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Plea bargaining

By N.R. Madhava Menon

The system of plea bargaining will help reduce delay and free resources to tackle more serious crimes.

TO REFORM criminal justice administration, the Central Government has introduced a Bill in Parliament to amend some provisions of the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, incorporating a few major recommendations of the Malimath Committee.

One of the reforms proposed in the 2003 Bill is "plea bargaining" or "mutually satisfactory disposition" in all criminal cases other than an offence punishable with death or imprisonment for life or of imprisonment for a term exceeding seven years. The idea is to avoid expensive, unpredictable trials and the potential for harassment in all small and medium crimes where the harm to society is relatively small. The philosophy is the same as in compounding of crimes already existing in the Cr.P.C. but the techniques differ and the range of offences covered are numerous and varied. The system could reduce the flow of criminal cases in the system and release the time, resources and energy of the system managers (police, prosecutors and judges) to deal with serious crimes threatening national security and large-scale damage to life and property.

It is a device to ensure that victims receive acceptable justice in reasonable time without risking the prospects of hostile witnesses, inordinate delay and non-affordable costs. It helps ensure that hard crimes are not rewarded with soft justice because of the pressure of work of the criminal justice apparatus. Finally, it reduces arrears and pendency in the system by diverting a large number of crimes for alternative settlement without trial under control of the court to ensure fairness in the process and avoid fraud and coercion from either side.

The device of plea bargaining is nothing new and it does exist though unofficially, for example, in accident compensation cases. Lok Adalats use variations of the same technique. However, the term "bargaining" in criminal matters is abhorrent to a section of society though it is very popular with the Americans. The Amendment Bill used the term only in the title and sub-title in the chapter and has used the expression "mutually satisfactory disposition" to describe the process of settlement without trial. It is important that the purport and procedure underlying this system is understood lest the initiative be buried without a reasonable time to demonstrate its utility.

"Plea of guilt" is part of existing criminal procedure. "Plea of sentence" is also an essential aspect of criminal judicial proceedings. If the accused is allowed to "bargain" or get into negotiation voluntarily with the prosecutor and the victim on issues relating to charges and sentence, the possibility of proceedings coming to an end with a conviction (not necessarily of all or the same charges or sentences) increases. If such conviction and consequent reliefs are acceptable justice to the victim, would it not be appropriate for the court to dispose of the case accordingly instead of after a detailed trial as provided under the law? After all, every crime is a tort also for which what the law provides to the victim is compensatory relief.

If such reliefs could be obtained by voluntary action of the victim under the supervision of the court, and wherever needed with assistance of counsel, should society refuse to accept such disposition in "minor" crimes on the plea that "society as victim cannot compromise a challenge to its morality by criminals buying their freedom through bargaining"? A pragmatic approach to management of crime and streamlining of the criminal justice administration under a system burdened with three crore pending cases warrants some compromises and short-cuts which are fair, just and reasonable even if not in tune with conventional notions of morality and standards of public behaviour.

What does the Bill provide in this regard? The proposed amendment through introduction of a new Chapter in the Criminal Procedure Code (Chapter XXI A Sections 265 A to K) enables a person accused of certain offences to file an application for plea bargaining in the court in which such offence is pending trial. He gets this benefit when the report under Section 173 is forwarded to the Magistrate in a police case or when the Magistrate took cognisance of the offence on a private complaint. However, the privilege is not available to one who is charged with: (a) an offence punishable with death or imprisonment for life; or (b) an offence punishable with imprisonment for a term exceeding seven years; or (c) the offence is one included in the list notified by the Central Government as injurious to socio-economic conditions of the country; or (d) it is an offence committed against a woman or a child below the age of 14 years.

It is made obligatory on the part of the Court receiving the application to examine the accused in camera to satisfy that he or she filed the application voluntarily. The Court is then required to issue notice to the Public Prosecutor or the complainant as the case may be to work out a mutually satisfactory disposition of the case. The Court has the continuing duty of ensuring the entire process of plea bargaining is voluntary. The accused as well as victim, if they want, can participate with their advocates if they are engaged in the case. The negotiation of a mutually acceptable settlement is left to the free will of the prosecution (including the victim) and the accused. If such a settlement is arrived at, the Court awards the compensation to the victim based on it and proceeds to hear the parties on punishment. The Court may release the accused on probation if the law allows for it in the offence charged. If minimum sentence is provided under the law for the offence committed, the judge may sentence the accused to half of such minimum punishment. In other situations the court may sentence the accused to one-fourth of the punishment provided for such offence. The benefit under Section 428 Cr.P.C. of setting off the period of detention undergone by the accused against the sentence of imprisonment is permissible in plea bargained settlements as well.

The Court is obliged to deliver the judgment in the open court according to the terms of the mutually agreed disposition and the formula prescribed for sentencing including victim compensation. No appeal, excepting a special leave petition to the Supreme Court under Article 136 or a writ petition to a High Court under Articles 226 and 227 of the Constitution, is allowed against the judgment. In other words, there is a finality to the judgment of the trial court in all cases settled through plea bargaining.

Nothing spectacular can happen to criminal justice by this innovative experiment unless the judges, the prosecutors and the defence lawyers take a lead in impressing upon the accused and the victim the benefits and sincerely work towards getting rid of weak prosecution cases in the criminal justice system. In the United States over 95 per cent of criminal cases never go to trial because of the bargain struck between the prosecutor and the defendant's attorney well before the trial date. This is done without such court supervision unlike as in the proposed Indian Bill. In the U.S., the charge and the sentence are open to bargain well before the commencement of the trial. In other words, the U.S. system is in effect trading a lenient deal in exchange for a guilty plea. The role of the judge under plea bargaining in the U.S. is relatively insignificant and is limited to the observance of constitutional procedures. So much so in American criminal justice, plea bargaining is the norm rather than the exception.

Of course, plea bargaining in criminal cases is not an unmixed blessing. While it does help the accused get away with lenient punishments avoiding the ignominy of adverse publicity of prolonged trials and help the police and the prosecution get higher rates of conviction with lesser use of time and resources leaving more time to tackle serious crimes, it does make the correctional goal of punishment meaningless and promotes the tendency to overcharge in the hope of strengthening the prosecution side during negotiations. By providing for a more positive/active role to the Court in the proposed Indian scheme, the Bill takes care to ensure that unfair, unjustified and involuntary elements of plea bargaining do not vitiate the process and the Court would have enough power to prevent such developments. There is scope in the new Bill for judicial activism at the trial level to reduce the case-load substantially and at the same time to maintain the sanctity of the criminal judicial process.

(The writer is Director, National Judicial Academy, Bhopal.)

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