Plea Bargaining is specie of Adversary system of Law, and plays a significant role in the Criminal Justice system. It is the simplest way to speedy Justice, thereby reducing the congestion of case load in the record rooms. The concept of Plea Bargaining is favorable to both the parties, within the effective time period. Plea Bargaining is a pillar of support, for the Criminal Justice system, of both the developed and the developing nations. But the expected residual of the process can be achieved only after assurance of its, efficient application blended with proper administration. Many concepts and processes have been imbibed from legal systems of the other countries, with the aim of speedy disposal of cases. Plea Bargaining is not a step but a leap towards the achievement of speedy Justice.
Plea Bargaining: A Step Forward to Speedy Justice.
“Without Plea Bargaining, we would expect to spend millions of dollars a year more for juries, judges, prosecutors and court-appointed attorneys. Do you think the public is going to be willing to pay that?”
- Elwood York
Many concepts and methods have been used in various areas of the Criminal Law system to lessen the burden of trials, eliminate the stigma of under trials and for the speedy disposal of cases, which are assuming alarming proportions. The under trials are languishing in jails and are exposed to mental torture along with the burden of payment of legal expenses. According to statistics in 2001 it was estimated that 70.5% of all inmates were under trials and of these 0.6% had been detained in jail for unreasonable number of years[1]. Criminal trials either take a long time to commence and even if they commence, bail is rejected to the under trials for one reason or the other. In this background, remedial legislative measures were taken by the Law Commission in its 142nd report in which the question of Introduction of Concept of Concessional Treatment for those who chose to plead guilty by way of Plea Bargaining was discussed. Presently, the concept of Plea Bargaining has been inserted in the Criminal Procedure Code[2]. This strategy comes as a wagon that cleans up the overburdened dockets of the court.
Plea Bargain is an agreement in a criminal case whereby the prosecution offers the defendant the opportunity to plead guilty to a lesser charge in return for an agreed sentence or dismissal or reduction of charges. Three distinct categories are placed under Plea Bargaining [3] :
* Charge Bargaining: This is the most common form of bargaining in which the
promises are made by the prosecution to reduce or dismiss some of the charges.
* Sentence Bargaining: It refers to the promises by the prosecutor to recommend a
specific sentence or to refrain from making a sentence.
* Fact Bargaining: This is the least used negotiation which involves an admission to
certain facts in return of a promise for not introducing other known facts as
evidence before court.
The practice of Plea Bargaining is a prominent feature in America for the matter of dispensing justice and its origin there goes back a century or more. One of its such case was found in Almeda County, California in about 1880’s, where the judges stated that “Plea Bargaining was not as pervasive as it is now ….not even close to it…but it was by no means rare”[4]. In the year 1969, James Earl Ray pleaded guilty for assassinating Martin Luther King, Jr. to avoid, execution sentence. Plea Bargaining gradually paced up as a widespread practice in United States and it was estimated that 90% of all criminal convictions in the United States were through procedure of Plea Bargaining. In plethora of cases, the honorable US Supreme court held that “Plea Bargaining helps in the disposal of accumulated cases and will expedite delivery of Criminal Justice”[5]. The usual basis of Plea Bargaining is either: that if the defendant will plead guilty to some counts on the indictment, the prosecution will not proceed with the remainder; or that if the defendant will plead guilty to a lesser offence and the prosecution will not proceed with the more serious offence.[6]
In the case of R .v Cain[7] the U.S court of appeal held that, “…it was true to say that in general terms a guilty plea would attract a lesser sentence than a plea of not guilty. After a full-dress contest on the issue, there was no doubt about this that an accused person should be made aware. The sooner they knew the better”. In the case of Boykin v. Albama[8] it was stated that “All defendants who plead guilty do so voluntarily and knowingly. The latter meaning that the defendants understand the rights that are waived by entering a guilty plea”.
Plea Bargaining is widely accepted as a mode of saving time and money. From the prosecution point of view, it may better to have a conviction for something rather than risk for acquittal[9]. The Turner rules[10] were laid down by the US Court of Appeal in 1970 to govern the conduct of judges and counsel in matters related to Plea Bargaining. Firstly, that defense counsel should be free to give advice to the defendant if necessary in strong terms about the best approach. Secondly, defendants should have the freedom of choice having heard the advice. Thirdly, the judge should never indicate the likely sentence except to say that the sentence will take the same form whether the defendant pleads guilty or is convicted[11]. A court may reject a plea in exercise of sound judicial discretion. There is of course no absolute right to have guilty plea accepted[12].
SAILENT FEATURES OF PLEA BARGAINING[13]:
· The Plea Bargaining is permissible only in case of those offenses for which punishment of imprisonment is up to a period of 7 years.
· It is not applicable in cases in which the socio-economic condition of the country is affected.
· Second timer’s i.e. Persons who have been convicted for an offence under the same provision at any time in the past are also excluded.
· It is also not applicable if the offence has been committed against a women or a child below 14 years of age.
· The accused should file the application for Plea Bargaining voluntarily, the court may examine the accused in camera to assure and ascertain that application has been filed without any duress or coercion.
· The application may be filed by the accused in the court in which such offence is pending for trial.
· The court may then issue a notice to the public prosecutor to work out mutually satisfactory disposition of the case. Negotiations are according to free will and terms of prosecution and accused.
· In case of settlement, court can award compensation depending on the case to the victim and hear parties on issue of punishment.
· The court may then release the accused on probation if law provides for it .The accused may get the benefit under Section 428[14] of the Code of Criminal Procedure, 1973 which allows setting off the period of detention undergone by the accused against the sentence of imprisonment in Plea-Bargained settlements.
· The statements or facts stated by the accused in an application for Plea Bargaining must not be used for any other purpose.
· Judgment shall be delivered in an open court and all the terms of mutually agreed disposition be read.
· The judgment of the court in case of Plea Bargaining shall be final and no appeal shall lie in any court against such judgment. But a writ petition to the State High Court under Articles 226[15] and 227[16] of the Constitution or a Special Leave Petition to the Supreme Court under Article 136[17] of the Constitution can be made.
POSITIVE ASPECT OF PLEA BARGAINING ARE[18]:
l The offenses in which mutually satisfactory disposition of case can be made are limited.
l The judge is not completely excluded and has a supervisory authority so the prosecution can not misuse the benefit of Plea Bargaining
l Concept of plea bargain ensures that habitual offenders cannot avail this benefit
l No possibility for filing an ordinary appeal helps in speedy disposal of cases against the piling up of files.
l Plea Bargain gives an opportunity to an honest and candid accused who wants to plead guilty to make amends for the wrong done by him.
l It will provide relief to the under trials awaiting trial with supplementary benefits such as end of uncertainty, reduction in litigation etc
l Within the interest of public the concept of Plea Bargaining helps bear the back breaking burden of criminal cases.
l Promptly imposed punishment after an admission of guilty may more effectively attain the objectives of punishment whilst avoiding trial.
l It also relieves the victims from anxiety of having to give evidence in court
l Finally it will reduce population of under trials in jails.
NEGATIVE ASPECTS OF PLEA BARGAINING ARE[19]:
l The concept may ignite more cases of crime.
l In country like India concept is not very consistent with conditions of state because of low literacy rate.
l Few critics claim that process is not fair in case of innocent.
l In case of countries like India involving police may introduce a fear of coercion as well as corruption.
l In case of appeal under article 226[20] and 227[21] of the constitution it is unclear whether the victim of offense can utilize this remedy.
The case of Brady v. United States[22] was the first landmark U.S. Supreme court judgment which explained plea bargaining as a valid mode of criminal adjudication and not an unconstitutional mode. Honorable Supreme Court[23] asked for two requirements: Firstly, guilty pleas are valid if they are made both “voluntarily and intelligently” the court explained that “possibly coercive impact of a promise or leniency” was presumptively “dissipated by the presence and advice of counsel.” Secondly for a valid guilty plea it is required that it was made with “sufficient awareness of the relevant circumstances and likely consequences”.
The Indian concept of Plea Bargaining has derived its inspiration from the Doctrine of Nolo Contendere.[24] The arrears of criminal cases are reaching its zenith and process of speedy disposal of cases in India is ineffective. Before an amendment was made in Criminal Law (Amendment) Act, 2005 the concept was unknown to our judicial system. Reference may however be made to section 206(1)[25] and 206(3)[26] of CrPC and section 208(1)[27] of Motor Vehicle Act, 1988. These provisions enabled the accused to plead guilty for petty offences and small fines whereupon the case is closed[28]. But there is no bargaining between the prosecution and the defense. The honorable Supreme Court observed the concept of Plea Bargaining to be against the public policy.[29] In the same year apex court also observed that neither the trial court nor the high court has the jurisdiction to bypass the minimum sentence prescribed by law on premise that a Plea Bargain was adopted by the accused.[30] The only point of difference concerning Plea Bargaining between Indian criminal justice system and that of United States is that in India plea Bargaining can only be initiated by the accused where as in United States discretion to make an offer of Plea Bargaining rests with the prosecution.
The honorable SC of India has also examined the concept of Plea Bargaining in the case of Murlidhar Meghraj Loya v State of Maharashtra[31] the court did not approve of the procedure of plea bargaining on the basis of informal inducement. The honorable court held that it is opposed to public policy to induce to confess to plead guilty “on allurement being held out to him that if he enters a plea of guilty he will be let off very lightly”. If a law provides for entering a voluntary plea of guilty and a concessional treatment being accorded in the light of the statutory authority of law in accordance with the prescribed guideline by a judicial authority, it would not be possible to say that conviction based on the plea of guilty is erroneous. Similarly, the procedure by which a person is convicted on Plea Bargaining made as a result of inducement would be violative of Article 21[32] of the constitution. The Law Commission considered and examined the concept of Plea Bargain as practiced in other countries and its suitability in socio economic conditions of our country thereby introducing the concept in our judicial system.
Therefore, Justice must not only be done, but seem to be done[33]. Plea Bargaining has been introduced as a remedial measure to deal with astronomical number of increasing cases which results in congested jails and long time taken by the courts to commence and conclude trial. Plea Bargaining can be considered the chief component of judicial system provided it is properly administered a formula which is considered just, fair, proper and acceptable. It cannot be said that delay in disposal of cases can completely be made by adopting Plea Bargain as there are many other factors responsible for delayed trials, there’s also no reason to believe that Plea Bargaining in India will show the same charisma in matter of trials as it has shown in United States The need of the time is not a substitute for a delayed trial but an overhaul of the system, to ensure reasonably swift trials. As for the apex court states that,
“It would be a mistake to dismiss plea negotiation as a distasteful practice made necessary only by the unhappy reality of an unburdened criminal justice system plea bargaining is not inherently shameful practice; it ought not on a theoretical level, be characterized as failure of principle practiced properly it should to the contrary be recognized as the expression and merging of the two complementary principles : those of efficiency and Restraint………………”
[1] Law commission of India, “Concept of Plea bargaining- A Practice Being Successfully Practiced In
U.S.A”; 142nd report on Concessional Treatment for Offenders who own their own initiative chose to
Plead guilty without bargaining. For details, See < http://lawcommissionofindia.nic.in/101-
169/Report142.pdf.> last visited on, October 15, 2008.
[2] Criminal Law (Amendment) Act 2005 has been passed introducing the Chapter XXI-A on Plea
Bargaining which has been inserted in Criminal Procedure Code 1973.
[3] Black’s Law Dictionary 6th Edition, West Publishing Co., 1990. defines it as follows:
“[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually
satisfactory disposition of the case subject to court approval. It usually involves the defendant’s
pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment
in return for a lighter sentence than that possible for the graver charge”.
[4] Supra note 1
[5] Brady v US ,297 US 742-25 L.Ed.2d 747: Santobello v New York, 404 US 257 (1971):Hutlo v Ross, 50
L.Ed .2d 876: Chaffin v Stynchombe, 412 US 17 (1971): Blackledge v Allison, 52 L.Ed 2d 136:
Weatherford v Bursey, 429 US 545 (1977)
[6] Mike Mcconvile, Plea Bargaining Ethics and Politics, Hart publication; 2000.
[7] [1976] Crim L.R 464
[8] 395 US 238 (1969)
[9] Supra note 4
[10] R v. Turner, [1975] 1 All ER 70
[11] Andrew Ashworth, The Criminal Process and Evaluative, study 2nd edn; Oxford University
Press; London; 1998.
[12] Lynch v. Over holser,369 U.S. 705,719(1962)Fed rule Crim. proc 11
[13] Plea Bargaining – A New Concept, District legal services authority, Uttar Pradesh for details see,
<http://upslsa.up.nic.in/plea.pdf> last visited on, October 5, 2008.
[14] Sec 428 of CrPC states that, “Period of detention undergone by the accused to be set off against the
sentence of imprisonment.: Where an accused person has, on conviction, been sentenced to
imprisonment, for a term [not being imprisonment in default of payment of fine,] the period of detention,
if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of
such conviction shall be set off against the term of imprisonment imposed on him on such conviction and
the liability of such person to undergo imprisonment on such conviction shall be restricted to the
remainder, if any, of the term of imprisonment imposed on them.
[15] Article 226 of the Constitution of India states, Power of High Court to Issue Writs
1. Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
2. The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order: and
b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
4. The power conferred on a High Court by this article shall not be in derogation of the power
Conferred on the Supreme Court by Clause (2) of Article 32.
[16] Article 227 of the Constitution of India states, Power of Superintendence over all courts by the High
Court:
1. Every High Court shall have superintendence over all courts and tribunal, throughout the territories in relation to which it exercises jurisdiction.
2. Without prejudice to the generality of the forgoing provision, the High Court may-
a) Call for returns from such courts
b) Make and issue general rules and prescribe forms for regulating the practice and
Proceedings of such court: and
c) prescribe forms in which books, entries and accounts shall be kept by the officers of any
such court
3. The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and
Officers of such courts and to attorneys, advocates and pleaders practicing therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
4. Nothing in this article shall be deemed to confer on a High Court powers of superintendence
over any court or tribunal constituted by or under any law relating to the Armed Forces.
[17] Article 136 0f the Constitution of India states, special leave to appeal by the Supreme Court:
1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
Made by any court or tribunal constituted by or under any law relating to the Armed Forces.
[18] Twelfth Law Commission, Justification For Introducing Plea Bargaining, under the in its 142nd
report on Concessional Treatment for Offenders who on their own initiative chose to plead guilty
without bargaining,1991 see,< http://lawcommissionofindia.nic.in/101-169/Report142.pdf.> last
visited on, October 15, 2008.
[19] Law Commission of India, Objections to the Introduction of the Concept in Indian Legal System
Answered, Chapter VII of the 142nd report on Concessional Treatment for Offenders who own their
own initiative chose to plead guilty without bargaining, 1991.
[20] Supra note 15
[21] Supra note 16
[22] 397 U.S. 742 (1970).
[23] Daniel P. Blank, Plea Bargaining Waivers Reconsidered: A legal Pragmatist’s Guide to Loss.
Abandonment and Alienation 68 Fordham L. Review 1037 (2000).
[24] Doctrine of Nolo Contendere means, “A plea entered by the defendant in response to being charged
with a crime. If a defendant pleads Nolo Contend ere, she neither admits nor denies that she committed
the crime, but agrees to a punishment (Usually a fine or jail time) as if guilty. Usually, this type of plea
is entered because it can’t be used as an admission of guilt if a civil case is held after the criminal
trial. See, <http://www.nolo.com/definition.cfm/Term/053EC922-BDF9-4D49-
B97126F46620FECF/alpha/N/> last visited on October 2, 2008.
[25] Sec 206(1) of the CrPC states, Special summons in cases of petty offence:(1) If, in the opinion of a
Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section
260, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion,
issue summons to the accused requiring him either to appear in person or by pleader before the
Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the
Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea
in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to
plead guilty to the charge through such pleader, to authorize, in writing, the pleader to plead guilty to the
charge on his behalf and to pay the fine through such pleader:
Provided that the amount of the fine specified in such summons shall not exceed one hundred rupees.
[26] Section 206 (3) of the CrPC states, The State Government may, by notification, specially empower any
Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is
compoundable under section 320 or any offence punishable with imprisonment for a term not exceeding
three months, or with fine or with both where the Magistrate is of opinion that, having regard to the facts
and circumstances of the case, the imposition of fine only would meet the ends of justice.
[27] Section 208(1) of the Motor Vehicles Act states, Summary disposal of cases:
(1) The Court taking cognizance of any offence (other than an offence which the Central Government
(2) may by rules specify in this behalf) under this Act,-(i) may, if the offence is an offence punishable with imprisonment under this Act; and
(ii) shall, in any other case, state upon the summons to be served on the accused person that he-(a) may appear by pleader or in person; or(b) may, by a specified date prior to the hearing of the charge, plead guilty to the charge and remit to the Court, by money order, such sum (not exceeding the maximum fine that may be imposed for the offence) as the Court may specify, and the plea of guilt indicated in the money order coupon itself: Provided that the Court shall, in the case of any of the offences referred to in sub-section (2), state upon the summons that the accused person, if he pleads guilty, shall so plead in the manner specified in clause (b) and shall forward his driving license to the court with his letter containing such plea.
[28] Supra note 14
[29] State of U.P v Chandrika, AIR 2000SC 164
[30] Kirpal Singh v State of Haryana, 2000 (1)Crimes 53 (SC)
[31] AIR 1976 SC 1929; Kasambhai Abdul Rehmanbhai Sheik etc v. State of Gujarat, AIR 1980 SC 854
[32] Article 21 of the Constitution of India states “No person shall be deprived of his life and personal liberty
except according to procedure established by law”.
[33] A fundamental principle of Natural Justice (the rule against bias). It may also be called Nemo Judex Iin
Cuasa Sua See, <http://sixthformlaw.info/03_dictionary/dict_no.htm>
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