By Adv. Prachi Bansal, Associate, Lex Maven –

The Famous quote in Legal context by Sir William Gladstone “Justice Delayed is Justice Denied” gives rise to the concept of fast redressal of disputes in the court of law but with the changing scenario happening due to Pandemic shows the growing piles of files in the Indian Court, which is becoming a barrier in holding this statement correctly, in such a case Plea Bargaining or Nolo Contendere seems to be the best option in fast redressal of disputes.

History of Plea Bargaining

The concept of plea bargaining started back in 19^th century by American judiciary. Now about 90 percent of the criminal cases are tried through plea bargaining wherein accused give up their constitutional rights and pleads guilty for relaxation in tenure of sentence.

During the time of jury system there was no concept of plea bargaining as there was no legal representation system followed in India. It was after 1960 that the concept for legal representation was introduced and wherein the judges use to motivate confessions for faster disposal of cases.

In India the concept of Plea bargaining originated under NDA government with Hon’ble Justice V.S. Malimath Committee the former Chief Justice of Kerala and Karnataka High Court for reducing criminal cases. The committee through its report in 2003 recommended Plea Bargaining as an effective remedy for quick disposal of criminal cases with reference to the practice prevalent in United States. The committee vide its report also states that the court also has power to pass probation order, power of executive pardon and power of remission of sentences under Probation of offenders act so as to lessen the tenure of imprisonment and to stop the condonation of crime committed. The committee also stated with agreement to the Law Commission Of India vide its 142^nd and 154^th reports to promote the concept of settlement of criminal cases without trial.

It was then the concept of Plea Bargaining was included in the Criminal Law (Amendment) Act, 2005 under Chapter 21A in sections 265A to 265L which was made enforceable from 5^th july 2006. Plea Bargaining in India is allowed in the cases wherein the maximum period of imprisonment is up to 7 years ,or offence does not have any impact on the Socio-economic conditions of the country or the offence is not committed against the child or the woman.

Meaning Of Plea Bargaining

Plea Bargaining can be said as the confession by accused wherein negotiation happens between the accused and the prosecution in which prosecution gives concession to the accused when the accused pleads guilty of  the offence committed but it should also be noted that such practice is applicable only when the accused has not committed any grievous offence like offence of murder or any heinous offence against woman or child or offence relating to death penalty and also if the court passes any order in plea bargaining no appeal can be filed against that order. In short it can be said as plead guilty and ensure lesser sentence.

As per Black’s Law dictionary, Plea bargaining has been defined as ‘a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the negotiated charges’.

Types Of Bargaining

There are following types of plea bargaining

1. Charge Bargaining-

It refers to a promise by the prosecutor to either to reduce or to dismiss some of the charge made against the accused on the plea of guilty.

• Sentence Bargaining-

It refers to a promise made by the prosecutor to refrain to recommend specific sentence in exchange for guilty plea made by the accused.

• Fact Bargaining-

It refers to a promise made by the prosecutor to not reveal aggravating factual circumstances to the court in exchange for a guilty plea made by the accused.

• Express and implicit Bargaining-

It refers to a negotiation taking place either directly or through the advocate or a trial judge with the accused.

Plea Bargaining and Indian Judiciary

In following cases Courts has given judgement related to Plea Bargaining

1. Murlidhar Meghraj Loya v. State of Maharashtra 

The court held that “if the dispute…finds itself in the field of criminal law, “Law Enforcement” repudiates the idea of compromise as immoral, or at best a necessary evil. The “State” can never compromise. It must “enforce the law”.

•  Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr.,

The Supreme Court in this case held practice of plea bargaining as unconstitutional, illegal and a means to encourage corruption and collusion.

• Thippaswamy v. State of Karnataka

The court in the instant case said that the act of inducing thee accused to plead guilty through plea bargaining would violate article 21 of Indian Constitution.

• Natwar Harchandji Thakor vs State of Gujrat

The Court recognised the importance of plea bargaining. It stretched on the fact that every “plea of guilty” which is done in the statutory procedure of the criminal trial, should not be regarded as “Plea Bargaining”. It has to be decided on a case to case basis. Taking into account the increasing problems in the criminal justice system, the Court was of the opinion that the purpose of the law makers is to create laws that help in providing easy, expeditious and cheap justice.

• Vijay Moses Das vs CBI

In this case the Hon’ble High court of Uttarakhand allowed the application of plea bargaining by directing the trial court to accept the same.

 Conclusion–

According to 2011 statistics of Delhi, only 4129 cases have been settled and 309 cases were rejected from 8630 cases which shows the heavy backlog of cases over Indian Judiciary. On the other hand Indian jails have capacity of only 2.65 lakhs prisoners at a time and about more than 5 lakh prisoners are behind the bars. The Indian Government have total of more than 5 lakhs crore(approx) rupees on prisoners which is a huge amount for the country and a large portion is spent due to delayed criminal justice system. Plea Bargaining will help a lot in recovering such flaws in our governance system. However Plea Bargaining is still a contradictory subject as many intellects and legal experts have criticised this concept.

The basic concept of criminology says that the crime should be punished not the criminal in other words such punishment techniques should be adopted that the criminal mentality of a person should be attacked and be changed, Plea Bargaining is one such technique wherein if the criminal himself or herself is guilty of the offence and is willing to change the criminal mentality he or she then should get a chance to reform themselves with a positive mentality .such technique will also prevent the accused  from being in contact with serious offenders and future probability of falling into serious criminal groups. It is the best way to save the petty offenders from becoming a serious criminal and creating a positive vision for the society in the minds of the offenders.

Adv Prachi Bansal, Associate

Lex Maven