Plea Bargaining: Victim-Oriented Reform

Article for Blog Post Writing Competition 2011 | by Satish Kumar & Rahul Dev

June 3rd, 201111:41 pm

Delay and heavy workloads in the courts have resulted in the informal system of pre-trial bargaining and settlement in the western countries, especially in the united states the system is commonly known as plea bargaining . A suspect may be advised to admit part or all the crimes charged in return for a specified punishment or rather than await trail with the possibility of either acquittal or a more serious punishment. Plea bargaining as most criminal justice reformers believe is more suitable , flexible and better fitted to the needs of  the society, as it might be helpful in securing admissions in cases where it might be difficult to prove the charge laid against the  accused.

On recommendation of Malimath Committee, code of criminal procedure has been recently amended by adding Chapter XXIA, consisting of 12 sections. The Central Government has notified the offences affecting the socio economic condition of the country, which have been kept out of the purview of plea bargaining. Not only will it expedite the disposal of cases, it may also result in adequate compensation for victim of the crime, since he along with prosecutor will be in position to bargain with the accused.

What is plea bargaining?

There is no perfect or simple definition of plea bargaining, as the term implies plea bargaining involves an active negotiation process where by an offender is allowed to confess his guilt in court (if he so desires) in exchange of a lighter punishment that would has been given for such an offence. Plea bargaining usually occurs prior to trial but may occur any time before a judgment is rendered.

From the point of view of the accused, it means that he trades conviction and a lesser sentence, for a long, expensive and tortuous process of undergoing trial where he may be convicted. In practice, it represents not so much of “mutual satisfaction” as perhaps “mutual acknowledgement” of the strengths or weaknesses of both the charges and the defenses, against a backdrop of crowded criminal courts and court case dockets. Thus, it involves an active negotiation process by which the accused offers to exchange a plea of guilty, thereby waiving his right to trial, fro some concessions in charges or for a sentence reduction.

A plea bargaining is in an agreement reached in a criminal case to finally settle it. In a case instituted on a police report, the parties to the agreement are the accused, the investigating officer, the prosecutor and the victim. All of them must agree to settle the criminal case in which the accused pleads guilty to the offence for which trial is pending. The agreement to settle a case must be under the guidance and supervision of the court.

Types of Plea Bargaining

Plea Bargaining can be divide into three types:-

  • Charge Bargaining
  • Sentence Bargaining
  • Fact Bargaining

Each type involves implied sentence reduction, but differs in the ways of achieving those reductions.

The first bargaining, i.e. charge bargaining, is such bargain in which a defendant pleads guilty to reduced charges. It occurs when defendant pleads guilty to necessarily included offences. Second type is sentence which involves assurance of lighter or alternative sentence 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. The third type of plea and least used negotiation is fact bargaining in which 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.

When are plea bargains made?

A plea bargain may be made by an accused when-

a)      The report has been forwarded by the officer in charge of police station under Section 173 Cr.P.C. alleging therein that an offence appear to have been committed by hi other than an offence for which punishment of death or of imprisonment of life or of imprisonment for a term exceeding seven years has been provided under the law for time being in force; or

b)      A Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complaint and witnesses under Section 200, issued the process under Section 204.

Who can file an application for plea bargaining?

  • Any accused person above the age of 18 years and against whom trial is pending, can file an application for plea bargaining.
  • But, there are some exceptions to this general rule.
  • The offence against the accused should carry a maximum sentence of less than 7 years.
  • The offence should not have been committed by the accused against a women or a child below the age of 14 years.
  • The accused should not have been covered under section 2(k) of juvenile justice (Care and Protection of Children) Act, 2000.
  • The accused should not have earlier been convicted for the same offence.
  • The offence could not affect the socio- economic condition of the country.

What offences affect the socio-economic condition of the country?

No plea bargaining is permitted in respect of the following:

  • Dowry Prohibition Act, 1961.
  • The Commission of Sati Prevention Act, 1987.
  • The Indecent Representation of Women (Prohibition) Act, 1986.
  • The Immoral Traffic (Prevention) Act, 1956.
  • Protection of Women from Domestic Violence Act, 2005.
  • Provisions of Fruit Products Order, 1955 (issued under the Essential Commodities Act, 1955).
  • The Infant Milk Substitutes, feeding Bottles and Infants Foods ( Regulation of Production, supply and distribution) Act, 1992.
  • Provisions of Meat Food Products Order, 1973 (Issued under the Essential Commodities Act, 1955).
  • The SC and ST (Prevention of Atrocities) Act, 1989.
  • Offences mentioned in the Protection of Civil Rights Act, 1955.
  • Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • The Army Act, 1950.
  • The Air Force Act, 1950.
  • The Navy Act, 1957.
  • The Explosives Act, 1884.
  • Cinematograph Act, 1952.

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

  • Getting out of jail
  • Resolving the matter quickly
  • Having fewer or less Serious Offences on One’s record
  • Avoiding Hassles
  • Avoiding Publicity

Position in India

Plea bargaining was introduced in India by amendment of the Code of Criminal Procedure starting January 11, 2009. This affects cases in which the maximum punishment is imprisonment for seven years; however, offences affecting the socio-economic condition of the country and offenses committed against a women or a child below the age of fourteen are excluded.

One reason plea bargains are favored is the it allows criminals who accept responsibility for their actions to receive consideration for their remorse and for not causing limited resources to be expended in further investigating and litigating their case.

In other cases, a defendant may be culpable in one criminal matter, but have information that would help in prosecuting a broader or mare significant matter. In such a case, prosecutors may agree to reduced charges or sentencing in the first matter, in exchange for the defendant’s co- operation in prosecuting the larger matter.

In still other cases, prosecutors may be certain of the guilt of the defendant in a matter, but the evidence may not be enough to convince a jury of the defendant guilt. It is of benefit to both the prosecutor and the defendant to arrange a plea bargain. This avoids the chance that the defendant could be found not guilty of or serious charges. Plea bargaining also allows prosecutors to settle cases without forcing a victim to endure a lengthy court process or have to testify in a jury trial.

Article by-

Satish Kumar and Rahul Dev

New Law College,  Bharati Vidyapeeth Deemed University, Pune

[Submitted as an entry for the Blog Post Writing Competition, 2011]

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