Author Name:   Arvind Lakhawat Advocate

Plea bargaining advances speedy trials and helps in reducing the burden of courts and allows to concentrate in more serious and societal issues. Justice delayed is Justice denied.

Nature and Scope of Plea Bargaining

Abstract
Plea bargaining advances speedy trials and helps in reducing the burden of courts and allows to concentrate in more serious and societal issues.
"Justice delayed is Justice denied."

A new chapter - Chapter XXI A - on 'plea bargaining' has been inserted in the Criminal Procedure Code (1973) to remove this quotation up to a certain limit. A notification to bring into effect the new provision has been issued and it has come into effect now, the Union Home Ministry said in a release here.

Plea bargaining was introduced through the Criminal Law (Amendment) Act, 2005, which was passed by Parliament in the winter session. The provision is likely to bring relief to a large number of undertrials lodged in various jails of the country and help reduce the long pendency in the Courts.

It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of seven years (Devendra Singh v. State and Others), it does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman or a child below the age of 14 years. It has been implemented to all India except state of Tamil Nadu.

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case whereby the prosecutor offers the Defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence. Most criminal Defendants are offered plea bargain. A plea bargain gives criminal Defendants the opportunity to avoid sitting through a trial risking conviction on the original more serious charge. For example, a criminal Defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry jail time. In cases such as a car accident when there is a potential for civil liability against the Defendant, the Defendant may agree to plead no contest or "guilty with a civil reservation", which essentially is a guilty plea without admitting civil liability.

Black's 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 usually involves the Defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count INDICTMENT in return for a lighter sentence than that possible for the graver charge".

In practice, plea bargaining often represents not so much "mutual satisfaction" as perhaps "mutual acknowledgement" of the strengths or weaknesses of both the charges and the defenses, against a backdrop of crowded Criminal Courts and Court case dockets. Plea bargaining usually occurs prior to trial but, in some jurisdictions, may occur any time before a verdict is rendered. It also is often negotiated after a trial that has resulted in a HUNG JURY: the parties may negotiate a plea rather than go through another trial.

Plea bargaining actually involves three areas of negotiation:
• Charge Bargaining: This is a common and widely known form of plea. It involves a negotiation of the specific charges (counts) or crimes that the Defendant will face at trial. Usually, in return for a plea of "guilty" to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. 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: Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the Defendant with an opportunity for a lighter sentence.

• Act Bargaining: The least used negotiation involves an admission to certain facts ("stipulating "to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into Evidence.

The validity of a plea bargain is dependent upon three essential components :
• a knowing WAIVER of rights,
• a voluntary waiver,
• a factual basis to support the charges to which the Defendant is pleading guilty.

Plea bargaining generally occurs on the telephone or in the Prosecutor's office at the courtroom. Judges are not involved except in very rare circumstances. Plea bargains that are accepted by the Judge are then placed "on the record" in Open Court. The Defendant must be present.

One important point is a prosecuting attorney has no authority to force a Court to accept a plea agreement entered into by the parties. Prosecutors may only "recommend" to the Court the acceptance of a plea arrangement. The Court will usually take proofs to ensure that the above three components are satisfied and will then generally accept the recommendation of the prosecution.

Moreover, plea bargaining is not as simple as it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the technical knowledge of every "element" of a crime or charge, an understanding of the actual or potential evidence that exists or could be developed, a technical knowledge of "lesser included offenses" versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.

Bargaining for a reduction in either the number, or severity of criminal charges is referred to as charge bargaining.

Bargaining for a favorable sentence, recommendation by the Prosecutor, or bargaining directly with a Trial Judge for a favorable sentence is referred to as sentence bargaining. In cases of sentence bargaining, Trial Judges, ordinarily opt to impose sentences not more severe than those recommended by Prosecutors or else afford Accused an opportunity to withdraw their guilty pleas. Although charge bargaining and sentence bargaining are the most common forms of plea bargaining, they are not the only ones. Other kind is fact bargaining.

In fact bargaining, a prosecutor agrees not to contest an Accused's version of the facts or agrees not to reveal aggravating factual circumstances to the Court. This form of bargaining is likely to occur when proof of an aggravating circumstance would lead to a mandatory minimum sentence or to a more severe sentence under sentencing guidelines. A Prosecutor may also agree to provide leniency to an Accused's accomplices, withhold damaging information from the Court, influence the date of the Accused's sentencing, arrange for the Accused to be sent to a particular correctional institution, request that an Accused receive credit on the sentence for time served in jail awaiting trial, agree to support the Accused's application for parole, attempt to have charges in other jurisdictions dismissed, arrange for sentencing in a particular Court by a particular Judge, provide immunity for crimes not yet charged, or simply remain silent when a recommendation otherwise might be unfavourable. Apart from this, taking into consideration of the other aspects, there are two kinds of plea bargaining, as endorsed in International jurisprudence, i.e., 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 bargainings, 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.

Indian Law on Plea Bargaining

As noted earlier, in India, the system of plea bargaining is in its experiment stage. The system was introduced as a result of criminal law reforms introduced in the Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). Section 4 of the Amendment Act introduced Chapter XXIA to the Code having Sections 265 A to 265 L. Though the Act was passed in 11th January, 2006, the provisions were notified and came into effect from 5th July, 2006 only.

Applicability
Section 265 A deals with applicability of the Chapter XXIA. Benefit of Plea bargaining can be extended in two circumstances. One is, if a report is forwarded by a Station House Officer of a Police Station after the completion of investigation to the Magistrate. The other is, if the Magistrate has taken cognizance of an offence on a complaint under Section190 (a) followed by examination of a Complainant and witness under Section 200 or Section 202 and issuance of process under Section 204. Thus, it means, after commencement of proceedings upon a private complaint under Section 190 (a) of the Code.

However, if the Accused is involved in an offence, which is punishable to death, life imprisonment or of imprisonment more than seven years, benefit cannot be extended.

Apart from that for offences affect socio- economic conditions of the country, which are notified by the Central Government or offences against woman or offences against a child below the age of 14 years, benefit of plea bargaining is not available. Under Section 265 L, the provisions of plea bargaining is not applicable to any Juvenile or Child as defined under Juvenile Justice (Care and Protection of Children) Act, 2000. The Savings provisions under Section 265J has extended an independent existence to the Chapter, in case of inconsistency with other provisions of the Code.

Procedure
As per Section 265 B, the process of plea bargaining starts with an application from Accused. The application is to be filed before the Trial Court only. The application must be in writing, with brief description of facts of the case supported with an affidavit sworn by the Accused affirming the genuineness of application as voluntarily submitted. Section 265 A (2) of theCode gives power to notify the offences to the Central Government. The Central Government issued Notification No. SO 1042 (II) dated 11th July, 2006 enumerating the offences. with details of previous conviction of the Accused. Upon receipt of application, the Trial Court has to issue notice to prosecution, either to public prosecutor or to Complainant in Section 190 (a) cases and also to the Accused intimating the date of hearing of application. While appearing before the Court, after receipt of notice from the Court, the examination of the Accused shall be done in-camera, avoiding the presence of other parties. It is specifically required so, to ensure the genuineness and authority of application. Before proceeding further, the Court has to ensure that the application is made voluntarily by the Accused. If the Court feels, after examination of the Accused, the application is involuntarily submitted or the Accused is not eligible for plea bargaining on the ground of earlier conviction in a case charged with same offence, the Court has to drop the proceedings and proceed further with the trial from the stage, wherein the application is entertained by the Court.

After examination of the Accused, if the Court feels the eligibility of the Accused for plea bargaining, then proceed further for a settlement, giving time to prosecution and Accused to work out a mutually satisfactory disposition of the case. Such a mutually satisfactory disposition includes awarding of compensation and other charges and legal expenses to the victim. There must be a notice to Public Prosecutor (defined under Section 2(u) and explained in Section 25 of the Code), Investigation Officer of the case, victim or defacto Complainant and to the Accused, in cases instituted upon police report, to work out the solution in a joint meeting of the parties. In cases instituted otherwise than a police report, there shall be notice to the Accused and the Complainant/victim to participate in the joint meeting. The Accused can participate with his Lawyer in the meeting. That means the actual presence of the Accused is required irrespective of a representation through the Lawyer. Apart from that, the Court shall ensure that every actions of the parties during the meeting is voluntarily made and without any vitiating or coercive elements. That means the presence of the Judicial Officer is necessary, during the process of joint meeting. Under Section 265 D, the Court has to prepare a report, if a mutual satisfactory disposition of the case has been worked out and such report shall be signed by the presiding officer of the Court and the parties in the Joint Meeting. If no satisfactory disposition is made out, the Court has to proceed with the case, by dropping the proceedings in plea bargain and start the proceedings from the stage, wherein the application is entertained.

Disposal of Case on the Basis of Report

After completion of proceedings under Section 265 D, by preparing a report signed by the presiding officer of the Court and parties in the meeting, the Court has to hear the parties on the quantum of the punishment or Accused's entitlement of release on probation of good conduct or after admonition. Court can either release the Accused on probation under the provisions of Section 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force, or punish the Accused, passing the sentence. While punishing the Accused, the Court, at its discretion, can pass sentence of minimum punishment, if the law provides such minimum punishment for the offences committed by the Accused or if such minimum punishment is not provided, can pass a sentence of one-fourth of the punishment provided for such offence. Apart from this, in cases of release or punishment, if a report is prepared under Section 265 D, report on mutually satisfactory disposition, contains provision of granting the compensation to the victim the Court also has to pass directions to pay such compensation to the victim. The Court has to pronounce the Judgment, under Section 265 F, in terms of its findings under Section 265 D, either releasing the Accused or punishing the Accused. The Judgment passed under Section265 F is final and no appeal will lie against such Judgment under Chapter XXIX of the Code. However, such Judgments are subject to challenge under Articles 226 and 227 of the Constitution before the High Court by filing Writ Petition and Article 136 of the Constitution before the Supreme Court by filing special leave petition. A Court, while proceeding with an application of plea bargaining has all the powers invested with a Court, under the provisions of the Criminal Procedure Code in respect of granting and rejecting bail, trial of offences and other general matters relating to disposal of case, particularly under provisions in Chapter XXIV of the Code. 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 Section265E. He is entitled to a set off the period of detention, he had already undergone in the same case, during the investigation, inquiry or trial, but before the date of conviction, in compliance of the provisions of Section 428 only. This provision enables early release of undertrial prisoners, who are the real victims of our delayed judicial process.

Thus, the provisions of Chapter XXIA extends the scheme of plea bargaining in the Indian Criminal Jurisprudence, to a limited extend only, by giving discretion to the Court, restricting excess power to the prosecution, as seen from International jurisprudence, by giving sufficient measures to prevent the abuse of process. Though Section 265C does not state about the nature of bargaining, it is a consolidation of Charge, Sentence and Fact plea-bargaining, as the provision says about the mutual satisfactory disposition, which has wider connotation to canvass the characteristics of these kinds of plea bargaining.

Advantages of Plea Bargaining

Significant feature of method of plea bargaining is that it helps the Courts and State to manage the case loads. It reduces the work load of the prosecutors enabling them to prepare for gravest case by leaving the effortless and petty offences to settle through plea bargaining. It is also a factor in reforming the offender by accepting the responsibility for their actions and by submitting them voluntarily before the law, without having an expensive and time consuming trial. In cases wherein the prosecution is weak, if trial is concluded, for want of proper witnesses or evidences and the ultimate result may be an acquittal, the prosecution will have a chance to find the Accused as guilty, by cooperating with the Accused for a plea bargaining.

An intelligent Prosecutor may agree for a plea bargaining of an insignificant Accused to collect evidence against other graver Accused. Normally, in cases wherein aged or women witnesses have the vital role to prove a charge against the Accused, their death or non-co-operation, may be a real cause for adverse conclusion of the case. Here, the prosecution avoids a chance of acquittal and the Accused avoids a chance of conviction for more serious charges with higher punishment. From the angle of victim also, plea bargaining is a better substitute for his ultimate relief, as he can avoid a lengthy Court process to see the Accused, be convicted. The system gives a greater relief to a large number of undertrials lodged in various jails of the country and helps reduce the long pendency in the Courts.
There are some other supporting factors of plea bargaining which fall into three main categories.

First, some jurists maintain that it is appropriate as a matter of sentencing policy to reward Defendants who acknowledge their guilt. They advance several arguments in support of this position, notably, that a bargained guilty plea may manifest an acceptance of responsibility or a willingness to enter the correctional system in a frame of mind that may afford hope for rehabilitation over a shorter period of time than otherwise would be necessary.

A second view treats plea bargaining, not primarily as a sentencing device, but as a form of dispute resolution. Some plea bargaining advocates maintain that it is desirable to afford the Accused and the state the option of compromising factual and legal disputes. They observe that if a plea agreement did not improve the positions of both the Accused and the state, one party or the other would insist upon a trial.

Finally, some observers support plea bargaining on grounds of economy or necessity. Viewing plea negotiation less as a sentencing device or a form of dispute resolution than as an administrative practice, they argue that society cannot afford to provide trials to all the Accused who would demand them if guilty pleas were unrewarded. At least, there are more appropriate uses for the additional resources that an effective plea bargaining could save.

Plea Bargaining Could Help in Providing Speedy Justice

With over three crore cases pending in Indian Courts, plea bargaining could well be the key to providing speedy justice, Justice Pradeep Nandrajog, Judge, Delhi High Court, said. He was speaking at a legal discourse organised by the New Law College, Bharati Vidyapeeth Deemed University, as part of its yearly convocation programme.

"Plea bargaining can help in working out a mutually satisfactory agreement between the two parties in a case", Nandrajog said.

He pointed out that in western countries, there were three facets to plea bargaining-charge bargaining, fact bargaining and sentence bargaining-of which only one-sentence bargaining-is applicable to the judicial system in India.

Nandrajog said it could be used in criminal cases where the prescribed maximum punishment was below seven years. In cases where the victim has been given the death sentence or a life term, and also in cases where the victim is aged under 14 or where the crime committed is against a woman or child, plea bargaining is not allowed. In 2006, an amendment was made in the Cr.P.C. to make a provision for plea bargaining.

Speaking on 'Clinical Legal Education', Justice S.B. Mhase, Judge, Bombay High Court, told the budding lawyers that it was important to bridge the gap between knowledge gained in classrooms and professional knowledge, which can be gained only through dedicated legal practice.

Mhase told that people (law practitioner) should keep learning till the day they stop practice. "There are no friends in the legal profession, only competitors", he signed off.

Prabhu Chawla was asked in an interview that whether Plea Bargaining is just and good or not he replied quickly that yes it is advantageous if applied honestly.

And Douglas W. Maynard in his book, Plea Bargaining, considered it as the language of negotiation.

Judges Stress Upon Plea Bargaining

December 01 (UNI) Legal service authorities of West Bengal have taken the initiative to implement "plea bargain" system, as incorporated in CrPC, 1973, for reducing the number of pending criminal cases in various Courts.

Calcutta High Court Justice Kalyanjyoti Sengupta and Justice Pinaki Chandra Ghosh stressed on creating awareness among the inmates of the correctional homes in the state at a programme inside the Dum Dum Central Correctional Home (Jail) in North 24 Parganas today.

"This will help the Accused for remission of punishment by confessing to his crime before framing of a chargesheet", Justice Ghosh said.
The Centre and State Government along with the judiciary have decided to implement the system.

Illustrating the new law, both the Judges said an adult facing prosecution under IPC could go for a voluntary "Plea Bargain" pleading himself guilty.

However, the concerned "Plea Bargain" would not be allowed under Acts like Dowry Prohibition Act, 1951, The Commission of Sati Prevention Act, Indecent Representation of Women (Prohibition) Act, Immoral Traffic (Prevention) Act, Protection of Women from Domestic Violence, Offences mentioned in the Protection of Civil Rights Act, SC/ST Prevention of atrocities Act.

Quick Disposal of Pending Cases in States
Union Minister of U.P. for Law and Justice K. Venkatpathy in one international seminar said plea bargaining, Lok Adalats, special Courts, arbitrations and tribunals could help states like UP to curb the growing number of pending cases in lower Courts. He pointed out that plea bargaining would save time and money of the Courts.

In furtherance, the minister said the biggest achievement of his tenure was ensuring speedy disposal of Court cases through plea bargaining, Fast Track Courts, tribunals and Lok Adalats. "In the US, about 90 per cent of criminal cases are solved through plea bargaining", he said.

"Plea bargaining concept is a modern alternative dispute resolution system that would ensure speedy disposal of criminalcases and thereby lessen the burden of pending cases on the Courts. We are happy that with the introduction of plea bargaining, the pendency in some Courts has gone down".

Venkatpathy said, "We cannot compare western system with our judicial system. The criminal justice system in India is unique and different from others.

The countries in the West had more Courts and more Judges to take care of fewer cases but in India, the situation was exactly opposite".

Venkatpathy said, "Laws like POTA are not required. There are enough provisions in the Indian Penal Code, which can handle problems like terrorism". On the issue of recently - proposed Uttar Pradesh Control of Organized Crime Act (UPCOCA), he said, "The States could formulate laws according to their suitability".

Except the State of Tamil Nadu, it is implemented to all India. The Chief Justice of Madras High Court, Ajit Prakash Shah, has urged the Tamil Nadu Bar to reconsider its opposition to the introduction of plea bargaining (an agreement reached between a Prosecutor and the Accused to settle a criminal case) in the State. Mean he also was favouring to introduce the same into the State for speedy and timely justice.

Related Cases
Shri Agulab Kareem Shekh vs. State of Maharashtra
Facts: Defendant was driving B.E.S.T. bus in Mumbai after consuming alcohol, he was checked and found that Accused had consumed alcohol and was under the influence of alcohol when he was driving the said bus. So he was arrested by the police, on the very next day the Defendant was presented before the learned magistrate.

Judgment: When he was produced before the learned Magistrate, he was asked whether he was pleading guilty to the charge, and he pleaded guilty to the same. Accordingly, his plea of guilt was recorded and the learned Magistrate accepted the said plea and convicted him under Section 185 of the Motor Vehicles Act and sentenced him to pay a fine ofRs. 750, in default, to suffer simple imprisonment for twoweeks.

In Re: 122 prisoners vs. Respondent,
Facts: - In a petition filed by 122 undertrial prisoners voicing several grievances, it was appointed out as Amicus Curiae, brought to the notice of this Court that there are huge number of undertrial prisoners languishing in different jails in the State, undergoing detention for more than even the maximum period of sentence prescribed for the offence or offences alleged against them. It was also submitted that this was mainly due to non-production of such prisoners in Court for want of sufficient police escort.

Judgement: After considering the facts, Court also convinced about the importance of the Plea Bargaining and observed that:
"It is also to be mentioned here that admittedly, there are no sufficient Magistrate Courts in the State and the working conditions and infrastructure provided in the Criminal Courts are deplorable and in bad shape. The number of cases pending before most of the Magistrate Courts is quite huge. Pendency of cases shoots up, despite all the efforts taken up by the Criminal Courts to wipe out the pendency, under guidance and strict directions of the High Court from time to time. There can be no doubt that the State must be alert to this state of affairs, as well. Still, no Court can wait until sufficient Courts are established for clearing up the pendency.
Therefore, I take this as an occasion to remind the MagistrateCourts about the important amendments introduced into the Code by which "plea bargaining" has become possible now which can, to a certain extent, check the evil of a long period of detention of prisoners during trial. (Vide " The Criminal Law (Amendment Act), 2005 (2 of 2006) brought into force on 05.07.2006 vide S.O. 990(E) dated 3.7.2006). This may help the Courts to reach a finality of the proceedings in appropriate cases, without going through the ordinary time-consuming procedure in a trial. The Criminal Courts of the State shall, therefore, consider the possibility of invoking provisions laid down for "plea bargaining", in appropriate cases, especially in cases in which prisoners are involved. The Courts may, for this purpose, get list of cases from the police stations concerned in which the Accused are in custody and do the needful in accordance with law".

R.K. Saxena & Others vs. State of Maharashtra, 2006 FAJ 242 or MANU/MH/0451/2006
The Applicant was caught under Section 33 EEC(c) of the Drugs and Cosmetics Act, 1940. He was told that if he pleaded guilty to the offence, he would be let off with simple sentence. So he pleaded and was punished of under simple imprisonment for six months and to pay a fine of Rs. 2,000 each and in default, to suffer simple imprisonment for three months.

Thus, in many cases, the petition of Plea Bargaining was advocated as in the case of Ganeshmal Jashraj v. Government of Gujarat and Anr. and Thippaswamy v. State of Kamataka the Supreme Court set aside the Order passed by the High Court and remanded the matter to the Judicial Magistrate for trial of the Accused in accordance with law as it came to the conclusion that the conviction and sentence were based on an admission of guilt as a result of plea bargaining.

But on the other hand, this was rejected as deemed to be unconstitutional and Courts were adviced to work according to their merits, as in the case of Kachhia Patel Shantilal Kodertal v. State of Gujarat and Anr. held that the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion. This has been reiterated by the Supreme Court in the case of State of Uttar Pradesh v. Chandrika.

Conclusion
There is a long time-consuming procedure in all the trials which might be justified in complicated criminal cases to hear all the corners but in other petty cases it costs more than remedy. Plea bargaining is the concept introduced first time in USA for faster settlement of disputes. After watching its success and faster settling of disputes, this was latter adopted by other parts of the world.

India also adopted the plea bargaining in 2005 by Criminal Amendment Act. It is based upon a very simple principal that if Accused accepts the guilt there is made final Judgment thus terminates the case faster and speedy. But the Accused admits the guilt on the condition that he shall be given less punishment as given usually. Thus, both the parties get faster trial and speedy Judgment.

But this is confined only to the offences where maximum punishment is not more than seven years. It's not allowed in the offences that is against women, Dowry Prohibition Act, 1951, The Commission of Sati Prevention Act, Indecent Representation of Women (Prohibition) Act, Immoral Traffic (Prevention) Act, Protection of Women from Domestic Violence, Offences mentioned in the Protection of Civil Rights Act, SC/ST Prevention of Atrocities Act, etc.
It helps speedy trial and helps in reducing burden of Courts and allows to concentrate in more serious and societal issues that need to be thought thoroughly. Thus, helps in reducing backlog in Indian Courts.

Endnotes:
[1] 2001(5) Bom Cr 57
[2] 2007 CriLJ 3241
[3] SC/0108/1979
[4] SC/0124/1982
[5] SC/0141/1980
[6]SC/0695/1999

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