Plea bargaining

CrPC I Project
Monsoon Semester 2022-23.

NAME: Gaurav Singh

SECTION: B
ID- 221107
 This paper attempts to examine the fundamentals and ideas behind plea bargaining, its
history, and the current status of the practise in India following the passage of the
Criminal Law Act of 2005. It continues by analysing different Chapter XXIA of the Code
by bringing up certain serious questions about the applicability, extent, and effects on
interested parties of certain incorporated sections. Additionally, it makes
recommendations for a better way to put the Amendments into practise. Further, this
paper concludes also provide many evidences that the amendments has been shown in an
extremely precise manner and this is the right place where we can go further towards
wide possibilities that plea bargaining consist of.

Introduction

The primary responsibilities of the government has always been is to maintain the legal
system and ensure that justice is served. One significant holdover is when the social welfare
system replaces the police state, the fundamental purpose remains the same. Taxpayers give
money to the government and authorities every year to maintain the smooth running the three
parts of the government. Prolonged pre-trial proceedings and trial backlogs that result in
disproportionate delays in justice will have an influence on the legitimacy and reliability of
the court, the foundation of a judicial process and legal system. The legislation legally
incorporated plea bargaining into system in order to solve the issue of the case load in Indian
courts and to decrease the stress of detainees awaiting trial. The implementation of plea
bargaining will benefit our criminal justice system and bring about improvement.

Origin of Plea Bargaining

Plea bargaining is an idea that originates roots in the US, had also developed over time to
become a significant aspect of the US criminal justice system. 1 Plea bargaining is pre-trial
settlement between the defence and the prosecution where the suspect admits wrongdoing in
return for the prosecution making a specific concession.2 Negotiations to lessen the charge's
harshness or the punishment are typically included in this. Over 75% of criminal prosecutions
in the US resulted in guilty pleas, nearly always as a consequence of plea negotiations.
Almost every offender who enters a guilty plea is eligible for a 20 percent term remission in
federal courts. In the historic judgement Brady vs United States, when the court supported the
legitimacy of plea bargaining, the US courts evaluated the constitutionality of plea
bargaining. The court subsequently continued to decree in many future cases that plea
bargains are constitutional.

Concept of plea bargaining in India

The defendant in the U.S has three plea choices: convicted, not guilty, or plea of
Nolo Contendere. The accused responds to the allegations in the accusation by entering a plea
of Nolo Contendere, refusing to contest or accept guilt. A defendant who enters a nolo
contendere plea requests that the verdict or sentence be fixed as if the accused had filed a
guilty plea. The distinction is that, unlike a plea of guilt, a plea of nolo contendere can't be
used to subsequently establish guilt in a civil lawsuit for actual damages.3

Plea bargaining cannot be perfectly or plainly defined. As the name suggests, plea bargaining
entails a procedure of explicit negotiation in which a defendant is permitted to admit guilt in
court in compensation for a lesser sentence than one that otherwise would have been imposed
for the same offense. Plea negotiations can take place at any point before a decision is made,
but they typically take place before a trial. Black’s law dictionary defines it as:

1
Wanna make a deal? The Introduction of plea bargaining in India by sulabh rewari and Tanya Aggarwal (2006)
2 SCC (cri) J-12

2
The author is a student of National university of advanced legal studies, kochi. This chapter has come to force w.e.f. 5-7-
2006 vide notification.

3
Gale Encyclopedia of US history
“The 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 accused
pleading guilty to a lesser offence or to only one or some of the counts of multi-count
indictment in return for a lighter sentence than that possible for the graver charge.”

From the defendant's perspective, this means he exchanges a verdict and a harsher penalty for
a drawn-out, expensive, and painful procedure of going through a trial in which he may be
found guilty. In reality, given the overflowing criminal courts files, it more closely resembles
"shared recognition" of the strengths and flaws of both the accusations and the defences than
"mutual satisfaction." In order to waive his claim to a trial, the accused offers to plead guilty
in return for sentence reductions. This is an ongoing bargaining process. A plea bargain, an
agreement established to resolve a criminal trial. 4 The parties to a settlement in a case brought
on the basis of a police report are the suspect, the lead investigator, the prosecutor, as well as
the sufferer. To resolve the criminal case, during which the defendant admits culpability to
the crime for which a process is ongoing, each of them need to concur. The accused and the
victim are indeed the parties to the settlement in all other circumstances. They must consent
to a resolution in which the defendant admits guilt to the crime for which a trial is ongoing. A
case settlement must be negotiated with the Court's approval and oversight.5

Plea Bargaining are of three types- (1) Charge Bargaining; (2) Sentence Bargaining; and (3)
Fact Bargaining. All three of them involves in implied term of the sentence reductions, but
the technical difference is the way of achieving those reductions.

Charge bargaining falls under the first type and refers to a deal when a defendant admits guilt
to less charges. When defendant admits guilt to crimes that were unavoidably included, it
happens. Sentence bargaining, the second type, is the certainty of shorter or alternative
penalties in exchange for defendant's admission of guilt. In the United States, they can only
be allowed if the trial judge approves of them. Often, in high-profile instances, the prosecutor
will refuse to dismiss the charges to against defendant out of concern for the media's reaction.
A sentencing bargain can enable the prosecution to prove most serious accusation while

4
Plea bargaining: A practical solution by Sowmya suman

5
Plea bargaining: A Revelation by Dr Abraham P. meachinkara
guaranteeing the defendant more of less acceptable type of punishment. The third and less
common type of plea bargaining is fact-based bargaining, which includes admitting to some
facts (or "stipulating" to the validity and presence of specific facts, obviating the requirement
for the prosecution to prove them) in exchange for an agreement not to bring other statistics.

Limitation to use Plea bargaining

1. Charged offence must be other than those offences for which punishment of death or
life imprisonment or imprisonment extending seven years has been provided.
2. Offence must not be against women.
3. Offence must not be against child below the age of 14 years.
4. Alleged must not be habitual offender.
5. Offence for which accused has been charged, such offence must not be of nature
affecting socio-economic condition of nation. Government provided list of laws,
under which every offence is of such nature.

Reason for implementation of plea bargaining

The law commission described a system involving plea bargaining in India in its 142nd
report. The commission noted in its survey that there have been instances where an accused
person has been imprisoned for longer than the maximum sentence that could be imposed on
them if actually convicted, that statistics on prisoners who are facing trial are unavailable, and
that these situations have resulted in a denial of justice. The urgency of implementing a
revised version of the plan was highlighted in the study. There were several concerns about
the incorporation of plea bargaining in India, primarily concerns about illiteracy, prosecution
pressure on innocent people, increased crime rates, the possibility that criminals might avoid
punishment, and the commission advised weighing the benefits and drawbacks before
execution. In its 154th report, the law commission reaffirmed the necessity for corrective
legislative measures to shorten the time it takes to conclude criminal trials and appeals
and ease the suffering of prisoners who are awaiting trial. The 154th report's suggestion to
include the idea of plea bargaining was also a goal of the law commission's 177th report from
2001. Plea bargaining should be implemented, according to the 2003 Report by the
Committee on Reform proposals of the Criminal Justice System, in order to expedite the
administration of justice and dispose of stockpiled cases.

What incentive does an accused get to enter into a plea bargain?

For most defendants, the main advantage of pleading guilty is getting a lesser sentence for a
lesser offence than what it might happen if they went to trial and lost. Saving money on legal
bills is another very clear advantage that defendants can obtain from plea bargaining. A trial
nearly always requires more time and effort than negotiating and managing a plea bargain.
There are other benefits as well like:

 free from jail: An accused who being kept in custody, is not eligible for parole his
own remand, is denied the right to bail, or cannot arrange money, may be released
from detention as soon as the judge accepts their plea. Depending on the
offender's crime, the accused may be released immediately, on probation, with or
without having to perform community service. Even though the accused may have to
do extra time, they will still be released from prison far early than if they had relied
on a trial.

 Solving matter in less time : A trial is usually requires a much longer wait and
causes much more stress than taking a plea bargain.

 Less serious offence on One’s Record : In comparison to potential verdicts that

could follow a trial, pleading guilty or no contest in consideration for fewer charges
or less serious offences presents far better on a person's background. This could be
especially crucial in the event that the defendant is ever found guilty.

 Avoiding hassles: Particularly for routine, minor initial crimes, several people enter
guilty pleas without consulting an attorney. If they delayed to go to trial, they would
have to hire a competent attorney and invest time and resources in trial preparation.
  Ignoring publicity: You can choose to plead guilty to keep your name from public
eye if you depend on your reputation in the society for work or if you do not wish to
further shame your family. While headlines of the plea on its own could be public,
the news is relatively brief compared to news of a trial. Additionally, the context of
an accused person is rarely investigated in the subject of a plea agreement to extent
that it can be at trial.

Plea Bargaining: A compromised criticism

Without any doubt, Plea Bargaining is very beneficial in the miserable state of the Indian

Criminal Justice System. However, like a coin, Plea Bargaining has both advantages and

disadvantages. We have already covered the advantages. No innocent should have to suffer,

according to William Blackstone, yet this idea is making the situation worse. The number of

innocent people who have been found guilty using this theory simply because they are unable
afford a lawyer is unknown. This is a stain on the black-clad community's profession.
Innocent and individuals suffer from a lack of a justice system. In State of Uttar Pradesh v.
Chandrika, the Supreme Court has observed: ‘It is settled law that one basis of plea
bargaining Court may not dispose of the criminal cases. It must be decided on the facts by
court. An suitable penalty must be given if the accused admits his guilt. The sheer recognition
of guilt or acceptance of guilt cannot be a justification for sentencing reduction. This idea is
popular in the United States due to their high level of literacy but it has limitations in India
since people are unaware of it and lawyers never desire a speedy trial, according to the 142nd
report of the Law Commission. Although the police in India play a crucial role in the plea
negotiation phase, we cannot argue that they are completely free from bribery or corruption.
Politicians, wealthy individuals, and other influential figures are involved in negotiations so
that they can sway against the defence attorney. The Indian court system is regarded as one of
the best in the world, however this idea may affect how impartial judges are. This has become
a major issue in America because judges are predetermined to resolve cases through plea
bargaining in order to lighten their workload, which leads to 90% of cases being resolved by
plea bargaining in America. IPC specifies that crimes should be punished in accordance with
their deterrent and dangerousness, but plea bargaining mocks the jurisprudential principles
underlying the penal in order to lighten the load and cover up an ineffective judiciary. This
idea also encourages defendants to give up one‘s right to a fair trial, which is guaranteed by
the Indian Constitution, in exchange for a lighter penalty. The accused also relinquishes his
power to confront unfavourable evidence and his protection against self-incrimination. This
idea, combined with its benefits, encourages crime because of the certainty that offenders will
receive light penalties. Justice M.Hidayatullah in Madanlal Ramachandra Daga v. State of

Maharashtra and Justice P.N. Bhagwati in Kasambai Abdulrahmanbhai Seikh v. State of

Gujarat, held that plea bargaining is unlawful and unconstitutional, and disputes must be
resolved on the basis of underlying merit grounds instead of the accused's admission of guilt.

The idea of plea bargaining oftentimes appears to be a weak in light of the aforementioned

drawbacks.

ANALYSING INDIAN JUDICIAR’S APPROACH TOWARDS PLEA BARGAINING:

Until 2005 amendment, Indian judiciary was hesitant to implement this idea and repeatedly
rejected the idea of plea bargaining, despite numerous recommendations from the Law
Commission of India. This was clear because even after these suggestions, the courts
remained to rule against plea deals. The Hon'ble Court first considered the idea of plea
bargaining in Madan lal Ramachander Daga v. State of Maharashtra, where it made the
following observations:

"In our view, it is quite improper for a court to make a deal of this nature. Offenses should
be tried and punished in accordance with the culpability of accused. The court may issue a
lower sentence if it determines that it is appropriate given the circumstances of the case.”

In Muralidhar Megh Raj v. State of Maharashtra,6 the appellants pled guilty to the charge,
and the trial court then sentenced all of them a minimal fine. The Hon’ble Supreme court
continued to reject of the idea of plea bargaining. The Court concluded:

6
AIR 1976 SC 1929
"To start with, we are free to admit to a suspicion that appellants had quickly entered their
guilty pleas in hopes of receiving a reduced punishment instead of taking a nolo contendere
attitude.”

In Ganeshmal Jasraj v. Government of Gujarat and another 7 The supreme court said that the
plea bargaining has certain effect on evidence and conviction when it observed:

Without a hesitation, the analysis of the scientific proof by the court is probable to become
somewhat superficial and formulaic when the accused makes an admission of guilt, whether
as matter of fact that a plea agreement or otherwise. Maybe the court inclined to refer
towards the evidence statically as a subject of formality in aid of the confession of guilt
rather than critically in order to evaluate its credibility. In the event that the accused admits
guilt, the court's entire methodology for evaluating the evidence is likely to change.

In state of U.P vs Chandrika, The supreme court observed that:

"The simple confession of guilt shouldn't be a justification for sentencing reduction.

Additionally, the accused is not permitted to request reduced sentence from the court while
pleading guilty."

Due to the amendment's requirement that courts apply the law rather than create new laws,
the idea of plea bargaining has gained acceptance in Indian courts. The courts have ruled that
when imposing punishment on offenders who acknowledge their guilt and express remorse, a
lenient attitude should be used.

Critical analysis of chapter XXI-A:

Chapter XXI-A of Code of Criminal Procedure, 1973 deals with plea bargaining. This
chapter consists of 12 sections from Section 265A to 265L. 265 A lays out the applicability
of plea bargaining.

Plea agreements may be used, according to S. 265 A. It indicates that remedy is only
applicable to offences that carry a sentence of less than 7 years in prison. The clause exempts
offences that influence economic situations, those perpetrated against women or children
under the age of fourteen, and those where the legislation now in effect provides a penalty of

7
AIR 1980 SC 264
death, life in jail, or a term of imprisonment surpassing 7 years. The Federal Government is
empowered by Section 265A's Subsection (2) to evaluate which violations of the law are
currently in effect that have an impact on the nation's socioeconomic situation and to notify
those violations for the purposes of Subsection (2). (1). The basic purpose of implementing
plea bargaining is lost in this passage. The backlog of cases that caused delays in the
administration of justice is one of the major factors that led to the establishment of plea
negotiations. This clause only applies to offences that carry a sentence of less than seven
years. Numerous laws, ranging from the Dowry Prohibition Act of 1961 to more
contemporary ones like Protection of Women from Domestic Violence Act of 2005, deal with
socioeconomic offences. The fundamental objective of the Amendment to reduce the number
of cases is lost when plea bargaining is not permitted under a significant number of laws.
Another issue is the offences for which the law specifies a minimum punishment. The
Supreme Court has ruled that neither the trial court nor the high court have the authority to
disregard the legally required minimum punishment. The application of plea bargaining is
severely limited in this situation as well since, if somehow the minimum sentence is set by
law, an individual who has committed an offence in which the sentence is less than 7 years
cannot use plea bargaining as a defence. Additionally, under section 265A subsection (2)
gives the government the discretionary authority to determine whether offences qualify as
socioeconomic offences. The chapter has no rules defining the criteria for designating
offences as socioeconomic offences. If someone accused later considers that classification is
unreasonable and discriminatory, this could lead to a breach of Article 14. According to S.
265 B, the defendant is allowed to apply for a plea agreement in the court where the matter is
currently being heard. The implementation must be supplemented by an affidavit signed by
the accused attesting to the fact that he voluntary basis chose to enter into a plea agreement
after learning the nature and severity of the punitive action allowed by law for the offence
and also that he had never before been found guilty of the same crime. The accused will be
questioned in private when the court notifies the public prosecutor or the person who filed the
complaint about the case. The court will allow for the case to be resolved in a way that is
mutually acceptable if it is determined that the application is voluntary. If the court decides
differently, the case will start at the point where the plea agreement application has indeed
been submitted. On the basis of each case's details and circumstances, the courts are often left
to decide whether or not an application is voluntary. But because the accused is being given a
reduced sentence or a lighter sentence, there will be pressure on him. No one wants to go
through a lengthy trial, thus they might consent to such a concession in specific
circumstances.

Will such grounds be considered as a voluntary act by the Courts?

According to this section's subsection (4), the court must provide the parties enough time to
reach an amicable resolution. However, it does not establish a time period for a mutually
accepted resolution, which is extremely worrying given that the goal of plea bargaining is to
expedite justice and case resolution. A person who has already been convicted of the same
crime cannot apply for a plea deal, according to the clause. Again, the legislature has limited
the options for plea negotiations by failing to take into account the seriousness of the offence.
In the long term, a defendant might choose to negotiate a plea deal for a less serious offence,
but the mutually agreeable resolution might not pan out, leading to his punishment. While
prohibiting those convicted of the same offence from using plea bargaining, the clause fails to
take such a circumstance into account. Additionally, if the court determines that the
application was filed against its will, the process must continue from that point on. Court time
will be consumed if the courts are given the responsibility of determining whether a case
qualifies for a plea agreement or not. However, because the courts must first determine if the
appeal is voluntary or not before making a decision, this procedure might take longer. The
requirements for a mutually satisfying disposition are outlined in S.256 C. According to the
clause, the Court must notify the parties involved while it is the courts' responsibility to make
sure that process of arriving to a suitable resolution of the matter is voluntary. While the court
is not an part of the acceptable disposition procedure, the section nonetheless calls for it to
guarantee that it is voluntary. In reality, the clause doesn't specify any rules that the court
should follow to ensure that there is openness and that the accused is never forced.

Some other cause of concern

Plea bargaining is still in its infancy in our nation, and legislators need to take other factors
into account before making any changes. Plea bargaining may result in substandard police
investigations, cases not receiving enough time and energy, and cases not being properly
prepared. This might occur if the investigating police and other parties involved start to rely
more on plea deals than on pursuing justice.

Recommendation
Even while the amendment mandates the court to accord accused the advantage of the
Probation of Offenders Act wherever it is legal, it has attempted to resolve the issues with
under trial convicts. Then, Section 12 of the aforementioned Act states that the criminal shall
not be stigmatised. Sections 265 and 428 of the Penal Code apply to the sentence obtained
through a plea agreement. However, convicts awaiting trial lack awareness. The chapter
should include clauses requiring probation officers and jail supervisors to hold sessions in
jails notifying the under trial convicts of this benefit from which they may benefit. If a trial
has not yet started within a set period of time, the prisoner who is now facing charges should
be released. Not the convicts awaiting trial, but the police, the prosecution, and the judiciary
must be held responsible for any delays in their respective fields.

Prior to the 2005 Amendment, the accused in instances that are now in the appeals phase
should be permitted to utilize this alternative remedy. The offences that belong to the
category of socioeconomic offences need to be defined more precisely. The government
should be given guidance about the criteria for classifying an offence as a socioeconomic
offence. This can serve as a check against exercising this power without cause. The section's
scope should be expanded, and categorization for the purpose of plea negotiations should take
the seriousness of the offence into account in addition to the number of years that will be
served in prison. A parallel system should be set to consider cases dealing with plea
bargaining. Only if the forum feels that a satisfactory disposition cannot be worked out it
should send the case back to the court which should proceed from the stage where such
application has been filed for plea bargaining. A time frame should be stipulated for working
out a mutually satisfactory disposition.

Conclusion

Our legislators have introduced the insertion of Chapter XXI-A of the Code rather cautiously.
They have significantly constrained the application and scope of plea negotiations. It is
important to realise that when a notion is introduced into the legal system, care must be taken
to anticipate any challenges that may arise during the experimental phase. The clauses
themselves don't indicate a tendency to lighten the caseload. There is a pressing need to make
the rules more clear and predictable if people are to be encouraged to use plea bargaining as
an alternative remedy. It is acknowledged that in order for plea bargaining to be a viable
alternative remedy, there needs to be a balance between its widespread use and the
opportunities it presents. However, due to the exceedingly cautious approach used in limiting
its scope, we are unable to appreciate plea bargaining to the level that it deserves to be
appreciated. There is no denying that the Amendment is a real attempt to address the
difficulties raised, but it can only be appreciated if the restrictions are eased a little.
BIBLIOGRAPHY:

1. https://njdg.ecourts.gov.in/njdgnew/index. php.
2. Constituent Assembly Debates on 6 June, 1949 Part I.
3. Pradesh v. Chandrika, 2000 Cr.L.J. 384(386). 4. Brady v. United States, 397 U.S. 742
(1970). 5. Santobello v. New York, 404 U.S., 260 (1971). 6. 2000 Cr.L.J. 384(386)
4. (2005) Cr. L.J. 2957.
5. 154th Report, Law Commission of India, the Code of Criminal Procedure, 1973
154.70 (1996).
6. https://www.manupatrafast.com/article &txt search=Subject:%20 Criminal
7. AIR 2000 SC 164 11. AIR 1968 SC 1267 12. AIR 1980 SC 854