This article is written by Tarannum Vashisht, a student of Rajiv Gandhi National University Of Law. This article enumerates the concept of plea bargaining in India and the United States Of America, pointing out their efficiencies in contrast to each other.

Introduction

Justice Delayed Is Justice Denied, is a phrase of which every law student is well versed with. Does its ensuing in the real sense accord the following of Plea Bargaining in India? This article is an attempt to contrast the concepts of Plea Bargaining In India and the United States Of America.

Plea Bargaining

Plea bargaining in simple terms is a negotiating agreement on the terms of punishing an accused. The prosecution and defence participate in the process of intercession, wherein the accused pleads guilty before trial. In return, he gets a lesser punishment.

Plea bargaining has had a noted prevalence all over the world, with a lot of stories claiming it’s inception. One of the most interesting ones being the United States. The first instance of plea bargaining took place in the year 1692. Here, an attempt was made to convince the alleged witches that a lighter punishment would be given to them if they confessed that they were guilty of the crime they were accused of to the court. Also, they were prompted to testify against the other alleged witches. Those who pleaded guilty were saved from prosecution and this prompted others to indulge in this activity too. Many of the opposers of plea bargaining base their arguments on this incident.

Let’s take a toll on time and go through the development of this concept of plea bargaining to gain more insights into this concept. 

Plea Bargaining in the United States of America 

Although the sixth amendment to the US Constitution did not recognize plea bargaining, the needful was done by the US judiciary. Plea bargaining was given recognition in the USA by the case of Santebello v. New York, 1971.

This case is regarded as the inception and from then its frequency has known no bounds. It has been noted that around 90% of the criminal cases in the United States Of America are solved through the process of plea bargaining. Plea bargaining option is called the plea of nolo contendere, that is the person does not wish to contest his case. A matter is disposed off in the United States of America every minute using this plea.

It can be said that this plea is a conditional plea in a substantial sense. This is an implied confession of guilt as opposed to pleading guilty in front of the court. This formal declaration that an accused will not contend, assumes an agreement between such person and the government, that the later would consider the guilt of the former only for such specified case and no other.

It is pertinent to note that it is on the court to accept such a plea or not. If the court does so, it has to do it unqualifiedly. However, the court is bound to consider the plea in light of the specific facts and circumstance of the case. Another important point is the consent of the prosecutor, which the court is not bound to entertain. Although it becomes a strong factor in determining where the court would accept such a plea or not. 

A turning point in this particular jurisprudence came with the case of  Lott v. United States, 367 US 421. In this case, it was held that accepting the plea of nolo contendere, does not in itself establish the guilt of the accused, though it is a tantamount factor in establishing the same. 

Plea bargaining is recognised in a number of cases in The United States Of America, though there have been some exceptions. It has been noted by some jurists and judges that this “agreement” reduces the workload of the judiciary to a large extent. Although it has been noted that this process can be diseased by duress and forcing the accused to choose between two evils. It has also been noted in the case of Brady v. United States that merely because there is a chance that this agreement may be mitigated by duress, solely because of this reason it cannot be treated as illegitimate. 

In the colonial time this phenomenon of plea bargaining was not accepted by the American Judiciary, but not it is said that now if this system is taken away from its helms, it would collapse within no time. Therefore this system has travelled from being allowed with utmost care in some places, to now being present in the majority of the criminal cases of the United States Of America.

Plea bargaining in India

Plea bargaining in India is not an inherent feature of the constitution of India, but it has developed in response to the plethora of cases pending before the Indian judiciary. This evidences the development of Indian Criminal Justice System.

Criminal Procedure Code

Section 265A to 265Lof Chapter XXIA of the Code of Criminal Procedure,1973 provides for the provision of plea bargaining in India. This was not present from the Act’s inception but was added via an amendment of 2005. 

Plea bargaining is allowed in India only under the following conditions, which are provided in section 265A of CrPC:

1. When the maximum punishment for the crime committed is 7 years.
2. The crime committed should not be against any child below 14 years of age or a woman.
3. Where the offence committed in no way affects India’s socio-economic condition.

The Idea of plea bargaining was first brought forth by the 154th Law Commission of India as an alternative strategy to speed up the judicial process. The Criminal Law (Amendment) Bill, 2003 was introduced after the recommendation of the Malimath Committee. This was finally passed in 2006, amending the Indian Penal Code 1860 (IPC), the Indian Evidence Act, 1892 and the Code of Criminal Procedure, 1973 (CrPC). This was an attempt to remove all impediments in the providence of speedy justice.

Types Of Plea Bargaining

Plea bargaining in India has a tripartite division. This division is elucidated as under:

1. Fact bargaining;
2. Sentence Bargaining;
3. Charge Bargaining.

S No.	TYPE	DESCRIPTION
	Fact Bargaining	As the name suggests, it attempts to bargain for the facts of the case. This type of plea bargaining deals with alternate contentions on the facts of relevance in the case at hand. Both the parties negotiate on the facts that are to be admitted by both of them. This type of plea bargaining is said to be opposed to the spirit of the Criminal Justice System. This is because negotiating the very facts of the case, is opposed to the spirit of criminal justice. Facts of a case cannot be changed, a fact is a fact. If we negotiate on changing the very facts of the case it becomes no less than a fiction.
	Sentence Bargaining	The aim of this plea bargaining is to plead for a lighter sentence. The accused agrees to plead guilty to the offence charged for and in return is promised a lighter punishment.
	Charge Bargaining	As the name suggests, this is a bargain for getting lesser charges, The accused pleads guilty to a lighter charge, as opposed to a graver one. The difference between sentence bargaining and charge bargaining is that sentence bargaining is done to bargain on the time period for which the sentence would be pronounced, whereas charge bargaining is a bargain on the charge that is levied. An example of the former being punishment for a period of 7 years or 10 years. An example for the latter is levying the charge of kidnapping on the accused or that of murder. These two are essentially different.

Famous cases of Plea bargaining

Plea Bargaining is a comparatively novel phenomenon in India. Its jurisprudence has evolved with the coming of cases from different areas. Some of the cases which may be called milestones in the development of this aspect of the Criminal Justice System are enumerated as under-

Vijay Moses Das v. CBI 

This was a case in which a man was accused of supplying substandard material to ONGC, adding to the trouble on the wrong port. This had caused huge losses to ONGC. The accused wanted to take the route of plea bargaining to reduce his sentence. The other side also accepted his contention and were ready to adopt the mode of plea bargaining. The case was investigated by the CBI taking into consideration Sections 420, 468 and 471 of IPC. After investigation, the CBI concluded that they had no problem with plea bargaining. However, the trial court concluded that plea bargaining cannot be accepted in the case at hand. The reason attributed for the same was that the accused had not filed an affidavit under Section 265B. Hence plea bargaining was not allowed in this case. 

Ranbir Singh v. State

In this case, the petitioner challenged the sentence imposed to imprisonment for six months in addition to the penalty of Rs.5000 under Section 304A IPC and in default to be subjected to additional imprisonment for one month, as well as the sentence to pay the fine of Rs. 5,000 under Section 279 IPC and in default of payment of the fine to be subjected to simple imprisonment for an additional month.

The Trial Court has the power to impose a sentence of 1/4th of the sentence for imprisonment. Even then, the learned Trial Court is obliged to look into the mitigating circumstances.

None of the mitigating conditions were taken into account in granting full penalty. Petitioner is the only bread-earner and is assisted by two minor children and elderly parents. The Petitioner gave the victims monetary compensation.

He has also reported the affidavit of the deceased’s legal heirs to state that the parties have entered into a settlement and there is no dispute between them. On the other hand, the prosecution contended that the crimes of killing by reckless and careless driving under Section 304A IPC are on the rise and stern action was required to deter impact.

Section 265E CrPC allowed the Court to enforce a sentence of 1/4th of the fine, including in respect of mutually acceptable deposition between the parties.

In addition, the trial court’s judgment is final and no appeal is brought against it as specified in Section 265G of the Code.

Delhi High Court held that while it can not be concluded that, under these mitigating circumstances, no imprisonment should be granted to the petitioner and should be released, he should not, however, have been offered the full penalty as the learned Trial Court has done. The court amended the sentence to four months in prison under Section 304A of the IPC and a fine of Rs. 1,000/- Section 279 of the IPC.

Rahul Kumpawat v. Union Of India

In the instant case, the petitioner brought a miscellaneous criminal petition before the high court of Rajasthan challenging the order of the trial court which dismissed the application submitted by the former for plea bargaining in the instant case. The counsel argued that the order dismissing the said application was devoid of merit. There were no reasons for its dismissal, doing the same was against the spirit of Section 265A of the Code Of Criminal Procedure. 

The counsel firmly contended that the object behind introducing Section 265A was to minimise the time of criminal trial. The learned trial court, by not following the spirit of the said Section in the instant case, has abused the same. These contentions were regarded by the High Court of Rajasthan as meritorious. It was noted that for the ensuing of justice the said order of the trial court ought to be set aside. The needful was hence done by the High Court. 

                   

Plea bargaining India Vs. United States Of America

The concept of Plea Bargaining in India is regarded as a progeny of the concept of Plea Bargaining in the United States Of America by many. This is true to a large extent, however, there are some differences between the two countries, which are pointed out as under:

1. In the United States Of America adopting the process of plea bargaining by the accused does not depend upon the offence that he or she is accused of. This is not the case in India, here plea bargaining can only be treated as an option when the offence that the accused is charged with has a maximum punishment of less than seven years.
2. In America, the negotiation regarding plea bargaining is done between the prosecutor and defendant, out of the court. However, in India, this process is inevitably preceded by an application made by the defendant. This is done with the sole purpose of minimising the chances of duress.
3. Another difference that exists is that in India there is a provision for the judge to decide on the admissibility of the application for plea bargaining. If the court is of the view that the punishment accorded for in plea bargaining is not satisfactory or is mitigated by the factor of unfairness, it can be set aside. This is not the case in the United States of America. 

Hence the concept of plea bargaining in India and the United States Of America, though essentially the same has some significant differences as well. 

Conclusion

The concept of plea bargaining, though a novel concept in India has evolved with time. Much of the needful has been done by the Indian Judiciary. A pertinent question raised by the critiques is that in the pursuance of speedy justice, isn’t it a possibility that justice itself is denied, engulfing the accused in an ocean of evils. 

In my opinion, the concept of plea bargaining in India, as opposed to that of the United States Of America, has been introduced with restrictions and regulations, which acts towards the system’s advantage.  

Though there remain certain anomalies, which to a large extent have been resolved by our able judicial system. In my opinion, all we need is to have faith in our judiciary, which would in the future resolve the remaining issues too.

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