PLEA BARGAININGPLEA BARGAINING

PRESENTED BY:PRESENTED BY:

MAHESH S. LONEMAHESH S. LONE

MEANING In Black's Law Dictionary, plea bargaining In Black's Law Dictionary, plea bargaining

has been defined as, “ the process whereby has been defined as, “ the process whereby the accused and the prosecutor in a criminal the accused and the prosecutor in a criminal case work out a mutually satisfactory case work out a mutually satisfactory disposition of the case subject to Court disposition of the case subject to Court approval. It usually invovles the accused approval. It usually invovles the accused pleading guilty to a lesser offence or to only pleading guilty to a lesser offence or to only one or some of the counts of a multi-count one or some of the counts of a multi-count indictment in return for a lighter sentence indictment in return for a lighter sentence than that possible for the graver charge.”than that possible for the graver charge.”

ORIGINORIGIN

Plea bargaining is a concept that Plea bargaining is a concept that originated in the United States in 1970s originated in the United States in 1970s and it has evolved over the ages to and it has evolved over the ages to become a prominent feature of the become a prominent feature of the American Criminal Justice system. American Criminal Justice system. Plea bargaining is the pre trial Plea bargaining is the pre trial negotiation between the defendant and negotiation between the defendant and prosecution during which accused prosecution during which accused pleads guilty in exchange for certain pleads guilty in exchange for certain concession by the prosecutor.concession by the prosecutor.

OPPOSITIONOPPOSITION

This usually involves negotiations to This usually involves negotiations to reduce either the sentence or the reduce either the sentence or the seriousness of the charge.the length of seriousness of the charge.the length of their sentence. The constitutional their sentence. The constitutional validity of plea bargaining was validity of plea bargaining was considered by the US courts in the considered by the US courts in the Landmark decision in Brady v United Landmark decision in Brady v United States 397 U.S 742 where the Court States 397 U.S 742 where the Court upheld the constitutionality of plea upheld the constitutionality of plea bargaining. bargaining.

NATURENATURE

In the United States, the accused has three In the United States, the accused has three options with respect to pleas; guilty, not guilty options with respect to pleas; guilty, not guilty or plea of nolo contendere . In plea of nolo or plea of nolo contendere . In plea of nolo contendere the defendant answers the charges contendere the defendant answers the charges made in the indictment by declining to dispute made in the indictment by declining to dispute or admit the fact of his or her guilt. The or admit the fact of his or her guilt. The defendant who pleads nolo contendere submits defendant who pleads nolo contendere submits for a judgment fixing a fine or sentences the for a judgment fixing a fine or sentences the same as if he or she had pleaded guilty. The same as if he or she had pleaded guilty. The difference is that a plea of nolo contendere difference is that a plea of nolo contendere cannot later be used to prove wrongdoing in a cannot later be used to prove wrongdoing in a civil suit for monetary damages, but a plea of civil suit for monetary damages, but a plea of guilty can.guilty can.

POSITION IN INDIAPOSITION IN INDIA

The Indian concept of plea bargaining is The Indian concept of plea bargaining is inspired from the Doctrine of Nolo inspired from the Doctrine of Nolo Contendere. It has been incorporated by the Contendere. It has been incorporated by the legislature after several law commission legislature after several law commission recommendations. This doctrine has been recommendations. This doctrine has been considered and implemented in a manner considered and implemented in a manner that takes into account the social and that takes into account the social and economic conditions prevailing in our economic conditions prevailing in our country.country.

The Indian concept of plea bargaining is inspired from the Doctrine of Nolo Contendere. It has

LAW COMMISSIONLAW COMMISSION

The Law commission in its 142 report had outlined The Law commission in its 142 report had outlined a scheme for plea bargaining in India .In its report a scheme for plea bargaining in India .In its report the commission pointed out that in several cases the commission pointed out that in several cases the time spent by the accused in jail before the time spent by the accused in jail before commencement of trial exceeds the maximum commencement of trial exceeds the maximum punishment which can be awarded to them if found punishment which can be awarded to them if found guilty, The commission in its 154th Report, the Law guilty, The commission in its 154th Report, the Law Commission reiterated the need for remedial Commission reiterated the need for remedial legislative measures to reduce the delays in the legislative measures to reduce the delays in the disposal of criminal trials and appeals and also to disposal of criminal trials and appeals and also to alleviate the suffering of under trial prisoners. The alleviate the suffering of under trial prisoners. The 177th Report of the Law Commission, 2001 also 177th Report of the Law Commission, 2001 also sought to incorporate the concept of plea-sought to incorporate the concept of plea-bargaining as suggested in the 154 report.bargaining as suggested in the 154 report.

PRIOR TO AMENDMENTPRIOR TO AMENDMENTThe Indian judiciary has been reluctant in applying this The Indian judiciary has been reluctant in applying this

concept prior to the 2005 amendment and has on various concept prior to the 2005 amendment and has on various occasions rejected the concept of plea bargaining. This was occasions rejected the concept of plea bargaining. This was evident since the courts continued giving decisions evident since the courts continued giving decisions unfavorable to plea bargaining even after such unfavorable to plea bargaining even after such recommendations.recommendations.

The earliest cases in which the concept of plea bargaining The earliest cases in which the concept of plea bargaining was considered by the Hon’ble Court was Madanlal was considered by the Hon’ble Court was Madanlal Ramachander Daga v. State of Maharashtra AIR 1968 SC Ramachander Daga v. State of Maharashtra AIR 1968 SC 1267 in which it observed: 1267 in which it observed:

““In our opinion, it is very wrong for a court to enter into a In our opinion, it is very wrong for a court to enter into a bargain of this character bargain of this character Offences should be tried and Offences should be tried and punished according to the guilt of the accused. If the Court punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it thinks that leniency can be shown on the facts of the case it may impose a lighter sentence.”may impose a lighter sentence.”

In Muralidhar Megh Raj v. State of Maharashtra AIR 1976 In Muralidhar Megh Raj v. State of Maharashtra AIR 1976 SC 1929 the Hon'ble Apex Court continued to SC 1929 the Hon'ble Apex Court continued to disapprove the concept of plea bargaining when the disapprove the concept of plea bargaining when the appellants pleaded guilty to the charge where-upon the appellants pleaded guilty to the charge where-upon the trial Magistrate, sentenced them each to a piffling fine. trial Magistrate, sentenced them each to a piffling fine. The Court observed: The Court observed:

““To begin with, we are free to confess to a hunch that the To begin with, we are free to confess to a hunch that the appellants had hastened with appellants had hastened with their pleas of guilty their pleas of guilty hopefully, induced by an informal, tripartite hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo understanding of light sentence in lieu of nolo contendere stance.”contendere stance.”

In Ganeshmal Jasraj v. Government of Gujarat and another AIR 1980 In Ganeshmal Jasraj v. Government of Gujarat and another AIR 1980 SC 264 the Hon'ble Apex Court considered the effect of plea SC 264 the Hon'ble Apex Court considered the effect of plea bargaining on evidence and order of conviction when it bargaining on evidence and order of conviction when it observed: observed:

““There can be no doubt that when there is an admission of guilt There can be no doubt that when there is an admission of guilt made by the accused made by the accused as a result of plea bargaining or otherwise, as a result of plea bargaining or otherwise, the evaluation of the evidence by the Court is likely to become a the evaluation of the evidence by the Court is likely to become a little superficial and perfunctory and the Court may be disposed little superficial and perfunctory and the Court may be disposed to refer to the evidence not critically with a view to assessing its to refer to the evidence not critically with a view to assessing its credibility but mechanically as a matter of formality in support of credibility but mechanically as a matter of formality in support of the admission of guilt. The entire approach of the Court to the the admission of guilt. The entire approach of the Court to the assessment of the evidence would be likely to be different when assessment of the evidence would be likely to be different when there is an admission of guilt by the accused....In the instant there is an admission of guilt by the accused....In the instant case, it is true that the learned magistrate did not base his order case, it is true that the learned magistrate did not base his order of conviction solely on the admission of guilt made by the of conviction solely on the admission of guilt made by the appellant, but it is clear from his judgment that his conclusion appellant, but it is clear from his judgment that his conclusion was not unaffected by the admission of guilt on the part of the was not unaffected by the admission of guilt on the part of the appellant and in the circumstances, it would not be right to appellant and in the circumstances, it would not be right to sustain the conviction of the appellant.”sustain the conviction of the appellant.”

Subsequently in Kasambhai Ardul Rehmanbhai Shaikh Subsequently in Kasambhai Ardul Rehmanbhai Shaikh v.State of Gujarat AIR 1980 SC 854 the Hon'ble SC held:v.State of Gujarat AIR 1980 SC 854 the Hon'ble SC held:

“ “It would be contrary to public policy to allow a It would be contrary to public policy to allow a conviction to be recorded against an conviction to be recorded against an accused by accused by inducing him to confess to a plea of guilty on an inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be clearly unreasonable, unfair and unjust and would be violative of Art. 21 of the Constitution.It would be violative of Art. 21 of the Constitution.It would have the effect of polluting the pure fount of would have the effect of polluting the pure fount of justice because it might induce an innocent accused to justice because it might induce an innocent accused to plead guilty to suffer a light and inconsequential plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous punishment rather than go through a long and arduous criminal trial.”criminal trial.”

In Kachhia Patel Shantilal Koderlal v.State of Gujarat and In Kachhia Patel Shantilal Koderlal v.State of Gujarat and another,[1980] 3 SCC 120 .The Hon'ble SC held that another,[1980] 3 SCC 120 .The Hon'ble SC held that practice of plea bargaining is unconstitutional, illegal practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and and would tend to encourage corruption, collusion and pollute the pure fount of justice.pollute the pure fount of justice.

In State of U.P v. Chandrika AIR 2000 SC 164 The Hon’ble In State of U.P v. Chandrika AIR 2000 SC 164 The Hon’ble Apex Court observed:Apex Court observed:

““Mere acceptance or admission of the guilt should not be Mere acceptance or admission of the guilt should not be a ground for reduction of a ground for reduction of sentence. Nor can the sentence. Nor can the accused bargain with the Court that as he is pleading accused bargain with the Court that as he is pleading guilty sentence be reduced.”guilty sentence be reduced.”

APPLICABILITYAPPLICABILITY

This remedy is available only in respect of This remedy is available only in respect of offences for which the punishment is less offences for which the punishment is less than seven years of imprisonment. than seven years of imprisonment.

It excludes offences for which punishment of It excludes offences for which punishment of death or of imprisonment for life or of death or of imprisonment for life or of imprisonment for a term exceeding seven imprisonment for a term exceeding seven years has been provided under the law for years has been provided under the law for the time being in force and those affecting the time being in force and those affecting socio- economic conditions and offences socio- economic conditions and offences committed against a woman or child less committed against a woman or child less than fourteen years than fourteen years

SOCIO ECONOMIC OFFENCESSOCIO ECONOMIC OFFENCES

As per notification of the Ministry of Home As per notification of the Ministry of Home Affairs dated 11 th July 2006 following Affairs dated 11 th July 2006 following offences are notified which are outside the offences are notified which are outside the purview of plea bargaining.purview of plea bargaining.

1. Dowry Prohibition Act, 1961.1. Dowry Prohibition Act, 1961.

2. The Commission of Sati Prevention Act, 2. The Commission of Sati Prevention Act, 1987.1987.

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

4.The Immoral Traffic (Prevention) Act, 1956.4.The Immoral Traffic (Prevention) Act, 1956.

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

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

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

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

9.Offences with respect to animals in 9.Offences with respect to animals in Schedule I and part II of Schedule II as well Schedule I and part II of Schedule II as well as offences related to altering of boundaries as offences related to altering of boundaries of protected areas under Wildlife (Protection) of protected areas under Wildlife (Protection) Act, 1972.Act, 1972.

10.The Schedule Castes and Scheduled Tribes 10.The Schedule Castes and Scheduled Tribes (Prevention of Atrocities ) Act, 1989.(Prevention of Atrocities ) Act, 1989.

11.Offences mentioned in Protection of Civil 11.Offences mentioned in Protection of Civil Rights Act, 1955.Rights Act, 1955.

12.Offences mentioned in sections 23 to 28 of 12.Offences mentioned in sections 23 to 28 of the Juvenile Justice (Care and Protection of the Juvenile Justice (Care and Protection of Children ) Act, 2000.Children ) Act, 2000.

13.The Army Act, 1950.13.The Army Act, 1950.

14.The Air Force Act, 1950.14.The Air Force Act, 1950.

15.The Navy Act, 1957.15.The Navy Act, 1957.

16.Offences specified in sections 59 to 81 and 16.Offences specified in sections 59 to 81 and 83 of the Delhi Metro Railway (Operation 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002. and Maintenance) Act, 2002.

17.The Explosives Act, 1884.17.The Explosives Act, 1884.

18.Offences specified in sections 11 to 18 of 18.Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) the Cable Television Networks (Regulation) Act, 1955.Act, 1955.

19.Cinematograph Act, 1952.19.Cinematograph Act, 1952.

WHO CAN FILE APPLICATIONWHO CAN FILE APPLICATION

-ANY ACCUSED PERSON ABOVE THE AGE -ANY ACCUSED PERSON ABOVE THE AGE OF 18 YEARS AND AGAINST WHOM TRIAL OF 18 YEARS AND AGAINST WHOM TRIAL IS PENDING.IS PENDING.

-THE ACCUSED SHOULD NOT HAVE BEEN -THE ACCUSED SHOULD NOT HAVE BEEN CONVICTED EARLIER FOR SAME OFFENCE. CONVICTED EARLIER FOR SAME OFFENCE.

CONTENTS OF APPLICATION

-BRIEF DESCRIPTION OF THE CASE;-BRIEF DESCRIPTION OF THE CASE;

-SHOULD MENTIONED THAT APPLICATION IS -SHOULD MENTIONED THAT APPLICATION IS MADE VOLUNTARY.MADE VOLUNTARY.

-SHOULD MENTIONED THAT HE IS NOT -SHOULD MENTIONED THAT HE IS NOT PREVIOUSLY CONVICTED.PREVIOUSLY CONVICTED.

-SHOULD MENTIONEDHIS VERSION OF -SHOULD MENTIONEDHIS VERSION OF MUTUALLY SATISFACTORY DISPOSITION.MUTUALLY SATISFACTORY DISPOSITION.

-SUPPORTED WITH AFFIDAVIT;-SUPPORTED WITH AFFIDAVIT;

PROCEDUREPROCEDURE

-COURT WILL ISSUE NOTICE TO PUBLIC PROSECUTOR -COURT WILL ISSUE NOTICE TO PUBLIC PROSECUTOR AND COMPLAINANT/VICTIM.AND COMPLAINANT/VICTIM.

-ON FIXED DATE COURT WILL EXAMINE ACCUSED IN -ON FIXED DATE COURT WILL EXAMINE ACCUSED IN CAMERA TO SATISFY ITSELF THAT APPLICATION CAMERA TO SATISFY ITSELF THAT APPLICATION ISVOLUNTARILY FILED.ISVOLUNTARILY FILED.

-IF COURT IS SATISFIED THAT APPLICATION IS FILED -IF COURT IS SATISFIED THAT APPLICATION IS FILED VOLUNTARILY THAN IT WILL GIVE TIME TO PUBLIC VOLUNTARILY THAN IT WILL GIVE TIME TO PUBLIC PROSECUTOR, COMPLAINANT / VICTIM AND PROSECUTOR, COMPLAINANT / VICTIM AND ACCUSEDDTO WORK OUT MUTUALLY ACCUSEDDTO WORK OUT MUTUALLY SATISFACTORY DISPOSITION.SATISFACTORY DISPOSITION.

-IF COURT FINDS THAT APPLICATION IS NOT -IF COURT FINDS THAT APPLICATION IS NOT MADEVOLUNTARILY OR ACCUSED IS PREVIOUSLY MADEVOLUNTARILY OR ACCUSED IS PREVIOUSLY CONVICTED IT WILL REVERT BACK TO STAGE OF CONVICTED IT WILL REVERT BACK TO STAGE OF CASE.CASE.

GUIDELINES FOR MUTUAL GUIDELINES FOR MUTUAL SATISFACTORY DISPOSITIONSATISFACTORY DISPOSITION

COURT SHOULD ENSURE THAT WHOLE COURT SHOULD ENSURE THAT WHOLE PROCESS OF NEGOTIATION IS CARRIED PROCESS OF NEGOTIATION IS CARRIED ON VOLUNTARILY BY PARTIES ON VOLUNTARILY BY PARTIES PARTICIPATING IN MEETING. ACCUSED PARTICIPATING IN MEETING. ACCUSED MAY PARTICIPATE HIS PLEADER . SO ALSO MAY PARTICIPATE HIS PLEADER . SO ALSO IN COMPLAINT CASES THE COMPLAINANT IN COMPLAINT CASES THE COMPLAINANT OR VICTIM CAN PARTICIPATE HIS OR VICTIM CAN PARTICIPATE HIS PLEADER.PLEADER.

REPORTREPORT

If a mutual satisfactory disposition of the case If a mutual satisfactory disposition of the case has been worked out and such report shall has been worked out and such report shall be signed by the presiding officer of the be signed by the presiding officer of the Court and the parties in the Joint Meeting.Court and the parties in the Joint Meeting.

If no satisfactory disposition is made out, the If no satisfactory disposition is made out, the Court has to proceed with the case, by Court has to proceed with the case, by dropping the proceedings in plea bargain dropping the proceedings in plea bargain and start the proceedings from the stage, and start the proceedings from the stage, wherein the application is entertained. wherein the application is entertained.

JUDGMENTJUDGMENT

-WHERE MUTUALLY SATISFACTORY DISPOSITION OF THE -WHERE MUTUALLY SATISFACTORY DISPOSITION OF THE CASE IS WORKED OT THE COURT SHALL DISPOSE OF CASE IS WORKED OT THE COURT SHALL DISPOSE OF THE CASE IN FOLLOWING MANNER:THE CASE IN FOLLOWING MANNER:

-AWARD COMPENSATION TO VICTIM;-AWARD COMPENSATION TO VICTIM;

-HEAR PARTIES ON QUANTUM OF PUNISHMENT;-HEAR PARTIES ON QUANTUM OF PUNISHMENT;

-CAN GIVE BENEFIT OF PROBATION OF OFFENDERS ACT, -CAN GIVE BENEFIT OF PROBATION OF OFFENDERS ACT, 19581958

-IF MINIMUM PUNISHMENT IS PRESCRIBED UNDER LAW FOR -IF MINIMUM PUNISHMENT IS PRESCRIBED UNDER LAW FOR OFFENCE, IT MAY SENTENCE THE ACUSED TO HALF OS OFFENCE, IT MAY SENTENCE THE ACUSED TO HALF OS SUCH MINIMUM PUNISHMENT.SUCH MINIMUM PUNISHMENT.

-IT MAY AWARD ONE FOURTH OF THE PUNISHMENT. -IT MAY AWARD ONE FOURTH OF THE PUNISHMENT.

-ACCUSED IS ENTITLED FOR SET OFF .-ACCUSED IS ENTITLED FOR SET OFF .

FINALITY OFJUDGMENTFINALITY OFJUDGMENT

Once the court delivers judgment it is final Once the court delivers judgment it is final and no appeal will lie against such and no appeal will lie against such Judgment. However such Judgments are Judgment. However such Judgments are subject to challenge under Articles 226 and subject to challenge under Articles 226 and 227 of the Constitution before the High Court 227 of the Constitution before the High Court by filing Writ Petition and Article 136 of the by filing Writ Petition and Article 136 of the Constitution before the Supreme Court by Constitution before the Supreme Court by filing Special Leave Petition.filing Special Leave Petition.

THANK YOU.THANK YOU.