[Know your Rights] Plea Bargaining by Ranjeeta & Roshni Kapur [Intern Post]


Introduction

Plea Bargaining is an alternative form of dispute resolution mechanism in Criminal Law especially intended to mitigate the burden of the Criminal Justice system, done by the court before the trial. In simple words, Plea Bargaining is a pre-trial negotiation between the accused and the victim.

Plea bargaining is a form of redressal in which the accused accepts his offence and in exchange, he requests to reduce the sentence of punishment.

According to Black’s Law dictionary, the defendant pleads guilty to a lesser offence or one of several charges (Mostly in foreign countries, not in India), usually a more lenient sentence or dismissal of negotiation charges in exchange for some concession by the prosecutor. Whereas in India, it is only sentence bargaining and not charge bargaining.Whereas, in USA it is charge bargaining.

Indian criminal justice system has adopted the concept of Plea Bargaining through the Criminal Law (Amendment Act), 2006, with the introduction of Chapter  XXI A of the Code of Criminal Procedure Act, 1973 and is included in  Section 265 A to 265 L.

Why do we need Plea bargaining?

In India, there are lots of pending cases in courts and it take lots of time and expenses to solve the cases and sometimes generation to generation it extends.The victims cannot get justice because of lack of knowledge and also most of time they are not able to hire a good advocate for their case, and ultimately they lose their case. Generally, in courts the trial takes a lots of time even it extends to years, like 10 to 20 years also and because of this type of practice many people do not file cases and avoid court’s trial, which also encourages more crime in the society.

Therefore the system needs an alternative way to resolve the disputes in a less time period and in less cost.


In Plea bargaining, the accused party voluntary accepts his offence and in return he requests the victim party to negotiate and also requests the court to reduce his punishment accordingly and these requests are done before the trial or after charge sheet submission before the court by the police officer.

This concept is basically adopted to save the time and money of the court and to smoothen & strengthen the criminal law justice system of the country.

When it is applicable?

 

·          When the charge sheet is submitted by the officer in charge of the police station, under section 173, alleging therein that an offence appears to have been committed by accused, plea bargaining is applicable and except for the offences, for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, plea bargaining is not applicable under Section 265A of CrPC.

·          When the accused voluntarily accepts his offence after understanding the gravity of punishment and it is mentioned in an affidavit sworn by the accused, then only the court may allow plea bargaining. Even the court by its own examines the accused and if court is  satisfied then it can allow, and if court thinks or it is proved that the acceptance is not voluntarily then court rejects the application of plea bargaining and orders to start the proper trial.

·          Only before trial, not during the trial.


Exceptions where plea bargaining is not applicable



i) If the offence affects the socio-economic condition of the country.

ii) If the offence has been committed against woman or child below the age of 14 years.

iii) Where the accused is previously convicted of such offence (section. 265B of Cr.P.C).

iv) When accused is habitual offender.

v)  If the offence for which the punishment is - punishment of death, life imprisonment, imprisonment extend to more than 7 years ,or in short the offence for which the punishment is less than 7 years that only come under plea bargaining. Other than these all are exceptions of plea bargaining.

How it can be used?

Section 265B to 265L deals with the procedure of plea bargaining.

The application for plea bargaining is submitted by accused to the magistrate through the police,in which it is mentioned that he wants  plea bargaining, and all facts of case and all details of the accused and the victim and the public prosecutor are contained .

After that the magistrate examines all facts and also the nature of acceptance of offence by the accused, whether it is voluntarily or not.

If it is voluntary, then plea bargaining is allowed and the application is sent to the public prosecutor to further process, otherwise court rejects the application and suggests to do a trial. (Section 265 B of Cr.P.C)

Further the court under section 265C of Cr.P.C sends a notice to public prosecutor, investigating officer, accused and the victim to get together at a fixed date and time to negotiate.

Further the report of negotiation is given to the magistrate (Sec. 256D), and according to the report, the court decides the award, which may be lesser than the previous assumed punishment or in form of compensation. (Sec. 265E).

And the award is binding upon the both of the parties. The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.



Types of plea bargaining:-

1.    Charge bargaining

2.    Sentence bargaining

3.    Fact bargaining

4.    Implicit and explicit plea bargaining.



Advantage and Disadvantage of plea bargaining: -

> ADVANTAGES: -

a)     It is pre-trial mechanism to sort out the case in short duration.

b)     Less cost.

c)     Other than lengthy process of trial.

d)    Type of negotiation between parties.

e)    Court involves declaring the judgment, which is final and legally binding.



> DISADVANTAGES: -

a)  After trial no option of plea bargaining.

b) Against natural law of justice, no opportunity of free trial for victim.

c)  No further appeal.



Some case laws:-

Some cases in which plea bargaining is approach in Indian judiciary;

·         Murlidhar Meghraj Loya vs. State of Maharashtra 1976 AIR 1929

·         Kachhia Patel Shantilal Koderlal vs. State of Gujarat and Anr1980 CriLJ 553;

·         Kasambhai v. State of Gujarat,AIR 1980 SC 854;

·         State of Uttar Pradesh v. Chandrika, AIR 1999 SC 164

CONCLUSION:-

Plea bargaining like any other legal provision has its pros and cons where the advantages are substantially more than the disadvantages. It provides a hassle-free approach for a country like India where there a numerous pending case in the District courts, High Courts and even the Supreme Court and thus helps to over come the burden of the courts.It is a method where lawyers try to bargain what is best for their clients so that they do not have to go through the cumbersome legal procedure or face a punishment or penalty which is way too harsh. Nowadays plea bargaining is applicable in criminal cases.

The author of the post, Ms. Ranjeeta is a Law Student from Maharishi University of Information Technology, Noida who can be reached at [email protected] & Ms. Roshni Kapur is a Law Student from Amity Law School, Noida who can be reached at [email protected]

 

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