What Is Plea Bargaining In Criminal Proceedings?

When a person is Accused of an offence punishable with maximum imprisonment upto 7 years, the accused person may agree to plead guilty in exchange of a lessor punishment or a lessor charge. The plea bargaining is for crimes which are not heinous in nature like theft, cheating, hurt etc. The Accused cannot plea bargain for the crimes that affect socio economic condition of the country or where the offence is committed against women or a child below 14 years of age. The concept of plea bargaining is stated in Section 265(A) to 265(L), Chapter XXI of the Criminal Procedural Code.

For plea bargaining, the Accused person is required to file an application under Section 265(A) of Cr.P.C. alongwith affidavit seeking plea bargaining before the Court where the matter is pending trial. (Plea Bargaining application can only be moved by the Accused in the criminal cases where charge sheet has been filed and trial in the said case is pending).

The application for plea bargaining should state that the application has been voluntarily filed by the Accused who understand the consequences of plea bargaining. The Accused is required to state in the application that he has not previously been convicted nor had been charged with the same offence by any other court.

Upon filing of the said application, a notice is served to the Public Prosecutor (Counsel for the state), Investigating Officer and the victim (Complainant on whose instance the said Case/FIR was registered) by the Court and a date is fixed for consideration of the application. On the said date fixed, the Court shall examine the Accused in Camera to satisfy itself that the Accused has filed the application voluntarily without any force and coercion. Thereafter, the Accused, Public Prosecutor, Investigating Officer and the victim are given opportunity to negotiate amongst themselves and arrive at an Agreement. If, the parties arrived at an Agreement, a report is prepared by the Court for mutual satisfactory disposition of the case and Accused may be released on a lessor punishment or only fine which may depend on case to case.

Note: The person released under plea bargaining shall always remain a convict in the said case, even if the case is for a petty offence.

Where the Accused is an illiterate person, it is often observed that the Accused do not know the consequences of being a convict and mostly, it is told to the Accused that he will be released on a fine, if he pleads guilty before the Court. (Usually, the Accused seeking plea bargaining is released on fine where the Accused has undergone judicial custody in the said case for few days/months). Many a times, innocent person also pleads guilty just to curtail lengthy and cumbersome trials.

Due to the aforesaid provision, the Accused is convicted for offences which he has not committed and that too without trial. To my opinion, the provision is waiver of the right to a fair trial and unconstitutional to that extent.

The above information is based on personal experience and no part of this should be construed as providing legal advice for any purpose.

Vikram Kumar

Advocate