Section 265 A of The Code of Criminal Procedure 1973

Plea Bargaining Section 265 A of The Code of Criminal Procedure 1973

Plea Bargaining

265A. Application of the Chapter

(1) This Chapter shall apply in respect of an accused against whom–

(a)the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

265B. Application for plea bargaining

(1) A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for trial.

(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where –
(a)the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b)the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1).

265C. Guidelines for mutually satisfactory disposition

In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:
(a)in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Provided further that the accused may, if he so desires, participate in such meeting with his pleader, if any, engaged in the case;
(b)in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.

265D. Report of the mutually satisfactory disposition to be submitted before the Court

Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.

265E. Disposal of the case

Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:
(a)the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;
(b)after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;
(c)after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment;
(d)in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.

265F. Judgment of the Court

The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

265G. Finality of the judgment

The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.

265H. Power of the Court in plea bargaining

A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a cast in such Court under this Code.

265I. Period of detention undergone by the accused to be set off against the sentence of imprisonment

The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.

265J. Savings

The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter.
Explanation.–For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.

265K. Statements of accused not to be used

Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the purpose of this Chapter.

265L. Non-application of the Chapter

Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).”

List of the Offences affect socio-economic condition

List of the Offences affect socio-economic condition

Offences affect socio-economic condition in India for the purposes of sub-section (1) of section 265A of Cr.P.C

Central Government Notification by S.O. 1042(E), dated 11th July, 2006.

PLEA BARGAINING

The list of Acts affected under sub-section (1) of section 265A of Cr.P.C

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

Section 265A of Cr.P.C

Older Position on Plea Bargain was observed in State of Uttar Pradesh v. Chandrika JT 1999 (8) SC 481:

Concept of plea bargaining is not recognized and is against public policy under our criminal justice system. Section 320, Cr.P.C. provides for compounding of certain offences with the permission of the Court and certain others even without permission of the Court. Except the above, the concept of negotiated settlement in criminal cases is not permissible. This method of short circuiting the hearing and deciding the criminal appeals or cases involving serious offences requires no encouragement. Neither the State nor the public prosecutor nor even the Judge can bargain that evidence would not be led or appreciated in consideration of getting flee bite sentence by pleading guilty. It is settled law that on the basis of plea bargaining Court cannot dispose of criminal cases. The Court has to decide it on merits. If accused confesses his guilt, appropriate sentence is required to be imposed. Further, the approach of the Court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of evidence on record. If he is guilty, appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the Court’s conscious must be satisfied before passing final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced. In the instant case the Sessions Judge, Ballia by his judgement and order convicted the respondent under Section 304, IPC and sentenced him to under go eight years R.I. Aggrieved by the said order, respondent preferred an appeal before the High Court and at the time of hearing opted not to challenge the findings of conviction, recorded by the trial Court with a view to bargain on the question of sentence. High Court accepted the bargain and allowed the appeal by observing inter alia that as the incident had taken place long back and since the appellant had been in jail for sometime, both as under-trial prisoner and as a convict, it was desirable to substitute his remaining period of jail sentence as awarded by the trial Court and altered the sentence to period already undergone. Order passed by the High Court is illegal and erroneous as same has been based on concept of plea of bargaining.

In Thippeswamy Versus State of Karnataka AIR 1983 SC 747 :

It is obvious that by reason of plea-bargaining, the appellant pleaded guilty and did not avail of the opportunity to defend himself against the charge, which is a course he would certainly not have followed if he had known that he would not be let off with a mere sentence of fine but would be sentenced to imprisonment. It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. Of course when we say this, we do not for a moment wish to suggest that the court of appeal or revision should not interfere where a disproportionately low sentence is imposed on the accused as a result of plea-bargaining. But in such a case, it would not be reasonable, fair and just to act on the plea of guilty for the purpose of enhancing the sentence. The Court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial Court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him.

In Kasambhai Abdulrehmanbhai Sheikh Versus State of Gujarat and another AIR 1980 SC 854 : (1980) 2 SCR 1037

Prevention of Food Adulteration Act, 1954—Sections 7 and 16—plea bargaining

The conviction of the appellant was based solely on the plea of guilty entered by him and this confession of guilt was the result of plea bargaining between the prosecution, the defence and the learned Magistrate. It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our mind 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 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 the new activist dimension 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 which, having regard to our cumbrous and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the Judge also might be likely to be deflected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal. The High Court should have therefore, set aside the conviction of the appellant and sent the case back to the learned Magistrate for trial in accordance with law, ignoring the plea of guilty entered by the appellant. The High Court was clearly in error in not doing so.