Plea Bargaining in India.Plea bargaining was viewed conservatively by the Indian courts prior to 2005.[1] The principle justification for this conservative approach was that a crime is a wrong committed against the society at large[2] and a system, such as plea bargaining, which allows the accused to “bargain” away his guilt should not be allowed. Earlier, the courts in India permitted leniency to be shown in the form of lighter sentences being given depending on the facts of each case, however, outrightly rejected the court being a party to a bargain.[3] On the other hand, there also existed a lobby for the introduction of plea bargaining in India to reduce the backlog of pending criminal cases.[4].Despite of the differences in opinion, plea bargaining, which was broadly understood as a system of pre-trial negotiations where the accused pleads guilty in return for concessional treatment from the prosecution, was ushered in by virtue of the Criminal Law (Amendment) Act, 2005. This amendment act had added Chapter XXI A to the Criminal Procedure Code, 1973 (“Code”). This Chapter XXI A of the Code applies to an accused, who is charged for an offence (excluding those for which the punishment is death or imprisonment for life or imprisonment for a period exceeding seven years and which is not a socio-economic offence and/or offence against a woman or child under the age of fourteen years)[5] to file an application for plea bargaining in the court where the trial is pending. The application for plea bargaining has to contain a brief description of the case relating to which the application is filed including the offence to which the case is related. The application has to be accompanied by an affidavit sworn by the accused stating that he has filed the same voluntarily, after understanding the nature and extent of punishment provided under law for the offence, the plea bargaining in his case and that he has not previously been convicted by a court in a case in which he has been charged with the same offence.[6].On receiving the application, the court will examine the accused in camera.[7] If the court is satisfied that the accused has filed the application voluntarily, then the victim, the accused, the investigating officer and the public prosecutor are given time to work out a “mutually satisfactory disposition of the case”.[8] Under Section 265E of the Code, the court shall award compensation to the victim as mutually decided between the parties. However, as regards the quantum of punishment, the court must only hear the parties and the court retains the final say on sentencing. This Section 265E of the Code provides guidelines to the court, however these guidelines are broad and not binding on the court. Furthermore, Section 265G of the Code provides that the decision of the court will be final and the only redressal to the accused is by way of a Special Leave Petition under Article 136 or a writ petition under Article 226 and 227 of the Constitution of India, 1950 (“Indian Constitution”)..Critical Analysis of the Plea Bargaining Scheme.The introduction of Chapter XXI A into the Code is certainly a step in the right direction. The Code allows for the plea bargain to be triggered at the initiative of the accused, which is materially different from the practice in other jurisdictions like USA, where an application is made by the public prosecutor and the accused after negotiations between them are over.[9] Furthermore, the Indian scheme allows the victim to play an active role in the negotiations along with his pleader (if the victim so desires)[10] and may even veto the compromise agreement. However, there are several lacunae in the present law which are discussed below, these defeat the purpose with which the scheme of plea bargaining was introduced in the Code..Sentencing Discretion.Section 265E of the Code lays down a procedure whereby the court exercises control over the process of plea bargaining. Hence, the nomenclature of “mutually satisfactory disposition” is a misnomer to a certain extent, as the court is only bound to award the compensation to the victim as per the agreement reached between the parties.[11] As regards the sentencing, the discretion rests solely with the court. The Court has the discretion to sentence the accused to half of the minimum punishment prescribed under law (if so provided). If no minimum punishment is prescribed under law, then the judicial officer may sentence the accused to half the punishment prescribed under law. [12] It may be argued that even under ordinary criminal procedure, discretion is available to the court with respect to sentencing, and judicial fluctuation in punishment does not per se violate the right to equality guaranteed under the Indian Constitution.[13].While the presence of a judicial officer, ensures “no risk of underhand dealings or for coercion or improper inducement by the prosecution”,[14] plea bargaining requires a different approach with respect to sentencing discretion with the court. This is primarily for two reasons; firstly, the central theme of the plea bargaining system is the mutuality of benefit to the parties concerned;[15] and secondly, because there is no provision for an ordinary appeal against the decision of the court under the plea bargaining arrangement.[16].For instance, in the American system the accused would approach the court in a situation where the prosecution is agreeable to concessional treatment, as well as the “extent” of such treatment. In other words, when one invokes the plea bargaining procedure before the court, one is assured of the extent of the concession he is likely to secure in the event of the application being allowed by the court.[17] Unless there is a reasonable chance of securing some advantage, no accused would avail of this scheme. In India however, such “haggling-haggling”[18] between the accused and the prosecutor is considered unacceptable and hence “some other formula requires to be evolved in order to make the scheme reasonably attractive or workable.”[19].Therefore, under this scheme in India, it is theoretically possible that the court may give different sentences for two persons accused of the same offence or in a graver situation, provide no concessionary treatment at all. The decisions of the courts have provided little clarity on account of the various High Courts having taken different stands with respect to sentencing discretion under Section 265E of the Code. The Hon’ble High Court of Delhi[20] in 2011 held that Section 265(c) and (d) of the Code provide for the maximum sentence which can be awarded by the court and the court must consider the mitigating circumstances. The Hon’ble High Court of Bombay[21] in 2012 however held, that the term “may” under Section 265(c) and (d) of the Code should be read as “shall”, thereby, leaving no discretion to the court in awarding sentences under the Code. The court held that any other interpretation would be “…destructive to the legislative intent…In our view, if the provision was to be interpreted to have invested discretion in the Court to decide on the quantum of the sentence, it would introduce an environment of uncertainty in awarding sentence. That may shake public confidence and would be counter-productive.” A ruling from the Hon’ble Supreme Court of India on this topic would authoritatively decide the correct interpretation of Section 265(c) and (d) of the Code..In the absence of a ruling from the Hon’ble Supreme Court of India and/or guidelines similar to the Sentencing Reform Act, 1984 of USA, such unfettered discretion with the court at the cost of uniformity may be discriminatory and work against the objective of the plea bargaining scheme..Setting Aside an “Unconscionable Bargain”.What constitutes a “mutually satisfactory disposition of the case” or how it may be arrived at is left ambiguous by Section 265D of the Code and in the absence of any form of guidelines, provides leeway to a settlement which may be skewed unfavourably against the accused.[22] The current provisions ignore the possibility of a power imbalance between the prosecution and the accused.[23] Especially in India, given the delays in the judicial system,[24] where accused persons face the risk of spending several years as an under-trial, many may be induced to plead guilty despite their innocence or to agree to an “unconscionable bargain”.[25].Under the present scheme, the court does not have to entertain an application if it is ascertained at the very outset that the accused did not file it voluntarily.[26] However, the plea bargaining scheme has no provision for the court to reject the settlement arrived at by the parties. Typically, in an adversarial set-up, if the opposing parties reach a settlement, then the deciding authority should not be allowed to disturb it.[27] However, in a scenario where there may be serious inadequacies in the capabilities of the accused and/or a risk of prosecutorial coercion, a reasonable level of discretion on the part of the deciding authority is needed. Such failure to provide the court with a broad discretion to reject the compromise agreement will inevitably lead to injustice..Requirements of Free Trial.The Code once again, takes into account some aspects of free and fair trial while misses out others. For instance, the Code makes it mandatory for the judgment to be pronounced in open court.[28] There is also provision in favour of the accused which stipulates that the statement or facts stated by an accused in the plea bargaining application cannot be used for any other purpose.[29].The two principal impediments in the process of fair trial are firstly, the absence of an independent judicial authority to receive and assess the pleas. Impartiality of the judicial authority is an essential condition of a fair trial,[30] which is sought to be ensured through several provisions[31] of the Code. Section 265 of the Code however does not ensure the impartiality of the competent authority. The judicial authority admitting the plea under the scheme may at a later point try the accused under the ordinary criminal procedure, in case the claim of the accused fails to be admitted under the plea bargaining scheme. The Law Commission of India[32] also expressed concern about the fairness of the trial in the absence of an independent judicial authority and recommended the position of “plea judges”, who would not try ordinary cases, to admit pleas under the plea bargaining scheme. Secondly, in case a mutually satisfactory disposition has not been reached, Section 265D of the Code requires the court to make an observation regarding the same. There is however in this process, a failure to make confidential, any order passed by the court rejecting an application which may potentially create prejudice against the accused..Observations.It is not only efficacious but also necessary, given the backlog of cases in the Indian Courts, that the plea bargaining be implemented effectively. However, the present provisions as they stand are too broad and need fine tuning to a large extent. This “half way house” can probably be attributed to the fact that the system of plea bargaining in India is still in the nascent stages. Several important safeguards are conspicuous by their absence in India. Ironically, the provisions introduced in the Code do no incorporate all the recommendations of the two Law Commissions and the Malimath Committee Report, which had more safeguards than the present system. It is possible that the poor usage of the plea bargaining scheme since its introduction in India could be on account of these lacunae in the law. In order to make the plea bargaining system in India truly effective, sentence bargaining has to be introduced in the form of sentencing guidelines, like those present in USA. A ruling from the Hon’ble Supreme Court settling the issue of the discretion available with the court under the scheme will provide much needed clarity..[[{“type”:”media”,”view_mode”:”media_original”,”fid”:”23504″,”attributes”:{“alt”:””,”class”:”media-image”,”style”:”line-height: 1.538em; width: 271px; height: 227px; float: left;”,”typeof”:”foaf:Image”}}]]Sachin Mandlik is a Partner and Apoorvaa Paranjpe is an Associate at Khaitan & Co.[1] Thippaswamy v. State of Karnataka, AIR 1983 SC 747; State of Uttar Pradesh v. Chandrika, AIR 1999 SC 164; Kachhia Patel Shantilal Koderlal v. State of Gujarat; AIR 1980 SC 854; Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929[2] R V Kelkar’s Criminal Procedure 425 (K N C Pillai ed., 4th edn, Eastern Book Company, Lucknow, 2005)[3] Madanlal Ram Chandra Daga v. State of Maharashtra, AIR 1968 SC 1267[4] 142nd Law Commission Report 26 (Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining), Government of India, Ministry of Law, 1991; 154th Law Commission Report 33 (The Code of Criminal Procedure 1973), Government of India, Ministry of Law, 1996 and Malimath Committee Report 168 (Reforms of Criminal Justice System), Government of India, Ministry of Home Affairs, 2003[5] Section 265A of the Code[6] Section 265B of the Code[7] Section 265B of the Code[8] Section 265C of the Code[9]Sonam Kathuria, “The Bargain Has Been Struck: A Case for Plea Bargaining in India”, (http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-279FA2B9AF8A.pdf, 8 June 2014)[10] Section 265C of the Code[11] Section 265E (a) of the Code[12] Section 265E (b), (c) and (d) of the Code[13] Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867[14] 142nd Report, Page 35 (Please refer to foot note 5)[15] Malimath Report, Page 187 (Please refer to foot note 5)[16] Section 265G of the Code[17] 142nd Report, Page 33 (Please refer to foot note 5)[18] 142nd Report, Page 28 (Please refer to foot note 5)[19] 142nd Report, Page 35 (Please refer to foot note 5)[20] Ranbir Singh v. State, Crl M C 1705/2011[21] Guerrero Lugo Elvia Grissely v. The State of Maharashtra, 2012 Bom CR (Cri) 328[22] S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India”, 2 SCC (Cri) J-12 (2006)[23] P Darbyshire, “The Mischief of Plea Bargaining and Sentencing Rewards”, 11 Criminal Law Journal 901 (2000)[24] 154th Report, Page 33 (Please refer to foot note 5)[25] R Stone, The Modern Law of Contract 346 (6th edn, London, Cavendish Publishing Ltd, 2005)[26] Section 265B of the Code[27] S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India” (2006) 2 SCC (Cri) J-12[28] Section 265E of the Code[29] Section 265K of the Code[30] Union of India v. G S Bajwa, (2003) 9 SCC 630; Zahira Sheikh v. State of Gujrat, (2006) 3 SCC 374[31] Sections 191, 352, 407 of the Code[32] 142nd Report, Page 24 (Please refer to foot note 5)
Plea Bargaining in India.Plea bargaining was viewed conservatively by the Indian courts prior to 2005.[1] The principle justification for this conservative approach was that a crime is a wrong committed against the society at large[2] and a system, such as plea bargaining, which allows the accused to “bargain” away his guilt should not be allowed. Earlier, the courts in India permitted leniency to be shown in the form of lighter sentences being given depending on the facts of each case, however, outrightly rejected the court being a party to a bargain.[3] On the other hand, there also existed a lobby for the introduction of plea bargaining in India to reduce the backlog of pending criminal cases.[4].Despite of the differences in opinion, plea bargaining, which was broadly understood as a system of pre-trial negotiations where the accused pleads guilty in return for concessional treatment from the prosecution, was ushered in by virtue of the Criminal Law (Amendment) Act, 2005. This amendment act had added Chapter XXI A to the Criminal Procedure Code, 1973 (“Code”). This Chapter XXI A of the Code applies to an accused, who is charged for an offence (excluding those for which the punishment is death or imprisonment for life or imprisonment for a period exceeding seven years and which is not a socio-economic offence and/or offence against a woman or child under the age of fourteen years)[5] to file an application for plea bargaining in the court where the trial is pending. The application for plea bargaining has to contain a brief description of the case relating to which the application is filed including the offence to which the case is related. The application has to be accompanied by an affidavit sworn by the accused stating that he has filed the same voluntarily, after understanding the nature and extent of punishment provided under law for the offence, the plea bargaining in his case and that he has not previously been convicted by a court in a case in which he has been charged with the same offence.[6].On receiving the application, the court will examine the accused in camera.[7] If the court is satisfied that the accused has filed the application voluntarily, then the victim, the accused, the investigating officer and the public prosecutor are given time to work out a “mutually satisfactory disposition of the case”.[8] Under Section 265E of the Code, the court shall award compensation to the victim as mutually decided between the parties. However, as regards the quantum of punishment, the court must only hear the parties and the court retains the final say on sentencing. This Section 265E of the Code provides guidelines to the court, however these guidelines are broad and not binding on the court. Furthermore, Section 265G of the Code provides that the decision of the court will be final and the only redressal to the accused is by way of a Special Leave Petition under Article 136 or a writ petition under Article 226 and 227 of the Constitution of India, 1950 (“Indian Constitution”)..Critical Analysis of the Plea Bargaining Scheme.The introduction of Chapter XXI A into the Code is certainly a step in the right direction. The Code allows for the plea bargain to be triggered at the initiative of the accused, which is materially different from the practice in other jurisdictions like USA, where an application is made by the public prosecutor and the accused after negotiations between them are over.[9] Furthermore, the Indian scheme allows the victim to play an active role in the negotiations along with his pleader (if the victim so desires)[10] and may even veto the compromise agreement. However, there are several lacunae in the present law which are discussed below, these defeat the purpose with which the scheme of plea bargaining was introduced in the Code..Sentencing Discretion.Section 265E of the Code lays down a procedure whereby the court exercises control over the process of plea bargaining. Hence, the nomenclature of “mutually satisfactory disposition” is a misnomer to a certain extent, as the court is only bound to award the compensation to the victim as per the agreement reached between the parties.[11] As regards the sentencing, the discretion rests solely with the court. The Court has the discretion to sentence the accused to half of the minimum punishment prescribed under law (if so provided). If no minimum punishment is prescribed under law, then the judicial officer may sentence the accused to half the punishment prescribed under law. [12] It may be argued that even under ordinary criminal procedure, discretion is available to the court with respect to sentencing, and judicial fluctuation in punishment does not per se violate the right to equality guaranteed under the Indian Constitution.[13].While the presence of a judicial officer, ensures “no risk of underhand dealings or for coercion or improper inducement by the prosecution”,[14] plea bargaining requires a different approach with respect to sentencing discretion with the court. This is primarily for two reasons; firstly, the central theme of the plea bargaining system is the mutuality of benefit to the parties concerned;[15] and secondly, because there is no provision for an ordinary appeal against the decision of the court under the plea bargaining arrangement.[16].For instance, in the American system the accused would approach the court in a situation where the prosecution is agreeable to concessional treatment, as well as the “extent” of such treatment. In other words, when one invokes the plea bargaining procedure before the court, one is assured of the extent of the concession he is likely to secure in the event of the application being allowed by the court.[17] Unless there is a reasonable chance of securing some advantage, no accused would avail of this scheme. In India however, such “haggling-haggling”[18] between the accused and the prosecutor is considered unacceptable and hence “some other formula requires to be evolved in order to make the scheme reasonably attractive or workable.”[19].Therefore, under this scheme in India, it is theoretically possible that the court may give different sentences for two persons accused of the same offence or in a graver situation, provide no concessionary treatment at all. The decisions of the courts have provided little clarity on account of the various High Courts having taken different stands with respect to sentencing discretion under Section 265E of the Code. The Hon’ble High Court of Delhi[20] in 2011 held that Section 265(c) and (d) of the Code provide for the maximum sentence which can be awarded by the court and the court must consider the mitigating circumstances. The Hon’ble High Court of Bombay[21] in 2012 however held, that the term “may” under Section 265(c) and (d) of the Code should be read as “shall”, thereby, leaving no discretion to the court in awarding sentences under the Code. The court held that any other interpretation would be “…destructive to the legislative intent…In our view, if the provision was to be interpreted to have invested discretion in the Court to decide on the quantum of the sentence, it would introduce an environment of uncertainty in awarding sentence. That may shake public confidence and would be counter-productive.” A ruling from the Hon’ble Supreme Court of India on this topic would authoritatively decide the correct interpretation of Section 265(c) and (d) of the Code..In the absence of a ruling from the Hon’ble Supreme Court of India and/or guidelines similar to the Sentencing Reform Act, 1984 of USA, such unfettered discretion with the court at the cost of uniformity may be discriminatory and work against the objective of the plea bargaining scheme..Setting Aside an “Unconscionable Bargain”.What constitutes a “mutually satisfactory disposition of the case” or how it may be arrived at is left ambiguous by Section 265D of the Code and in the absence of any form of guidelines, provides leeway to a settlement which may be skewed unfavourably against the accused.[22] The current provisions ignore the possibility of a power imbalance between the prosecution and the accused.[23] Especially in India, given the delays in the judicial system,[24] where accused persons face the risk of spending several years as an under-trial, many may be induced to plead guilty despite their innocence or to agree to an “unconscionable bargain”.[25].Under the present scheme, the court does not have to entertain an application if it is ascertained at the very outset that the accused did not file it voluntarily.[26] However, the plea bargaining scheme has no provision for the court to reject the settlement arrived at by the parties. Typically, in an adversarial set-up, if the opposing parties reach a settlement, then the deciding authority should not be allowed to disturb it.[27] However, in a scenario where there may be serious inadequacies in the capabilities of the accused and/or a risk of prosecutorial coercion, a reasonable level of discretion on the part of the deciding authority is needed. Such failure to provide the court with a broad discretion to reject the compromise agreement will inevitably lead to injustice..Requirements of Free Trial.The Code once again, takes into account some aspects of free and fair trial while misses out others. For instance, the Code makes it mandatory for the judgment to be pronounced in open court.[28] There is also provision in favour of the accused which stipulates that the statement or facts stated by an accused in the plea bargaining application cannot be used for any other purpose.[29].The two principal impediments in the process of fair trial are firstly, the absence of an independent judicial authority to receive and assess the pleas. Impartiality of the judicial authority is an essential condition of a fair trial,[30] which is sought to be ensured through several provisions[31] of the Code. Section 265 of the Code however does not ensure the impartiality of the competent authority. The judicial authority admitting the plea under the scheme may at a later point try the accused under the ordinary criminal procedure, in case the claim of the accused fails to be admitted under the plea bargaining scheme. The Law Commission of India[32] also expressed concern about the fairness of the trial in the absence of an independent judicial authority and recommended the position of “plea judges”, who would not try ordinary cases, to admit pleas under the plea bargaining scheme. Secondly, in case a mutually satisfactory disposition has not been reached, Section 265D of the Code requires the court to make an observation regarding the same. There is however in this process, a failure to make confidential, any order passed by the court rejecting an application which may potentially create prejudice against the accused..Observations.It is not only efficacious but also necessary, given the backlog of cases in the Indian Courts, that the plea bargaining be implemented effectively. However, the present provisions as they stand are too broad and need fine tuning to a large extent. This “half way house” can probably be attributed to the fact that the system of plea bargaining in India is still in the nascent stages. Several important safeguards are conspicuous by their absence in India. Ironically, the provisions introduced in the Code do no incorporate all the recommendations of the two Law Commissions and the Malimath Committee Report, which had more safeguards than the present system. It is possible that the poor usage of the plea bargaining scheme since its introduction in India could be on account of these lacunae in the law. In order to make the plea bargaining system in India truly effective, sentence bargaining has to be introduced in the form of sentencing guidelines, like those present in USA. A ruling from the Hon’ble Supreme Court settling the issue of the discretion available with the court under the scheme will provide much needed clarity..[[{“type”:”media”,”view_mode”:”media_original”,”fid”:”23504″,”attributes”:{“alt”:””,”class”:”media-image”,”style”:”line-height: 1.538em; width: 271px; height: 227px; float: left;”,”typeof”:”foaf:Image”}}]]Sachin Mandlik is a Partner and Apoorvaa Paranjpe is an Associate at Khaitan & Co.[1] Thippaswamy v. State of Karnataka, AIR 1983 SC 747; State of Uttar Pradesh v. Chandrika, AIR 1999 SC 164; Kachhia Patel Shantilal Koderlal v. State of Gujarat; AIR 1980 SC 854; Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929[2] R V Kelkar’s Criminal Procedure 425 (K N C Pillai ed., 4th edn, Eastern Book Company, Lucknow, 2005)[3] Madanlal Ram Chandra Daga v. State of Maharashtra, AIR 1968 SC 1267[4] 142nd Law Commission Report 26 (Concessional Treatment for Offenders who on their own initiative choose to plead guilty without any bargaining), Government of India, Ministry of Law, 1991; 154th Law Commission Report 33 (The Code of Criminal Procedure 1973), Government of India, Ministry of Law, 1996 and Malimath Committee Report 168 (Reforms of Criminal Justice System), Government of India, Ministry of Home Affairs, 2003[5] Section 265A of the Code[6] Section 265B of the Code[7] Section 265B of the Code[8] Section 265C of the Code[9]Sonam Kathuria, “The Bargain Has Been Struck: A Case for Plea Bargaining in India”, (http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-279FA2B9AF8A.pdf, 8 June 2014)[10] Section 265C of the Code[11] Section 265E (a) of the Code[12] Section 265E (b), (c) and (d) of the Code[13] Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867[14] 142nd Report, Page 35 (Please refer to foot note 5)[15] Malimath Report, Page 187 (Please refer to foot note 5)[16] Section 265G of the Code[17] 142nd Report, Page 33 (Please refer to foot note 5)[18] 142nd Report, Page 28 (Please refer to foot note 5)[19] 142nd Report, Page 35 (Please refer to foot note 5)[20] Ranbir Singh v. State, Crl M C 1705/2011[21] Guerrero Lugo Elvia Grissely v. The State of Maharashtra, 2012 Bom CR (Cri) 328[22] S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India”, 2 SCC (Cri) J-12 (2006)[23] P Darbyshire, “The Mischief of Plea Bargaining and Sentencing Rewards”, 11 Criminal Law Journal 901 (2000)[24] 154th Report, Page 33 (Please refer to foot note 5)[25] R Stone, The Modern Law of Contract 346 (6th edn, London, Cavendish Publishing Ltd, 2005)[26] Section 265B of the Code[27] S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India” (2006) 2 SCC (Cri) J-12[28] Section 265E of the Code[29] Section 265K of the Code[30] Union of India v. G S Bajwa, (2003) 9 SCC 630; Zahira Sheikh v. State of Gujrat, (2006) 3 SCC 374[31] Sections 191, 352, 407 of the Code[32] 142nd Report, Page 24 (Please refer to foot note 5)
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