PLEA BARGAINING

    Yukta Bajaj

    INTRODUCTION

    Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return drop more serious charges. It is not available for all types of crime e.g. a person cannot claim plea bargaining after committing heinous crimes or for the crimes which are punishable with death or life imprisonment. It is common in the United States, and has been a successful method of avoiding protracted and complicated trials. Plea Bargaining can conclude a criminal case without a trial. When it is successful, Plea Bargaining results in a plea agreement between the prosecutor and defendant. In this agreement, the defendant agrees to plead guilty without a trial, and, in return the prosecutor agrees to dismiss certain charges or make favorable sentence recommendation to the court. Plea Bargaining is expressly authorized in statutes and in court rules.

    TYPES OF PLEA BARGAINING

    There are three main types of plea bargains. Each type involves sentence reductions, but those reductions are achieved in very different ways.

    Charge bargaining– In charge bargaining the defendant agrees to plead guilty to reduced charges (e.g., aggravated assault rather than attempted murder).

    Sentence bargaining- Sentence bargaining involves assurances of lighter or alternative sentences in return for a defendant’s pleading guilty. One of the most visible forms of sentence bargaining occurs when defendants plead guilty to murder in order to avoid the death penalty. Sentence bargains also occur in less-serious cases, such as pleading guilty to a charge in exchange for a sentence of “time served,” which generally means that the defendant will be immediately released.

    Count bargaining- Count bargaining is that in which defendants who face multiple charges may be allowed to plead guilty to fewer counts. The charges need not be identical: the prosecutor may drop any charge or charges in exchange for a guilty plea on the remaining charges. Because count bargaining applies only to defendants who face multiple charges, it is the least common form of bargaining.

    HISTORY

    In the Jury System, the need for plea bargaining was not felt because there was no legal representation. Later on, in 1960 legal representation was allowed and the need for Plea Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in American legal history. This concept has been used since the 19th century. Judges used this bargaining to encourage confessions. The history of American plea bargaining is rather obscure, partly because of the fact that in most venues and jurisdictions bargaining was considered inappropriate until the late 1960s. Some of the earliest plea bargains took place in the colonial era during the 1692 Salem witch trials, when accused witches were told that they would live if they confessed but would be executed if they did not. The Salem magistrates wanted to encourage confessions, and, in an attempt to uncover more witches, they wanted the confessed witches to testify against others. Pleading guilty saved many accused witches from execution. Later the Salem witch trials were used to illustrate one of the strongest arguments against plea bargaining: that the practice sometimes induces innocent defendants to plead guilty.

    Plea bargains were rare in early American history. Judges appeared surprised when defendants offered to plead guilty, and they attempted to persuade them instead to go to trial. As early as 1832, however, plea bargains were becoming common in Boston, when public ordinance violators could expect less-severe sentences if they pleaded guilty. By 1850 the practice had spread to felony courts, and it became routine for defendants to plead guilty in exchange for the dismissal of some charges or other agreements arranged with the prosecutor. Possibly the first systematic use of plea negotiation, the Boston bargains were typically for victimless offenses, so the prosecutor did not have to consider victims’ concerns. In the 1960s plea bargains were still treated as unethical at best and illegal at worst. Defendants who had accepted plea bargains were told not to acknowledge the negotiations in court, because doing so would cast doubt on whether their pleas were voluntary. In 1967, however, an influential report by the President’s Commission on Law Enforcement and Administration of Justice documented the widespread use of plea bargaining and recommended recognizing the practice.

    ADVANTAGES

    • Defendants who take a plea bargain eliminate the uncertainty that a trial may bring.
    • By agreeing to a plea bargain, it creates a certainty for a conviction. It gets that person off the street or assigns a penalty that can still bring a measure of justice. That allows prosecutors to pursue other cases because they have more time.
    • This process allows prosecutors to put everyone involved in a serious case into prison and allows them to pursue the maximum sentence against the person or people they feel are most responsible for a crime when it occurs.
    • A big reason for agreeing to a plea bargain is to avoid jail time. Not having to go to jail and live with the stigma associated with it, and not being separated from family and friends is a huge incentive to sign a plea agreement.
    •  The most practical reason plea bargains are sought is simply to resolve the issue as quickly as possible and move on. It may not be the most “just” outcome, but many defendants simply want to move on with their life.
    • One of the biggest tools prosecutors or defendants can use is the media. As a result, many defendants simply want to keep the matter quiet, without dragging the case out in front of the public.

    DISADVANTAGES

    • Offering a plea bargain to avoid this trial may seem like a coercive attempt to waive those rights.
    • The prosecutor and defendant may agree to a plea bargain, but a judge can void that agreement. A judge is not usually required to follow a plea bargain. They can impose longer sentences or decide that no sentence should be imposed.
    • a plea bargain requires a defendant to plead guilty to the charges, even though they are reduced, it eliminates the ability to file an appeal in almost any circumstance.
    • In many circumstances, a plea bargain provides a lighter sentence for someone, even if they may be guilty. It can be treated as an escape route for a prosecutor.

    SECTION 265 OF CRPC

    As Per Section 265-A, Application of the chapter- the plea bargaining shall be available to the accused who is charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding to seven years. Section 265 A (2) of the Code gives power to notify the offences to the Central Government. The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the offences affecting the socioeconomic condition of the country.

    Section 265-B, Application for plea bargaining- involve an application for plea bargaining to be filed by the accused which shall contain a brief details about the case relating to which such application is filed, including the offences to which the case relates and shall be accompanies by an affidavit sworn by the accused stating therein that he has voluntarily preferred the application, the plea bargaining the nature and extent of the punishment provided under the law for the offence, the plea bargaining in his case that he has not previously been convicted by a court in a case in which he had been charged with the same offence. The court will thereafter issue notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused for the date fixed for the plea bargaining. When the parties appear, the court shall examine the accused in-camera wherein the other parties in the case shall not be present, with the motive to satisfy itself that the accused has filed the application voluntarily.

    Section 265-C, Guidelines of mutually satisfactory disposition- prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition. In a case instituted on a police report, the court shall issue notice to the public prosecutor concerned, investigating officer of the case, and the victim of the case and the accused to participate in the meeting to work out a satisfactory disposition of the case. In a complaint case, the Court shall issue notice to the accused and the victim of the case.

    Section 265-D, Report to the mutually satisfactory disposition to be submitted before the court- deals with the preparation of the report by the court as to the arrival of a mutually satisfactory disposition or failure of the same. If 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 office of the Courts and all other persons who participated in the meeting. However, 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 265-B has been filed in such case.

    Section 265-E, Disposal of the case- prescribes the procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked out. After completion of proceedings under S. 265 D, by preparing a report signed by the presiding officer of the Court and parities in the meeting, the Court has to hear the parties on the quantum of the punishment or accused entitlement of release on probation of good conduct or after admonition. Court can either release the accused on probation under the provisions of S. 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, as 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.

    Section 265-F, Judgement of the case- deals with the pronouncement of judgment in terms of mutually satisfactory disposition.

    Section 265-G, Finality of the judgement- says that no appeal shall be against such judgment.

    Section 265-H, Power of the court in plea bargaining- deals with the powers of the court in plea bargaining. A court for the purposes of discharging its functions under Chapter XXI-A, shall have all the powers vested in respect of trial of offences and other matters relating to the disposal of a case in such Court under the Criminal Procedure Code.

    Section 265-I, Period to detention undergone by the accused to be set off against the sentence of imprisonment- it specifies that Section 428 is applicable to the sentence awarded on plea bargaining.

    Section 265-J, Savings- talks about the provisions of the chapter which shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A.

    Section 265-K, Statements of the accused not to be used- specifies that the statements or facts stated by the accused in an application for plea bargaining shall not be used for any other purpose except for the purpose as mentioned in the chapter.

    Section 265-L, Non-application of the chapter- makes chapter not applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.

    For a valid disposal on plea bargaining it is important to follow the aforesaid procedure contemplated in Chapter XXI-A. Even though ‘plea bargaining’ is available after the introduction of the said amendment is available, in cases of offences which are not punishable either with death or with imprisonment for life or with imprisonment for a term exceeding seven years, the chapter contemplates a mutually satisfactory disposal of the case which may also include the giving of compensation to victim and other expenses and same cannot be done without including the victim in the process of arriving at such settlement.The Hon’ble High Court in the case of Sh. Charan Singh v. M.C.D. has held that no disqualification on account of conviction could be attached to petitioner as he had been released on probation. In this case, the Hon’ble Delhi High Court has quoted the case of Trikha Ram v. V. K. Seth and Anr wherein the Hon’ble Supreme Court held that the benefit of Section 12 of The Probation of Offenders ACT, 1958 can be extended to the service of the offender. Indian Supreme Court also examined the concept of plea-bargaining in Murlidhar Meghraj Loya v. State of Maharashtra and Kasambhai v. State of Gujaratand did not approve this concept in India on the basis of formal inducement. Further, the Hon’ble Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr strongly disapproved the practice of plea bargain.

    CONCLUSION

    The concept of plea bargaining is not entirely new in India. Indian has already recognized it when it got its constitution in 1950. Article 20(3) of Indian constitution prohibits self-incrimination. People accuse plea bargaining of violatory of the said article. But with the passage of time the considering the encumbrance on the courts, the Indian court has felt the need of Plea bargaining in Indian legal system. When a change is brought it is hard to accept it initially but society needs to grow so is our legal system. Everything has advantages and disadvantages and both have to be analyzed in order reach a sound conclusion. Rejecting something only on the basis of its disadvantages would not be justified in any case. The concept of plea bargaining is evolving in India and it is not appropriate to expect it to be perfect. It can only be improved by debate, discussions, and discourses.