18 Plea Bargaining in India

Ms. Preeti Lakhera

Introduction:

The primary objective of having a criminal justice system is to maintain peace and order in the society and provide for a redress mechanism when a citizen’ rights are violated. Therefore the system criminalizes various actions which violate or infringe the rights guaranteed to an individual in a civilized society. But the unequal power equation between the accused and the State mandates a procedure which is fair to the accused and protects his rights at every step. This endeavour to make the procedure fair enough to inspire confidence in the accused and the society has given so many rights to the accused that the resultant procedure is slow, cumbersome and expensive. All this leads to a huge pendency of cases in various criminal courts of India and a large population of under trials in Indian jails. The solution lies in looking for alternative dispute resolution mechanisms for disposing off a criminal case. Plea Bargaining is one of the many such alternatives available which settle a criminal dispute without putting up the accused for a formal trial.

Meaning of Plea-Bargaining

The concept of plea-bargaining can be better understood by first reviewing some basic definitions of this phrase. Wikipedia, an internet dictionary, defines the term as “a plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case in which a Prosecutor and a defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty or no contest (and often allocate) in exchange for some agreement from the prosecutor as to the punishment. A plea bargain can also include the prosecutor agreeing to charge a lesser crime (also called reducing the charges), and dismissing some of the charges against the defendant.” 1In 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 offence or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the negotiated charges’.2

Basically these definitions imply that Plea bargaining is a pre-trial negotiation which the law allows between the prosecution and the accused. As he is willing to cooperate with the prosecution and accept his guilt and even in some cases offers to compensate the victim this mechanism facilitates the reduction or dilution of his sentence.

Types of Plea Bargaining

Plea-Bargaining can be classified into types. One is Charge Bargaining in which the accused agrees to plead guilty in exchange of a promise to be charged with a less severe offence. For instance if he is involved in housebreaking where he also hurts somebody he is only charged with the offence of house breaking and damaging the property and not with grievous hurt which involves a bigger sentence. The next is Sentence Bargaining which involves a promise of a lesser sentence in comparison to the one provided for by the penal code. For instance if he is charged with theft and it involves a maximum three year sentence it will be reduced to half or reduced substantially. This is the most popular form of Plea bargaining and is codified in the current regime applicable to India. In addition to the abovementioned we have Fact bargaining where the accused guilty plea is conditional on the prosecutions promise of not proving an aggravating fact or not contesting accuser’s version of facts. This bargaining gains relevance during sentencing.

Further two kinds of plea bargaining also endorsed in International jurisprudence are Express and Implicit plea bargaining. Express bargaining occurs when an accused or his lawyer negotiates directly with a prosecutor or a trial judge concerning the benefits that may follow the entry of a plea of guilty. Implicit bargaining, on the other hand, occurs without face-to face negotiations. In Implicit bargaining, the trial judges especially, establish a pattern of treating accused who plead guilty more leniently than those who exercise the right to trial, and the accused therefore come to expect that the entry of guilty pleas will be rewarded.3

Introduction of Plea Bargaining in India

The Supreme Court was reluctant to introduce the concept of Plea Bargaining in India for a long time as it involves the accused bargaining away his constitutionally guaranteed right to fair trial in exchange for some leniency in punishment4. But The Gujarat High Court appreciated this procedure and observed in State of State Of Gujarat vs Natwar Harchandji Thakor 5 that, “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 realistic 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 plea bargaining is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.”

The Law Commission in its 142nd6 and 154th7 report highlighted the problems faced by the criminal justice system of the country. After studying numerous foreign criminal justice systems they made out a case for introducing plea bargaining in India. As it is an alternative to the constitutionally guaranteed right to fair trial they wanted the scheme to be introduced on an experimental basis over a limited number of offences. It was to be made inapplicable to grievous offences particularly against women, children and affecting the socio-economic fabric of the country.8 The Malimath Committee on Criminal Justice Reform also reiterated there stand by advocating in favour of Plea-Bargaining and agreed that the scheme can be introduced in a truncated manner. Eventually it was incorporated in the Criminal Procedure Code as Chapter XXI A containing Sections 265 A to 265 L by the Criminal Law (Amendment) Act of 2005.

Plea Bargaining in Criminal Procedure Code, 1973

As mentioned above Chapter XXI A of the Criminal Procedure Code provides the legislative framework of Plea-Bargaining in India contained in Sections 265A to 265L.Section 265A allows only an accused charged with an offence punishable with less than seven years to apply for plea bargaining. Further if the offence charged is against women and children or classified as a socio economic offence the application is not allowed. According to Section 265 B the application has to be filed in the court where the offence is pending for trial. Apart from containing a brief description of the offence charged it should be accompanied by an affidavit from the accused that he is opting for this procedure voluntarily and he has no previous conviction for the same offence. In addition to the affidavit the procedure directs the judicial officer to call the accused in person and confirm that the application has been filed voluntarily.

In practice this is done by administering a properly structured questionnaire to the accused in camera. The questionnaire administered to the accused informs him that he has a right to fair trial. That by resorting to plea bargaining he will forego his right to trial, right to confront the complainant, right to bring witnesses in support of his defence and right to be convicted only by proof reasonable doubt. That the judgment delivered by the plea-bargaining judge in terms of the mutually satisfactory disposition 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. Once the judicial officer is satisfied about voluntariness he will provide time for working out a mutually satisfactory disposition of the case which should have a provision for compensating the victim.

Section 265 C further gives guidelines for working out the mutually satisfactory disposition. Firstly all the stakeholders in the case namely the prosecution, accused, defence lawyer, accused and the victim are to be given notice for participating in the meeting for working out the mutually satisfactory disposition. This is significant as the victim is given the right to participate and be part of a process meant to dispose of the case. Secondly the judicial officer is made responsible to ensure voluntariness throughout the meeting. Once the meeting is over 265 D talks of filing a report regarding the outcome of the meeting irrespective of whether it is a success or failure.265 E gives directions for the final disposition of the case in the event of a successful disposition being worked out. The judicial officer is mandated to do the sentencing in terms of this provision which has an inbuilt relaxation in sentencing as a consideration of the accused’ guilty plea. This implies that opting for this procedure guarantees leniency in the sentencing as a matter of right. For instance If an offence has minimum punishment the Court may give half of it and where no minimum sentence has been provided it may give one fourth of the punishment provided. It also directs him to make use of the provisions dealing with admonition under Section 360 of the Criminal Procedure Code and probation under the provisions of Probation of Offenders Act, 1958.

265 G makes it clear that the judgment delivered by the Plea Bargaining Judge is final and the only appeal shall lie by a special leave petition under Article 136 and writ petition under Articles 226 and 227 of the Constitution.265 I allows for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this procedure.265 K assures the accused that the statements or facts stated by the accused in an application for Plea Bargaining filed under 265 B shall not be used for any other purpose than for this procedure.265 L is makes this procedure inapplicable to Juveniles or Children.

In addition to this codified procedure some High Courts have come out with detailed guidelines as to how Plea Bargaining should be administered in their criminal courts. Like the Delhi District Courts website has listed practice guidelines for the magistrates of various criminal courts in Delhi. 9It envisages a separate plea bargaining magistrate for disposing of the application. Though the application is made before a magistrate where the trial is pending. He forwards it to a separate magistrate designated as a plea bargaining magistrate for that case. This mechanism is created to curtail the possibility of any bias in the mind of the trial magistrate in the event of the plea bargaining application failing to lead to a successful mutually satisfactory disposition.

Plea Bargaining in United States of America

Plea Bargaining has emerged as one of the most popular procedures in the criminal justice system of U.S.A.10 for disposing of criminal cases without a formal trial. It accounts for ninety percent of all criminal convictions in the United States.11 In 1970 the American Supreme Court accepted the constitutionality of plea bargaining in Brady v. United States12and also encouraged its use in another celebrated case.13 Further Federal Sentencing Guidelines creates various levels of reduction in offences in case the defendant agrees to accept the responsibility of his actions thereby easing the burden of proving the case on the prosecution. Rule 11 of The Federal Rules of Criminal Procedure gives the legislative framework for administering plea bargaining in America. We come across various academic writings which appreciate its utility and also its wide use by the practitioners. But at the same time it is also being banned in various jurisdictions across America14.

Comparing the administration of Plea Bargaining in India and U.S.A.

The office of Prosecution commands immense relevance in America so it is directly allowed to negotiate an agreement with the accused. The judicial approval is sought once the agreement has been negotiated. In contrast the judicial officer plays the central role for administering plea bargaining in India. Further it’s a businesslike approach which guides negotiations in America thereby mandating the prosecutor to share all relevant information concerning the case with the accused. This is important as it facilitates the bargaining on equal terms. Further the American prosecutor asks the accused to plead guilty to certain or all the charges framed against him. In consideration of this he would recommend reduction of charges or a short or lenient sentence to the judge. But in India such charge bargaining is not permissible. Even if the accused pleads guilty he cannot bargain for reduction in charges. Irrespective of his plea the judicial officer is mandated to do sentencing within the guidelines provided by the legislature.

In contrast the American system allows the plea agreement to mention the quantum of sentence in exchange of which a guilty plea has been agreed to. Further the American system allows plea bargaining for all the offences except few making its applicability wide in scope. India only allows the accused to seek plea bargaining for a limited number of offences. Though there are significant differences in the administration of plea bargaining in India as compared with U.S.A but still some similarities do exist. Both jurisdictions stress the voluntariness of the accused as a pre condition for applying the procedure in disposing off a criminal case. Also both permit the withdrawal of the guilty plea up to a particular stage in case the accused wants to exercise his right to fair trial. Further both jurisdictions ban the use of any statement of the accused given during plea bargaining in any other proceeding.

Probation in Plea Bargaining

The process of probation is an alternative to incarceration. It is a procedure where the sentence of the accused is suspended and he gets released subject to conditions. As the larger goal is to reform and rehabilitate the accused the system avoids sending him to jail where he may come in contact with other hardened criminals. The legislative framework for probation is provided in the Probation of Offenders Act, 1958. The approach of the Indian judiciary has been to make Probation the norm and sentencing the exception. In the case of Plea bargaining the approach is to show flexibility towards the accused if he is willing to cooperate with the prosecution and plead guilty. Section 265 E 15of the Criminal Procedure Code which provides the sentencing guidelines when a plea bargaining is successful directs the judicial officer to make use of the provision of Probation in a liberal manner.

As the accused has already plead guilty no purpose will be served by giving him a harsh sentence. So in positive way the provisions of Plea Bargaining and Probation reinforce each other. Both the processes aim to reform and rehabilitate the accused. They also solve the problem of huge undertrials languishing in jail by providing alternatives to imprisonment.

Critical Analysis of the Existing Legal Regime for Plea Bargaining

As for the merits of this procedure there are various reasons which may persuade an accused to opt for plea bargaining. The formal trial is slow, cumbersome and lengthy and a lot of uncertainty is attached with its outcome. The litigation at the end of the day is a very costly affair and the desire to move on and start a fresh life is strong in the accused.

Further the statutory minimum sentence applicable in plea bargaining procedure is less severe and as a matter of practice is given as a matter of right. At times the accused genuinely feels sorry and wants to compensate the victim. Even the victim is willing to forgive the accused and wants the case to be over. This procedure then provides them with an opportunity to mutually go for a settlement of the criminal case. The advocates of Plea bargaining claim that the Act has enough safeguards for administering it. It gives an option to choose this procedure that too an instance of the accused. It makes sure that the accused participates voluntarily and the victim also gets to participate in the disposition of the case.

But plea bargaining has certain demerits also. It compromises the accused right to fair trial and eases the prosecutions burden of proving his guilt beyond reasonable doubt. In most of the cases the lack of appropriate investigation leads to the collection of such weak evidence that the accused is confident of a discharge.

Further most of the offences where plea bargaining is allowed are also compoundable and the accused prefer to opt for that procedure as it is quick and is concluded within the same court itself. It also does not lead to a conviction. Even where it is opted it may fail when the victim does not turn up for the meeting to work out a mutually satisfactory disposition or is not satisfied with the amount of compensation. Most of the times the accused might not be in a position to compensate as he belongs to a poor socio-economic background. In a country like India this might turn out to be a norm rather than being an exception. Further a basic lacuna in the codified procedure is the lack of a time line within which the application has to be disposed off. Though some High Courts give detailed guidelines containing the timeline the procedure is not as quick as it was envisaged to be.

As is evident from the legislative framework the judicial officer is made fully responsible to ensure voluntary participation by all in this procedure. The procedure does contemplate convincing the accused to forego his right of a fair trial so it becomes imperative that it inspires some confidence in the public. Further it gives recognition to the victim’s rights by giving him an opportunity to participate in the negotiation and get compensation out of the accused.

Conclusion

There is a dearth of authentic studies to study how the scheme is being in administered in various criminal courts across the country. We lack studies studying the experience of different stakeholders in dealing with this procedure. We get data only regarding the pendency of plea bargaining applications in case it gets listed in the websites of some district courts. According to statistics available for Delhi till 30/07/2013 out of 14442 total cases filed for plea bargaining only 7884 have been settled.16 Though the applications seeking plea- bargaining are regularly filed and listed for hearing a lot needs to be done to make the procedure more popular. If used with more frequency there is no doubt that it can substantially reduce the problem of pendency in Indian criminal courts.

On similar lines few instances of case reporting can be located for plea bargaining. In 2007 The Times of India had reported one of the first cases of plea bargaining in India. A Reserve Bank of India clerk charged with corruption charges had applied for plea bargaining to reduce his sentence.17As it was a corruption charge the court refused to entertain its application.

In other significant case 18 Uttrakhand High Court in March 2010 allowed the concept of plea bargaining. Here the charges were under section 420, 468 and 471 of IPC and the accused had supplied some substandard material to the ONGC who got the investigation done through CBI by lodging a criminal case against the accused. The trial court rejected the application as the required affidavit was not filed and no compensation had been fixed. As the C.B.I and ONGC had not opposed the application the Uttrakhand High court directed the trial court to accept the plea bargaining application.

There is universal agreement to the fact that the burgeoning of criminal cases and growing under trials is a big challenge to the credibility of the criminal justice system in India. Having an alternative dispute resolution mechanism like Plea bargaining is just one of the many solutions to this complex problem. The framework provided for compounding of offences and the provision of fast track courts are also part of the solution. But as this desire for introducing efficiency compromises the element of fairness in the system the procedure tries to balance the dichotomy between fairness and efficiency. As of now there should be a collective effort from all functionaries of the system namely the magistrate, defence lawyer, public prosecutor and the police to popularize this scheme amongst the accused and the victim. It has to be implemented with more success in its current form to consider its applicability for a wide range of offences.

Summary

Plea Bargaining is a pre–trial settlement between the prosecution and the accused where the latter agrees to plead guilty to the offences charged in consideration of leniency in sentencing or charge framing. In India the legislative framework of Plea-Bargaining is found in Chapter XXI A of the Criminal Procedure Code, 1973. It’s an alternative dispute resolution mechanism introduced solely to deal with the twin problems of huge pendency of criminal cases and resultant under trials. Though the Indian Supreme court was initially hostile to this scheme it gradually accepted its role in bringing efficiency to the criminal justice system .The Law Commission of India also advocated its use to solve the many challenges facing the system. The scheme was finally incorporated from the criminal justice system of U.S.A with some marked differences in the year 2005. The detailed procedure for the Scheme is contained in Sections 265 A to 265 L of the Criminal Procedure Code, 1973 where the judicial officer plays the central role and only sentence bargaining is allowed. Great emphasis is paid to the voluntary participation of the accused and even the victim’s participation and compensation is facilitated through the process of working out a mutually satisfactory disposition of the case. In America unlike the Indian jurisdiction the office of Prosecution plays the central role and charge bargaining is allowed. It’s applicable to a wide range of offences in contrast to India where only a truncated version has been adopted. As one of the objectives of introducing the procedure has been the reduction of under trials in jail the provisions for admonition and probation find a prominent place in the sentencing guidelines for the scheme. The scheme has its merits as it allows the accused to choose an option which is quick and efficient as compared to the formal trial which is lengthy and expensive. But its biggest demerit lies in the fact that the accused has to forego many rights associated with right to fair trial. The scheme covers this lacuna by making the judicial officer accountable for ensuring voluntary participation by the accused. Though the scheme is in the Cr.P.C since 2005 its impact cannot be assessed due to lack of studies on this area. But as a matter of urgency if the criminal justice system desires to inspire confidence in the common man and sustain itself then this procedure has to be used on a wider scale.

web links:

• www.indiacode.nic.in
• www.liiofindia.org