Plea Bargaining

Plea bargaining is an agreed disposition of a criminal case in which the accused pleads guilty and receives a reduced sentence, and the victim receives compensation. It was introduced into Indian law by the Criminal Law (Amendment) Act, 2005, which inserted Chapter XXI-A into the Code of Criminal Procedure, 1973, following the recommendations of the Law Commission and the Malimath Committee, and it is now contained in Chapter XXIII of the Bharatiya Nagarik Suraksha Sanhita, 2023. It is the only one of the settlement mechanisms in criminal law that ends in a conviction.

The steps in a plea bargain, the sentence that follows, and where it is not available

1. Meaning and Origin

In its developed form, as practised in the United States, plea bargaining covers three kinds of bargain: on the charge, where a lesser charge is substituted; on the count, where some counts are dropped; and on the sentence, where the plea is exchanged for a lighter punishment. Indian law adopted only the third. The accused does not negotiate what he is charged with; he applies for a mutually satisfactory disposition of the case as charged, and the reward is a reduced sentence.

The justification offered is practical. A very large proportion of criminal cases end in acquittal after years of trial, undertrial prisoners spend long periods in custody awaiting a decision, and the victim receives nothing. A disposition that produces a conviction, compensation and an end to the proceeding serves the accused, the victim and the system. The objection is equally practical: an innocent accused facing delay and custody may plead guilty to escape the process, and the conviction remains on his record.

2. Where It Is Available

1. The offence must be punishable with imprisonment of up to seven years. Offences punishable with death, with imprisonment for life, or with imprisonment exceeding seven years are excluded.
2. It must not affect the socio-economic condition of the country. The Central Government notifies the offences so excluded, and the notification covers a wide range of economic and regulatory legislation.
3. It must not have been committed against a woman or against a child. This exclusion is absolute, and it removes a large part of what would otherwise qualify.
4. The accused must not be a repeat offender in respect of the same offence, where the Chapter so provides.
5. The application must be made in time. The Sanhita of 2023 requires the application to be filed within thirty days from the date on which the charge is framed, which is a new restriction; under the Code of 1973 no such period was prescribed.

3. The Procedure

• Application. The accused files an application in the court in which the offence is pending trial, containing a brief description of the case and an affidavit stating that he has voluntarily preferred the application after understanding the nature and extent of the punishment, and that he has not previously been convicted of the same offence.
• Examination in camera. The court issues notice to the Public Prosecutor or the complainant and to the accused, and examines the accused in camera, in the absence of the other party, to satisfy itself that the application has been filed voluntarily.
• Working out the disposition. Where the court is so satisfied, it gives the prosecution, the investigating officer, the victim and the accused a period of sixty days to work out a mutually satisfactory disposition, which may include compensation to the victim and other expenses. The process is conducted by the court, and the accused may participate with his pleader.
• The report. Where a disposition is worked out, it is reduced to writing and signed by the presiding officer and by all the participants. Where it is not, the court records that observation and proceeds with the trial from the stage the application was filed.
• Disposal. The court awards the compensation agreed, hears the parties on the quantum of sentence, and disposes of the case.

4. The Sentence

Section 293 governs the disposition. The court awards the compensation agreed, hears the parties on the quantum of punishment, and may release the accused on probation of good conduct or after admonition, or deal with him under the Probation of Offenders Act, 1958. Otherwise the sentence is fixed by a set of fractions, and the Sanhita of 2023 adds a concession for the first-time offender which the Code of 1973 did not contain.

The period already spent in custody is set off. Section 294 requires the judgment to be delivered in open court and signed by the presiding officer, and Section 295 makes it final: no appeal lies in any court, except a special leave petition under Article 136 and a writ petition under Articles 226 and 227 of the Constitution. Section 296 preserves the court's ordinary powers as to bail and the conduct of the case, and the Chapter has effect notwithstanding anything inconsistent in the rest of the Sanhita. A child or juvenile within the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot use the Chapter.

5. Plea Bargaining and Compounding

The difference of result is the one to carry away. Compounding wipes out the offence and the accused is acquitted; plea bargaining records a conviction and reduces the sentence. An accused with a genuine defence, or one for whom a conviction would carry a collateral consequence such as disqualification from employment, is far better served by composition or by quashing than by a plea bargain.

6. Plea Bargaining and Mediation

7. Assessment

Plea bargaining has been used very little in India. Several reasons are offered: the exclusion of offences against women and children and of socio-economic offences removes much of the field; the accused gains a conviction, which many would rather avoid even at the cost of a long trial; the bargain is on sentence alone, so the accused cannot escape the charge; and defence counsel have no professional incentive to recommend it. The criticisms of principle are that it places pressure on an accused who is presumed innocent, that it may reward the resourceful accused who can pay compensation, and that it converts a public trial into a private transaction. The answer offered is that the safeguards of voluntariness, judicial supervision and victim compensation distinguish the Indian scheme from the bargaining practised elsewhere, and that a system with a pendency measured in crores must find some consensual route through the criminal docket as it has through the civil one.

8. Related Topics and Provisions