Plea of Bargaining – crpc answer writing

Introduction

• Definition – Black’s Law Dictionary defines Plea-Bargaining as a process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of a case subject to court’s approval.
• It usually involves the accused pleading guilty to a lesser offence 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.
• In simpler terms it means:
  • An active negotiation process by which the accused offers to exchange a plea of guilty.
  • Waiving off his right to trial, for some concessions in charges or for a sentence reduction.
  • An agreement, reached in a criminal case to finally settle it.
  • It must be proceeded under the guidance and supervision of the Court.
• The procedure aims:
  • Reduce the pending litigation.
  • Decrease the number of undertrial prisoners.
  • Make provision of compensation to the victim of crimes by the accused.
  • Cut delay in the disposal of criminal cases. 

Types of Plea Bargain

Sentence Bargaining

Sentence Bargaining involves assurance of lighter or alternative sentences in return for a defendant’s pleading guilty. A sentence bargain may allow the prosecutor to obtain a conviction to the most serious charge, while assuring the defendant of an acceptable sentence. In other words, it is a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.

Charge Bargaining

It is such a bargain in which a defendant pleads guilty to reduced charges. It occurs when a defendant pleads guilty to necessarily included offences. When the accused has the option of admitting guilt and settling for a less grave charge or where prosecution allows the accused to plead guilty to only some of the charges framed against him. Thus, the accused negotiates to reduce the number of charges against him.

Fact Bargaining

Here, negotiation involves an admission to certain facts (“stipulating” to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts.

Provision In Criminal Procedure Code

On the recommendation of the Malimath Committee, Criminal Procedure Code (CrPC) has been amended by adding Chapter XXIA, consisting of Sections 265A-Section 265L via the Criminal Law (Amendment) Act, 2005 with effect from July 5, 2006, based on the principles of sentence bargaining.

• Section 265-A – Application of the Chapter
  • This chapter applies to the accused who is charged as per police report or magistrate has taken cognizance on complaint with offences for which punishment provided is imprisonment exceeding seven years.
  • It does not apply to the accused:
    • Where such offences affect the socio-economic condition of the country. The Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.
    • Where such offence has been committed against a woman or a child below the age of fourteen years.
• Section 265-B – Application for plea bargaining
  • A person accused of an offence may file an application for plea bargaining before the court in which the offence is pending for trial.
  • The application must contain:
    • Brief description of the case.
    • Description of offence to which case relates.
    • Affidavit sworn by the accused that:
      • He has voluntarily preferred the application.]
      • Application is preferred after understanding the nature and extent of punishment.
      • That he has not been previously convicted of the same offence as in the present case.
  • After receiving the application, the Court shall issue notice to the Public Prosecutor or the complainant of the case and to the accused to appear on the date fixed for the case.
  • When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed, the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where:
    • The Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
    • The Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed.
    • Section 265-C – Guidelines for mutually satisfactory disposition
      • In working out a mutually satisfactory disposition, the Court shall follow the following procedure:
      • In a case instituted on a police report:
        • The Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case.
        • Throughout the process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting.
        • The accused, if he so desires, participates in such meeting with his pleader, if any, engaged in the case.
      • In a case instituted otherwise than on police report:
        • The Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case.
        • It shall be the duty of the Court to ensure, throughout such a process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting.
        • If the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.
    • Section 265-D – Report of the mutually satisfactory disposition to be submitted before the Court
      • Where in a meeting, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting.
      • If no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage when the application has been filed in such case.
    • Section 265-E – Disposal of the case
      • Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case in the following manner:
        • The Court shall award the compensation to the victim in accordance with the disposition and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under Section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused.
        • After hearing the parties, if the Court is of the view that Section 360 or the provisions of the Probation of Offenders Act, 1958 or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be
        • After hearing the parties, if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment
        • In case after hearing the parties, the Court finds that the offence committed by the accused is not covered as above, then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.
    • Section 265-F – Judgment of the Court
      • The Court shall deliver its judgment in terms of Section 265E of CrPC in the open Court and the same shall be signed by the presiding officer of the Court.
    • Section 265-G – Finality of the judgment
      • The judgment delivered by the Court here under shall be final and no appeal (except the special leave petition under Article 136 and writ petition under Articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.
    • Section 265-H – Power of the Court in plea bargaining
      • A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Code.
      • ection 265-I – Period of detention undergone by the accused to be set off against the sentence of imprisonment
        • The provisions of Section 428 of CrPC shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.
      • Section 265-J – Savings
        • The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter. Thus, this chapter has an overriding effect over other provisions of CrPC.
      • Section 265-K – Statements of accused not to be used
        • Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under Section 265B shall not be used for any other purpose except for the purpose of this Chapter.
      • Section 265-L – Non-application of the Chapter
        • Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
      • Advantages And Disadvantages of Plea Bargaining 
      • The principal benefits of plea bargaining, for the accused, are as follows: 
      • To receive a lighter sentence for a less severe charge.  
      • Save expenses and time. It always takes more time and effort to bring a case to trial than to negotiate and handle a plea bargain.  
      • An accused who is held in custody and does not qualify for release on his own recognizance or who either does not have the right to bail or cannot afford bail may get out of jail immediately following the judge’s acceptance of a plea. 
      • Depending on the offence, the accused may get out altogether, on probation, with or without some community service obligations. The accused may have to serve more time but will still get out much sooner than if he or she insisted on going to trial. 
      • Having less serious offences in one’s record. This can be particularly important if the accused is ever convicted in the future.  
      • To avoid hassles, if they waited to go to trial, they would have to find a good lawyer and spend both time and money preparing for trial.  
      • Beneficial features with respect to victim are as follows: 
      • Plea bargaining has canvassed “victim-oriented reform” to the criminal justice administration. 
      • It provides greater respect and consideration towards victims and their rights.  
      • It does so by giving them greater choices in satisfactory disposition of the case, and by providing a scheme for compulsory compensation.  
      • The plea-bargaining law mandates the Court to pay compensation to victims of crime once the plea-bargaining process is complete and then hears the parties on the quantum of punishment and possibility of probation.  
      • The rights of the victim are better upheld as they can bargain over the Court’s decisions.  
      • Plea bargaining also spares the victim from the anxiety of having to give evidence in the Court, and the unpleasantness of hearing all the details of the crime analyzed at length in public.  
      • Arguments against plea bargaining: 
      • As per the legal provisions dealing with Plea bargaining, it is a voluntary mechanism only entertained when accused opts it willingly.  
      • The involvement of the police in plea bargaining also attracts criticism. 
      • The provisions of Plea Bargaining do not provide for an independent judicial authority to evaluate plea-bargaining applications. 
      • The in-camera examination of the accused by the court may lead to public cynicism and distrust for the plea-bargaining system. The failure to make confidential orders by the court could also create biases towards the accused. 
      • The reasons given for the introduction of plea bargaining are the tremendous overcrowding of jails, high rates of acquittal, torture undergone by under-trial prisoners etc. But the main factor behind all these reasons is a delay in the trial process. All these measures would ensure reasonably fast trials. 
      • Case Law 
      • State Of Gujarat v. Natwar Harchandji Thakor (2005): 
      • The Supreme Court acknowledged the importance of plea bargaining,  
      • Every plea of guilt which is construed to be a part of the statutory process in the criminal trial, should not be understood as a plea-bargaining ipso facto.  
      • The very object of the law is to provide easy, cheap and expeditious justice by resolving disputes, considering the dynamic nature of law and society which must be decided case-to-case. 
      • Thomas v. State of Kerala (2013): The Kerala High Court held that the accused can’t have benefit of plea bargaining if he does not opt for bargain. 
      • Compounding Of Offences v/s Plea Bargaining   
      • Section 265 A – 265 L of CrPC deals with the provisions of plea bargaining whereas Section 320 deals with the provisions of compounding of offences. 
      • Plea bargaining consists of accepting guilt whereas compounding offences does not involve acceptance of guilt. 
      • The concept of bargaining came into existence in the year 2006; on the other hand, the concept of compounding of offences has been in existence since 1974. 
      • Plea bargaining does not end up in acquittal of the offender, it is just the bargaining of the charges and punishment but on the other hand compounding of offences results in acquittal. 
      • Under plea bargaining, the offender cannot claim the benefit under Section 300 (which states that an accused once convicted or acquitted cannot be tried for the same offence or different offence on the basis of same facts) of CrPC whereas an accused after compounding of offences may claim the benefit under Section 300.