Plea Bargaining In India Limited To Sentence Bargaining; Offence Bargaining Also Should Be Included, Suggests Supreme Court

The Supreme Court, on Tuesday, observed that countries like the United State of America that have incorporated plea bargaining successfully have encompassed both sentence bargaining and offence bargaining, while the scope of plea bargaining is limited in the Indian context as the criminal justice system here has only incorporated 'sentence bargaining'. 

A Bench comprising Justice SK Kaul and Justice Sudhanshu Dhulia were hearing a suo moto writ petition instituted for the purposes of issuing a comprehensive policy strategy for grant of bail.

Last year, the Apex Court had issued guidelines to dispose of criminal cases by resorting to the triple method of plea bargaining, compounding of offences and under the Probation of Offenders Act, 1958. It had directed that as a pilot case, one Court (each of Judicial Magistrate 1st Class, ACJM or CJM and Court of Sessions) in each district may be selected. The said courts would identify cases pending at the pretrial stage or evidence stage and where the accused is chargesheeted or charged with offences with a maximum sentence of 7 years imprisonment.

Considering a note filed by the Amicus Curiae, Advocate Gaurav Agarwal, Justice SK Kaul noted that as per the report received from the Allahabad High Court, more than 1700 cases have been identified, out of which 1815 cases were said to be disposed of. The Judge noted that though, certainly, the identification process has progressed, the disposal rate does not indicate whether the success rate of the triple method as there is no way to find out if the suggestion of plea-bargaining, compounding or probation was accepted or refused in the process. The Bench requested the Amicus to find out the success rate of the same.

During the course of the hearing, Justice Dhulia pointed out, “Plea bargaining is virtually not there and that was one of the recommendations of the Malimath Committee (constituted to suggest reforms in the criminal justice system)”.

Justice Kaul reckoned, “The problem is also between sentence bargaining and offence bargaining. We have only incorporated one (sentence bargaining). That limits the aspect of plea bargaining. Countries like the USA that have successfully implemented plea bargaining have encompassed both the aspects.”

Justice Dhulia said, “In the recommendation it is both”.

Previously also, Justice Kaul had stressed on the need to explore the option of allowing the accused to consent for lesser sentence while not conceding to guilt. The judge had noted that the major stumbling 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, Justice Kaul had 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.

[Case Title: In Re Policy Strategy for Grant of Bail SMW(Crl) No. 4/2021]