Plea Bargaining

(b) a Magistrate has taken cognizance on a complaint of such an offence, and, after examining the complainant and witnesses under section 223, has issued process under section 227.

But the Chapter does not apply where the offence:

• affects the socio-economic condition of the country; or
• has been committed against a woman; or
• has been committed against a child.

Sub-section (2). The Central Government shall, by notification, determine which offences are those affecting the socio-economic condition of the country.

Section 300 adds the last exclusion: nothing in the Chapter applies to any juvenile or child as defined in section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015. So a child in conflict with law cannot plea bargain, and an offence against a child cannot be plea bargained. The two exclusions work from opposite directions and both should be named.

Section 290: the application

Sub-section (1), and the thirty days is new. A person accused of an offence may file an application for plea bargaining within thirty days from the date of framing of charge, in the Court in which the offence is pending for trial.

Sub-section (2), what it must contain. A brief description of the case including the offence, accompanied by an affidavit sworn by the accused stating:

• that he has voluntarily preferred plea bargaining, after understanding the nature and extent of the punishment provided by law for the offence; and
• that he has not previously been convicted by a Court in which he had been charged with the same offence.

Sub-section (3). The Court issues notice to the Public Prosecutor or the complainant and to the accused to appear on a fixed date.

Sub-section (4), the voluntariness check. When they appear, the Court shall examine the accused in camera, where the other party shall not be present, to satisfy itself that the application was filed voluntarily. Then:

(a) if satisfied it was voluntary, the Court provides time, not exceeding sixty days, to the Public Prosecutor or complainant and the accused to work out a mutually satisfactory disposition, which may include the accused giving the victim compensation and other expenses during the case and thereafter, and fixes a date for further hearing;

(b) if it finds the application was involuntary, or that he has been previously convicted in a case in which he was charged with the same offence, it proceeds with the case from the stage the application was filed.

Notice the in camera examination and the exclusion of the other party. The accused must be able to say he is being pressured without the person pressuring him in the room.

Section 291: the meeting

In a case on a police report, clause (a). The Court issues notice to the Public Prosecutor, the police officer who investigated the case, the accused and the victim to participate in a meeting to work out a satisfactory disposition.

In a case otherwise than on a police report, clause (b). The Court issues notice to the accused and the victim.

Both clauses carry the same two provisos. Throughout the process it is the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating. And the accused, and under clause (b) the victim too, may participate with his advocate if he so desires.

The victim is a party to the meeting in both kinds of case. That is the feature that distinguishes Indian plea bargaining from the American model it is often compared with, and it is worth a sentence in any critical answer.

Sections 292 to 295: from disposition to judgment

Section 292. Where a satisfactory disposition has been worked out, the Court prepares a report of it, signed by the presiding officer and by all the other persons who participated in the meeting. Where no disposition has been worked out, the Court records that observation and proceeds with the case from the stage the application was filed.

Section 293, disposal, and this is where the discounts are.

(a) The Court awards compensation to the victim in accordance with the disposition, and hears the parties on the quantum of punishment, on release on probation of good conduct or after admonition under section 401, or on dealing with the accused under the Probation of Offenders Act, 1958.

(b) If, after hearing them, the Court is of the view that section 401 or the Probation of Offenders Act is attracted, it may release the accused on probation or give the benefit of that law.

(c) If the law provides a minimum punishment for the offence, the Court may sentence the accused to half of that minimum; and where he is a first-time offender who has not been convicted of any offence in the past, to one-fourth of the minimum.

(d) In any other case, the Court may sentence him to one-fourth of the punishment provided or extendable for the offence; and where he is a first-time offender, to one-sixth.

Section 294. The Court delivers judgment in terms of section 293 in open Court, signed by the presiding officer.

Section 295, finality. The judgment shall be final, and no appeal shall lie in any Court against it, except a special leave petition under article 136 and a writ petition under articles 226 and 227 of the Constitution.

That exception is important and is often stated wrongly. There is no appeal; there is the constitutional remedy.

Sections 296 to 299: powers, set-off, savings and secrecy

Section 296. For the purposes of this Chapter the Court has all the powers vested in it in respect of bail, trial of offences and other matters relating to the disposal of a case under the Sanhita.

Section 297. Section 468, the set-off of detention already undergone, applies to a sentence under this Chapter as it applies to imprisonment under other provisions.

Section 298, savings. The Chapter has effect notwithstanding anything inconsistent in any other provision of the Sanhita, and nothing in those other provisions shall be construed to constrain the meaning of any provision of this Chapter. The Explanation gives "Public Prosecutor" the meaning in section 2(1)(v) and includes an Assistant Public Prosecutor appointed under section 19.

Section 299, and this is the safeguard that makes the rest workable. Notwithstanding anything in any law, the statements or facts stated by an accused in an application for plea bargaining shall not be used for any other purpose except for the purpose of this Chapter.

So an accused whose application fails does not find his own application used against him at the trial that follows.

A worked example

Vijay is charged before a Magistrate with an offence punishable with up to five years, which carries a minimum of one year. He has no previous convictions. The offence is not against a woman or a child and is not on the socio-economic notification.

Is the Chapter available? Yes. The punishment does not exceed seven years and none of the exclusions applies, section 289(1).

When must he apply? Within thirty days of the framing of charge, section 290(1), to the Court where the case is pending.

What must the application contain? A brief description of the case and the offence, and an affidavit that he prefers plea bargaining voluntarily, after understanding the nature and extent of the punishment, and that he has not previously been convicted on a charge of the same offence, section 290(2).

What does the Court do first? Issues notice to the Public Prosecutor and to Vijay, and on the date fixed examines Vijay in camera with the prosecutor absent to satisfy itself the application is voluntary, section 290(4).

It is satisfied. It gives up to sixty days for a mutually satisfactory disposition, which may include compensation to the victim, section 290(4)(a). Because the case is on a police report, the meeting is attended by the Public Prosecutor, the investigating officer, Vijay and the victim, section 291(a), and Vijay may bring his advocate.

A disposition is reached. The Court prepares a report signed by the presiding officer and everyone who took part, section 292.

What sentence can Vijay get? The Court first awards the compensation agreed and hears the parties on punishment, section 293(a). If probation is attracted he may be released on it, clause (b). Otherwise, the offence carrying a minimum of one year, the Court may sentence him to half that minimum, six months; and because he is a first-time offender, to one-fourth, three months, clause (c).

Change the offence to one with no statutory minimum, punishable with up to five years. Then clause (d) applies: one-fourth of the punishment provided or extendable, and one-sixth for a first-time offender.

Vijay has already spent two months in custody. That period is set off against the sentence, section 297 read with section 468.

Judgment. Delivered in open Court, signed by the presiding officer, section 294, and final: no appeal, though a special leave petition under article 136 or a writ under articles 226 and 227 remains, section 295.

No disposition is reached. The Court records that and the case proceeds from the stage the application was filed, section 292; and nothing Vijay said in his application may be used for any other purpose, section 299.

Distinctions

What this does NOT mean

It is not a bargain struck between the prosecutor and the accused behind the court's back. The Court convenes the meeting, supervises it, and must ensure throughout that it is voluntary.

It is not available to a repeat offender of the same offence. Section 290(2) requires an affidavit that he has not previously been convicted on a charge of the same offence, and section 290(4)(b) requires the Court to refuse where he has.

Section 295 does not oust the Constitution. It bars an appeal, expressly saving article 136 and articles 226 and 227.

And section 293 does not oblige the Court to sentence at the fraction. The word in each clause is may, and clause (b) allows probation instead.

Quick revision

• 289: applies to offences not punishable with death, life or over seven years, on a police report or on a complaint after process; excluded: offences affecting the socio-economic condition of the country as notified by the Central Government, and offences against a woman or a child.
• 300: does not apply to a juvenile or child as defined in the Juvenile Justice Act 2015.
• 290: application within thirty days of the framing of charge, with an affidavit of voluntariness and no previous conviction for the same offence; notice; examination in camera with the other party absent; up to sixty days to work out a disposition, which may include compensation to the victim.
• 291: the meeting includes the Public Prosecutor, the investigating officer, the accused and the victim in a police report case, and the accused and the victim otherwise; the Court must ensure it is voluntary; advocates may attend.
• 292: a report signed by the presiding officer and all participants; if no disposition, the case resumes from the stage of the application.
• 293: compensation first; then probation if attracted; else half the minimum, or one-fourth for a first-time offender; and where there is no minimum, one-fourth of the punishment, or one-sixth for a first-time offender.
• 294 and 295: judgment in open Court, and final, subject only to article 136 and articles 226 and 227.
• 296 to 299: the Court has its ordinary powers; section 468 set-off applies; the Chapter overrides inconsistent provisions; and the accused's statements in the application cannot be used for any other purpose.

Test yourself

1. Which offences are outside plea bargaining? Those punishable with death, imprisonment for life or imprisonment exceeding seven years; those affecting the socio-economic condition of the country as notified by the Central Government; and those committed against a woman or a child. In addition, section 300 excludes any juvenile or child as defined in the Juvenile Justice Act 2015.

2. Within what time must the application be filed? Within thirty days from the date of framing of charge, section 290(1).

3. What must accompany the application? An affidavit sworn by the accused that he has voluntarily preferred plea bargaining after understanding the nature and extent of the punishment provided, and that he has not previously been convicted by a Court in which he was charged with the same offence, section 290(2).

4. How does the Court satisfy itself that the application is voluntary? By examining the accused in camera, with the other party not present, section 290(4).

5. State the sentencing fractions in section 293. Where the law provides a minimum punishment, half of that minimum, and one-fourth for a first-time offender not previously convicted of any offence. Where it does not, one-fourth of the punishment provided or extendable, and one-sixth for a first-time offender.

6. Does an appeal lie against a judgment under this Chapter? No. Section 295 makes it final, except a special leave petition under article 136 and a writ petition under articles 226 and 227 of the Constitution.

7. What happens to what the accused said in his application if no disposition is reached? It may not be used for any other purpose except the purposes of this Chapter, section 299, and the case proceeds from the stage at which the application was filed, section 292.