 14 years.

2) Section 265-B provides for the application of plea bargaining:

· An accused can apply to plea bargaining containing details of the case, facts, nature of the crime, accompanied by an affidavit saying that he has voluntarily filed the application and no one has forced for the same and he properly understood the nature and extent of the punishment of the offense and he has not previously been convicted for the same offense.


· Thereafter, the court will issue a notice to the public prosecutor, victim, and the accused of fixing a date for the plea bargaining.

· After fixing a date of hearing and the court will examine the accused whether the accused has applied voluntarily for plea bargaining.


3) Thereafter, the court may allow the prosecutor, the investigating officer, and the victim to hold a meeting for a “satisfactory disposition of the case” under section 265C.


4) And once mutual satisfaction is reached by the parties, the court will formalize the arrangement by way of a report signed by all the parties and the presiding officer under section 265-D. The Court may dispose of the case in the following manner.

· The court may award compensation to the victim under Section 265-D.

· The court may decide on the quantum of the punishment.

· The court may release the accused on probation of good conduct or after admonition under section 360 of the Code or under the provisions of the Prohibition of Offenders Act, 1958.

· The court may give a sentence the accused to half of the punishment.


5) Section 265-G states that judgments of plea bargaining shall be final and no appeal shall be allowed against such judgment/orders but special leave petition or writ petition can be filed under Article 136 and Article 226/227 respectively.


TYPES OF PLEA BARGAINING

There are three main types of Plea Bargaining namely;

1) Charge Bargain- The accused bargains against the charges he has framed with or for lessor charges.

2) Sentence Bargain- here, the accused bargains for lesser punishment by accepting his guilt.

3) Fact Bargain- This is generally not happened as it is considered against the criminal justice system. But in a few cases, it occurs when a defendant agrees to certain fact sof the case so that new facts must not be introduced later as evidence.


PROS/CONS OF PLEA BARGAINING

Advantages of plea bargaining:

· Plea bargaining ensures a speedy trial of criminal cases.

· It saves time and litigation cost of the parties.

· It also increases conviction rates.

· It reduces overcrowding of prisons in jails.

· It also reduces the burden of courts.

· It saves undertrials from a long imprisonment.

· It allows offenders to start a new life.

· It is friendly in nature as the procedure is pragmatic.

· It is helpful when there is no evidence.

· It encourages the accused to actively participate in plea bargaining process.


In the case of State Of Gujarat v. Natwar Harchandji Thakor[1], the Court recognized the importance of plea bargaining by taking into account the increasing problems in the criminal justice system, the Court said that the purpose of the lawmakers is to create such laws that help in providing easy and expeditious justice.


Drawbacks of plea bargaining:

· It is a threat to the victim’s right to a fair trial under Article 21 of the Constitution of India.

· Police may coerce to the accused as they are involved in the Plea Bargaining procedure.

· The accused will face great hardship to prove himself innocent by confessing his guilt.

· It violates the accused right against self-incrimination under Article 20(3) of the Constitution.

· There are chances of corruption in plea bargaining as victims and police both are part of plea bargaining.

· It is against the principles of criminal jurisprudence and public policy.

· There is a risk that the innocent may plead guilty.


In Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr[2]. the Supreme Court held that “the practice of plea bargaining is unconstitutional, illegal and could encourage corruption and collusion”. Similarly, in Kasambhai v. State of Gujarat[3], the Court expressed its apprehension on the concept of plea bargaining as in its view it was likely to be abused.


In the case of State of Uttar Pradesh v. Chandrika[4] the Apex Court disagreed with the concept of plea bargaining and held this practice as unconstitutional and illegal. The court said that “plea bargaining cannot basis for disposing of criminal cases. The case has to be decided on merit. And the accused must be punished as per law even though he confesses his guilt”.


SUGGESTIONS

· All hearings must take place in the court.

· The court must be assured that the accused is pleading guilty voluntarily.

· The Court must play an active part in disposing of the case rather than giving the liberty to the prosecution.


CONCLUSION

Though it has been vehemently criticized in India for violating some principles of the Indian constitution such as the right to fair trial, right against self-incrimination, it is need of an hour. Indian jails are overloaded with undertrials and there is huge pendency of criminal cases. Moreover, we cannot ignore its potential to improve litigation efficiency and to rationalize judicial resources. Therefore, we need to make the system more strong and transparent so that there can be a win-win situation for all the parties.


The High Court of Gujarat in this case of State of Gujarat v. Natwar Harchadi Thakur[5] observed that “the object of the law is to provide easy, cheap and expeditions 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. It will add a new dimension in the realm of judicial reforms”.

Footnotes:

[1] (2005) 1 GLR 709 [2]980 Cri 553 [3]1980 AIR 854) [4]2000 Cr.L.J. 384(386), [5](2005) 1 GLR 709




2020. All rights reserved - © DIVAHSPRIK LAWNOTES

THIS SITE IS DEVELOPED BY

  • Facebook
  • Twitter
  • YouTube