A prosecutor’s view on plea bargaining in India

According to data from the National Crime Records Bureau (NCRB) 2022, out of 1,70,52,367 cases that went to trial in Indian courts, only 19,135 cases were disposed of through plea bargaining. This represents a mere 0.11% of the total cases.

This shows that the disposal of undertrial cases by the use of plea bargaining is not at all encouraging. There is a need to motivate prosecutors, judges and lawyers to make use of this provision, wherever possible.

Plea bargaining is defined as a negotiation process by which the accused offers to exchange a plea of guilty, thereby waiving his right to trial, for some concessions. This may include sentence reduction and mandatory payment of compensation to the victim.

The most pressing incentives for the prosecutor to enter into plea bargaining are the crowded court calendar, saving financial resources and accelerated disposal of pending cases. The prosecutor has to be fair and transparent in his dealings with all the parties and give the accused sufficient information so that the latter can play an informed role in the discussions. He has to interact with the victim before accepting any plea and has to consider the impact of the agreement on the victim as well as the community at large.

1. What is the appropriate stage to move an application for plea bargaining?

There is no particular provision regarding the correct stage for moving an application for plea bargaining. Section 265B(1) of the Code of Criminal Procedure (CrPC) provides that the accused may file an application for plea bargaining in the court in which the offence is ‘pending for trial’. The phrase ‘pending for trial’ has not been defined in the Code. Legally, the trial commences after the framing of charges. Therefore, it is apposite that an application for plea bargaining should be filed after charges are framed against the accused person.

However, a contrary view has been opined by the Delhi High Court in Gaurav Aggarwal v. State (2019), where it observed,

“Undoubtedly, the chapter (no. XXI-A) on “plea bargaining” permits a person accused of an offence to move an application “for plea bargaining”. But then, Section 265B (1) CrPC makes it clear that such application is to be made to the Court in which such offence is “pending for trial”, it being implicit in the said expression that the case in which such application for plea bargaining is to be entertained cannot be one which is “pending trial”. Thus, the application for plea-bargaining is entertained at a stage anterior to framing of charge or serving of notice of accusation."

One would have expected more clarity in the Bharatiya Nagarik Suraksha Sanhita (BNSS), which, however, has cemented the time limit for moving an application for plea bargaining. As per Section 290(1) BNSS, the accused may file an application for plea bargaining within 30 days from the date of framing of the charge. Dr. Upma Gautam, in her research study titled Access to Justice through Plea Bargaining as an Alternative Model to Traditional Criminal Trial in India, 2023, has stated that in practice, plea bargaining is done after the charges are framed.

2. Are the offences in the chargesheet the decisive factor for considering whether the case is fit for plea bargaining?

If the police files a charge sheet against an accused under Section 420 of the Indian Penal Code (IPC), but the trial court later adds an additional charge under Section 467 IPC, the accused may contend that for deciding a plea bargaining application, the court should only consider the offences mentioned in the original charge sheet. This argument is based on a strict reading of Section 265-A CrPC, which refers to examining the papers forwarded under Section 173 CrPC (police report).

However, the Allahabad High Court in Vinod Kumar Agarwal v. CBI (2015) rejected this view, holding that the court, while deciding a plea bargaining application, must take into account all charges framed against the accused at that stage, including any subsequently added offences, and not merely those in the original police report.

3) Whether a person who is arraigned under the Prevention of Corruption Act, 1988 may file an application for plea bargaining?

Public servants facing charges under the Prevention of Corruption Act, 1988 are often unsure whether an application for plea bargaining would be maintainable. Such an application is barred if the offence affects the socio-economic condition of the country. While the Supreme Court has, in various decisions, described offences under the Prevention of Corruption Act as economic or socio-economic offences, the position under the law is clarified by a notification dated 11.07.2006 issued by the Ministry of Home Affairs under Section 265-A(2) CrPC. This notification lists statutes whose offences are deemed to affect the socio-economic condition of the country for the purposes of Section 265-A(1) CrPC. Interestingly, the Prevention of Corruption Act, 1988 does not appear in this list. Therefore, there is no bar for entering into plea bargaining under the PC Act if the offence is punishable with imprisonment not exceeding 7 years.

4. Whether Section 265E CrPC permits discretion to the court in matters of sentencing?

As per Section 265E CrPC, where a satisfactory disposal of the case has been worked out under Section 265D CrPC, the court shall dispose of the case in the manner provided under Sec.265E (a) to (d). Section 256E (c) CrPC provides that after hearing the parties under clause b, if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to one-half of such minimum punishment. Section 265E (d) CrPC provides that if, after hearing the parties, the court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then it may sentence the accused to one-fourth of the punishment provided for the offence.

A close reading of clauses (c) and (d) reveals two possible interpretations:

1. The limits (half of the minimum punishment or one-fourth of the maximum punishment) are the highest sentences the court may impose under plea bargaining, leaving full discretion to impose a lesser sentence.

2. The limits are mandatory minimums that the court cannot reduce further, though it may impose a higher sentence up to the statutory maximum.

A special CBI court in CBI, ACB, Bengaluru v. Dr Manjula Rau & others (2021) disposed of a case on the basis of plea bargaining, relying upon the first interpretation. It was observed that the obligation imposed on the court u/s 265E CrPC to hear both sides on the question of punishment, and use of the word “may” when stating that the court may sentence the accused to half of the minimum punishment, shows that the provision is directory. The court deliberated upon the issue, observing that if an accused is convicted after a full trial for an offence punishable with up to seven years (84 months) imprisonment, the court could, based on mitigating factors, impose a sentence ranging from one day to seven years. However, if the same accused opts for plea bargaining, and if Section 265-E(d) is interpreted to set a mandatory minimum of one-fourth of the maximum punishment (21 months in this case), the court would have no discretion to go below that limit. This would unfairly disadvantage those choosing plea bargaining, resulting in discriminatory treatment.

If the legislature truly intended to fix a mandatory arithmetical minimum in Section 265-E(c) and (d), there would be no purpose in Section 265-E(a), which expressly requires the court to hear parties on the quantum of punishment. If the second interpretation is accepted, it would curtail the court’s power to impose a sentence below the stated limits, even in the presence of strong mitigating circumstances. This could lead to the anomalous situation where a person convicted after a full-fledged trial receives a lighter sentence than one who opts for plea bargaining.

It is pertinent to mention that the above decision of the CBI Court, Bengaluru, is in the teeth of the judgment of the Supreme Court in Virsa Singh v. Dept of Customs (2013), wherein the apex court observed that trial courts cannot go below the mandatory minimums of half of the minimum sentence or one-fourth of the maximum sentence, as the case may be.

Due to the large pendency of cases and languishing undertrial prisoners, the need for swift justice is paramount. In the absence of adequate infrastructure and human resources, it is barely feasible to devote equitable judicial time to each and every litigant who knocks on the courts' doors. Plea bargaining would enable the judges and prosecutors to better manage their caseloads. There is an urgent need to sensitise the legal community to effectively use this tool.

Ram Kumar is an Assistant Public Prosecutor of the Central Bureau of Investigation.