The Article tries to analyze the development of plea bargaining in Indian legal system and the status quo post the Criminal Law (Amendment) Act, 2005. Further, it critically analyzes some of the provisions of Chapter XXIA of Criminal Procedure Code, 1973 to suggest measures for improving practicality of plea bargaining on the parties concerned.

Concept Of Plea Barganing

Plea bargaining supports the concept of criminal justice system "Justice delayed is justice denied". It is an option given to accused to accept certain facts, charges or statements in response to which, the prosecution proposes to reduce certain burden being advanced on the accused by the prosecution. It is a contractual agreement between the parties concerning the disposition of criminal charges enforceable on approval of the Court.

The objective behind such concept of plea bargaining inter alia is to curb the problem of back logging of cases resulting in sufferings of under-trial prisoners. The Doctrine of Nolo Contendere1, prevalent in United States is pertinent to be included in the present context which ascribes the circumstance where the accused either admits or declines the charges made against him.

The Indian legal system comprises of three types of plea bargaining:

1. Charge bargaining
2. Sentence bargaining
3. Fact bargaining

Where the accused has an option to drop some charges or settling for a less garve charge than it is know as charge bargaining. Negotiating for a lesser punishment and admitting the guilt is Sentence bargaining. Lastly, admitting certain facts and negotiating in return for an agreement to not introduce other facts is called fact bargaining.

Judiciary Approach Towards Plea Bargaining

Several recommendations have been made by The Law Commission's reports as a result of which the 2005 amendment to Chapter XXI-A was added to Cr.P.C titled "Plea Bargaining" from Section 265-A to 265-L. Earlier to the said amendment, the judiciary was reluctant in applying the concept and on many instance rejected its application inspite of the Law Commission's recommendations.2

In case of Madanlal Ramachander Daga v. State of Maharashtra 3 the concept of Plea bargaining was discussed for the first time by the Hon'ble Supreme Court and it was observed that-

"It is wrong to enter into a bargain by the court with accused, offence needs to be punished according to the guilt of the accused, and if any leniency needs to be shown it is of facts not of sentence."

This interpretation of plea-bargaining was upheld time and again. However, arguments were also presented against it in several cases. In the case of Kachhia Patel Shantilal Koderlal v.State of Gujarat and another 4 the court held that the concept of plea-bargaining is unconstitutional and illegal which would increase corruption, collusion and would pollute the pure foundation of imparting justice. However, as an implication of the 2005 amendment, the courts were obliged to observe the acknowledgement of the concept of plea barraging in practical reality.

Critical Analyses Of Chapter XXI-A

Chapter XXI-A of Criminal Procedure Code, 1973 consist of 12 Sections from 265A to 265 L which deals with Plea Bargaining.

Section 265-A puts forward the applicability of plea bargaining with three conditions. First, it is not available to offence for which punishment is more than seven years or death or life imprisonment. Second, the offence which are against women and children are also excluded and third, socio-economic offence are excluded. Sub-Section 2 states that the socio-economic offence are to be determined by Central Government. This section itself disregards the objective on which plea bargaining was introduced i.e to curb the back logging of cases which result in delayed justice, as it creates a vide sphere of offence not covered under plea bargaining.

Socio economic offence covers legislation like Dowry Prohibition Act, 1961 and Protection of Women from Domestic Violence Act, 2005, here plea bargaining can help to reduce the burden of cases as well as the suffering of the under-trials, but Section 265-A does not cover it.
Other than this it gives Arbitrary power to Central Government to categories socio-economic offence, since the legislation does not define the offence covered under it.

Section 265-B explains the procedure of plea bargaining in the court, the accused has to file the application in same court where trial in ongoing then it is upto court to determine whether the application is voluntary or not and will take recourse accordingly.

There are many ambiguities in this section, for instance, in situations where the court is of the opinion that the application is not voluntarily filed, it is required to resume the trial. This will take a lot of time of the court to determine first the character of the application then to continue the trial, instead a different authority can be step up to determine the character of application.

Further sub section (4) obliges court to give an option to party to mutually dispose-off the case, but it does not specify the time frame which is a grave concern as the object of plea bargaining is speedy disposal of case.

Section 265 C guides how the mutual satisfactory disposition will take place. It does not state that court should be involved in mutual satisfactory disposition but put court in responsibility to ensure the process is voluntary. In fact, it does not lay any principles that could ensure transparency as a consequence of which the accused cannot be coerced at any stage of mutual satisfactory disposition.

Recommendation
There is lack of awareness in the under-trial prisoners about this concept. Provisions should be made that would oblige the jail officers to conduct sessions in jail and inform prisoner about this recourse its benefits.

Additionally, the judiciary should start practicing in positive way the option of plea bargaining and legislation should extent its scope, so that as much as possible accuse can take this remedy.

Conclusion
The inclusion of chapter XXI-A is a progressive step to mitigate the burden on the Indian Judiciary, but it needs to be applied cautiously. Plea bargaining can solve a number of problem which are prevalent in current Indian Judiciary like burden of judiciary, problem related to under trial prisoner therefore a positive look is required.

Reference

1. http://www.mha.nic.in/pdfs/criminal_justice_system.pdf
2. Madanlal Ramachander Daga v. State of Maharashtra, AIR 1968 SC 1267
3. Kachhia Patel Shantilal Koderlal v.State of Gujarat and another,[1980] 3 SCC 120

Written By: Tulsi Khoria, 3rd Year student of Institute of Law Nirma University