Plea Bargaining under Bharatiya Nagarik Suraksha Sanhita, 2023

By HarshitaPublished on 26 Dec 2024 7:02 PM IST

Plea bargaining under the Bharatiya Nagarik Suraksha Sanhita aims to streamline justice delivery while ensuring fairness and protecting victims' rights.

Plea Bargaining under Bharatiya Nagarik Suraksha Sanhita, 2023

Plea bargaining, as a concept, is derived from the Latin phrase nolo contendere, which translates into "I do not wish to contest". It is prominently known to be used in the US jurisprudence. In simple terms, plea bargaining is a legal mechanism with an agreement between the prosecution and defence, where the accused is advised to admit the crime with which they have been charged for the lesser punishment.

Introduction

Plea bargaining as a provision was introduced into the Code of Criminal Procedure, 1973 (CrPC) in India through the Criminal Law (Amendment) Act, 2005, and became effective from July 5, 2006. But before any legislative insertion as such, the courts had disregarded the idea of plea bargaining, holding it unconstitutional, illegal and something which would encourage corruption and undermine the very essence of the idea of criminal justice.^[1]

The Supreme Court has taken similar views in the case of Uttar Pradesh v. Chandrika; the Court observed that mere acceptance or admission of guilt should not be grounds for sentence reduction. The accused is not, as such, entitled to have a lesser sentence in exchange for pleading guilty.^[2]

However, later on, as the cases started piling up along with the inordinate delays in the criminal courts, the
Malimath Committee Report suggested the addition of plea bargaining as a concept for speedy disposal of cases and reduced burden on courts.^[3] Although the old set of three criminal laws has changed, the conceptual understanding of plea bargaining remains unchanged, as it is mentioned in sections 289 to 300 of the newly introduced act.

This article discusses plea bargaining under the newly Bhartiya Nagarik Suraksha Sanhita, 2023.

Plea Bargaining Under BNSS and CrPC

Introduced under Chapter XXI-A of the Code of Criminal Procedure, 1973 (CrPC), Chapter XXIII Bharatiya Nagarik Suraksha Sanhita, 2023, as said earlier, retained the provisions but with some changes, one of the key differences is that, unlike the provisions of the CrPC, which lacked the provision for the specific time the BNSS mandates filing for plea bargaining within 30 days of charge framing, the same was observed by the Delhi High Court in the case of Gaurav Aggarwal v. State, wherein the Court observed that the application of plea bargaining has to be at a stage before framing charges.

Thus, the application for plea-bargaining is entertained at a stage anterior to the framing of the charge or serving of notice of accusation. ^[4]

Moreover, the BNSS provides for relaxation for first-time offenders with no prior convictions, allowing sentences as low as one-fourth or one-sixth of the minimum punishment, unlike the erstwhile CrPC. ^[5]

Types of Plea Bargaining as recognised by Indian law

Charge Bargaining: This happens when the accused agrees to plead guilty to a lesser charge than the one they initially faced.
Sentence Bargaining: Here, the accused pleads guilty to the offence as charged, but in exchange, they are offered a more lenient sentence.
Fact Bargaining: Here, the accused agrees to admit certain facts; in return, the accused is not required to agree on other facts.

Applicability of the Plea Bargaining^[6]

Some conditions need to be met while applying for plea bargaining.

It applies to offences where the punishment includes imprisonment for up to 7 years.
It does not apply in cases where the victim is a woman or a child below 14 years of age or when the offence impacts the country's socio-economic conditions. (The Central Government specifies offences affecting the socio-economic conditions).
It does not apply to any juvenile, as defined under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
It does not apply if the accused has been previously convicted for the same offence.

Section 265-A (1) of CrPC,^[7] now section 289 (1) (a) of BNSS,^[8] provides that plea bargaining shall be available to an accused charged with any offence, except those punishable with death, life imprisonment, or imprisonment for a term exceeding seven years, and offences that affect the socio-economic condition of the country or have been committed against a woman or a child below the age of 14 years.

Section 265-A (2) of CrPC,^[9] now 289 (2) of BNSS,^[10] grants the Central Government the power to notify offences that affect the country's socio-economic condition for this chapter.

While exercising the powers conferred under sub-section (2) of Section 265-A of the Code of Criminal Procedure, 1973, the Central Government has notified offences under 19 Acts as offences that affect the country's socio-economic condition..^[11]

Dowry Prohibition Act, 1961
The Commission of Sati Prevention Act, 1987
The Indecent Representation of Women (Prohibition) Act, 1986
The Immoral Traffic (Prevention) Act, 1956
The Protection of Women from Domestic Violence Act, 2005
The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992
Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955)
Provisions of Meat Food Products Orders, 1973 (issued under the Essential Commodities Act, 1955)
Offences with respect to animals listed in Schedule I and Part II of Schedule II, as well as offences related to the alteration of boundaries of protected areas under the Wildlife (Protection) Act, 1972
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
Offences mentioned in the Protection of Civil Rights Act, 1955
Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000
The Army Act, 1950
The Air Force Act, 1950
The Navy Act, 1957
Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002
The Explosives Act, 1884
Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995
The Cinematograph Act, 1952

Some Prominent Judgments

While the courts before the amendment saw the practice of plea bargaining as something which is inherently diverted from the criminal justice system, the courts post-amendment have tried to inculcate the practice within, but with more cautiousness; one of an instance of this is the Guerrero Lugo Elvia Grissel And Others v. State Of Maharashtra, wherein the Bombay High Court, observed that while deciding the matters on plea bargaining, the courts need not have wide discretionary powers, as it could increase the uncertainty among the litigants while it comes to the awarding of the sentence.

Moreover, having no structured approach will lead to a situation where they can get away with the specified offences on paying compensation, which would result in the "slap first, then say sorry, and get away lightly by paying compensation"
situation or the accused will themselves not opt for it, because of the duration of the trial. ^[12]

Similarly, the Court observed that fundamental reforms in the legal system are necessary to address case backlogs and delays. The Court observed that the law's objective is to provide accessible, affordable, and swift justice, indicating a shift towards accepting plea bargaining to achieve these ends.

Similarly, in 2022, in the case of In Re: Policy Strategy for Grant of Bail, the Supreme Court of India proposed measures to enhance plea bargaining, compounding of offences, and the Probation of Offenders Act to alleviate the burden on the criminal justice system. The Court recommended that courts identify cases involving first-time offenders with offences punishable with seven years of imprisonment, excluding those affecting socio-economic conditions or involving women and children under 14.

These cases can be resolved through plea bargaining, compounding, or probation, with legal aid provided to the accused and complainants. The Court also suggested training sessions for judicial officers to effectively implement these measures to expedite case resolution and reduce court backlog.

Conclusion

As a provision, Plea Bargaining was introduced to reduce the ever-increasing vase backlogs and speed up the criminal justice delivery system but it has yet to realise its full potential. One of the many hurdles it faces while doing so is the lack of recognition and potential disciplinary risks faced by the prosecutors who get involved.

High acquittal rates and a general lack of trust in the legal system play a major role in encouraging and dissuading the accused persons to take their chances in court rather than plead guilty for a reduced sentence. Combined with the social stigma and limited opportunities for rehabilitation post-conviction. Additionally, trial delays and the ease of securing bail during proceedings make accused persons favour enduring a full trial. Further, as pointed out by the High Court, the lack of a structural approach also acts as a deterrent for the accused and the victim to get involved in plea bargaining.

The courts and the governments need to act on the reforms to resolve the burden on the judiciary. Ensuring timely justice for everyone.

References

[1] Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat, (1980) 3 SCC 120

[2] Uttar Pradesh v. Chandrika, AIR 2000 SC 164

[3] Committee on Reforms of Criminal Justice System, Available Here

[4] Gaurav Aggarwal v. State, CRL.M.C. 4055/2016

[5] Highlights of New Criminal Laws, Available Here

[6] Plea Bargaining - A New Concept, Available Here

[7] Code of Criminal Procedure, 1973, Section 265-A (1)

[8] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 289 (1) (a)

[9] Code of Criminal Procedure, 1973, Section 265-A (2)

[10] Bharatiya Nagarik Suraksha Sanhita, 2023, Section 289 (2)

[11] Muralidhar Meghraj Loya v. State of Maharashtra, 1976 (3) SCC 684

[12] Guerrero Lugo Elvia Grissel And Others v. State of Maharashtra, 2012 CRI. L. J. 1136

[13] State of Gujarat v. Natwar Harchandji Thakor, 2005 CRILJ 2957

[14] In Re: Policy Strategy for Grant of Bail, SMWP(Criminal) No, 4/2021

Important Link

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams