‘Plea Bargaining’

 "Plea Bargaining" can be defined as pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution. The Wikipedia Encyclopedia defines it as to make an agreement in which the defendants pleads guilty to a lesser charge and the prosecutors in return drops more serious charges.

‘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. This has certainly changed the face of the Indian Criminal Justice System. Some of the salient features of ‘Plea Bargaining’ are that it is applicable in respect of those offences for which punishment is up to a period of 7 years. Moreover it does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed 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. Now the question is will it work in Indian Judiciary? Do we need this? Are we equipped to deal with this new facet? This article makes an attempt to analyze the concept of ‘Plea Bargaining’, its necessity, its drawbacks and tries to find out the feasibility of this new idea.

It would be wrong to assume that the concept of ‘Plea Bargaining’ found favour of courts only in the recent past. In fact it is used in the American Judiciary in the 19th century itself. The Bill of Rights makes no mention of the practice when establishing the fair trial principle in the sixth amendment but the constitutionality of the plea-bargaining had constantly been upheld there. In the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King, Jr. to avoid execution sentence. He finally got an imprisonment of 99 years. More than 90 percent of the criminal cases in America are never tried. The majorities of the individuals who are accused of a crime give up their constitutional rights and plead guilty. Every minute, a criminal case is disposed off in an American Court by way of a guilty plea or nolo contendere plea.

In a landmark judgment Bordenkircher V. Hayes, the US Supreme Court held that the constitutional rationale for plea bargaining is that no element of punishment or retaliation so long as the accused is free to accept or reject the prosecutions offer. The Apex Courthowever upheld the life imprisonment of the accused because he rejected the ‘Plea Guilty’ offer of 5 years imprisonment. The Supreme Court in the same case, however in a different context observed that, it is always for the interest of the party under duress to choose the lesser of the two evils. The courts have employed similar reasoning in tort disputes between private parties also. In countries such as England and Wales, Victoria,Australia, ‘Plea Bargaining’ is allowed only to the extent that the prosecutors and defense can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder. The European countries are also slowly legitimizing the concept of plea bargaining, though the Scandinavian countries largely maintain prohibition against the practice.

In State of Uttar Pradesh V. Chandrika 2000 Cr.L.J. 384(386), The Apex Court held that It is settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. 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 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 265-A TO 265-L have added in the Code of Criminal Procedure so as to provide for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High Court observed in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 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 shall add a new dimension in the realm of judicial reforms.