DEVELOPMENT OF PLEA BARGAINING IN THE ADMINISTRATION ...

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78 NIALS Journal of Law and Development Indian System of Plea Bargaining The operation of plea bargaining in India is somehow different from the American system. It is a recent development in the Indian criminal justice system as it can be traced to the Criminal Law (Amendment Act) 2005, which introduced Chapter XXI (A). On 5 th July 2006, plea bargain came into force in the Indian Criminal Justice System. The amendment to the Indian Criminal Code incorporating in a loose form the US practice of plea bargain requires that the accused pay compensation as part of the deal under which he will be imprisoned for no more than half the minimum sentence he is liable to serve. 73 Unlike the American system of plea bargaining which is initiated by the prosecutor, the accused person initiates it under the Indian system. In this process, the accused person files an application for plea bargaining. A feature of the Indian plea bargaining is that the accused person has to file the aforesaid application any time before the commencement of the trial. An affidavit in support of the application is necessary. The applicant/accused must depose to the fact that he has “voluntarily opted for plea bargaining and that he had not previously been convicted on the same charge. Notice is then required to be given to the prosecutor or complainant the same results. Those who pleaded guilty received shorter sentence than those who were convicted at trial. In 1980, the complete abolition of plea bargaining was brought to an end. Analogous to complete ban is ban of plea bargain after indictment but before the grand jury returns felony indictment. In New York when it was introduced in 1992, critics decided it on the ground that there would be catastrophic backlog of cases, jail overcrowding and a violation of a federal order that limits the number of prisoners in city jails. 73. The Times of India 6 July 2006, sourced from www.timesofindia.indiatimes.com/articlesshow/1706071.cms.on September 2, 2008, cited from Alubo A.O. loc cit. See also Ghosh, S.S.: “Plea Bargaining – An Analysis of the Concept”, available@http://www.legalservianduia.com/articles/pleabar.wml. accessed on June 10, 2008, cited by Alubo A.O. ibid.
Development of Plea Bargaining in The Administration of Criminal Justice in Nigeria : A revolution, Vaccination Against Punishment or mere Expediency? after which the court will examine the accused in camera. This examination in camera is for the purpose of ascertaining whether or not the accused has filed the application voluntarily. Determination of voluntariness of the application is significant as it enables the court to proceed with the bargain between the parties. If the court is satisfied as to the voluntariness of the application, it shall provide time to the parties concerned to work out a mutually satisfactory disposition which may include compensation to the victim from the accused. Voluntariness of the whole transaction is essential in the whole plea bargaining exercise. The duty of the court extends to making sure that the process of working out a satisfactory disposition is also voluntary and allow the accused himself to participate in it. When the court is satisfied as to the voluntariness of the disposition, it writes a report of the satisfactory disposition. It is very necessary that the report be signed by the judge and all the parties concerned. While disposing of the case, the court will direct the accused to pay the agreed compensation to the victim and hear the parties on the quantum of punishment to the accused. Since the accused is a first-time offender, the court will have the option of releasing the accused on probation despite his conviction. Alternatively, it may sentence the accused to half the minimum punishment proscribed for the offence in question. Any judgment arising from plea bargaining shall be final and there will be no statutory right of appeal against it. 74 Plea Bargain in Pakistan Prior to 1999, plea bargain existed in Pakistan, though informally. The concept of plea bargaining was formally introduced in Pakistan by the National Accountability 74. Alubo A.O. op cit. at p. 14. 79
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