Abstract

The concept of Plea Bargaining which originated in the United States, today exists in most countries having robust crime prevention systems. It has been touted as an important mechanism to bring equilibrium between committing an offence and the subsequent punishment that offence demands. In addition to this, Plea bargaining also reduces the burden on courts significantly and this is a crucial aspect, considering in India, a trial takes almost 15 years to reach completion and Indian courts are overcrowded with under trial prisoners. This issue is further exacerbated by the fact that India's judges to population ratio are one of the lowest in the world (with 21 judges/million people). When the legislation was introduced in India in 2005 after several rounds of recommendations from different Law Commissions, the lawyers had hailed this amendment as a "progressive piece of legislation" which would ease the pressure on courts and lead to speedy disposal of cases. However, India has not taken complete advantage of this reformist section which finds its place in Chapter 21A of erstwhile CrPC, 1973, corresponding sections 289 to 300 of BNSS, 2023.

Introduction

Plea bargaining inspired from the Latin maxim Nolo Contendere which means "I do not contend": an agreement between prosecution and defense that if the accused pleads guilty (instead of pleading not guilty) to the crime he is charged with, his sentence will be reduced. Plea bargaining is an agreement in a criminal case in which a prosecutor and an accused arrange to settle the case against the accused. The accused agrees to plead guilty or no contest in exchange for some concession from the prosecutor, such as a reduced or lessor category of charge, or a reduced sentence. Plea bargaining is a pretrial negotiation between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return to drop more serious charges. It is not available for all types of crimes and is excluded in serious offences punishable with death or life sentences, crimes affecting socio-economic conditions and crimes against women and children.

Types of Plea Bargaining

There are different types and forms of plea bargaining which include charge bargaining, fact bargaining, count bargaining and sentence bargaining. For brevity's sake, they shall only be discussed briefly here. Charge bargaining is a form of bargaining where the defendant pleads for a less serious offence, compared to the one he is charged with. For instance, if the prosecution charged Ram with theft, he only pleads guilty regarding trespassing. Count bargaining is essentially what it sounds like, where if the defendant is charged with multiple offences, he only admits to one or a few of them and the prosecution then decides to dispose of the rest of the charges. Sentence bargaining is where the defendant chooses to not contest what the prosecution is charging him with and thus, after arriving at a mutually satisfactory disposition regarding the punishment of the defendant, he is let go. This is the most common type of plea bargaining in India and is elaborated upon in the provisions below, specifically under S.265-B corresponding to section 290 of BNSS, 2023 (Bharatiya Nagarik Suraksha Sanhita, 2023). Then there is fact bargaining which is a type of bargaining where out of the facts stated by the prosecution, the defendant only admits/agrees to a few, which, if accepted by the prosecution, also lead to dropping of charge by the Prosecution, regarding rest of the facts.

Origin

The initial origins of plea bargaining are found in texts regarding Saint Joan of Arc being coerced into giving a confession to avoid death by fire in France in the year 1431. Although when she retracted this false confession, she was forced to give, she was eventually executed at the stake. It is also apposite to mention that she was exonerated twenty-five years after her death on a deposition given by 116 people. Another early example can be found in the Salem Witch trials during 1692[1] when accused 'witches' were forced to confess to their 'alleged' crimes and testify against other witches, in return for the lighter punishment of being allowed to live. Pleading guilty did save some witches from execution but this was later used against plea bargaining as a strong argument stating that this practice could potentially coerce innocuous defendants to plead guilty. But the difference between the old practice and new era legislation is grounded in the fact that previously, confessions were elicited to make wrongful prosecution appear lawful while later, plea bargaining was just used as a medium to quickly dispose of cases relating to under trial prisoners and reduce the burden on justice systems simultaneously. Although scholars around the world attribute origins of the modern-day concept of plea bargaining to the United States, it is pertinent here that American Judges were initially very skeptical regarding the concept and instead persuaded the defendants to undergo trial, rather than bargain for their sentences. During the era of the American Civil war, judges even went to the length of reversing convictions that were based on such plea bargains. From the 1850s to the 1960s, plea bargains were considered unethical and immoral, even though according to one study, it was found that in some American States, 77-96% of defendants had pled guilty and had bargained for lesser sentences[2]. It was only in 1967 when a report by the President's Commission on Law Enforcement and Administration of Justice[3] came out with recommendations of recognizing this practice in consideration of the fact that though considered immoral, it was still highly prevalent. Fast forward to the 21st century, around 95% of cases in the United States are resolved via plea bargaining[4].

To trace the American history of Plea bargaining further, a reference can be made to Boykin v. Alabama[5], Brady v. the United States[6], Carolina v. Alford[7], Santobello v. New York[8]  and Bordenkircher v. Hayes[9].

Like in America, even in India, the system of Plea bargaining was not recognized and looked up to for the longest time as made clear by the judgments in Kasambhai Abdul Rehman Bhai Sheikhv. State of Gujarat[10] in which it was held that "the practice of plea bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice"; State of UP v.Chandrika[11] where the court held that, "Mere acceptance or admission of guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty, the sentence should be reduced" and Madanlal Ramachander Daga v. State of Maharashtra[12], where the court remarked that, "in our opinion, it is very wrong for a court to enter into a bargain of this character. Offences should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case, it may impose a lighter sentence".

The Indian Parliament on Plea Bargaining

Plea Bargaining was included in the erst while Code of Criminal Procedure (Cr.P.C) under chapter 21A from Section 265A to Section 265L through the Criminal Law (Amendment) Act, 2005 (2 of 2006) on with effect from 5th July, 2006[13] as a prescription to the problem of overcrowded jails, overburdened courts and abnormal delays. The amendment inserting the chapter on plea bargaining in the Cr.P.C was first introduced though the Criminal Law Amendment Bill, 2003 in the Rajya Sabha on 12th December, 2005[14]. The Bill was moved by the Minister of Home Affairs, Shivraj V.Patil[15].The Minister introduced Plea bargaining to the house by saying that when the accused brought before the Court makes a petition to the judge saying he is willing to admit his guilt, the court shall give notice and forward this application to the prosecutor and the defence lawyer and the accused, victim, prosecutor and defence lawyer can meet and discuss as to what should be done in that matter and how that case should be disposed of. Further the Court can go through the records and if the court finds that what has been agreed to between the two parties is quite acceptable, then the court can pass an order on that kind of agreement[16]. However, in cases where the punishment that could be awarded is imprisonment of more than seven years, life imprisonment, death sentence or cases in which women and children are involved, or, socio-economic conditions are involved, or, juvenile is involved, plea bargaining in such cases shall not be allowed[17]. (Corresponding sections 289 to 300 of BNSS, 2023.)

This bill was hugely accepted by the upper house since it was intended to save public money, court's time and was beneficial for both victim and the accused than going to a trial. Though there were concerns also that were raised by some members. MP Ravi Shankar Prasad, raised the concern of the rampant illiteracy in India and the understanding of the implications of plea bargaining by an illiterate victim[18]. There are good chances that an accused might take advantage of an illiterate victim during plea bargaining[19]. Second concern raised was regarding having an autonomous mechanism which would ensure that the plea bargaining is conducted in a fair, just and proper manner which is beneficial to both-accused and illiterate victim[20]. Third concern raised was regarding the Police employing unethical, unfair means to coerce the accused to confess the guilt of the crime and apply for plea bargaining since the possibility of such a thing happening is very high in India[21]. Fourth concern raised was with respect to the plea bargaining turning into a business where a person will get himself injured on propose to extract money[22]. One important recommendation that was made in the upper house was that the application filed for plea bargaining should not use anywhere, for any proceedings, either same proceedings or collateral proceeding or by anybody in any place[23]. This bill was passed by the upper house on 13th December, 2005 after few modifications[24].

The Criminal Law Amendment bill was taken up by the Lok Sabha on 22^nd December, 2005[25]. Hon'ble Minister, Shri Shivraj V.Patil pointed out few benefits of having plea bargaining before the house like victim could be given compensation of the losses incurred[26], the disposal of the cases will be quicker and dispensation of criminal justice will also be quicker[27]. Recommendation was made by honourable members for including cases where punishment is death sentence, life sentence and sentences of imprisonment up to seven years[28], however this was rejected by the honourable minister saying that including these exceptions to plea bargaining was primarily to ensure that accused in all cases are not allowed to go scot-free and the social conditions in which live, these precautions are necessary[29]. References were also made to Islamic criminal jurisprudence where it was claimed that plea bargaining is accepted, even in cases of murder[30]. The Amendment Bill introducing plea bargaining, after an intensive debate, was finally passed by the Lok Sabha on the same day[31].

Judicial Process

The Hon'ble Supreme Court of India has time and again criticized the scheme of plea bargaining as Justice V.R. Krishna Iyer in the case of Murlidhar Meghraj Loya vs. State of Maharashtra[32], said that:

"Many economic offenders resort to practices the American call 'plea bargaining', 'plea negotiation', 'trading out' and 'compromise in criminal cases' and the trial magistrate drowned by a docket burden nods assent to the sub rosa anteroom settlement. The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, 'trades out' of the situation, the bargain being a plea of guilt, coupled with a promise of 'no jail'. These advance arrangements please everyone except the distant victim, the silent society. The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic battles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his old professions. It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society's interests by opposing society's decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law. The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly" justify it philosophically as a sentence concession to a defendant who has, by his plea 'aided in ensuring the prompt and certain application of correctional measures to him.[33]"

Even Justice P.N. Bhagwati in the case of Kasambhai Abdulrehmanbhai Sheikh vs. State of Gujarat[34] had voiced a strong opinion against plea bargaining in his judgement. He said:

"To allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 21 of the Constitution unfolded in Maneka Gandhi vs. Union of India case. It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial which, having regard to our combers and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be defected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti-adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea-bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal.[35]"

Commission Reports on Plea Bargaining

The 142^nd Report of the Law Commission of India, 1991[36], which discussed plea bargaining at length, examined the model of plea bargaining in the United States of America and Canada and recommended the same to be incorporated in the Indian legal system for a class of offences, also recorded few objections raised for the introduction of plea bargaining in India. Objections include the country's social condition not justifying the introduction of the concept as India as illiteracy being high in India, people here will not be able to realize the consequences of invoking the scheme involving a confession to a commission of a crime[37] there being a likelihood of pressure being exercised by the prosecuting agencies on innocent persons to yield confession[38]; the poor will be the ultimate victim of this concept[39]; the counsel representing the accused would be unwilling to advise confession invoking the scheme as the same would lead to the defendant losing faith in the counsel and engaging another one[40]; plea bargaining may increase the incidence of crime as it was pointed out by some that the adoption of this scheme may increase the incidence of crime because of the expectation/impression that a person may be let off lightly by reason of pleading guilty[41].

The major justification that the law commission gave for incorporation Plea-bargaining was that the same would be just and fair on the part of accused who feels contrite and wants to make amends or an accused who is honest and candid enough to plead guilty in the hope that the community will enable him to pay the penalty for the crime with a degree of compassion[42]. Further Plea-bargaining would infuse some life in the reformative process embodied in the Code of Criminal Procedure which remains practically unutilized for a long time[43]. It will also help the accused whose trial remains hanging for years to obtain speedy trial with additional benefits like end of uncertainty, saving in litigation cost, saving in anxiety cost and being able to know his/her faith and start a fresh life without the fear of having to undergo a possible prison sentence at a future date disrupting his/her life or career[44].Plea-bargaining, as per the report, was also in public interest as it would decrease the back-breaking burden of the courts and reduce congestion in the jails[45].The Committee also noted that about 75% of the total convictions are the result of plea-bargaining in the USA and contrasted it with the 75% - 90% criminal cases resulting in acquittals in India[46].

The 154^th Report of the Law Commission of India, 1996[47], relying on the 142^nd Law commission report also recommended the introduction of the scheme of plea bargaining in the Indian criminal jurisprudence[48]. However, this report also recommended that plea bargaining should not be available to habitual offenders, those who are accused of socio-economic offences of a grave nature and those who are accused of offences against women and children[49]. The Law Commission in its 177^th report, published in 2001, also recommended the incorporation of plea bargaining in the Code of Criminal Procedure based on the reasoning provided in the previous reports[50].

Even the Committee on Reforms of Criminal Justice System, popularly referred to as the Malimath Committee, in its report[51] strongly recommended the incorporation of plea bargaining in the Code of Criminal Procedure and stated that offences, which are not of serious nature and impacts mainly the victim and not the values of the society, should be settled without a trial[52] and these classes of offences should be made compoundable so that the victim, in the negotiation, can lead the settlement of criminal cases through courts or Plea-bargaining[53].

Provisions of the erstwhile Code of the Criminal Procedure dealing with Plea Bargaining

Through an amendment to the Code of Criminal Procedure in 2005, Chapter 21A was added containing Sections 265A to 265L[54]. S. 265A talks about the application of this chapter and states that the chapter shall only apply in offences (which do not pertain to the socio-economic condition of the country; offences committed against a woman or child under fourteen years of age) where either: -   

A report under S.173 has been forwarded by the officer in charge of the police station stating that an offence punishable with imprisonment of less than seven years appears to have been committed         

OR

A magistrate has taken cognizance of an offence punishable with less than seven years imprisonment on a complaint made after examining the complainant and witnesses and under S.200 of CrPC (Examination of Complainant) and has issued the process mentioned in S.204 of CrPC (Issue of Process).

And the section further clarifies that the Central Government shall determine the offences affecting the socio-economic condition of the country. For now, this list includes:-

1.       Dowry Prohibition Act, 1961

2.       The Commission of Sati Prevention Act, 1987

3.       The Indecent Representation of Women (Prohibition) Act, 1986

4.       The Immoral Traffic (Prevention) Act, 1956

5.       The Protection of Women from Domestic Violence Act, 2005

6.       The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992

7.       Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955)

8.       Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955)

9.       Offences concerning animals that find a place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under the Wildlife (Protection) Act, 1972

10.    Offences mentioned in the Protection of Civil Rights Act, 1955.

11.    Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000

12.    Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002

13.    Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995

14.    The Army Act, 1950; The Air Force Act, 1950 and The Navy Act, 1957

15.    The Cinematograph Act, 1952

16.    The Explosives Act, 1884.

17.    The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

S.265B talks about the procedure to be undertaken in case the accused wants to plead for a lesser sentence and says that an application containing a brief description of the case along with an affidavit sworn by the accused stating he has voluntarily chosen to file such application after understanding the nature and extent of punishment provided for the offence and that the accused has not been previously convicted by any other court for the same offence shall be filed in the Court in which such offence is pending trial.

The Court shall then issue a notice to the Public Prosecutor/complainant and the accused to appear before the court on the date fixed for the case. When they appear on the date specified, the Court shall then examine the accused on camera, in absence of the other party, to satisfy itself regarding the voluntary nature of the application. And when the Court is satisfied regarding the same, it shall then issue a notice to the Public Prosecutor/Complainant and the accused to work out a mutually satisfactory disposition of the case.

This disposition may also include any compensation and any other expenses incurred during the case, to be paid by the accused to the victim and after fixing a date for further hearing, the case shall proceed further.

S.265C then clearly lays out the guidelines to be followed to arrive at a mutually satisfactory disposition and states that: -

 if the case has been instituted on a police report, the Court shall issue a notice to the accused, the victim, Public Prosecutor and the police officer who has investigated the case to participate in a meeting to work out a satisfactory disposition of the case and the section furthers casts a duty on the Court to ensure that this process is completed voluntarily by the parties. The accused is also allowed to participate in such a meeting with his pleader, in case the accused desires so. And

If the case has been instituted otherwise than on a police report, then the court shall issue a notice to the victim and the accused to participate in a meeting to work out a mutually satisfactory disposition and it shall be the duty of the court to ensure the voluntary nature of such participation and process. In this case, both the accused and the victim are allowed to meet with their pleaders, if they so desire.

As per S.265D, a report of such a meeting shall then be prepared by the Court and which shall be signed by the presiding officer of the Court and all other persons who participated in it.

And as per S.265E, the Court shall then award the compensation to the victim per such disposition and after hearing the parties on the quantum of punishment of accused; the Court shall release the accused either on probation for good conduct OR After admonition under S.360 OR Deal with the accused as per the provisions of Probation of Offenders Act OR any other law for the time being in force.

In case the latter two points apply, the court may release the accused on probation or provide the benefit of any such law and if a minimum punishment has been provided under the law, then Court shall sentence the accused to half of such minimum punishment. But if the minimum punishment is not provided, then it may sentence the accused to one-fourth of the punishment provided for such offence.

Such a judgment shall be delivered in an open court and shall be signed by the presiding officer of the Court as per S.265F and it shall be final and non-appealable although the option of filing a special leave petition under A.136 and writ petition under A.226 and A.227 shall still be available with the parties.

Note - In case no mutually satisfactory disposition has been worked out, the Court shall record that observation as well and proceed further from the stage of S.265B(1) (Where the accused had just filed his plea-bargaining application along with an affidavit).

Two noteworthy things present in the provisions themselves are: Under S.265I, any period of detention that the accused has already undergone shall be liable to be set off as per provisions of S.428 of CrPC (Period of detention undergone by the accused to be set off against the sentence of imprisonment) and that statement of accused in an application for plea bargaining shall not be used for any other purpose except for Chapter 21A, as per S.265K.

The chapter of plea bargaining has been retained in the BNSS, 2023, chapter XXIII from sections 289 to 300 deals with the plea bargaining, the major change that have been introduced into BNSS is provided under section 290 of the BNSS, 2023 (Corresponding section 265B of erstwhile CrPC, 1973) provides that a person accused of an offence may file an application for plea bargaining within a period of thirty days from the date of framing of charge in the court in which such offence is pending for trial. (The period of limitation has been added and 30 days have been inserted into the new provision that is contained in section 290 of the BNSS, 2023. Rest of the provisions are same only nomenclature of sections have been changed. Another significant change introduced by the BNSS, 2023 is in section 293 of BNSS (corresponding section 265E of CrPC) which provides for the disposal of the cases, the provision of the law under clause (c) of section 265E of CrPC was that “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. The change that have been introduced is provided under clause (c) of section 293 of BNSS, 2023 which provides that “after hearing the parties under clause (b), 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, and where the accused is a first-time offender and has not been convicted of any offence in the past, it may sentence the accused to one-fourth of such minimum punishment and also in clause (d) it has been provided that where the accused is first time offender and has not been convicted of any offence in the past, it may sentence the accused to one-sixth of the punishment provided or extendable, for such offence.

Conclusion

The BNSS, 2023 has retained the chapter of plea bargaining, with a major change introduced under section 290. This allows a person accused of an offence to file an application for plea bargaining within 30 days of framing the charge in the court where the offence is pending for trial. The rest of the provisions remain the same, but the nomenclature of sections has been changed. Section 293 of BNSS (corresponding section 265E of CrPC) provides for the disposal of cases, with clause (c) allowing the court to sentence the accused to half of the minimum punishment provided under the law. However, the applicability of plea bargaining has been limited, and there is a need to expand its scope. The text also lacks guidelines on how the Central Government can decide offences affecting socio-economic conditions and does not mention a timeline for a mutually satisfactory disposition. Additionally, preventing a person from filing for plea bargaining if they have been convicted of the same offence earlier is an impediment to its full utilization.