Plea Bargaining and its Procedures

What is plea bargaining?

Plea bargaining essentially is pre-trial negotiation (bargaining) between the accused and the prosecution.  In plea bargaining, what really happens is that the accused pleads guilty in exchange of seeking some reduction in the charges or sentence.

Plea bargaining is in operation since 2006, by adding a Chapter XXI-A (Sections 265A to 265L) through an amendment in the Criminal Procedure Code, 1973 (CrPC).

The precise object of plea bargaining is to reduce the delay involved in criminal trial and to punish the accused with a lesser sentence when he pleads his guilt.

It was the 154th Report of the Law Commission of India which first recommended for including the practice of plea bargaining in Indian criminal justice system. Many countries have included this practice in their criminal practice.

Two kind of plea bargaining

Two categories of plea bargaining are there: one is charge bargaining and the other is sentence bargaining.

In charge bargaining the accused pleads guilty in exchange of a promise by the prosecutor either to reduce the charge to a less intensive one or to dismiss some of the multiple charges.

On the other hand in sentence bargaining, the accused pleads guilty in exchange of a promise by the prosecutor to recommend a lighter sentence.

Where plea bargaining not applicable

Plea bargaining is not available to an accused who has been charged with an offence punishable with death, life imprisonment or imprisonment for a term exceeding 7 years.

Similarly, plea bargaining is not permissible if the offence is against a woman or a child of less than 14 years of age.

Plea bargaining is impermissible, if the offence affects the socio economic condition of the country. Such offences have been notified by the Central Government.

On 11th July 2006, the government notified the offences coming under 19 laws from the Dowry Prohibition Act to the Army Act to the explosive act as offences affecting the socio- economic condition of the country.

Who can apply for plea bargaining?

Two kinds of accused persons can apply for plea bargaining: one is the accused against whom police report has been forwarded by the officer in charge of the police station alleging the offence, and the other is the accused against whom a Magistrate has taken cognizance of an offence. But a plea bargaining is not applicable to any juvenile or child.

An accused person satisfying the above conditions can file an application for plea bargaining in the court where such an offence is pending for trial.

What the application should contain?

The application should contain a brief description of the case. It should be accompanied by an affidavit stating that he has voluntarily preferred the application after understanding the nature and extent of the punishment and has not been convicted in the same offence by a court earlier

Procedure for disposal of application

The court then issue notice to the public prosecutor/complainant, and the accused asking them to appear before the court on a specified date. The court shall then examine the accused in camera in the absence of the other party to ensure that the filing of application was voluntary.

Then the court shall allow the prosecutor/complainant, and the accused to work out a mutually agreeable disposition of the case which would include giving compensation and other expenses to the victim.

Based on the agreement arrived at by the prosecutor and the parties, the court will prepare a report of satisfactory disposition signed by the Judge and others participated in the meeting, and dispose of the case.

Compensation & quantum of punishment

While disposing the case the court will award compensation to the victim as agreed, and hear the parties on the quantum of punishment & releasing of the accused on probation of good conduct under Section 360 CrPC / the Probation of offenders Act, and impose a lesser punishment on the accused.

The procedure for arriving at the punishment by the court after hearing the parties will be as follows:

1. If the court finds that it is a fit case for releasing the accused on probation it may release the accused on probation.
2. If the court finds that a minimum punishment for such an offence is provided in the law it shall impose half of the minimum punishment.
3. If the court finds that the case is not fit for above mentioned modalities the court may impose the accused to one-fourth of the punishment provided in the law.

After deciding the punishment the judge will deliver his judgment in the open court and sign it.

No appeal for such judgments

The judgment delivered by the court under plea bargaining shall be final and no appeal shall lie against it.  However, the aggrieved person can file Special Leave Petition (SLP) / Writ Petition under Article 226 / 227 of the Constitution against such judgment.

If the trial court does not strictly follow the procedures, revision will lie against the judgment and there is a possibility for remitting the case to the trial court.

The author is a practising advocate at Thrissur, Kerala.

Also watch: Evaluation of the Concept of Plea Bargaining in India | Justice Chandra Jit Singh | #LCI_Talk