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Latest revision as of 14:40, 13 January 2022

What Is Plea Bargaining and How Does It Work?


Plea bargaining can be referred to as a pretrial negotiation between the accused and the prosecution. Basically, a person charged with a criminal offense pleads guilty or accepts the crime done by him to get some concession on the punishment or it may involve bargaining on the charge or in the quantum of sentence. Its origins can be traced back to 19th century America and it is to date widely practiced in the American Judicial System irrespective of the offense committed but in India, plea bargaining is acceptable only for offenses up to a period of 7 years. When the offense is committed against a woman, a child below the age of 14, or is an offense that will have huge Socio- Economical impact then the accused cannot plead guilty before the court. And if in the case of plea-bargaining order is passed by the court then no appeal can lie against that order in any court.

Plea Bargaining in India

The concept of plea bargaining was introduced in 2006 in India as a part of amendments of Chapter XXI-A containing Sections 265A -265L of the Criminal Procedure Code. In the 142nd report of the Law Commission, the idea of “concessional treatment” was mooted for those who plead guilty but it was the 154th report of the Law Commission that first recommended explicitly adding the concept of plea bargaining in the Indian Criminal Justice System. It was suggested that peal bargaining can be an effective alternative method to deal with the scores of pending criminal cases in Indian Courts. This concept of plea bargaining was then supported by the Malimath Committee under the NDA government headed by former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S. Malimath to resolve the escalating issue of pending criminal cases in Indian Courts. The committee was of the opinion that this would reduce the burden of the courts by accelerating the process of disposal of criminal cases. Moreover, the committee also highlighted the success of plea bargaining in the American Judicial System to show the effectiveness of the procedure. Accordingly, the draft of the Criminal Law (Amendment) Bill, 2003 was introduced in the Parliament. It involved various amendments to the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1892 to improve the condition of the Criminal Justice System in the country. It finally came into force in 2006 and Chapter XXIA Section 265A to 265L were added to bring the concept of plea bargaining in India.

Types of Plea Bargaining

There are mainly three types of plea bargaining –

  • Sentence bargaining – This is a type of bargaining where defendants accept their guilt in exchange for getting a lesser sentence. This decreases his punishment by reducing the amount of time he would spend in jail.
  • Charge bargaining – This type of bargaining is the most frequently used bargain in criminal cases. The defendant pleads guilty to a lesser charge to the bargain for the dismissal of more serious charges.
  • Fact bargaining – The usage of this bargaining is generally avoided because it is said to be against our Justice system as it involves providing certain facts in exchange for avoiding some facts from being presented in the court.

Procedure followed and its working in India

In most of the country’s prosecutor plays a vital role in the whole process of bargaining with the alleged offender but in India, the process of plea bargaining can only be initiated by the accused, and the accused is the one who will have to apply to the court to avail its benefits. In order to get the benefits of plea bargaining the accused or applicant will have to file a petition in the court with an affidavit confirming his voluntary preference and assuring that he has full knowledge of the nature of the punishment for his offense provided in the law. The judge is required to make the voluntary nature of the application certain through an in-camera hearing without the presence of another side. Once the filling of the petition and submission of the affidavit is done, the court issues a notice to the prosecutor and the victim, if any, for a hearing. At last, the court authorizes a meeting between the prosecutor, the victim, and the investing officer. The accused may have to pay some compensation and other expenses to the victim due to the outcome of the meeting. After this mutual satisfaction, the arrangement is formalized by the court. In this process, all the parties and the presiding officer are required to sign a report. The accused will either be sentenced to a prison term that is half of the minimum period fixed for that particular offense or in the absence of minimum term the jail term will be provided as one-fourth of the maximum sentence stipulated in the law. [1] [2] [3]