Author: Shantanu Anand
When a person rises in the morning he twists his limbs and is restless before he completely wakes up. Though we are in the year 2019, Plea Bargaining with its necessary delay is still in its new shoes, lacks landmark precedents with chequered career, narrow horizon and yet to rise. Most of the Indians are still unaware of this concept. Plea Bargaining, an American origin concept, is a nascent inclusion in the Criminal Procedure Code after the 2005 amendment. However, through this concept, it can be used to reduce the backlog of existing criminal cases. It has a volatile nature it may demoralize the confidence of the public in the justice delivery system, or otherwise. If offence is compounded in pecuniary terms, then the sentiment of atonement may not be there, but who knows?
What is it?
It is a mechanism ensuring “that victims receive acceptable justice in reasonable time without risking the prospects of hostile witness, inordinate delay and non-affordable costs.””
The process can be availed through two circumstances. Primarily through a report which is forwarded by SHO of a Police Station, after investigation, to the Magistrate. Secondly, through a complaint, received under section 190, of facts elaborating such offence which is followed by an examination of it under section 200 followed by the commencement of proceedings under section 204.”
Hitherto, it is still evolving and therefore it is not applicable for hard or serious crimes. Adding to it, the decision taken under plea-bargaining cases are final and no appeal lies on such decision. However, to keep a check, a writ petition to the High Court under Articles 226 or 227 of the Constitution or a Special leave petition to the Supreme Court under Article 136 of the Constitution is available to accused as a remedy in case of an unlawful bargain. The provisions of plea bargaining shall not apply to any Juvenile or child.
Who can avail?
An accused, if it appears that the offence has been committed by him, whose report has been forwarded by officer in charge under 173 Cr.P.C. via F.I.R. or through a complaint whereupon the magistrate has taken cognizance thereafter. This virtue is not available for the person(s) accused who have committed a crime punishable with imprisonment of life or term exceeding 7 years or more or death sentence or if the offence is committed against a woman or a child below the age of 14 years or any socio-economic offences affecting the country listed under section 265A of Cr.P.C.
This concept is derived from the principle of ‘Nolo Contendere’ which literally means ‘I do not wish to contend’ interpreted by the Supreme Court as an ‘implied confession, a quasi-confession of guilt, a formal declaration that the accused will not contend and the charge of the accused must be considered as true for the purpose of a particular case only.’ The legislation is intended to reach a ‘mutually satisfactory disposition’ through negotiation enabling speedy trial.
In its widespread and imprecise sense, it means a pre-trial negotiation between the prosecution and the defendant. In this process, defendant agrees to plead guilty in exchange of certain concessions by the prosecution without any major interference by court, though the interference and concession by the court is not a sine qua non of plea bargaining though in pleading guilty the court has this discretion of reducing the sentence to one-fourth after looking into the mitigating factors.
Generally, in India, Sections 206(1) and 206(3) of Cr.P.C.“and Section 208(1) of Motor Vehicles Act, 1988 enable the accused to plead guilty for petty offences or less grave offences and to pay small offences whereupon the case is closed also in an overt form it is indeed plea bargaining.
The Supreme Court in the catena of cases has held that a mere acceptance or admission of guilt should not be a ground for reduction of sentence.
Furthermore, to enumerate its types, it can be classified into different types, namely charge bargaining, sentence bargaining, fact bargaining.
Charge Bargaining, is most common and extensively known form of plea, which involves a negotiation of the charges framed or crimes in return for a plea of guilty to a lesser charge for example, in return for dismissing charges for first-degree murder, a prosecutor may accept a guilty plea for Manslaughter (subject to court approval).”
Sentence bargaining embodies a negotiation agreement to a plea of guilty in return for a lighter sentence. On pleading guilty, it provides the defendant with an opportunity for a lighter sentence..
Fact Bargaining is the type where the Prosecutor agrees not to reveal any aggravating factual circumstances to the court because, in consequence, it would attract a minimum mandatory sentence or to a more severe sentence under sentencing guidelines.”
While the country is shifting to ADR mechanism from the traditional lengthy process and time consuming, the plea-bargaining may be one of the best recourse as an ADR mechanism to meet the challenges of disposal of pending cases. Justice indeed becomes the casualty when a trial is lengthy and the defendant suffers in jail. The objective of justice delivery system is to provide easy, inexpensive and speedy justice by resolution of disputes, including the trial of criminal cases.
- It helps the Court to manage backlog of the cases.
- It makes the work easy for the prosecutors.
- The prosecution will have a chance to find the accused as guilty
- The system excludes the long pendency of trials in court.”
- The prosecution may put the defendant under mental pressure by virtue of the dominant position the prosecution possesses under Plea Bargaining.
- Though the procedure is voluntary, there maybe is a possibility that defendant is being coerced to enter into a plea bargaining
- It may result in unjust sentencing.
- Results in unwarranted leniency for offenders.
- There could be conflict of interests.
Critics of Plea Bargaining often argue that the concept put undue pressure on the defendants to plead to crimes that they did not commit, and the result, on the other hand, may depend strongly upon the negotiation skills of the defence lawyer, which gives persons who can afford better lawyers an upper edge.
Some critics of Malimath J. committee talk about the low conviction rate in criminal cases as the root cause of backlogs and prolonged trials in the country. On the contrary, they assert that the reason for this menace is lack of infrastructure and availability of funds. There are not enough courts to try the ever-increasing number of cases in our country; the cases are delayed due to perfunctory investigation by the investigating agencies, there are also not enough public prosecutors to try the accused. Therefore, the government has chosen a shortcut solution by way of introducing plea bargaining instead of striking at the root problem.
Plea bargaining canvasses “victim-oriented reform” to the criminal justice system. Victims have now become prime persons from being a forgotten actor. Victim’s right are now better upheld by their enhanced participation in the trail nonetheless it is an intelligent way to increase their conviction rates. It benefits the prosecution as well as proving a case beyond reasonable doubt is prolonged process.
Though it has been criticized by many jurists but for those belonging to the positivist school, it is constitutional and just. To conclude, plea bargaining is still a controversial and arguable concept. Some have welcomed it whereas others have disliked it, as this has failed to change the face of Indian Criminal Justice System.
 Sudipto Sarkar & V R Manohar, Sarkar Code of Criminal Procedure (9th ed., 2007).
 Section 265A, The Code of Criminal Procedure, 1973; K.P. Pradeep, Plea Bargaining- New Horizon In Criminal
Jurisprudence available at http://kja.gov.in/article/PLEA%20BARGAINING.pdf (last visited on 16th September,
 State of Gujarat v. N.H. Thakor, (2005) 1 GLR 709.
 Ibid at 3; 154th Law Commission Report.
 142nd Law Commission Report on Concessional Treatment for Offenders who on their own initiative Choose to
Plead Guilty without Bargaining, 1991.
 State v. Lakshman, 1998 CrLJ 2161 (Guj).
 State of Uttar Pradesh v Chandrika, AIR 2000 (SC) 164.
 K.P. Pradeep, Plea Bargaining- New Horizon In Criminal Jurisprudence available at
http://kja.gov.in/article/PLEA%20BARGAINING.pdf (last visited on 16th September, 2019).
 Shobhit Kumar, Plea Bargaining-a Unique Remedy for Unburdening Courts available at Manupatra (last visited
on 16th September, 2019).
About the Author: Shantanu is a third-year B.A.LL.B(Hons) student at Dr. Ram Manohar Lohia National Law University, Lucknow.
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