Law and You >Procedural Laws > BNSS > Plea Bargaining under BNSS

Delay and heavy workloads in the Courts have resulted in the informal system of pre-trial bargaining and settlement. This system is commonly known as ‘plea bargaining’. In some western countries, particularly in the United States where about 90% of criminal cases are disposed of on the basis of Plea Bargaining. The concept of Plea Bargaining is now used in many countries in Europe, Australia and South-East Asian Nations. 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. The concept of plea bargaining is said to be based on the principles of Nolo Contendere, which is a Latin word, it means “I do not wish to contest.” Let us discuss plea bargaining under BNSS.

Plea bargaining is an instrument of criminal procedure which reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. Plea bargaining allows the accused to bargain with the court on the sentence that will be awarded. A key aspect is that the facts stated in an application for plea bargaining are not meant to be used for any other purposes. It is generally seen in these days that most of the criminal defendants are offered plea bargain because of the fact that it gives an opportunity to the criminal to reduce his/her punishment by honestly accepting his own guilt.

Plea-Bargaining in India:

The Supreme Court was reluctant to introduce the concept of Plea Bargaining in India for a long time as it involves the accused bargaining away his constitutionally guaranteed right to fair trial in exchange for some leniency in punishment.

In Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat, (1980) 3 SCC 120 case, the Apex Court held that the practice of Plea Bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice.

In Uttar Pradesh v. Chandrika, AIR 2000 SC 164 case, the Supreme Court held that it is settled law that on the basis of plea-bargaining Court cannot dispose of the criminal cases. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced.

The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in Indian Criminal Justice System.

In State of State Of Gujarat v. Natwar Harchandji Thakor, 2005 CriLJ 2957 case, the Gujarat Hiigh Court observed that, “The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that plea bargaining is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.”

Types of Plea Bargaining:

Plea bargains are not always easy to recognize. Negotiations that result in formal agreements are termed “explicit plea bargains.” Express bargaining occurs when an accused or his lawyer negotiates directly with a prosecutor or a trial judge concerning the benefits that may follow the entry of a plea of guilty. However, some plea bargains are called “implicit plea bargains” because they involve no guarantee of leniency. Thus, implicit bargaining, occurs without face-to face negotiations and the trial judges especially, establish a pattern of treating accused who plead guilty more leniently than those who exercise the right to trial, and the accused therefore come to expect that the entry of guilty pleas will be rewarded. Explicit bargains are the more important of the two. The kinds of plea bargaining are as follows:

Charge Bargaining:

Charge Bargaining is the most common form of plea bargaining in criminal cases. It refers to a promise by the prosecutor to reduce or dismiss some of the charges brought against the defendant in exchange for a guilty plea. This kind of plea bargaining happens for getting less severe charges. Here the defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges.

Example 1: Pleading for culpable homicide for dropping the charges of murder.

Example 2: If a person is involved in housebreaking where he also hurts somebody he is only charged with the offence of house breaking and damaging the property and not with grievous hurt which involves a bigger sentence.

This can be further classified into multiple charge and unique charge. In multiple charges some charges are dropped in return for a plea guilty to one of them. In a unique charge, a serious charge is dropped in exchange for a plea of guilty to a less serious charge.

Fact Bargaining:

In fact bargaining, a prosecutor agrees not to contest an accused ‘s version of the facts or agrees not to reveal aggravating factual circumstances to the court. There is an agreement for a selective presentation of facts in return for a plea of guilty. This is generally not used in courts because it is alleged to be against Criminal Justice System.

In specific fact bargaining there is an acceptance of sanction without pleading guilty which is known as the nolo contendere pleas. Another category of pleas in this category is known as the Alford pleas where there is acceptance of sanction but the defendant asserts innocence.

Sentence Bargaining:

“Sentence Bargaining” refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea. In cases of sentence bargaining, trial judges, ordinarily, opt to impose sentences not more severe than those recommended by prosecutors or else afford accused an opportunity to withdraw their guilty pleas. Thus, in this type of bargaining the main motive is to get a lesser sentence. This is the most popular form of Plea bargaining and is codified in the current regime applicable to India.

Example: If a person is charged with theft and it involves a maximum three year sentence it will be reduced to half or reduced substantially.

Plea Bargaining under the Bharatiya Nagarik Suraksha Sanhita, 2023:

Who can Apply for Plea Bargaining (S. 289 BNSS)

The provisions of Plea Bargaining are not applicable in the following cases:-

• The offence in which there is a death penalty or life imprisonment as punishment.
• The offence in which the maximum sentence is above 7 years.
• The offence which has been committed against a woman or a child below 14 years of age.
• Where the accused has been previously convicted for the same offence.
• Offence which affects the socio-economic condition of the country.

According to Section 289 (2) of BNSS, 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.

The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of section 289, namely,-

• Dowry Prohibition Act, 1961.
• The Commission of Sati Prevention Act, 1987.
• The Indecent Representation of Women (Prohibition) Act, 1986
• The Immoral Traffic (Prevention) Act, 1956.
• The Protection of Women from Domestic Violence Act, 2005
• The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.
• Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).
• Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955).
• Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of Page 3 boundaries of protected areas under the Wildlife (Protection) Act, 1972.
• The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
• Offences mentioned in the Protection of Civil Rights Act, 1955.
• Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
• The Army Act, 1950.
• The Air Force Act, 1950.
• The Navy Act, 1957.
• Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
• The Explosives Act, 1884.
• Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995.
• The Cinematograph Act, 1952.

Procedure of Plea Bargaining:

Application Stage:

Application for Plea Bargaining (S. 290 BNSS):

Section 290 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the application stage.

Application from Accused:

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:

a) He is presenting the application voluntarily and

b) He understands the nature of sentence and

c) He has also to declare that he is not a previous convict for the same offence.

Procedure to be followed by the Court after Receiving Application:

1. 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.
2. 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.
3. 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

Mutually Satisfactory Disposition Stage:

Guidelines for Mutually Satisfactory Disposition (S. 291 BNSS):

Section 291 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the guidelines for a mutually satisfactory disposition.

• 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

Bargaining/Negotiation:

When the court finds that:

• the accused has not been convicted earlier for the same offence and
• he is above 18 years of age and
• he understands the nature of offence and the proposed sentence,

Then the court shall provide time to the public prosecutor or the complainant/victim, as the case may be, 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 and fix the date of further hearing of the case. For purposes of negotiation and preparing a report, the aid and help of advocate may be taken.

Reporting Stage (S. 292 BNSS):

Section 292 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the report of the mutually satisfactory disposition to the Court.

When 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.

Disposal Stage (S. 293 BNSS):

Where the satisfactory disposition of the case has been worked out :

• 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 U/s. 401 BNSS. or deal with the accused under the Probation of Offenders Act, 1958
• 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.

Judgment Stage

Judgment (S. 294 BNSS):

The Court shall deliver its judgment in terms of section 293 BNSS in the open Court and the same shall be signed by the presiding officer of the Court.

Finality of the Judgment (S. 295 BNSS):

The judgment delivered by the Court under section 294 BNSS 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.

Power of the Court in Plea Bargaining (S. 296 BNSS):

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.

Period of detention undergone by the accused to be set off against the sentence of imprisonment (S. 297):

The provisions of section 468 BNSS 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.

Other Provisions:

Savings (S. 298 BNSS):

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.

Statements of Accused Not to be Used (S. 299 BNSS):

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-Application of the Chapter (S. 300 BNSS):

Section 300 BNSS makes this procedure inapplicable to Juveniles or Children.

Benefits in Respect of Accused and Victim:

Protection Available to Accused:

• Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to the conviction.
• The Government employees who are released on probation under the Probation of offenders Act are saved from the disqualification which is attached to conviction in view of Charan Singh Vs. M.C.D. (Writ Petition (Civil) No. 18725/2005) decided on 05/10/2006 .
• The major cause of concern for the accused in case of plea of guilt is that the same should not be used against him. Section 299 provides that the statements or facts stated by an accused in an application for plea bargaining file under section 290 BNSS shall not be used for any other purpose except for the purpose of this Chapter.

Benefits in Respect of Victim:

• Quick Justice for Victim
• He can easily get the compensation, which he may get on the discretion of Judge/Magistrate.
• He can save himself from long drawn Judicial Process.
• It is Less time and money consuming.
• End of Uncertainty

Benefits to Accused:

• Provision of lesser Punishment.
• If no minimum punishment is provided, then he will get one fourth of the punishment provided.
• He may be released on probation or admonition, which may not affect his career.
• He may get the gain of period already undergone in custody under section 468 BNSS.
• No appeal lies against the judgment in favour of him.
• Complete Protection available for admission of accused cannot be used for any other purposes except for Plea-bargaining.
• Less time and money consuming.
• End of Uncertainty

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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