PLEA BARGAIN

A plea bargain gives an accused the opportunity to avoid sitting through a trial risking conviction on the original more serious charge. For example, an accused  charged with a theft charge, the conviction of which would require imprisonment in st, may be offered the opportunity to plead guilty in a charge for the offence of theft, which may not carry jail time.

A plea bargain, also known as plea agreement, plea deal or copping a plea is an agreement in a criminal case whereby the prosecutor offers the accused 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 accused are offered plea bargain.

In Santobello v New York, 404 U.S. 257, 261 [1971], US Supreme Court has recognized plea bargaining as both an essential and desirable part of the criminal justice system. The benefits of plea-bargaining are said to be obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value. Some legal scholars argue that plea bargaining is unconstitutional because it takes away a person's right to a trial by jury. In fact, Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.

Plea bargaining is also criticized on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome. Coercive plea bargaining has been criticized on the grounds that it infringes an individual's rights under Article 8 of the UK's Human Rights Act 1998. Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. The Federal Sentencing Guidelines are followed in federal cases and have been created to ensure a standard of uniformity in all cases decided in the federal courts.

INDIAN SCENARIO

Plea bargaining was introduced in India by Criminal Law (Amendment) Act, 2005, which amended the Code of Criminal Procedure and introduced a new chapter XXI (A) in the code which is enforceable from January 11, 2006. The Criminal Law (Amendment) Bill, 2003 was introduced in the parliament on 14^th August 2003  by Shree. L.K. Advani. The reasons and objects of the Bill in introducing this new Chapter by name Plea Bargaining is stated as follows:

STATEMENT OF OBJECTS AND REASONS

It is widely felt that criminal cases in courts fail because statements by witness(es) are reneged either out of fear or allurement. To prevent the evil of witness turning

hostile, it is proposed to amend Sections 161, 162 and 344, and to insert new section 164A and 344A in the Code of Criminal Procedure, 1973. The amendments to the Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872, inter alia, provide that (i) statement made to Police by any person during investigation, if reduced to writing, is to be signed and quickly transmitted to the Magistrate; (ii) recording of evidence of material witness by Magistrate in all offences punishable with death or imprisonment for 7 years or more during investigation; (iii) statement of the witness duly recorded before Magistrate under oath, in the discretion of the court, be treated as evidence; and (iv) summary trial for perjury and enhanced punishment awarded consequent to such summary trial. 2. The disposal of criminal trials in the courts takes considerable time and that in many cases trials do not commence for as long a period as 3 to 5 years after the accused

was remitted to judicial custody. Large number of persons accused of criminal offences are unable to secure bail, for one reason or the other, and have to languish in jail as under-trial prisoners for years. Though not recognized so far by the criminal jurisprudence, it is seen as an alternative method to deal with huge arrears of criminal cases. To reduce the delay in the disposal of criminal trials and appeals and also to alleviate the suffering of under-trial prisoners, it is proposed to introduce the concept of plea-bargaining as recommended by the Law Commission of India in its 154^th  Report on the Code of Criminal Procedure. The Committee on Criminal Justice System Reforms under the chairmanship of Dr.(Justice) V.S. Malimath, formerly Chief Justice of the Kerala High Court, has also endorsed the Commission’s recommendations. It means pretrial negotiations between defendant and prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecutor. The benefits of plea of bargaining would, however, not be admissible to habitual offenders. A Chapter on this is being incorporated in the Code of Criminal Procedure, 1973. 3. ……………………… …………………. ………………………..

The new sections of plea bargaining introduced:

“CHAPTER XXIA

PLEA BARGAINING

265A. (1) This Chapter shall apply in respect of an accused against whom

(a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life, or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204, but does not apply where such offence  affects the socioeconomic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country. 265B.

(1) An accused of an offence may file application for plea bargaining in the Court in which such offence is pending for trial.

(2) The application under subsection (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he has been charged with the same offence.

(3) After receiving the application under subsection(1), the court shall issue notice to the public prosecutor or the complainant of the case, as the case

may be, and to the accused to appear on the date fixed for the case.

(4) When the public prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), 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 and where -(a) 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 or

the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to he victim by the

accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;

(b) the court finds that the application has been filed involuntarily by the accused or he has previously been convicted by the court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this code from the stage such application has been filed under sub-section (1)

265C. In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265(B), the court shall follow the following procedure, namely –

(a) In a case instituted on a police report, the court shall issue notice to the public prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:

Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:

Provided further that the accused, if he so desires, may participate in such meeting with his pleader, if any,

participate in such meeting with his pleader, if any, engaged in the case.

(b) in a case instituted otherwise than on police report,  the court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:

Provided that it shall be the duty of the court to ensure throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:

Provided further that if the victim of the case or the accused, as the case may be so desires, he may participate in such meeting with his pleader engaged in the case.

265D. Where in a meeting under section 265(C), a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.

.265E. (1) Where a satisfactory disposition of the case has been worked out, under section 265 D, the Court shall dispose of the case in the following manner, namely:-

(a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the 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 or under the Juvenile Justice (Care and Protection of Children) Act, 2000 or any other law for the time being in force and follow the procedure specified in the force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused.

(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958 or the Juvenile Justice (Care and Protection of Children) Act, 2000 or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;

(c) after hearing the parties under clause (b), 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;

(d) in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b), or clause

(c) , then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.

No disability on punishment under this Chapter.

265F. Notwithstanding anything contained in any law for the time being in force, the punishment imposed under this Chapter shall be considered expiatory in nature and no person punished under this Chapter shall be liable to any disability under any law for the time being in force on the ground that he has been punished under this Chapter 20 of 1958.

265G. The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

265H. The judgment delivered by the Court under section 265G 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.

Finality of the judgment.

265-I. A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matter relating to the disposal of a case in such Court, under this Code.

265J. The provisions of section 428 shall apply, for

setting of the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.

265K. The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and

nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter.

Explanation.-For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.”.

This affects cases in which the maximum punishment is imprisonment for seven years; however, offenses affecting the socio-economic condition of the country and offenses committed against a woman or a child below the age of fourteen are excluded. In some common law jurisdictions, such as England and Wales and the Australian state of Victoria, plea bargaining is permitted only to the extent that the prosecutors and the defense can agree that the defendant will plead guilty to some charges and the prosecutor will drop the remainder. The courts in these jurisdictions have made it plain that they will always decide what the appropriate penalty is to be. No bargaining takes place over the penalty.

This has certainly changed the face of the Indian Criminal Justice System. Some of the salient features of ‘Plea Bargaining’ are:

v     it is applicable in respect of those offences for which punishment is up to a period of 7 years.

v     it does not apply to cases where the offence committed is a socio-economic offence

v     it does not apply to offences committed against a woman or a child below the age of 14 years.

No appeal shall lie to any court against the order once passes in the case of ‘Plea Bargaining’

‘Plea Bargaining’ is a pre-trial negotiation between the accused and the prosecution.  During that negotiation prosecution offers some concession and the accused agrees to plead guilty in exchange for that concessions. The consequence of this process is that serious charges will be dropped in some cases for a plea barging. ‘Plea Bargaining’ will  reduce the risk of undesirable orders for the either side. Over burdened courts will get speedy disposal through the plea bargaining. When over burdened situation in a court creates a situation of inability to dispose off the cases on merits. This can be reduced by plea bargaining. Criminal trial may go for months or years while guilty pleas can be submitted before the court in minutes. It would be wrong to assume that the concept of ‘Plea Bargaining’ found favour of courts only in the recent past. In fact it is used in the American Judiciary in the 19th century itself. The Bill of Rights makes no mention of the practice when establishing the fair trial principle in the sixth amendment but the constitutionality of the plea-bargaining had constantly been upheld there. In the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King, Jr. to avoid execution sentence. He finally got an imprisonment of 99 years. More than 90 percent of the criminal cases in America are never tried. The majorities of the individuals who are accused of a crime give up their constitutional rights and plead guilty. Every minute, a criminal case is disposed off in an American Court by way of a guilty plea or nolo contendere plea. In a landmark judgment Bordenkircher V. Hayes, the US Supreme Court held that the constitutional rationale for plea bargaining is that no element of punishment or retaliation so long as the accused is free to accept or reject the prosecutions offer. The Apex Court however upheld the life imprisonment of the accused because he rejected the ‘Plea Guilty’ offer of 5 years imprisonment. The Supreme Court in the same case, however in a different context observed that, it is always for the interest of the party under duress to choose the lesser of the two evils. The courts have employed similar reasoning in tort disputes between private parties also. In countries such as England and Wales, Victoria, Australia, ‘Plea Bargaining’ is allowed only to the extent that the prosecutors and defense can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder. The European countries are also slowly legitimizing the concept of plea bargaining, though the Scandinavian countries largely maintain prohibition against the practice.

‘Plea Bargaining’ can be of two types. Charge bargaining and sentence bargain. Charge bargain happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only some of the charges framed against him. Prosecution generally has vast discretion in framing charges and therefore they have the option to charge the defendant with the highest charges that are applicable. ‘Charge Bargain’ gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may have framed against him. As far as sentence bargain is concerned, it happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty. A sentence bargain may allow the prosecutor to obtain a conviction in the most serious charge, while assuring the defendant of an acceptable sentence. Therefore we can safely say that ‘Plea Bargaining’ is nothing but a contract between the prosecution and the defendant or accused and both the parties are bound by this contract. For most defendants the principal benefit of plea-bargaining is receiving a lighter sentence than what might result from taking the case to trial and losing. Another benefit which the defendant gets is that they can save a huge amount of money which they might otherwise spend on advocates. It always takes more time and effort to bring a case to trial than to negotiate and handle a plea- bargain. Incentives for accepting plea-bargaining, as far as judges and prosecutors are concerned are obvious. Over crowded courts do not allow the judges to try every case that comes before them. It also reduces the caseloads of the prosecutors.

It was the settled law that on the basis of plea bargaining Court cannot dispose of the criminal cases. The Court has to decide it on merits. If accused confesses his guilt, appropriate sentence is required to be imposed. Further, the approach of the Court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of evidence on record. If he is guilty, appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the Court’s conscious must be satisfied before passing final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can be accused bargain with the Court that as he is pleading guilty sentence be reduced.          Para.8 of the Judgement in State of Utterpradesh V. Chandrika pronounced by K.T. Thomas & M.B. Shaw. J reprted in 1999(3)KLT894(SC), 2000 Cr.L.J. 384(386) decided on 29-12-1999. The cases refered in this judgment are (1983) 1 SCC 194; (1980) 1 SCC 363; (1980) 3 SCC 120; (1976) 3 SCC 684 & (1968) 3 SCR 34.                               

To reduce the delay in disposing criminal cases, the 154^th Report of the Law Commission first recommended the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of criminal cases. This recommendation of the Law Committee finally found a support in Malimath Committee Report. The NDA government had formed a committee, headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to come up with some suggestions to tackle the ever-growing number of criminal cases. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament. The statement of objects and reasons, inter alia, mentions that, The disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody, though not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. The bill attracted enormous public debate. Critics said it is not recognized and against public policy under our criminal justice system. Despite the settled legal position in the above case against the plea bargaining in Indian judicial system the government found it acceptable and finally section 265-A to 265-L have added in the Code of Criminal Procedure so as to provide for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 the High Court of Gujarat  observed 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 it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.

Plea bargaining has draw backs in the democratic setup. They are:

1.      By the involvement of police in plea bargaining process seems to invite compulsion for plea bargaining.

2.      2. By the involvement of the court in plea bargaining process, impartiality and fairness of the court will be called in question.

3.      3. By the involvement of the victim in plea bargaining, the process will drift to corrupt field.

4.      4. The self incriminating statement of the accused which amounts to plead guilty of the offences charged he is loosing a chance for a fair trail.  

To ensure fair justice, plea bargaining must encompass the following minimum requirements:
i] The hearing must take place in court
ii] The court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.
iii] Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.

To conclude this topic ‘in part’ as it’s sportive activities just started in the judicial stadium. We can wait and see the tons of overload cases it is going to unload from the courts, the face washing process of relief it is going to give to the suffering under trial prisoners, the speedy electrifying magic of reducing of delay in disposal, super dynamic speed in disposal, fair distribution of justice to mighty and poor, rustic and others, poor and rich, big fish and small fish, the way the iron rod striking hard on the poor and slipping and hitting on the floor in the case of powerful.

Advocate K.C. Suresh, Kerala.

Suresh_kc@sify.com