HOME ASSIGNMENT 6

PLEA BARGAINING

The paper talks about the concept of plea bargaining in US and India. Plea bargaining is a
pre-trial negotiation between the accused and the prosecution where the accused agrees to
plead guilty in exchange for certain concessions by the prosecution. It is a prevalent concept
in US even though it is not a part of the Constitution. The classic case of adoption of plea
bargaining is the case of assassination of Martin Luther King Jr. It is not the right of the
accused to invoke plea bargaining. It is within the particular discretion of the Court
concerned to accept or reject such a plea. Plea bargaining was not accepedt initially in
America, but like India, the problem of legthy trials and delayed justice made it favourable.
Almost every criminal case is now conducted by Plea bargaining and today it is often said
that the American Criminal Justice would collapse if plea bargaining is removed from it.
However, in India it is still a questionable process as it is believed to go against the basic
tenets of criminal law system. It is called an immoral compromise. The Supreme Court in
Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr, strongly disapproved the
practice of plea bargain. However, there was a shift in thinking in the case of State of Gujarat
v. Natwar Harchandji Thakor. The court held that since the object of law is to provide easy,
cheap and expeditious justice, it is only fitiing that the practice of plea bargaining should also
be included as a measure and redressal. The seed of the process of plea bargaining is found in
Section 206(1) and 206(3) of the Code of Criminal Procedure and Section 208 (1) of the
Motor Vehicles Act, 1988. It is codified in the sections 265 A to 265L. It was added by the
2005 Amendment. The paper also stresses on the difference between plea bargaining and plea
of guilt by stating that it differes from cases. The opportunity of plea bargaining is not
acceptable for accused in serious crimes such as murder, rape etc. It does not apply to serious
cases wherein the punishment is death or life imprisonment or a term exceeding seven years
or offences committed against a woman or a child below the age of 14 years (Section 265 A).
The Government Order issued in 2006 explains emphatically that this process is not available
in the offences affecting the socio economic conditions of the country. The paper also talks
about the earlier cases of plea bargaining. 265 B- According to the Code, the accused may
file the application for Plea Bargaining in which such offence is pending in trial. The
application should contain a description of the facts of the case and must be accompanied
with an affidavit stating that the accused is voluntarily making the application and
understands the nature and extend of the punishments and understands the consequences. The
acceptance of the application will depend on the past record of the accused. After receiving
 HOME ASSIGNMENT 6

application, Court shall issue notice to public prosecutor, and fix a date for appearing of
prosecutor (if the case was instituted on the basis of police report) or complainant (if the case
was instituted by a complaint) and the accused. When both parties appear, the court shall
examine accused in camera. This is in order to make sure it is voluntary. If the court finds the
plea bargain involuntary, the proceedings will continue as a normal trial. If otherwise, then
both parties shall work out mutually satisfactory disposition (Section 265 B). if the case is
instituted on the basis of police report, the court shall issue notice to the prosecutor, the police
officer in charge of the investigation, the accused and the victim to negotiate terms. If it is
based on a complaint, then accused and complainant will be called to meet. The court must
ensure the voluntariness of this process (Section 265 C). After this, the court shall make a
report and state if the process was successful or unsuccessful, in which case normal trial will
ensue (Section 265 D). The court shall award compensation to the victim according to the
disposition. The court will decide if the provisions of probation apply or Section 360. The
court shall deliver the judgement in the open court, the decision of the court is final. There
are no provisions for appeal. However, the aggrieved parties can use constitutional remedies
under Article 136, Article 226 or Article 227. The statement of the accused shall not be used
for any other purpose other than specified in this chapter. It cannot be used against him in any
other context, under any other law. The paper also talks about the role of the defence.
Accused is entitled to efficient, fair and honest advice from the defense counsel especially in
plea bargaining. Some of the merits of pea bargaining is that it saves time as there is no need
to carry on a long and tedious trial. Money and energy of the accused and victim is saved.
Another advantage is that the victims most often get compensated which they may not at the
end of a normal trial. and of course, the accused will only face a lessened sentence. He will
get either half, or if minimum sentence isn’t prescribed, 1/4 th of the given punishment.
However, there are some disadvantages. The number one is that it is an anfair practise. Going
by the basic principles of administration of justice merits alone should be considered for
conviction and sentencing, even when the accused confesses to guilt, it is the constitutional
obligation of the court to award appropriate sentence. It also creates contempt for the system
as there is a shortcut to justice with this new practise. As a result of not following the
criminal system, there may be conviction of innocent accused persons. Innocent accused may
be paid by the actual perpetrators of crime in return to their guilty plea with assured reduction
in penalty. The trial will also be derailed. The paper concludes by stating that there is need
for radical change in the criminal justice system. It must be open to judicial scrutiny, making
it more transparent. However, in order to make this practice a success, there must be a proper
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study of its working, impact on crime rate, conviction rate. However, the practice being
unconstitutional and against the basic tenets of rule of law makes it not just an immoral
practice, but an illegal practise. Without any serious amendment, there will be no advantages
to the criminal system and will be undermining to the criminal law jurisprudence.

SUBMITTED BY,

ANASUYA NAIR

BA0170008