Law and You >Procedural Laws > CrPC > Plea Bargaining (Ss. 265A to 265L)
Delay and heavy workloads in the Courts have resulted in the informal system of pre-trial bargaining and settlement in some western countries, part5icularly 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.
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.
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. Keeping in view the huge arrears and inordinate delays in disposal of criminal cases and on the recommendations of the Malimath Committee, a new chapter XXI-A of Plea Bargaining has been added to the Code of Criminal Procedure.
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.”
The draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament and finally it became an enforceable from July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country. Thus, Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code, 1973 deals with the concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for cases:
- Where the maximum punishment is imprisonment for 7 years;
- Where the offenses don’t affect the socio-economic condition of the country;
- When the offenses are not committed against a woman or a child below 14 are excluded
The provisions of Plea Bargaining are not applicable in the following cases:
- 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. 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 265A, 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.
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 in Criminal Procedure Code, 1973:
Who is Eligible for Plea-Bargaining?
Section 265A CrPC:
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 173 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 200, issued the process under section 204, 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 below the age of fourteen years.
(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 265A allows only an accused charged with an offence punishable with less than seven years to apply for plea bargaining. Further if the offence charged is against women and children or classified as a socio-economic offence the application is not allowed.
Application Stage of Plea-Bargaining:
Section 265B CrPC:
Application for Plea Bargaining:
(1) A person accused of an offence may file an application for plea bargaining 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 a case 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, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, 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 to the Public Prosecutor or the complainant of the case, 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 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 Code from the stage such application has been filed under sub-section (1).
According to Section 265B CrPC, 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.
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
Guidelines for Mutually Satisfactory Disposition:
Section 265C CrPC:
Guidelines for Mutually Satisfactory Disposition:
In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, 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, participate in such meeting with his pleader, 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, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.
S. 265(C) of the Code of Criminal Procedure provides following procedures for the mutually satisfactory disposition under section 265(B)(4)(a):-
(i) 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.
(ii) 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.
Section 265 C gives guidelines for working out the mutually satisfactory disposition. Firstly, all the stakeholders in the case namely the prosecution, accused, defence lawyer, accused and the victim are to be given notice for participating in the meeting for working out the mutually satisfactory disposition. This is significant as the victim is given the right to participate and be part of a process meant to dispose of the case. Secondly the judicial officer is made responsible to ensure voluntariness throughout the meeting.
Section 265D CrPC:
Report of the Mutually Satisfactory Disposition to be Submitted Before the Court:
Where in a meeting under section 265C, 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 Code from the stage the application under sub-section (1) of section 265B has been filed in such case.
Section 265D CrPC, 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.
Section 265E CrPC:
Disposal of the Case:
Where a satisfactory disposition of the case has been worked out under section 265D, 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 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 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 360 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, as the case may be;
(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;
(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, as the case may be, for such offence.
265 E 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 U/s. 360 CrPC 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.
Section 265F CrPC:
Judgment of the Court:
The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.
Section 265G CrPC:
Finality of the Judgment:
The judgment delivered by the Court under section 265G 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 265G CrPC, 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.
Section 265H:
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 Code.
265I CrPC:
Period of detention undergone by the accused to be set off against the sentence of imprisonment:
The provisions of section 428 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 Code.
265 I CrPC, allows for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this procedure.
265J CrPC:
Savings:
The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code 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 (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.
265K CrPC:
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 265K CrPC assures the accused that the statements or facts stated by the accused in an application for Plea Bargaining filed under 265 B shall not be used for any other purpose than for this procedure.
265L CrPC:
Non-Application of the Chapter:
Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).
Section 265L CrPC 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.