Probation vs Plea Bargaining: The Road to Conviction by Agreement and a Destination It Can Lead To, with the History, Scope, Procedure and Finality of Plea Bargaining under the BNSS and the Place of Probation in Section 293

Plea bargaining and probation are not rivals. Plea bargaining is a procedure: a way of bringing a case to a conviction by agreement between the accused, the prosecution and the victim, in exchange for a lighter outcome. Probation is an outcome: a way of dealing with an offender once convicted. Section 293 of the BNSS joins them by listing probation as one of the ways a plea-bargained case may end. This note explains plea bargaining in full, compares it with probation, and shows why probation is often the best result an accused can obtain from a bargain.

1. The Road and the Destination

Think of plea bargaining as a shorter road to the end of a case, one that skips the long trial in exchange for the accused's admission of guilt. Probation is one of the destinations at the end of any road that leads to conviction, whether the long road of a full trial or the short road of a bargain. Asking 'probation or plea bargaining?' is like asking 'Delhi or the expressway?'; the expressway may take you to Delhi.

Figure 1: Plea bargaining and probation compared

2. From Rejection to Legislation

• Early disapproval. In Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684 the Supreme Court criticised bargains on guilt. In Kasambhai Abdulrehmanbhai Sheikh v. State of Gujarat, (1980) 3 SCC 120 it held that a conviction obtained by plea bargaining was contrary to public policy and unconstitutional, and State of U.P. v. Chandrika (1999) reaffirmed that courts could not decide cases on that basis.
• Reform proposals. The Law Commission's 142nd and 154th Reports and the Malimath Committee on Reforms of the Criminal Justice System (2003) recommended a statutory scheme to reduce delay and backlog.
• Legislation. The Criminal Law (Amendment) Act, 2005 inserted Chapter XXIA (Sections 265A to 265L) into the CrPC, in force from 5 July 2006. The BNSS carries the scheme forward in Chapter XXIII, Sections 289 to 300, with important changes.

3. Scope: Who Can Bargain

Figure 2: Eligibility for plea bargaining under Section 289 BNSS

• Offences up to seven years. Plea bargaining applies to offences other than those punishable with death, life imprisonment or imprisonment exceeding seven years.
• Excluded offences. Offences affecting the socio-economic condition of the country as notified by the Central Government, and offences committed against a woman or a child below fourteen years.
• Excluded persons. It does not apply to a juvenile or child as defined in the Juvenile Justice Act, 2015 (Section 300)
• Time limit. The application must be made within thirty days from the date of framing of charge (Section 290). This limit is new in the BNSS.

4. Procedure

Figure 3: The stages of plea bargaining under Sections 290 to 295 BNSS

• Application and voluntariness. The accused files an application with an affidavit that he is doing so voluntarily. The court examines him in camera, without the other side present, to satisfy itself that the application is voluntary (Section 290)
• Mutually satisfactory disposition. The court gives time to the accused, the prosecutor and the victim (and, in a case on a police report, the investigating officer) to work out a mutually satisfactory disposition, which may include compensation and expenses to the victim (Section 291)
• Report and disposal. The disposition is recorded in a report signed by the participants (Section 292), and the court disposes of the case under Section 293.
• Judgment and finality. The judgment is delivered in open court (Section 294) and is final; no appeal lies except by special leave to the Supreme Court or a writ petition to the High Court (Section 295)
• Protections. Detention already undergone is set off against the sentence (Section 297), and statements or facts stated in the application cannot be used for any other purpose (Section 299)

5. Where Probation Fits: Section 293

Figure 4: The outcomes available under Section 293 BNSS

• Compensation comes first. The court awards compensation to the victim in accordance with the disposition.
• Probation or admonition. If the court considers that the accused can be released on probation of good conduct or after admonition under Section 401 BNSS, the Probation Act or any other law, it may do so.
• Reduced sentence. Otherwise, where a minimum is prescribed, the court may impose half the minimum, or one-fourth for a first-time offender; where no minimum is prescribed, one-fourth of the maximum, or one-sixth for a first-time offender.
• Why probation is the better outcome. A reduced sentence is still a sentence, with its ordinary consequences. Release under the Probation Act means no sentence at all and brings Section 12, which removes statutory disqualifications. For an eligible accused, counsel should press for probation first.

6. The Comparison, Point by Point

• Nature. Plea bargaining is a procedure for reaching a conviction and a disposal by agreement. Probation is a way of dealing with an offender after conviction.
• Stage. Plea bargaining begins within thirty days of charge. Probation is considered at sentence, whatever route led to the conviction.
• Scope. Plea bargaining is confined to offences up to seven years, with exclusions. Probation under Section 4 extends to any offence short of death or life imprisonment, unless excluded.
• Role of the victim. In plea bargaining, the victim participates in the negotiation. In probation, the victim's interests are protected through compensation under Section 5.
• Appeal. A plea-bargained judgment is final under Section 295, subject only to special leave or writ. A probation order after trial can be appealed or revised under Section 11 of the Act.
• Effect on record. Both follow a conviction. Only release under the Probation Act brings Section 12.

7. Quick Revision and Memory Aids

• 'Expressway to Delhi'. Plea bargaining is the route; probation can be the destination.
• 'Seven, socio-economic, woman, child below 14, juvenile'. The limits of plea bargaining.
• 'Thirty days from charge'. The BNSS time limit.
• 'Half or quarter; quarter or sixth'. Reduced sentences for others and for first-time offenders.
• 'Final, but SLP and writ survive'. Section 295.

8. Frequently Asked Questions

What is the difference between probation and plea bargaining?

Plea bargaining is a procedure under Sections 289 to 300 BNSS for reaching a conviction and disposal by agreement. Probation is release on a bond of good conduct instead of sentence after conviction, and it can be one of the outcomes of plea bargaining under Section 293.

Can an accused who plea bargains be released on probation?

Yes. Section 293 BNSS allows the court to release him on probation of good conduct or after admonition under Section 401 BNSS or the Probation of Offenders Act.

Is there an appeal against a plea-bargained judgment?

No. Section 295 makes it final, subject only to a special leave petition under Article 136 or a writ petition under Articles 226 and 227.

Within what time must a plea bargaining application be filed?

Within thirty days from the date of framing of charge (Section 290 BNSS).

9. Related Topics and Provisions

• Topic 21: Probation under the BNSS. Section 293 in brief.
• Topic 15: Section 12. Why release under the Act is more beneficial.
• Topic 26: Probation vs Other Concepts. The short comparison.
• Topic 34: Conviction vs Sentence. Appeals after a plea of guilty.