Plea bargaining is an arrangement between the prosecutor and defendant in which the accused agrees to plead guilty to some charges or the original charge and in return get some concessions from the prosecutors in the criminal case. When the Government has a strong case, it may offer the defendant or the accused a plea deal to avoid trial and perhaps reduces his exposure to a more lengthy sentence. Many successful cases end with plea bargains. This helps in reducing number of cases pending in court. Concessions which are provided to accused are reduction in charges imposed and the severity of the punishment. Scholars estimate the proportion of cases resolved by plea bargaining are about 90 to 95 percent of both federal and state court. [i]
Plea bargaining in India
The Criminal Law(Amendment) Act, 2005, which amended the Code of Criminal Procedure introduced Plea bargaining in India. A new chapter XXI(A) was enforced in the code from July 5, 2006.Plea bargaining is allowed in case where the maximum punishment is imprisonment for 7 years. The first case was in 2007, Sakharam Bandekar case. But in that case court rejected his plea and CBI argument and he was sentenced to 3 years of imprisonment[ii]. Plea bargaining is not applicable in offences committed against socio-economic condition or women or a child below 14 years.
Different types of Plea Bargaining
1. Sentence bargaining: Motive of this is to get lesser sentence. Defendant agrees to the charges and in return gets a lighter sentence.
2. Charge bargaining: It is common in criminal cases. Defendant agrees to plead guilty to a lesser charge in return of dismissing of greater charge
3. Fact bargaining : Defendant agrees to stipulate certain facts in return he prevents other facts to enter as evidence.
Statutory provisions under criminal procedure code
Section 265-A : Plea bargaining is available to the accused who is charged of any offence other than the offences punishable with death or imprisonment for life. Section 265-A (2) Gives power to notify the offences to the Central Government.
Section 265-B : Application for plea bargaining which is to filed by the accused. It shall contain a brief details about the cases including the offences to which the case relates. It shall be accompanied by an affidavit of the accused. The court shall thereafter issue notice to the investigation officer and public prosecutor and the victim of the case.
Section 265-C : Prescribes the procedure to be followed by the court in working out a mutually satisfactory disposition of the case.
Section 265-D : A meeting is conducted and after that a satisfactory disposition of the case is concluded by preparing a report signed by the presiding officer and participants of the meeting. However if there is no such conclusion brought then the court shall record observation and proceed further in accordance with sub- section(1) of section 265-B.
Section 265-E : After completion of filing a report, court has to hear the parties and decide the quantum of the punishment or release them on probation.
Section 265-F : It deals with the judgment in terms of mutual disposition.
Section 265-G : There is no appeal against such judgment.
Section 265- H : Powers of the court in plea bargaining .
Section 265- I : Section 428 is applicable to disposition awarded in plea bargaining.
Section 265- J : Notwithstanding anything inconsistent therewith contained in any other provisions of the Code and nothing in such other provisions shall be construed to contain the meaning of any provision of chapter XXI-A.\
Section 265- K : It specifies that the statements given by the accused shall not be used for any other purposes.
Section 265- L : This act shall not apply in any case under Juvenile justice Act, 2000.
Plea bargaining in different countries
Plea bargaining is followed differently in each state and it is significant part of criminal justice. They endure uniformity in all cases by following “Federal Sentencing guidelines”. There are 2 main types of plea agreement :11 (c)(1)(B) and 11(c)(1)(C). It is common in Superior Courts of California, they have published an optional seven-page form to help in the procedures of plea agreements. Once a plea bargain is decided and accepted by the courts, it is final and cannot be appealed. But defendant can withdraw his plea and accept conditional plea bargain whereby he pleads guilty and accepts a sentence.
In plea bargaining, The Crown has the power to give lighter sentence and withdraw some charges against the defendant in exchange of guilty plea. The crown has to decide whether to decide the matter summarily or by indictment prior the defendant making his plea. If it proceeded summarily and then the defendant pleads not guilty then crown cannot change its election. Judges are not bound to the decisions of the Crown, they could impose harsher sentences . The crown and the defense will make a joint submission with respect to the sentencing. Judges are not bound to impose sentence within that range of submission.
England and Wales
Plea bargaining is executed according to the guidelines given by the “Sentencing Council”. Discount of the sentence given according to the timing of the plea. The earlier the guilty plea is entered, the discount given is greater. If it entered on the first day of the trial then a discount of one tenth is given. Discount can involve in changing the type of punishment also.
Illustration 1 : The Supreme court of Arkansas convicted 3 teenagers in 1994 of the murder of a boy. The DNA on the weapon did not match to the 3 convicts. It matched to the step-father of the murdered boy. the prosecutor was not able to prove the guilt so he offered them deal and insisted them to enter plea guilty so that they would be immediately freed. Already they have served 18 years in the prison and now they had to enter a plea of guilty. They were freed but they have face the ignominy of having pled guilty for the murder which they didn’t commit.[iii]
Illustration 2 : Kasambhai Abdulrehmanbhai Sheikh v. State of Gujarat[iv]
The court held in this case that Plea bargaining is against public policy and it pollutes the pure front of justice. The court has challenged the morality of plea bargaining. It also regretted the fact that magistrate had accepted the plea bargaining.
Illustration 3: Murlidhar Mehraj Loya v. State of Maharashtra[v]
The Supreme court did not encourage the concept of Plea bargaining. The believed it be a formal inducement. The enormous power in the hand of prosecutor will lead to corruption and collusion of justice. It held that plea bargaining intrudes upon the society’s interest and public morale.
Frequently asked questions:
1. When can plea bargain be withdrawn?
It cannot be usually withdrawn. But a defendant can withdraw if it involved false promise or coercion.
2. Who decides if the accused pleads guilty or not guilty?
The criminal defendant decides whether the accused pleads guilty or not guilt. While his or her lawyer can advise him on his decision.
3. What rights does a criminal defendant forfeit?
He has to forfeit his right to jury trial , right to confront his or her accuser and right to present evidence in his or her favor and the right to cross examine the witness and the right to appeal.
4. What is the difference between a plea bargain and a plea of nolo contendere?
In plea bargaining, the defendant admits to every necessary element of the crime and tell the court that he is guilty of the crime being charged. In nolo contendere, which translates into ” no contest” plea. In such plea, the defendant does not agree to the crime and he claims to be innocent.
Plea bargaining helps in fast disposal of cases by being a beneficiary for both side, the defendant and the prosecution. It helps the attorneys to defend their client in easy way. Long- standing disputes can be easily resolved. It helps in reducing the record of less serious offences in the court and this can be good for the accused when he is convicted later in the future. Plea bargaining helps in avoiding publicity by fast settlement of cases.
On the other side, the reasons for introducing plea bargaining are the overcrowding of jails, high rates of acquittal, torture of trial prisoners etc. But the main reason behind all this is delay in trial process. It has many disadvantages which harm the base of prosperity in the country. It demolishes independent judicial authority. The role of victim in the process affects corruption which ultimately defeats the purpose of plea bargaining.
India has already recognized the rights of convict in Article 20 of the Indian constitution. Considering the changes in the passage of time, Indian courts felt the need of plea bargaining. When change is brought there is always people retraining to it and it takes time for the people to accept the change. Rejecting something on the basis of disadvantages is not justified. Therefore, the need of the hour is to bring change in structure, composition and its culture. All these measures would help in ensuring fast trails.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i] Lindsey Devers, Plea and Charge Bargaining Research Summary https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf
[ii] Times of India: Oct 15, 2007
[iii] Damien Wayne Echols v. State of Arkansas, 2010 Ark. 417.
[iv] AIR 1980 SC 854
[v] AIR 1976 SC 1929