COVID-19 – VIII: Plea Bargaining- A Simple Solution for Difficult Times

By Nishtha Nikhil Gupta 


The lockdown due to COVID-19 has impacted one and all. The courts are no exception to it. While many courts are not working, yet some others are hearing only urgent and important matters. Even the Supreme Court has been hearing only important cases through video conferencing. The Supreme Court has ordered the States to form high powered committees to evolve measures that will solve the problem of the under-trials possibly contracting the virus. The Court further suggested that the undertrials involved in cases that prescribe a maximum of 7 years punishment may be released on interim bail for a suitable period to ensure that they do not contract the virus while in prisons. This was done in late March, weeks after the Government imposed the lockdown in the country. Some States have been swift in their response whereas there are states that continue to confine their Under Trial Prisoners (UTP) in a regular fashion.

 There have been arguments against the release that have justified the confinement using the argument that, prisoners are naturally isolated by the virtue of the prison model. There was no need to send them home. This, however, is felt as an upper class, ignorant and brutish argument to make. The prisons are overcrowded with every prisoner not having separate wards. They live in not so healthy conditions due to various constraints faced by our prisons. These are the people who are very vulnerable during the health crisis. The report by the National Human Rights Commission suggests that the undertrials spend years in prisons and they constitute 65% of the prison population. This makes the majority of Indian prisoner under trial. The Standard Minimum Rules have given special priority to under trials. It provides the right of prisoners to have contact with the outside world. The Body of Principles for the Protection of all Persons in any form Detention and Imprisonment has accorded guidelines for the conditions of undertrials. The Prison Rules in India provide for shelter and accommodations to be made for prisoners who cannot be accommodated in the prisoners due to the excessive number of convicts. It also provides for safe and sanitary conditions for the convicts. The court had held in the Kharak Singh case that right to life does not mean only right of animal existence. It includes a safe living environment and health conditions. These are being violated during the health emergency when the UTPs stay inside the prisons due to courts not working in the lockdown period.

It is the need of the hour to take initiatives to reduce the load on our courts in disposing of cases to ensure they would not be under a burden of cases when the courts open. Here, the concept of Plea Bargaining may come handy. The Criminal Procedure Code provides for the procedure for plea bargaining for certain types of offences. These provisions are incorporated in Sec 265A to Sec 265E.

Section 265A mentions that:

the plea bargaining shall be available to the accused who is charged with any offence other than offences punishable with death or imprisonment or for life or of imprisonment for a term exceeding to seven years.

Section 265E mentions that:

“Court can either release the accused by giving admonition or realising on probation under the provisions of Section 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force or punish the accused, passing the sentence.”

The court can order the disposal of cases in crimes as defined in Sec 265A to ensure that the burden on the judiciary is reduced along with the incentive for accused to admit their guilt by way of doing away the pain of going through prolonged stay inside the prison and also the trial procedure.

 The current burden of pending cases in various courts in our country is too huge. The corona crisis will further increase this burden. This call for the courts, the police and the prison officers to promote the concept of plea bargaining and release some of the prisoners (after giving them Admonition or releasing them under Probation) thus reducing the courts burden. The video conferencing between the UTPs and the prosecutors and the victim and his lawyer can be arranged for arriving at a mutually agreeable disposition as per Section 265B. The courts can release the prisoners in relevant cases on admonition and on probation of good conduct based on Sec 360 of the Code, which states that:

“the person by the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released”.

The offenders in these cases when admitting guilt can be released and sent home without proving to be a burden on the courts. It has been held in the Natwar Thakor case that plea bargaining is not necessarily a burdensome procedure. It said that the purpose of the law was to provide speedy and expedient justice which was fuelled by this process.

The current procedure recommended by the court is to provide interim bail for a few days to the UTPs involved in offences with a maximum of 7 years of punishment during the period of lockdown. This is a procedure that entails the granting of bail until the lockdown opens and trials resume. This is merely an interim measure and it is not going to resolve the problems to be faced by the courts when lockdown opens. The report by NHRC suggests that most of the undertrials are poor. They cannot afford to provide securities to the courts. The courts can instead encourage the accused and the victim to engage in plea bargaining that would benefit both the offenders and the courts. The cases where the undertrials will be released on admonition or probation of good conduct can be disposed of at once and the UTPs released immediately. The cases where the requirement is of other types of punishment as prescribed in Sec 265E can be ordered after the courts start functioning.

The courts can also encourage the compounding of offences of the less serious type where the undertrials are facing prosecution. These can be done with or without permission of the court depending on the offence committed. Sec 320 provides for the procedure of compounding offences. This will again require some amount of nudging the parties by the courts and police to agree for discussion that may lead to compounding. Video conferencing may be used for the compounding of offences where the accused and the prosecution could in the presence of a judge compound the offence. This would lead to less burden on the court when they function after the lockdown.

The courts have to be innovative in their functioning in the wake of current lockdown. They have to ensure that the cases are disposed of speedily despite the absence of personal hearings during the lockdown. The provision of plea bargaining along with compounding is imperative to ensure the smooth functioning of courts after the health emergency has been overcome in the country. It may also ensure the gaining of the momentum of a long-ignored process in the criminal justice system of our country.

[The author is a student at NALSAR University of Law, Hyderabad.]


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