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Plea Bargaining can be portrayed as a procedure whereby the charged may bargain with the prosecutor for a lesser penalty in return of a plea of guilt. This article, therefore, provides the study of the plea of guilt and plea bargaining under the Code of Criminal Procedure, 1973.
Plea of Guilt
A ‘guilty plea’ is an admission as to the guilt of having committed the criminal act with which the accused is charged by the court.
The procedure to plead guilty is usually divided into three steps:-
The facts are usually the events described in the charge-sheet and they are read out in court by the prosecutor. The accused will go through the facts with his/her lawyer before entering a guilty plea. If s/he does not agree to the facts, s/he should not plead guilty.
Arraignment is the part of the guilty plea process where you tell the court how you plead. In this process, the judge reads out the charge one by one and the accused is asked how he pleads to each of the charges separately. If the accused wishes to accept the charge, he pleads “guilty”.
It refers to a series of questions (generally 4 questions) that the judge is likely to ask if you plead guilty. These are:
- Are you pleading guilty voluntarily?
- Do you understand that by pleading guilty, you are admitting to facts that make up a criminal offence?
- Do you understand the consequences of a guilty plea, including that you are giving up your right to have a trial by pleading guilty?
- Do you understand that the judge does not have to follow the sentence that your lawyer or the State is recommending?
In petty offences, the judge may directly proceed with the sentencing without the plea enquiry process.
Provisions of CrPC
In a trial before a court of sessions following three provisions in the Code namely Sections 228(2), 229 and 230 speak of the plea of guilty. Under Section 228 (2), where the Judge frames a charge in a Sessions Trial, the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
If the accused pleads guilty, the Judge u/s 229 shall record the plea and may, in his discretion convict him thereon. However, if the accused refuses to plead, or does not plead, or claims to be tried or is not convicted on his plea of guilty the Judge u/s 230 shall fix a date for the examination of prosecution witnesses and documents.
Trial of warrant cases instituted on the police report
Sections 240(2), 241 and 242 of the Code deal with the trial of warrant cases instituted on police report by Magistrates. The provisions have the same wordings as Sections 228(2), 229 and 230 respectively.
Trial of warrant cases not instituted on the police report
For warrant cases instituted otherwise than on police report, provisions for the purpose can be read in Sections 246(2), 246(3) and 246(4) of the Code which is again similarly worded as the previous sections. However, in this case, the prosecution evidence (witness and documents) are recorded before the accused is explained the charges and before s/he has given an opportunity to plead.
Thus, if the accused refuses to plead or does not plead or is not convicted by the judge, the accused u/s 264 (4) is given an opportunity to cross-examine any of the prosecution witnesses already called.
Trial of summons cases
For the trial of summons cases, relevant provisions can be found in Sections 251, 252, 253(2) and 254 of the Code. Also, in summons cases, u/s 253 (2) the accused is allowed to plead guilty by transmitting a letter mentioning his plea along with the requisite fine mentioned in the summons to the court.
Offences where a guilty plea is acceptable
The CrPC does not specify any offences where the guilty plea is not acceptable. Thus, the general practice is that an accused can plead guilty in any offence. However, on the basis of the seriousness of the offence (more the punishment, more serious is the offence) and explanation is given by the accused, the court is given complete discretion in above provisions (Sections 229, 241, etc.) to decide whether it wants to convict the accused or not.
Stages for Pleading Guilty
First, in general, the plea of guilty is always required to be taken as soon as the judge frames the charge and reads it out to the accused. In a sessions trial or trial of warrant cases instituted on the police report, the charge is framed as soon as the trial commences after the opening statement of the prosecution.
However, in the trial of warrant cases not instituted on police report and summons cases, the charge is framed after the prosecution evidence has been taken. Thus, in these circumstances, the guilty plea can be taken after the prosecution has examined its evidence and the judge has framed the charge.
The question remains is can the guilty plea be taken at a subsequent stage of the trial.
STATE OF MAHARASHTRA v. SUKHDEO SINGH, [AIR 1992 S.C. 2100]
In the trial court, the charge against all the five accused was framed on the 2nd September 1988. All the five accused pleaded not guilty to the charges framed and claimed to be tried. After the recording of the plea of the accused, the proceedings were adjourned to 19th September 1988. On that date, accused no. 1 (Sukhdeo) orally informed the Trial Judge that he had killed General Vaidya and did not want to contest the case.
The trial judge gave him time to reflect till 26th of September when the accused No.1 admitted his guilt by filing a Written Statement. The SC first observed that “we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under S.313 of the Code.” Further, after considering the provisions of Section 226 to 229 of the Code relating to Sessions Trial in Chapter XVIII of the Code, the Supreme Court proceeded to state thus:
– “There is nothing in this chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself.”
Plea-bargaining refers to pre-trial negotiations between the accused and the prosecution, during which the accused agrees to plead guilty in exchange for certain concessions by the prosecutor. The accused pleads guilty to a lesser offence or to one or some of the multiple offences, in exchange for more lenient sentencing recommendations. Thus, the accused benefits by way of a discount for saving the state the unnecessary expense of convening a trial.
Plea bargaining has been introduced as a part of the judicial reform program suggested by the Malimath Commission report and on the recommendations of the 177th report of the Law Commission of India.
On 11 January 2006, Chapter 21-A containing Sections 265-A to 265-L on ‘plea bargaining’ was inserted by the Criminal Law (Amendment) Act, 2005 into the Criminal Procedure Code, 1973. The provisions can be summarized briefly as follows:
- An accused can file an application for plea-bargaining if he or she has not been convicted before,
- The application should be filed by the accused voluntarily,
- The judge would decide if the intention was mala fide or bona fide,
- Offences that affect the socio-economic condition of the country or those committed against a woman or a child below the age of 14 years or those where the accused is involved in an offence punishable with death, life imprisonment or imprisonment more than seven years are excluded from the purview of plea bargaining,
- The victim may be awarded compensation.
Withdrawal of “Plea of Guilty”
In case of a conviction based on the guilty plea of the accused, the courts typically do not allow the withdrawal of such plea unless the court is satisfied that there was some kind of injustice involved. Under Section 265D, even when the accused and the prosecution or complainant fail to mutually agree on the plea bargaining concessions, the process is initiated again and withdrawal is not allowed.
Further, under Section 265G, the Code says that there can be no appeal against the conviction made on guilty plea on the basis of which a negotiation for plea bargaining was given effect to. The only recourse against such conviction is a Special Leave Petition under Article 136 or a writ petition under Article 226 and 227 of the Constitution.
However, in the following circumstances, the courts may be inclined to allow the withdrawal of a plea of guilty:
- Accused was denied effective assistance of legal counsel, as guaranteed by law.
- The plea was not entered by the accused or anyone authorized to act on their behalf.
- Plea was not made voluntarily or was entered without knowledge of the charge or sentence.
- Accused did not receive the concessions agreed to in the plea bargain.
- Accused entered a guilty plea under the judge-approved condition that it could be withdrawn if the court rejected the agreed-upon conditions of the plea.
- Accused entered a guilty as the result of promises or threats made off-the-record.
- Apanjot Kaur, Plea Bargaining: An Indian Perspective (2015).
- Bryan Garner, Black’s Law Dictionary (11th 2019).
- N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure (6th ed. 2014).
- S. Narayana, Plea Bargaining (1st ed. 2012-13).