Plea bargaining and ADR

This article has been written by Harsimran Kaur, a 4th-year law student from New Law College, BVDU (Pune).

Concept of Plea bargaining

Plea bargaining is one of the greatest development in the field of the criminal justice system in India. It is about the idea of alternative dispute resolution and the consequent processes of negotiations and bargaining. The concept of plea bargaining is a kind of pre-trial understanding between the prosecutor and the defendant where the defendant in exchange for a promise of a lesser sentence or any other legal concession agrees to plead guilty to the charges against him/ her.


The defendant or accused should voluntarily file the application of plea bargaining in the trial court. The proceedings are held in camera and are maintained so as to ensure that the defendant speaks without any fear or bias. This is a benefit between the parties which is mutually decided and the concept of ADR is established and well maintained in plea bargaining.


Role of Plea bargaining and ADR

The system of plea bargaining enjoys an upper-hand over the forms of a criminal trial.

Firstly, plea bargaining is a confidential procedure where the plea means an accused person has filed an application under 265B, then the procedure will start where they will take his/her application into consideration.


Secondly, after that the accused has filed an application, the court will try to contact with the other party for MSD (Mutually Satisfactory Disposition) where the two parties decide to bargain their charges or fine, mutually.


Thirdly, whatever both parties agree upon, they should submit their decision or agreement to the court so that the court can give judgement on that decision. There is no trial session between these.


Characteristics of this concept

The proceedings are held in camera. Time is given to the accused and the complainant to facilitate the mutual and satisfactory disposition of cases including expenses, compensation and so on. Crimes with the punishment of more than 7 years or the punishments which are not compoundable under section 320, CRPC have been excluded from the preview of plea-bargaining.


A person accused of an offence may file an application for plea-bargaining in the court in which such offence is pending for trial. The application for plea-bargaining should be filed by the accused voluntarily. The secrecy of the matter is maintained so as to ensure that the statement made by the accused during plea-bargaining shall be voluntary and coercion-free.

KINDS OF PLEA-BARGAINING

The kinds of bargaining are as follows:

  1. Charge bargaining

  2. Fact bargaining

  3. Sentence bargaining.


Charge bargaining: In this, the accused person comes to other party to reduce the charges put on him after he pleads to the court.


Fact bargaining: It involves negotiations and acceptance of other parties to accept some facts of accused person so his/her charge can get reduced, which can be provable. This is a little-used possibility and happens in minor cases that may expose a defendant to civil liability to a crime victim. 


Sentence bargaining: In this, the prosecutor agrees to make a specific recommendation to the judge for a sentence, in return for a guilty plea.


RELEVANCE OF ADR

ADR is a method of resolving disputes without litigation (outside the courtroom). This system gives more flexibility, speed, expenses are less, freedom to select one’s own arbitrator, preserves relationship, and finality of awards.


ADR PROCESS/TYPES:

Arbitration- It is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision.


Pre-trial Mediation- This is a meeting that occurs before a trial action begins. Pre-trial hearings aim to resolve some of the legal issues before the trial begins.


Mediation- It is an ADR process where a neutral 3 rd party i.e. mediator, tries to settle the dispute with the consent of both the parties.


Negotiation- It is a method in which discussions between the parties are initiated without the

the intervention of any 3 rd party with the object of arriving at a negotiated settlement for the disputes.