Plea Bargaining In India

Plea Bargaining, in the most traditional and general sense, refers to a pre-trial negotiation between the defendant, who is represented by a counsel and the prosecution, during which the defendant agrees to plead guilty in exchange for certain concessions by the prosecutor. Plea Bargaining is further divided into two categories – "charge bargaining", where the negotiation is to reduce or dismiss some of the charges brought against the defendant in exchange for a guilty plea and "sentence bargaining", where the prosecutor promises to recommend a specific sentence or refrain from making any sentence recommendation defendant in exchange for a guilty plea. Despite its resounding success in the countries like the United States of America, there were divided opinions with respect to introducing Plea Bargaining in the Indian criminal justice system. In this article, we will examine all the concerns raised at various public institutions in India with respect to introducing Plea Bargaining in India so that we can proceed, very cautiously to dovetail interests of the society and met demands of the justice system. The Indian Parliament on Plea Bargaining Plea Bargaining was included in the Code of Criminal Procedure (Cr.P.C) under chapter 21A from Section 265A to Section 265L through the Criminal Law (Amendment) Act, 2005 (2 of 2006) on with effect from 5th July, 2006[1] as a prescription to the problem of overcrowded jails, overburdened courts and abnormal delays. The amendment inserting the chapter on plea bargaining in the Cr.P.C was first introduced though the Criminal Law Amendment Bill, 2003 in the Rajya Sabha on 12th December, 2005.[2] The Bill was moved by the Minister of Home Affairs, Shivraj V. Patil.[3] The Minister introduced Plea bargaining to the house by saying that when the accused brought before the Court makes a petition to the judge saying he is willing to admit his guilt, the court shall give notice and forward this application to the prosecutor and the defence lawyer and the accused, victim, prosecutor and defence lawyer can meet and discuss as to what should be done in that matter and how that case should be disposed of. Further the Court can go through the records and if the court finds that what has been agreed to between the two parties is quite acceptable, then the court can pass an order on that kind of agreement.[4] However in cases where the punishment that could be awarded is imprisonment of more than seven years, life imprisonment, death sentence or cases in which women and children are involved, or, socio-economic conditions are involved, or, juvenile is involved, plea bargaining in such cases shall not be allowed.[5] This bill was hugely accepted by the upper house since it was intended to save public money, court's time and was beneficial for both victim and the accused than going to a trial. Though there were concerns also that were raised by some members. MP Ravi Shankar Prasad, who also is the current law minister of India, raised the concern of the rampant illiteracy in India and the understanding of the implications of plea bargaining by an illiterate victim.[6] There are good chances that an accused might take advantage of an illiterate victim during plea bargaining.[7] Second concern raised was regarding having an autonomous mechanism which would ensure that the plea bargaining is conducted in a fair, just and proper manner which is beneficial to both-accused and illiterate victim.[8] Third concern raised was regarding the Police employing unethical, unfair means to coerce the accused to confess the guilt of the crime and apply for plea bargaining since the possibility of such a thing happening is very high in India.[9] Fourth concern raised was with respect to the plea bargaining turning into a business where a person will get himself injured on propose to extract money.[10] One important recommendation that was made in the upper house was that the application filed for plea bargaining should not used anywhere, for any proceedings, either same proceedings or collateral proceeding or by anybody in any place.[11] This bill was passed by the upper house on 13th December, 2005 after few modifications.[12] The Criminal Law Amendment bill was taken up by the Lok Sabha on 22nd December, 2005.[13] Hon'ble Minister, Shri Shivraj V. Patil pointed out few benefits of having plea bargaining before the house like victim could be given compensation of the losses incurred[14], the disposal of the cases will be quicker and dispensation of criminal justice will also be quicker.[15] Recommendation was made by honourable members for including cases where punishment is death sentence, life sentence and sentences of imprisonment up to seven years[16], however this was rejected by the honourable minister saying that including these exceptions to plea bargaining was primarily to ensure that accused in all cases ...

Plea Bargaining In India

Vishavjeet Chaudhary and Arindam Bharadwaj

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