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Semester VII Criminal Procedure Code

PLEA BARGAINING

DECLARATION

I do hereby declare that the project research titled PLEA BARAGAINING submitted to
the in fulfilment of the requirement of the internal component is a record of the original
work done by me under the supervision and guidance of and that the project submitted has
not been formed on the basis of any other project submitted by any other university or
college.

Date: Signature
ACKNOWLEDGEMENT

The outcome of this project work has been possible only with the help, support, inspiration
and academic assistance from various people.

I would like to express my special thanks of gratitude to Asst her guidance and support.

I also extend my heartfelt thanks to my beloved parents and friends who provided me with
moral and support and stood at my side at all times.

Lastly, I thank the Almighty for making my work a success.


PLEA BARGAINING IN INDIA

ABSTRACT

A major concern with plea bargains is that innocent defendants will be induced to plead guilty.
This paper explores the importance of the concept of plea bargaining to the criminal justice system.
For some plea bargaining is an important and useful tool used to keep the wheels of justice moving
in a timely fashion, but to others it is a slap on the wrist to offenders and a further insult to victims
and their families. Some argue that the results of plea bargains make for inconsistent justice, but
the Supreme Court has endorsed the practice and therefore it is important that judges monitor the
system to make sure plea bargains are used fairly and without discrimination.

RESEARCH QUESTION

This paper mainly revolves around the research question

Whether plea bargaining gives a speedy and fair judgment with respect to the conflict?

RESEARCH METHODOLOGY

The research methodology adopted is purely doctrinal in nature. The primary sources includes
statutes, judgments. Secondary sources includes various scholarly articles, books and newspaper.

INTRODUCTION

In India there are lot of pending cases which are not yet been given justice. To reduce the delay in
disposing criminal cases and for speedy trail, the 154thReport of the law commission first
recommendation the introduction of Plea Bargaining as an alternative method to deal with huge
arrears of criminal cases. This recommendation of the Law Committee finally found a support in
Mali math Committee Report. The NDA government had formed a committee, headed by the
former Chief Justice of the Karnataka and Kerala High Court, Justice V.S. Malimathto come up
with some suggestions to tackle the ever growing number of criminal cases. In its Report, the Mali
math Committee recommended that a system of Plea Bargaining be introduced in the Indian
Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden
of the courts. To strengthen its case, the Mali math Committee also pointed out the success of Plea
Bargaining system in U.S.A.

The concept of Plea Bargaining attracted enormous public debate. Critics said it is not recognized
and against public policy under our criminal justice system. The Supreme Court also time and
again blasted the concept of Plea Bargaining saying that negotiable in criminal cases is not
permissible.

Moreover in state of Uttar Pradesh Vs Chandrika1, the Apex court held that it is settled law that
on the basis of Plea Bargaining court cannot dispose of the criminal case. The court has to decide
it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented.
The court further held in the same case that, mere acceptance or admission of the guilt should not
be a ground for reduction of sentence, nor can be the accused bargain with the court that as he is
pleading guilty the sentence be reduced despite this huge hue and cry, the government found it
acceptable and finally Section 265A 265L11, have added in the Code of Criminal Procedure so
as to provide for raising the Plea Bargaining in certain types of criminal cases.

Chapter XXI on Plea Bargaining has been introduced in the Criminal Procedure Code. It was
introduced through the Criminal Law (Amendment) Act, 2005, which was passed by the
Parliament in its winter session. It became effective from 5thJuly 2006. Originally Plea Bargaining
is an American concept its origin can be traced back in America during the 19thCentury. Over the
years Plea bargaining has emerged as a prominent feature of the American Judicial System.

In India Plea Bargaining has certainly changed the face of the Indian Criminal Justice System. Plea
Bargaining is applicable in respect of those offences for which punishment is up to a period of 7

1
State of Uttar Pradesh Vs Chandrika, 2000 Cr. L.J. 384(386), A.I.R. 2000 SC 164.
years. Moreover it does not apply to cases where the offence committed is a Socio-Economic
offence or where the offence is committed against a woman or a child below the age of 14 years.
Also once the court passes an order in the case of Plea Bargaining no appeal shall lie to any court
against that order.

The reasons for introducing plea bargaining in India, one of the main reason is Speedy disposal of
criminal cases i.e. reduction in heavy backlogs. This helps to clear long run pending cases and time
consuming. This concept also helps in giving an end of uncertainty of cases. This concept also
helps in saving legal expenses of both the parties that accused and state. The economical reason is
less congestion in jail because this concept will reduce the sentence or sometimes will only ends
in paying compensation. In the present system, 75% to 90% of the criminal cases results in
acquittal, in this situation it is preferable to introduce t0his concept in India. It is not fair to keep
the accused with hard-core criminals because if the accused is innocent then he will accept his
guilt and in this situation, it is not reasonable.

An agreement as a result of negotiation between the prosecution and defense which settles a
criminal case, usually in exchange for a more lenient punishment. Typically the defendant will
plead guilty to a lesser crime or for a fewer charges than originally charged, in exchange for a more
lenient punishment than the defendant would get if convicted at trial. It is seen as a win-win for all
the parties as the prosecution has a certain conviction on the record, the defendant is provided a
more lenient sentence than the risk of a higher one at trial and the judge is freed to move to other
cases and dispute to resolve.

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.

Plea Bargaining can be described as a process whereby the accused may bargain with the
prosecution for a lesser punishment. In simple words, Plea Bargaining is an agreement (contract)
between the accused and the prosecution regarding disposition of the criminal
Charge leveled by the prosecution against the accused. In laymans language, it is bargaining done
by the accused of a serious and severe offence, with the authority for a lighter punishment in lieu
of a full-fledged trial.2

It has become a disputed concept because there are many views regarding the stated point. Some
authorities stress that introduction of plea- bargaining in India is exceptionally good as it will
reduce heavy backlog prevalent in Indian Judiciary as well as reduce congestion in jails and other
reasons whereas some authorities denied about it on the basis that the socio- economic conditions
existed in US and India are very different. Law Commission in its report recommended it with the
justification and reasons for accepting it. They stressed mainly on the points stated above. On the
other hand, Opponent of this concept thinks that: It is showing too much softness towards
defendants.

The process is unfair with the innocent. It is like legalizing a crime to an extent, we already have
provisions under probation of offenders Act, executive pardon.

According to one study of the US, one-third of the people who plead guilty would be acquitted if
they went to trial.

SALIENT FEATURES OF PLEA BARGAINING

The Plea Bargaining is applicable only in respect of those offences for which punishment of
imprisonment is up to a period of 7 years. It does not apply where such offence affects the socio-
economic condition of the country or has been committed against a woman or a child below the
age of 14 years. The application for Plea Bargaining should be filed by the accused voluntarily.

A person accused of an offence may file an application for Plea Bargaining in the court in which
such offence is pending for trial.

The complainant and the accused are given time to work out a mutually satisfactory disposition of
the case, which may include giving to the victim by the accused, compensation and other expenses
incurred during the case.

2
Shree Rams The Law, Vol. II, Issue X October 2014, a monthly Journal cum Magazine on Law and Judiciary.
Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the
case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case
may be for such offence.

The statement or facts stated by an accused in an application for plea bargaining shall not be used
for any other purpose other than for plea bargaining.

The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal
shall lie in any court against such judgment.

There are three main types of Plea Bargaining namely,

1) Charge Bargain

2) Sentence Bargain

3) Fact Bargain

RELEVANT CASE LAWS:

In the case of Murlidhar Meghraj Loyat v. State of Maharashtra, the Supreme Court observed as
under:

We are free to confess to a hunch that the appellants had hastened with their pleas of guilty
hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo
contendere stance. Many economic offenders resort to practices the American call plea bargain,
plea negotiation, trading out and compromise in criminal cases and the trial magistrate
drowned by a docket burden nods assent to the sub Rosa anteroom settlement. The businessman
culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, 'trades
out' of the situation, the bargain being a plea of guilt, coupled with a promise of 'no jail'. These
advance arrangements please everyone except the distant victim, the silent society. The prosecutor
is relieved of the long process of proof, legal technicalities and long arguments, punctuated by
provisional excursions to higher courts, the court sighs relief that its ordeal, surrounded by a crowd
of papers and persons, is avoided by one case less and the accused is happy that even if legalistic
battles might have held out some astrological hope of abstract acquittal in the expensive hierarchy
of the justice-system he is free early in the day to pursue his old professions. It is idle to speculate
on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our
jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice
intrudes on society's interests by opposing society's decision expressed through predetermined
legislative fixation of minimum sentences and by subtly subverting the mandate of the law. The
jurists across the Atlantic partly condemn the bad odor of purchased pleas of guilt and partly"
justify it philosophically as a sentence concession to a accused who has, by his plea 'aided in
ensuring the prompt and certain application of correctional measures to him.

In civil cases we find compromises actually encouraged as a more satisfactory method of settling
disputes between individuals than an actual trial. However, if the dispute... finds itself in the field
of criminal law, "Law Enforcement" repudiates the idea of compromise as immoral, or at best a
necessary evil. The "State" can never compromise. It must enforce the law." Therefore open
methods of compromise are impossible.

The Supreme Court in the case of Rajinder Kumar Sharma and Anr v. The State and Anr observed
as under:

Recently, the legislature has introduced plea bargaining under law so as to benefit such accused
persons who repent upon their criminal act and are prepared to suffer some punishment for the act.
The purpose of plea bargaining is also to see that the criminals who admit their guilt and repent
upon, a lenient view should be taken while awarding punishment to them. But the legislature has
not thought it proper to give right to the individual to compound any offence and every offence in
which loss to individual is also involved. When a person goes to the extent of opening fake account,
putting fake signatures and getting cheque uncashed on the basis of forged signatures, this shows
his criminal bent of mind. If he is really repent full, he must undergo some punishment for his
crime committed and the sufferance which he made to the society.

Considering the view of the Supreme Court in the above two cases, it is quite evident that the term
plea bargaining existed since a long time. Though the judiciary did not find it necessary to
recognize it then, however, now it has got the recognition and is being implemented as well. The
importance of this doctrine has been well explained by the Indian judiciary.

In other case of Vijay Moses Das vs. CBI (Criminal Misc. Application 1037/2006), Uttrakahnd
High Court in March 2010 allowed the concept of plea-bargaining, wherein accused was charged
under section 420, 468 and 471 of IPC. In the said case, Accused supplied inferior material to
ONGC and that too at a wrong Port, which caused immense losses to ONGC, then investigation
was done through CBI by lodging a criminal case against the accused. Notwithstanding the fact
that ONGC (Victim) and CBI (Prosecution) had no objection to the Plea-bargaining Application,
the trial court rejected the application on the ground that the Affidavit u/s (265-B) was not filed by
the accused and also the compensation was not fixed. The Honble High Court allowed the Misc.
Application by directing the trial court to accept the plea-bargaining application.

Major drawbacks of plea-bargaining:

Involvement of the police in plea-bargaining process would tempt coercion on innocent people.

If once guilty application of the accused is rejected then he would face great hardship to prove
himself innocent. Court is impartially challenged due to its involvement in plea-bargaining
process. Involvement of the victim may lead to corruption.

One aspect can be taken that plea-bargaining will instead likely to dramatically increase the
number of cases where innocent persons find themselves imprisoned and with criminal records.
Sometimes police make poor innocent people, accused of crimes that they never committed, after
being paid off by the actual perpetrators. With the concept of plea-bargaining, these persons will
be getting pushed to accept their guilt which they had never committed. In the prevalent situation,
where the acquittal rate is as high as 90% to 95%, it is the poor who will be the victims of this
concept and come forward to make confessions and suffer the consequent conviction. This
measure to get speedy justice will only lead to miscarriages of justice. It is important to note that
no programme of rehabilitation can be effective for the mind of prisoner who has assumed himself
as prisoner and convinced in his own mind that he is in prison because he has become the victim
of a senseless, undirected, and corrupt system of justice and it undermines the very basis of
criminal justice system.

Secondly, it will have striking effects in cases involving state officers, accused of human rights
abuse. In case of Custodial torture, this is yet to be made a crime. An Indian police officer accused
of torturing a person in his custody may instead only be tried for other offences, such as those
punishable under sections 323, 324 or 330 of the Indian Penal Code. The punishments for these
offences are within the limit prescribed for punishment under the new law on plea-bargaining. This
means that the new law may allow these torturers to escape with lighter penalties, even after
knowing the fact that their offences fall into the gravest categories under international law.

ADR IN CIVIL CASES

The concept of Conflict Management through Alternative Dispute Resolution (ADR) has
introduced a new mechanism of dispute resolution that is non adversarial. A dispute is basically
lis inter partes and the justice dispensation system in India has found an alternative to Adversarial
litigation in the form of ADR Mechanism. New methods of dispute resolution such as ADR
facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and
with increased efficacy. In addition, these processes have the advantage of providing parties with
the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome,
resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case.
The resolution of disputes takes place usually in private and is more viable, economic, and
efficient. ADR is generally classified into at least four types: negotiation, mediation, collaborative
law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present
purposes it can be regarded as a form of mediation, The system of dispensing justice in India has
come under great stress for several reasons mainly because of the huge pendency of cases in courts.
In India, the number of cases filed in the courts has shown a tremendous increase in recent years
resulting in pendency and delays underlining the need for alternative dispute resolution methods.

In a developing country like India with major economic reforms under way within the framework
of the rule of law, strategies for swifter resolution of disputes for lessening the burden on [1] the
courts and to provide means for expeditious resolution of disputes, there is no better option but to
strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for
providing settlement of disputes through arbitration, conciliation, mediation and negotiation.2

Impact/resulting acts of ADR:

The technique of ADR is an effort to design a workable and fair alternative to our traditional
judicial system. It is a fast track system of dispensing justice. There are various ADR techniques
viz. arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private judging, final
offer arbitration, court-annexed ADR and summary jury trial.
These techniques have been developed on scientific lines in USA, UK, France, Canada, China,
Japan, South Africa, Australia and Singapore. ADR has emerged as a significant movement in
these countries and has not only helped reduce cost and time taken for resolution of disputes, but
also in providing a congenial atmosphere and a less formal and less complicated forum for various
types of disputes.

The Arbitration Act, 1940 was not meeting the requirements of either the international or domestic
standards of resolving disputes. Enormous delays and court intervention frustrated the very
purpose of arbitration as a means for expeditious resolution of disputes. The Supreme Court in
several cases repeatedly pointed out the need to change the law. The Public Accounts Committee
too deprecated the Arbitration Act of 1940. In the conferences of Chief Justices, Chief Ministers
and Law Ministers of all the States, it was decided that since the entire burden of justice system
cannot be borne by the courts alone, an Alternative Dispute Resolution system should be adopted.
Trade and industry also demanded drastic changes in the 1940 Act. The Government of India
thought it necessary to provide a new forum and procedure for resolving international and domestic
disputes Thus "The Arbitration and Conciliation Act, 1996"came into being. The law relating to
Arbitration and Conciliation is almost the same as in the advanced countries. Conciliation has been
given statutory recognition as a means for settlement of the disputes in terms of this Act. In addition
to this, the new Act also guarantees independence and impartiality of the arbitrators irrespective
of their nationality. The new Act of 1996 brought in several changes to expedite the process of
arbitration. This legislation has developed confidence among foreign parties interested to invest in
India or to go for joint ventures, foreign investment, transfer of technology and foreign
collaborations.

The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In
conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that
resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do not
develop strained relations; rather they maintain the continued relationship between themselves.

Arbitration and Conciliation Act, 1996

Part I of this act formalizes the process of Arbitration and Part III formalizes the process of
Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva
Conventions.)
Arbitration:

The process of arbitration can start only if there exists a valid Arbitration Agreement between the
parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in
writing. The contract, regarding which the dispute exists, must either contain an arbitration clause
or must refer to a separate document signed by the parties containing the arbitration agreement.
The existence of an arbitration agreement can also be inferred by written correspondence such as
letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of
claim and defense in which existence of an arbitration agreement is alleged by one party and not
denied by other is also considered as valid written arbitration agreement.

Any party to the dispute can start the process of appointing arbitrator and if the other party does
not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator.
There are only two grounds upon which a party can challenge the appointment of an arbitrator
reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the
arbitrator as required by the arbitration agreement. A sole arbitrator or panels of arbitrators so
appointed constitute the Arbitration Tribunal.

Except for some interim measures, there is very little scope for judicial intervention in the
arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a
party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the
tribunal itself. If the tribunal rejects the request, there is little the party can do accept to approach
a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party
can appeal to the principal civil court of original jurisdiction for setting aside the award.

Once the period for filing an appeal for setting aside an award is over, or if such an appeal is
rejected, the award is binding on the parties and is considered as a decree of the court.

Conciliation

Conciliation is a less formal form of arbitration. This process does not require an existence of any
prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is
preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If
a party rejects an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute and
the points at issue. Each party sends a copy of the statement to the other. The conciliator may
request further details, may ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms of
settlement and send it to the parties for their acceptance. If both the parties sign the settlement
document, it shall be final and binding on both.

Note that in USA, this process is similar to Mediation. However, in India, Mediation is different
from Conciliation and is a completely informal type of ADR mechanism.

Mediation

Mediation, a form of alternative dispute resolution (ADR) or "appropriate dispute resolution", aims
to assist two (or more) disputants in reaching an agreement. The parties themselves determine the
conditions of any settlements reached rather than accepting something imposed by a third party.
The disputes may involve (as parties) states, organizations, communities, individuals or other
representatives with a vested interest in the outcome.

Mediators use appropriate techniques and/or skills to open and/or improve dialogue between
disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed
matter. Normally, all parties must view the mediator as impartial.

Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic,
workplace, community and family matters.

A third-party representative may contract and mediate between (say) unions and corporations.
When a workers union goes on strike, a dispute takes place, and the corporation hires a third party
to intervene in attempt to settle a contract or agreement between the union and the corporation.

Negotiation
Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of
action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various
interests. It is the primary method of alternative dispute resolution.

Negotiation occurs in business, non-profit organizations, and government branches, legal


proceedings, among nations and in personal situations such as marriage, divorce, parenting, and
everyday life. The study of the subject is called negotiation theory. Those who work in negotiation
professionally are called negotiators. Professional negotiators are often specialized, such as union
negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work
under other titles, such as diplomats, legislators or brokers

CONCLUSION

Initially, the concept of plea- bargaining was criticized by a group of society including legal experts
and intellectuals by stating that it will demoralize the public confidence in criminal justice system
and also lead to lesser penalties to rich class, conviction of innocent people and therefore, it has
become disputed concept now. Today, it is used by all great countries like USA, Europe, Canada
and some authorities stated that the prevalent conditions in India are very different from US, even
then to meet out the huge backlog of cases in India and ultimately it will have to be done with the
consent of both the parties i.e. accused and prosecution, then what undermines? Therefore, India
cannot abstain itself for this law. This practice has been accepted by Indian Judiciary. It can reduce
the heavy backlog of cases in Indian courts; as it requires today and we hope that overburdened
criminal courts will soon get a relief with it and rate of disposing will become rapid. According to
the statistics of Delhi till 17/01/2011, out of 8630 total cases, only 4129 cases have settled and
there is no statistic which show that in how many cases plea-bargaining was demanded but even
then only 309 were declared in which it was rejected . It shows the heavy backlog under Indian
Courts and application of plea- bargaining.

The practice of what has come to be known as plea bargaining has been the subject of
considerable debate over the last few decades. In Canada, the discussion has centered on the exact
nature of the practice and on the term by which it should be known. In 1975, the Law Reform
Commission of Canada defined plea bargaining as any agreement by the accused to plead guilty
in return for the promise of some benefit. But over the years, considerable objections grew against
designating the practice in any way that implied that justice could be purchased at the bargaining
table. Consequently, there was a movement away from the use of the term plea bargaining and
toward more neutral expressions such as plea discussions, resolution discussions, plea
negotiations and plea agreements. The use of such expressions marked an evolution in the
practice itself, since they implicitly acknowledged it to be much more wide ranging than simple
bargaining and to involve the consideration of issues beyond merely that of an accused pleading
guilty in exchange for a reduced penalty.

The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere. The
doctrine has been under consideration by India for introduction and employment in the Criminal
Justice System. Indian Criminal Justice System has been ineffective in providing speedy and
economical justice. Because Courts are flooded with astronomical arrears, the trial life span is
inordinately long and the expenditure is very high. Subsequently majority of cases are arising from
criminal jurisdiction and the rate of conviction is very low.

Bibliography

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Lucknow, , (2008)

Misra, S.N., The Code of Criminal Procedure, 1973 with Probation of


Offenders Act & Juvenile Justice Act, 17th ed, Central Law Publications (2011)

Ratanlal & Dhirajlal, Code of Criminal Procedure, 17th edition, Lexis Nexis
Butterworths Wadhwa, Nagpur (2004)

Sarkars, The Code of Criminal Procedure, Dwivedi Law Agency Allahabad,


Reprint (2007)