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PLEA BARGAINING: A UNIQUE ALTERNATIVE

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SUBMITTED BY RICHA SINGH AND AMBUJ KUMAR SONAL ROLL NO 161 AND 107 SEMESTER VI TH YEAR 3 RD __________________________________________________________________ ___

CHANAKYA NATIONAL LAW UNIVERSITY PATNA, BIHAR.

INTRODUCTION Quality of justice suffers not only when an innocent person is punished or a guilty person is exonerated, but when there is enormous delay in deciding the criminal cases.1 A "plea bargain" is an agreement between the prosecutor, the defendants attorney and the defendant. In return for the defendant entering a plea of guilty to a criminal charge, the prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial. Judiciary is the most important organ where people have faith. It is known for its impartiality and independence in deciding the disputes. The Indian judiciary is, now a days, regarded as the unsuccessful organ of the Indian Government system. Heavy back-log of cases in the courts and inevitable delay in dispensing the justice has been to such an extent that it is shaking public trust and confidence in the legal system and it is tending to erode the quality of social justice and hampering the socio-economic development of the country.2 Speedy trial is the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.3 The theory of "justice delayed is justice denied" can be applied after seeing the Indian context. The lengthy trial procedure takes years or sometimes decade to adjudge the proceeding. The factors which really are the reason for such delays:
i)
1

increasing number of litigation,

Government of India, ministry of home affairs , Report of the committee on reforms of criminal justice system, vol.1, March 2000. 2 A.K.Sikri " Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA DEEP, Vol.__,2006,p.39-60. 3 Hussainara Khatun v. State of Bihar, AIR 1979 SC 1360.

ii)

courts overburdened with cases. number of judges in the Supreme Court, High Courts and subordinate Courts.

iii)

Courts Overburdened 4 By Oct.- 3, 2001 there were 2.03 crore backlog pending cases in District Court and High Court. More than 80% cases were from seven states- Uttar Pradesh, Gujarat, Bihar, Karnataka, Madhya Pradesh, West Bengal and Maharashtra. There were 35,57,637 case spending in different High Court of the country. Five lakh of them are more than ten years old. Even the Supreme Court has 21,995 cases pending therein. The Law Commission of India in its 120th Report(1987)5 observed that late disposal of backlog cases is because of low judge per capita ratio in the country. The Indian judges are roughly 10.5 judges per million whereas the figure is more than four times in Australia, U.K., U.S.A. and Canada. There was also a suggestion for increase in the number of judicial officers. Because of overburdening of Courts with cases, there is gross neglect towards the status of under trials. Flooding of cases led to increase in number of convicts and over population of prisoners. Although there is a capacity of 2.56 lakh prisoners but there is more than 5 lakh prisoners which are behind the prison. The State govts. spends more Rupee 55 per day on each prisoner and annual expenditure comes upto Rs 361 crore. If we could have adopted different method (speedy trial) then the situation would have been totally different. The State Government would be able to reduce the number of under trials in the jails and also the huge expenditure could have been checked6. These statistics reflect the ubiquity of plea bargaining. Plea bargaining involves the prosecutor trading a reduction in the seriousness of the charges or the length of
4 5

The survey is taken from CBI Bulletin, June- Dec., 2006, p. 14-19. Law Commission of India, 12oth Report on Manpower Planning in Judiciary: A Blue print , July 1987, pp. 2-3. 6 P.K.Singh "Plea Bargaining", CBI , Bulletin, June- Dec. 2008, p. 14.

the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced charges. Both sides usually have good reasons for settlement. In a case in which the evidence of guilt is overwhelming, the prosecution can avoid the expense and delay of a trial by offering modest concessions to the defendant. When the evidence is less clearcut the government can avoid the risk of an acquittal by agreeing to a plea to a reduced charge. Because the substantive criminal law authorizes a wide range of charges and sentences for typical criminal conduct, and because the procedural law allows prosecutors wide discretion in selecting charges, the prosecution can almost always give the defense a substantial incentive to plead guilty. Even the famous jurist Nani Palkhivala has said,7 The greatest drawback of the administration of justice in India today is because of delay of cases. The law may or may not be an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in the community of snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles along, barely able to work. It is the policy and purpose of law to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy untained and unpolluted justice8. The problem of delay and backlog of cases is rather more acute in criminal cases as compared to civil cases.9 The Criminal Law (Amendment) Act 2005 has been introduced in order to eradicate challenges in criminal cases. Indias population is day by day increasing. This increase in population leads to increase in number of detrimental acts. This increase in number of detrimental acts has lead to the creation of many new policies. These policies in its practice requires more number of litigation. As a result, courts are overburdened with cases. It is the temptation that has led the legislature to incorporate the concept of

7 8

Nani A. Palkhivala, We the nation lost decade (1994), UBS Publications, p. 215. Anil Rai v. Satte of Bihar, AIR 2000 SC 3173. 9 Supra 2.

Plea Bargaining in India and hopefully the result will be satisfying in many aspects10.

CONCEPT Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet become the subject of collateral review. Prosecutors refuse to file charges or dismiss charges in a large number of cases. In the cases prosecutors choose to pursue, the majority end not in trial by jury but by a plea of guilty or a successful motion to dismiss. Statistics vary across jurisdictions, but it would not be uncommon for half of all arrests to result either in no charges or in charges that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas, and for the remaining cases to be tried. The government typically wins a significant but not overwhelming majority of criminal trials; a 70 percent conviction rate at trial would not be unusual.The concept of plea-bargaining in our criminal justice system has been taken from U.S. Legal System. A concept that has been imported from the west for the speedy trial. The Parliament introduced Chapter XXI A in CrPC11 which talks about its procedure and application. The characteristics of the concept are: A person accused of an offence may file an application for plea-bargaining in the court in which such offence is pending for trial.12 The application for pleabargaining should be filed by the accused voluntarily.13 The proceedings are held
10 11

Supra p. 4. Criminal Law (Amendment Act, 2005 ), inserted by Act 2 of 2008, Section-4, w.e.f.- 5.7.08. 12 Section- 265 A (1)(a) of CrPC, 1973. 13 Section- 265 B (4) of CrPC, 1973.

in camera. Time is given to the accused and the complainant for mutually satisfactory disposition of cases including expenses, compensation etc. The secrecy of the matter is maintained as to ensure that the statement made by the accused during plea-bargaining shall be voluntary. The concept includes women and children below 14 years. Crimes with punishment of more than 7 years or the punishments which are non compoundable under section 320, CrPC have been excluded from purview of plea-bargaining.

KINDS OF PLEA-BARGAINING: The kinds of bargaining are as follows: 1. Charge bargaining 2. Fact bargaining 3. Sentence bargaining. 1. Charge bargaining: It is the defendant who has to come to plead guilty for reduction of charges. It occurs when defendant pleads guilty to necessarily included offences.14 For this element, the prosecutor may offer to amend the charges to a lesser offense that carries a lesser penalty. An individual charged with burglary, a felony, may be offered a chance to plead guilty to criminal trespass, which is a misdemeanor. Alternatively, in return for a plea to a specific charge such as driving under the influence, other charges arising out of the same event, perhaps driving on a suspended license, might be dropped. Charge bargains can be used to avoid mandatory minimum penalties if a charge is changed to one that does not have the same minimums, but the facts fit the

14

Daviv Levinson, Encyclopedia of crime and punishment (2003), vol.3, p.1147.

alternate charge. The authority to alter charges is within the complete discretion of the prosecutor. 2 .Sentence bargaining: In this instance, the prosecutor agrees to make a specific recommendation to the judge of a sentence in return for a guilty plea. Most charges carry a wide range of sentence possibilities. Given the range of possible outcomes, many defendants prefer the certainty of a specific sentence rather than the uncertainty of a sentence following a guilty verdict when the sentence is entirely at the discretion of the judge. Generally, sentence bargains must be approved by the trial judge. 3.Fact bargaining It involves negotiations and admissions of certain facts stipulating to the truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove them.15 This is a little used possibility and often happens in minor cases that may expose a defendant to civil liability to a crime victim. Fact bargaining involves an stipulation to certain facts or the introduction to certain evidence, thereby eliminating the need for the prosecutor to have to prove them, in return for an agreement not to introduce certain other facts into evidence. The defendant may then technically maintain a plea of not guilty, though it is understood he will be found guilty. A guilty plea is an admission that may be used against a defendant in another court proceeding as to liability for specific acts. A finding of guilty after a trial is not such an admission. This process achieves a conviction for the prosecution without a full trial, and avoids a court admission for the defendant. In some jurisdictions this same result is achieved by a plea of no contest. Elements of a valid Plea- agreement: The accused is provided with many constitutional rights up until his guilty plea is entered. For an agreement to be valid, the following elements must be present:

A voluntary waiver of constitutional rights.

15

Supra 7.

A knowing waiver of these rights. A factual basis for the charges to which the defendant is pleading.

ORIGIN It has the origin in U.S. and before the 1920s, plea-bargaining was scarcely acknowledged to exist in the society.16 It was described as unfair and inaccurate (466 F 2d 735) and even if its constitutionality has been challenged in Harvard Law Review (1387).17 Later on rule-18 of Bar Association approved standards relating to guilty plea (1968) and recommended for plea of guilty for the accused. The validity of plea bargaining have been upheld saying that it extends benefit to the accused that in turn, extends the benefits to the accused.18 In Santa Bello v. New York,19 the court said that it is essential for the administration of justice and when properly
16

Baldevbhai P. Patel, plea-bargaining travesty of justice or necessary evil, Gujarat Law Herald, 2007 (1), p. 16 to 21. 17 Supra -4. 18 Brady v. US, 397 U.S. 742 (1970). 19 404 US 257(1971).

managed, was to be encouraged. The court should not act as a facilitator of the bargain.20 In 1976, even Justice Potter Steward has stated that the heart and soul of Plea Bargaining is in the benefit to all concerned in a criminal case21. At present in USA, the plea bargaining is widely prevalent; it has become a major part in criminal justice system, it plays the significant role in the disposal of criminal cases. It can be rebutted in many ways but, the agreements attracts three important issues. i) ii) iii) The importance of Plea Bargaining to the competence of the system. How the practice affect the liability of the accused. The extend to which Plea Bargaining represents the proper role of the courts and the criminal justice as a whole.

GROWTH OF PLEA BARGAINING IN INDIA: JUDICIAL REVIEW Here, a crime is a way against the society and state. And the negotiation between the wrongdoer and the aggrieved party or with the state was held unconstitutional and illegal terming, it to be against the public policy22. Article 21 has been put for in support of the accused as he would not be getting fair and reasonable opportunity to defend the case. In number of cases23the Supreme Court has set aside High Court and remanded the matter to the Judicial Magistrate for trial of the
20 21

Supra 7. Blackledge v. Allison, 431 US 63 ( 1977). 22 Kachhia Patel Shantilal Koderlal v. State of Gujrat and Another ( 1980) 3 SCC 121; UOI v. V. Jasbhai and Another 1981 (8) ELT 902 (MP), State of Gujarat v. Union Bhikhu Prajapati 1992 Cri LJ 626. 23 Ganeshmal Jashraj v. Govt. of Gujarat, 1980 Cri LJ 208: AIR 1980 Sc 264, Trippaswamy v. State of Karnataka, AIR 1983 SC 747.

accused in accordance with law as it comes to the conclusion that the conviction and sentence were based on a coerced admission of guilt as a result of Plea bargaining. But after the amendment in CrPC in 2005, there is a change in the criminal justice. The time has come to take it as norm rather than exception in Criminal Justice system. The justice has to be provided in the reasonable time but the backlog of cases has been really questioning the faith of judiciary which people have in it. Judges are second to God, efforts should be made to strengthen this belief. Plea bargaining is such a process through which criminal justice system can be improved. It has more pros than cons and the legislature has applied in India as in such a manner that minimum misuse can be done. The crime in our country has been really increasing and it is adding up as the day passes. Without the use of plea-bargaining the already over-crowded prisons would be even worse.24

EFFECT OF PLEA BARGAINING In lieu to remove the backlog cases, the individual and the collective goal in regard to plea-bargaining can only be achieved when judges, public prosecutors, accused, investigating officers and the victims co-operate and work together. It leads to minimum risks of undesirable results for either parties; avoid the uncertainty of the trial. The reason for plea-bargaining by either side may be several and are as follows:
24

Supra 2.

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1.Plea Bargaining In respect to victims: Although the crime is against the state and the society but it is ultimately the victim which need to be satisfied. This plea-bargaining has come up as a victim oriented reform in the criminal justice system. Perhaps, it is the first time that the recommendation and suggestion of law commission in CrPC has been implemented for taking care of the interest of the victim.25It provides greater respect and consideration towards the victim and their rights.26 There is a scheme for compulsory compensation; and also satisfactory disposition of the case. The plea bargaining also mandates for giving compensation to the victims of the crime. When the process is complete and the quantum of punishment and possibility of the probation is finished, we can say that the victims are not the forgotten actor rather they have become a key player in the criminal justice system. 27 The right of the victims are better upheld; and they do not have to satisfy himself with the court decision. They can bargain over the courts decision. The victim does not have to produce evidence in the Court and thus led to reduction in anxiety to the victims and the unpleasantness of hearing all details of crime analyse in length in public28. For those who do give evidence the process is often stressful29. Due to Plea bargaining the victim may even avoid the stress and publicity of trial; and even the court's time is saved. 2.Plea bargaining In respect to Accused: The accused are the most benefited person of Plea Bargaining when they confess about the crime. They can even save the Attorney's fee if they are represented by the Private Counsel. The time consumed in Plea Bargaining is always less as compared to take the case in trial. The other benefits are30: i) ii)
25 26

Getting Out of Jail. Resolving the Matter Quickly.

Supra 2. Ibid at 26. 27 Attorneys Paul Bergman & Sara J. Berman- Barett, The criminal law handbook: Know your rights, survive the system, (1997) Berkkeley : nolo press. 28 Ashworth & Redmayne, "The Criminal Process" ed. 3rd, p. 283. 29 J.Morgan and L.Zedner," Child victims: crime, impact, and criminal justice", 1992. 30 Supra note 12.

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iii) iv) v)

Having Fewer or less serious offences on One's record Avoiding hassles of finding a good lawyer for preparing for trial. Avoiding Publicity.

3.Plea Bargaining in respect to Judges and Prosecutors: Many judges and Prosecutors get powerful incentive because of crowded

calendars and overburdening of Prisons. Plea Bargaining help court and prosecutors to manage caseloads31. Judge even presides effective trials because of Plea bargaining, minimise risk of ruling being overturned on appeal; and to avoid the necessity of making ruling during trial32.

CAUSES OF CONCERNED IN PLEA BARGAINING After seeing the above situation the model of Plea Bargaining need to have involvement of three important benefits33: i) ii) iii)
31

Increasing the predictability of Plea Bargaining, Enhancing the accuracy and fairness of the Plea. Introducing more openness and transparency in the Plea Negotiations.

Stetan, J Kapsch," Plea Bargaining", The guide to American Law: Everyone's legal Encyclopedia, Minneapolis, MN; West, 1998. 32 http:// criminal. Findlaw.com/articles// 1491.html ( last visited on 26/10/2006, as reported in Nyaya Deep). 33 Jenia Iontcheva Turner, " judicial Participation in Plea Negotiation: A Comparative View:Winter 2006, The American Journal of Comparative law, Vol. 55(1), p.199.

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CRITICISM Advocates or attorneys, basically the criminal lawyers, are opposing the pleabargaining process. As this process is an alternative to the litigation, the prosecutor or the defendant may avoid to engage an attorney. So, the criminal lawyers are not in favour of this process. But, the question arises, whether this process should engage the litigating attorneys? Attorneys know the court process, the prosecutors and most importantly, how the law works. When an attorney reviews your case, he or she may find potential legal issues that can result in evidence being excluded or your case being dismissed. If your case goes to jury trial, an attorney will know how to prepare for trial and what needs to be proved. The burden in a criminal case is always on the government to prove your guilt beyond a reasonable doubt. Your attorney does not have to put on any evidence, however he or she does need to cross-examine the government's witnesses. Cross-examination is a skill, and good cross-examination is very effective. Although the legislature has adopted the concept of Plea Bargaining with certain reservation and cautions. The criticism of this Plea Bargaining are basically of two types: Firstly, the defendants loose up their constitutional rights eg. Right to trial, Right to appeal as guaranteed by CrPC, right to fair procedure (as it should be just, fair and reasonable, right to equality. Secondly, it effect on sentencing policy as it point out that society's interest in appropriate punishment for crime is reduced by Plea Bargaining34.Its also being criticised by saying that there is reduction in deterrence as criminal spend less time in jail. It can be rebutted by saying that long processing times are not only costlier in jail time and psychological wear tear, but also tend to remove the probability of conviction35.

34 35

Supra 2. Ibid 36.

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CONCLUSION The general public tends to regard plea bargaining as too lenient. The defense bar and others of like mind think it too coercive. -George

Fisher Whether plea bargaining is an effective method of delivering justice has been a hot burning topic which needs to be handled with proper care and caution. In the modern field of criminal jurisprudence, which is still in its infant stage, it is very well needs to be answered as to how is it going to act as a tool for providing justice?
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To save from miscarriage of justice, following safeguards must be followed by all the player of the process36 Judicial independence and impartiality Complete and timely disclosure of prosecution case Complete record of disposition and discussions to be maintained to promote consistency and transparency To be ensured that the views of victim and investigating agency are solicited and also to ensure their understanding of the agreement Plea must be voluntarily and there must be awareness of circumstances and likely consequences. Due to unloading of backlog cases, the jails will not be over-packed. The constitutional obligation to provide speedy trial is also being fulfilled; reduction in the number of under trial prisoners. Due to plea-bargaining, the faith of the people in criminal justice system can be regained and crime rate can also be decreased. The plea-bargaining can also reduce the serious congestion in the courts. By the words of Earn Warren, It is the spirit and not the form of law that keeps the justice alive. So, the proceeding must be fair and reasonable to have best results.

BIBLIOGRAPHY BOOKS REFERRED:

1. Batuk Lal, Commentary on Criminal Procedure, 4th ed., Vol-2, Orient

Publishing Company. 2. DN Sen, Code of criminal procedure, Vol-2, Premier Publishing Company.
3. Sudipta Sarkar & VR Manohar, Sarkars Code of Criminal Procedure, 9th

ed., 2007, Wadhwa Publications.

36

Supra 2.

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4. YV Chandrachud & VR Manohar, R&D Commentary on Criminal

Procedure Code, 18th ed., 2006, Wadhwa Publications. ARTICLES REFERRED: 1. Shri Baldevbhai P.Patel, Plea Bargaining- Travesty of Justice or Necessary Evil?, Gujarat National Law University, 2007 (1). 2. Chidananda Reddy S.Patil, Due Process Analyasis of Plea Bargaining, 1 KUJLS (1998). 3. Justice A.K.Sikri, Plea Bargaining, Nyaya Deep, 2006 , p. 77. 4. Mishita Jethi Bargaining of Constitutional Rights: An Analysis of Chapter XXIA of the Criminal Procedure Code, 1973.CriLJ, 2008, p. 27. 5. Shri Hrudayaballav Das, Introduction of the Concept of Plea Bargaining in Criminal Administration of Justice, The Cuttack Law Times, 1990, Vol 70, p.25. 6. Shyam Kumar, Plea Bargaining, CriLJ 1999 , p.26. 7. Pankaj Kumar Singh, Plea Bargaining, CBI Bulletin, 2006(June- Dec.), p.14. 8. V.K. Babu Prakash, Plea Bargaining- A mission that would fail, K.L.T. (July, 2007) , p. 14. 9. A.K.Sikri " Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA DEEP, Vol.__,2006,p.39-60. 10. Tanuj Hazari," Plea Baragining : A Mutually Satisfactory Disposition or Deal in Justice", Madras Law Journal, 2008 ,Vol-1,p.56.

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