Articles

Article Title: PLEA BARGAINING THE NEED OF THE HOUR
Date of Article: January 1, 1970

PLEA BARGAINING – THE NEED OF THE HOUR

Yogesh Srinivasan

B.Com., LLB (HONS), III Year, School of Law, Sastra Deemed to be University – Thanjavur

ABSTRACT

In recent years, Plea Bargaining has been emanating to provide a cheap and an expeditious trial. The concept ‘Plea Bargaining’, has been introduced in the Criminal Procedure Code through the Criminal Law (Amendment) Act, 2005 in Chapter XXIA, which was passed in the winter session by the parliament. The aspect mainly examined the arrears of cases in all the courts. To date, there are more than 2.5crores cases pending wherein over 2/3rd of them are criminal cases. There is an urgent need for speedy disposal of cases and legal processes and procedural matters to put an end to all the pending cases. It is a well-known fact that "Justice delayed is Justice denied". Article 21 of the Indian Constitution clearly states that "No person shall be deprived of his life or personal liberty, except according to the procedure established by law." The courts in various cases have held that right to life under Article 21 includes right to speedy trial, only through which right to life can be attained. The implementation of Plea Bargaining faced a lot of shortcomings initially, but its working proved to be beneficial for both the parties, ending the undue delay caused in litigations. The aspect to be looked into is, whether this principle will have the desired effect in the Indian Judiciary? The author of this research article would be critically analysing the concept of Plea Bargaining, its necessity, drawbacks and would be finding out the feasibility of the idea.

INTRODUCTION

“Plea-bargaining is the process where, the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case, subject to court approval. It usually involves the defendants pleading guilty to a lesser offence, as to only one or some of the courts of a multi-count indictment in return for a lighter sentence than that possible for the grave charge (Black’s Law Dictionary). In other words, the defendant exchanges something that is uncertain (acquittal at trial) for something that is certain(reduced punishment for the offence).Hence, Plea Bargaining can be defined as pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions provided by the prosecution. This concept of plea bargaining is based on the principle “Nolo Contendere”, which in Latin means “I do not wish to Contest”. Plea Bargaining acts as a contract. There is an offer for reduced punishment and there is acceptance from the accused.

TYPES OF PLEA BARGAINING

Charge Bargaining

This happens when the prosecution allows a defendant to plead guilty to a lesser charge or only for some of the charges framed against him. It gives the accused an opportunity to negotiate with the prosecution and reduce the number and gravity of charges that have been framed against him. For example, a defendant charged with burglary may be offered the opportunity to plead guilty to 'attempted burglary'.

A charge bargaining is of two types:

i)     Multiple Charge Bargaining: Some charges are dropped for pleading guilty.

ii)   Unique Charge Bargaining: Serious charge is dropped for pleading guilty. 

Fact Bargaining

This is the least used negotiation which involves an admission to certain facts (stipulating to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to prove them) in return for an agreement not to introduce certain other facts as evidence.

Sentence Bargaining

This takes place when an accused is told in advance what his sentence will be if help leads guilty. This can help a prosecutor obtain a conviction if, for example, a defendant is facing serious charges and is afraid of being hit with the 'maximum' sentence

This concept has been successfully implemented in the western countries such as USA, Canada, England, Pakistan, Brazil, China, Denmark and Estonia. 97% of the federal cases and 94% of the state cases have been solved using this concept in the above-mentioned western countries. Unfortunately, it has been not successful in India. However, efforts are being made to make it successful in India. The concept of plea-bargaining benefits both the State and the accused. As the parties involved come to consensus, the burden on the courts is reduced, and this is naturally preferred by all the parties as a punishment with a lesser magnitude will be provided to the accused.

IMPLEMENTATION

The Malimath Committee headed by Justice V.S. Malimath had submitted a report to the Ministry of Home Affairs in 2003, recommending the introduction of plea bargaining into the Indian Criminal Justice system to facilitate expeditious solutions to the pending criminal cases and to reduce the burden of the courts. This was recommended in the 154^th law commission report. The same was not taken into consideration by the government in the Code of Criminal Procedure. Later, this was supported in the 177^th law commission report in 2001 which stated the importance of including the method in Criminal Law.

Different views were upheld by the courts for implementing Plea Bargaining.  The views were contrasting. In the cases, Uttar Pradesh Vs Chandrika (2000 AIR(SC) 164) and Kasambhai Abdulreh Manbhai Sheikh and Ors Vs State of Gujarat and Ors (1980 AIR(SC) 854), the apex court held that- “it is a well 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 and hence the sentence be reduced.”

On the contrary, the case State of Gujarat Vs Natwar Harchanji Thakur (2005 CriLJ 2957), recognised the efficacy of the method wherein it was held that the very object of the law is to provide easy and immediate decisions in order to uphold justice by resolving disputes and to provide fundamental reforms for the escalating trial of criminal cases, pendency of cases and delay in disposal of the administration of law and justice. Hence the concept of plea bargaining was looked upon as an alternative atonement to deal with huge delays in the disposal of the criminal cases.

After intellectual discussions, the concept of Plea Bargaining was brought to light. It deals with section 265A to 265L of the Code of Criminal Procedure. It was later enacted on July 5, 2006.

Plea bargaining deals with sections 265A to 265L. This works like a flow chart as:

1.   Section 265A talks about the application of the chapter, i.e. the offences for which the concept is applicable.

2.   Section265B speaks about the procedure through which, an application for plea bargaining is filed. The accused submits a sworn affidavit stating that he has voluntarily filed the application. The accused is then examined in-camera at which point, the other parties involved will not be present. The prosecutor has to strictly adhere to the court’s instructions by opening the case only with the charge and stating through what evidence, he is going to propose the charge (Abu Tayeb, Chairman Vs. Respondent: The Security Exchange Commission and anr., 1999 19 BLD 603).

  3. Section 265C  deals with the instructions given by the courts to the prosecutor to mutually dispose of the case. This also talks about the guidelines laid down by the courts as to how a mutually satisfactory disposition has to take place.

  4. Section 265D  talks about the report that has to be submitted by the court in case such a disposition has taken place and if not, has to record the observations and proceed with the provisions as specified.

   5. Section 256E  prescribes the procedure to be followed out when a satisfactory disposition has been worked out

  6. Section 265F deals with all the deliverance of a judgement after working out a satisfactory disposition.

  7. Section 265G  says that no appeal is allowed against a judgement, which has been passed after fulfilling the above conditions.

   8. Section 265H talks about the powers of the court in plea bargaining.

  9. Section 265I specifies that section 428 of the said act is only applicable to the sentence awarded on plea bargaining.

 10. Section 265J it specifies that plea bargaining shall not have effect when anything is inconsistent with the provisions of the code.

  11. Section 265K says that the statements or the facts specified by the accused in an application for plea bargaining will only be used for the purpose mentioned in this chapter.1

  12.  Section 265L makes the chapter not applicable to any juvenile or a child (Juvenile Justice(Care and Protection) Act, 2015).

Chapter XXIA of Code of Criminal Procedure, 1973 is not applicable to the following acts:

-          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.

-        Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).

         Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955).

           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.

           The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

           Offences mentioned in the Protection of Civil Rights Act, 1955.

           Offences listed under Section 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

           The Army Act, 1950.

           The Air Force Act, 1950.

           The Navy Act, 1957.

           Offences specified under Section 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.

           The Explosives Act, 1884.

           Offences specified in Section11 to 18 of the Cable Television Networks (Regulation) Act, 1995.

           The Cinematograph Act, 1952.

The abovementioned acts are exempted from chapter XXI of CrPc, because these acts govern offences which affect the socio-economic conditions of the country. If an act affects the socio-economic condition of the country, it is not said to be governed under the chapter of plea bargaining.

The salient features mentioned below reinforces our thoughts on why the above acts have been omitted from the chapter.

1. This principle is applicable only to those offences which have a punishment for a period of 7 years. It is not applicable, if the offence so committed is a socio-economic offence or if the offence committed is against a woman or a child below the age of 14 years.

2. Plea bargaining is attracted only when the accused files a complaint voluntarily and time is given for the parties to make a mutual satisfactory disposition of the case.

3. The judgement given by a court for plea bargaining cannot be appealed elsewhere.

4. Reduces the burden on courts.

The Committee on Reforms of Criminal Justice System, 2003 recommended giving a role to the victim in negotiation leading to the settlement of cases either in the presence of courts, LokAdalats or plea-bargaining. Every new enactment always has its own oppositions.

The arguments against plea-bargaining are focused on three broad aspects. The first aspect is focused on the procedural fairness for individual defendants, the second aspect is pivoted to the unfairness in the results and the third aspect deals with the failure to comply with social interest in a rational manner.

The most criticised part of the concept of plea-bargaining is the supposed coerciveness involved in the process. It is considered as threats by the legal officials to force the defendants to plead guilty.

In the West Memphis Three (2010 Ark. 417) case, three teenagers were convicted in 1994 of the murder of a boy. In 2007, citing new forensic evidence the case was re-opened. The DNA on the murder weapon did not match any of the three convicted. It matched the step-father of the murdered boy. In addition, the teeth marks on the head of the victim did not match any of the three convicted. The prosecutor, wary of not being able to prove their guilt again, offered them a deal. If they entered a plea of guilty, they would be immediately freed. However, if they did not, the prosecutor would proceed against them a second time. Already having served 18 years in prison, all three entered a plea of guilty. They were freed but will suffer through the ignominy of having pled guilty of a murder they probably did not commit. The involvement of judges becomes limited and there isn’t any medium to analyse if the victim’s wishes have been adhered to. There is always the possibility of the victim’s constitutional right being violated.

Plea bargaining reduces the punishment for an offence committed in return for the person pleading guilty. In some cases, the person may be actually guilty for committing a crime. If he applies for plea bargaining, then his sentence will be reduced, even if the offence committed by him involves a punishment of a higher magnitude. This instils a sense of unfairness of results in the minds of people.

Due to coercion there is the possibility of a mutual disposition. However, this is not applicable to habitual offenders. An offence of a very high magnitude has to be punished compulsorily and through a fair trial. Unfortunately, without the involvement of courts and the judges presiding over the courts such trials are not possible. As a result, the aggrieved may not get the required justice.

Plea-bargaining includes the involvement of police officials which may lead to coercion on the innocent people. The concept may legalise crime to an extent. In a situation, where the Plea-bargaining application of the accused is rejected, then he or she might have to face great tribulation to prove themselves innocent. In MurlidharMeghrajLoya Vs State of Maharashtra (1976 AIR(SC) 1929), the Indian Supreme Court did not encourage the concept of plea bargaining as they believed that it was a form of formal inducement. Therefore, the power in the hands of the prosecutor to even offer such inducements to the defendant ensures that he is the stronger party in the negotiations that eventually lead to the deal. Such power will lead to corruption, collusion and pollution of justice.

The author would like to conclude by stating that Plea-bargaining is undoubtedly, a debated concept adopted by very few. The inference that can be drawn is that the accused, who undertakes the remedy of Plea-bargaining, gets the required compensation and also has the advantage of by passing the time-taking judicial process. The costs involved in such a process is very less and is hence preferred. No doubt Plea-bargaining reduces the multifaceted problems overburdening the courts, but it is done in an unconstitutional manner. Hence, this concept has to be adopted to provide immediate remedies. This technique is the need of the hour’. The successful implementation of plea bargaining is possible only if it is looked at from a pragmatic view. Various committees and institutions such as Nani-Palkhivala Arbitration Centre (NPAC), LokAdalat, Delhi Dispute Resolution Society, Fordham Law School’s Dispute Resolution Program, etc. have been set up in order to regulate such proceedings. There is a high possibility of reduction in crime rates and conviction rates which would drastically change the process of the legal system with the implementation of Plea bargaining.