Black’s law dictionary defines it as:
“The process whereby 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 accused pleading guilty to a lesser offence or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”
From the point of view of the accused, it means that he trades conviction and a lesser sentence, for a long, expensive and tortuous process of undergoing trial where he may be convicted. In practice, it represents not so much of ‘mutual satisfaction’ as perhaps ‘mutual acknowledgement’ of the strength or weakness of both the charges and the defences, against a backdrop of crowded universal courts.
Historical background of plea bargaining:
The United States of America has a long history of the practice of ‘plea bargain’ and there are numerous cases wherein this concept has been discussed and interpreted. However, it would be wrong to assume that the concept of “Plea Bargaining’ found favour of courts only in recent past. In fact, it is used in the American.
Judiciary in the 19th century itself. The bill of rights makes no mention of the practice when establishing the fair trial principles in the sixth amendment but the constitutionality of plea bargaining had constantly been upheld there. In the Year 1969, James Earl Ray pleaded guilty to assassinating Martin Luther King Jr. to avoid execution sentence. He finally got imprisonment of 99 years.
Plea bargaining, pursued with the aim of reducing caseload is something that has been immensely successful in the United States of America, so much so that it has become a norm rather than the exception. It is now an important part of the criminal justice system in America and the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial.
In a landmark judgment, Borden Kircher v Hayes the US Supreme court held that the constitutional rationale for plea bargaining is that no element of punishment or retaliation. So long as the accused is free to accept or reject the prosecution offer In Santobello v New York, the United States Supreme Court formally accepted that plea bargaining was essential for the administration of justice and when properly managed, was to be encouraged.
In countries such as England and Wales, Victoria, Australia, plea bargaining is allowed only to the extent that the prosecutors and the defence can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder. The European Countries are also slowly legitimizing the concept of plea bargaining, though the Scandinavian countries largely maintain the prohibition against the practice.
Enthused by the success of plea bargaining in the United States, India has made several attempts to introduce a similar formula. To reduce the delay in disposing of criminal cases, the 154th Report of the law commission, first recommended the introduction of ‘Plea bargaining’ as an alternative method to deal with huge arrears of criminal cases. This recommendation of the law committee finally found support in Malimath Committee Report.
The committee on criminal justice reforms, headed by former, Chief Justice of the Karnataka and Kerala high courts and former member of the National Human Rights Commission of India, V.S. Malimath J. (Malimath committee) submitted its report to the government of India’s Ministry of Home Affairs in March 2003 with a recommendation to introduce plea bargaining into the criminal justice system of India to facilitate the earlier resolution of criminal cases and reduce the burden on the courts.
Accordingly, the criminal law (amendment) bill 2005 was passed by the Rajya Sabha on December 13, 2005, and by the Lok Sabha on December 22, 2005. There was lots of criticism against the concept of plea bargaining being incorporated in the Code of Criminal Procedure. The Supreme Court has also time and again blasted the concept of plea bargaining, saying that negotiation in criminal cases is not Permissible.
In State of Uttar Pradesh v Chanderlok , the apex court held that it is settled law that on the concept of plea bargaining court cannot dispose of the criminal cases. The court has to decide on its merits if the accused confesses his guilt and an appropriate sentence is required to be implemented. The court further held in the same case that, 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 the sentence is reduced.
Despite hue and cry the government found it acceptable and finally section 256 A to 265- L was added in the criminal procedure code, 1973 so as to provide for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High court observed State of Gujarat v Natwar Harchanji, that the very object of law is to provide easy, cheap and expeditious 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 state.
Generally, the plea bargaining can be divided into three types: -
- Charge Bargaining : In this bargain, a defendant pleads guilty to reduced charges. It occurs when a defendant pleads guilty to necessarily included offences. The prosecution generally has vast discretion in framing charges and therefore they have the option to charge the defendant with the highest charges that are applicable. But charge bargain gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may be framed against him.
- Sentence bargaining: It involves assurance of higher in alternative sentences in return for a defendant’s pleading guilty. It happens when an accused or defendant is told in advance that what his sentence will be if he pleads guilty. A sentence bargain may allow a prosecutor to obtain in a convection in the non-serious charge while assuring the defendant of an acceptable sentence.
- Fact Bargaining : It is the least used bargaining in which negotiation involved an admission to certain facts in return for an agreement not to introduce certain other facts.
Salient features of plea bargaining under the Criminal Procedure Code:
Nomenclature “plea bargaining” is not defined in the amendment but the meaning is expressed from the nomenclature itself, that is, someone is going to earn something on his own statement. The salient features under chapter XXI- A of the code of criminal procedure are:-
- Plea bargaining is applicable only in respect of those offences for which punishment of an imprisonment is up to a period of seven years.
- It does not apply where such offence affects the socio-economic condition of the country or has been committed against a human or a child below the age of fourteen years.
- The application for plea bargaining should be filed by the accused voluntarily.
- A person accused of an offence may file an application for plea bargaining in the court in which such offence is pending for trial.
- The complainant and the accused are given time to work out a mutually satisfactory disposition of the case, which may include giving to the victim by the accused, compensation and other expenses incurred during the case.
- Where a satisfactory disposition of the case has been worked out, the court should dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable as the case may be for such offence.
- The statement or facts stated by an accused in an application for plea bargaining shall not be used for any purpose other than for plea bargaining.
- The judgment delivered by the court in the case of plea bargaining shall be final and no appeal shall lie in any court against such judgment ( except special leave petition under Article 136 and writ petition under Article 226 and 227 of the Constitution.
Although the legislature has adopted the concept of plea bargaining with certain reservation and cautions, yet there are certain criticisms against the very concept. The first criticism against the concept of plea bargaining is that the defendant loses his constitutional right, for example, right to trial, right to appeal as guaranteed under Cr. P.C., right to equality etc. and second criticism is that the plea bargaining affects the sentencing policy as it points out that society’s interest in appropriate punishment for crime is reduced by plea bargaining. It is also said that there is a reduction in deterrence as criminals spend less time in Jail.
However, plea bargaining definitely is a novel concept which helps in easing the concept which helps in easing the overburdened courts in disposing of the cases.
In submission, it law be said that pros of plea bargaining just outweigh the cons of it and it’s a very welcome move in the present context. The plea bargaining helps in the reduction of the number of under-trial prisoners and also fulfils the most important constitutional obligation to provide a speedy trial to individuals. Peoples faith has been reaffirmed in the criminal justice system because of plea bargaining. By the words of Earl Warren, it is the spirit and not the form of law that keeps the justice alive”. The success of the concept depends upon the willingness of the offender to confess and the agreement of the victim of a reduction in punishment. But, definitely, plea bargaining is a beginning of a new era in Indian criminal justice system, which hopefully will sustain the tide and time.
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