INTRODUCTION

Alternative Dispute Resolution (ADR) methods are commonly used in civil disputes, such as commercial contracts, family law matters, and employment disputes, to resolve conflicts without going to court. ADR processes can be voluntary or mandatory, depending on the jurisdiction, contract, or court order. However, ADR is less frequently used in criminal cases, which are typically resolved through the criminal justice system. Nevertheless, some jurisdictions certain forms of ADR can be employed in criminal cases under specific circumstances. One such form is plea bargaining, which involves negotiations between the prosecutor and defendant to reach a settlement in exchange for a guilty or no-contest plea. This can help reduce the workload of courts and provide a faster resolution to criminal cases. Other forms of ADR used in criminal cases include mediation, restorative justice, and victim-offender reconciliation programs.

DEFINITIONS

Plea bargaining is a pre-trial negotiation between the accused (defendant) and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution. These concessions can include:

-       Reduced charges (e.g., from a felony to a misdemeanor)

-       Reduced sentence (e.g., less prison time or a lighter penalty)

-       Dismissal of other related charges

-       Recommendation for a lighter sentence

As per another definition, Plea bargaining, in law, is the practice of negotiating an agreement between the prosecution and the defence whereby the defendant pleads guilty to a lesser offence or in the case of multiple offences) to one or more of the offences charged in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges.

Hence, plea bargaining is a trade-off where the defendant agrees to accept responsibility for a lesser offense, and the prosecution agrees to drop more serious charges or recommend a lighter sentence. This process helps to resolve cases efficiently, avoid lengthy trials, and provide a measure of justice for both parties.

 KINDS OF PLEA BARGAINING

1.     Sentence bargaining: Sentence bargaining is a type of plea bargaining where the primary goal is to negotiate a lighter sentence in exchange for a guilty plea. In this type of bargaining, the defendant agrees to plead guilty to the charged offense, and in return, negotiates a more favourable sentence. This can include:

-       Reduced prison time

-       Alternative sentences (e.g., community service, probation)

-       Avoiding harsher penalties (e.g., death penalty)

-       Receiving credit for time already served

Sentence bargaining is a common practice in criminal cases, and it allows defendants to take control of their situation and negotiate a more favorable outcome. It also helps prosecutors and courts by avoiding lengthy trials and ensuring a conviction. Your example of pleading guilty to murder to avoid the death penalty is a classic example of sentence bargaining, and it highlights the significant consequences that can be at stake in these negotiations.

Example: A agrees to plead to the charge of misdemeanor resisting arrest, and the prosecution agrees to recommend that the judge not sentence him to jail time.

2.     Charge Bargaining: Charge bargaining is a type of plea bargaining where the defendant agrees to plead guilty to a less severe charge than the original charge. This is the most common form of plea bargaining in criminal cases. In charge bargaining, the defendant agrees to plead guilty to a reduced charge, and in exchange, the prosecutor drops the more serious original charge or other related charges. This can include-

-       Dropping multiple charges in exchange for a guilty plea on one charge

-       Reducing the severity of the charge (e.g., from first-degree assault to second-degree assault)

Charge bargaining allows defendants to avoid the risk of a more severe sentence and prosecutors to secure a conviction while also reducing the workload of the courts. It's a common practice in criminal cases and helps to resolve cases efficiently.

Example: The prosecution charges A with burglary, but he pleads guilty to trespassing and the prosecution dismisses the burglary charge. Or The prosecution charges A with attempted murder and he pleads assault. the prosecution accepts the charge of aggravated assault rather than attempted murder). Or Pleading for grievous hurt for dropping the charges of attempt to murder.

3.     Count Bargaining:

-       Defendants face multiple charges

-       Defendant pleads guilty to one or more of the original charges

-       Prosecution drops the remaining charges

-       Defendant pleads guilty to fewer counts

In essence, count bargaining is a type of plea bargaining where a defendant agrees to plead guilty to some of the charges they face, and in exchange, the prosecution drops the remaining charges. This type of bargaining is less common and typically applies to defendants who face multiple charges. Some legal experts consider count bargaining to be a subset of charge bargaining.

Example: The prosecution charges A with both robbery and simple assault. The parties agree that A will plead to the assault charge, and that the prosecution will dismiss the robbery charge.

4.     Fact Bargaining: Fact bargaining is a type of plea bargaining that involves a defendant agreeing to stipulate to certain facts in exchange for the prosecution overlooking or not introducing other facts as evidence. This can also include the defendant pleading guilty in exchange for the prosecution agreeing to downplay or ignore aggravating factors during sentencing. However, fact bargaining is not commonly used in courts as it is considered to be against the principles of the criminal justice system, which prioritizes truth-finding and transparency. It is seen as potentially leading to inaccurate or incomplete information being presented in court, which can compromise the integrity of the legal process.

BENEFITS OF PLEA BARGAINING

Plea bargaining is a process where the prosecutor, defense advocate, and judge work together to achieve collective goals and protect individual interests. It benefits various individuals in the following ways:

-       Defendants: Plea bargaining offers defendants reduced punishment, certainty, and avoidance of trial stigma and uncertainty.

-       Defense Advocates: Plea bargaining enables efficient case disposal, increased efficiency and profits, and reduced time spent on cases.

-       Prosecutors: Plea bargaining improves conviction rates, avoids time-consuming trials, and ensures penalties for offenders who might be acquitted on technicalities.

-       Judges: Plea bargaining saves judges time, minimizes the risk of overturned rulings, and shares sentencing responsibility with advocates.

-       Victims: Plea bargaining allows victims to avoid courtroom examination, provides certainty, and avoids emotional trauma from acquittals. 

Overall, plea bargaining promotes efficiency, certainty, and cooperation in the criminal justice system, benefiting all parties involved.

PLEA BARGAINING IN INDIA: A BRIEF HISTORY

-       Initially, India's legal system didn't include plea bargaining.

-       In the 1990s, the judiciary rejected plea bargaining as it was seen as "against public policy" and "unconstitutional".

In the case of Thippasawamy vs State of Karnataka 1983 SC , 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.

-       However, in 1996, the Law Commission's 154th Report recommended introducing plea bargaining to tackle the huge backlog of criminal cases.

-       The Malimath Committee (2000) also recommended plea bargaining, citing its success in the USA.

-       The Criminal Law (Amendment) Act, 2005, introduced plea bargaining in India, inserting Sections 265A-265L into the CrPC, 1973.

-       Plea bargaining is now allowed in cases with a maximum sentence of 7 years or less.

THE BHARTIYA NAGRIK SURAKSHA SANHITA  AND PLEA BARGAINING

Chapter XXIII (Sections 289-300) of the Sanhita, provides for plea bargaining in certain cases. To be eligible for plea bargaining, a case must meet the following conditions:

-       Maximum Punishment: The case must involve a maximum punishment of imprisonment for 7 years or less. This means that if the maximum punishment for the offence is more than 7 years, plea bargaining is not applicable.

-       Socio-Economic Condition: The offence must not affect the socio-economic condition of the country. This means that cases involving serious economic offences, terrorism, or other crimes that have a significant impact on the country's socio-economic condition are not eligible for plea bargaining.

-       Offences against Women and Children: The offence must not be committed against a woman or a child below 14 years of age. This means that cases involving crimes against women, such as dowry death, rape, or sexual harassment, and cases involving child abuse or exploitation, are not eligible for plea bargaining.

-       Age and Prior Convictions: The accused must be above 18 years of age and must not have any prior convictions for the same offence. This means that juvenile offenders (those below 18 years) and repeat offenders are not eligible for plea bargaining.

If a case meets these conditions, the accused may be eligible for plea bargaining, which allows them to negotiate a plea with the prosecution in exchange for a reduced sentence or other benefits.

Chapter XXIII of the Bhartiya Nagrik Suraksha Sanhita (Sections 289-300) governs plea bargaining in India. Specifically:

-       Section 289: Plea bargaining is available to accused individuals charged with offences that are not punishable by:

o   Death

o   Imprisonment for life

o   Imprisonment exceeding 7 years

This means plea bargaining is only permitted for less serious offences with a maximum punishment of less than 7 years' imprisonment.

-       Section 289 (2): The Central Government has the power to notify offences where plea bargaining is not permitted.

The Central Government has issued a notification specifying offences that affect the socio-economic condition of the country, which are not eligible for plea bargaining. These offences include serious economic offences, terrorism, and other crimes that have a significant impact on the country's socio-economic condition.

In summary, plea bargaining is only available for less serious offences with a maximum punishment of less than 7 years' imprisonment, and the Central Government has the power to exclude certain offences from plea bargaining if they affect the socio-economic condition of the country.

PROCEDURE  FOR PLEA BARGAINING

   Application for Plea Bargaining [Section 290]

Step 1: Filing the Application

-       The accused person may file a plea bargaining application within a period of thirty days from the date of framing of charge in the Court in which such offence is pending for trial.

-       The application must include brief case details and be accompanied by an affidavit.

Affidavit Requirements:

-       The accused must voluntarily prefer the application.

-       The accused must acknowledge the charges, punishment, and previous convictions (if any).

-       Court ensures the accused has applied voluntarily (without force or pressure). Court grants time (up to 60 days) for: [290 (4a)]

·       Public Prosecutor (if police report case) or complainant (if complaint case), and

·       The accused, to negotiate a mutually satisfactory settlement.

Step 2: Notice and Scheduling

-       The court issues notices to the public prosecutor, investigating officer, and victim.

-       The court sets a date for plea bargaining.

Step 3: In-Camera Examination

-       The court examines the accused in private (in-camera) to ensure the application was filed voluntarily.

-       Other parties are not present during this examination.

Section 290 (4)b: If the Court finds that—

• The accused didn’t file the application voluntarily, or
• The accused has already been convicted earlier for the same offence,

Then the Court will stop the plea-bargaining route and continue the trial from the exact stage where the application was filed.

 Guidelines for Mutually Satisfactory Disposition [Section 291]

Section 291 a lays down the procedure to be followed by the court in mutually satisfactory disposition. There are different procedures for cases instituted on police report and cases instituted on a complaint.

      i.         Police Report Cases:

-       Court issues notice to:

o   Public Prosecutor

o   Investigating Officer

o   Victim

o   Accused

    - Parties participate in a meeting to work out a satisfactory disposition

-       The Court gives time (max 60 days) to above parties.

     ii.         Complaint Cases:

-       Court issues notice to:

o   Accused

o   Victim

-       Parties participate in a meeting to work out a satisfactory disposition

 The goal of this procedure is to facilitate a mutually satisfactory disposition of the case, which may include plea bargaining or other alternative dispute resolution methods.

 Report of Mutually Satisfactory Disposition [Section 292]

Objective: To document the outcome of the mutually satisfactory disposition meeting.

There may be two Possible Outcomes:

a)    Successful Disposition:

-       The court prepares a report detailing the mutually satisfactory disposition.

-       The report is signed by:

o   Presiding officer of the court

o   All parties who participated in the meeting (including the accused, victim, public prosecutor, and investigating officer)

-       The report is submitted to the court.

b)    No Disposition:

-       If no mutually satisfactory disposition is reached, the court records this observation.

-       The court proceeds with the case according to the Bhartiya Nagrik Suraksha Sanhita, starting from the stage where the application under Section 290 was filed.

 Disposal of the Case [Section 293]

Procedure after Mutually Satisfactory Disposition or after completing the proceedings under Section 292, a report is prepared and signed by Presiding officer of the court and all parties who participated in the meeting

Under section 293 Court hears the parties on :

-       Quantum of punishment

-       Accused's entitlement to release on probation of good conduct

-       Admonition

Under this section Court can do one of the following:

-       Release the accused on probation under:

o   Section 360 of the Code

o   Probation of Offenders Act, 1958

o   Other legal provisions in force

-       Punish the accused by passing a sentence:

o   Minimum punishment (if provided by law)

o   One-fourth of the punishment provided for the offence (if no minimum punishment is specified)

Judgment of the Court [Section 294]:

-       The court pronounces a judgment based on the mutually satisfactory disposition reached by the parties.

-       This judgment is final and binding on both parties.

 Finality of Judgment [Section 295]:

-       No appeal can be filed against the judgment pronounced under Section 294.

-       However, there are two exceptions:

o   Special Leave Petition (SLP) under Article 136 of the Constitution.

o   Writ petition under Article 226 or 227 of the Constitution.

Power of the Court in Plea Bargaining [Section 296]:

-       The court has the power to grant bail to the accused.

-       The court can try offences and dispose of the case.

-       The court has other powers related to case disposal under the Criminal Procedure Code.

 Period of detention undergone by the accused to be set off against the sentence of imprisonment [Section 297]:

The period of detention undergone by the accused is deducted from the sentence of imprisonment. It means that provision of section 468 of the Bhartiya Nagrik Suraksha Sanhita is applicable under this chapter.

Example: If the accused has undergone 15 days of detention and is sentenced to 2 months of imprisonment, they will serve only 1 month and 15 days of imprisonment.

Statement of the accused not to be used [Section 299]:

-       The statements or facts stated by the accused in an application under Section 290

-        cannot be used for any purpose other than the purpose of this chapter.

-       This means that the accused's statements cannot be used as evidence in any other proceedings.

   Non-application of the chapter [Section 300]:

-       This chapter does not apply to juveniles or children as defined in the Juvenile Justice (Care and Protection of Children) Act, 2000.

-       This means that the provisions of this chapter will not apply to cases involving juveniles or children.

 ARGUMENTS FOR PLEA BARGAINING:

1.          Fast disposal of cases: Plea bargaining helps to resolve cases quickly, reducing the burden on the courts and allowing for faster justice. 

2.          Less serious offences on one's record: Plea bargaining allows accused persons to plead guilty to lesser offences, reducing the severity of their criminal record.

3.          Hassle-free approach: Plea bargaining simplifies the legal process, allowing accused persons to avoid lengthy trials and potential harsher sentences. 

4.          Avoids publicity: Plea bargaining can help avoid public scrutiny and media attention, which can be beneficial for accused persons who value their reputation.

ARGUMENTS AGAINST PLEA BARGAINING:

1.          Voluntarily adopted mechanism: Critics argue that plea bargaining is a voluntary mechanism that may not always serve the interests of justice, as it prioritizes efficiency over fairness.

2.          Involvement of police: The involvement of police in plea bargaining raises concerns about custodial torture and coercion, which can lead to false confessions.

3.          Corruption: The role of victims in plea bargaining may lead to corruption, as they may be influenced by external factors or personal interests.

4.          Lack of independent judicial authority: Plea bargaining applications are not evaluated by an independent judicial authority, which can lead to biased decisions.

5.          In-camera examination: The in-camera examination of accused persons by the court may lead to public cynicism and distrust, as it lacks transparency.

6.          Not a final solution: Plea bargaining does not address the root causes of delay in trials, such as inefficient investigation and judicial processes, and therefore is not a sustainable solution to the problem of delayed justice.

These arguments highlight the complexities and challenges surrounding plea bargaining in India, and the need for a nuanced approach to balance efficiency, fairness, and justice.

CASE LAWS

Murlidhar Meghraj Loya v State of Maharashtra 1976 SC:

-       Supreme Court criticized plea bargaining, saying it intrudes upon society's interests and is a "highly reprehensible practice".

-       Held that plea bargaining is illegal, unconstitutional, and encourages corruption and collusion.

Kasambhai v State of Gujarat 1980 & Kachhia Patel Shantilal Koderlal v State of Gujarat and Anr 1980 SC:

-       Supreme Court said plea bargaining is against public policy and regretted that the magistrate accepted the plea bargain.

-       Held that plea bargaining is illegal and unconstitutional.

Thippaswamy v State of Karnataka 1983 SC:

-       Court said inducing an accused to plead guilty under a promise or assurance violates Article 21 of the Constitution.

-       Directed that such cases should be remanded to the trial court for a fair trial.

State of Uttar Pradesh v Chandrika 2000 SC:

-       Supreme Court disparaged plea bargaining, holding it unconstitutional and illegal.

-       Said that cases must be decided on merit, and accused persons must receive appropriate sentences according to law.

State of Gujarat v Natwar Harchandji Thakors 2005 :

-       Court acknowledged the importance of plea bargaining but clarified that every "plea of guilty" is not necessarily "plea bargaining".

-       Held that each case must be decided on its own merits, considering the dynamic nature of law and society.

These cases highlight the Supreme Court's concerns about plea bargaining, emphasizing the need for fair trials, appropriate sentences, and upholding the integrity of the justice system.

CONCLUSION

The concept of plea bargaining, which originated in the USA, has had a complex history in India. Initially, the Indian judiciary was skeptical and critical of plea bargaining, but the 154th Report of the Indian Law Commission and the Mali Math Committee's recommendations led to its introduction in the Criminal Law (Amendment) Act 2005. This amendment inserted Chapter XXIA (Sections 265A-265L) into the CrPC, outlining a detailed procedure for plea bargaining. With the enforcement of the new criminal laws in July 2024, this framework was carried forward into the Bharatiya Nagarik Suraksha Sanhita, 2023 under section 289-300 of the chapter XXIII with only minimal changes.

While some jurists support plea bargaining for its benefits, others argue it violates Article 20(3) of the Indian Constitution, which protects the defendant's right against self-incrimination. However, the Indian courts have come to recognize the need for plea bargaining in the legal system.

As with any change, plea bargaining has its advantages and disadvantages. Rejecting it solely based on its drawbacks would be unjustified. Instead, debate and discussion can help refine and improve the concept, which is still evolving in India. With time, society may come to accept plea bargaining as a valuable tool for efficient and effective justice.