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Plea bargaining, india and United States.

Difference between plea bargaining, charge bargaining and sentence bargaining :-

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence. A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial on a more serious charge. For example, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry jail time. In cases such as an automobile collision when there is a potential for civil liability against the defendant, the defendant may agree to plead no contest or "guilty with a civil reservation", which essentially is a guilty plea without admitting civil liability. Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor for the sake of helping future clients. In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in advance what sentence will be given; however, this sentence can still be denied by the judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (ie, to affirm or concede) certain facts that will affect how the defendant is punished under the sentencing guidelines. Supreme court was originally opposed to this idea of plea bargaining : - Supreme Court originally in Murlidhar Meghraj Loya vs. State of Maharastra and in

Kasambhai Abdulrehmanbhai Sheikh vs. State of Gujarat spoke against the introduction of plea

bargaining in India also the context was that such a plea is not allowed by indian criminal justice system. However , parliament after considering law commission's recommendation

saw plea bargaining as advantageous for introduction in Indian Criminal Justice System.

In Murlidhar Meghraj Loya v. State of Maharashtra (1976) the Indian Supreme Court held, “It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society’s interests by opposing society’s decision expressed through predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.” In Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat (1980) Supreme Court held, “The practice of Plea Bargaining was unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice.” In State of Uttar Pradesh v. Chandrika (2000) the Supreme Court held, “It is settled law that on the basis of plea bargaining Court cannot dispose of the criminal cases. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced.”

However , later parliament introduced plea bargaining in Indian Legal system , acting on the advice of Law commission in 142nd , 154th and 177th report.

Plea bargaining is the new concept in Indian criminal justice

system. The Chapter XXI-A Plea Bargaining, Sections 265 - A to

265 - L is being incorporated in Code of Criminal Procedure,

1973. This chapter is inserted by The Criminal Amendment Act,

2005 (2 of 2006) brought into force on 5th July 2006. State of Gujarat v Natwar Harchanji Thakor (2005) Cr. L.J. 2957 that, “the very

object of law is to provide easy, cheap and expeditious justice by

resolution of disputes, considering the pendency and delay in

disposal in the administration of justice, such reforms are

inevitable.” Supreme Court had recommended the introduction of

plea bargaining in its various decisions also. On the advice of

recommendations of the various committees for criminal reform

and advice of Supreme Court the legislature has acted and passed

the Criminal Amendment Act, 2005 and introduced the much

needed concept of plea bargaining. " The uniqueness of this remedy was noticed when for the first time

Asia’s largest prison complex Tihar Jail saw a reduction of nearly

2,000 inmates in 2007. The Director General (Prison) said that

reduction from the 2006 figure of 13,500 inmates to 11,500 in

2007 was a milestone in the history of Tihar Jail. He further said

that “Much of this can be attributed to the plea bargaining system

introduced by the Delhi Legal Services Authority which has

benefited 664 prisoners here.”11 Thus this experience proves the

usefulness of plea bargaining. (vide GUPTA DEVINA, PLEA BARGAINING – A UNIQUE REMEDY TO REDUCE BLACKLOG IN INDIAN COURTS, Cri.L.J., 2010, at 69. ) Recommendations by the Law Commission of India -The Law Commission of India had many a times advocated the introduction of ‘Plea Bargaining’ in its 142nd, 154th and 177th reports.

The Malimath Committee on Reforms of Criminal Justice System (2001-03) applauded plea bargaining and listed the benefits it carried of serving the community interest and facilitation of an earlier resolution of a criminal case, thus reducing the burden of the Court.

142th Law Commission Report (1991)- The Report routed for plea bargaining in wake of delay in disposal of cases and the time spent by accused in jails before the commencement of trial, which exceeds the maximum punishment which can be awarded to them. Thus, it recommended a detailed structure for incorporation of plea bargaining.

154th Law Commission Report (1996)- It recommended making plea bargaining applicable as an experimental step, where an offence is punishable with less than 7 years imprisonment or for offences provided in Section 320. Further, it suggested that the option of plea bargaining can be availed after filing of charge sheet in a police case and after taking of cognizance in a complaint case. Lastly, a separate chapter in Cr.P.C. to be incorporated for the same.The 154th Report of the Law Commission of India, 1996, relying on the 142nd law commission report also recommended the introduction of the scheme of plea bargaining in the Indian criminal jurisprudence.[However this report also recommended that plea bargaining should not be available to habitual offenders, those who are accused of socio-economic offences of a grave nature and those who are accused of offences against women and children.

177th Law Commission Report (2001) - also recommended the incorporation of plea bargaining in the Code of Criminal Procedure based on the reasoning provided in the previous reports

U.S. Supreme Court upholds constitutionality and recognises the value of plea-bargaining.—It would, perhaps, be appropriate to refer to two leading cases of the American Supreme Court sustaining the constitutional validity and also the important role the concept of "plea-bargaining" plays in the disposition of criminal cases.

The constitutional validity of "plea-bargaining" has been upheld by the United States Supreme Court in Brady v. United States 297 US 742: 25 L Ed 2d 747, Justice White, who delivered the opinion of the Court, observed:

"The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorised by law. For a defendant who sees slight possibility of acquittal, the advantage of pleading guilty and limiting the probable penalty are obvious—his exposure is reduced, the correctional process can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on the pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty then might be imposed if there were a guilty verdict after a trial to judge or jury." (25 L Ed 2d 758) The United States Supreme Court has reiterated the view, in the following cases that, when properly administered, "plea-bargaining" is a proper method for administering justice:

(i) In Hutto v. Rossi 50 L Ed 2d 876 (878) the Supreme Court observed, inter alia,—

"If every criminal charge were subjected to a full scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilitised. Disposition of criminal charges after plea discussions or plea-bargaining is not only an essential part of the criminal process but a highly desirable part."

(ii) In Chaffin v Stynchcombel (1973) 412 US 17, the Supreme Court reiterated its earlier view in Santobello case that the legitimacy of the practice of "plea-bargaining" cannot be doubted and where properly administered, it is to be encouraged as an essential and desirable component of the administration of justice.

(iii) In Blackledge v. Allison, 52 L Ed 2d 136, the Supreme Court noted that it was only recently that "plea-bargaining" had become visible practice accepted as a legitimate component of the administration of criminal justice and that it was not until the decision in Santobello that lingering doubts about the legitimacy of the practice were dispelled.

(iv) Weatherford v. Bursey. (1977) 429 US 545 —The same views were reiterated by the Supreme Court in this case.

3.16. In Newton v. Rumery 94 L Ed 2d 405, Justice Stevens of the U.S. Supreme Court observed (at page 426):

"The net result of every plea bargain is an admission of wrongdoing by the defendant and the imposition of the criminal sanction with its attendant stigma. Although there may be some cases in which an innocent person pleads guilty to a minor offence to avoid risk of conviction of a more serious charge, it is reasonable to presume that such cases are rare and represent the exception rather than the rule....... the plea bargain represents a practical compromise between the prosecutor and the defendant that takes into account the burdens of litigation and its probable outcome as well as society's interest in imposing appropriate punishment upon an admitted wrongdoer. The dependent admits wrongdoing for conduct upon which the guilty plea is based and avoids further prosecution; the prosecutor need not go to trial; and an admitted wrongdoer is punished all under close judicial supervision. By simultaneously establishing and limiting defendant's criminal liability, plea bargains delicately balance individual and social advantage." Reading below is optional not mandatory :-

Reasoning of 142nd law report (since its of primary importance)

Objections to the Introduction of the Concept in Indian Legal System Answered :-

The Commission has carefully considered the various objections to the introduction of the concept in Indian criminal jurisprudence. The objections raised and the Commission's views in relation to the same are dealt below.

1. Country's social conditions do not justify the introduction of the concept.—Several respondents point out that the scheme of "plea-bargaining" might have succeeded in America and a few other European countries because of the social conditions existing in those countries. Literacy, it is pointed out, is of a high order and people in those countries, by and large, realise the consequences of invoking the scheme involving a confession to the commission of crime. It is said that the position is not the same in out country where literacy is very low.

It has to be realised that even illiterate persons with their robust common sense are capable of realising the consequences of making recourse to the scheme. The legal aid apparatus is also available for consultation if they cannot afford legal counsel.

It may be pointed out that defendants are generally advised by their trusted lawyers and there are no grounds to think that a defendant, except in very rare cases and circumstances, would make confession of guilt entailing personal and social consequences to him not with standing his innocence. Besides, the scheme which is being proposed takes care of this objection in as much as a judicial officer acting as a plea judge or a committee of two retired High Court Judges would be explaining to the accused persons the consequences of pleading guilty tinder the scheme.

2.Pressures from prosecuting agencies may result in convictions of the innocents.—One of the fears expressed is as regards the likelihood of pressure being exercised by the prosecuting agencies and even innocent persons yielding to such pressures. This fear can be allayed if a judicial officer explains the implications, and satisfies himself in the absence of any police officer that no coercion is exercised by the police and if the application is made at the initiative of the accused himself as is being provided in the scheme.

3.The poor will be the ultimate victims of the concept.—It is forcefully contended by some that acquittals in criminal trials are as high as 90 to 95 per cent. and consequently an accused and his counsel generally hope to secure acquittal in the course of a regular trial. It is claimed that a wrongdoer will not come forward to make a confession if there is the slightest possibility of acquittal. It is further claimed that a person will be willing to spend any length of time in jails as an under-trial prisoner in the hope that he will secure an acquittal when regular trial is taken up. In any event, it is pointed out that the rich, influential and well-informed accused would seldom undertake the risk of social and personal consequences of a confession as they look forward to a clean acquittal in course of time. It is eventually the poor who may come forward to making confessions and suffer the consequential conviction.

It does appear that the rate of acquittals in our criminal trials is very high. The principal reason for the acquittals, which was rightly advanced by several, Sessions Judges, is the long delay involved in taking up the trials. It was brought to the notice of the Commission that during the interregnum when accused are awaiting trials, many manipulations take place. Witnesses who were initially willing to speak truth back out because of the temptations offered an behalf of the accused to retract from the original testimony. Passage of time also affects the veracity of the evidence tendered by the witnesses who are subjected to critical cross-examination. Memories fade during the long time taken for conducting the trial and the witnesses confuse themselves of the actual course of events when they are put to severe cross-examination. It would be wrong to say that most of the trial result in acquittals because the defendants did not actually commit the crimes. The defendants escape convictions because of the aforesaid factors. Be that as it may the argument that the scheme may not succeed is merely a conjecture and a matter of opinion to which we do not subscribe. It is not a good reason to oppose the scheme. It is also not possible to proceed on the assumption that persons would be willing to spend three to eight years in jails as under-trial prisoners if there is a possibility of their release from the jail much earlier. Most people know that long periods of stay in jail bring about economic and social ruin. It is reasonable to think that such defendants will look forward to rehabilitate themselves as quickly as possible if there is a possibility of their being convicted for similar periods and released from jail.

4.Counsel representing the accused would be unwilling to advise confession invoking scheme.—This is a point forcefully put forward by the counsel in Allahabad High Court. It is claimed by them that the counsel representing the defendant are not likely to advise the clients to make recourse to the scheme. Firstly, it is said that the moment any such advice is given the defendant loses faith in the counsel representing him and will engage another counsel. Secondly, it is pointed out that after release a person who suffered conviction may be told that he would not have undergone the sentence had it not been for the advice given by his counsel. He mould be told that as in several cases his case would also have resulted in acquittal. This objection also does not appear to be sound. Nor does it provide a good ground far abandoning the idea. Counsel will doubtless give such advice as is considered to be in the interest of their clients. And the likelihood of failure of the scheme, as expressed by some, cannot justify inaction on the part of the law makers.

5. Plea-bargaining may increase the incidence of crime.—It is suggested by some that adoption of the scheme may increase the incidence of crime in the country. It is claimed that because of the expectation that a person may be let off lightly by reason of pleading guilty, offences may be committed by persons so raided. There may also be temptations to repeat the commission of offences.

In the first place, the scheme does not envisage that an application, if made, shall be necessarily accepted. The authority considering the acceptance or otherwise of the request for concessional treatment would weigh all pros and cons and, more particularly, look into the nature of offences broadly and exercise discretion to accept or reject the request. Secondly, the scheme may be restricted to a first offender. Even in the present state of law, a first offender is entitled to be enlarged on probation in respect of many offences. The fear is thus ill-founded.

6.Criminals may slip through the net with impunity.—Equally untenable is the apprehension that by resorting to the scheme criminals may slip through the net with impunity and escape due punishment. The scheme being evolved ensures that in regard to serious offence a minimum substantive sentence of imprisonment is imposed. The scheme is for "concessional treatment" not for 'no punishments. The deterrent effect of a jail term operates with equal force whether the stigma is associated with a term of 6 months or 18 months. Besides, in the present scenario even after a protracted trial more than 75 per cent. of the cases result in acquittals as discussed elsewhere. This point of criticism is, therefore, devoid of merit.

7. No social benefits accrue.—This criticism is unwarranted. There are numerous advantages, e.g.:

(1) Saving of time cost and resources cost to courts which are already over loaded.

(2) Saving of money cost to the community as also to the accused.

(3) The faith in honesty is reinforced.

(4) Rehabilitation and reformation of the offender commences early and he can start a fresh life without loss of time.

(5) When the offender pleads guilty he feels cleansed of the feeling of guilt.

When an offender is punished after a trial consequent to his "plea of not guilty" he is lowered in his own eyes. The society by implication conveys to him that his protestation of innocence is found to be untrue. In the eyes of the society also he is lowered. If on the other hand he himself feels contrite and confesses his guilt the burden of guilt carried by him becomes lighter.

Atonement by the offender satisfies his conscience sets him free of the feeling of guilt in the inner-most recesses of his heart. It thus becomes the most important pathway on the ascent to moral heights and strengthens his resolve to lead a blemish free and pro-social life. If the atonement is deep and sincere, the offender is likely to have an abiding awareness that he has been morally reinstated. It also results in the object of protecting society being achieved along with attainment of the object of moral and social regeneration of the criminal.

Conclusion.—On weighing the pros and cons of the matter it is felt that scheme for concessional treatment in respect of those offenders who on their own volition invoke the scheme which takes care of appropriate safeguards may prove beneficial.

It will also make the provisions relating to release on probation which are already on the statute book really effective. For, it is of little use to invoke these provisions, at the conclusion of a full-fledged and full-dressed trial "after" investing time, effort and money in recording evidence and recording a finding of guilt. If the scheme is invoked an offender can seek the benevolent provisions relating to probation without having to undergo the rigours of a trial. The idea, therefore, need not be abandoned. In fact the crying need to evolve a suitable scheme cannot be disregarded. Doctrine of Nolo-Contendere In United States : Practice and Scope :-

In United States, in some jurisdictions, the plea of "Nolo Contendere" is available "Nolo Contender" or "no contest" is not an 'admission of guilt', but rather a 'willingness to accept declaration of guilt', rather than to go to trial. It is treated as a guilty plea to serve one purpose not served by a guilty plea in a subsequent civil suit possibly arising out of same event. Guilty plea is admissible as evidence against the defendant (accused) but plea of "Nolo Contendere" is not. It may be stated that the expression, "defendant" is used in India in the civil dispute against whom civil action is taken whereas in United States, this expression is used in criminal trial also, and thus, the defendant is an accused. David Gorden has observed that the Latin word, 'nolo' means "I do not choose it'. This statement, variously, defined as 'plea of no contest' and 'not a plea of guilty' does not mean that defendant will not fight the same charges against him of the same as that of guilty plea. It admits the fact charged, but cannot be used as a confession of guilt in other proceedings. Acceptance of such a plea by a Court is discretionary.

The judgment of, conviction entered on a plea of "Nolo Contendere", may be used, by the accused as a basis of 'plea of double jeopardy', since conviction and punishment, after the "Nolo Contendere" plea operates for the protection of the accused against subsequent proceedings, is as full as a form of conviction or an acquittal after the plea of guilty or not guilty.

As held in "Fox v. Schedit and in State exrel Clark v. Adams, 363 US 807", the plea of "Nolo Contendere" sometimes called also "Plea of Nolvut" or "Nolle Contendere" means, in its literal sense, "I do no wish to contend", and it does not origin in early English Common Law. This doctrine, is also, expressed as an implied confession, a quasi-confession of guilt, a plea of guilty, substantially though not technically a conditional plea of quality, a substitute for plea of guilty, a formal declaration that the accused will not contend, a query directed to the Court to decide on plea-guilt, a promise between the Government and the accused, and a Government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only.

Be it noted, that raising of plea of "Nolo Contendere" is not ipso facto, a matter of right of the accused. It is within the particular discretion of the Court concerned to accept or reject such a plea. However, if the Court accepts such plea, it must do so unqualifiedly. It is, therefore, clear that if such plea is once accepted, by the Court, the accused may not be denied, his right to raise such plea. The Court cannot accept such plea having rights of the accused and determination of facts on any questions of law. Of course, the discretion of the Court, if plea is accepted, has to be exercised in light of special facts and circumstances of the given case. It is, also held at times that such discretion vested in the Court has to be used only when special considerations are present. It is, also important to mention, at this stage that in the absence of statutory provisions to the contrary, consent of a prosecutor is not required as a condition for refusing the plea of 'Nolo Contendere' by the Court. And the fact that the prosecutor's consent is not generally required would not tantamount to non-consideration of his version or attitude. The Court is required to consider the prosecutor's version as an important factor in influencing the Court in deciding whether such plea should be accepted or not.

Upon the acceptance of a plea of "Nolo Contendere" for the purpose of the case in which such a plea is made, it becomes an implied confession of the guilt equivalent to a plea of guilty; that is the incidence of plea. So far as a particular criminal action in which the plea is offered is concerned, rather than the same, as of a plea of guilty, of course, it is not necessary that there should be adjudication by the Court that the party whose plea is accepted as guilty, but the Court may immediately impose sentence. This proposition is very well elucidated in "United States v. Risfeld, 340 US 914". However, it may be noted a new dimension was evolved in "Lott v. United States, 367 US 421", where the Court, after stating that the plea is tantamount to an admission of a guilt for the purpose of the case, added that the plea itself, does not constitute a conviction, and hence, is not a determination of guilt. As found from some of the judicial pronouncements, it is beyond the purview of the Court once a plea of "Nolo Contendere" is needed to make in adjudication to the guilt of the accused.

The plea of "Nolo Contendere", barring a few percentages of cases, has been recognised in the administration of criminal justice in many countries, including the United States, and has resulted into substantial reduction in the workload of the criminal justice system. Such a plea, it has been stated, has a success of practical aspect over the technical one. In the criminal justice delivery system, should India not consider the introduction and employment of such a plea when Courts are flooded with astronomical arrears, the trial life-span is inordinately long and the expenditure is very heavy, as an effective Alternative Dispute Resolution in certain identified criminal cases? This issue, undoubtedly, requires serious consideration at this juncture, and a trial on experiment basis, also, when we are at the crossroads and Courts are obliged to engage and address itself in early, easy, less expensive and simple way of disposal of criminal cases in the criminal justice system.

The plea of "Nolo Contendere" in our country is not used in strict sense in absence of any statutory provision or necessary enactment. However, this plea plays a very important role in many jurisdictions in United States, Scotland and other European and non-European Courts.


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