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Plea bargain — a fillip to criminal courts

K.T. Thomas

The advantages, which include speedy disposal of cases, outweigh its demerits.

WHEN PARLIAMENT amended the Code of Criminal Procedure by Act 2 of 2006 adding a new chapter 21(A), the concept of "Plea Bargaining" became a reality and part of our criminal jurisprudence. Plea bargaining means "the process whereby accused and the prosecutor, in a criminal case, work out a mutually satisfactory disposition of the case, subject to the approval of the court." It involves the accused pleading guilty to the offence or to a lesser offence in return for a lighter sentence than otherwise imposable for that offence. This practice is prevalent in western countries, particularly the United States, England, and Australia. In the U.S., plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries.

In India, plea bargaining cannot be availed of in respect of offences punishable with a sentence exceeding seven years. In other words, plea bargaining would not apply to serious offences. Three more categories of offences have also been excluded from its purview. First are those offences affecting socio-economic conditions of this country, which the Central Government would notify. On July 11, 2006 the Central Government actually issued a notification cataloguing 19 statutes as affecting the socio-economic conditions of the country and the offences in those statutes now stand excluded from the plea bargaining process. The second category of exclusion comprises offences committed against women. The third consists of offences committed against children below the age of 14. Despite such vast areas of exclusion there are many offences for which the accused will be entitled to avail themselves of the advantages of plea bargain.

The process of plea bargaining commences when the accused files an application in the court concerned supported by an affidavit stating that he knew the extent of the punishment of the offence or offences he is indicted for and that he is willing to plead guilty to the charge of the particular offence or offences. (If the accused had a previous conviction for the same offence, he is barred from making the application for plea bargaining). The court would then issue notices to the Public Prosecutor concerned, the investigating officer, and the person aggrieved (who usually is the complainant or the victim of the offence) to appear in the court on a day fixed for that purpose. The court has to be satisfied that the averments in the affidavit are genuine. The court shall then give time to the above parties to work out a "mutually satisfactory disposition of the case". Next is the turn of all those who were notified to sit together and work out a mutually satisfactory disposition. When the court is informed that such disposition has been worked out, the magistrate has to prepare a report which shall be signed by all the persons concerned. This has to be followed by a judgment imposing lighter sentences on the accused and providing compensation to the victims/ aggrieved persons. The provisions mandate the court to afford ameliorative relief to the accused, including the benefit of The Probation of Offenders Act, set off the pre-trial jail period, etc. However, there will be no appeal against such a judgment. The significant feature of the new system is that it affords protection to the accused who avails himself of the benefits of this facility against any other action. It is emphasised so in the provision, which says that "no statement of facts made by the accused in the application for plea bargaining can be used for another purpose."

One of the merits of the new system is that it helps the court to manage its load of work, and hence it would result in a reduction of the backlog of cases; another is that it relieves the magistrate of the burden to prepare a detailed judgment. This system offers advantage to the Public Prosecutors by relieving them of the burden of examining fragile and feeble witnesses like children and women of the household. Plea bargaining secures significant advantages to the accused, as he could save a great deal of time, energy, and court expenses.

However, this innovation in our criminal jurisprudence holds not just advantages, and there are demerits also. Conceptually, the plea bargaining process reduces the administration of criminal justice to a barter system, where the haggling is between legal punishment and gains to the wrongdoer. Secondly, even the innocent accused would capitulate to wrong compromises and wrong convictions in order to escape from the ordeal of a prolonged and expensive trial. Thirdly, cases in which the accused might finally secure acquittal would be converted into cases of unmerited conviction. Such accused can develop a scornful attitude to the justice dispensing system. Finally, plea bargaining can be construed as violating the principles enshrined in Article 21 of the Constitution that no person shall be deprived of his liberty except according to the procedure established by law. The main criticism in the U.S. has emanated from human rights activists on the ground that plea bargaining impairs the human rights of the accused. Nonetheless, on balance, I feel that the advantages would outweigh the demerits. In this perspective, plea bargain would greatly improve the current disturbing criminal jurisprudential system.

(The writer is a former Judge of the Supreme Court of India.)

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