ROLE OF PLEA BARGAINING IN CRIMINAL TRIAL

                     ROLE OF PLEA BARGAINING IN CRIMINAL TRIAL

             Author: Bhupesh Sharma, a student of Department of Law, Kurukshetra University, Kurukshetra.

Introduction

“JUSTICE DELAYED IS JUSTICE DENIED” , By Martin Luther King Jr.

In India, there are more than 5 crore cases are pending in the courts as informed by Mr. Arjun Ram Meghwal, Hon’ble law minister of India in the Rajya Sabha. There are innumerable reasons for the pendency of these cases such as lack of proper infrastructure, procedural delays, inadequate legal aid facilities, vacations and holidays, shortage of judges, a delay in the appointment process of judges, and many more. And literally it is immaterial that what are the reason of this pendency actually what matters is that because of this huge pendency of cases, bpth the parties have to suffer a lot. The victim has to wait for number of years to get justice, and unfortunately, sometimes when they get justice they are not even alive. On the other hand, the accused also has to face criticism from society along with the brutal treatment by the officials, even if he is innocent until he is declared so by the court. In order to tackle this problem the concept of “Plea Bargaining was added in the Code of Criminal Procedure, 1973 by introducing Chapter- 21A under this code w.e.f. 05th of July 2006.in this article we will discuss the various aspects of Plea Bargaining.

Historical Background

The concept of “Plea Bargaining is not a new one. The origin of this concept can be traced in the United States of America {USA} where 90% of the criminal cases are disposed of with the help of this concept. At present, the legal systems of about 90 countries contain the concept of plea bargaining including Europe, Australia & South East Asian Nations. The very basis of this concept is a Latin maxim “Nolo Contendere” which means “I do not wish to contest”.

What is Plea Bargaining?

Broadly speaking this concept includes two terms “Plea” and “Bargaining”, the word ‘plea’ means “request” and the word ‘bargaining’ means “negotiation”. So, in simple terms, it can be said that it is a process under which a person who is charged with a criminal offence negotiates with the prosecution for a punishment lesser than what is provided in the law by pleading guilty to a offence which is less serious. It is generally based on the principle of ‘Nolo Contendere’, which means ‘I do not wish to contend’.

As per the Black’s law Dictionary, The concept of “Plea Bargaining” may be defined as “an type of agreement that can be set up between the Prosecution and the accused to reach to a solution of a case without ever taking it to trial”.

After the careful perusal of the above definition it can be said that this concept can be applied only in the criminal cases and only by the mutual agreement of both the accused and prosecution. And the role of the judiciary has only supervisory in this concept.

View of the Apex Court prior to the legislation

Earlier this concept was not recognized by the courts in India, the apex court in the case of Murlidhar Meghraj Loya v. State of Maharashtra; AIR 1976 SC 1929, held that:

“It is foolish to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in context of serious economic offences & food offences, this practice intrudes upon the interest of the society’ by opposing society’s decision expressed through pre-determined legislative fixation of the minimum sentences and by easily subverting the mandate of the law. It was observed by the court that a streamlined procedure should be defined in order to administer the justice by adopting the concept of plea bargaining.

In the case of Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat; (1980) 3 SCC 120, the hon’ble court held that- “the practice of Plea Bargaining is unconstitutional, illegal and would tends to encourage corruption, collusion and pollute the pure fount of justice.”

However, with the huge arrears and inordinate delays in disposal of the criminal cases and on the recommendations of the Malimath Committee, a new chapter XXI-A of Plea Bargaining ranging between section 265A to 265L was introduced in the Code of Criminal Procedure, 1973.

After that circulars were issued by various High Courts to promote the concept of plea bargaining such as:

1. C.L. No. 31/2007 dated 29.08.2007 for informing Accused: While issuing summons to an accused, he may be informed about the provisions of Plea Bargaining.
2. 2. C.L. No. 49/2007 dated 13.12.2007 for Maximum Use of Plea Bargaining: Subordinate Courts must make application and maximum use of the provisions of Plea Bargaining.

Types of Plea Bargaining

There are various forms of plea bargaining which can be employed as per the circumstances of the case. Some of them are illustrated below:

1. Charge Bargaining
2. Fact Bargaining
3. Sentence Bargaining
4. No contest Bargaining
5. Alford Bargaining

Legal Provisions related to Plea Bargaining

As Discussed above, Chapter- XXIA of the code of civil procedure 1973 contains the provisions related to the concept of Plea Bargaining between 265A to 265L. It was added by the amendment act of 2005. The application of these provisions are illustrated below:

Application of this Chapter

As per Section- 265A the concept of plea bargaining would come into picture when a report under Section- 173 of the CrPC 1973 is made or a magistrate has taken cognizance of an offence after examining the complaint under Section- 200 of the CrPC 1973, and issues the process under Section- 204 of the CrPC 1973 for the offences that are punishable with less than seven years of imprisonment. However, this concept can’t be used in the following cases:

1. The offence in which the maximum sentence is above 7 years.
2. The offence which has been committed against a woman or a child below 14 years of age.
3. Where the accused has been previously convicted for the same offence.
4.  The Offences which affects the socio-economic condition of the country.

And the central government shall also determine the various offences, under the law for the time being in force, affecting the socio-economic conditions of the country and this was notified by the central government by S.O. 1042(E), dated 11th July, 2006.

Procedure of Plea Bargaining

• Application Stage

A} If an accused wants to plead guilty voluntarily under the provisions stated above, he may move an application to the concerned court with the proper details of his case supported by an affidavit declaring that:

1. He is presenting this application voluntarily
2. he understands the nature of sentence
3. He is not previously convicted for the same offence.

B} On receiving the application and affidavit from the accused, the trial court shall issue a notice to the public prosecutor or the complainant, as the case may be and to the accused to appear on the date  which is fixed for the hearing of the case.

C} The court shall examine the accused in camera and satisfy himself that the accused has given his application voluntarily and he is eligible for presenting such application.

D} If the court finds that the accused has not given his application voluntarily or he has been convicted earlier for the same offence then the application shall be rejected and the case shall be sent back for the purpose of regular trial.

• Guidelines for Mutually satisfactory Disposition

As per section 265C, wheN the court is satisfied that the application of plea bargaining was filed voluntarily in a case instituted on a police report or otherwise than on a police report, the court shall a issue notice to the parties and,if required, to the public prosecutor and police officer to participate in the meeting and do a MSD. Throughout this process, the court has the duty to to make sure that the parties in the meeting are working voluntarily. The court is also under the duty to ensure that the parties are voluntarily participating in the whole process, and if the accused or the victim wants, they can participate in the meeting along with their Advocates.

• Bargaining Stage

1. If the court finds that:

A} the accused has not been convicted for the same offence previously,

B} he is above the age of 18 years,

C} he understands the nature of offence and the proposed punishment

2. Then the court shall provide time to the public prosecutor or the complainant/victim, as the case may be, and the accused to find out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses and then fix the date for the further hearing of the case.
3. For the purposes of negotiation and preparing a report which is to be submitted in the court, the aid and help of advocate may be taken.

• Examination and Report

1. If the disposition is worked out successfully the court after receiving such report  shall prepare its own report and take the signature of all the members who have taken part in the negotiation
2. And If no such disposition is worked out, the court shall record necessary observations and proceed further from the stage where the application was filed in such case.

• Judgment

When the satisfactory disposition is worked out, the court shall proceed by awarding compensation to the victim under section 265E as per the disposition arrived at and, at the same time, also hear the parties on the required things like the quantum of the punishment. Then, if the accused falls under the purview of Sectiom 360 of this code or under the Probation of offenders act 1958, or any other law, he may be released on probation in order to provide for the benefit of any such law. Then the court will see that if there is any other clause for the minimum punishment for that offence, then the court will sentence the accused to half of the minimum punishment prescribed for that offence. And in certain cases, the sentence is made one-fourth of the punishment provided or can be extended, as the case may be, for that offence. The judgment passed by the court is final and no appeal lies against the judgment except SLP under Article 136 and W.P. under Article 226 and 227 of the constitution.

• Non- Application of this Chapter

As per section 265 L of the code of criminal Procedure 1973, Nothing in this Chapter shall apply to any Juvenile or Child as defined in sub-clause (k) of section 2 of the J.J, Act, 2000 (56 of 2000).

Benefits of Plea Bargaining

• Benefits to accused

1. This concept is less time and money consuming
2. There is no appeal lies against the judgment in this concept
3. There is a provision for lesser punishment in plea bargaining
4. There is a provision in this concept in which he may be released on probation or admonition.
5. The period that he has already undergone in the custody shall be adjusted against the term of punishment as per section-428 of this code.

• Benefits to Victim

1. By adopting this concept he can save himself from the long drawn processing of judicial proceedings.
2. Quick and easy way of providing justice.
3. He can easily get compensation in this concept otherwise it would depend upon the discretion of the magistrate ore judge.
4. This process is less time and money consuming.

Conclusion

Plea Bargaining is the most effective and valuable tool of the criminal justice system which plays a crucial role in disposing of the cases quickly and in an effective manner with the help of negotiation. This concept helps in reducing the pendency in the Indian courts which is a major problem of judiciary at this time. Endeavour should be made to use this concept wherever possible in order to provide justice to the victim as quickly as possible and the problem of overburdened judiciary can be ruled out.