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Soura Subha Ghosh, - Advocate

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A new chapter, that is chapter XXIA on ‘Plea Bargaining’, has been introduced in the Criminal Procedure Code. It was introduced through the Criminal Law (Amendment) Act, 2005, which was passed by the parliament in its winter session. This has certainly changed the face of the Indian Criminal Justice System. Some of the salient features of ‘Plea Bargaining’ are that it is applicable in respect of those offences for which punishment is up to a period of 7 years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed is committed against a woman or a child below the age of 14 years. Also once the court passes an order in the case of ‘Plea Bargaining’ no appeal shall lie to any court against that order. Now the question is will it work in Indian Judiciary? Do we need this? Are we equipped to deal with this new facet? This article makes an attempt to analyze the concept of ‘Plea Bargaining’, its necessity, its drawbacks and tries to find out the feasibility of this new idea.

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 by the prosecution. The Wikipedia Encyclopedia defines it as to make an agreement in which the defendants pleads guilty to a lesser charge and the prosecutors in return drops more serious charges. The object of ‘Plea Bargaining’ is to reduce the risk of undesirable orders for the either side. Another reason for the introducing the concept of ‘Plea Bargaining’ is the fact that most of the criminal courts are over burdened and hence unable to dispose off the cases on merits. Criminal trial can take day, weeks, months and sometimes years while guilty pleas can be arranged in minutes. In other words, a ‘Plea Bargaining’ is a deal offered by the prosecutor to induce the defendant to plead guilty. ‘Plea Bargaining’ can be of two types. Charge bargain n and sentence bargain. Charge bargain happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only some of the charges framed against him. 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. ‘Charge Bargain’ gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may have framed against him. As far as sentence bargain is concerned, it happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty. A sentence bargain may allow the prosecutor to obtain a conviction in the most serious charge, while assuring the defendant of an acceptable sentence. Therefore we can safely say that ‘Plea Bargaining’ is nothing but a contract between the prosecution and the defendant or accused and both the parties are bound by this contract. For most defendants the principal benefit of plea-bargaining is receiving a lighter sentence than what might result from taking the case to trial and losing. Another benefit which the defendant gets is that they can save a huge amount of money which they might otherwise spend on advocates. It always takes more time and effort to bring a case to trial than to negotiate and handle a plea- bargain. Incentives for accepting plea-bargaining, as far as judges and prosecutors are concerned are obvious. Over crowded courts do not allow the judges to try every case that comes before them. It also reduces the caseloads of the prosecutors.

History: It would be wrong to assume that the concept of ‘Plea Bargaining’ found favour of courts only in the 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 principle in the sixth amendment but the constitutionality of the plea-bargaining had constantly been upheld there. In the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King, Jr. to avoid execution sentence. He finally got an imprisonment of 99 years. More than 90 percent of the criminal cases in America are never tried. The majorities of the individuals who are accused of a crime give up their constitutional rights and plead guilty. Every minute, a criminal case is disposed off in an American Court by way of a guilty plea or nolo contendere plea. In a landmark judgment Bordenkircher 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 prosecutions offer. The Apex Court however upheld the life imprisonment of the accused because he rejected the ‘Plea Guilty’ offer of 5 years imprisonment. The Supreme Court in the same case, however in a different context observed that, it is always for the interest of the party under duress to choose the lesser of the two evils. The courts have employed similar reasoning in tort disputes between private parties also. In countries such as England and Wales, Victoria, Australia, ‘Plea Bargaining’ is allowed only to the extent that the prosecutors and defense 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 prohibition against the practice.

Plea Bargaining in India: To reduce the delay in disposing 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 a support in Malimath Committee Report. The NDA government had formed a committee, headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to come up with some suggestions to tackle the ever-growing number of criminal cases. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament. The statement of objects and reasons, inter alia, mentions that, The disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody.. though not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. The bill attracted enormous public debate. Critics said it is not recognized and against public policy under our criminal justice system. The Supreme Court has also time and again blasted the concept of plea bargaining saying that negotiation in criminal cases is not permissible. More recently in State of Uttar Pradesh V. Chandrika 2000 Cr.L.J. 384(386), The Apex Court held that It is settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses its guilt, 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 be reduced. Despite this huge hue and cry, the government found it acceptable and finally section 265-A TO 265-L have added in the Code of Criminal Procedure 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 in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 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 static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.

This article would be incomplete if it does not discuss the flaws that are hidden beneath the whole concept. No doubt, plea bargaining is nothing but a cover up the inadequacies of the government in dealing with each and every case that comes before it. It indirectly shows the incompetence of the traditional procedural laws. Some of the major drawbacks of the concept of plea bargaining as is recognized in India are as under

A) Involving the police in plea bargaining process would invite coercion.
B) By involving the court in plea bargaining process, the court’s impartiality is impugned.
C) Involving the victim in plea bargaining process would invite corruption.
D) If the plead guilty application of the accused in rejected then the accused would face great hardship to prove himself innocent.

Therefore to ensure fair justice, plea bargaining must encompass the following minimum requirements:
A) The hearing must take place in court
B) The court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.
C) Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.

Conclusion: The plea bargaining concept no doubt undermines the public’s confidence in the criminal justice system and as result of this it will lead to the conviction of innocent, inconsistent penalties form similar crimes and lighter penalties for the rich.

To Conclude, plea bargaining is undoubtedly, a disputed concept. Few people have welcomed it while others have abandoned it. It is true that plea bargaining speeds up caseload disposition, but it does that in an unconstitutional manner. But perhaps we have no other choice but to adopt this technique. The criminal courts are too over burdened to allow each and every case to go on trial. Only time will tell if the introduction of this new concept is justified or not.

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