Introduction
Since ages, one of the most important functions of the state has been to maintain law and order and to ensure that justice prevails at all costs. This has been a function that has remained constant even after evolution of the state from a police state to a welfare state. The citizens pay taxes to the state for the smooth functioning of all the three organs of the state namely: Legislature, Executive and Judiciary.
Society cries for justice when a crime is committed. It cries even more when the criminal trial does not commence in time and it loses its faith in the Judiciary when justice is denied to the victim because of delay in trial and non-conviction of the guilty. The Supreme Court declared in Hussainara Khatoon Vs. State of Bihar1 that speedy trial is a fundamental right of the citizen. Our Courts are well aware of the fact that speedy trial is sine qua non for proper administration of justice. Despite various judgements of the Supreme Court, speedy trials have become almost impossible due to the back logging of cases.
With the insertion of Sections 265A-256L to the Code of Criminal Procedure, 1973 by the Criminal Law (Amendment) Act of 2005, the Legislature has introduced Plea Bargaining into the Indian legal system to curb the problem of backlogs in the courts and to alleviate the suffering of the under trial prisoners.2 Plea Bargaining has a long history. It is a novel concept in India and is still is its infancy, although it is implemented in other nations.
According to Black’s Law Dictionary, Plea Bargaining has been defined as “a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or one of the multiple charges in exchange for some concession by the Prosecutor, usually a more lenient sentence or a dismissal of the negotiated charges.3”
Concept of Plea-bargaining in India
In the United States, the accused has three options with respect to pleas; guilty, not guilty or plea of nolo contedere4. In plea of nolo contendere the defendant answers the charges made in the indictment by declining to dispute or admit the fact of his or her guilt. The defendant who pleads nolo contedere submits for a judgment fixing a fine or sentences the same as if he or she has pleaded guilty.
The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere. It has been incorporated by the Legislature after several law commission recommendations. This doctrine has been considered and implemented in a manner that takes into account the social and economic conditions prevailing in our country.5 There are three types of plea bargaining: 1) Charge Bargaining 2) Sentence Bargaining and 3) Fact Bargaining.
Negotiating for dropping of charges in a case of multiple charge or settling for a charge that is less serious is called Charge Bargaining. Where the accused has an option of admitting the guilt and settling for a lesser punishment, it is termed as Sentence Bargaining and lastly, negotiation which involves an admission to certain facts in return for an agreement not to introduce certain other facts is Fact Bargaining.6
Need for Plea Bargaining in India
The Law Commission of India in its 142nd Report recommended the introduction of the concept of, “concessional treatment for those who choose to plead guilty without any bargaining”, under the authority of law informed with adequate safeguards. The suo motu exercise to make such recommendation was prompted, in the works of the commission.
“By problem arising on account of abnormal delay in the disposal of criminal trials and appeals, and by the explosion of the number of under-trial prisoner languishing in jail for very much years.”
Indian Judiciary’s Approach towards Plea Bargaining
The Indian Judiciary has been reluctant in applying this concept prior to the 2005 amendment and has on various occasions rejected the concept of Plea Bargaining even after several recommendations of the Law Commission of India.7 This was evident since the courts continued giving unfavourable decisions when adjudicating Plea Bargaining even after such recommendations. One of the earliest cases wherein the concept of plea bargaining was considered by the Hon’ble Apex Court was Madanlal Ramchander Daga v. State of Maharashtra8 in which it observed:
“In our opinion, it is very wrong for a court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence.”
In Muralidhar Megh Raj v. State of Maharashtra9 the Hon’ble Apex Court continued to disapprove the concept of plea bargaining when the Appellants pleaded to the charge where-upon the trial magistrate, sentenced them each to a piffling fine. The Court observed:
“There can be no doubt that when there is an admission of guilt made by the accused as a result of plea bargaining or otherwise, the evaluation of the evidence by the Court is likely to become a little superficial and perfunctory and the Court may be disposed to refer to the evidence not critically with a view to assessing its credibility but mechanically as a matter of formality in support of the admission of guilt. The entire approach of the Court to the assessment of the evidence would be likely to be different when there is an admission of guilt of the accused.... In the instant case, it is true that the learned magistrate did not base his order of conviction solely on the admission of guilt made by the appellant, but it is clear from his judgment that his conclusion was not unaffected by the admission of guilt on the part of the appellant and in the circumstances, it would not be right to sustain the conviction of appellant.”
In State of U.P v. Chandrika10, the Hon’ble Apex Court observed:
“Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced.”
It was Gujrat High Court that recognised the utility of this method in State of Gujrat v. Natwar Harchandji Thakor11, as an alternative measure of redressal to deal with huge arrears in criminal cases. The Court reasoned the change as follows:
“the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realisitic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.”
Critical Analysis of Chapter XXI-A under the Code of Criminal Procedure, 1973
Section 265A lays down the applicability of plea bargaining. It states that this remedy is available only in respect of offences for which the punishment is less than seven years of imprisonment. The Section excludes offences for whichpunishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law and those affecting socio-economic conditions and offences committed against a woman or child less than fourteen years. Section 265A (2) confers a power on the Central Government to determine those offences under the law for the time in force that affect the socio-economic condition of the country and notify the same for the purpose of sub section (1).
Section 265B permits the accused to file for an application for plea bargaining in the court where the case is pending. The application is to be accompanied by an affidavit sworn by the accused stating that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the particular offence, the plea bargaining in his case and that he has not been previously convicted by a Court in a case which he had been charged with the same offence. The Court then issues notice to the Public Prosecutor or the Complainant of the case and the accused shall be examined in camera. If the Court is satisfied then it will work out a mutual disposition of the case. If the Court feels otherwise, then the case will resume from the stage where such application of plea bargaining had been filed.
Section 265C lays down the guidelines for mutually satisfactory disposition. This Section requires that the Court shall issue notice to the concerned parties and also the duty is entrusted on the Courts to ensure that the process of working out a satisfactory disposition of the case is voluntary. This Section however, does not lay down any guideline for the Courts to make sure that there is transparency and that the accused is not coerced at any stage.
Under Section 265D, the Court has to prepare a report. If a mutual satisfactory disposition has been worked out then the report shall be signed by the presiding officer and the parties in the meeting. If no satisfactory disposition is made out, the Court has to proceed with the case by dropping the proceedings in Plea Bargaining and resume the proceedings from the stage when the application was entertained. An accused, while disposal of his application under plea bargaining, is entitled for setting off the period of detention from the sentence of imprisonment imposed under section 265E.
Once the Court delivers the judgment under Section 265F then the subsequent Section 265G states that it is final and no Appeal will lie against such judgment. However, such judgements are subject to challenge before the High Court and the Hon’ble Apex Court.
Offences affecting the socio-economic condition of the country:
The Government Order issued in 2006 explains that this process is not available in the offences affecting the socio-economic conditions of the country. Thus, there is no Plea Bargaining for an accused who is charged with offences under the Dowry Prohibition Act, 1961, Protection of Women from Domestic Violence Act, 2005, Provisions of Meat Food Products Orders, 1973 (Issued under the Essential Commodities Act, 1955), the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, the Protection of Civil Rights Act, 1955, Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the Army Act, 1950, the Air Force Act, 1959, the Navy Act 1957, the Explosive Act 1884 etc.
Because of these limitations and the fact that many charges were kept beyond the scope of the process of Plea Bargaining, only a few crimes besides petty cases like rash driving, forgery, defamation, illegal threat, food adulteration and other offences can be solved with mutual consent of both the parties using the law of Plea Bargaining. Though disputed, the offence of causing death by negligence, mostly the accidental deaths are negotiated under this process.
Some early cases of Plea Bargaining
Vijay Moses Das v.CBI12,in this case, a person who was accused of supplying substandard material to ONGC and that too at a wrong Port causing immense losses to ONGC sought for Plea Bargaining. The CBI investigated and initiated prosecution under Sections 420, 468 and 471 of the Indian Penal Code, 1860. The accused applied for plea bargaining and the ONGC and CBI had no objection to such request, but the trial court rejected the said plea on the ground that Affidavit under Section 265B was not filed by the accused and the compensation was not fixed. The Uttarakhand High Court directed the trial court to accept the Plea Bargaining application.
Case in Mumbai: A Magistrate Court in 2011 accepted an application for Plea Bargaining and convicted four foreign nationals who were accused of stealing diamonds worth Rs. 6.6 crores at an international jewellery show to 21 months rigorous imprisonment. The foreigners were convicted and sought a Plea Bargain due to which the term of punishment was reduced to 21 months instead of several years.
David Headley Case: David Headley who was charged with conspiracy in the Mumbai terror attacks, pleaded guilty before a US court to bargain for a lighter sentence to avoid capital punishment. He was arrested by the FBI in 2009. He was facing six counts of conspiracy involving bombing public places, murdering and maiming persons in India and providing material support to foreign terrorist plots and LeT; and counts of aiding and abetting the murder of US citizens in India.13
Former Union Home Secretary G.K.Pillai questioned the motive behind the US entering into the bargain with Headley, who did a recce of the 26/11 targets for the LeT, which carried out the attacks on Mumbai in 2008. In India, Plea Bargaining is not allowed in such serious anti-national crimes.
Plea Bargaining: A concern in India
Plea Bargaining is still at its budding stage in our country and there are various concerns that the lawmakers need to consider while making further amendments. Plea Bargaining may lead to poor police investigations and some cases may not be given enough time and attention and for this reason cases may not even be prepared well. There can be a rise in relying on Plea Bargaining instead of pursuing justice for the investigating officers.
Advantages of Plea Bargaining
Time saving: Plea Bargaining will help in cutting short the delay, backlogs of cases and speedy disposal of criminal cases thereby saving the Court’s time and reducing the pendency of cases.
Compensation to victims: The victims might be benefited as they can get compensation. They need not have to enter the witness box or seek compensation or justice longer than required for acceptance of Plea Bargaining.
Benefits to the accused: It can prove to be beneficial to the accused who might get half of the minimum prescribed punishment. If no such minimum punishment is prescribed, accused might get one fourth of punishment prescribed or released on probation or get concession of the period already undergone in custody under Section 428 of Code of Criminal Procedure, 1973.
Disadvantages of Plea Bargaining
Unfair: The system can be too soft for the accused and allow an unfair means of escape in a dishonesty ridden society in India. It is an alternative way of legalising crime to some extent and hence may not be a fair deal. It creates a feeling that justice no longer prevails, but has one eye open for the right offer.
Derailment of trial: Once the guilty plea comes forward and is recorded, the trial surely gets biased. If the application of Plea Bargaining is rejected, and the trial resumes, the Court might not strictly adhere to and may depart from the requirement of proof beyond reasonable doubt which can lead to the conviction of the innocent.
Conviction of innocents: This process might result in phenomenal increase in the number of innocent convicts in prison. Innocent accused may be paid by the actual perpetrators of crime in return to their guilty plea with assured reduction in penalty. Thus, illegal Plea Bargaining between real culprits and apparent accused might end up in making mockery of the prevailing justice system.
Conclusion
The inclusion of Chapter XXI-A to the Code of Criminal Procedure, 1973 has been introduced rather cautiously by our law makers. They have limited the applicability of Plea Bargaining to a large extent and have also restricted the scope of this process.
This disputed concept of Plea Bargaining is more a mechanism of convenience and mutual benefit than an issue of morality, legality or constitutionality. There is an inevitable need for a radical change in the criminal justice mechanism. It might be a welcoming change but only when there is a possibility of swift and inexpensive resolution of cases. If the sole purpose behind Plea Bargaining is to rehabilitate criminals into society by making them undergo a specific sentence in prison, then Plea Bargaining loses most of its charm.
It is agreed that there should be a balance between a rampant use of this remedy and the possibilities that Plea Bargaining offers in order for it to be an effective and efficient alternate remedy. But somewhere we are unable to appreciate Plea Bargaining to the extent it deserves to be appreciated because of the extremely cautious approach in restricting its scope. It however, cannot be denied that this amendment is a sincere attempt at resolving the stated issues but it can be better appreciated only if the strings are loosened a little more.
By - Soumya Kamat
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