What is plea bargaining and how does it work?

  • Many members of the Tablighi Jamaatbelonging to different countries have obtained release from court cases in recent days by means of plea bargaining.
  • They were accused of violating visa conditionsby attending a religious congregation in Delhi.

In Focus: Plea Bargaining

The Concept:

  • Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
  • It primarily involves pre-trial negotiations between the accused and the prosecutor.
  • It may also involve bargaining on the charge or in the quantum of sentence.
  • Example-
    • It is common in the United States, and has been a successful method of avoiding protracted and complicated trials.
    • As a result, conviction rates are significantly high there.

Plea Bargaining in India

Background:

  • Before 2006 when a related amendments to law were made, there was no provision in India for plea bargaining.
  • However, there was a provision in the Code of Criminal Procedure for an accused to plead ‘guilty’ instead of claiming the right to a full trial, but it is not the same as plea bargaining.

Law Commission’s recommendation:

  • The Law Commission of India, in its 142nd Report (1991), mooted the idea of “concessional treatment” of those who plead guilty on their own volition, but was careful to underscore that it would not involve any plea bargaining or “haggling” with the prosecution.

Malimath Committee on plea bargaining:

  • The Justice Malimath Committee on reforms of the criminal justice system endorsed the various recommendations of the Law Commission with regard to plea bargaining.
  • Some of the advantages of plea bargaining were listed by the committee, based on earlier reports:
    • The practice would ensure speedy trial and end uncertainty over the outcome of criminal cases.
    • It will also save litigation costs and relieve the parties of anxiety.
    • It would also have a dramatic impact on conviction rates.
    • Prolonged incarceration of undertrials without any progress in the case for years and overcrowding of prisons were also other factors that may be cited in support of reducing pendency of cases and decongesting prisons through plea bargaining.
    • Importantly enough, it may help offenders to make a fresh start in life.

Introduction of plea bargaining in India:

  • The Criminal Law(Amendment) Act, 2005, which amended the Code of Criminal Procedure introduced Plea bargaining in India.
  • A new chapter XXI(A), containing Sections 265A to 265L, was enforced in the code July 5, 2006.
  • Plea bargaining is allowed in case where the maximum punishment is imprisonment for 7 years.

Plea Bargaining Process in India

  • The applicant should approach the court with a petition and affidavit stating that it is a voluntary preference and that he has understood the nature and extent of punishment provided in law for the offence.
  • The court would then issue notice to the prosecutor and the complainant or victim, if any, for a hearing.
  • The voluntary nature of the application must be ascertained by the judge in an in-camera hearing at which the other side should not be present.
  • Thereafter, the court may permit the prosecutor, the investigating officer and the victim to hold a meeting for a “satisfactory disposition of the case”.
  • The outcome may involve payment of compensation and other expenses to the victim by the accused.
  • Once mutual satisfaction is reached, the court shall formalise the arrangement by way of a report signed by all the parties and the presiding officer.
  • The accused may be sentenced to a prison term that is half the minimum period fixed for the offence.
  • If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in law.

Reservations of Courts for Plea Bargaining in India

  • One of the possible reasons for less popularity of plea bargaining in India is that the case law after the introduction of plea bargaining has not developed much as the provision is possibly not used adequately.
  • Some earlier court verdicts disapproved of bargaining with offenders. Instead, the judges suggested that lenient sentences could be considered as part of the circumstances of the case after a regular trial.
  • Courts are also very particular about the voluntary nature of the exercise, as poverty, ignorance and prosecution pressure should not lead to someone pleading guilty of offences that may not have been committed.

Differences between Plea Bargaining in India vs in Other Countries

  1. Initiation of Plea Bargaining
    • In the U.S. and other countries, the prosecutor plays a key role in bargaining with the suspected offender.
    • On the other hand, Indian code makes plea bargaining a process that can be initiated only by the accused; further, the accused will have to apply to the court for invoking the benefit of bargaining.

  2. Applicability to Cases
    • The cases for which the practice is allowed are limited in India. Only someone who has been charge sheeted for an offence that does not attract the death sentence, life sentence or a prison term above seven years can make use of the provisions under Chapter XXI-A. It is also applicable to private complaints of which a criminal court has taken cognisance.
    • Other categories of cases that cannot be disposed of through plea bargaining are those that involve offences affecting the “socio-economic conditions” of the country, or committed against a woman or a child below the age of 14.

  • Not yet mainstream in India
    • Though plea bargaining has been available to those accused of criminal offences in India since 2006, it is not yet commonly used.

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