Plea Bargaining

In one line

Plea bargaining is a statutory negotiation in which an accused who admits the case may, in exchange, be sentenced to a fraction of what the offence carries, provided the offence is not grave and not against a woman or a child.

In exam wording: Chapter XXIII of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits a person accused of an offence not punishable with death, imprisonment for life or imprisonment exceeding seven years to apply for plea bargaining within thirty days of the framing of charge, and provides for a mutually satisfactory disposition, compensation to the victim, and a reduced sentence.

Why the law has this at all

Because a criminal justice system with more cases than it can try has three options, and only one of them is honest.

It can let cases rot, which is what happens by default and which punishes the undertrial hardest. It can lower the standard of proof, which is intolerable. Or it can offer a defined, supervised discount to an accused who is prepared to admit the case and compensate the victim, and use the time saved on the cases that need trying.

Plea bargaining is the third. It came into Indian law by amendment to the old Code in 2005, on the recommendation of the Law Commission and the Malimath Committee, and the Sanhita has carried it over with the numbering changed and one important addition: a thirty day limit on applying.

The obvious objection is that an innocent but frightened man may plead. The Chapter answers it in four places: the accused must swear an affidavit that he acts voluntarily; the Court must examine him in camera with the other side absent; the Court must ensure throughout that the process is voluntary; and his statements in the application cannot be used for any other purpose.

Some words this chapter uses

A mutually satisfactory disposition is the settlement worked out between the prosecution or complainant, the accused and the victim. The Sanhita never calls it a bargain in the body of the Chapter.

In camera means with the public and, here, the other party excluded.

A first-time offender is, in the language of section 293, an accused who has not been convicted of any offence in the past.

Minimum punishment is a floor the substantive law fixes for an offence, below which a court ordinarily cannot go.

Section 289: who may use it, and who may not

Sub-section (1). The Chapter applies to an accused against whom:

(a) a police report has been forwarded under section 193 alleging an offence other than one punishable with death, imprisonment for life, or imprisonment for a term exceeding seven years; or