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.


Conciliation- It is an ADR process wherein the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their differences.


Conciliation U/N CPC- Section 89 has been inserted in the Civil Procedure Code, 1908 in order to provide for an alternative dispute resolution. (Other provisions also)


LEGISLATIVE INTENTS:


SECTION 265A

This section is applied with respect to the accused against whom; the FIR has been registered and a police report has been submitted to the court and the charge sheet shall contain the charge of 7 years and life imprisonment and no death sentence.


Exceptions:

The minor whose age is below 14 years and women can apply for plea bargaining even if they had committed an offence for which the punishment is more than 7 years.

In socio-economic offences, the accused cannot apply for plea bargaining even if the punishment for that offence is less than 7 years.


SECTION 265B

Application of Plea Bargaining:

One has to file an application and forward it further to the court to take in consideration, and this application will only be approved by the court when the court will be satisfied by that. The application moved by the accused is should be voluntary. If the court found out that this application is filed involuntarily by the accused, then a regular trial will take place.


SECTION 265C

Guidelines for mutually satisfactory disposition:

As per this section, The court shall issue the notice to 4 persons who will sit together and make of a mutually satisfactory disposition and the 4 persons will be:

  1. Public Prosecutor

  2. Investigating Officer of that case

  3. Accused

  4. The victim and the accused can include their pleader to get a satisfactory disposition


SECTION 265D

Report of mutually satisfactory disposition:

As per this section, where the meeting u/s 265C and a satisfactory disposition of the case has been worked out and the report shall be submitted to the court and the same shall be signed by the presiding officer of the court and all the persons who have participated in the meeting.


SECTION 265E

Disposal of the case:

As per this section, after getting the report u/s 265D the court can dispose of the case in the following manner:-

a) By granting lesser punishment to the accused.

b) By awarding compensation to the victim.

c) The court can realise the accused.

d) Any other decision that the court seems appropriate.


SECTION 265F

Judgement by the court:

According to this section, The court shall deliver its judgement in the open court and the same shall be signed by the presiding officer of the court.


SECTION 265G

Finality of the judgement:

The judgement delivered by the court u/s 265F shall be the final judgement, no appeal (except the special leave petition under Article 136 and writ petition under Articles 226 &227 of the Constitution) shall lie in the court against such judgement.


CONCLUSION

Plea bargaining was added after a 2006 amendment under Cr.PC and pre-trial negotiation. It is an alternative form of redressal. Pre-trial negotiation takes place between the accused and the other party i.e. prosecution side, in which an accused pleads guilty to his criminal charges, and in exchange the other party, if they drop some charges, reduces a charge or recommends that the judge enter a specific sentence acceptable to the defence.


With the time changing world where all the countries are shifting to the ADR process from the traditional litigation process; which gets really lengthy and time-consuming, the plea bargaining may be one of the best recourses as an ADR mechanism to meet the challenges of disposal of huge pending cases.