Law and You >Procedural Laws > BNSS > Plea Bargaining (Ss. 289 to 300 BNSS)
Delay and heavy workloads in the Courts have resulted in the informal system of pre-trial bargaining and settlement in some western countries, particularly in the United States. This system is commonly known as ‘plea bargaining’. In the most traditional and general sense “Plea bargaining” may be defined as an agreement in a criminal case between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally let it be known that he will minimize the sentence if the accused pleads guilty. A key aspect is that the facts stated in an application for plea bargaining are not meant to be used for any other purposes. In this article, we shall discuss provisions related to plea bargaining under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Who is Eligible for Plea-Bargaining?
Section 289 BNSS:
Application of the Chapter:
(1) This Chapter shall apply in respect of an accused against whom—
(a) the report has been forwarded by the officer in charge of the police station under section 193 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or
(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 223, issued the process under section 227, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child.
(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.
Section 289 BNSS specifies that the plea bargaining chapter (Chapter XXIII) applies to offenses for which the maximum punishment is not death, life imprisonment, or more than seven years, and excludes offenses against women, children, or those affecting the country’s socio-economic conditions. The Central Government can also notify other specific offenses that fall under these socio-economic or victim-related exclusions.
Application Stage of Plea-Bargaining:
Section 290 BNSS:
Application for Plea Bargaining:
(1) A person accused of an offence may file an application for plea bargaining within a period of thirty days from the date of framing of charge in the Court in which such offence is pending for trial.
(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in which he had been charged with the same offence.
(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where—
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time, not exceeding sixty days, to the Public Prosecutor or the complainant of the case and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Sanhita from the stage such application has been filed under sub-section (1).
According to Section 290 BNSS, if an accused wishes to plead guilty voluntarily under the aforementioned provisions, he may move an application to the concerned court with the details of his case supported by an affidavit declaring that:
- he is presenting the application voluntarily and
- he understands the nature of sentence and
- he has also to declare that he is not a previous convict for the same offence.
On receipt of application and affidavit from the accused, the trial court shall issue the notice to public prosecutor or the complainant, as the case may be, and to the accused to appear on the date fixed for the case. 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. 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 regular trial.
Where the Court is satisfied that the application was filed by the accused voluntarily, it will provide time to the Public Prosecutor or the complainant and the accused to work out a mutually satisfactory disposition of the case and fix the date for further hearing of the case. Mutually satisfactory disposition may include compensation to the victim and other expenses incurred in connection with the case.
In practice this is done by administering a properly structured questionnaire to the accused in camera. The questionnaire administered to the accused informs him that he has a right to fair trial. That by resorting to plea bargaining he will forego his right to trial, right to confront the complainant, right to bring witnesses in support of his defence and right to be convicted only by proof reasonable doubt. That the judgment delivered by the plea-bargaining judge in terms of the mutually satisfactory disposition shall be final and no appeal (except the special leave petition under Article 136, and writ petition under Articles 226 and 227 of the constitution shall lie in any court against such judgment. Once the judicial officer is satisfied about voluntariness, he will provide time for working out a mutually satisfactory disposition of the case which should have a provision for compensating the victim.
STEP 1: Application for Plea Bargaining:
- An application for plea bargaining must be filed in the Court where such offence is pending for trial.
- It must contain a brief description of the case including the offence to which the case relates.
- It must be accompanied by an affidavit of the accused stating therein that he has voluntarily preferred Plea Bargain in his case after understanding the nature and extent of punishment provided by law for the offence and that he has not previously been convicted by a Court for the same offence.
STEP 2: Procedure on filing of the application:
- The Court will issue notice to the Public Prosecutor or the Complainant and to the accused for appearance on the date fixed for the case.
- The Court will examine the accused in camera to satisfy itself that the accused has filed the application voluntarily and the other party in the case shall not be present. Court must ensure that the accused has filed the application for Plea Bargaining after understanding the nature and extent of punishment provided by law for the offence.
- If the Court is satisfied that the application was filed involuntarily or the accused was previously convicted by a Court for the same offence, it shall proceed further with the case according to the law from the stage of filing of the application.
STEP 3: To Provide Time for Mutually Satisfactory Settlement:
- Where the Court is satisfied that the application was filed by the accused voluntarily, it will provide time to the Public Prosecutor or the complainant and the accused to work out a mutually satisfactory disposition of the case and fix the date for further hearing of the case.
- Mutually satisfactory disposition may include compensation to the victim and other expenses incurred in connection with the case.
Guidelines for Mutually Satisfactory Disposition:
Section 291 BNSS:
Guidelines for Mutually Satisfactory Disposition:
In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 290, the Court shall follow the following procedure, namely:—
(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Provided further that the accused, if he so desires, may participate in such meeting with his advocate, if any, engaged in the case;
(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused so desires, he may participate in such meeting with his advocate engaged in the case.
Section 291 BNSS provides following procedures for the mutually satisfactory disposition under section 290(4)(a) BNSS:-
- In a Case Instituted on a Police Report: The court shall issue notice to the Public Prosecutor, investigating officer, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition. Pleader of the accused may be allowed to participate in such a meeting.
- In a Case Instituted Otherwise than a Police Report: The notice shall be issued to the accused and the victim of the case to participate in the meeting to work out the satisfactory disposition of the case. Pleader of the accused or the victim may also be permitted to participate in the meeting on the desire of the victim or the accused.
In both the above cases the court shall ensure that the disposition is worked out voluntarily.
STEP 4: Procedure for Working out Mutually Satisfactory Disposition:
- In a police case, the Court will issue notice to the Public Prosecutor, Investigating Officer, the accused and the victim of the case for participation in the meeting to work out a satisfactory disposition of the case.
- In a complaint case, the Court will issue notice to the accused and the victim of the case for participation in the meeting to work out a satisfactory disposition of the case.
STEP 5: Representation by a Advocate
- In a case instituted on a police report, the accused can participate in such meeting with his Advocate.
- In a case instituted on a complaint, the accused or the victim can participate in such meeting with his Advocate.
Examination and Report:
Section 292 BNSS:
Report of the Mutually Satisfactory Disposition to be Submitted Before the Court:
Where in a meeting under section 291, 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 officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Sanhita from the stage the application under sub-section (1) of section 290 has been filed in such case.
Section 292 BNSS, talks of filing a report regarding the outcome of the meeting irrespective of whether it is a success or failure. The mutual acceptable settlement of the case is reached between the parties participating in the meeting. The Court will prepare a report of such disposition and it will be signed by the Presiding Officer of the Court and the participating parties. If mutually satisfactory disposition could not be worked out, the Court will record its observation and proceed further with the case from the stage of filing of the application.
STEP 6: Report of Mutually Satisfactory Disposition:
- The mutual acceptable settlement of the case is reached between the parties participating in the meeting.
- The Court will prepare a report of such disposition and it will be signed by the Presiding Officer of the Court and the participating parties.
- If mutually satisfactory disposition could not be worked out, the Court will record its observation and proceed further with the case from the stage of filing of the application.
Where a Satisfactory Disposition of the Case has been Worked Out:
Section 293 BNSS:
Disposal of the Case:
Where a satisfactory disposition of the case has been worked out under section 292, the Court shall dispose of the case in the following manner, namely:—
(a) the Court shall award the compensation to the victim in accordance with the disposition under section 292 and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 401 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;
(b) after hearing the parties under clause (a), if the Court is of the view that section 401 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law;
(c) after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment, and where the accused is a first-time offender and has not been convicted of any offence in the past, it may sentence the accused to one-fourth of such minimum punishment;
(d) in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable for such offence and where the accused is a first-time offender and has not been convicted of any offence in the past, it may sentence the accused to one-sixth of the punishment provided or extendable, for such offence.
Section 293 BNSS gives directions for the final disposition of the case in the event of a successful disposition being worked out. The judicial officer is mandated to do the sentencing in terms of this provision which has an inbuilt relaxation in sentencing as a consideration of the accused’ guilty plea. This implies that opting for this procedure guarantees leniency in the sentencing as a matter of right.
The court shall award the compensation to the victim in accordance with the disposition and after hearing of the parties on the quantum of punishment, release the accused on probation of good conduct or after admonition under Section 401 BNSS or deal with the accused under the Probation of Offenders Act, 1958.
Where minimum punishment has been prescribed by law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment.
The court may sentence the accused to half of such minimum punishment provided under the law for the offence committed by the accused, or
If minimum sentence is not provided under the Act, the court may sentence the accused to one fourth of the punishment provided or extendable, as the case may be, for such offence.
STEP 7: Award of Compensation and Hearing the Parties on the Quantum of Punishment:
- The Court will award compensation to the victim in accordance with the disposition and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under Section 401 BNSS or dealing with the accused under the provisions of the Probation of Offenders Act, 1958.
STEP 8: Mode of Disposal of the Case:
- Where Section 401 BNSS or the Probation of Offenders Act is attracted, the Court may release the accused on probation of good conduct or after admonition under Section 401 BNSS or the Probation of Offenders Act, 1958.
- Where minimum punishment has been prescribed by law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment.
- In any other case, it may sentence the accused to one-fourth of the punishment prescribed or extendable for such offence.
Judgment:
Section 294 BNSS:
Judgment of the Court:
The Court shall deliver its judgment in terms of section 293 in the open Court and the same shall be signed by the presiding officer of the Court.
Section 294 BNSS deals with the Judgment of the Court in a plea bargaining case. It mandates that the Court shall deliver its judgment in terms of Section 293 and announce it in an open court. This judgment must also be signed by the presiding officer of the court.
Finality of the Judgment:
Section 295 BNSS:
Finality of the Judgment:
The judgment delivered by the Court under this section shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.
Section 295 BNSS, makes it clear that the judgment delivered by the Plea-Bargaining Judge is final and the only appeal shall lie by a special leave petition under Article 136 and writ petition under Articles 226 and 227 of the Constitution.
STEP 9: Pronouncement and Finality of the Judgement:
- The Court will deliver the judgement in the open Court and it shall be signed by the. Presiding Officer of the Court.
- The Judgement will be final and no appeal will lie against it except the writ petition under Articles 226 and 227 of the Constitution of India and Special Leave Petition under Article 136 of the Constitution of India against the judgement.
Power of the Court in Plea Bargaining:
Section 296 BNSS:
Power of the Court in Plea Bargaining:
A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Sanhita.
Section 296 BNSS talks about the powers of the court in plea bargaining. These powers include powers in respect of bail, the trial of offenses and other matters relating to the disposal of a case in such court under the Sanhita.
Set Off of Imprisonment:
Section 297 BNSS:
Period of detention undergone by the accused to be set off against the sentence of imprisonment:
The provisions of section 468 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Sanhita.
Section 297 BNSS, allows for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this procedure.
STEP 10: Adjustment of Detention Period:
The period of detention undergone by the accused will be set off against the sentence of imprisonment passed by the Court since the provision of Section 468 BNSS is applicable to the Plea Bargaining.
Savings:
Section 298 BNSS:
Savings:
The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Sanhita and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter.
Explanation.—For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (v) of section 2 and includes an Assistant Public Prosecutor appointed under section 19.
Section 298 BNSS 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 XXIII.
Protection of Accused Applying for Plea Bargaining:
Section 299 BNSS:
Statements of Accused Not to be Used:
Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the purpose of this Chapter.
Section 299 BNSS assures the accused that the statements or facts stated by the accused in an application for Plea Bargaining filed under 290 BNSS shall not be used for any other purpose than for this procedure.
Non-Applicability of Chapter XXIII:
Section 300 BNSS:
Non-Application of the Chapter:
Nothing in this Chapter shall apply to any juvenile or child as defined in section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
Section 300 BNSS makes this procedure inapplicable to Juveniles or Children.
Case Laws:
In Sakha-ram Bandekar (2007) case, Sakha-ram Bandekar a grade I employee, was accused of siphoning off Rs 1.48 crore from the RBI by issuing vouchers against fictitious names from 1993 to 1997 and transferring the money to his personal account. He was arrested by the CBI on October 24, 1997, and released on bail in November the same year. The case came up before special CBI judge A R Joshi and charges were framed on March 2 this year. The accused then moved an application before the court on August 18 stating that he was 58 years old and would seek plea bargaining. The court directed the prosecution to file its reply. The judgment delivered in a case of plea bargaining is final and no appeals are allowed against such verdicts. CBI opposed the procedure. Although Bandekar’s plea was not accepted, the case is an indicator to an emerging legal trend. This case is considered as the first case of plea-bargaining.
In India Music Industry (IMI) case, during a raid carried out at the Siddartha Optical Disc (CD plant), 22,000 CDs including large numbers of mp3 CDs, porno CDs (10,600), 2 CD recording machines, printers, computers, etc. were seized, of which mp3 CDs / master stampers belonged to music companies which were members of IMI. Cases U/Ss 63, 65, 68A CR Act and 292 IPC were registered against Surendra Wadhwa, owner and managing director of Siddartha Optical Disc as well as against the company, following which IMI claimed Rs 100 per CD seized as compensation. But the accused moved another application admitting his guilt and settling for negotiation. So IMI agreed to settle the case at Rs 60 per CD seized. When the applications were presented at the specialised intellectual property court in Delhi for hearing, the matter was negotiated with the company’s owner and it was settled at Rs 12 lakhs (Two lakh on behalf of the company – Siddartha Optical and 10 lakhs on the owner’s behalf). Besides, the court ordered the company to pay Rs 2 lakhs to the state for violating the copyright act. This is India’s biggest plea-bargaining case as no other victim has ever been paid Rs 12 lakhs.
Conclusion:
The concept of Plea Bargaining has now become a part of criminal jurisprudence. It benefits both the State and the accused under the scheme of Plea Bargaining. If an eligible accused admits his guilt voluntarily, the court may release him on probation or award lesser punishment than prescribed. This way the accused saves time and money both. Plea bargaining may be effective mechanism for removing the back log in courts. It may be a method of reducing cost and allows the prosecutor to allocate resources more effectively but it may not reduce the amount of risk to which the criminals are made to face.
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