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Plea Bargainin

g Submitted By:

Ivneet Walia

LL.M 1ST Year

Roll No. 3001

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Concept of Plea Bargaining Plea Bargain is an agreement in a criminal

case whereby the prosecution offers the defendant the opportunity to plead guilty to a lesser charge in return for an agreed sentence or dismissal or reduction of charges.

Remedial legislative measures were taken by the Law Commission in its 142nd Report in which the question of Introduction of Concept of Concessional Treatment for those who chose to plead guilty by way of Plea Bargaining.

Plea Bargaining has been inserted in the Criminal Procedure Code.

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Historical Background

The practice of Plea Bargaining is a prominent feature in America for the matter of dispensing justice and its origin there goes back a century or more. One of its such case was found in Almeda County, California in about 1880's, where the judges stated that “Plea Bargaining was not as pervasive as it is now ....not even close to it...but it was by no means rare”. In the year 1969, James Earl Ray pleaded guilty for assassinating Martin Luther King, Jr. to avoid, execution sentence.

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Categories of Plea Bargaining Charge Bargaining: This is the most common

form of bargaining in which the promises are made by the prosecution to reduce or dismiss some of the charges.

Sentence Bargaining: It refers to the promises by the prosecutor to recommend a specific sentence or to refrain from making a sentence.

Fact Bargaining: This is the least used negotiation which involves an admission to certain facts in return of a promise for not introducing other known facts as evidence before court.

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R v. Turner, [1975] 1 All ER 70

TURNER RULES Firstly, that defense counsel should be free

to give advice to the defendant if necessary in strong terms about the best approach.

Secondly, defendants should have the freedom of choice having heard the advice.

Thirdly, the judge should never indicate the likely sentence except to say that the sentence will take the same form whether the defendant pleads guilty or is convicted.

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SAILENT FEATURES OF PLEA BARGAINING

The Plea Bargaining is permissible only in case of those offenses for which punishment of imprisonment is up to a period of 7 years.

It is not applicable in cases in which the socio-economic condition of the country is affected.

Second timer’s i.e. Persons who have been convicted for an offence under the same provision at any time in the past are also excluded.

It is also not applicable if the offence has been committed against a women or a child below 14 years of age.

The accused should file the application for Plea Bargaining voluntarily, the court may examine the accused in camera to assure and ascertain that application has been filed without any duress or coercion.

The application may be filed by the accused in the court in which such offence is pending for trial.

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Contd… The court may then issue a notice to the public prosecutor to work

out mutually satisfactory disposition of the case. Negotiations are according to free will and terms of prosecution and accused.

In case of settlement, court can award compensation depending on the case to the victim and hear parties on issue of punishment.

The court may then release the accused on probation if law provides for it .The accused may get the benefit under Section 428 of the Code of Criminal Procedure, 1973 which allows setting off the period of detention undergone by the accused against the sentence of imprisonment in Plea-Bargained settlements.

The statements or facts stated by the accused in an application for Plea Bargaining must not be used for any other purpose.

Judgment shall be delivered in an open court and all the terms of mutually agreed disposition be read.

The judgment of the court in case of Plea Bargaining shall be final and no appeal shall lie in any court against such judgment. But a writ petition to the State High Court under Articles 226 and 227 of the Constitution or a Special Leave Petition to the Supreme Court under Article 136 of the Constitution can be made.

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POSITIVE ASPECT OF PLEA BARGAINING

The offenses in which mutually satisfactory disposition of case can be made are limited.

The judge is not completely excluded and has a supervisory authority so the prosecution can not misuse the benefit of Plea Bargaining

Concept of plea bargain ensures that habitual offenders cannot avail this benefit

No possibility for filing an ordinary appeal helps in speedy disposal of cases against the piling up of files.

Plea Bargain gives an opportunity to an honest and candid accused who wants to plead guilty to make amends for the wrong done by him.

It will provide relief to the under trials awaiting trial with supplementary benefits such as end of uncertainty, reduction in litigation etc

Within the interest of public the concept of Plea Bargaining helps bear the back breaking burden of criminal cases.

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NEGATIVE ASPECTS OF PLEA BARGAINING

The concept may ignite more cases of crime. In country like India concept is not very

consistent with conditions of state because of low literacy rate.

Few critics claim that process is not fair in case of innocent.

In case of countries like India involving police may introduce a fear of coercion as well as corruption.

In case of appeal under article 226 and 227 of the constitution it is unclear whether the victim of offense can utilize this remedy.

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Conclusion

“It would be a mistake to dismiss plea negotiation as a distasteful practice made

necessary only by the unhappy reality of an unburdened criminal justice system plea

bargaining is not inherently shameful practice; it ought not on a theoretical level,

be characterized as failure of principle practiced properly it should to the contrary

be recognized as the expression and merging of the two complementary principles

: those of efficiency and Restraint..................”