Plea- Bargaining: Present Status in India
The famous jurist Nani Palkhivala has said "the greatest drawback of the administration of justice in India today is because of delay of cases...................... The law may or may not be an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to work."
This is a bit new concept under Indian Law which was introduced after the amendment Act of 2005 in Code of Criminal Procedure. What is Plea- Bargaining?
“Plea-bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to the court approval. It usually involves the defendant’s pleading guilty to lesser offence as to only one or some of the courts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge”. – Black’s Law Dictionary
Therefore, it can be said that plea-bargaining refers to pre-trial negotiations between the defendant through his/her counsel and the prosecution during which the accused agrees to plead guilty in exchange for lesser punishment.
The salient features of plea-bargaining:
# It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years.
# It does not apply where such offence affects the socio- economic condition of the country or has been committed against a woman or a child below the age of 14 years.
# The application should be filed by the accused voluntarily.
# An accused must file an application for Plea-bargaining in the court in which such offence is pending for trial.
# The accused and prosecution both are given time to work out a mutually satisfactory disposition of the case, which may include giving compensation to the victim by the accused and other legal expenses incurred during pendency of the case.
# Where a satisfactory disposition of the case has been worked out, the Court shall 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 other 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.
# Three essentials work at the time of filing an application of plea-bargaining:
1. Accused’s voluntariness to plead guilty.
2. The statements or facts stated by an accused in the application for plea-bargaining should not be used for any other purpose except plea-bargaining.
3. It is a contractual agreement between the prosecution and the defendant regarding the disposition of criminal charge. However, it is not enforceable until a judge approves it.
It generally occurs prior to the trial, but in some cases, it may occur anytime before a verdict is rendered or not. It is derogation from the concept that ‘a judge can only decide a sentence after hearing in an open court’.
Initially it was not recognized under Indian Law, therefore, not much importance was given to it as it was not in statutes. Reference may, however, be made to Section 206(1) and 206(3) of the Code of Criminal Procedure and Section 208(1) of the Motor Vehicles Act, 1988. These provisions enable the accused to plead guilty for petty offences or less grave offences and to pay small offences whereupon the case is closed. Later on, on the basis of US, our Law Commission recommended the application of plea- bargaining in India. They also justified the reasons for the same. The Supreme Court of USA in Brady v. United States and Santobello v. New York upheld the constitutional validity and the significant role of the concept of plea- bargaining plays in disposal of criminal cases.
Indian Supreme Court also examined the concept of plea-bargaining in Murlidhar Meghraj Loya v. State of Maharashtra and Kasambhai v. State of Gujaratand did not approve this concept in India on the basis of formal inducement. Further, the Hon’ble Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr strongly disapproved the practice of plea bargain.
Types of Bargaining:
Charge Bargaining: It is a bargain or promise between the prosecutor and defendant to deduct some of the charges brought against the defendant in exchange of guilty acceptance. When accused accepts for guilty that he has committed the wrong then with the approval of prosecution, there can be charge bargaining but it solely depends upon the will of prosecution. Prosecution may accept or neglect it. After charge bargaining the defendant will face specific charge.
Sentence Bargaining: it is a promise by the prosecutor, after acceptance of guilty, to recommend the court specific sentence or bargained sentence or it can be done directly with the trial judge. For this purpose, accused must be informed about the sentence likely to be imposed in case he does not accepts his guilt but if he does so then prosecutor demands for lesser sentence or favorable sentence instead what he was demanding earlier because of showing some sort of innocence regarding his guilt or for saving court’s time.
Position under US law and Indian Law:
This concept has not emerged recently but existed even in 19th century. In the United States, plea-bargaining is a significant part of the criminal justice system, Majority of criminal cases are settled by plea-bargaining rather than by a trial by jury. But it is a subject to the approval of the court. The rules pertaining to Plea-bargaining in all states of US are different. More than 90% of the cases are settled through Plea-bargaining in US. It has become a prominent feature of American Judiciary that the disposing rate of cases is very rapid therefore, backlog is under control. Prosecutor initiates about the plea-bargaining proceedings. One of the main arguments advanced in the favour of plea-bargaining is that it helps in speedy disposal of accumulated cases and will expedite delivery of criminal justice.
In India, position is very different from US. As it came in the amendment Act of 2005 in Code of Criminal Procedure, there are not much cases regarding it but even though, position under Indian Judiciary is very clear. There were huge debates on this point before it was inserted in the Cr.P.C. till 2005, it was not accepted by the Indian Judiciary. Every time it was opposed by court of law by saying that it is not recognized under Indian law and other reasons. The concept is not widely recognized as it came recently and because there are cases, in which it was not applied properly. The initiation of plea-bargaining has to be by accused which is different from US Law. Our law provides for number of negotiations between the accused and the prosecutor or with the court itself which is a cardinal difference from US. Unlike in US, where plea-bargaining is for all sort of offences but in India, it is not for socio economic offences or the offences against women and children. Court has to take great care at the time of application of plea-bargaining, therefore, there is no recent case in which plea-bargaining has accepted. Speedy trial is the essence of criminal justice and there can be no doubt, if there is delay in trial by itself, constitutes denial of justice.
Law Commission of India in its 142nd and 154th report suggested the concept of Plea-bargaining in India. They observed that this tool will be alternative to be explored to deal with huge arrears of criminal cases. Malimath Committee was also substantially in agreement with the views and recommendation of the Law Commission. According to them it will help in procuring speedy trial with benefits such as end of uncertainty, saving of cost of litigation, avoiding prolonged trial and legal expensed of the parties. They recommended where the offences are not of a serious character and the effect is mainly on the victim and not on the society, it is desirable to encourage settlement without trial.
Section 265-A to 265-L provides for the plea-bargaining under Code of Criminal Procedure. It is a devise which ensures that victims receive acceptable justice in reasonable time without risking the prospects of hostile witness, inordinate delay and non- affordable costs. This principle is not applicable for hard crimes or serious crimes, therefore, Indian Law does not provides plea-bargaining for the offences in which (a) offence in punishable with death or imprisonment for life; (b) punishable with imprisonment for a term exceeding 7 years; (c) committed against socio economic conditions of the country; (d) offence committed against women and children below the age of 14 years.
The judgment of plea-bargaining cases are final and no appeal lies on such judgment. However, a writ petition to the State High Court under Articles 226 and 227 of the Constitution or a Special leave petition to the Supreme Court under Article 136 of the Constitution can be filed by the accused. This acts as a check on illegal and unethical Bargains.
The provisions also authorize the court to give accused the benefit of Probation of Offenders Act where so ever it is possible. Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to the conviction. Thus, the Government employees who are released on probation under the Probation of offenders Act are saved from the disqualification, attached to this. There is one case decided on this point (Sh. Charan Singh vs. M.C.D. (Writ Petition (Civil) No. 18725/2005) decided on 05/10/2006).
The litigant should be encouraged to avail the remedy of plea-bargaining to settle the pending cases. For the successful implementation of plea-bargaining, its application should be necessarily understandable. With the changing world scenario where all the countries are shifting to ADR mechanism from the traditional litigation process which is very lengthy and time consuming, the plea-bargaining may be one of the best recourse as an ADR mechanism to meet the challenges of disposal of pending cases.
There are other reasons also for backlog of cases. Even if everything is in order there are simply not enough mechanisms available to try a person. For example, in India, there are not enough courts to deal with the number of cases pending. There are also shortages of public prosecutors due to backlog in appointments.
Reasons for introducing this concept in India:
1. Speedy disposal of criminal cases i.e. reduction in heavy backlogs.
2. Less time consuming
3. End of uncertainty of a case
4. Saving legal expenses of both the parties i.e. accused and state.
5. Less congestion in jails
6. Under present system, 75% to 90% of the criminal cases results in acquittal, in this situation it is preferable to introduce this concept in India.
7. It is not fair to keep the accused with hard-core criminals because if the accused is innocent then he will accept his guilt and in this situation, it is not reasonable.
Benefits in respect of Victim:
a) He can easily get the compensation.
b) He can save himself from long drawn Judicial Process.
c) Less time and money consuming.
Benefits in respect of Accused:
a) In case of Minimum Punishment, he will get half punishment.
b) If no such punishment is provided, then he will get one fourth of the punishment provided.
c) He may release on probation or admonition.
d) He may get the gain of period already undergone in custody under section 428 of Cr.P.C.
e) No appeal lies against the judgment in favour of him.
f) Admission of accused cannot be used for any other purposes except for Plea-bargaining.
g) Less time and money consuming.
Relevant Case Laws:
In one recent case of Mumbai, published in ‘Times of India’ wherein, a Grade-I employee of RBI, was accused of siphoning off Rs 1.48 crore from the RBI by issuing vouchers against fictitious names from 1993 to 1997 and transferring the money to his personal account. He was arrested by the CBI in the year 1997, and released on bail in November the same year. Charges were framed and case came before Special CBI Judge.
The accused stated that he is 58 years old and moved an application of plea- bargaining by taking benefit of the amendment of 2005, came into force in 2006. The court directed the prosecution for its response. The court rejected the application but from that time, it has opened the doors and new hope in the minds of other accused.
In other case of Vijay Moses Das Vs. CBI (Criminal Misc. Application 1037/2006), Uttrakahnd High Court (Justice Praffula Pant) in March 2010 allowed the concept of plea-bargaining, wherein accused was charged under section 420, 468 and 471 of IPC. In the said case, Accused supplied inferior material to ONGC and that too at a wrong Port, which caused immense losses to ONGC, then investigation was done through CBI by lodging a criminal case against the accused. Notwithstanding the fact that ONGC (Victim) and CBI (Prosecution) had no objection to the Plea-bargaining Application, the trial court rejected the application on the ground that the Affidavit u/s (265-B) was not filed by the accused and also the compensation was not fixed. The Hon’ble High Court allowed the Misc. Application by directing the trial court to accept the plea-bargaining application.
It has become a disputed concept because there are many views regarding the stated point. Some authorities stress that introduction of plea- bargaining in India is exceptionally good as it will reduce heavy backlog prevalent in Indian Judiciary as well as reduce congestion in jails and other reasons whereas some authorities denied about it on the basis that the socio- economic conditions existed in US and India are very different. Law Commission in its report recommended it with the justification and reasons for accepting it. They stressed mainly on the points stated above. On the other hand, Opponent of this concept thinks that:
1. It is showing too much softness towards defendants.
2. The process is unfair with the innocent. It is like legalizing a crime to an extent, we already have provisions under probation of offenders Act, executive pardon.
3. According to one study of the US, one-third of the people who plead guilty would be acquitted if they went to trial.
Major drawbacks of plea-bargaining:
A) Involvement of the police in plea-bargaining process would tempt coercion on innocent people.
B) If once guilty application of the accused is rejected then he would face great hardship to prove himself innocent.
C) Court is impartially challenged due to its involvement in plea-bargaining process.
D) Involvement of the victim may lead to corruption.
One aspect can be taken that plea-bargaining will instead likely to dramatically increase the number of cases where innocent persons find themselves imprisoned and with criminal records. Sometimes police make poor innocent people, accused of crimes that they never committed, after being paid off by the actual perpetrators. With the concept of plea-bargaining, these persons will be getting pushed to accept their guilt which they had never committed. In the prevalent situation, where the acquittal rate is as high as 90% to 95%, it is the poor who will be the victims of this concept and come forward to make confessions and suffer the consequent conviction. This measure to get speedy justice will only lead to miscarriages of justice. It is important to note that no programme of rehabilitation can be effective for the mind of prisoner who has assumed himself as prisoner and convinced in his own mind that he is in prison because he has became the victim of a senseless, undirected, and corrupt system of justice and it undermines the very basis of criminal justice system.
Secondly, it will have striking effects in cases involving state officers, accused of human rights abuse. In case of Custodial torture, this is yet to be made a crime. An Indian police officer accused of torturing a person in his custody may instead only be tried for other offences, such as those punishable under sections 323, 324 or 330 of the Indian Penal Code. The punishments for these offences are within the limit prescribed for punishment under the new law on plea-bargaining. This means that the new law may allow these torturers to escape with lighter penalties, even after knowing the fact that their offences fall into the gravest categories under international law.
Even the Supreme Court has upheld that delay of one year in the commencement of trial is bad enough; how much worse could it be when the delay is as long as three or five or seven to ten years or more. Speedy trial is the essence of criminal justice and there is no doubt that delays in trial itself constitutes denial of justice. Initially, the concept of plea- bargaining was criticized by a group of society including legal experts and intellectuals by stating that it will demoralize the public confidence in criminal justice system and also lead to lesser penalties to rich class, conviction of innocent people and therefore, it has become disputed concept now. Today, it is used by all great countries like USA, Europe, Canada and some authorities stated that the prevalent conditions in India are very different from US, even then to meet out the huge backlog of cases in India and ultimately it will have to be done with the consent of both the parties i.e. accused and prosecution, then what undermines? Therefore, India cannot abstain itself for this law. This practice has been accepted by Indian Judiciary. It can reduce the heavy backlog of cases in Indian courts; as it requires today and we hope that overburdened criminal courts will soon get a relief with it and rate of disposing will become rapid. According to the statistics of Delhi till 17/01/2011, out of 8630 total cases, only 4129 cases have settled and there is no statistic which show that in how many cases plea-bargaining was demanded but even then only 309 were declared in which it was rejected . It shows the heavy backlog under Indian Courts and application of plea- bargaining.
When the process is complete and the quantum of punishment and possibility of the probation is finished, we can say that the victims are not the forgotten actor rather they have become a key player in the criminal justice system.
According to the view of a Judge of Delhi High Court ‘over three crore cases are pending in Indian courts. Plea-bargaining will solve cases involving petty offences and the courts will concentrate on more serious offences. Indian jails have capacity of 2.56 lakh prisoners but there are more than five lakh prisoners behind bars. The State governments spend more than rupee 55 per day on each prisoner and annual expenditure comes up to Rs 361 crore. This huge amount is spending by our Indian government to maintain these prisoners just because of delayed criminal justice system. Plea- bargaining will help in reducing backlog under Indian Judiciary and number of prisoners in jails also although the Constitutional obligation to provide speedy trial is also being fulfilled.
2. www.singhania.in/.../CONCEPT OF PLEABARGAINING LAW IN INDIA.pdf
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1. Rai Suman, Law Relating to Plea-bargaining, Orient Publishing Company, New Delhi, ed. 2007
2. Nani A Palkhivala, "We the nation - lost decade (1994), UBS Publications, p 215.
# 297 US 742: 25 L.Ed. 2d 747
# 404 US 257 (1971)
# AIR 1976 SC !929
# AIR 1980 SC 854
# 1980CriLJ 553
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