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Plea Bargaining-

Plea Bargaining can be defined as pre-trial negotiations between the accused and the
prosecution. It is an agreement in which the defendants pleads guilty to a lesser charge and the
prosecutors in return drops more serious charges.
According to Supreme Court of US,
J. Warren Burger;
Plea Bargaining is an essential component of administration of justice. Properly administered,
it is to be encouraged. It leads to prompt and largely final disposition of most criminal cases.

There is no perfect definition of plea-bargaining. Blacks law dictionary defines it as follows:


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. It is usually involves the
defendants guilty to a lesser offence or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that possible for graver charge.
In practice, plea bargaining often represents not so much mutual satisfaction as perhaps
mutual acknowledgment. It usually occurs prior to trial but, in some jurisdictions, may occur
any time before the verdict is rendered.
Plea-bargaining falls into two distinct categories depending upon the type of prosecutorial -
concession that is granted.
charge bargaining which refers to a promise by the prosecutor to reduce or dismiss
some the charges brought against the defendant in exchange for a guilty plea.
sentence bargaining refers to a promise by the prosecutor to recommend a specific
sentence or to refrain from making any sentence recommendation in exchange for a
guilty plea.
The validity of a plea-bargaining is dependent upon three essential components:
A knowing waiver of right
A voluntary waiver
A factual basis to support the charges to which the defendant is pleading guilty

Practice not prevalent in India:


Initially it was not recognized under Indian Law, therefore, not much importance was given
to it as it was not in statutes. Reference may, however, be made to Section 206(1) and 206(3)
of the Code of Criminal Procedure and Section 208(1) of the Motor Vehicles Act, 1988. These
provisions enable the accused to plead guilty for petty offences.

Position under US law and Indian Law:


This concept has not emerged recently but existed even in 19th century. In the United
States, plea-bargaining is a significant part of the criminal justice system, Majority of
criminal cases are settled by plea-bargaining rather than by a trial by jury. But it is a subject
to the approval of the court. More than 90% of the cases are settled through Plea-
bargaining in US. It has become a prominent feature of American Judiciary that the
disposing rate of cases is very rapid therefore, backlog is under control. Prosecutor initiates
about the plea-bargaining proceedings. it helps in speedy disposal of accumulated cases
and will expedite delivery of criminal justice.
In 1970 the constitutional validity of plea bargaining was upheld in Brady vs United States,
379 US 742(1970) where it was stated that it was not unconstitutional to extend a benefit to
an accused that it turn extends a benefit to the state.
Santobello v. New York 404 US 257 The United State Supreme Court formally accepted that
plea bargaining was essential for the administration of justice and when properly managed

In India, position is very different from US. As it came in the amendment Act of 2005 in
Code of Criminal Procedure, there are not much cases regarding it but even though,
position under Indian Judiciary is very clear. Every time it was opposed by court of law by
saying that it is not recognized under Indian law and other reasons. Unlike in US, where
plea-bargaining is for all sort of offences but in India, it is not for socio economic offences
or the offences against women and children. Court has to take great care at the time of
application of plea-bargaining, therefore, there is no recent case in which plea-bargaining
has accepted. Speedy trial is the essence of criminal justice and there can be no doubt, if
there is delay in trial by itself, constitutes denial of justice.
Law Commission of India in its 142nd and 154th report suggested the concept of Plea-
bargaining in India. They observed that this tool will be alternative to be explored to deal
with huge arrears of criminal cases. Malimath Committee was also substantially in
agreement with the views and recommendation of the Law Commission.
142nd Report

The commission was of the considered opinion that a scheme, to be known as scheme for granting
prayer for concessional treatment made by accused pleading guilty voluntarily requires to be introduced
in the criminal justice system in India by way of enacting a legislation according statutory recognition and
authority to the scheme.

In its 142nd report, the Law Commission discussed the matter of plea bargaining with many
states and jurists and came to some of the following observations

1) Only the offender himself may invoke the scheme.

2) The application will be entertained only after the competent authority is, upon ascertaining
in the manner specified in the scheme, is satisfied that is made voluntarily and knowingly.

3) The competent authority will hear the application in the presence of the aggrieved party and
the public prosecutor and after affording a short hearing to them.

4) The competent authority shall have the power to impose a jail term or fine or direct the
accused applicant to pay compensation to the aggrieved party for compounding the offence in
regard to the offences, which are compoundable with or without the leave of court.

. 154th Report

The arrears of criminal courts awaiting trial are assuming menacing proportions. Grievances have been
vented in public that the disposal of criminal trials in the courts take considerable time and that in many
cases trials do not commence for as long as a period of three or four years after the accused was remitted
to judicial custody.

In its 154th report, Law Commission has given the following recommendations
1) The process of plea bargaining shall be set in motion after issue of process and when the
accused appears, either on written application by the accused to the court or suo moto by the
court to ascertain the willingness of the accused. On ascertainment of the willingness of the
accused, the court shall require him to make an application accordingly.

2) The order passed by the court on the application of the accused-applicant shall be confidential
and will be given only to the accused if he so desires. The making of such application by the
accused shall not create any prejudice against the accused at the ensuring trial
3) In cases where the provisions of Probation of Offenders Act, 1958 or s.360 of Cr.P.C are
applicable to an accused applicant, he would be entitled to make an application that he is
desirous of pleading guilty along with a prayer for availing for the benefit under the legislative
provisions referred in above. In such cases, court after hearing the public prosecutor and the
aggrieved party, may pass an appropriate order conferring the benefit of those legislative
provisions. The court may be empowered to dispense with necessity of getting a report from
the probation officer in appropriate cases.
4) The court shall on such a plea of guilty being taken, explain to the accused that it may record
a conviction for such an offence and it may after hearing the accused proceed to hear the public
prosecutor or the aggrieved person as the case may be:

i) Impose a suspended sentence and release him on probation;

ii) Order him to pay compensation to the aggrieved party; or

iii) Impose a sentence, which commensurate with the plea bargaining; or

iv) Convict him for an offence of lesser gravity than that for which the accused has been charged
if permissible in the facts and circumstances of the case.
177th Report
The law commission of India in its 177th report recommend that;
On the issue of plea bargaining, the 154th report recommended a new Chapter, Chapter XXIA to
be incorporated in the Code as recommended therein. The said report indeed referred to the
earlier report of the law commission 142th report. We do not think it necessary to reproduce
the same. Suffice it to say that we support and reiterate the said recommendations.

The recommendation of the 154th Law Commission Report was supported and reiterated by the
Law Commission in its 177th Report. Further, the Report of the Committee, committee on the
reform of criminal justice system, 2003 under the Chairmanship of Justice (Dr) Malimath
stated that the experience of United States was an evidence of plea bargaining being a means
for the disposal of accumulated cases and expediting the delivery of criminal justice.

Proposed system by law commission of India-


whereas even the plea-bargaining as it obtains in the American system has been
held constitutional by the united states Supreme Court, what is being proposed is a system
where
(1) There will be no bargaining at all between prosecution and defence;
(2) The accused alone can take the initiative to move the machinery for concession
(3) The application will be entertained only if the plea court fully satisfied that it is
voluntarily made without coercion and only if there is some prima facie material; and
(4) All safe guards are provide.

Plea bargaining in India:

It introduced by Criminal Law Amendment Act, 2005. A new Chapter XXI A on Plea Bargaining
was introduced in the Criminal Procedure Code, 1973. The term Plea Bargaining can be
defined as pre-trial negotiations between the accused and the prosecution where the accused
pleads guilty in exchange for certain concessions by the prosecution. The twin object of plea
bargaining is to reduce the delay involved in criminal trial and to punish the accused with a
lesser sentence for pleading his guilt.

Types of Plea Bargaining

Plea Bargaining can be divided into two categories:

Charge Bargaining : In case of charge bargain, the accused pleads guilty in exchange of
the promise made by prosecutor to reduce or dismiss some of the charges brought
against him.
Sentence Bargaining : In case of sentence bargaining the accused pleads guilty in
exchange of a promise by the prosecutor to recommend a lighter or alternative
sentence.

The concept of plea bargaining is applicable to an accused against whom:

Police report has been forwarded by the officer in charge of the police station alleging
commission of offence by the accused;
A Magistrate has taken cognizance of an offence on complaint.

The provisions of the chapter are not applicable to:

any juvenile, or
child

Plea Bargaining is not available to an accused if:

If he has been charged with offences punishable with death, life imprisonment, or a
term exceeding seven years,
The offence with which the accused had been charged affects the social-economic
condition of the country, or
Offence has been committed against a woman, or a child below the age of fourteen
years.
Socio-economic offences

as per the notification of the ministry of home affairs dated 11 july 2006 following ACT notified which are
outside the purview of plea bargaining.
1) Dowry prohibition act, 1961
2) The commission of sati prevention act, 1987
3) The indecent representation of women (prohibition) act,1986
4) The immoral traffic (prevention) act, 1956
5) Protection of women from domestic violence act, 2005
6) The infant milk substitutes, feeding bottels and infant foods (regulation of production, supply and
distribution) act, 1992
7) Provision of fruit product order 1955 (issued under essential services commodities act, 1955)
8) Provision of meat food products orders, 1973 (issued under the essential services commodities act,
1955)
9) Offences with respect to animals in schedule 1st and part 2 of schedule 2nd as well as offences related
to altering of boundaries of protected areas under wildlife (protection) act, 1972
10) The schedule castes and schedule tribes (prevention of atrocities ) act, 1989
11) Offences mentioned in protection of civil rights act, 1955
12) Offences mentioned in section 23 to 28 of the juvenile justice (care and protection of children) act,
2000
13) The army act, 1950
14) The air force act, 1950
15) The navy act, 1957
16) Offences specified in section 59 to 81 and 83 of Delhi metro railway (operation and maintenance) act,
2002
17) The explosive act, 1884
18) Offences specified in section 11 to 18 of the cable television networks (regulation) act,1955
19) Cinematography act, 1952

Procedure of Plea Bargaining

A person accused of an offence may file an application for plea bargaining in the Court
in which such offence is pending for trial.
The application shall contain a brief description of the case and shall be accompanied by
an affidavit of accused stating that he has voluntarily preferred the application and has
not previously been convicted by a Court with the same offence.
If the Court finds that the application was made involuntarily by the accused or he has
been previously convicted by a Court, it shall proceed with the trial of the case.

After receiving the application, the Court shall issue notice to the Public Prosecutor or
the complainant and to the accused to appear on the date fixed for the case.
The Court shall examine the accused in camera, where the other party in the case shall
not be present, to satisfy itself that the accused has filed the application voluntarily.
Where the Court is satisfied that the application has been filed by the accused
voluntarily, it shall provide time to the Public Prosecutor or the complainant and the
accused to work out a mutually satisfactory disposition of the case which may include
compensation and other expenses to be given to the victim.
Throughout the process of working out a satisfactory disposition of the case, it shall be
the duty of the Court to ensure that it is completed voluntarily by the parties
participating in the meeting.
The Court shall prepare a report of the satisfactory disposition worked out by the
parties and shall dispose of the case by awarding the compensation to the victim in
accordance with the disposition and hear parties on quantum of punishment and
releasing accused on probation of good conduct or after admonition under section 360
or for dealing with the accused under the provisions of the Probation of Offenders Act,
1958 (20 of 1958) or any other law for the time being in force.
If the Court finds that minimum punishment has been provided under the law for the
offence committed by the accused, it may sentence the accused to half of such
minimum punishment; or it may sentence the accused to one-fourth of the punishment
provided or extend able, as the case may be, for such offence.
The judgment shall be pronounced in open Court.
Period of detention undergone by the accused has to be set off against the sentence of
imprisonment.
The statements or facts stated by an accused in an application for plea bargaining shall
not be used for any other purpose except for the purpose of plea bargaining application
Girraj Prasad Meena vs. State of Rajasthan and Ors.(sc/0995/2013)
Case Note:
Criminal - Application for pleading guilty - Trial Court allowed the application of the Respondents-Accused for
the offences punishable under Sections 323 and 343 of the Indian Penal Code, 1860 (IPC) and also gave them the
benefit of Section 12 of the Probation of the Offenders Act, 1958 - High Court dismissed the further application
on the ground that the Appellant did not challenge the order taking cognizance nor any objection was raised
when charges were read over to the accused and the Respondents-Accused were convicted on their pleading
guilty regarding and held that there was no obligation in law to hear the Appellant or any other witness at this
stage and the Trial Court was right in passing the impugned order - Hence the present appeal - Held, filing of
charge sheet and taking cognizance has nothing to do with the finality of charges, as charges framed after the
cognizance is taken by the court, can be altered/amended/changed and any charge can be added at any stage
upto the stage of conviction - Only legal requirement is that, in case the Trial court exercises its power under
Sections 228/251 Cr.P.C., the accused is entitled to an opportunity of show-cause/hearing as required under the
provisions of Section 217 Cr. P.C. - Appellant had been raising the grievance from the very beginning that the
police has not been investigating the case properly and for that purpose, he had also approached the High Court
wherein several directions were issued for a fair investigation - Appellant in the statement under Section 164
Cr.P.C. gave full version as to how he had been kidnapped and named 7 persons and serious allegations of
criminal intimidation, threats, terrorising and causing physical harm - Had the trial court applied its mind to the
material collected during investigation and particularly the statement recorded under Section 164 Cr.P.C., the
charges could have been framed also under Section 365 IPC - Trial court proceeded not only in great haste, but
adopted a procedure not known in law, and the judgment and order of the trial court therefore stands vitiated -
Trial court has no competence to make any observation having civil consequences so far as the private
respondents are concerned - Matter accordingly remitted to the Trial court to be decided afresh in accordance
with law.

State of M.P. vs. Bablu Natt (SC/8478/2008)


Case Note:
Indian Penal Code, 1860 - Sections 366 and 376--Sentence--Trial court convicted and sentenced respondent to
undergo 7-7 years R.I. for offences under Sections 366 and 376--High Court reduced sentence to four years and
two months already undergone by respondent--Whether calls for interference?--Held, "yes"--No adequate and
special reasons assigned by High Court in reducing sentence below minimum prescribed --Affidavit of
prosecutrix could not be used in favour of accused-respondent--As it was obtained by respondent without her
knowing contents thereof--Judgment of High Court on sentence set aside--Sentence awarded by trial court
restored

Finality of Judgment
The judgment delivered by the Court under section 265G shall be final and no appeal shall lie
against it except the special leave petition under Article 136 and writ petition under Articles
226 and 227 of the Constitution.