Plea bargaining is a pre-trial negotiation which can takes place before the start of judicial trial between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions/compromise by the prosecution. It is a bargain or better deal than getting convicted of the original charges where a defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious charges. It is not available for all types of crime e.g. a person cannot claim plea bargaining after committing serious crimes or for the crimes which are punishable with death or life imprisonment.
The famous saying “Justice delayed is justice denied” holds utmost significance when the concept of Plea bargaining is discussed. The number of cases pending in the courts is immense and at the same time the system has become lethargic which has been normalized by people. These figures are no more astonishing because people have started accepting this as their fate. The original aim and idea of justice to be delivered quickly has become a dream. The concept of plea bargaining was not there in criminal law since its inception. Considering this scenario, Indian Legal scholars and Jurists incorporated this concept in Indian Criminal Law. As the term itself suggests that it is an agreement between accused and the prosecutor. Many countries have accepted this concept in their Criminal Justice System (CJS).
The concept of plea bargaining was not indigenous or included from the beginning of the Indian legal framework. It was the result of the evolution after years of trying to deliver quick justice to the masses as the pending cases before the courts are immense and have been increasing every day.
Criminal Procedure Code and Plea Bargaining
Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases:
- Where the maximum punishment is imprisonment for 7 years;
- Where the offenses don’t affect the socio-economic condition of the country;
- When the offenses are not committed against a woman or a child below 14 are excluded
The 154th Report of the Law Commission was first to recommend that ‘plea bargaining’ to be introduced in Indian Criminal Justice System. It defined Plea Bargaining as an alternative method which should be introduced to deal with huge arrears of criminal cases in Indian courts.
Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country.
Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea bargaining in India. The following are provisions which it added:-
- Section 265-A (Application of Chapter) the plea bargaining can be availed by the accused who is charged with any offense other than offenses punishable with death or imprisonment or for life or of an imprisonment for a term exceeding to seven years. Section 265 A (2) of the Code gives the power to notify the offenses to the Central Government.
- Section 265-B (Application for Plea Bargaining)
- A person accused of an offense may file the application of plea bargaining in trial which are pending.
- The application for plea bargaining is to be filed by the accused containing brief details about the case relating to which such application is filed. It should include the a summary of offences to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily availed the application, the plea bargaining the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case that he has not previously been convicted by a court in a case in which he had been charged with the same offence.
- The court will thereafter issue the notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused of the date fixed for the plea bargaining.
- When the parties appear, the court shall examine the accused in-person wherein the other parties in the case shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.
- Section 265-C (Guidelines for Mutually satisfactory disposition) It lays down the procedure to be followed by the court in mutually satisfactory disposition. In a case instituted on a police report, the court shall issue the notice to the public prosecutor concerned, investigating officer of the case, and the victim of the case and the accused to participate in the meeting to work out a satisfactory disposition of the case. In a complaint case, the Court shall issue a notice to the accused and the victim of the case.
- Section 265-D (Report of the mutually satisfactory disposition) This provision talks about the preparation of the report of mutually satisfactory disposition and submission of the same.
- Section 265-E (Disposal of the case) prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. 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 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 offenses 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 offense.”
- Section 265-F (Judgment of the Court) talks about the pronouncement of judgment in terms of mutually satisfactory disposition.
- Section 265-G (Finality of Judgment) says that no appeal shall be against such judgment but Special Leave Petition (Article 136) or writ petition (under Article 226 or 227) can be filed.
- Section 265-H (Power of the Court in Plea Bargaining) it mentions the powers of the court in plea bargaining. These powers include powers in respect of bail, the trial of offenses and other matters relating to the disposal of a case in such court under Criminal Procedure Code.
- Section 265-I (Period of detention undergone by the accused to be set off against the sentence of imprisonment) says that Section 428 of CrPC is applicable for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this chapter.
- Section 265-J (Savings) mentions the provisions of the chapter which shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A
- Section 265-K (Statement of the accused to be used) specifies that the statements or facts stated by the accused in an application under section 265-B shall not be used for any other purpose except for the purpose as mentioned in the chapter.
- Section 265-L (Non-application of the chapter) makes it clear that this chapter will not be applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.
Many judicial pronouncements by Hon’ble Supreme court on plea bargaining have criticised the idea and in many judgements have labelled it as illegal and unconstitutional. It also said that it tends to corrupt and pollute the idea of criminal justice in India. However, it still prevails in India and is evolving. The amount of backlog of cases that the courts have pending and the pile has been increasing , with prevailing scenario of the system the method of plea bargaining has been helpful and has been exploited too. It should be closely monitored so that misuse is minimised and deserving persons get to avail it.