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ourt may sentence the accused to one-fourth of the punishment provided or extendable. [29]

Finally the judgement delivered by the Court is final and no appeal shall lie from such a decision except for a Special Leave Petition under Article 136 and a Writ Petition under Article 226 of the constitution. [30] The statements of the accused under the application forwarded to the judge cannot be used for any other purpose thus ensuring that they cannot be used as self incriminating evidence in case the plea bargaining process fails. [31]

Upon appraisal of the aforementioned provisions, it seems clear that neither charge bargaining nor fact bargaining is applicable in India. Under section 265B, a person accused of an offence files an application for plea bargaining in the Court where such offence is pending for trial. In such application, he is required to himself mention the offence to which the case relates. After the report of the mutually satisfactory disposition is received, the court will hear the parties on the quantum of punishment. The only characteristic feature of the mutually satisfactory disposition mentioned is the requirement to include the compensation to the victim. The quantum of punishment will be decided on the basis of the offence stated by the accused in the application for plea bargaining. The specification of the offence (contained in the initial application) seems clearly outside the scope of the report of mutually satisfactory disposition, thus the accused cannot haggle to lessen the charges as against himself nor can he ask for a selective presentation of the facts from the other party. In other words there is no concept of charge bargaining or fact bargaining in CrPC.

In order to nullify the argument raised by the detractors of the notion of plea bargaining who rely on the straightjacket notion of crime – act against the state, and not merely against an individual, we need to consider few things. Firstly, victim cannot reduce the gravity of the offence as it is outside the scope of the mutually satisfactory disposition (since no charge or fact bargaining is present). Even after the agreement has been entered into, the offence continues to be the same (as submitted during the time of making the application) only the punishment will be according to section 265E. Secondly, such kind of agreement cannot be abominable as it is quite similar to the much prevalent concept of compounding of offences. Thus, only sentence bargaining exists in India.

Chapter 2: Negotiation or Mediation: Wherein lies the solution

Negotiation In Plea Bargaining

The process of plea bargaining in the U.S. involves negotiation. The agreement may be reached between the prosecutor and the defendant or his attorney. [32] Negotiation, in the words of P. Gulliver, has been defined as a process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict. [33] In a truly successful negotiation both parties come away persuaded that the problem has been resolved to their mutual satisfaction. As compared to a compromise negotiation is considered to be both wider and deeper. Compromise is the mid-point between two extreme positions and can lead to an outcome where neither party to the dispute is satisfied. [34]

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