“Justice delayed is justice denied” this saying is of utmost importance when discussing the concept of plea bargaining. This concept is derived from the principal of ‘Nalo Contendere’ which basically means ‘I do not wish to contend’
A person who is granted punishment by the court for any criminal offence, when that person negotiates with the prosecution for a lesser punishment than that of given to him, for a less serious offence, this is known as Concept of Plea Bargaining.
Earlier, in the Jury System, there was no legal representation so the need for the Plea Bargaining was not felt, later, when the legal representation was allowed on the 1960s the need for plea bargaining was felt. The traces of origination of this concept are first found in the 19th century in the American legal History. This concept was used by judges to encourage Bargaining.
Plea Bargaining in India:
This concept was not there when the Criminal Law in India was first enacted, it wasn’t recognized in Indian Jurisprudence, and this concept was incorporated by Indian Legal Scholars and Jurists. However the accused used to plead guilty for petty offences, after which the case is closed. This concept was included as a part of development in Indian Criminal Justice System (ICJS), the reason behind its inclusion was to lessen the burden of long-standing cases in the Indian Judiciary.
This concept wasn’t a part of Law in India until 2006, but there is a provision in Code of Criminal Procedure which provides an accused to ‘plead guilty’ instead of a full trial but it is not same as Plea Bargaining.
India’s law commission advocated the introduction of Plea Bargaining in the Reports 142, 154 & 177. The Law commission’s 154th report recommended incorporating the new XXI A into the Code of Criminal Procedure. The new chapter on plea bargaining in cases of offences punishable by imprisonment for up to seven years is based on the Law Commission’s recommendation.
Relevant Provisions relating to Plea Bargaining:
Section 265-A (Application of Chapter), the plea bargaining is open to the accused who is charged with any offence other than offences punishable by death or imprisonment or life or imprisonment for a term of more than seven years. Section 265 A (2) of the Code gives the Central Government the power to notify the offences.
Section 265-B (Application for Plea Bargaining) provides for an application for plea bargaining to be filed by the accused, which shall contain brief details of the case in respect of which that application is filed, including the offences to which the case relates, and shall be accompanied by an affidavit sworn by the accused stating that he voluntarily preferred the application, the plea bargaining the nature and scope of the punishment provided for in the law for the offence, the plea bargaining in his case that he had not previously been convicted by a court in a case in which he was charged with the same offence.
Article 265-C (Guidelines for Mutually satisfactory disposition) stipulates a mutually satisfactory disposition to be followed by the court. In the case established on the report of the police, the Court will issue a notice of a satisfactory resolution of the case to the public prosecutor concerned, the investigating officer, and the victim and the accused. The Court shall notify both the accused and the victim of the matter in a case of complaint.
Section 265-D (Report of the mutually satisfactory disposition) covers the preparation of the court’s report on the arrival or failure of a mutual satisfactory arrangement. If a satisfactory settlement of the case in a meeting has been developed in accordance with section 265-C, the Court shall prepare a report on such a decision signed by the chairman of the Courts and all other persons participating in the meeting. However if such a provision is not drawn up, the Court shall record that observation and proceed from the stage of the application pursuant to (1) of section 265-B, in accordance with the provisions of this Code, in that case.
Section 265-E (Disposal of the case) provides for the procedure to be followed when the cases are disposed of if the case is disposed of satisfactorily. After the completion of procedure under S. 265 D, the Court has to hear the parties on the quantum of the sanction or on accused release entitlement on probe of good conduct or after admonition by preparing the report signed by the President of the Court and parties at the meeting. In accordance with S 360, the Court may either release the accused on probation. In accordance with or under any other legal provisions in force, S 360 of the Code or the Probation to Offenders Act, 1958 punishes or sentences the accused.
Section 265-F (Judgment of the Court) addresses judgement pronouncements in terms of mutually satisfactory disposition.
Section 265-G (Finality of Judgment) states that such judgement shall not be appealed.
Section 265-H (Power of the Court in Plea Bargaining) deals with the court’s powers in the matter of plea negotiations. A court for the purposes of performing its functions under Chapter XXI-A shall have all the powers conferred by the Code of Criminal Procedure in respect of trial of offences and other matters relating to the disposal of a case in that Court.
Section 265-I (Period of detention undergone by the accused to be set off against the sentence of imprisonment) stipulates that the sentence given for plea negotiations is governed by section 428.
The provisions of Section 265-J (Savings) are to be understood to contain the meaning of any provision of Chapter XXI-A, not to mention anything that would not be inconsistent with them contained in any other provisions of the Code.
Section 265-K (Statement of the accused to be used) states that, with the exception of the purpose mentioned in the chapter, the statements or the facts stated by an accused in the plea negotiations application shall not be used.
Section 265-L (Non-application of the chapter) shall not apply to children or adolescents as defined in Section 2(k) of the Juvenile Justice Act, 2000.
Types of Plea Bargaining:
1. Sentence Bargaining: The main motive in this kind of bargaining is getting a lesser sentence. The defendant agrees to plead guilty to the indicted charge in Sentence bargaining and in return he bargain for a lighter sentence.
2. Charge Bargaining: This kind of plea bargaining is happening to get fewer serious charges. This the most common form of criminal plea bargaining. The defendant here agrees to plead guilty to a lesser charge considering the dismissal of greater charges. E.g. To plead for homicide for dropping the murder charges.
3. Fact Bargaining: Usually this is not used in court because it is alleged to be against the Criminal Justice System. It happens when a defendant agrees to stipulate certain facts so as to prevent the introduction of other facts into evidence.
Plea Bargaining And Judicial Pronouncements:
Many Tablighi Jamaat members belonging to various countries have in recent days obtained release from court cases through plea bargaining. These foreign nationals, accused of violating visa conditions by attending a religious congregation in Delhi, have walked free after pleading guilty to minor offences and paying the court fines. These cases have put the focus on plea bargaining as a practise that can avoid time-consuming trials. Although plea bargaining has been available for those accused of criminal offences in India for more than a decade, it is still not common.
In State of Uttar Pradesh vs Chandrika 2000 Cr.L.J. 384(386), The Apex Court dismissed the concept of plea bargaining, and considered it unconstitutional and illegal. Here, the Hon’ble Court was of the opinion that criminal cases cannot be disposed of at the plea bargaining court. Must be decided on the merit of the case. In furtherance of the same, court said that if the accused confesses his guilt, the law requires him to be given the appropriate sentence.
In the State Of Gujarat vs Natwar Harchandji Thakor (2005) 1 GLR 709, the Court acknowledged the importance of plea bargaining and stated that any “criminal plea” interpreted as part of the criminal trial statutory process should not be understood as ipso facto “plea bargaining.” It’s a matter and needs to be decided on a case-by – case basis. Considering the dynamic nature of law and society, the court said that by resolving disputes, the very object of the law is to provide an easy, cheap, and expeditious justice.