Plea Bargaining - A Panacea to stem the rot in the Criminal Justice System

INTRODUCTION

Plea Bargaining in India is a relatively new concept which came into force by virtue of Chapter XXIA of the Criminal Procedure Code as introduced by the Criminal Law (Amendment) Act, 2005. It can be defined as a contract between the Prosecution and the accused wherein the prosecution arranges to drop certain charges in return of the accused pleading guilty to the rest. Such an arrangement ensures that both the sides do not receive any unfavourable orders from the court and conviction of the accused is secured. The Law Lexicon by P Ramantha Iyer defines plea bargaining in criminal cases where the accused instead of defending his case in proper defence simply pleads guilty under a promise or assurance that he would be let off lightly.

OBJECT

The object behind incorporating such a provision can be seen in the 12th Law Commission[1], which said that there was a need for remedial measures in the present system to alleviate the conditions of under trail prisoners who wait long duration's for their trail and also to expedite the process of trial and appeals. When a sentence is imposed under Plea Bargaining there is no appeal allowed henceforth from such sentence. The reason is that enough opportunity is given to both the parties to reach a mutually satisfactory disposition before the trial. This ensures a faster trial and reduces the backlog of cases in the overburdened courts. My endeavour is to study the cause and effect of this chapter in the Indian Criminal Justice System.

MAIN TEXT

The 154th Report of the Law Commission recommended that Plea Bargaining should be incorporated in a separate chapter in the Indian Criminal Justice System[2]. This saw The Code of  Criminal Procedure (Amendment) Bill,2005 being passed by the parliament and it is effect henceforth by a notification in the official gazette.

Section 265A of the Criminal Procedure Code provides as follows 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.

265B. 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).

So we can see that the court can exercise its discretion in cases where it feels that the accused has not voluntarily agreed to proceed under this chapter. The Court meets the accused "in camera" and makes sure that he is voluntarily participating in the scheme. There is enough safeguard to ensure that the entire process doesn't make the court an auction house where the victim can be bribed by the accused to settle for a lesser charge. Applications under this chapter have to be entertained with due discretion so that there is no miscarriage of justice. This is an inbuilt safety mechanism in the legislation to guard against any threat or improper inducement which either party may face.

Plea Bargaining can be of two types . Charge bargain  and sentence bargain. Charge bargain happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only some of the charges framed against him. ‘Charge Bargain' gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may have been framed against him. As far as sentence bargain is concerned, it happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty. A sentence bargain may allow the prosecutor to obtain a conviction in the most serious charge, while assuring the defendant of an acceptable sentence.

The reason why Plea Bargaining was introduced in India was to secure maximum conviction and to reduce the number of backlogs of pending cases in the courts. The trial process of accusations and denial takes so long coupled with the lackadaisical attitude of the investigating officers that justice is a far fetched dream. This is the justification given by the Courts also while upholding the validity of Plea Bargaining. The division bench of the Gujarat High Court in State of Gujarat v/s Natwar Harichandji Thakor[3] observed  "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". Plea Bargaining is one of those reforms.

The most successful use of this system of trial can be seen in the USA. The Supreme Court of the USA observed in the case of Santobello v/s New York[4] ," Disposition of charges after plea discussions is not only an essential part of the process, but a highly desirable part for many reasons. It leads to prompt and largely final dispositions of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied released pending trial; it  protects the public from those accused persons who are prone to continue criminal conduct even while on pre-trial release; and by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned'.

In the present system of Criminal Justice System in India the victim seems to be at a disadvantage . With plea bargaining in place the victim will be in a better position as he/she can bargain over the courts decision than be merely satisfied with what the courts decide. The victim has a better chance of getting compensation from the perpetrator of the crime. If we study the economic impact of this amendment to the Code we can see the efficiency of plea bargaining in a new dimension. Plea bargaining reduces the transactions cost of the entire process of justice dispensation. It will significantly reduce the time wasted in adjournments and never ending trials.

The British Politician Mr William Gladstone [1809-1898] aptly said that "Justice delayed is justice denied ". The right to speedy trial is enshrined under Article 21 of the Indian Constitution. With the present state of the Criminal Justice system and the heavy backlog of cases it is a pipe dream. The accused in cognisable and non-bailable cases languish in dingy lockups for lengthy periods, sometimes even as long as their sentence.  This ensures that the quality of justice suffers as in most of these cases there is a loss of evidence. Plea bargaining in such cases is an ideal solution to do away with such inordinate delay.

This mechanism is also not in place for offences which have a sentence of imprisonment exceeding seven years or those which entail death or life imprisonment. It is also not available for crimes committed against women, children or socio-economic crimes. This is a potent safeguard which ensures that this scheme is not in place for hardened criminals, thereby ensuring that such offenders get the maximum possible punishment.

CONCLUSION

There has been a lot of criticism from various human rights activists stating that this section gives the power to rich offenders to buy their way out of the noose. The Asian Human Rights Commission said " It is true that there are a number of cases pending in the Courts and a number of under trials awaiting their trials to start, but what is the cause for it? The reality is that there are not enough courts in our country to try the ever-increasing number of cases. The cases are delayed due to failed investigations because of the dearth in the number of investigation officers; there are also not enough public prosecutors to try the accused. Instead of addressing to the root cause of the problem, the government has chosen a shortcut solution by way of introducing plea bargaining. Even if it is taken for granted that the new provision aims to reduce delays in the trial procedures in the Indian courts, then the introduction of plea bargaining is similar to treating the symptoms of an illness rather than the actual ailment. This so called measure to speed up justice will only speed up miscarriages of justice."[5]

The Supreme Court in State of Uttar Pradesh v/s Chandrika[6] observed," It is settled law that on the basis of plea bargaining court may not dispose of the criminal cases. The court has to decide it on merits. If accused confesses his guilt, appropriate sentence is required to be imposed... Mere acceptance or admission of the guilt must not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty sentence to be reduced'.

In the light of all these criticism one must look at the source from which we inculcated this concept in the Indian Criminal Justice System. The American Courts have successfully implemented the same keeping in mind the Federal Sentencing Guidelines and plea bargaining has safeguarded one of the worlds most influential justice system. The concept began in the USA in the 1920's and has been a tremendous success.[7] This concept has slowly but surely gained favour with several common law countries of the world. It is claimed that over 95% of all guilty pleas in the United States and 90% of all convictions in the United Kingdom are secured through plea bargaining.[8] In India plea bargaining is at a very nascent stage and its  veracity can only be tried and tested with time. It is very apt to note what the Supreme Court of the USA observed in Brady v/s Unites States[9], "This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all aspects, this mode of conviction is no full proof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we must continue to do so; whether conviction is by plea or by trial."

[1] 12th Law Commission of India, 1991, 142nd report on concessional treatment for offenders who on their own initiative plead guilty without any bargaining.

[2] 154th Law Commission Report, 1996 on Code of Criminal Procedure, 1973, vol I.

[3] State of Gujarat vs. Natwar Harchandji Thakor;  2005 CrLJ 2957.

[4] 404 US 257 (1971).

[5] INDIA: Plea bargaining and the ghost of Malimath, A statement by the Asian

Human Rights Commission, AS-163-2006, posted on 07 July 2006.

AHRC is a regional non-governmental organisation monitoring and

lobbying human rights issues in Asia.

[6] State of Uttar Pradesh vs. Chandrika, 2000 AIR(SC) 164, 1999 AIR (SCW) 4251, 2000 CrLJ 384.

[7] Rewari, Sulabh and Tanya Aggarwal, ‘Wanna Make a Deal? The Introduction of Plea

Bargaining in India', (2006) 2 SCC (Cri) J-12, available online at

http://www.ebc.co.in/lawyer/articles/2006_2cri_12.htm

[8] Garoupa, Nuno and Frank H. Stephen, 2006, ‘Law and Economics of Plea

Bargaining', available online at http://cipp.gmu.edu/archive/Law-and-Economics-Perspective-on-Terrorism-Parisi.pdf

[9] 297 US 742-25 L.Ed. 2d 747