Date: 27 October, 2020
by Nishtha Girdhar, UILS, Panjab University
The Latin phrase “nolo contendere” basically translates to “no contest” or “I do not wish to contest”. By entering a plea of nolo contendere, an accused neither accepts nor denies the charges but in fact agrees to accept the punishment.
Plea bargaining is a pre-trial negotiation between the accused and the State where the accused pleads guilty in trade for a reduced sentence or certain concessions in charges.
The recent Tablighi Jamaat incidence has bought into spotlight the concept of plea bargaining in India. Several members of the Tablighi Jamaat, accused of violating visa conditions, were let off by the Court after pleading guilty to minor offences and paying fines.
EVOLUTION OF PLEA BARGAINING IN INDIA
The concept of plea bargaining traces its roots to the US but it wasn’t until 2006 that the concept gained legal approval in India. It was introduced under certain amendments to the CrPC and was added via Chapter XXI-A, containing sections 265-A to 265-L.
This concept of plea bargaining was also endorsed by the Law Commission in its 142nd report (1991) which defined it as “any agreement by the accused to plead guilty in return for the prosecutor’s agreeing to take or refrain from taking a particular course of action.”
However, prior to 2006, plea bargaining was openly criticized by the judiciary as is made clear by certain judgements. In Madan Lal Ram Chandra Daga Etc vs State of Maharashtra 1968 SCR (3) 34, the High Court was reprimanded by the Supreme Court and its disapproval for the practice of plea bargaining was made very clear.
Plea bargaining was also advocated for by the Malimath Committee on Reforms of Criminal Justice System (2001-2003).
TYPES OF PLEA BARGAINING
Charge Bargain- negotiating for dropping of certain charges where there are multiple or settling for a less grave charge.
Sentence Bargain- the defence negotiates for a lighter sentence in exchange for pleading guilty for the stated charge.
Fact Bargain- the defendant admits to certain facts in exchange for an agreement to prevent disclosure of other facts.
PROCEDURE RELATED TO PLEA BARGAIN
Section 265-A: Plea bargaining is available to the accused of all offences except those punishable by death or life imprisonment or imprisonment over a term of 7 years.
Section 265-B: Application for plea bargaining to be filed by the accused, which shall contain brief description of the case relating to which such application is filed. It shall be accompanied by an affidavit sworn by the accused where in he states that he has voluntarily entered into the plea bargain. This is assured by the Court by means of in-camera proceedings where the other party is not present.
Section 265-C: Prescribes the procedure for mutually satisfactory disposition of the case.
Section 265-D: Deals with the preparation of report by the Court in case of mutually satisfactory disposition or failure of the same.
Section 265-E: The Court hears the parties on the quantum of punishment, releasing the accused on probation or admonition as under Section 360 of Probation of Offenders Act, 1958.
Section 265-F: Deals with the judgement delivered by the Court (in open court).
Section 265-G: all appeals except Special Leave Petition under Articles 226 and 227 are barred.
Section 265-H: Details the powers vested in Court under chapter XXIA.
Section 265-I: Section 428 is made applicable to the sentence awarded on plea bargaining.
Section 265-K: Statements made by the accused under plea bargaining cannot be used against him for any other purpose.
Section 265-L: Chapter XXIA inapplicable in case of juvenile as under Juvenile Justice (Care and Protection of Children) Act, 2000.
QUANTUM OF PUNISHMENT
In cases involving minimum punishment, the court may give half the minimum on plea bargaining (Section 265-E).
In certain cases, the court may award one-fourth of the punishment.
It was ruled by the Bombay High Court that the courts have no jurisdiction to award sentence other than that provided for in Section 265-E(d) [Guerrero Lugo Elvia Grissel v. State of Maharashtra, 2012 Cri LJ 1136(Bom)].