Plea bargaining

Introduction
• The famous saying “Justice delayed is justice denied” is the basis of the
concept of Plea bargaining
• The number of cases pending in the courts is shocking
• An agreement between accused and the prosecutor.
• Many countries have accepted this concept in their Criminal Justice System
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Plea Bargaining
• Plea bargaining is a pretrial negotiation between the accused and the prosecution where the
accused agrees to plead guilty in exchange for certain concessions by the prosecution.
• A bargain where the defendant pleads guilty to a lesser charge and the prosecutors in return
to drop more serious charges.
• Not available for heinous crimes or for the crimes which are punishable with death or life
imprisonment.
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In India
• Section 265 A to L, Chapter XXIA of the Cr P C deals with the concept of Plea Bargaining.
• It was inserted into the Criminal Law (Amendment) Act, 2005.
• The 154th Report of the Law Commission was the first to recommend ‘plea bargaining’ in
Indian Criminal Justice System.
• Defined Plea Bargaining as an alternative method which should be introduced to deal with
huge arrears of criminal cases in Indian courts.
• The Malimath Committee recommended for the plea bargaining system in India.
• It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973
(CrPC) and the Indian Evidence Act, 1892 to improve the existing Criminal Justice System in
the country
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Allows plea bargaining for cases
• Where the maximum punishment is imprisonment for 7 years;
• Where the offences don’t affect the socio-economic condition of the country;
• Offenses are not committed against a woman or a child below 14
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Application for Plea Bargaining (Section 265-B)
• Accused file the application of plea bargaining in pending trails.
• The application contains brief details about the case
• Accompanied by an affidavit sworn by the accused stating that he has voluntarily preferred
the application, the nature and extent of the punishment provided under the law for the
offence, that he has not previously been convicted by a court in a case in which he had been
charged with the same offence.
• The court will issue the notice to the public prosecutor concerned, investigating officer of the
case, the victim of the case and the accused of the date fixed for the plea bargaining.
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Concept of plea bargaining in India
• When the parties appear, the court shall examine the accused in-camera wherein the other
parties in the case shall not be present, to satisfy itself that the accused has filed the
application voluntarily.
• As per Sec 265 A, the plea bargaining shall be available to the accused who is charged with
any offense other than offenses punishable with death or imprisonment or for life or of an
imprisonment for a term exceeding to seven years.
• According to Section 265 A (2) of the Code,The Central Government specifies the offenses
affecting the socio-economic condition of the country.
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Guidelines (Sec. 265-C)
• Lays down the procedure to be followed by the court in mutually satisfactory disposition.
• In a case instituted on a police report, the court shall issue the notice to the public prosecutor
concerned, investigating officer of the case, and the victim of the case and the accused to
participate in the meeting to work out a satisfactory disposition of the case.
• In a complaint case, the Court shall issue a notice to the accused and the victim of the case.
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Report (Sec. 265-D)
• This provision talks about the preparation of the report of mutually satisfactory disposition
and submission of the same.
• Two situations may arise
1. A report of such disposition is to be prepared by the court.
2. Signed by the presiding officer of the Courts and all other persons who participated in the
meeting.
3. If no such disposition has been worked out, the Court shall record such observation and
proceed further in accordance with the provisions of this Code from the stage the
application under sub-section (1) of section 265-B has been filed in such case.
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Disposal of the case (Sec. 265 E)
• Prescribes the procedure to be followed in disposing of the cases when a satisfactory
disposition of the case is worked out.
• After completion of proceedings, a report signed by the presiding officer of the Court and
parties in the meeting is prepared
• The Court has to hear the parties on the quantum of the punishment or the accused is
released on probation of good conduct or after admonition.
• Court can either release the accused on probation under the provisions of Sec.360 of the
Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in
force or punish the accused, passing the sentence.
• While punishing the accused, the Court, at its discretion, can pass sentence of minimum
punishment, if the law provides such minimum punishment for the offenses committed by the
accused or if such minimum punishment is not provided, can pass a sentence of one-fourth
of the punishment provided for such offense. ”
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Judgment of the Court (Section 265)
• Says that no appeal shall be against such judgment but Special Leave Petition (Article 136)
or writ petition (under Article 226 or 227) can be filed.
• Sec. 265 H talks about the powers of the court in plea bargaining including powers in respect
of bail, the trial of offenses and other matters relating to the disposal of a case in such court
under Cr P C.
• Sect.265 I mentions about the Period of detention undergone by the accused to be set off
against the sentence of imprisonment
• Section 428 of Cr P C is applicable for setting off the period of detention undergone by the
accused against the sentence of imprisonment.
• Section 265 K specifies that the statements or facts stated by the accused in an application
under section 265 B shall not be used for any other purpose except for the purpose as
mentioned in the chapter.
• Sec. 265 L, makes it clear Not applicable in case of any juvenile or child as defined in
Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000.
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Types of Plea Bargaining
• Generally of three types namely
1. Sentence bargaining, the main motive is to get a lesser sentence.
2. Charge bargaining, happens for getting less severe charges, the most common form of
plea bargaining in criminal cases
3. Fact bargaining, generally not used in courts because it is alleged to be against Criminal
Justice System.
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Case Laws
• In Murlidhar Meghraj Loya vs State of Maharashtra, Supreme Court criticized the concept of
Plea Bargaining and said that it intrudes upon the society’s interests.
• In Kasambhai vs State of Gujarat & Kachhia Patel Shantilal Koderlal vs State of Gujarat and
Anr, the Apex court said that the Plea Bargaining is against public policy. The Court also held
that practice of plea bargaining as illegal and unconstitutional and tends to encourage the
corruption, collusion and pollute the pure fount of justice.
• InThippaswamy vs State of Karnataka, the Court said that inducing or leading an accused to
plead guilty under a promise or assurance would be violative of Article 21 of the Constitution.
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• In the State Of Gujarat vs Natwar Harchandji Thakor, the Court acknowledged the
importance of plea bargaining and said that every “plea of guilty” which is construed to be a
part of the statutory process in the criminal trial, should not be understood as a “plea
bargaining” ipso facto.
• It is a matter of importance and has to be decided on a case to case basis.
• Considering the dynamic nature of law and society, the court said that the very object of the
law is to provide an easy, cheap and expeditious justice by resolving disputes.
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Plea bargaining

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