Plea bargaining in India

Introduction:

A new chapter – Chapter XXI A – on ‘plea bargaining’ has been inserted in the Criminal Procedure Code (1973) to remove this quotation up to a certain limit. A notification to bring into effect the new provision has been issued and it has come into effect now.

The system was introduced as a result of criminal law reforms introduced in the Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). Section 4 of the Amendment Act introduced Chapter XXIA to the Code having Sections 265 A to 265 L. Though the Act was passed in 11th January, 2006, the provisions were notified and came into effect from 5th July, 2006 only.

Applicability of Plea Bargaining:

In INDIA, Plea Bargaining was introduced in the Criminal Procedure Code through Chapter XXIA by Criminal Law (Amendment) Act i.e. Act 2 of 2006 containing Section 265A to 265L. Under Section 265A of the Code. Plea bargaining is not applicable for the offences for which punishment is life imprisonment or death sentence. . The other is, if the Magistrate has taken cognizance of an offence on a complaint under Section190 (a) followed by examination of a Complainant and witness under Section 200 or Section 202 and issuance of process under Section 204. Thus, it means, after commencement of proceedings upon a private complaint under Section 190 (a) of the Code. .

The other is, if the Magistrate has taken cognizance of an offence on a complaint under Section190 (a) followed by examination of a Complainant and witness under Section 200 or Section 202 and issuance of process under Section 204. Thus, it means, after commencement of proceedings upon a private complaint under Section 190 (a) of the Code. However, if the Accused is involved in an offence, which is punishable to death, life imprisonment or of imprisonment more than seven years, benefit cannot be extended.[i]

Procedure:

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious charges.

As per Section 265 B, the process of plea bargaining starts with an application from Accused. The application is to be filed before the Trial Court only. The application must be in writing, with brief description of facts of the case supported with an affidavit sworn by the Accused affirming the genuineness of application as voluntarily submitted. Section 265 A (2) of the Code gives power to notify the offences to the Central Government. The Central Government issued Notification No. SO 1042 (II) dated 11th July, 2006 enumerating the offences. with details of previous conviction of the Accused. Upon receipt of application, the Trial Court has to issue notice to prosecution, either to public prosecutor or to Complainant in Section 190 (a) cases and also to the Accused intimating the date of hearing of application. . While appearing before the Court, after receipt of notice from the Court, the examination of the Accused shall be done in-camera, avoiding the presence of other parties. It is specifically required so, to ensure the genuineness and authority of application. Before proceeding further, the Court has to ensure that the application is made voluntarily by the Accused. 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 from the stage, wherein the application is entertained by the Court.

After examination of the Accused, if the Court feels the eligibility of the Accused for plea bargaining, then proceed further for a settlement, giving time to prosecution and Accused to work out a mutually satisfactory disposition of the case. Such a mutually satisfactory disposition includes awarding of compensation and other charges and legal expenses to the victim. There must be a notice to Public Prosecutor (defined under Section 2(u) and explained in Section 25 of the Code), Investigation Officer of the case, victim or defacto Complainant and to the Accused, in cases instituted upon police report, to work out the solution in a joint meeting of the parties. In cases instituted otherwise than a police report, there shall be notice to the Accused and the Complainant/victim to participate in the joint meeting. The Accused can participate with his Lawyer in the meeting. That means the actual presence of the Accused is required irrespective of a representation through the Lawyer. Apart from that, the Court shall ensure that every actions of the parties during the meeting is voluntarily made and without any vitiating or coercive elements. That means the presence of the Judicial Officer is necessary, during the process of joint meeting. Under Section 265 D, the Court has to prepare a report, if a mutual satisfactory disposition of the case has been worked out and such report shall be signed by the presiding officer of the Court and the parties in the Joint Meeting. If no satisfactory disposition is made out, the Court has to proceed with the case, by dropping the proceedings in plea bargain and start the proceedings from the stage, wherein the application is entertained.[ii]

Plea Bargaining and Judicial Pronouncements:

In Murlidhar Meghraj Loya vs State of Maharashtra (AIR 1976 SC 1929), The Hon’ble Supreme Court criticized the concept of Plea Bargaining and said that it intrudes upon the society’s interests.

In Kasambhai vs State of Gujarat (1980 AIR 854) & Kachhia Patel Shantilal Koderlal vs State of Gujarat and Anr, the Apex court said that the Plea Bargaining is against public policy. Moreover, it regretted the fact that the magistrate accepted the plea bargaining of accused. Furthermore, Hon’ble Court described this concept as a highly reprehensible practice.

The Court also held that practice of plea bargaining as illegal and unconstitutional and tends to encourage the corruption, collusion and pollute the pure fount of justice.

Thippaswamy vs State of Karnataka, [1983] 1 SCC 194, the Court said that inducing or leading an accused to plead guilty under a promise or assurance would be violative of Article 21 of the Constitution.

The Court also stated that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes defend himself against the charge and if he is found guilty, proper sentence can be passed against him”.

In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J. 384(386),[iii] the Apex Court disparaged the concept of plea bargaining and held this practice as unconstitutional and illegal. Here the Hon’ble Court was of the view that on the plea bargaining Court cannot basis of disposing of criminal cases. The case has to be decided on the merit. In furtherance of the same, court said that if the accused confesses his guilt, he must be given the appropriate sentence as required by the law.

In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709,[iv] the Court acknowledged the importance of plea bargaining and said that every “plea of guilty” which is construed to be a part of the statutory process in the criminal trial, should not be understood as a “plea bargaining” ipso facto. It is a matter of matter and has to be decided on a case to case basis. Considering the dynamic nature of law and society, the court said that the very object of the law is to provide an easy, cheap and expeditious justice by resolving disputes.

Disposal of Case on the Basis of Report:

After completion of proceedings under Section 265 D, by preparing a report signed by the presiding officer of the Court and parties in the meeting, the Court has to hear the parties on the quantum of the punishment or Accused’s entitlement of release on probation of good conduct or after admonition. Court can either release the Accused on probation under the provisions of Section 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force, or punish the Accused, passing the sentence. While punishing the Accused, the Court, at its discretion, can pass sentence of minimum punishment, if the law provides such minimum punishment for the offences committed by the Accused or if such minimum punishment is not provided, can pass a sentence of one-fourth of the punishment provided for such offence[v]. Apart from this, in cases of release or punishment, if a report is prepared under Section 265 D, report on mutually satisfactory disposition, contains provision of granting the compensation to the victim the Court also has to pass directions to pay such compensation to the victim. The Court has to pronounce the Judgment, under Section 265 F, in terms of its findings under Section 265 D, either releasing the Accused or punishing the Accused. The Judgment passed under Section265 F is final and no appeal will lie against such Judgment under Chapter XXIX of the Code. [vi]However, such Judgments are subject to challenge under Articles 226 and 227 of the Constitution before the High Court by filing Writ Petition and Article 136 of the Constitution before the Supreme Court by filing special leave petition. A Court, while proceeding with an application of plea bargaining has all the powers invested with a Court, under the provisions of the Criminal Procedure Code in respect of granting and rejecting bail, trial of offences and other general matters relating to disposal of case, particularly under provisions in Chapter XXIV of the Code. An Accused, while disposal of his application under plea bargaining, is entitled for setting off the period of detention from the sentence of imprisonment imposed under Section265E. He is entitled to a set off the period of detention, he had already undergone in the same case, during the investigation, inquiry or trial, but before the date of conviction, in compliance of the provisions of Section 428 only. This provision enables early release of undertrial prisoners, who are the real victims of our delayed judicial process.

Thus, the provisions of Chapter XXIA extends the scheme of plea bargaining in the Indian Criminal Jurisprudence, to a limited extend only, by giving discretion to the Court, restricting excess power to the prosecution, as seen from International jurisprudence, by giving sufficient measures to prevent the abuse of process. Though Section 265C does not state about the nature of bargaining, it is a consolidation of Charge, Sentence and Fact plea-bargaining, as the provision says about the mutual satisfactory disposition, which has wider connotation to canvass the characteristics of these kinds of plea bargaining.

View of Supreme Court Prior to the Legislation In India, the concept of Plea Bargaining was not recognized by courts and it was considered to be against the public policy. In Murlidhar Meghraj Loya v. State of Maharashtra[vii]; AIR 1976 SC 1929, the court held that- “It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society’s interests by opposing society’s decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.” In this case, the Supreme Court observed that a streamlined procedure should be devised if the state was to administer justice by having recourse to plea bargaining. In Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat; (1980) 3 SCC 120, the court held that- “the practice of Plea Bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice.” In Uttar Pradesh v. Chandrika; AIR 2000 SC 164,[viii] the court held that- “it is settled law that on the basis of plea bargaining Court cannot dispose of the criminal cases. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced.” Keeping in view the huge arrears and inordinate delays in disposal of criminal cases and on the recommendations of the Malimath Committee, a new chapter XXI-A of Plea Bargaining has been added to the Code of Criminal Procedure.

Scope of Plea Bargaining in India:

It benefits both the State and the accused under the scheme of Plea Bargaining. If an eligible accused admits his guilt voluntarily, the court may release him on probation or award lesser punishment than prescribed. This way the accused saves time and money both. Application of the Chapter “Plea Bargaining”[ix] The provisions of Plea Bargaining are not applicable in the following cases:- • The offence in which the maximum sentence is above 7 years. • The offence which has been committed against a woman or a child below 14 years of age. • Where the accused has been previously convicted for the same offence. • Offence which affects the socio-economic condition of the country. The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of section 265A, namely,- (i) Dowry Prohibition Act, 1961. (ii) The Commission of Sati Prevention Act, 1987. (iii) The Indecent Representation of Women (Prohibition) Act, 1986 (iv) The Immoral Traffic (Prevention) Act, 1956. (v) The Protection of Women from Domestic Violence Act, 2005 (vi) The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992. (vii) Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955). (viii) Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955). (ix) Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of Page 3 boundaries of protected areas under the Wildlife (Protection) Act, 1972. (x) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. (xi) Offences mentioned in the Protection of Civil Rights Act, 1955. (xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000. (xiii) The Army Act, 1950. (xiv) The Air Force Act, 1950. (xv) The Navy Act, 1957. (xvi) Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002. (xvii) The Explosives Act, 1884. (xviii) Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995. (xix) The Cinematograph Act, 1952.

The provisions of Plea Bargaining are not applicable in the following cases:- • The offence in which the maximum sentence is above 7 years. • The offence which has been committed against a woman or a child below 14 years of age. • Where the accused has been previously convicted for the same offence. • Offence which affects the socio-economic condition of the country. The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of section 265A, namely,- (i) Dowry Prohibition Act, 1961. (ii) The Commission of Sati Prevention Act, 1987. (iii) The Indecent Representation of Women (Prohibition) Act, 1986 (iv) The Immoral Traffic (Prevention) Act, 1956. (v) The Protection of Women from Domestic Violence Act, 2005 (vi) The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992. (vii) Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955). (viii) Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955). (ix) Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of Page 3 boundaries of protected areas under the Wildlife (Protection) Act, 1972. (x) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. (xi) Offences mentioned in the Protection of Civil Rights Act, 1955. (xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000. (xiii) The Army Act, 1950. (xiv) The Air Force Act, 1950. (xv) The Navy Act, 1957. (xvi) Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002. (xvii) The Explosives Act, 1884. (xviii) Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995. (xix) The Cinematograph Act, 1952.

Conclusion:

The concept of plea bargaining is not entirely new in India. Indian has already recognized it when it got its constitution in 1950. Article 20(3) of Indian constitution prohibits self-incrimination. People accuse plea bargaining of violation of the said article. But with the passage of time the considering the encumbrance on the courts, the Indian court has felt the need of Plea bargaining in Indian legal system. When a change is brought it is hard to accept it initially but society needs to grow so is our legal system. Everything has advantages and disadvantages and both have to be analyzed in order reach a sound conclusion.

The Doctrine of Nolo Contendere or Plea Bargaining has been introduced by Criminal Law Amendment Act, 2005. A new Chapter XXI A on Plea Bargaining was introduced in the Criminal Procedure Code, 1973. The term Plea Bargaining can be defined as pre-trial negotiations between the accused and the prosecution where the accused pleads guilty in exchange for certain concessions by the prosecution. The twin object of plea bargaining is to reduce the delay involved in criminal trial and to punish the accused with a lesser sentence for pleading his guilt.

[i] PRASANTI;IPLEADER.IN.23.01.2021;11.AM

[ii] LEGALSERVICE.IN;PLEA BARGAININGING IN INDIA RELAVANCE;23.01.2021;11.30AM

[iii]CRLREVIEW.IN.PLEA BARGAINING IN THE CRIMINAL LAW;23.01.2021;11:35AM

[iv] INDIANKANOON.ORG.CASE STUDY;23.01.2021;11:38AM

[v] LEGISLATIVE.GOV.IN.PLEA BARGAINING;23.01.2021;11:48AM

[vi] LEGALSERVICEINDIA.COM.LEGAL.ARTICLE453;23.01.2021AM

[vii] INDIANKANOON.ORG.CASE STUDY;23.01.2021;11:53AM

[viii] JOURNALS.INDEXCOPERNICUS.COM;23.01.2021;11:59AM

[ix] JCIL.LSYNDICATE.COM.2020;23.01.2021;12:10PM

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