Plea Bargain

What is a Plea Bargain?

It is an active negotiation process whereby an offender is allowed to confess his guilt in court ( if he so desires) in exchange for a lighter punishment that would have been given for such an offense. It usually occurs before trial but may occur at any time before a judgment is rendered. The practice of “Plea Bargaining” in America goes back a century or more, one study found it to be present in the 1800s in Alameda County, California. Judges in the county even talked about the way they gave credit for guilty pleas. Plea Bargaining was in no way as prevalent as it is now, but by no means was it rare.

As stated Black’s Law Dictionary, plea bargaining is:

“The process whereby, the accused and the prosecutor, in a criminal case, work out a mutually disposition satisfactory of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offences or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”

Plea bargaining may be defined as an agreement in a criminal case between the prosecution and the defense by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally made the accused aware that his sentence will be minimized, if the accused pleads guilty. In other words, it is an instrument of criminal procedure which reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases.

Official Definition of a Plea Bargain

Plea Bargain as Defined by Law Commission Reports

142nd Law Commission Report

142^nd Law Commission Report, which recommended incorporation of plea bargaining in the Indian Legal Justice System defined “Plea Bargaining” as “ …pre-trial negotiations, usually conducted by the counsel and the prosecution, during which the defendant agrees to plead guilty in exchange for certain concessions by the Prosecutor …”

It further explicated on the distinction between “charge-bargaining” and “sentence bargaining”. The former refers to a promise by the prosecutor to dismiss or reduce some of the charges brought against the defendant in exchange for a guilty plea. The latter refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.

154th Law Commission Report

Plea Bargaining was introduced in India by an amendment of the Code of Criminal Procedure in 2005 by the Criminal Law (Amendment) Act, 2005. It allows plea bargaining for offenses with punishment upto seven years imprisonment. But, it excludes offenses affecting the socio-economic condition of the country or offenses committed against a woman or a child below the age of fourteen are excluded.

The Law Commission of India beneath the Chairmanship of Justice K. Jayachandra Reddy gave his 154th Report on Cr.P.C. 1973 (Act No. 2 of 1974) in the year 1996, in this Report, the Law Commission examined the Cr.P.C. with a view to doing a comprehensive revision of the code. The plea bargaining concept is discussed in separate Chapter XIII. The Commission discussed the issue of pendency and problem of undertrial prisoners and has given the following recommendation in para 9 of the Report.: On Reform of Criminal Justice System, in 2000 The Ministry of Home Affairs, Government of India constituted a Committee. This Committee beneath the Chairmanship of Justice V.S. Malimath presented its Report in the year 2003. Further, this committee is known as the Criminal Justice Reform Committee or Malimath Committee (hereinafter Malimath Committee).

In this Report, in Part I. Fundamental Principles, Chapter 6 is on victim to Justice. In this Chapter, Committee stated that: “The Committee is in favour of giving the role to the victim in the negotiation leading to settlement of criminal cases either through Courts, Lok Adalats or Plea bargaining.”the Malimath Committee briefly discussed on plea bargaining and provisions of compounding of offences and suggested for implementation of plea bargaining. The Parliamentary Standing Committee was constituted on 5th August 2004, on Home Affairs by Rajya Sabha, under the Chairmanship of Smt. Sushama Swaraj. The Committee held a discussion on Criminal Law (Amendment) Bill, 2003 and presented its 111th Report to Rajya Sabha on 2nd March 2005 and Lok Sabha on 4th March 2005. In this Report Committee recommended recommendations regarding plea bargaining as follows: “The Committee even keeping in mind the views of the witnesses on plea bargaining consider that as a pragmatic approach to management of crime and streamlining of the criminal justice administration under a system burdened with three crore pending cases, some dispensations which are fair, just and reasonable can be considered. However, it is of the strong view that this provision of plea bargaining should be introduced only after putting in place the Directorate of Prosecution as envisaged in the Code of Criminal Procedure (Amendment) Bill, 1994 and endorsed by the Committee. It feels that there is no rational for introducing plea bargaining in the absence of the institution of the independent Directorate of Prosecution and empowering courts to settle the cases through ‘plea bargaining.’ Thus the Parliamentary Committee also insisted and suggested for insertion of provisions of plea bargaining in Cr.P.C.

Legal Provisions Related to Plea Bargaining

Plea Bargaining As Envisaged In the Code of Criminal Procedure

CHAPTER XXIA of Cr.P.C. (correspondingly, Chapter XXIII of the BNSS) contains provisions regarding Plea Bargaining in India, from section 265A to 265L establish the procedure for plea bargaining. Requests for Plea Bargaining can be initiated only at the stage of cognisance of the offense by the court. The accused has to initiate the procedure under Section 265-B (2), once the court is satisfied that the accused had voluntarily made the application, the same will be processed. Further section 265-C and 265-D lays down guidelines for mutually satisfactory disposition of the case.

Under section 265A  the scheme laid down in CrPC, a plea bargain may be made by an accused at the following stages-

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

However, offenses that have impacted socio-economic conditions of the country or have been committed against a woman or a child of below 14 years of age have been kept out of the purview of the application of this chapter.

In exercise of the powers conferred under sub-section (2) of Section 265-A of the Code of Criminal Procedure, 1973, the Central Government hereby determine the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of Section 265-A of the said Act, namely,—

(i) Dowry Prohibition Act, 1961

(ii) The Commission of Sati Prevention Act, 1987

(iii) The Indecent Representation of Women (Prohibition) Act, 1986

(iv) The Immoral Traffic (Prevention) Act, 1956

(v) Protection of Women from Domestic Violence Act, 2005

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

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

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

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

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

(xi) Offences mentioned in the Protection of Civil Rights Act, 1955

(xii) Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000

(xiii) The Army Act, 1950

(xiv) The Air Force Act, 1950

(xv) The Navy Act, 1957

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

(xvii) The Explosives Act, 1884

(xviii) Offences specified in Sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995

(xix) Cinematograph Act, 1952

Section 265B defines how the application for a plea bargain has to be made by the accused, the court has to be satisfied that the application has been made voluntarily by the accused and then it shall provide the prosecutor with some time to reach a mutually satisfactory disposition of the case.

Guidelines for this mutually satisfactory disposition of the case are given under Section 265C, further under section 265D the court will have to prepare a report of the disposition and the procedure for the disposal of the case has been given under selection 265D.

Under section 265I, the period of detention undergone by the accused has to be set-off against the sentence of imprisonment.

Procedure Under Plea Bargaining

The enacted provisions of plea bargaining in Chapter XXI-A are absolutely simple and speedy than the regular trial. The accused files a plea bargaining application in trial court. On receiving an application, the court examines the accused in camera. The court ensures that the application made by the accused is from his own free will or not. Then the court issues a notice to parties of the case to work out for mutually satisfactory disposition of the case. The negotiation of such mutually accepted settlement among the prosecution, victim and accused. On completion of settlement, the court awards cost to the victim as well as hears the parties on the period of sentence. The BNSS provides further remission of sentences in case of first time offenders under Section 293 of the BNSS. But when such settlement does not work out, then the court shall record the observation and further proceed to regular trial, as provided in Cr.P.C.

Flow chart of Procedural aspect of Plea Bargaining

In the procedure of plea bargaining, the court shall have all the powers like trial, bail, and other related authorities for the disposal of case as per provisions given in Cr.P.C. The provisions in Chapter XXI-A have a limited extent only. In plea bargaining cases, discretion is given to the court. As per provisions, the role of court is very important, which restricts excess power to the prosecution. These provisions are not applicable to social and economic offences, offences against women and child, offences where punishment is above 7 years imprisonment or life sentence or death.

The court in Re: Policy Strategy for grant of bail provided some suggestions for effectuating the provisions related to plea bargaining. The suggestions provided by the division bench regarding plea bargaining entail a structured approach to facilitate the disposal of criminal cases. The court proposed the selection of specific courts as pilot cases to identify suitable cases for plea bargaining. These courts are instructed to identify cases pending at pre-trial or evidence stages, involving offences with a maximum sentence of 7 years' imprisonment, excluding certain specified offences. Notices are to be issued to the parties involved, informing them of the court's intention to consider disposing of the cases through plea bargaining. Public Prosecutors are tasked with assessing the criminal antecedents of the accused, with only cases involving first-time offenders being considered. The court is directed to explain the provisions of plea bargaining to the accused, allowing them time to consider their options. In cases where the under trial is in judicial custody, the court is to facilitate the provision of legal aid and explain the available options to the accused. Additionally, a timeline of 4 months is stipulated for the entire process, encompassing training of judicial officers, identification of cases, notice to the parties, and consideration of the matter. These measures aim to expedite the disposal of criminal cases and provide opportunities for resolution through alternative mechanisms while upholding the principles of justice and fairness.

Types of Plea Bargaining

Plea Bargaining can be divided into three types- (1) Charge Bargaining; (2) Sentence Bargaining; and (3) Fact Bargaining. Each type involves implied sentence reductions but differs in the ways of achieving those reductions.

Charge Bargaining

The first category, i.e. charge bargaining, is such a bargain in which a defendant pleads guilty to reduced charges. It occurs when the defendant pleads guilty to necessarily included offenses.

Sentence Bargaining

Second type is Sentence bargaining which involves assurance of lighter or alternative sentences in return for a defendant’s pleading guilty. In the United States, it can only be granted if they are approved by the trial judge. It sometimes occurs in high profile cases, where the prosecutor does not want to reduce the charges against the defendant, usually for fear of how the newspapers will react. A sentence bargain may allow the prosecutor to obtain a conviction to the most serious charge, while assuring the defendant of an acceptable sentence.

Fact Bargaining

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.

Difference between plea bargain and a guilty plea The guilty plea means to confess or admit. The person who is charged with an offence admits his offence or responsibility. Simplest meaning of a guilty plea is “admission of offence by the accused”. After framing of charge at that time if the accused admits his guilt, then the judge shall record the plea of accused, convict him in his discretion, convict him thereon and trial ends at that moment.

Appearance in Official Database

Crime In India Report

Crime in India Report prepared by National Crime Records Bureau, contains statistics regarding disposal of cases through different methods, one of which is plea bargaining.

National Crime Records Bureau, “Crime in India Report” Ministry of Home Affairs, <https://ncrb.gov.in/sites/default/files/CII-2021/CII_2021Volume%202.pdf>

This table showcases court disposal of economic offenses in India.

National Crime Records Bureau, “Crime in India Report” Ministry of Home Affairs, <https://ncrb.gov.in/sites/default/files/CII-2021/CII_2021Volume%202.pdf>

This table shows court disposal of crimes against senior citizens in the year 2021, total number of plea bargains in this case were 158.

National Crime Records Bureau, “Crime in India Report” Ministry of Home Affairs, <https://ncrb.gov.in/sites/default/files/CII-2021/CII_2021Volume%202.pdf>

This table depicts state/ut wise crimes. While the aim of introducing Plea Bargaining in India was to relieve the courts of an insurmountable burden, the practical application of the same has largely remained on a very small level. The problem seems to be present more on an implementational level rather than legislative. Plea bargaining is also known as ‘plea deals’ or ‘plea agreements’ or ‘plea in mitigation’ or ‘copping a plea”.

Plea Bargaining In Other Countries

U.S.

“Plea bargaining is a defining, if not the defining, feature of the federal criminal justice system” According to the Bureau of Justice Statistics (2005), in 2003 there were 75,573 cases disposed of in federal district court by trial or plea. Of these, about 95 percent were disposed of by a guilty plea (Pastore and Maguire, 2003). While there are no exact estimates of the proportion of cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process.

Plea bargaining in US is permissible in all types of cases, including terrorism and murder cases too, but in a particular case, the prosecution may reject or to be instructed to reject negotiation. In the United States, only after negotiations among the accused as well as the prosecutor is over, application for plea bargaining is filed. Ascertaining the voluntariness of application is not binding on the judge.

Plea Bargaining forms a major part of the Federal Justice system in US in contrast to India where it has an otiose existence only to unburden the courts on paper.

Canada

The Supreme Court of Canada has recognized plea bargaining as an essential part of the exercise of Crown discretion; R. v. Anderson, 2014 SCC 41. Making an informed decision about which charges are to be proceeded upon and whether to accept a plea to a lesser charge are two examples set out in Anderson as being essential roles for a Crown Attorney.

In Canada, it appears that about 90% of criminal cases are resolved through the acceptance of guilty pleas: many of these pleas are the direct outcome of successful plea negotiations between Crown and defense counsel.

In Canada also, no restriction has been placed on the application of Plea Bargaining and can occur in all cases. Where a plea bargain has been implemented, the Crown and the accused effectively determine the nature of the charge(s) that will be laid. Since the nature and quantum of sentences are primarily based on the charge(s) brought against the accused, it is clear that the parties to a successful plea negotiation enjoy the de facto power to exercise a considerable degree of influence over the sentence that is ultimately imposed by the trial judge.

England

Plea Bargaining is not officially part of the system in England and Wales, except in complex fraud cases, but the judicial sentencing guidelines suggest those who plead guilty at the earliest hearing over other crimes may be given a reduction of up to a third of their sentence. There is a sliding scale of sentence reductions as criminal proceedings continue, and informal bargaining is widespread.

Problems with Plea Bargaining

Plea Bargain is a closed process which means that the data related to it will not be readily available and therefore much of the research is based on personal interviews, observations and questionnaires. Harris and Springer (1984) have categorized the relative perceived importance of factors that affect Plea Bargain:

1. Strength of the case (such as evidence, witnesses, etc.)

2. gravity of crime and harm to the victim and other aggravating/mitigating circumstances

3. Defendant's priors and antecedents

4. Extra-legal characteristics of the defendants such as age, sex, marital status, employment, etc.

Reasons for Its Failure

According to official data, a meagre 0.045% (4,816) of the criminal  cases were settled under the Plea-Bargain law in 2015 which further declined to 0.043% (4,887) in 2016. Moreover, number of  under-trial prisoners also show an upwards trajectory. Thus, the  Plea-Bargain law failed to achieve either of the two objectives that  it was intended to fulfil.

Reasons such as crude replication of an American model without making necessary modifications for an Indian socio-economic and cultural conditions (Biswas), extreme regulation on its application as compared to in US (Sekhri), have attributed to failure of Plea Bargain in India. Further more attractive options are available such as compounding of offences which avoids the stigma of “conviction” present in plea bargaining, or High Court can be.