RIGHT LEAP

Plea Bargaining and its Results after One Year

Joginder Singh, IPS (Retd.)
Former Director, CBI

Our system is cluttered with cases, which take almost a quarter to half time of the life, of an individual, to come to conclusion. Once in somebody else’s matter, I was talking to a leading lawyer, who is now a very important Union Cabinet Minister, so that he could take up my friend’s brief . He replied “Please tell him not to be unfortunate enough to get involved in a court case, as it is an unending legal meandering corridor.” Normally every case requires a lawyer and the litigation fight through lawyers is typified in Danny Devito’s famous quote in Other People’s Money that “Lawyers are like nuclear weapons, you have yours, I have mine, and when we use them they finish  %^% of  everything.”

According to a National Crime Research Bureau (NCRB) study, Crime in India 2002, it was reported that some three quarters of all persons held in Indian prisons had not been sentenced to jail, but were “under trial”—that is, awaiting trial. Nearly 2,20,000 cases took more than 3 years to reach court, and about 25,600 exhausted 10 years before they were completed. A staggering number of prison inmates awaiting trial have already been imprisoned, longer than the most rigorous sentence that they could ever be given for the offence they are alleged to have committed.
As on February 27, 2006, the backlog of court cases was as under: Supreme Court 33,635 High Courts 33,41,040 Subordinate Courts 2,53,06,458.

Obviously, ours is a country with a very slow criminal justice system. The prisoners spend years in the jail without going for a trial. Our Legal system fits the apt description of Pierre Joseph Proudhon, who said about the Laws: “We know what they are, and what they are worth!  They are spider webs for the rich and mighty, steel chains for the poor and weak, fishing nets in the hands of the government.”

To declutter the system, the Indian government has passed the law of plea bargaining, which will help thousands of countrymen long waiting for the trials in different jails in India. The system is loosely borrowed from the US. It is designed to pre-empt trial of offences punishable with imprisonment up to seven years. Plea bargaining system has been in vogue in the USA, where over 90% cases are disposed of, through it. In some common law jurisdictions, such as England and Wales, and Victoria, Australia, plea bargaining is permitted only to the extent that the prosecutors and the defense can agree that the defendant will plead guilty to some charges and the prosecutor will drop the remainder. The courts in such countries, have made it clear that they will always decide, what the appropriate penalty is to be. No bargaining takes place over the penalty there.

Britannica Concise Encyclo-paedia defines ‘plea bargaining’ as “Negotiation of an agreement between the prosecution and the defense whereby the defendant pleads guilty, to a lesser offence or (in the case of multiple offences) to one or more of the offences charged, in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges.”

In backlogged courtrooms, our criminal justice system, according to many jurists has collapsed, in the absence of rapid disposal of cases. Trials are slow, cumbersome, and long. Prosecutors and defense counsel require a lot of time to prepare their cases. Scheduling and ensuring presence of witnesses has become a guesswork. The time between arrest and trials is inordinately long, which affects conviction rates.

How it will work in India
Under the concept of plea-bargaining, an accused involved in criminal case, now may plead guilty in exchange for a reduced sentence. This process will help to reduce the pressure on the courts. The other side is that an accused in a criminal case may expect to reduce his sentence by pleading guilty. He may pay compensation if necessary. The most important  part of the law is, that both parties should mutually accept, the plea bargain made by the accused.
It will be applied to crimes, that attract a maximum sentence of seven years. It does not cover serious offences such as murder or crimes against women and children. Though the law in our country, came into force in July 2006, its results have started trickling down now. In the first major use of the new law by the accused persons, special courts were organised in the National Capital’s overcrowded Tihar jail, whose about 83 per cent of inmates are undertrials. It, at present houses 13200 prisoners, as against its capacity of 6500 prisoners. To play safe, the authorities chose prisoners booked under the Excise and Arms Acts to begin with, since the complainant in most of these cases was the government and hence they were ‘less-contentious’. A total of 187 cases were heard and 71 disposed of. Twenty-seven were found not fit for plea bargaining and the rest are pending till the next hearing, which will be held in the coming weeks. The initiative for organising such first camp in the jail, itself was taken by  the Delhi Legal Services Authority.

This has become possible with the amendment of  The Criminal Procedure Code, which includes a provision for plea bargaining. Under its section 265 added in 2006, prisoners charged with offences that entail a maximum imprisonment of seven years can be shown leniency  if they fulfil a set of criteria laid out by the law. The accused and the victim, or his family, are brought face to face before a magistrate to settle the case amicably. The main requirements are that the prisoner requesting for plea should confess his crime and that the victim’s side agree to the reduced  punishment.
Equally important, the “mutually satisfactory disposition” envisaged by the amendment requires the culprit to pay compensation, as part of the deal under which the accused is imprisoned, for not more than half the minimum sentence he is liable to serve.

For taking advantage of this law, the accused will have to file an application for plea    bargaining  any time  before  the  commence-ment of the trial.  The court will consider the application only, if it is accompanied by an affidavit stating that the accused has  “voluntarily” opted for plea bargaining and that he had not previously been convicted on the same charge. On this, court will issue a notice to the prosecutor or complainant. The court will further examine the accused in camera to satisfy itself that he has filed the application voluntarily.  If the court is satisfied that the application is indeed voluntary, it shall allow time to the parties concerned, to work out a mutually satisfactory disposition which may include a compensation to the victim from the accused. However, the court will have to ensure, that the process of working out a satisfactory disposition is also voluntary and allow the accused himself to participate in it. If a satisfactory disposition has been worked out, the court will prepare a report which will have to be signed by the judge and all the parties concerned.

While disposing of the case, the court will direct the accused to pay the agreed compensation to the victim and hear the parties on the quantum of punishment, to the accused.
If the accused is a first-time offender, the court will have the option of releasing the accused on probation despite his conviction.

Alternatively, it may sentence the accused to half the minimum punishment prescribed for the offence in question.  The judgment based on plea bargaining shall be final and there will be no statutory right of appeal against it.
The accused  who pleads guilty as part of a plea bargain gives up the constitutional  right to confront and question one’s accusers, and the right to refuse to incriminate oneself.  Anything which reduces crimes and puts the erring people on the path of reformation is welcome. The example of Delhi needs to be copied all over the country. It should be mandatory for all States to hold such camps. More than that every jail inmate should be apprised of the new law and how they can take advantage of it. Even now when a person is arrested for a crime covered under the plea bargaining, he should be told about the law.  Many laws, as certainly make bad men, as bad men make many laws. But this is a good law. Our Legal System needs to be simplified from time to time and it must move with the times. Its aim should be justice and not what once an American judge Oliver Wendell Holmes said: “This is a court of law, young man, not a court of justice”.