Many members of the Tablighi Jamaat belonging to different countries
have obtained release from court cases in recent days by means of plea
bargaining. Accused of violating visa conditions by attending a religious
congregation in Delhi, these foreign nationals have walked free after pleading
guilty to minor offences and paying the fines imposed by the court. These cases
have brought the focus on plea bargaining as a practice by which time consuming
trials can be avoided. Even though plea bargaining is available to those accused
of criminal offences in India for over a decade, it is not yet common.
When was it introduced in India?Plea bargaining refers to a person charged with a criminal offence negotiating
with the prosecution for a lesser punishment than what is provided in law by
pleading guilty to a less serious offence. It is common in the United States,
and has been a successful method of avoiding protracted and complicated trials.
As a result, conviction rates are significantly high there. It primarily
involves pre-trial negotiations between the accused and the prosecutor. It may
involve bargaining on the charge or in the quantum of sentence.
In India, the concept was not part of law until 2006. There has always been a
provision in the Code of Criminal Procedure for an accused to plead ‘guilty’
instead of claiming the right to a full trial, but it is not the same as plea
The Law Commission of India, in its 142nd Report, mooted the idea of
“concessional treatment” of those who plead guilty on their own volition, but
was careful to underscore that it would not involve any plea bargaining or haggling
with the prosecution.
Plea bargaining was introduced in 2006 as part of a set of amendments to the
CrPC as Chapter XXI-A, containing Sections 265A to 265L.
In what circumstances is it allowed? How does it work?Unlike in the U.S. and other countries, where the prosecutor plays a key role in
bargaining with the suspected offender, the Indian code makes plea bargaining a
process that can be initiated only by the accused; further, the accused will
have to apply to the court for invoking the benefit of bargaining.
Cases for which the practice is allowed are limited. Only someone who has been
charge sheeted for an offence that does not attract the death sentence, life
sentence or a prison term above seven years can make use of the scheme under
Chapter XXI-A. It is also applicable to private complaints of which a criminal
court has taken cognisance. Other categories of cases that cannot be disposed of
through plea bargaining are those that involve offences affecting the
“socio-economic conditions” of the country, or committed against a woman or a
child below the age of 14.
The applicant should approach the court with a petition and affidavit stating
that it is a voluntary preference and that he has understood the nature and
extent of punishment provided in law for the offence. The court would then issue
notice to the prosecutor and the complainant or victim, if any, for a hearing.
The voluntary nature of the application must be ascertained by the judge in an
in-camera hearing at which the other side should not be present. Thereafter, the
court may permit the prosecutor, the investigating officer and the victim to
hold a meeting for a “satisfactory disposition of the case”. The outcome may
involve payment of compensation and other expenses to the victim by the accused.
Once mutual satisfaction is reached, the court shall formalise the arrangement
by way of a report signed by all the parties and the presiding officer. The
accused may be sentenced to a prison term that is half the minimum period fixed
for the offence. If there is no minimum term prescribed, the sentence should run
up to one-fourth of the maximum sentence stipulated in law.
What is the rationale for the scheme? What are its benefits?The Justice Malimath Committee on reforms of the criminal justice
system endorsed the various recommendations of the Law Commission with regard to
plea bargaining. Some of the advantages it culled out from earlier reports are
that the practice would ensure speedy trial, end uncertainty over the outcome of
criminal cases, save litigation costs and relieve the parties of anxiety. It
would also have a dramatic impact on conviction rates.
Prolonged incarceration of undertrials without any progress in the case for
years and overcrowding of prisons were also other factors that may be cited in
support of reducing pendency of cases and decongesting prisons through plea
bargaining. Moreover, it may help offenders make a fresh start in life.
Do courts have reservations?Case law after the introduction of plea bargaining has not developed much as the
provision is possibly not used adequately. However, earlier judgments of various
courts in cases in which the accused enter a ‘guilty’ plea with a view to
getting lesser sentences indicate that the judiciary may have reservations.
Some verdicts disapprove of bargaining with offenders, and point out that
lenient sentences could be considered as part of the circumstances of the case
after a regular trial. Courts are also very particular about the voluntary
nature of the exercise, as poverty, ignorance and prosecution pressure should
not lead to someone pleading guilty of offences that may not have been
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