Report No. 154
1. The arrears of criminal cases awaiting trial are assuming menacing proportions. Grievances have been vented in public that the disposal of criminal trials in the courts takes considerable time and that in many cases trials do not commence for as long as a period as three to four years after the accused was remitted to judicial custody. Large number of persons accused of criminal offences have not been able to secure bail for one reason of the other and have to languish in jails as under trail prisoners for years.
It is also a matter of common knowledge that majority of the cases ultimately end in acquittal. The accused have to undergo mental torture and also have to spend considerable amount by way of legal expenses and the public exchequer has to bear the resultant economic burden. During the course of detention as under-trial prisoners the accused persons are exposed to the influence of hard-core criminals.
Quite apart from this, the accused have to remain in a state of uncertainty and are unable to settle down in life for a number of years awaiting the completion of trial. Huge arrears of criminal cases is a common feature in almost all the criminal courts. It is in this background, the Law Commission felt that some remedial legislative measures to reduce the delays in the disposal of criminal trials and appeals and also to alleviate the suffering of under-trial prisoners.
The Law Commission in its 142nd Report on Concessional Treatment of Offenders who on their own Initiative Choose to Plead guilty without any Bargaining, (1991), considered the question of introduction of the concept of concessional treatment for those who choose to plead guilty by way of plea-bargaining.
2. The justification for introducing plea-bargaining cannot be expressed any better than what the Twelfth Law Commission in its 142nd Report had already done as below:
(1) It is not just and fair that an accused who feels contrite and wants to make amends or an accused who is honest and candid enough to plead guilty in the hope that the community will enable him to pay the penalty for the crime with a degree of compassion and consideration should be treated on par with an accused who claims to be tried at considerable time-cost and money-cost to the community.
(2) It is desirable to infuse life in the reformative provisions embodied in section 360 of the Criminal Procedure Code and in the Probation of Offenders Act which remain practically unutilized as of now.
(3) It will help the accused who have to remain as under-trial prisoners awaiting the trial as also other accused on whom the sword of domodes of an impending trial remains hanging for years to obtain speedy trial with attendant benefits such as-
(a) end of uncertainty,
(b) saving in litigation-cost,
(c) saving in anxiety-cost,
(d) being able to know his or her fate and to start of fresh life without fear of having to undergo a possible prison sentence at a future date disrupting his life or career,
(e) saving avoidable visits to lawyer's office and to court on every date or adjournment.
(4) It will, without detriment to public interest, reduce the back-breaking burden of the court cases which have already assumed menacing proportions.
(5) It will reduce congestion in jails.
(6) In the USA nearly 75% of the total convictions are secured as a result of plea-bargaining.
(7) Under the present system 75% to 90% of the criminal cases if not more, result in acquittals.
3. The concept of plea bargaining has not been recognized so for by the criminal jurisprudence of India. However, plea bargaining is considered to be one of the alteratives to deal with the huge arrears of criminal cases. Plea-. bargaining in its most traditional and general sense refers to pre-trial negotiations between the accused, usually conducted by the counsel and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecutor.
It has two facets. One is "charge bargaining" which refers to a promise by the persecutor to reduce or dismiss some of the charges brought against the accused in exchange for guilty plea. The second one is "sentence bargaining" which refers to a promise by the prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in exchange for a guilty plea.
4. The practice of plea bargaining in USA dates back to a century or more. The Prosecuting Agency has a leading role in this process in that it has the discretion to reduce or dismiss some of the charges against the accused and also to make recommendations to the Court about the sentences in exchange for a guilty plea.
The Supreme Court of USA in Brady v. United States, 297 US 742: 25 L Ed 2d 747 and Santobello v. New Yorke, 404 US 257 (1971); Hutto v. Ross, 50 L Ed 2d 876; Chaffin v. Stynchcombe, 412 US 17 (1973); Blackledge v. Allison, 52 L Ed 2d 136; Weatherford v. Bursey, 429 US 545 (1977) upheld the constitutional validity and the significant role the concept of the plea bargaining plays in the disposal of criminal cases.
It has approved this practice mainly on the premise that the accused who are convicted on the basis of negotiated pleas of guilt would ordinarily have been convicted had they been subjected to trial processes. One of the main arguments advanced in favour of plea bargaining is that it helps the disposal of accumulated cases and will expedite delivery of criminal justice.
5. The Supreme Court of India has examined the concept of plea bargaining in Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929 and Kasambhai v. Stale of Gujarat, AIR 1980 SC 854. The Court did not approve of the procedure of plea bargaining on the basis of informal inducement. In Kasanthhai's case the Court squarely observed that conviction based on the plea of guilty entered by the accused as a result of plea bargaining could not be sustained and that it was opposed to public policy to convict the accused by inducing him to confess to a plea of guilty "on allurement being held out to him that if he enters a plea of guilty he will be let off very lightly".
6. The Law Commission in its 142nd Report, having considered the concept as is being practised in other countries, recommended that the scheme for concessional treatment to offenders who plead guilty on their own volition in lieu of a promise to reduce the charge, to drop some of the charges or getting lesser punishment be statutorily introduced by adding a Chapter in the Code of Criminal Procedure. In making such a recommendation, however, the Law Commission considered the views in favour of the concept as well as against it.
7. We have examined the cases decided in USA as well as by the Supreme Court of India in respect of this concept and the 142nd Report of the Law Commission.1 We are of the view that plea bargaining can be made an essential component of administration of criminal justice provided it is properly administered. For that purpose, certain guidelines and procedure have to be incorporated in the Code of Criminal Procedure.
8. Having given our earnest consideration, we recommend that this concept may be made applicable as an experimental measure, to offences which are liable for punishment with imprisonment of less than seven years and/or fine including the offences covered by section 320 of the Criminal Procedure Code. Plea bargaining can also be in respect of the nature and gravity of offences and the quantum of punishment.
9. However, plea bargaining should not be available to habitual offenders those who are accused of socio-economic offences of a grave nature and offences against women and children.
9.1. The process of plea bargaining shall be set in motion after issue of process and when the accused appears, either on a written application by the accused to the Court or suo motu by the Court to ascertain the willingness of the accused. On ascertainment of the willingness of the accused, the Court shall require him to make an application accordingly.
9.2. On the date so fixed for the hearing the court shall ascertain from the accused whether the application was made by him voluntarily without any inducement or pressure from any quarters, particularly from Public Prosecutors or Police. The Court shall ensure that neither the public prosecutor nor police is present at the time of making the preliminary examination of the accused.
9.3. Once the Court is satisfied about the voluntary nature of the application, the Court shall fix a date for hearing the public prosecutor and the aggrieved party and the accused applicant for final hearing and passing of final order. If the Court finds that the application has been made under duress or pressure, or that the applicant after realising the consequences is not prepared to proceed with the application, the Court may reject the application.
9.4. Such an application may be rejected either at the initial stage or after hearing the public prosecutor and the aggrieved party. If the Court finds that, having regard to the gravity of the offence or any of the circumstances which may be brought to its notice by the public prosecutor or the aggrieved party, the case is not a fit one for exercise of its powers on plea-bargaining, the Court may reject the application supported by reasons therefor.
9.5. The order passed by the Court on the application of the accused applicant shall be confidential and will be given only to the accused if he so desires. The making of such application by the accused shall not create any prejudice against the accused at the ensuing trial.
9.6 We are of the view that such a plea bargaining can be availed of by the accused in the categories of offences mentioned above before the Court at any stage after the charge sheet is filed by the investigating agency in police cases and in respect of private complaints at any stage after the cognizance is taken. An order passed by the court on such a plea shall be final and no appeal shall lie against such an order passed by the Court accepting the plea.
9.7 In cases where the provisions of Probation of Offenders Act, 1958 and/or section 360 of Cr. P.C. are applicable to an accused applicant, he would be entitled to make an application that he is desirous of pleading guilty along with a prayer for availing of the benefit under the legislative provisions referred to above. In such cases, the Court after hearing the public prosecutor and the aggrieved party, may pass appropriate order conferring the benefit of those legislative provisions.
The Court may be empowered to dispense with the necessity of getting a report from the probation officer in appropriate cases. The provision regarding confidentiality of the making of application and the consequence of rejection outlined in paragraph 9.5 will be applicable if the application is rejected by the Court.
9.8 If an accused enters a plea of guilty in respect of an offence for which minimum sentence is provided for, the Court may, instead of rejecting the application in limine, after hearing the public prosecutor and the aggrieved party, accept the plea of guilty and pass an order of conviction and sentence to the tune of one-half of the minimum sentence provided.
9.9 The Court shall on such a plea of guilty being taken, explain to the accused that it may record a conviction for such an offence and it may after hearing the accused proceed to hear the Public Prosecutor or the aggrieved person as the case may be:
(i) impose a suspended sentence and release him on probation,
(ii) order him to pay compensation to the aggrieved party, or
(iii) impose a sentence, which commensurate with the plea bargaining, or
(iv) convict him for an offence of lesser gravity than that for which the accused has been charged if permissible in the facts and circumstances of the case.
9.10 We recommend that a separate Chapter XXIA on Plea Bargaining be incorporated in the Code of Criminal Procedure on the lines indicated above.