Plea Bargaining-What is that?

Until before 2006 the Plea Bargaining was not the part of our Criminal Justice System. In fact this was incorporated in The Code Of Criminal Procedure, 1973 by way of Chapter XXI-A(containing Sections 265-A to 265-L)inserted by Criminal Law (Amendment) Act, 2005(Act No. 2 of 2006) through Section 4 of the said Act with effect from 5.07.2006.
This insertion in the Cr.P.C was pursuant to accepting by the Government the recommendations of the Malimath Committee although many a judgement since 1976 of the Supreme Court of India  had described this american practice unconstitutional and against the public policy.
The Rationale
The millions of pending cases overpowering the Judiciary must have provided the rationale behind the incorporation of provisions pertaining to plea bargaining in the Cr.P.C.
The Benefits
*A powerful justification in favour of Plea Bargaining was its perceived potential towards controlling expenses incidental to trial. The trial, as we shall see, is driven out of space in the administration of justice based on Plea Bargaining.
**Journey of administration of criminal justice is sought to be cut short to save money and time both, at least in theory to say the least.
***A yet another aspect of speciality of this provision is the finality of Judgement. The judgement delivered is final. No appeal lies in any Court against any Judgement based on mutually satisfactory disposition except the Special Leave Petition under Article 136 and writ petition under Article 226 and 227 of the Constitution.
Savings-
In the beginning itself it must be pointed out that provisions of plea bargaining as contained in the Cr.P.C pursuant to the aforesaid ammendment do not apply to the
              i) offence punishable with death sentence or life imprisonment or imprisonment for a term exceeding seven years.
            ii) offence against a woman or child below the age of 14.
            iii) offence that affects the socio- economic condition of the country.
             iv) the Juvenile or Child defined in sub clause (k) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
The Concept and underlying Procedures-
The following is an attempt to explain pointwise in brief about what the Plea Bargaining means exactly:
* To be precise, there is no agreement over what Plea Bargaining actually means or should mean. Nevertheless it can be safely said that the concept is based on the principle of Nolo Contendere which means 'I do not want to contest'. Thus undoubtedly it is an option made available to the accused upon his application before the trial court. In this facility the accused seeks to bargain with victim and prosecution in exchange of compensation to the victim for a lesser punishment without undergoing the trammels of Judicial trials. It is born out of the apprehension that the trial once concluded may result in that punishment which the accused wants to avoid or lessen. But this avoidance of lessening of punishment is possible only when the prosecution is agreed to the offer by the accused through a mutually satisfactory disposition of the case. The offer may include  compensation to the victim. In so far the quantum of punishment to the accused is concerned the same is decided by the court upon hearing after the mutually satisfactory disposition is signed by the presiding officer of the court and the parties to the case. [that is PP or Complainant(as the case may be), Police Officer who investigated the case, victim and last but not the least the accused who can accompany his pleader in the meeting meant to reach out such disposition.]
* The punishment to the accused may be half or one fourth of the minimum punishment stipulated for the offence or it may result in his release on probation of good conduct or admonition as found appropriate by the Court upon hearing the case after the mutually satisfactory disposition is signed.
* The role of the Court (where the case is pending for trial) starts with an application accompanied with an affidavit by the accused praying to the Court that the latter be kind enough to consider his/her application for plea bargaining.
* Upon such application the Court issues notice to the Public Prosecutor/ the complainant(as the case may be) and the accused when the latter is examined in camera. This way the Court satisfies itself that the accused has voluntarily filed the said application. After such satisfaction of the Court provides time to the PP/Complainant and the accused to work out a mutually satisfactory disposition of the case.
*The said disposition may include compensation to the victim by the accused and other expenses during the case and thereafter fix the date for further hearing of the case.  This is worth mentioning that the entire meeting is to be kept confidential at the behest of the Court. This is statutory requirement stipulated under the Cr.P.C.
Criticism
The Code does not provide any time limitation as to when this exercise towards working out a mutually satisfactory disposition has to be completed let alone reached between the parties. More importantly, the provisions apropos of plea bargaining do not bind the parties at all in respect of the fact that such meetings must result in the mutually satisfactory disposition. This makes the entire exercise open ended in ways more than one-
          a) it is free from any limitation as up to when this mutually satisfactory disposition has to be reached. Thus the parties may freewheel till they desire to drive the process of trial out.
          b) The Court has no say in respect of the fact when no mutually satisfactory disposition emerges out of such meetings save that it starts hearing the case from such stage as if no application for plea bargaining by the accused had been filed before the Court.
          c) the Code is silent to provide a clue as to when the report by the Court is to be prepared by the Court and signed by the parties once the mutually satisfactory disposition emerges as outcome of such meetings.
In view of non availability of any focused study on the subject we are not in a position to evaluate the efficiency or effectiveness of the inclusion of Plea Bargaining in our Criminal Justice System.In absence of data with respect to the issue the matter is largely unexplored as to what is the number of applications related to plea bargaining across the districts in a State or across the states in the Country. Moreover, their current status or fate is best known to be unknown. We have no choice but to grope in the dark when it comes to drawing any opinion about the effectiveness of this intervention in the century old system of criminal justice.
At last there is nothing in the Code that enumerates as to what are those offences that affect the socio-economic condition of the country. This has left the Court equipped with power of analyzing the provision in such a way to keep the matter interpreted according to their subjective opinions.
R.R.Prabhakar
03.01.2019.