Plea Bargaining

INTRODUCTION

The law of crimes says that the offender must be punished for the crimes he/she has committed and the state has to prove that the offender is guilty of the crime but the concept of plea bargaining came into effect. Plea bargaining is the concept which is simply a negotiation, an agreement, a trade-off between the prosecutor and the defendant wherein the defendant for the offender pleads guilty in return for the lesser punishment or letting go of some charges for the crime committed by him/her. Though plea bargaining cannot be asked for crimes whose punishments are life imprisonment or of more than seven years.

TYPES OF PLEA BARGAINING

There are three types of plea bargaining which are sentence bargaining, charge bargaining and fact bargaining.

Sentence bargaining-here the defendant aims for a lesser sentence, the defendant pleads guilty but in return claims for a lesser sentence for his/her crimes

Fact bargaining-it is used in criminal justice system and here the defendant consents to stipulate to particular facts so that the introduction of the other facts can be prevented.

Charge bargaining-its motive is to get sentenced for a lesser charge. The defendant consents to plead guilty in bargain for lesser charges in light of dismissing the bigger charges. It is the most used plea bargaining in the criminal cases.

HISTORY

Initially plea bargaining was not considered to be an essential concept by the jury system in India but later on it became a part of the Indian criminal justice system. In India it was brought it concept in code of criminal procedure through chapter XXIA by criminal law (amendment)act, 2006 which consisted of sections 265A to 265L. It was introduced in India due to the case burden on the Indian courts. The concept was somewhat derived from the Latin “Nalo Contendere” which translates to “no contest” or “I do not wish to contend” it means as a confession wherein the offender does not contend and plead guilty in bargain for lesser charge, sentence.

Plea bargaining though is a relatively newer concept in Indian criminal justice but it has been prevalent in the world or more particularly the USA since the nineteenth century, it was originated in the United States of America. It is considered a three-way win for all-defendant, prosecution and the judge. The defendant can get away with a lesser charge or sentence which otherwise would have been considerably high in a trial. The judge can other cases to listen to and the prosecution has some act of finding the person guilty in the court of law on record.

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PLEA BARGAINING IN INDIA

“Justice delayed is justice denied” is the principle which should be followed and to go through with it the concept of plea bargaining came into force in India. And in order to reduce this delay of justice 154th law commission suggested ‘plea bargaining’ for the first time. During the reign of NDA government, the Malimath committee gave arguments to support the idea of plea bargaining stating that it will help dispose of the criminal cases speedily, it will help in reducing the burden of the courts and it even pin pointed the success it has been in the US to show the effectiveness of plea bargaining.

It came into force on 5th July, 2006 after the after the criminal law (amendment)bill, 2003 became enforceable on 5th of July 2006 whose one of the points of focus was plea bargaining. Plea bargaining is applicable in the cases wherein- the maximum sentence/punishment is for seven years and it is not applicable for the cases where the offence which has taken place is a socio-economic offence and also, where the offence has taken place against a child below the age of fourteen or any women plea bargaining does not apply.

Also, no appeal can be made against the order made by the court in terms of plea bargaining once court has given an order in regards of plea bargaining. Plea bargaining lessens the charges, it drops many charges and presses upon one only along with making suggestions to courts in regard to the punishment of the offender. Plea bargaining is a concept which has few essentials which need to be followed.

They are-

  • 1) the place of hearing must be the court,
  • 2) the court must make sure that the offender is pleading guilty of his/her own accord and knowingly and
  • 3) the rejecting of the plea bargain application by the court must be kept confidential so as to avoid/prevent prejudice against the offender.
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Plea bargaining aims to lower the number of pending cases, reduce the number of pre-trial convicts and to avoid the delay in the disposal of the cases. It also wants to make provisions so as to compensate the victims of the criminal offences. The concept of plea bargaining has both the arguments in support as well as against. The points which stand against the same are that it is a voluntary thing only done when one comes up by their own, involving the police might lead to coercion or aggravate/escalate the situation. Also, the courts method of in camera examination may lead to public distrust in them and it also does not have independent judiciary system.

The unbiases of the court can also be attacked and involving the victim in the process may incite corruption and also, the rejection of the application of the victim may lead to prejudices against him/her. But to support the concept there are supportive arguments as well like it is good for both the parties as one actually lost at the trial. Also, it helps to record less serious charges on one which makes living in society easier and also the process is short and less tiring and without much obstacles and the accused can plead guilty without a lawyer also, through this concept one can avoid publicity as the shorter the case, less the attention.

PLEA BARGAINING UNDER CRPC

The criminal procedure code dedicates sections 265A to 265L of chapter XXI to the plea-bargaining concept.

265A deals with application of chapter. Herein it is said the plea bargaining will be available to any offender excluding the ones sentenced with life imprisonment or for a punishment of more than seven years. And via 256A (2) the central government can be notified of the crimes.

256B talks about the application of plea bargaining-application can be filed in trails which are still left. The application should contain the caser brief along with other necessary documents like affidavits. The courts then notify the public prosecutor, investigating officer, victim and the offender of the date of plea bargaining and then the court examines the accused alone in camera to satisfy itself that the application is voluntary.

265C tells that procedure of mutually satisfactory disposition wherein the court notifies public prosecutor, investigating officer, victim and the offender to get together and find out a satisfying disposition in case of police report and in compliant the same happens with offender and victim

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265D discusses the preparation of the satisfactory disposition and it submitting the same. One case is the disposition has been made under 265C a report of the same is prepared submitted. The presiding officer of the court signs it and other parties who were a part of the meeting and the other situation is when the report cannot be prepared the court notes this down and proceed further accordingly from the point of 265B (1)

265E it discusses the procedure to be followed to dispose of the case after the satisfactory disposition has worked out and then the court might release the offender on probation or any other punishment.

265F tells about the decision of court after the satisfactory disposition

265G here the judge declares no appeal now can be made against the decision of the judge except special leave petition and writs

265H tells the power of courts like bail, trials of the crimes etc

265I says that section 428 of CRPC applies to set the detention period undergone by the offender against the sentence given under this chapter

265J talks about the savings

265K talks about the facts told by the offender in the application under 265B will not be used for any other use except the one mentioned in this chapter

265L declares that this chapter is not applicable in juvenile cases or for a child

CONCLUSION

Plea bargaining is a way of disposing of the cases in a fast manner so as to lessen the burden of the court though it does not completely cure the problem but definitely lowers the gravity of the punishment. Every thing has two sides good and bad similarly the concept of plea bargaining also has both advantages and disadvantages. It has been a disputed concept. It leads to lesser penalties for some and inconsistent punishment for similar offences but it definitely saves the time of court. It is an evolving and developing concept in India.

Author: Lavanya Goel,
Symbiosis Law School, Noida

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