L A W  &  J U S T I C E

Plea Bargaining: Some Legal Reform at Last
Joginder Singh Toor

A young girl presents to the pharmist in a drug store in Canada, a prescription from a doctor for the purchase of medicine, 100 tablets in number. The pharmacist looks in wonder at the stoutly dressed, well built girl but with dozed eyes. He knows that doctors do not generally prescribe more than 10 tablets. He calls the doctor, who denies having prescribed 100 tablets. Pharmacist calls the police, the girl is charged for altering the prescription.

In court she goes to the prosecutor, tells him the circumstances that led him to addiction of the drug. Pleads that she is educated, yet to marry and in search of a good job. She assures de-addiction. The prosecutor is convinced and presents her before the magistrate with recommendation for acceptance of her plea of admission of guilt and be exonerated from any kind of sentence. The judge is also convinced of genuine repentance and accepts the plea bargain.

The Law Commission of India in its 142nd and 154th report has noted the advantages of plea bargaining prevalent in USA where about 75% of total convictions are the result of plea bargaining in USA and they contrasted it with 75% of the acquittals in India. The Law Commission also observed that plea bargaining is certainly a viable alternative to be explored to deal with huge arrears of criminal cases. The same might involve pre-trial negotiations, and whether it is “charge bargaining” or “sentence bargaining,” it results in a reduced sentence and early disposal. Its benefits include an end of uncertainty, saving of the cost   of litigation, relieving the anxiety that a prolonged trial may involve and avoiding legal expenses.

However, the Law Commission keeping in view the observations of the Supreme Court of India, qualified the recommendations in respect of the nature and gravity of the punishment to restrict the plea bargaining to offences other than socio- economic offences or the offences against women and children unlike in the United States where plea bargaining is available for all crime and offences.

In England and Australia, plea bargaining is permitted only to the extent that the prosecutor and defence can agree that the defendant will plead guilty to some charges while the prosecution will drop other charges.

The commission on Reforms of Criminal Justice System headed by Justice Dr. V.S.Malimath has agreed with the views of the Law Commission and recommended the adoption of plea bargaining as a statutory measure to be incorporated in the criminal procedure code.

The Government of India has brought about two criminal law amendments; The Code of Criminal Procedure (Amendment) Act, 2005 which came in force on 23rd June 2006 except for certain sections mentioned in the notification dated 21st June 2006 and the second The Criminal Law Amendment Act 2005 containing a chapter on plea bargaining which has come into force from 5th July 2006.

The objects of plea bargaining in India is to provide relief to large number of persons accused of criminal offences, unable to secure bail, are languishing in jails as undertrial prisoners for years, also as an alternative method to deal with huge arrears of criminal cases to reduce the delay in disposal of criminal trials and appeals by providing the concept of plea bargaining as recommended by the Law Commission and Malimath committee.

1)  The plea bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years.
2)  It does not apply where such offences affects the socio-economic condition of the country or has been committed against a woman or a child below the age of 14 years.
3)  The application for plea bargaining should be filed by the accused voluntarily.
4)  A person accused of an offence may file an application for plea bargaining in the court in which such offence is pending for trial.
5)  The complainant and the accused are given time to work out a mutually satisfactory disposition of the case, which may include giving to the victim by the accused, compensation and other expenses incurred during the case.
6)  Where a satisfactory disposition of the case has been worked out, the court shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for such offence.
7)  The statement or facts stated by an accused in an application for plea bargaining shall not be used for any other purpose other than for plea bargaining.
8)  The judgment delivered by the court in the case of plea bargaining shall be final and no appeal shall lie in any court against such judgment.

The introduction of plea bargaining as a measure to reduce arrears and not as a genuine repentance- reprieve is fraught with certain dangers to be taken care of, while implementing the same. The unscrupulous criminal element who commits offences with expectations and readiness to undergo sentence if at all convicted, which, in the present set up he is by and large able to avoid, and has the capacity to overawe the complainant party, can feel encouraged. The burden on courts to scrutinise the genuineness and voluntary nature is now heavier on the courts.

[Email: jogindersingh_toor@yahoo.com]

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