This article discusses plea bargaining under BNSS, 2023. It provides a detailed comparison between plea bargaining under CrPC and BNSS.

Introduction 

The term plea bargaining can be read as the words ‘plea’ meaning “request” and the word ‘bargaining’ meaning “negotiation”. So, in simple terms, it means a process under which a person who is charged with a criminal offense negotiates with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offense. This concept can only be used in the case of a criminal offense where the accused in the case negotiates with the prosecutor. Both parties make an agreement and reach a mutually satisfactory disposition.

The judge plays a supervisory role in plea bargaining. This concept is enshrined in Chapter XXIII of Bharatiya Nagrik Suraksha Sanhita, 2023, titled ‘Plea Bargaining’.

The Cr.P.C. also addresses plea bargaining in Chapter XXI-A, Sections 265A-265L, added by the Criminal Law (Amendment) Act of 2005. These provisions outline the procedure for filing a plea bargaining application and specify limitations where this concept cannot be applied.

Meaning of plea Bargaining: 

“Plead guilty and bargain lesser sentence” is the shortest possible meaning of plea Bargaining.

The term plea bargaining involves an active negotiation process whereby an offender is allowed to confess his guilt in Court (if he so desires) in exchange of a lighter punishment that would have been given for such an offense. 

Definition of plea Bargaining 

Black’s Law Dictionary defines it as:

“The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to Court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.”

Application of the Chapter XXIII 

Section 289 explains when plea bargaining can be considered. It states that plea bargaining is applicable when a report under Section 193 of the BNSS is made or a magistrate has taken cognizance of an offense.

The magistrate issues the process under Section 227 of the BNSS for offenses punishable with less than seven years of imprisonment. However, plea bargaining cannot be applied to offenses that affect the socio-economic condition of the nation or are committed against a woman or child.

KEY POINTS OF APPLICATION 

• To the offenses other than punishable with death, life imprisonment or imprisonment exceeding 7 years. 
• Either by report forwarded by officer in charge of police station u/s 193 or by cognizance taken by magistrate of an offense on complaint after examination of complainant and witnesses u/s 223 and issue of process u/s 227.

KEY POINTS OF NON APPLICATION 

Where offense

• affects socio economic condition of country 
• Has been committed against woman 
• Has been committed against a child. 
• U/s 300 of Sanhita, Relates to juvenile or child as defined in section 2 of Juvenile Justice ( care and protection of children) act, 2015

Difference from section 265-A of chapter 21 A of Cr.P.C. 

The words below the age of fourteen years have been omitted after ‘child’. This means that plea bargaining which was applicable in case of offenses against a child if he was above 14 years will now not be applicable in case of a child, whatever may be the age. 

Application for plea bargaining

• Section 290 says that the person who wants to avail of this plea has to file an application in court within 30 days from the frame of charges when the trial for such an offense is pending. In the application, the defendant has to tell his case in brief, and along with the application, an affidavit has to be attached in which he has to swear that he is filing this application willfully and after understanding all the consequences of taking this plea.

• Also, the defendant has to mention that he has not been previously convicted by a court in a case in which he had been charged with that same offense.

• After receiving the application, the court will issue notice to the complainant or to the public prosecutor, as the case may be, and the accused has to appear on the date fixed for the case. After this, when everyone appears for the case, the court shall record the statement of the accused in camera where the other party is not present to satisfy itself that the accused has filed the application voluntarily.

• Once the court is satisfied that the accused has filed the plea voluntarily, it provides time not exceeding 60 days to the public prosecutor or complainant and accused, to go for a mutually satisfactory disposition where the victim is compensated by the accused, and then a date is fixed for the next hearing.

• But if the court thinks that the application was not filed a) voluntarily or b) that the accused has been previously charged for the same offense, it shall proceed further in accordance with the procedure of the Code of Criminal Procedure from the stage where such an application was filed.

Difference from Cr.P.C. 

• The time limit of 30 days to file an application of plea Bargaining by the accused was not there earlier.
• The time limit of 60 days for working out mutually satisfactory disposition after court is satisfied that the application has been made voluntarily by accused was also not there earlier. 

Guidelines for mutually satisfactory disposition (MSD)

As per Section 291, where the court is satisfied that the application of plea bargaining was filed voluntarily under a case instituted on a police report or otherwise than on a police report, the court shall issue notice to the parties and, where required, to the public prosecutor and police officer to participate in the meeting and do a Mutually satisfactory disposition.

• In case instituted on a police report, the court shall issue notice to the public prosecutor, police officer who investigated the case, the accused and the victim. 

• In case otherwise than on police 

report, the court shall issue notice to the accused and victim to participate in mutually satisfactory disposition.

Throughout this process, the court has the duty to ensure that the parties in the meeting are working voluntarily. The court is under the duty to ensure that the parties are voluntarily participating in the whole process, and if the accused or the victim wants, they can participate in the meeting along with their pleader.

Comparison with CrPC 

This provision was under section 265C of CrPC but the provision was entirely the same. 

Report of the mutually satisfactory disposition (MSD) to be submitted before the court

Then as per Section 292,

• where the Mutually satisfactory disposition worked out successfully, the court has to prepare a report of such a disposition, which will be signed by all the persons present in that disposition along with the presiding officer of the court.

• But if the Mutually satisfactory disposition didn’t work out, the court has to record its observations and then proceed further with the case in accordance with the provisions of the BNSS from the stage where the application of plea was filed under section 290 of BNSS, 2023 

Comparison with CrPC

The provision under section 265 D was entirely the same. 

Disposal of the case

When there is a satisfactory disposition of the case under the previous section, the court shall under Section 293 proceed by:

• awarding compensation to the victim as per the disposition arrived at and, at the same time, hear the parties on necessary things like the quantum of the punishment. 

• Then, if the accused falls under the purview of Section 401  of the CrPC or under the Probation of Offenders Act, 1958, or any other law, he may be released on probation to provide for the benefit of any such law. 

• Then the court will see that if there is any clause for the minimum punishment for that offence, then the court will sentence the accused to half of the minimum punishment for that offence. Where an accused is 1st time offender and not convicted of offence in the past, the court may sentence the accused to 1/4th of the punishment. 

• And in certain cases, the sentence is made one-fourth of the punishment provided or extendable, as the case may be, for that offence. But where in such a case the offender is 1st time offender and not convicted of an offense in the past, 1/6th of such punishment is awarded. 

Comparison with Cr.P.C. 

Changes have been made in clauses © and (d) of section 265 E of Cr.P.C. 

• In clause © it has been inserted that where the accused is 1st time offender and not convicted of an offense in the past, court may sentence the accused to 1/4th of the punishment 
• In clause (d) it has been inserted that where the accused is 1st time offender and not convicted of an offense in the past, court may sentence the accused to 1/6th of the punishment 

Judgement of the court

In regard to the terms of the previous section, the court as per Section 294 has to deliver its judgment in the open court, and the same shall be signed by the presiding officer of the court.

Comparison with CrPC

The provision under section 265 F was entirely the same. 

Finality of the judgment

The judgment provided by the court will be considered final as per Section 295. And no appeal can lie in any court against such a judgment except: 

• the Special Leave Petition (SLP) under Article 136 of the Indian Constitution or
• the writ petition under Article 226 and Article 227 of the Constitution.

Comparison with CrPC

The provision under section 265 G was entirely the same. 

Power of the court in plea bargaining

In accordance with Section 296, the court shall possess all the powers that are necessary for fulfilling its responsibilities under this chapter, including those related to granting bail, conducting trials for offences, and handling other matters related to the case resolution as prescribed by BNSS.

Comparison with CrPC

The provision under section 265 H was entirely the same. 

Period of detention undergone by the accused to be set off against the sentence of imprisonment

As per Section 297, the role of Section 468 of the BNSS shall apply in this case, and the time period of detention already undergone by the accused shall be set off against the sentence of imprisonment imposed. This will work in the same manner as it applies in respect of imprisonment under other provisions of this Sanhita.

Comparison with CrPC

The provision under section 265 I was entirely the same except the change in section which was 428 in CrPC and is 468 in sanhita.

Savings

As per Section 298, the provisions stated in this Chapter shall remain valid regardless of any conflicting provisions found in other sections of this Sanhita, and no interpretation of the provisions in this Chapter shall be limited by any of the aforementioned conflicting provisions. And for the purpose of this Chapter, the term “public prosecutor” shall have the same meaning assigned to it under clause (v) of Section 2 and shall also include an assistant public prosecutor designated under Section 29 of the BNSS.

Comparison with CrPC

The provision under section 265 J was entirely the same except the change in section which used to be (u) of section 25.

Statements of the accused not to be used

In accordance with Section 299, the statements or facts that were stated by the accused in the application filed by him regarding plea bargaining shall not be used for any other purpose except for the purpose of this chapter. This is to prevent misuse of statements of the accused. 

Comparison with CrPC

The provision under section 265 K was entirely the same. 

Non-application of the chapter

As per Section 300, nothing in this Chapter shall apply to any juvenile or child as defined in Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015

Comparison with CrPC

The provision under section 265 L was entirely the same. 

Case Laws:

In the case Kasam Bhai Abdul hman Bhai Saikh v. State of Gujarat AIR1980 SC 854, the court again denounced this practice and held that It would be contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of Article 21 of the Constitution. It would have the effect of polluting the pure fount of justice because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial.

Case

State of Uttar Pradesh v. Chandrika AIR 2000 SUPREME COURT 164

In this case, the Apex Court disparaged the concept of plea bargaining. The court determined that the primary objective of this concept was to accelerate the resolution of cases and relieve the strain on the judicial system, emphasizing that it should not be utilized as a means to allow the guilty to avoid punishment.

Conclusion 

Plea bargaining plays an important role and serves as a valuable tool within the Indian criminal justice system. It offers a negotiation platform between the prosecution and the accused, allowing for a potential agreement that serves as an alternative resolution to criminal cases, improving court efficiency and conserving judicial resources. This process can speed up legal proceedings and provide a fair and effective solution to criminal cases.

However, it is crucial for judges to exercise discretion wisely when approving plea bargains, carefully considering the seriousness of the offense, the victim’s interests and needs, and the broader impact on justice administration. By taking these factors into account, judges can ensure that plea bargaining supports fair and efficient case resolution while upholding the integrity of the legal system. Like any tool, plea bargaining has both positive and negative aspects; its effectiveness depends on which side presents its case more convincingly before the court. Thus, this tool should be used prudently and cautiously, with public interest kept at the forefront.

Also read:

1. https://kanoonnotes.com/wp-admin/post.php?post=1655&action=edit : the golden rule of interpretation
2. https://kanoonnotes.com/wp-admin/post.php?post=1615&action=edit : doctrine of severability, eclipse and waiver