November,24,2015: Over 4,000 cases of murder, robbery and crimes against women were disposed of by courts last year after plea bargaining pacts between parties in violation of law passed by Parliament a decade ago.
The 2005 amendment to the criminal procedure law that introduced the principle of plea bargaining — whereby an offender can negotiate a compensation package with the victim — explicitly barred courts from letting the accused get away with a lighter sentence for heinous crimes punishable with more than seven years in jail and all crimes against women.
Statistics put out by the National Crime Records Bureau (NCRB), however, indicate that courts did not let this condition imposed by Parliament stand in the way of plea bargains in many cases.
According to the NCRB, courts disposed of 27 cases of murder, 55 of attempt to murder, 40 of rape and 27 of robbery by plea bargaining.
In addition, plea bargaining was used to dispose of 3,584 cases of crimes against women. These included about 2,200 cases of cruelty by husband and his relatives and 1,045 of assault with intent to outrage the modesty of women.
Retired Delhi high court Judge Justice SN Dhingra was surprised at the NCRB finding. “We all know that plea bargaining is applicable only for offences which attract punishment for seven years or less. In all other cases, there can’t be any plea bargain,” Justice Dhingra told HT, wondering if it was a case of wrong reporting by the NCRB.
An NCRB official said there was no question of an error at the bureau’s level.
Parliament turned the plea bargaining concept inspired by the United States into law in 2005 to help liquidate mounting arrears of criminal cases in courts and ease congestion in jails. But some categories of crimes were kept out of its purview to ensure the rich and powerful did not abuse the provision to the detriment of the poor.
The plea bargaining law that came into force in 2006 allows a first-time offender to negotiate a compensation package with the victim. Once the court accepts the settlement, it can set the accused free on probation or prescribe a reduced sentence, depending on the offence.
If there are no victims, the prosecution and the court take the call, such as in the case of a young private sector executive caught for drunk driving in central Delhi earlier this month. When he was produced before a magistrate, she pointed out he would have his driving licence suspended for six months if eventually convicted or he could opt for a plea bargain. He took the second option.
Apart from anecdotal evidence, little was known till recently if the law had served the intended purpose of reducing arrears of criminal cases.
The NCRB, for the first time, put a number to it in its recent report. In all, nearly 35,000 crimes under the Indian penal code had been disposed of under this provision in 2014. This is just a little over 2% of the 1.3 million cases decided through the year. Madhya Pradesh topped the list with as many as 25,000 of them. In Delhi, this provision was invoked in barely 250 cases. Maharashtra’s figure was marginally higher at 331 cases.
A police officer conceded that plea bargaining hadn’t really taken off, possibly for lack of awareness.
What is Plea Bargaining-
“Plead Guilty or bargain for lesser sentence” is the straight & shortest possible meaning of plea bargaining.
Plea bargaining refers to pre – trail negotiation between the Accused usually conducted by the counsel & the prosecution during which the defendant agrees to plead guilty in the exchange for certain concessions by the prosecutor.
Plea bargaining is the result of modern judicial thinking before the introduction of plea bargaining most courts used to ignore Plea Bargaining.
The concept of Plea Bargaining was earlier not recognized in jurisprudence of India. However accused used to plead guilty only for petty offences & pay small fine whereupon the case is closed. Initially the concept of Plea Bargaining was opposed by the legal experts, judiciary etc.
It has been introduced in the criminal procedure code in the chapter XXI A wide criminal law (amendment) Act 2005.This has change the prospect & the face of the criminal justice system.
It is not applicable in cases which are punishable with a Sentence more than 7 Years or where the offence is committed against a women or a child below the age of 14 years.
Read Plea Bargaining Law here-
CHAPTER XXI A
265 A. Application of the Chapter.
(1) This Chapter shall apply in respect of an accused against whom-
(a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or
(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204,
but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.
(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.
265 B. Application for plea bargaining.
(1) A person accused of an offence may file application for plea bargaining in the Court in which such offence is pending for trial.
(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the 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 had been charged with the same offence.
(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-
(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1).
265 C. Guidelines for mutually satisfactory disposition.
In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:-
(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Provided further that the accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the case.
(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engage in the case.
265 D. Report of the mutually satisfactory disposition to be submitted before the Court.
Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.
265 E. Disposal of the case.
Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:-
(a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;
(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;
(c) after hearing the parties under clause (b), if the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.
265 F. Judgment of the Court.
The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.
265 G. Finality of the judgment.
The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under Article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.
265 H. Power of the Court in plea bargaining.
A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Code.
265 I. Period of detention undergone by the accused to be set off against the sentence of imprisonment.
The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.
265 J. Savings.
The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be constructed to constrain the meaning of any provision of this Chapter.
Explanation. – For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.
265 K. Statements of accused not to be used.
Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining file under section 265B shall not be used for any other purpose except for the purpose of this Chapter.
265 L. Non-application of the Chapter.
Nothing in this Chapter shall apply to any Juvenile or Child as defined in sub-clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).]
1. Chapter XXIA (containing sections 265A to 265L) ins. by Act 2 of 2006, sec. 4.