By Ruzela Da Cruz
One of the biggest problems that the Indian judicial system faces is the pendency of cases. The Indian judiciary is overburdened with cases. The Covid19 pandemic and the disruptions that ensued by it further added to this problem of pendency of cases. The number of pending cases in India has crossed over 4.5 crores across all the courts.1 In order to address this problem, the legislature introduced the revolutionary tool of plea bargaining in India. The Criminal Laws (Amendment) Act 2005 introduced plea bargaining in the Indian criminal justice system to clear the backlog of cases. Plea bargaining refers to a process of pre-trial negotiations between the parties to try and reach a mutually satisfactory disposition of the case subject to approval by the court.2
This research paper aims to trace the journey of the concept of plea bargaining in India. It discusses the historical development of plea bargaining in India as well as its current status. Plea bargaining is an important concept in the Indian Criminal Justice system and this research paper aims to highlight the same. Over the years the Indian judiciary has changed its approach towards plea bargaining, the same has been discussed in this research paper along with certain suggestions which could be incorporated to make this concept more effective.
Concept of Plea Bargaining
Plea bargaining is a pre-trial process wherein the accused and the prosecution reach a negotiation mutually. By plea bargaining, the accused agrees to confess to having committed the offense in return for some benefit such as lesser punishment, a lesser charge, etc., and instead of undergoing the rigid, severe, and complex trial procedures. Plea bargaining can also aid in ensuring that the accused is punished in a case in which it may be difficult to establish and prove the charges leveled against the accused.3 Thus, plea bargaining is an important concept that can revolutionize the Indian criminal justice system.
Kinds of Plea Bargaining
In India, there are 3 kinds of plea bargaining that are practiced which are as follows.4
In charge bargaining, the accused agrees to accept his guilt for having committed certain offenses which are less serious in nature than the other offenses committed by him. In return, the prosecution will agree to drop the other charges against the accused. However, it depends on the will of the prosecution to agree or disagree with the same.
In sentence bargaining, the accused accepts to have committed an offense in return for a lesser sentence as compared to what the sentence could have been if the case was tried as per the regular legal procedures in court.
In fact bargaining, both the parties i.e. the accused and the victim, mutually agree to present only a certain set of facts before the Court. They mutually agree to not disclose any other facts before the court than what they had decided to. However, this can be misused as the parties may conceal certain important facts from the court. This can be a serious impediment in the administration of justice by the court. Hence, the courts generally do not allow fact bargaining.
Approach of Judiciary Towards Plea Bargaining prior to Criminal Law (Amendment) Act 2005
Prior to the insertion of Chapter XXI-A in the Code of Criminal Procedure 2005 by the Criminal Law (Amendment) Act 2005, did not recognize plea bargaining as a legal practice. It was held to be unconstitutional in a number of judicial pronouncements. Plea bargaining was considered not acceptable in the Indian legal jurisprudence as in the Indian legal system, a crime is considered to be a wrong against the State and not an individual. Thus if the state and individual bargained on a crime, it was thought of as something that would impact the entire criminal justice system and would also not deter the public from committing crimes.
In the case of Madanlal Ramachander Daga v State of Maharashtra,5 the Supreme Court was of the view that plea bargaining was wrong in the eyes of law and so the court should never enter into a bargain with the accused. The Court should only conduct a trial of an accused on the basis of the merit of the case and after taking into consideration the evidence produced.
Further, in the case of Kosambhai v State of Gujarat,6 the Supreme Court held that the practice of plea bargaining is against public policy.
The Supreme Court, in the case of Uttar Pradesh v Chandrika,7 held plea bargaining to be unconstitutional and reiterated that disposing of cases against criminals was not valid in the eyes of law.
Again in the case of Kacchia Patel Shantilal Koderlal v State of Gujarat,8 the Supreme Court said that plea bargaining was a highly reprehensible practice that could never be allowed in the Indian legal system as it could increase corruption and also encourage collusions in the judicial system.
In the case of, Kasambhai Abdul Rahmanbhai Sheikh v State of Gujarat,9the Supreme Court said that plea bargaining was violative of the Right to life and so was unconstitutional. The court observed that if plea bargaining was allowed in India, then even innocent people could get punished as they may feel that pleading guilty in a plea bargaining process would be better than undergoing trial for years.
Through these various judgments, it can be concluded that the Indian judiciary was averse to the idea of including plea bargaining in the Indian criminal justice system.
Historical Background of Plea Bargaining in India
The concept of plea bargaining did not originate in India. It was pioneered by mainly the United States of America. The adoption of the concept of plea bargaining in India was inspired by its functioning in the USA. The Law Commission Reports immensely contributed to the incorporation of plea bargaining in the Indian criminal justice system. The increase in the number of pending cases, delayed the delivery of justice as the process of administration of justice slowed down. Thus in order to reduce the backlog of criminal cases, the Law Commission, through its various reports, recommended the incorporation and use of plea bargaining.
The 142nd Law Commission Report
The 142nd report of the Law Commission of India titled “ Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining”, published in 1991, discussed the concept of plea bargaining.10 The report advocated the use of plea bargaining in order to overcome the problem of the increasing number of pending criminal cases before the court which often resulted in the accused spending a longer duration in jail than what is prescribed for the offense, even before the commencement of trial. This report also placed reliance on the successful functioning of plea bargaining in the USA and further discussed some cases decided by the United States Supreme Court on plea bargaining, particularly Brady v United States11 and Santobello v New York12 in which the court upheld the constitutional validity of plea bargaining. In this report, it was envisaged that plea bargaining in India, should initially be made applicable to only those offenses which can be punished with imprisonment for less than seven years.
Further, the report also discussed various objections to the introduction of plea bargaining in India, such as the socio-economic conditions of India do not justify the introduction of plea bargaining, the possibility of an increased crime rate, and of criminals using plea bargaining as a tool to escape punishment, pressure being exercised by prosecution agencies can result in innocents being convicted too, etc.13 All these objections and limitations were taken into consideration by the Law Commission and it proposed a system of plea bargaining which would be suitable to the socio-economic conditions of India. The Law Commission proposed a system of plea bargaining wherein, there would be no contact between the accused and the public prosecutor. This would minimize the chances of coercion and corruption in the exercise of plea bargaining, Further, the report also suggested that the accused would have the liberty to make an application to the court for initiating the process of plea bargaining and the judicial officer would be empowered to decide whether to accept the same. Hence plea bargaining in India was envisioned to be a bargain between the accused and the court rather than with the public prosecutor.
The 154th Law Commission Report
The 14th Law Commission of India presented the 154th report14 in which it reiterated the need of incorporating a plea bargaining system. The report again highlighted the huge backlog of criminal cases caused due to delayed disposal of the cases. The report said that the under-trial prisoners are kept in judicial custody for years as very often the trials do not begin soon. Also, most cases end up with the accused being acquitted. Thus a lot of mental agonies are caused by the undertrials who languish in jails. Thus the Law Commission felt that certain remedial legislative measures needed to be introduced in the Indian criminal justice system. This would be instrumental in reducing the delay in disposing of criminal cases in India and would also help in alleviating the suffering of the undertrial prisoners. In this report, the Law Commission also recommended that a separate Chapter XXIA dealing with plea bargaining should be incorporated in the Code of Criminal Procedure,1973.
The 177th Law Commission Report
The 16th Law Commission of India, in 2001, presented the 177th report. Chapter 9 of this report deals with plea bargaining15. This report endorsed the recommendations made in the 142nd and 154th reports of the Law Commission of India. The 177th report also said that plea bargaining in India should be made applicable to those offenses which are punishable with imprisonment of fewer than 7 years and/or fine, including the compoundable offenses mentioned under Section 320 of the Code of Criminal Procedure 1973. The Law Commission further suggested that plea bargaining should not be allowed in cases involving habitual offenders and to those who are accused of committing socio-economic offenses of a grave nature and also to those who are accused of committing offenses against women and children under the age of 14.
The Malimath Committee Report
The Government of India constituted a committee on “Reforms of the Criminal Justice System” in order to consider and suggest various measures to improve and revamp the Indian criminal justice system. This committee is also known as the Malimath Committee as it was chaired by Justice V.S. Malimath. The committee submitted its report in 200316 in which it supported the idea of incorporating the concept of plea bargaining in India. The Committee relied on the successful functioning of plea bargaining in the USA which proved that plea bargaining is indeed an efficient and viable scheme, which ought to be adopted in India too. Plea bargaining serves many objectives such as to secure a conviction, to reduce the backlog in criminal cases, and also to ensure that a trial is not to time cumbersome. The Committee further suggested that community service could be prescribed as an alternative to the default sentence and that fine amounts too needed to be revised.
Criminal Law Amendment Act 2005
The outcome of the recommendations and suggestions made in all the above-mentioned reports was that the Government of India, incorporated the concept of plea bargaining by inserting chapter XXI-A in the Code of Criminal Procedure 1973 by the Criminal Law (Amendment Act) 2005.17 It came into force on 5th July 2006
Objectives for introducing Plea Bargaining in India
The main objective/reasons for introducing the concept of plea bargaining in India are as follows:
- To ensure that there is a mechanism for speedy disposal of criminal cases
- To reduce the backlog of pending cases.
- To decrease the number of under trial prisoners who languish in jails for years, due to uncertainty of commencement of trials
- To reduce the burden on jails and prisons caused by extremely time consuming trials
- To secure conviction as otherwise in most cases, the accused is acquitted.
- It also makes a provision for the accused to compensate the victim.
- Plea Bargaining under the Code of Criminal Procedure 1973
Chapter XXI-A of the Code of Criminal Procedure as inserted by the Criminal Law (Amendment) Act 2005 contains Sections 265-A to 265-L. These provisions entail the procedural outline of plea bargaining.
Section 265-A: It discusses the extent of applicability of plea bargaining in India. Section 265-A provides that Chapter XXI-A applies to an accused against whom the officer in charge of a police station has forwarded a report under Section 173 of CrPC or against whom a Magistrate has taken cognizance of on a complaint after examination of the complaint and witnesses under Section 200 of CrPC for an offense other than an offense punishable by death or life imprisonment or imprisonment for a term exceeding 7 years. It also provides that plea bargaining will not be applicable in case of offenses committed against the socio-economic conditions of India and in case of offenses committed against women and children below 14 years of age.
Section 265-B: According to Section 265-B, an accused may file an application for plea bargaining in the court where the trial for the offense is pending. The application should contain a brief description of the case, the offense to which the case relates and the application needs to be accompanied by an affidavit which is sworn by the accused that he is filing the application voluntarily and that he has not been previously convicted for the same offense. On receipt of such an application, the court must issue a notice to the public prosecutor or complainant and to the accused of appearance on a specific date. When the parties appear before the court on the specified date, the court will examine the accused person in camera in order to ascertain whether he/she has filed the application voluntarily.
If the Court is satisfied that the accused has filed the application voluntarily, then it shall give the public prosecutor or complainant and the accused time to try and reach a mutually satisfactory disposition of the case. If the court finds that the application was not filed voluntarily or that the accused has been charged with the same offense for which he had been previously convicted, then the Court shall proceed in accordance with the provisions of CrPC.
Section 265-C: It deals with the guidelines which the court needs to follow for the mutually satisfactory disposition of the case. If a case is instituted on a police report, notices shall be issued by the Court to the Public Prosecutor, the police officer by whom the case was investigated, the accused, and the victim of the case to work out a satisfactory disposition of the case. If a case has been instituted otherwise than on police report, notices shall be issued by the Court to the accused and the victim of the case. The Court must ensure that the process is followed to reach a mutually satisfactory disposition is voluntary.
Section 265-D: If a mutually satisfactory disposition has been successfully worked out, then a report of the same needs to be prepared by the Court and it has to be signed by all the parties who participated in the meeting as well as the presiding officer of the Court. If a disposition has not been worked out, then the Court needs to record the same and proceed in accordance with the Code of Criminal Procedure 1973.
Section 265-E: On reaching a satisfactory disposition, the Court must dispose of the case by awarding compensation to the victim and release the accused on probation of good conduct or after admonition provided for by Section 360 of the Code or may release him as per the Probation of Offenders Act 1958. If the alternative, the Court may hers the parties on the quantum of punishment and may sentence the accused person with half of such punishment.
Section 265-F: A judgment must be delivered by the Court as to Section 265-E in an open court and the same needs to be signed by the Presiding Officer of the court.
Section 265-G: If a judgment is pronounced by the Court, under Section 265-F, then it shall be final and it cannot be appealed against in any court. However, a special leave petition under Article 136 and a writ petition under Articles 226 and 227 may be filed against it.
Section 265-H: While dealing with a case of plea bargaining, a Court shall have the same powers as vested in it to deal with bail, the trial of offenses, and other related matters for disposal of a case, by the Code of Criminal Procedure, 1973.
Section 265-I: The period for which an accused was detained must be set off against the sentence of imprisonment which may have been imposed in furtherance of plea bargaining under Chapter XXI-A.
Section 265-J: This is called a saving close which provides that this chapter shall have effect regardless of any other provision in the Code which may be inconsistent with it.
Section 265-K: According to Section 265-K, any statements or facts which the accused may state while making an application for plea bargaining cannot be used for any other purposes, other than what is provided for in this chapter.
Section 265-L: This chapter XXI-A dealing with plea bargaining, shall not apply to any juvenile or child as defined under clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
- Approach of Judiciary towards plea bargaining after the Criminal Law (Amendment) Act 2005
After the insertion of plea bargaining in the Code of Criminal Procedure, the Indian judiciary is slowly accepting the usage of this concept. Courts have allowed for plea bargaining in some cases which is a positive step.
In the case of State of Gujarat v. Natwar Harchanji Thakor,18 the Gujarat High Court observed that the very object of the law of plea bargaining is to provide cheap, easy, and expeditious justice.
In the case of Vijay Moses Das v. CBI,19 the accused had supplied inferior materials to ONGC which had resulted in ONGC suffering a lot of losses. The victim (ONGC) and the prosecutor (CBI) had no objection to the plea bargaining application filed by the accused. But the trial court rejected the application on grounds that the accused had not filed the required affidavit and that compensation too was not fixed. The Uttarakhand High Court directed the trial court to accept the plea bargaining application filed by the accused.
In Joseph P.J. v State of Kerala,20 the court held that the procedure laid down in Chapter XXI-A consisting of Sections 265-A to 265-L are mandatory in nature and while dealing with an application for plea bargaining, the court must apply the prescribed procedure.
- Advantages and Disadvantages of Plea Bargaining
- Speedy disposal of cases
Plea bargaining provides an effective mechanism to ensure that there is speedy disposal of criminal cases. Criminal trials are time cumbersome and can go on for years. Hence, plea bargaining is of utmost importance to ensure that cases are disposed of fast. This is beneficial to both the victim and the accused.
In a criminal trial, there is no certainty that the accused will get convicted. A large number of criminal cases end up with the accused getting acquitted. Very rarely do the accused get convicted. However, with plea bargaining, the prosecution can with certainty secure the conviction of the accused.
- Reduces the burden on jails
Often criminal trials take long to commence and when they do commence, they go on for years. Hence a lot of undertrial prisoners languishing in jails for many years. This leads to overcrowding in jails and burdens the infrastructure as well as manpower in jails. Thus plea bargaining helps in reducing the number of undertrials and thus reduces the burden on jails.
- Helps in avoiding unnecessary publicity
Criminal trials in court often attract a lot of attention and are publicized. This can have many unwanted repercussions which can affect both parties. Hence, plea bargaining is the best method for avoiding such publicity as the matter does not get prolonged.
- The accused can avoid the stigma associated with a crime,
Many grave offenses have a lot of stigmas attached to them. If proven guilty of having committed such an offence, the accused will have to face the stigma throughout his life. This can be avoided by plea bargaining as the accused can agree to accept the guilt of a less stigmatizing offence.
- Lesser punishment for the accused
In plea bargaining, the accused gets an opportunity to agree for a lesser sentence which he otherwise would not have got in a normal criminal trial. This can be very advantageous to the accused.
- The victim cannot initiate plea bargaining
The process of plea bargaining can commence only when an accused files an application in this regard before the Court. The victim cannot do the same and seek compensation from the accused before commencement of the trial.
- Can lead to increase in crime rate
In plea bargaining, the accused gets an opportunity to reduce or escape his punishment or settle for a lesser charge. This can have a negative impact as people may feel that they will not have to undergo rigorous punishment if they commit certain crimes. This can lead to an increase in the crime rate.
- Criminal record of accused is created
Even though the accused may opt for plea bargaining and both the parties may reach a mutually satisfactory disposition, the accused will still be convicted as having committed a crime. The accused cannot escape the label of being a convict even though he may agree to plea bargaining. If the accused is indeed innocent, then opting for plea bargaining will not be favorable to him.
- Corrupt practices may start flourishing
Either party may exert a lot of pressure on the opposite party or may even resort to corrupt practices, forcing them to agree to a particular method of settling the matter.
The inclusion of the concept of plea bargaining in the Indian legal system is a step taken in the right direction. It aims to reduce the huge number of pending cases in the Indian courts. The criminal trial procedures are extremely time-consuming and tedious. Often undertrial prisoners languish in jails for years. The victims too, on the other hand, do not get justice speedily. Justice delayed is justice denied. Pendency of cases for long-duration causes injustice to not just the victims and their families, but also to the accused and most importantly the society at large as well. Plea bargaining is thus a ray of hope which can enable swift speedy disposal of cases in the Indian criminal justice system.
It’s been over 15 years that the concept of plea bargaining has been introduced in India. However, it has not garnered the importance that it deserves to get. Plea bargaining is not being utilized to the extent to which it should be. Probably lack of awareness about the concept of plea bargaining is one factor responsible for the same. In order to make plea bargaining more effective, it is imperative that a few changes need to be introduced. Some of the changes which can be incorporated are that, in cases where plea bargaining can be applied, the accused must be made aware of this concept at the time when they have summoned themselves. Judges should encourage parties to opt for judicial bargaining over trials. Also, there should be better clarity provided with respect to the socio-economic offenses to which plea bargaining can be applied to. Furthermore, a time period needs to be specified within with the entire process of plea bargaining must be completed. This will ensure that administration of justice is not delayed.
Plea bargaining is a viable and effective solution to the problems faced by the overburdened judiciary. By increasing the usage of plea bargaining for petty and less severe offenses, the courts can utilize more of their time in deciding and administering justice in cases involving grave and serious offenses. Plea bargaining can indeed revolutionize the Indian criminal justice system.
1 Pradip Thakur, Pending cases in India cross 4.4 crores, up 19% since last year, https://timesofindia.indiatimes.com
2 Ms. Amrit Pal Kaur and Ms. Aarti Goyal, Justice In Plea Bargaining–Is It A Coercion To Compromise, Bharati Law Revie, April – June 2016, p 213.
3 Justice Pasayat A. Plea Bargaining, 5 Nyaya Deep, National Legal Services Authority, 2007 VIII.
4 Mrs. Patil Deepa Praveen, Analysis of Plea Bargaining in India, Cr.L.J. Jan. 2010 at p18.
5 (1968) 3 SCR 34
6 AIR 1980 SC 854
7 AIR 2000 SC 164
8 1980 CrLj 553 (SC)
9 (1980) 3 SCC 120
10 Law Commission of India, 142nd report on Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any Bargaining (1991).
11 397 U.S. 742 (1970)
12 404 U.S. 257 (1971)
13 Supra note 4, Chapter VIII.
14 Law Commission of India, 154th Report on the Code of Criminal Procedure 1973,(1996).
15 Law Commission of India, 177th Report on Law Relating to Arrest, (2001).
16 Justice V S Malimath, Report on Reforms of the Criminal Justice System, (2003).
17 The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006)
18 2005 Cr.LJ 2957
19 Crim. Misc. Appln. 1037/2006
20 2015 5 KHC 586