Plea Bargaining : Supreme Court Explores Options Of Allowing Accused To Consent For Lesser Sentence While Not Conceding Guilt

The Supreme Court is exploring options of popularizing the concept of "plea bargaining". However, the Court noted that the major stubmling block is the reluctance of accused persons to avail "plea bargaining" option due to the fear of bearing the taint of guilt. At times the accused have hesitancy in accepting their conviction under a particular offence which may lead to other civil consequences.

In this regard, the Court noted that Indian law permits plea bargaining only with respect to the sentence and not with respect to the natue of offence. However, plea bargaining in foreign jurisdictions operate qua the nature of the offence. While the Court was wondering if an amendment of the law is required, Amicus Curiae, Mr. Neeraj Kumar Jain, apprised it that such a course can be adopted in India without legislative action, merely by applying the principle of 'Alford plea' and the 'nolo contendere plea' prevalent in the USA.  

In 'Alford plea' [North Carolina v. Alford 400 US 25 (1970)] the accused does not admit to have committed the crime but pleads guilty on an admission that prosecution has sufficient evidence to obtain conviction, in order to secure a lesser sentence than what may be imposed at trial. A 'non contendere plea' is a plea of no contest without admission of guilt. The Bench, comprising Justices Sanjay Kishan Kaul and M.M. Sundresh observed that both the pleas permit an accused to maintain their innocence, while conceding conviction.

"It is his suggestion that such a course of action can become the basis of "mutually satisfactory disposition" in criminal cases where the accused may concede conviction without conceding guilt in exchange for the State conceding no further imprisonment, all within the existing framework of plea bargaining."

There may be cases where the plea may or may not be accepted by the State or the Court, depending upon the nature of the crime and the impact of the crime on the victim. Again, in some circumstances it might be acceptable, subject to the accused compensating the victim. In this regard the Bench indicated that the involvement of the Court in the process would ensure that there is judicious application of guidelines that may be laid down to distinguish unique or more heinous crimes.

The Supreme Court called upon the amicus to look into this aspect.

During the course of a hearing, the Bench was exploring whether in cases where the maximum sentence is 7 years or less, and the person has already undergone half the sentence, or while the trial was pending they had undergone half the sentence, such cases can be dropped.

The Amicus Curiae, Mr. Devansh A. Mohta stated that a pilot project will be conducted in the State of Chhattisgarh. He informed the Bench that he has requested the Principal Secretary, Law and Legislative Affairs Department, Raipur for taking necessary steps under Section 432 of the Criminal Procedure Code, 1973 in respect of 31 cases. It was also brought to the notice of the Bench that the Chhattisgarh State Legal Services Authority (CSLSA) has proposed a "Special Campaign" where efforts would be made to secure release of prisoners by adopting to compromise, plea-bargain or set off. The Amicus informed that they are considering to request the Chief Justice of High Court of Chhattisgarh to issue circular to depute 2 to 3 Magistrates in every district/taluka for holding Court sitting in Jail Premises on every working Saturdays and dispose of cases in which the accused are willing to confess their guilt.

The Bench noted that till the next date of hearing, the other states involved in the present proceedings, namely, Delhi, Gauhati, Kerala, Madhya Pradesh, Orissa, Rajasthan, Tamil Nadu and West Bengal can also explore similar approaches.

It was brought to the Bench's attention that in some states the life convicts are apprehensive that if they agree to not contest plea and their application for remission is also rejected, they would be left in the lurch. It was pointed out that in such circumstances they may be permitted to reactivate their appeals. The Bench largely agreed with the solution provided by the Amicus, subject to the stipulations in the respective State with respect to remission.

Background

The present proceedings emanated from a case wherein the petitioner had been provided legal assistance only after he had spent 18 years in custody. The Bench noted that more than one case of such nature has come up before it. Consequently, notice was issued to the concerned State Government i.e. State of Chhattisgarh and also National Legal Services Authority.

The Bench observed that as per the Chhattisgarh Prison Rules, the petitioner's case for remission had to be considered by the authorities upon him completing 14 years in custody. However, in reality there was a delay of two years in sending his remission plea to the Home Department, which took another one year to decide the remission application.

On 01.03.2021, the Court had bestowed NALSA with the duty to formulate a comprehensive guideline, inter alia, regarding 'how the matter of seeking remission after serving minimum sentence as per the respective State policies should be dealt with'. NALSA was asked to submit a comprehensive report for the Court's perusal and uniform application.

Another issue flagged by the Court was that in the cases which are received by the Supreme Court directly from the jail, there is a lag between the registration of the case and the legal assistance rendered. NALSA was also called upon to iron out this issue.

On 07.07.2021, the NALSA apprised the Bench that it might not be possible to put in place an uniform policy, but made suggestions with respect to the following four vital aspects:

1. Timely identification of the eligible convicts;
2. Making applications by the eligible convicts with the help of District Legal Services Authority;
3. Timelines for the application procedure and decision on the premature release applications;
4. If the premature release applications are rejected by the State Government, then legal aid will be provided to the said convict to decide whether the said rejection should be challenged in a Court or not.

NALSA also suggested a tentative timeline and procedure for deciding the remission applications. It was also indicated that a pilot project in this regard can be carried out in Uttar Pradesh, Chhattisgarh and Bihar, which was later extended to West Bengal, Rajasthan, Tamil Nadu, Kerala and Orissa. By order dated 17.08.2022, it was further extended to Karnataka, Andhra Pradesh, Maharashtra and Gujarat.

With respect to the appeals pending before the High Courts which were being looked after by the High Court legal services committees, the Bench had issued the following directions on 06.10.2021 -

1. A similar exercise be undertaken by the High Court Legal Services Committee of different High Courts so that convicts represented by legal aid Advocates do not suffer due to delay in hearing of the appeals. NALSA will circulate this order to the concerned authority and monitor the exercise to be carried on.
2. The Delhi High Court Legal Services Committee would take up the cases of those convicts who have undergone more than half the sentence in case of fixed term sentences and examine the feasibility of filing bail applications before the High Court, while in case of 'life sentence' cases, such an exercise may be undertaken where eight years of actual custody has been undergone.
3. We are of the view that in fixed term sentence cases, an endeavour be made, at least as a pilot project, in these two High Courts to get in touch with the convicts and find out whether they are willing to accept their infractions and agree to disposal of the appeals on the basis of sentence undergone.
4. A similar exercise can be undertaken even in respect of 'life sentence' cases where the sentenced persons are entitled to remission of the remaining sentence i.e., whether they would still like to contest the appeals or the remission of sentence would be acceptable to such of the convicts.

[Case Title: Sonadar v. State of Chhattisgarh SLP(Crl) No. 529/2021]

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