CRIMINAL PROCEDURE

Plea Bargaining
OCTOBER 10, 2017
Introduction

In India, Plea Bargaining has certainly changed the face of the Indian Criminal Justice
System. It is applicable in respect of those offences for which punishment is up to a
period of 7 years. Moreover, it does not apply to cases where the offence committed is a
Socio-Economic offence or where the offence is committed against a woman or a child
below the age of 14 years. Also once the court passes an order in the case of Plea
Bargaining no appeal shall lie to any court against that order.

Meaning and Definition

While searching for the dictionary meaning one can get meanings only after connecting
the two words together, that is a plea, meaning to bring forward one’s excuse,
justification, defence, and bargaining, ways to arrive at an agreement of favorable
purchase. A “plea bargain”[1]is a practice whereby the accused forgoes his right to plead
not guilty and demand a full trial and instead uses a right to negotiate for a benefit.

In other words, plea bargaining means the accused’s plea of guilty has been bargained for,
and some consideration has been received for it. Plea Bargaining is an arrangement
between prosecutor and defendant whereby the defendant pleads guilty to a lesser charge
in exchange for a more lenient sentence or an arrangement to drop other charges.[2]

In State of Uttar Pradesh v. Chandrika (AIR 2000 SC 164), the Supreme Court held
that it is settled law that by plea bargaining Court cannot dispose of the criminal cases.
The Court has to decide it on merits.

Salient Features of Plea Bargaining

Following are the salient features of Plea Bargaining;

1. It is applicable in respect of those offences for which punishment is up to a period

of 7 years.
2. It does not apply to cases where offence is committed against a woman or a child
below the age of 14 years.
 3.
4. When court passes an order in the case of plea bargaining no appeal shall lie to
any court against that order.
5. It reduces the charge.
6. It drops multiple counts and presses only one charge.
7. It makes a recommendation to the courts about punishment or sentence.
Types of Plea Bargaining

There are three main types of Plea Bargaining namely,

1. Charge Bargain
2. Sentence Bargain
3. Fact Bargain
Object of Plea Bargaining

By introducing the concept of Plea Bargaining in the Criminal Procedure the object of the
legislature is to-

1. reduce the pending litigation.

2. decrees the number of undertrial prisoners.
3. make provision of compensation to the victim of crimes by the accused.
4. cut delay the disposal of criminal cases.
Drawbacks of Plea Bargaining

Some of the major drawbacks of the concept of Plea Bargaining as is recognized in India
are as under;

1. A threat to the right to fair trial.

2. Involving the Police in Plea Bargaining process would invite coercion.
3. By involving the court in Plea Bargaining process the court impartially is
impugned.
4. Involving the victim in Plea Bargaining process would invite corruption.
5. If the plead guilty application of the accused in reject then the accused would face
great hardship to prove himself innocent.
Requirement’s
To ensure fair justice, Plea Bargaining must encompass the following minimum
requirements namely,

1. The hearing must take place in court.

2. The court must satisfy itself that the accused is pleading guilty knowingly and
voluntarily.
3. Any court order rejecting a Plea Bargaining application must be kept confidential
to prevent prejudice to the accused.
Practical Analysis

Sections 265A to 265L are incorporated in the Code of Criminal Procedure

(Cr.P.C.)[7] by Amendment Act with effect from 5th of July, 2006 to give effect to the
system of “Plea Bargaining”.

1. The accused is entitled to avail the benefit of “plea bargaining” both in the cases
instituted on the police report as well as by way of a private complaint under
Section 200 Cr.P.C.
2. The benefit of “plea bargaining” is available to the accused that is not guilty of
committing an offence punishable by death or life sentence and not exceeding
seven The benefit also does not apply if the crime affects the socio-economic
conditions of the society and also to the crimes committed against woman or child
below the age of 14 years. Plea bargaining is not applicable to juvenile offenders.
3. The accused should make an application. The court should conduct in camera
inquiry to ascertain that the application is voluntary and without duress. The Court
should notify the public prosecutor and the victim to arrive at final disposition.
4. On the admission of guilt, the Court should impose One-Fourth of the sentence
prescribed for the offence. In case the offence is punishable for minimum
imprisonment half of such imprisonment is to be imposed. In both the situations,
the Court can award compensation to the victim after productive negotiations with
the accused and the victim.
5. The accused is entitled to the benefit of Probation of Offenders Act, the benefit of
let off under section 428 Cr.P.C. and benefit of bail.
6. The accused convicted in the system of a plea of bargaining has no right of appeal,
but the remedy of writ jurisdiction under Articles 226 and 227[8] and Special
Leave Petition under Article 136[9] of the Constitution of India is not barred.
Conclusion – Final Remarks

Plea bargaining is undoubted, a disputed concept. Few people have welcomed it while
others have abandoned it. It is true that plea bargaining speeds up caseload disposition.
The criminal courts are too overburdened to allow each case to go to trial. In such
situation, the system is left with no other choice but to adopt this technique.

Contributed By – Ashish Gupta CPJHS and

Rajivhttp://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_
system.pdf

The Steps That May Be Taken To Compel A Person to Appear Before A Criminal Court (CrPC, 1973,
India)

Article shared by

There are six ways of process to compel a person to appear in court, viz. (1) Summons; (2) Warrant;
(3) Warrant in lieu of summons; (4) Proclamation of an absconder; (5) Attachment of his property;
and (6) Bond, with or without sureties, to appear before a court on a certain date.

(1) Summons:

It is a document issued from the office of a court of justice calling upon the person to whom it is
directed to attend before a judge or officer of the court. Section 61 of the Code requires that every
summons issued by a court shall be in writing in duplicate signed and sealed by the presiding officer
of such court.

ADVERTISEMENTS:

It states in clear terms the title of the court, the place at which and the day or time of the day when
the attendance of the person summoned is required.

The summons shall be served by a police officer or an officer of the court issuing it or other public
servant. [Section 62]

The summons has to be served personally on the person, summoned by delivering a duplicate copy
of the summons, who signs receipt therefore on the back of the other (duplicate). (Section 62)
Service on a corporation:

Service of a summons on an incorporated company may be affected by serving it on the secretary,

local manager or other principal officer of the corporation or by registered post letter addressed to
the chief officer of the corporation in India. (Section 63).

Where the person summoned not found:

ADVERTISEMENTS:

Where the person summoned cannot be found, the summons may be served by leaving one of the
duplicates for him with some adult member of his family residing with him, and the person with
whom the summons is so left shall sign a receipt therefore on the back of the other duplicate.
(Section 64). A servant is not a member of the family within the meaning of Section 64.

If service in the manner mentioned above in Sections 62, 63 and 64 cannot be effected, the serving
officer shall affix one of the duplicates of the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily resides, and thereupon the Court after making
such inquiries as it thinks fit, may either declare that the summons has been duly served or order
fresh service in such manner as it considers proper. This is called substituted service. (Section 65).

Service on Government servant:

If a Government servant has to be summoned, the summons shall be sent by the court in duplicate
to the head of the office in which such person is employed, and such head shall thereupon cause the
summons to be served personally on the person summoned and shall return a duplicate copy to the
court under his signature with the endorsement of receipt effected thereon. (Section 66).

Service of summons outside local limits:

Where a summons is to be served outside the local limits of jurisdiction of the court issuing it,
service has to be effected by sending it in duplicate to the Magistrate within whose jurisdiction the
person summoned resides.
Service of summons on witness by post:

ADVERTISEMENTS:

Notwithstanding anything contained in the preceding sections of this chapter, a Court issuing a
summons to a witness may in addition to and simultaneously with the issue of such summons, direct
a copy of the summons to be served by registered post addressed to the witness at the place where
he ordinarily resides or carries on business or personally works for gain.

When an acknowledgment purporting to be signed by the witness or an endorsement purporting to

be made by a postal employee that the witness refused to take delivery of the summons has been
received, the Court issuing the summons may declare that the summons has been duly served.
(Section 69).

(2) Warrant of Arrest:

The second method of securing attendance of a person is by means of a warrant of arrest. The
warrant is an order addressed to a certain person directing him to arrest the accused and to produce
him before the court.

It is executed by a Magistrate on good and legal ground only. Section 70 of the Code gives the
essentials of a warrant of arrest. It lays down that every warrant of arrest issued by a court shall be
in writing, signed by the presiding officer of such court, and shall bear the seal of the court.

From a reading of the above it is clear that in order to be valid a warrant must fulfil the following
requisites:

(i) It must be in writing;

(ii) It must be signed by the presiding officer;

(iii) It must bear the name and designation of the police officer or other person who is to execute it;
(iv) It must give full particulars of the person to be arrested so as to identify him clearly;

(v) It must specify the olfences charged; and

(vi) It must be scaled.

Continuance of the warrant of arrest:

Every warrant shall remain in force until it is cancelled by the court which issued it or until it is
executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return of
the warrant.

Warrants are of two kinds: bailable and non-bailable. Section 71 deals with bailable warrant and lays
down that a warrant may contain a direction of the court that if the person to be arrested executes a
bond with sufficient sureties for his attendance before the court at a specified time, the serving
officer shall take such security and release him from custody.

Such a bailable warrant shall also state the number of sureties, the amount of the bond and the time
at which the arrested person is to attend the court.

A warrant of arrest shall ordinarily be directed to one or more police officers, but the court issuing
such a warrant may, if its immediate execution is necessary and no police officer is immediately
available, direct it to any other person or persons and such person or persons shall execute the
same. (Section 72).

The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person
within his local jurisdiction for the arrest of any escaped convict, offender or person accused of a
non-bailable offence, or a proclaimed offender evading arrest. (Section 73)

The police officer or any other person executing a warrant has to notify the substance thereof to the
person to be arrested, and if so required, to show him the warrant (Section 75).
The police officer or other person executing a warrant shall (subject to the provisions of Section 71
to security) without unnecessary delay bring the person arrested before the court before which he is
required by law to produce such person: provided that such delay shall not in any case exceed 24
hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s
court. (Section 76).

A warrant of arrest may be executed at any place in India. (Section 77).

(3) Warrant in lieu of summons:

A court may issue a warrant in lieu of or in addition to a summons for the appearance of any person
in the following three cases:

(i) Where the court believes that the person summoned has absconded or will not obey the
summons;

(ii) Where although the summons is proved to have been served in time, the person summoned
without reasonable cause fails to appear; and

(iii) On breach of a bond for appearance.

A Magistrate ought not to issue a warrant either in lieu of or in addition to summons in a summons
case unless he has previously recorded the reason for his so doing. (Sections, 87, 89).

(4) And (5) Proclamation for person absconding and attachment:

The fourth and fifth processes of compelling the appearance of a person before a court are by a
proclamation and attachment. If a court has reasons to believe that any person against whom a
warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be
executed, such court may publish a written proclamation requiring him to appear at a specified place
and time not less than thirty days from the date of publishing such proclamation.

The proclamation shall be published: (i) by publicly reading in some conspicuous place of the town or
village in which such person ordinarily resides, (ii) by affixing it to some conspicuous part of the
house or homestead in which such person ordinarily resides or to some conspicuous place of such
town or village; and (iii) by affixing a copy thereof to some conspicuous part of the court-house. The
court may also, if it thinks fit, direct a copy of the proclamation to be published in daily newspaper
circulating in the place in which such person ordinarily resides. (Section 82).

Before the issue of a proclamation the Magistrate should be satisfied that the accused was
absconding or concealing himself for the purpose of avoiding the service of a warrant. The
proclamation also should direct appearance of the person concerned within thirty days, and if the
date fixed for the appearance is less than thirty days, it is illegal.

The court issuing a proclamation may for reasons to be recorded in writing at any time order the
attachment of any property, movable or immovable, or both, belonging to the proclaimed person.
There may even be a simultaneous order of attachment along with the order of proclamation.

If the court is satisfied that the person in relation to whom the proclamation is issued—(a) is about
to dispose of the whole or any part of his property or is about to remove the whole or any part of his
property from the local jurisdiction of the court. Since the object of attachment is to enforce the
appearance of the absconder, the attachment usually accompanies the proclamation. (Section 83).

Modes of attachment:

If the property ordered to be attached is a debt or other movable property, the attachment may be
made—(i) by seizure, or (ii) by the appointment of a receiver; or (iii) by an order in writing
prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or (iv)
by all or any two of such methods, as the court thinks fit.

If the property ordered to be attached is immovable, the attachment shall, in the case of land paying
revenue to the State Government, be made through the Collector of the district in which the land is
situated.

If the immovable property is not the land paying revenue to the State Government, the attachment
shall be: (i) by taking possession; or (ii) by the appointment of a receiver; or (iii) by an order in
writing prohibiting the payment of rent or delivery of property to the proclaimed person or to
anyone on his behalf, or by all or any two of such methods, as the court thinks fit.

If the property to be attached consists of livestock or is of a perishable nature, the court may order
its immediate sale. (Section 83).
Objections to attachment by third person:

Any person other than the proclaimed person may prefer a claim or make an objection to the
attachment of property within six months from the date of attachment on the ground that the
claimant or objector has an interest in the attached property and that such interest is not liable to
attachment.

Every such claim or objection shall be inquired into by the court in which it is preferred and may be
allowed or disallowed. If the claim or objection is disallowed in whole or in part, the claimant or
objector may within a period of one year institute a suit to establish his right in respect of the
property in dispute, but subject to the result of such suit, if any, the order of the court disallowing
the claim shall be conclusive. (Section 84).

If the proclaimed person appears within the time specified in the proclamation, the court shall make
an order releasing the property from attachment. If, however, he does not appear within such
specified time, the property under attachment shall be at the disposal of the State Government and
shall not be sold before six months from the date of the attachment and until the disposal of any
claim or objection made by a person other than the proclaimed offender.

But if the property is subject to speedy and natural decay or if the court considers that the sale
would be for the benefit of the owner, the court may cause it to be sold whenever it thinks fit.
(Section 85).

Restoration of attached property:

If the proclaimed person appears within two years from the date of the attachment and satisfies the
court that he did not abscond or conceal himself for the purpose of avoiding execution of the
warrant and that he had no notice of the proclamation, the property or net proceeds of the sale
after deducting the cost of the attachment shall be delivered to him. (Section 85).

6. Bond of appearance:

The sixth method of securing attendance of a person in court is to require him to execute a bond,
with or without sureties, for his appearance in court. When a person for whose appearance or arrest
the officer presiding in any court is empowered to issue a summons or warrant is present in such
court, he may require such person to execute a bond, with or without sureties for his appearance in
such court. When the person so bound by any bond to appear before a court does not appear, the
presiding officer may issue a warrant directing that such person be arrested and produced before
him. (Ss. 88-89).