PLEA BARGAINING
AUTHOR : SEHNAZ KHATOON
INTRODUCTION
Plea Bargaining is an American concept, which American people are using since 19th century. It was amended in XXIA chapter of Cr.P.C, in the year 2005 passed by the Parliament, and came into force in 5th July 2006. In India Plea Bargaining makes a great change in the criminal justice system, this is applicable to those offence in which punishment is up to seven years. It does not apply to the offences which is affecting the social economic condition of the country or any crime against the women or children below the age of 14 years. This change is brought to reduce the long-standing cases on the judiciary.
PLEA BARGAINING (MEANING)
This is a process where the accused bargain with the prosecution to reduce the punishment. It is a mutual agreement between the parties, where they make an agreement that prosecution party agree to take away the criminal charges file against the accused in some condition, which help the accused party to reduce his punishment and get lighter punishment for serious offence.
PLEA BARGAINING IN INDIA
Plea Bargaining is introduced to reduce the burden on our judiciary system and the delay process in the disposition of the cases. The NDA government formed a community headed by Chief Justice of Kerala and Karnataka High court. The “Malimath Committee” headed by “Justice Malimahtho” introduced plea bargaining and its significance. Where it referred the over burden on the court rooms, also it takes lesser period for the disposition of cases as compare to the trial procedure.
The community also pointed out that U.S.A report showing good result at the judiciary system by using this method. Although this method is not implicated so easily people criticized so much before its implication, as it will affect the public policy and also explained by supreme court that negotiable is not permitted under the criminal cases. Later, in case of Uttar Pradesh v. Chandrika[1], The Apex body held that a mere confession of guilt is not enough to dispose a criminal case, there must be some procedure follow by the court and appropriate sentence must be given to the accused. As only confession of the guilt by the accused is not enough for reduction of the punishment, after all these kind of discussion government accepted the concept and introduced section 265(A)- 265(L)[2] in the book of Cr.P.C , 1973.
TYPES OF PLEA BARGAINING
Sentence Bargaining. In this type of bargaining the accused pled his guilt with the intention to reduce the sentence of the punishment and accept his guilt by giving an application to the court.
Charge Bargaining. Here, the accused pled his guilty with the motive to reduce the charges formed against him. Also, accused agrees to accept his guilt so that his charges reduce to lighter form. It is the most common form of bargaining among three types.
Fact Bargaining. It talks about Bargaining of fact. But generally not used. Here, accused want to hide some facts so that the evidence against him will be less. which is totally wrong in the eye of law of our judiciary system.
PROVISION UNDER PLEA BARGAINING 265(A)- 265(L)
256(A)-Application of the Chapter: 1. This provision is applicable for those accused against whom any complaint file and other then the complaint related to the offence, which is having punishment of death/ life imprisonment or punishment, exceeding seven years of imprisonment. The officer in charge of the police station forward the report under section 173 of Cr.P.C to the court.
Magistrate take cognizance of the offence on complaint and must not include the offence which is having imprisonment exceeding seven years, life imprisonment or death sentence. Further the court can examine the witness and complainant under section 200 and later proceed the case under the section 204. This provision also does not apply to any offence affecting the country’s socio -economic condition or must not be committed against the child below fourteen years or the women section of the society.
2. under this part of section 265(A), notification has been given to the Central Government against the offence affecting socio- economic condition of the country.
257(B)- Application for Plea Bargaining:
- A person can file application of plea bargaining for the offence pending for trial in court.
- The application given by the accused must contain a brief detail of the case which is filed against him, and should be written the offence he had done. It is necessary to have affidavit sworn by the accused, in which it is described that accused voluntary accepted the application after understanding the nature and extent of punishment for the offence, provided under law. Must state that he has not convicted previously in a case charged with same offence by the court.
- As after the submission of the application by the accused to the court, magistrate will issue a notice to the investing officer, public prosecutor, victim and the accused to appear on the date which is fixed by the court.
- On the fixed date when everyone appears for the further procedure of the case, court shall examine the accused in camera. The other party shall not be present to satisfy itself that the accused voluntarily accepted the application which he filed.
258(C)- Guidelines for Mutually Satisfactory Disposition: It talks about some procedure court has to follow in the process of mutually disposition of case. Here, if the case instituted on police report the court shall issue notice to the prosecutor, investing officer, victim and the accused to appear on the fixed date to participate on the meeting for further disposition of the case. If the case is instituted other than the police report notice shall be issued to the victim and accused for meeting and disposition of the case mutually.
265(D)- Report of the mutually satisfactory disposition to be submitted before the court:
The reports made after the meeting under the section (C) of 265 under the mutually satisfactory disposition, two types of situation may arise after the meeting.
- If the meeting worked out under the process of mutual agreement then the court prepare a report, in which sign of presiding officer and parties who were participated in the meeting must be present.
- If the meeting does not work then the court record the observation and proceed the meeting from the initial stage of 265(B) 1 of the code.
265 (E)- Disposal of the Case: when the Mutually Satisfactory Disposition worked out then court shall follow some manner for the disposition of the case. Under the proceeding of 265(D) in which report made and signed by the presiding officer and participated members. After the disposition of the matter, the court shall award compensation to the victim and also can hear the parties on the quantum of punishment. The court can order to the release of accused on the prohibition of good conduct or after admonition or probation under the prohibition of section 360 of the code or under the prohibition of offender act 1958 or any provision under the law. The court may punish the accused with minimum sentence which can be one fourth of the total punishment for the offence which the accused has been done.
265(F)- judgement of the court: Judgement given by the court in this section, after observing the process and the same shall be signed by the presiding officer of the court.
265(G)- Finally of the Judgement: No, appeal shall lie in any court except the (Special Leave Petition under Article 136 and Writ Petition under 226,227 of Indian Constitution) after the judgement delivered by the court under section 265(G).
265(H)- Power of the Court in the Plea Bargaining: The power according to this section which a court have related to the matter of bail, trial and matter relating to the disposition of the case, under the code of criminal procedure.
265(I)- Period of Detention Undergone by the Accused to be set off against the Sentence of Imprisonment: Under this, section 428 of Cr.P.C has been included that if a person already undergone by detention during the process of justice, then the period he was detained shall be set off from the period of imprisonment imposed on accused.
265(J)- Savings: It talks about the provision of the chaptershall have effect, not withstanding anything inconsistent therewith contain any other provision of this code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this chapter XXI-A.
265(k)- Statement of Accused not to be used: The statement given by the accused must not be used in any other purpose except under this chapter.
265(L)- Non-Application of the Chapter: It shall not apply to any juvenile defined in clause (K) of section 2 of Juvenile Justice (Care and Protection of Children) Act, 2000.
[1] 2000 Cr. L.J. 384(386); AIR 2000 SC 164
[2] Criminal Amendment Act 2005
