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PLEA BARGAINING:

A UNIQUE ALTERNATIVE

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SUBMITTED BY – RICHA SINGH AND AMBUJ KUMAR SONAL

ROLL NO – 161 AND 107

SEMESTER – VI TH

YEAR – 3 RD

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CHANAKYA NATIONAL LAW UNIVERSITY

PATNA, BIHAR.

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INTRODUCTION

Quality of justice suffers not only when an innocent person is punished or a guilty

person is exonerated, but when there is enormous delay in deciding the criminal

cases.1

A "plea bargain" is an agreement between the prosecutor, the defendant’s attorney

and the defendant. In return for the defendant entering a plea of guilty to a criminal

charge, the prosecutor agrees to recommend to the judge a particular penalty. Plea

bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise

go to trial.

Judiciary is the most important organ where people have faith. It is known for its

impartiality and independence in deciding the disputes. The Indian judiciary is, now a

days, regarded as the unsuccessful organ of the Indian Government system. Heavy

back-log of cases in the courts and inevitable delay in dispensing the justice has been

to such an extent that it is shaking public trust and confidence in the legal system and

it is tending to erode the quality of social justice and hampering the socio-economic

development of the country.2

Speedy trial is the essence of criminal justice and there can be no doubt that

delay in trial by itself constitutes denial of justice.3 The theory of "justice delayed is

justice denied" can be applied after seeing the Indian context. The lengthy trial

procedure takes years or sometimes decade to adjudge the proceeding. The factors

which really are the reason for such delays:

i) increasing number of litigation,

ii) courts overburdened with cases.

iii) number of judges in the Supreme Court, High Courts and subordinate Courts.1 Government of India, ministry of home affairs , “Report of the committee on reforms of criminal justice system,” vol.1, March 2000. 2 A.K.Sikri " Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA DEEP, Vol.__,2006,p.39-60.3 Hussainara Khatun v. State of Bihar, AIR 1979 SC 1360.

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Courts Overburdened4

By Oct.- 3, 2001 there were 2.03 crore backlog pending cases in District Court and

High Court. More than 80% cases were from seven states- Uttar Pradesh, Gujarat,

Bihar, Karnataka, Madhya Pradesh, West Bengal and Maharashtra. There were

35,57,637 case spending in different High Court of the country. Five lakh of them are

more than ten years old. Even the Supreme Court has 21,995 cases pending therein.

The Law Commission of India in its 120th Report(1987)5 observed that late disposal

of backlog cases is because of low judge per capita ratio in the country. The Indian

judges are roughly 10.5 judges per million whereas the figure is more than four times

in Australia, U.K., U.S.A. and Canada. There was also a suggestion for increase in

the number of judicial officers.

Because of overburdening of Courts with cases, there is gross neglect towards the

status of under trials. Flooding of cases led to increase in number of convicts and

over population of prisoners. Although there is a capacity of 2.56 lakh prisoners but

there is more than 5 lakh prisoners which are behind the prison.

The State govts. spends more Rupee 55 per day on each prisoner and annual

expenditure comes upto Rs 361 crore. If we could have adopted different method

(speedy trial) then the situation would have been totally different. The State

Government would be able to reduce the number of under trials in the jails and also

the huge expenditure could have been checked6.

These statistics reflect the ubiquity of plea bargaining. Plea bargaining involves the

prosecutor trading a reduction in the seriousness of the charges or the length of the

recommended sentence for a waiver of the right to trial and a plea of guilty to the

reduced charges. Both sides usually have good reasons for settlement. In a case in

which the evidence of guilt is overwhelming, the prosecution can avoid the expense

and delay of a trial by offering modest concessions to the defendant. When the

evidence is less clearcut the government can avoid the risk of an acquittal by agreeing

to a plea to a reduced charge. Because the substantive criminal law authorizes a wide

4 The survey is taken from CBI Bulletin, June- Dec., 2006, p. 14-19.5 Law Commission of India, 12oth Report on Manpower Planning in Judiciary: A Blue print , July 1987, pp. 2-3. 6 P.K.Singh "Plea Bargaining", CBI , Bulletin, June- Dec. 2008, p. 14.

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range of charges and sentences for typical criminal conduct, and because the

procedural law allows prosecutors wide discretion in selecting charges, the

prosecution can almost always give the defense a substantial incentive to plead guilty.

Even the famous jurist Nani Palkhivala has said,7 “The greatest drawback of the

administration of justice in India today is because of delay of cases………………….

The law may or may not be an ass, but in India, it is certainly a snail and our cases

proceed at a pace which would be regarded as unduly slow in the community of

snails. Justice has to be blind but I see no reason why it should be lame. Here it just

hobbles along, barely able to work.”

It is the policy and purpose of law to have speedy justice for which efforts are

required to be made to come to the expectation of the society of ensuring speedy

untained and unpolluted justice8. The problem of delay and backlog of cases is rather

more acute in criminal cases as compared to civil cases.9 The Criminal Law

(Amendment) Act 2005 has been introduced in order to eradicate challenges in

criminal cases.

India’s population is day by day increasing. This increase in population leads to

increase in number of detrimental acts. This increase in number of detrimental acts

has lead to the creation of many new policies. These policies in its practice requires

more number of litigation. As a result, courts are overburdened with cases. It is the

temptation that has led the legislature to incorporate the concept of Plea Bargaining in

India and hopefully the result will be satisfying in many aspects10.

7 Nani A. Palkhivala, “We the nation – lost decade (1994), UBS Publications, p. 215.8 Anil Rai v. Satte of Bihar, AIR 2000 SC 3173. 9 Supra 2.10 Supra p. 4.

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CONCEPT

Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet

become the subject of collateral review. Prosecutors refuse to file charges or dismiss

charges in a large number of cases. In the cases prosecutors choose to pursue, the

majority end not in trial by jury but by a plea of guilty or a successful motion to

dismiss. Statistics vary across jurisdictions, but it would not be uncommon for half of

all arrests to result either in no charges or in charges that are later dismissed, for 80

percent of the cases that are not dismissed to end in guilty pleas, and for the

remaining cases to be tried. The government typically wins a significant but not

overwhelming majority of criminal trials; a 70 percent conviction rate at trial would

not be unusual.The concept of plea-bargaining in our criminal justice system has been

taken from U.S. Legal System. A concept that has been imported from the west for

the speedy trial. The Parliament introduced Chapter XXI A in CrPC11 which talks

about its procedure and application.

The characteristics of the concept are:

A person accused of an offence may file an application for plea-bargaining in the

court in which such offence is pending for trial.12 The application for plea-bargaining

should be filed by the accused voluntarily.13 The proceedings are held ‘in camera’.

Time is given to the accused and the complainant for mutually satisfactory

disposition of cases including expenses, compensation etc. The secrecy of the matter

is maintained as to ensure that the statement made by the accused during plea-

bargaining shall be voluntary. The concept includes women and children below 14

years. Crimes with punishment of more than 7 years or the punishments which are

non compoundable under section 320, CrPC have been excluded from purview of

plea-bargaining.

11 Criminal Law (Amendment Act, 2005 ), inserted by Act 2 of 2008, Section-4, w.e.f.- 5.7.08.12 Section- 265 A (1)(a) of CrPC, 1973. 13 Section- 265 B (4) of CrPC, 1973.

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KINDS OF PLEA-BARGAINING:

The kinds of bargaining are as follows:

1. Charge bargaining

2. Fact bargaining

3. Sentence bargaining.

1. Charge bargaining: It is the defendant who has to come to plead guilty for

reduction of charges. It occurs when defendant pleads guilty to necessarily included

offences.14 For this element, the prosecutor may offer to amend the charges to a lesser

offense that carries a lesser penalty. An individual charged with burglary, a felony,

may be offered a chance to plead guilty to criminal trespass, which is a misdemeanor.

Alternatively, in return for a plea to a specific charge such as driving under the

influence, other charges arising out of the same event, perhaps driving on a

suspended license, might be dropped.

Charge bargains can be used to avoid mandatory minimum penalties if a charge is

changed to one that does not have the same minimums, but the facts fit the alternate

charge. The authority to alter charges is within the complete discretion of the

prosecutor.

2 .Sentence bargaining: In this instance, the prosecutor agrees to make a specific

recommendation to the judge of a sentence in return for a guilty plea. Most charges

carry a wide range of sentence possibilities. Given the range of possible outcomes,

many defendants prefer the certainty of a specific sentence rather than the uncertainty

of a sentence following a guilty verdict when the sentence is entirely at the discretion

of the judge. Generally, sentence bargains must be approved by the trial judge.

3.Fact bargaining – It involves negotiations and admissions of certain facts

stipulating to the truth and existence of provable fact, thereby eliminating the need

for the prosecutor to prove them.15 This is a little used possibility and often happens

in minor cases that may expose a defendant to civil liability to a crime victim. Fact

14 Daviv Levinson, Encyclopedia of crime and punishment (2003), vol.3, p.1147.15 Supra 7.

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bargaining involves an stipulation to certain facts or the introduction to certain

evidence, thereby eliminating the need for the prosecutor to have to prove them, in

return for an agreement not to introduce certain other facts into evidence. The

defendant may then technically maintain a plea of not guilty, though it is understood

he will be found guilty.

A guilty plea is an admission that may be used against a defendant in another court

proceeding as to liability for specific acts. A finding of guilty after a trial is not such

an admission. This process achieves a conviction for the prosecution without a full

trial, and avoids a court admission for the defendant. In some jurisdictions this same

result is achieved by a plea of no contest.

Elements of a valid Plea- agreement:

The accused is provided with many constitutional rights up until his guilty plea is

entered. For an agreement to be valid, the following elements must be present:

A voluntary waiver of constitutional rights.

A knowing waiver of these rights.

A factual basis for the charges to which the defendant is pleading.

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ORIGIN

It has the origin in U.S. and before the 1920’s, plea-bargaining was scarcely

acknowledged to exist in the society.16 It was described as unfair and inaccurate (466

F 2d 735) and even if its constitutionality has been challenged in Harvard Law

Review (1387).17

Later on rule-18 of Bar Association approved standards relating to guilty plea (1968)

and recommended for plea of guilty for the accused. The validity of plea bargaining

have been upheld saying that it extends benefit to the accused that in turn, extends the

benefits to the accused.18 In Santa Bello v. New York,19 the court said that it is

essential for the administration of justice and when properly managed, was to be

encouraged. The court should not act as a facilitator of the bargain.20

In 1976, even Justice Potter Steward has stated that the heart and soul of Plea

Bargaining is in the benefit to all concerned in a criminal case21.

At present in USA, the plea bargaining is widely prevalent; it has become a major

part in criminal justice system, it plays the significant role in the disposal of criminal

cases. It can be rebutted in many ways but, the agreements attracts three important

issues.

i) The importance of Plea Bargaining to the competence of the system.

ii) How the practice affect the liability of the accused.

iii) The extend to which Plea Bargaining represents the proper role of the

courts and the criminal justice as a whole.

16 Baldevbhai P. Patel, “plea-bargaining – travesty of justice or necessary evil,” Gujarat Law Herald, 2007 (1), p. 16 to 21. 17 Supra -4.18 Brady v. US, 397 U.S. 742 (1970).19 404 US 257(1971).20 Supra 7.21 Blackledge v. Allison, 431 US 63 ( 1977).

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GROWTH OF PLEA BARGAINING IN INDIA: JUDICIAL REVIEW

Here, a crime is a way against the society and state. And the negotiation between the

wrongdoer and the aggrieved party or with the state was held unconstitutional and

illegal terming, it to be against the public policy22. Article 21 has been put for in

support of the accused as he would not be getting fair and reasonable opportunity to

defend the case. In number of cases23the Supreme Court has set aside High Court and

remanded the matter to the Judicial Magistrate for trial of the accused in accordance

with law as it comes to the conclusion that the conviction and sentence were based on

a coerced admission of guilt as a result of Plea bargaining. But after the amendment

in CrPC in 2005, there is a change in the criminal justice. The time has come to take

it as norm rather than exception in Criminal Justice system.

The justice has to be provided in the reasonable time but

the backlog of cases has been really questioning the faith of judiciary which people

have in it. Judges are second to God, efforts should be made to strengthen this belief.

Plea bargaining is such a process through which criminal justice system can be

improved. It has more pros than cons and the legislature has applied in India as in

such a manner that minimum misuse can be done. The crime in our country has been

really increasing and it is adding up as the day passes. Without the use of plea-

bargaining the already over-crowded prisons would be even worse.24

22 Kachhia Patel Shantilal Koderlal v. State of Gujrat and Another ( 1980) 3 SCC 121; UOI v. V. Jasbhai and Another 1981 (8) ELT 902 (MP), State of Gujarat v. Union Bhikhu Prajapati 1992 Cri LJ 626.23 Ganeshmal Jashraj v. Govt. of Gujarat, 1980 Cri LJ 208: AIR 1980 Sc 264, Trippaswamy v. State of Karnataka, AIR 1983 SC 747. 24 Supra 2.

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EFFECT OF PLEA BARGAINING

In lieu to remove the backlog cases, the individual and the collective goal in regard to

plea-bargaining can only be achieved when judges, public prosecutors, accused,

investigating officers and the victims co-operate and work together.

It leads to minimum risks of undesirable results for either parties; avoid the

uncertainty of the trial. The reason for plea-bargaining by either side may be several

and are as follows:

1.Plea Bargaining In respect to victims:

Although the crime is against the state and the society but it is ultimately the victim

which need to be satisfied. This plea-bargaining has come up as a “victim oriented

reform” in the criminal justice system. Perhaps, it is the first time that the

recommendation and suggestion of law commission in CrPC has been implemented

for taking care of the interest of the victim.25It provides greater respect and

consideration towards the victim and their rights.26 There is a scheme for compulsory

compensation; and also satisfactory disposition of the case. The plea bargaining also

mandates for giving compensation to the victims of the crime. When the process is

complete and the quantum of punishment and possibility of the probation is finished,

we can say that the victims are not the forgotten actor rather they have become a key

player in the criminal justice system.27 The right of the victims are better upheld; and

they do not have to satisfy himself with the court decision. They can bargain over the

court’s decision.

The victim does not have to produce evidence in the Court and thus led to

reduction in anxiety to the victims and the unpleasantness of hearing all details of

crime analyse in length in public28. For those who do give evidence the process is

often stressful29. Due to Plea bargaining the victim may even avoid the stress and

publicity of trial; and even the court's time is saved.

25 Supra 2.26 Ibid at 26.27 Attorneys Paul Bergman & Sara J. Berman- Barett, “The criminal law handbook: Know your rights, survive the system, (1997) Berkkeley : nolo press. 28 Ashworth & Redmayne, "The Criminal Process" ed. 3rd, p. 283. 29 J.Morgan and L.Zedner," Child victims: crime, impact, and criminal justice", 1992.

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2.Plea bargaining In respect to Accused:

The accused are the most benefited person of Plea Bargaining when they confess

about the crime. They can even save the Attorney's fee if they are represented by

the Private Counsel. The time consumed in Plea Bargaining is always less as

compared to take the case in trial. The other benefits are30:

i) Getting Out of Jail.

ii) Resolving the Matter Quickly.

iii) Having Fewer or less serious offences on One's record

iv) Avoiding hassles of finding a good lawyer for preparing for trial.

v) Avoiding Publicity.

3.Plea Bargaining in respect to Judges and Prosecutors:

Many judges and Prosecutors get powerful incentive because of crowded calendars

and overburdening of Prisons. Plea Bargaining help court and prosecutors to manage

caseloads31. Judge even presides effective trials because of Plea bargaining, minimise

risk of ruling being overturned on appeal; and to avoid the necessity of making ruling

during trial32.

30 Supra note 12.31 Stetan, J Kapsch," Plea Bargaining", The guide to American Law: Everyone's legal Encyclopedia, Minneapolis, MN; West, 1998. 32 http:// criminal. Findlaw.com/articles// 1491.html ( last visited on 26/10/2006, as reported in Nyaya Deep).

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CAUSES OF CONCERNED IN PLEA BARGAINING

After seeing the above situation the model of Plea Bargaining need to have

involvement of three important benefits33:

i) Increasing the predictability of Plea Bargaining,

ii) Enhancing the accuracy and fairness of the Plea.

iii) Introducing more openness and transparency in the Plea Negotiations.

CRITICISM

Advocates or attorneys, basically the criminal lawyers, are opposing the plea-

bargaining process. As this process is an alternative to the litigation, the prosecutor or

the defendant may avoid to engage an attorney. So, the criminal lawyers are not in

favour of this process. But, the question arises, whether this process should engage

the litigating attorneys? Attorneys know the court process, the prosecutors and most

importantly, how the law works. When an attorney reviews your case, he or she may

find potential legal issues that can result in evidence being excluded or your case

being dismissed. If your case goes to jury trial, an attorney will know how to prepare

for trial and what needs to be proved. The burden in a criminal case is always on the

government to prove your guilt beyond a reasonable doubt. Your attorney does not

have to put on any evidence, however he or she does need to cross-examine the

government's witnesses. Cross-examination is a skill, and good cross-examination is

very effective.

Although the legislature has adopted the concept of Plea Bargaining with certain

reservation and cautions. The criticism of this Plea Bargaining are basically of two

types: Firstly, the defendants loose up their constitutional rights eg. Right to trial,

Right to appeal as guaranteed by CrPC, right to fair procedure (as it should be just,

fair and reasonable, right to equality. Secondly, it effect on sentencing policy as it

point out that society's interest in appropriate punishment for crime is reduced by Plea

Bargaining34.Its also being criticised by saying that there is reduction in deterrence as

criminal spend less time in jail.

33 Jenia Iontcheva Turner, " judicial Participation in Plea Negotiation: A Comparative View:Winter 2006, The American Journal of Comparative law, Vol. 55(1), p.199.34 Supra 2.

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It can be rebutted by saying that long processing times are not

only costlier in jail time and psychological wear tear, but also tend to remove the

probability of conviction35.

CONCLUSION

The general public tends to regard plea bargaining as too lenient.

  The defense bar and others of like mind think it too coercive. 

35 Ibid 36.

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                                                                                                           --  George Fisher

Whether plea bargaining is an effective method of delivering justice has been a hot

burning topic which needs to be handled with proper care and caution. In the modern

field of criminal jurisprudence, which is still in its infant stage, it is very well needs

to be answered as to how is it going to act as a tool for providing justice?

To save from miscarriage of justice, following safeguards must be followed by all

the player of the process36-

Judicial independence and impartiality

Complete and timely disclosure of prosecution case

Complete record of disposition and discussions to be maintained to promote

consistency and transparency

To be ensured that the views of victim and investigating agency are solicited

and also to ensure their understanding of the agreement

Plea must be voluntarily and there must be awareness of circumstances and

likely consequences.

Due to unloading of backlog cases, the jails will not be over-packed. The

constitutional obligation to provide speedy trial is also being fulfilled; reduction in

the number of under trial prisoners. Due to plea-bargaining, the faith of the people in

criminal justice system can be regained and crime rate can also be decreased. The

plea-bargaining can also reduce the serious congestion in the courts. By the words of

Earn Warren, “It is the spirit and not the form of law that keeps the justice alive. So,

the proceeding must be fair and reasonable to have best results.

BIBLIOGRAPHY

BOOKS REFERRED:

1. Batuk Lal, “Commentary on Criminal Procedure,” 4th ed., Vol-2, Orient

Publishing Company.

36 Supra 2.

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2. DN Sen, “Code of criminal procedure,” Vol-2, Premier Publishing Company.

3. Sudipta Sarkar & VR Manohar, “Sarkar’s Code of Criminal Procedure,” 9th

ed., 2007, Wadhwa Publications.

4. YV Chandrachud & VR Manohar, “R&D Commentary on Criminal

Procedure Code,” 18th ed., 2006, Wadhwa Publications.

ARTICLES REFERRED:

1. Shri Baldevbhai P.Patel,” Plea Bargaining- Travesty of Justice or Necessary

Evil?”, Gujarat National Law University, 2007 (1).

2. Chidananda Reddy S.Patil, “ Due Process Analyasis of Plea Bargaining”, 1

KUJLS (1998).

3. Justice A.K.Sikri, “Plea Bargaining”, Nyaya Deep, 2006 , p. 77.

4. Mishita Jethi’ “Bargaining of Constitutional Rights: An Analysis of Chapter

XXIA of the Criminal Procedure Code, 1973”.CriLJ, 2008, p. 27.

5. Shri Hrudayaballav Das, “ Introduction of the Concept of Plea Bargaining in

Criminal Administration of Justice”, The Cuttack Law Times, 1990, Vol 70,

p.25.

6. Shyam Kumar, “Plea Bargaining”, CriLJ 1999 , p.26.

7. Pankaj Kumar Singh, “Plea Bargaining”, CBI Bulletin, 2006(June- Dec.),

p.14.

8. V.K. Babu Prakash, “Plea Bargaining- A mission that would fail”, K.L.T.

(July, 2007) , p. 14.

9. A.K.Sikri " Reforming Criminal Justice System: Can Plea Bargaining Be The

Answer?, NYAYA DEEP, Vol.__,2006,p.39-60.

10. Tanuj Hazari," Plea Baragining : A Mutually Satisfactory Disposition or Deal

in Justice", Madras Law Journal, 2008 ,Vol-1,p.56.

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