Plea Bargaining in India: A call for Law Making

Plea bargaining is an effective way of reducing the burden on the judiciary that exists in India. It is an ideal way of reaching a settlement and dispensing justice at the same time. There is no law in India which specifies a procedure for the same. The article details the same.

Chapter XXI A of the Code of Criminal Procedure, 1973 inserted by Section 4 of the Criminal Law (Amendment) Act,2006 (Act No.2 of 2006) provides for Plea Bargaining in India. According to Black’s Law Dictionary, Plea Bargaining means the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval[1]. In return of a promise of lesser punishment the accused with the satisfaction of the prosecution/complainant as the case may be, admits his guilt, compensates the victim and undergoes the punishment in a compromise which is very much suited to the current judicial scenario in India.

Where there is law, conflict with the Law is bound to take place. These crimes need to be reported, a credible investigation, a fair prosecution, and trial needs to take place, and in India the credibility of this judicial process is under clouds of doubt with the dismal conviction rate and a high acquittal rate and the fact that majority of the crimes happening are not reported is another piece of the problem. The Courts in India are clogged with cases and an overburdened judiciary adds fuel to this fire and to combat all this Plea Bargaining offers a limited solution.

The purview of Plea Bargaining

Due to the compromising nature of Plea Bargaining, it is extended to a certain grouping of offences only. Plea Bargaining does not extend to an offence for which the punishment is death or of imprisonment for a term extending seven years has been provided under the law for the time being in force[2]. Also, offences which affect the socio-economic condition of the country or have been committed against a woman or a child below the age of fourteen years do not come under the purview of Plea Bargaining[3]. The Central Government is empowered to determine the offences affecting the socio-economic conditions of the country[4]. It also doesn’t extend to the Juvenile Justice (Care and Protection) Act,2000.[5]

Also Read  The role of President while Appointing Prime Minister in a Hung Parliament in India

Requisites for application of Plea bargaining in India

For the procedure of Plea Bargaining to begin, it is essential that the Police Report under Section 173 has been filed[6] or the Magistrate has taken cognizance of any offence and Examination of complainant/witnesses under Section 200 has been completed and Issue of Process under Section 204[7] has been done.

Application of Plea bargaining in India

If an accused wishes to initiate the process of plea bargaining, he/she is required to make an application[8] which is to be accompanied by a brief description of the case, the offence charged in the case, an affidavit stating that the application for plea bargaining was made voluntarily after understanding the nature of offence and punishment that may be awarded along with a declaration that he/she has not been previously convicted in the same case[9].

Upon receipt of the application, the Court shall issue a notice to the prosecutor/complainant and the accused and fix an appropriate date for deliberations on the application[10]. In case the complainant is absent, for his satisfaction, the accused will be examined in camera[11].

Once the Court is satisfied that the application has been filed by the accused voluntarily, Court provides time to the parties, i.e., the Accused and the Prosecutor/Complainant to work out a mutually satisfactory disposition of the matter[12]. This has to take place in the monitoring of the Court that the proceedings are going voluntarily[13].

Guidelines for A Mutually Satisfactory Disposition

The Mutually Satisfactory Disposition may include compensation to the victim by the accused, case expenses and other allied expenses[14]. The Court, in a case instituted upon a police report, shall issue a notice to the Public Prosecutor and the Investigating Police Officer as well to participate in the proceedings other than the parties with their pleaders[15].

Also Read  Employees Compensation (Amendment) Act 2017

Disposal of the Case

If the parties reach a mutually satisfactory disposition, the Courts shall prepare a report of the same signed by the Presiding officer as well as the participants to the deliberations process[16]. Otherwise, the Court shall record an observation on the same and proceed with the case in the same way as it was before the application was made[17].

After this, the victim will be compensated by the accused and the Court deliberations regarding the quantum of punishment to the accused need to be provided are begun. In determining the same the Court takes into account the applicability of Section 360[18], the provisions of The Probation of Offenders Act, 1958 or any other law. If it satisfies, the Court may release the accused accordingly. Other than that, the Court may:

  • In an offence where the minimum punishment has been prescribed, the Court will award a sentence equivalent to one-fourth of the same.
  • If minimum punishment is not provided, the accused may be sentenced to one-fourth of the punishment provided o extendable too.

Furthermore, the period of detention undergone by the accused otherwise than in lieu of fine before the date of conviction is to be set-off against the sentence of imprisonment[19].

Judgment

The judgment in a case of plea bargaining is delivered in an open court, signed by the Presiding Officer[20]. Also, this judgment is final and no appeal lies against it other than a Special Leave Petition[21] or a Writ Petition under Article 226 and 227 of the Constitution.[22]

Umbrella Protection

Section 265 K, in order to encourage people to opt for plea bargaining and as per natural justice and good conscience, provides that Statements made and confessions recorded during the Plea Bargaining Proceedings, upon non conclusion of a mutually satisfactory disposition and reverting back of the case to trial proceedings are to be used as evidence therein. It is an extremely important provision otherwise no one would opt for Plea Bargaining.

Also read Altering the Compensatory Scheme under The Unlawful Activities (Prevention) Act: An aim at reducing false convictions

[1] Bsyan A. Gasnes &Henry Cambell, Black Law Dictionary 6th Edition (1173)

Also Read  Syed Farooq Mohammad v. Union of India and Anr

[2] Section 265 A (1)(a), The Code of Criminal Procedure, 1973

[3] Section 265 A, The Code of Criminal Procedure, 1973

[4] Section 265 A (2), The Code of Criminal Procedure, 1973

[5] Section 265 L, The Code of Criminal Procedure, 1973.

[6] Section 265 A (1)(a), The Code of Criminal Procedure, 1973

[7] Section 265 A (1)(b), The Code of Criminal Procedure, 1973

[8] Section 265 B (1), The Code of Criminal Procedure, 1973

[9] Section 265 B (2), The Code of Criminal Procedure, 1973

[10] Section 265 B (3), The Code of Criminal Procedure, 1973

[11] Section 265 B (4), The Code of Criminal Procedure, 1973

[12] Section 265 B (4)(a), The Code of Criminal Procedure, 1973

[13] Section 265 C (a), The Code of Criminal Procedure, 1973

[14] Section 265 B (4)(a), The Code of Criminal Procedure, 1973

[15] Section 265 C (a), The Code of Criminal Procedure, 1973

[16] Section 265 D, The Code of Criminal Procedure, 1973

[17] Section 265 C (a), The Code of Criminal Procedure, 1973

[18] Section 360, The Code of Criminal Procedure, 1973: The accused may be released on probation as regard being had to the age, character, antecedents of the offender and the circumstances in which the crime was committed.

[19] Section 265 I, Section 468, Section 265 G, The Code of Criminal Procedure, 1973

[20] Section 265 F, The Code of Criminal Procedure, 1973

[21] Article 136, The Constitution of India, 1950.

[22] Section 265 G, The Code of Criminal Procedure, 1973