PLEA BARGAINING

Spread the love

Post Views: 456

This article is written by Amrita Parida of 5^th Semester of University Law College, Utkal University, an intern under Legal Vidhiya

ABSTRACT

Plea bargaining constitute one of the most widely known and accepted form of disposal of cases of criminal nature worldwide, especially in the USA. Considering, the agony and plight caused by the incomprehensible number of prolonged cases left unsettled and in abeyance, the device of Plea Bargaining was introduced and well-integrated in the criminal jurisprudence of India by the 2005 Amendment Act with a view of providing relief against the same. However, Plea bargaining as a concept is deemed of being a foreign proponent to the Indian Jurisprudence as can be well deduced from the dearth of case-laws with regards to it. Even though the prevailing Indian societal norms, conditions and factors of control might have resulted in rarity of cases of plea bargaining but it still holds much primacy in light of pre-trial bargaining. The paper seeks to bring forth a brief understanding of legal provisions under criminal procedure law of India with respect to Plea Bargaining.

INTRODUCTION

There is no universal consensus in respect of the definition of Plea Bargaining. Hence, Plea Bargaining maybe referred as a device, mechanisms or a systematized process employed in the dispersal of criminal justice. It is the stage of negotiation that takes place before the certainty of trial arises. It begins within the purview of the justice system upon the accused’s accord of entering a plea. Usually, plea bargaining is initiated when the defence is of the opinion that the charges levelled are of such extreme that it would be futile to go through the process of trial as there is barely any scope of proving innocence.

Plea bargaining can be said to be devised in the U.S.A which emerged inconsequence to the expanding complexities in the criminal trial system of America. In response to the sluggish, cumbersome, and time-consuming trial system the mechanisms of plea bargaining became instrumental to evade the elaborate and exhaustive process concerning criminal trial. Though, it welcomingly achieved statutory status in many modern day democracies across the world but in case of India it achieved statutory status after decade of debate and deliberation. In India, the modalities concerning plea bargaining was operational even before plea bargaining was given any statutory recognition of its own but there has been hesitance relating to general consensus in favour of the legality or constitutionality of it. But, following a trail of noteworthy case laws the standing of judiciary of India in relation to Plea bargaining of it being a possible thorn in fair administration of criminal justice for tending to encourage corruption or lowering the merit of justice delivery system or it being vaguely unjust and violative of the article 21, has finally taken the much needed back seat. The said act of the accused must be voluntary in nature. Though plea bargaining has been introduced in the provisions of Cr.P.C, somehow it has not worked because of the social stigma of conviction preventing the accused from accepting the bail and accepting a plea-bargaining position[1]

Types of Plea Bargaining

Charge Bargaining: This being the most common type of plea bargain, refers to the pleading by the accused of being guilty of charges that are less serious in nature than the charges originally imposed. Furthermore, it has been classified as follow-

Multiple Charges Bargaining: In such a bargain, some charges are given up by the Prosecution in exchange of the accused’s pleading of certain charges

Unique Charge Bargaining: In such a bargain, a charge of more grievous nature is given up by the Prosecution in exchange of the accused’s pleading of a charge of lesser grievous nature.

Fact Bargaining: Here, the Prosecution comes in terms with the accused with regards to selective representation of evidence and facts in exchange of plea of guilty of accused. The omitted set of facts and evidence, if otherwise presented, might have resulted in increased sentencing.

Count Bargaining: It involves the accused pleading guilty to only some of the charges brought against it by the prosecution instead of all. The rationale behind it is assurance of lesser sentence.

Sentence Bargaining: This system of bargaining is neither considered common nor is viewed to be favourable. It involves pleading of guilty to the original charges by the accused in view of a lesser sentence.

Other kind of Plea Bargaining: Additionally, to the above mentioned types of plea bargaining, the International Jurisprudence have given due recognition to the following types as well-

Express plea bargaining- It involves direct and face-to-face negotiation of defence and the defence counsel with the Prosecutor or the trial judge regarding the benefit which might follow after a guilty plea is entered.

Implied plea bargaining- There is no direct or face-to-face negotiation. Implicit bargaining occurs when the trial judges, in particular, develop a habit of treating guilty pleaders more leniently than those who exercise their right to a trial. As a result, the guilty parties begin to anticipate that entering a guilty plea would be rewarded.

The provisions espousing the device of plea bargaining in India as provided under the Criminal Procedure system are Sections 265A to 265-L of Chapter XXL-A of the 1973 Criminal Code of India. Though Chapter XXL-A concerns with Plea Bargaining but nowhere does it expressly define the term of ‘Plea Bargaining’.

Application as well as Applicability of Plea Bargaining

As can be well inferred from salient characteristics of provisions provided under Section 265-A, the applicability of the device of Plea bargaining can extend in the cases where offences:

are punishable with jail time of not less than 7 years.
does not come within the preview of crimes of socio-economic nature
has not been committed either against a child of below 14 Yrs age or a woman.

It is as well to be noted that the provision concerning plea bargaining under Criminal law of India as provided under Code of 1973 do not extend to any child or Juvenile.

Application of this device is required to be filed in the court where the offence concerning the accused is either being tried or is pending. Further, such application should be accompanied with the free will and consent of the concerned accused as the same is subject to an in-camera examination by the concerned court. Contrary to the court’s satisfaction, if the filed application is concluded to be involuntary or if it comes to notice of the court that the accused has been convicted previously for the same offence then the court would proceed from the stage such application has been filed under S.265B(1).

Furthermore, the plea bargaining as a device would only come to effect after the due consent of not just accused but as well of the victim, prosecutor, and the judge.

Plea Bargaining vis-à-vis Compounding of the offences

The concepts of plea bargaining and compounding of offences are effective device in view of alternative relief measure. However, both the terms are not synonymous and are marked by stark underlying contrast which is well summarized as follows-

In the case plea bargaining the term of punishment is not completely dispensed as is it subject to the plea of accused for the reduced punishment. However, in the case Compounding of offence, the accused is altogether exempted from being sentenced.
The accused is still subject to the connation of ‘convict’ in case of plea bargaining, but in the case of later, the accused is not subject to any such term as if as the accused had never committed the compounded offence in the first place.
Plea bargaining depends on the sole discretion of the concerned court but compounding of any offence is prerogative of the involved parties and the court is not vested with any such discretion.

Examination and Judgement:

A notice is conveyed to the prosecutor or complainant following the admission of the application of plea bargaining after the satisfaction of the court.

The complainant then plays a prominent role in reaching the mutually agreed settlement with regards to the issue of punishment of the accused.

As, plea bargaining is brought by the accused for primary purpose of bargaining of sentencing, the agency of prosecution has minimal prominence and all the process of plea bargaining is to be majorly looked into mutually by the disposition of the complainant and the accused.

In the process of negotiation between both the parties, the required aid of advocate may well be availed. Once, a mutually agreed settlement is reached out, the court required to prepare a report on its own accord which is to be signed by the participating members to the negotiation.

The court may award victim with compensation based on the settlement.

Once the hearing regarding term of punishment of accused comes to an end, the court may decide to release the accused on probation.

Or, he may be sentenced to either half or 1/4^th of the original term of punishment depending upon the fact that whether or not a minimum sentence term is prescribed for the committed offence.

The accused can also avail the benefit of S. 428 in plea-bargained settlements.

Irrespective of the nature of the verdict, it is to be delivered in open court and no doubt with regards to the judgement is to be entertained. The verdict is to stand final but an appeal with regards to it may be made to the H.C or the S.C

Views of Judiciary:

Despite the plea bargaining gaining the due recognition of judiciary and being a successful instrument of fast case disposition, the reluctance of the legal community with regards to its acceptance is still quite evident. Allowance of plea bargaining has been opined to be insufficient or even unjust of an instrument for the means of achieving the ends of justice in criminal law. In certain offences, plea bargaining is has been time and again regarded as a practice eroding the nature of the criminal justice.

The Supreme Court has been of opinion that the mere acceptance by the accused of his guilt should not serve as a ground pertaining to reduction of sentence in the case of State of U.P v Chandrika [2]

Plea Bargaining well has been held to be a possible pollutant of purity of the function of justice dispersion as it could induce an accused who is innocent to plead guilty and go through comparatively lowered punishment in respect of an offence that he might have never committed. This has been concluded in the case of Kasambhai Abdulrehmanbhai Seikh v State of Gujarat[3]

Further, it has been observed in the case of State of Haryana v Janak Singh and ors.[4] the nature of an offence like rape being one of the most heinous that can be committed against a woman is not allowed to brought into the purview of plea bargaining as it could possible erode the woman’s confidence, dwarf the personality, and impugn her right to life and liberty.

CONCLUSION

The reduced effectiveness of the justice dispersal system is marked by the growing complexity of legal nuances, the inordinate and unwarranted delay in the disposal of long-standing arrears, the lack of a required healthy rate of convection, and the dwindling trust of the general public on the judiciary. In respect to address this, experimental attempt at plea bargaining holds much relevance. In the case of India, the effective use of plea bargaining could improve the prospectus of speedy delivery of acceptable term of justice to the victim without having to go through the hassle of elaborate period of trial. Further, it could emerge as a more economical method of disposition and could permit the efficient allocation of resources by the prosecution. However, there are much scope for effective implementation of plea bargaining which could possibly be achieved by vesting of a wide nature of discretion upon the judges and ensuring strengthened integrity of justice mechanisms of the country.

REFERENCES: