The plea bargaining system stands as a cornerstone within the criminal justice system, exerting a profound impact on both defendants and the legal framework at large. This arrangement unfolds as a negotiation between the prosecutor and the defendant. In this agreement, the accused consents to pleading guilty, either to certain charges or the original accusation, in exchange for concessions granted by the prosecutors in the criminal case.
Plea bargaining has been the concept in criminal law in Nepal since ancient times, dating back to the Vedic period. The Dharamashastras, in a chapter titled Prayaschita, suggested various forms of self-purification through confessing guilt, which could lead to reduced penalties.
In the post-Vedic period, plea bargaining was practised informally and episodically in the Kirat period, mainly through conciliation as a method of statecraft, guided by the Mundhum. The concept of plea bargaining gained more prominence during the Malla period with the introduction of the legal code known as Manab Nyaya Shastra by King Jayasthiti Malla in the 14th century. This code incorporated provisions for a reduction in punishment for offenders who voluntarily confessed.
However, with the advent of the Rana Rule in Nepal, influenced by the British legal system, the adversarial system of common law came into force, focusing on punishment rather than bargaining punishment through compensation. Consequently, the concept of plea bargaining was disregarded.
To some extent, Muluki Ain 1963 served as a legal mechanism to introduce plea bargaining but it was not sufficient. As time passed, there arose a need for plea bargaining in the Nepali legal system. As a result, the provision for plea bargaining was eventually incorporated in the newly promulgated Muluki Criminal Code (2017) and the Muluki Criminal Procedure Code (2017). Today, various acts and statutes, rules and regulations have incorporated the concept of plea bargaining in Nepal. Similarly, the court has played a prominent role in interpreting the notion of plea bargaining by setting out principles in various cases.
Areas of plea bargaining
Plea bargaining encompasses various negotiation areas, depending on the concessions granted by prosecutors which are charge bargaining, sentence bargaining and fact bargaining. Each type involves negotiating specific aspects of the case to reach agreements that can streamline the legal process and potentially lead to reduced sentences for defendants.
Charge bargaining is also referred to as count bargaining. In this negotiation process, defendants facing multiple charges can plead guilty to a less serious charge or one of several charges in exchange for the dismissal of more severe charges. It involves a negotiation of the specific charges (counts) or crimes that the defendant will face at trial.
Usually, in return for a plea of guilty to a lesser charge, a prosecutor will dismiss the higher or other charge(s) counts. The second area of negotiation, sentence bargaining refers to a process whereby the prosecutor agrees to recommend a lighter sentence for specific charges. In sentence bargaining, the defendant agrees to plead guilty to the stated charge and bargains for a lighter sentence. It provides the defendant with an opportunity for a lighter sentence.
The third area of negotiation is fact bargaining which involves negotiation between a prosecutor and a defendant over what version of the facts will be presented in the court. It can also involve the defendant stipulating certain facts in exchange for certain concessions so the prosecutor does not need to prove those facts.
Legal framework of plea bargaining in Nepal
The present legal system of Nepal has provisioned the concept of plea bargaining in a very systematic and detailed manner. Section 47(1) of the Muluki Criminal Code, 2017 has provided that if any offender has confessed the offence committed by him or her, has assisted in the collection of evidence, apprehension of other accused person or gang accomplice thereof, about such offence or assisted the investigating or prosecuting authority or the court, a maximum of fifty per cent of the sentence imposable under the law for such offence may be remitted.
According to Section 33(3) of Muluki Criminal Procedure Code, 2017, an accused can get a punishment waiver of up to 25 per cent if they confess to their crimes, and up to 50 per cent waiver if they confess to their crimes and also spill the beans on other offenders or the main offender or the organised group involved in the crime. Their punishment will also be reduced by half if they show detectives the place where the criminal conspiracy was hatched or give details of the vehicles and weapons used to commit a crime.
Narcotic Drugs (Control) Act, 2033 (Section 18) mentions that if any person helps in finding the principal offender and assists by providing the information and clue about a gang in which he/she,/herself engaged or another gang involved in the transaction of narcotic drug punishable under this Act, if there is a demand for full or partial remission of punishment in the charge-sheet, the judicial authority also may remit in punishment accordingly.
Prevention of Corruption Act, 2059 (Section 55) provides for the remission in the claim of punishment. It mentions the investigating authority may give complete or partial remission in the claim of punishment concerning the accused who assists in the process of investigation carried out under this Act having him/herself presented as a witness on its behalf.
Human Trafficking and Transportation (Control) Act, 2007 (Section 21) provides for the exemption from penalty. It mentions if an accused charged with committing an offence under this Act accepts an offence and co-operates with the police, public prosecutor or court to collect evidence and arrest other accused or abettor and if he/she has committed the offence for the first time, the court can reduce the punishment up to 25 per cent so prescribed for that offence.
Money Laundering Prevention Act, 2007 (Section 44) provides for the waiver to be given in punishment. It mentions that the investigation officer may provide a waiver in the claim of punishment, in full or part, to a person extending cooperation with the investigation and inquiry proceedings initiated under the Act presenting such person as his witness.
Organized Crime Prevention Act, 2013 (Section 21) provides for the waiver to be given in punishment mentions notwithstanding anything written in laws in force if any alleged offender supports police, public attorney or court to collect evidence or to arrest another offender or its team or accomplice with the confession of offence and if this person committed this offence for the first time case on behalf of this person may be filed with the claim of exemption or waiver in punishment assigned in such organised crime.
The essence of plea bargaining has been clearly stated in the case of Chakra Bahadur Limbu v. GON. The court held that it is not reasonable in the eye of the law if we treat equally and punish these two people; (i) An offender who commits a crime and tries to escape and hide the crime till the end. (ii) An offender who has a guilty mind and helps in the court proceeding. In these two scenarios, if we punish both offenders equally, then shortly, a person who has a guilty mind and assists in a court proceeding shall be dissatisfied and shall create a negative impact on the person who accepts the crime.
The important aspect of plea bargaining is its potential to expedite the resolution of criminal cases. By encouraging defendants to plead guilty in exchange for reduced charges or sentences, the court system can avoid lengthy and resource-intensive trials.
This expeditious process not only helps reduce the backlog of cases but also frees up judicial resources and allows the courts to focus on more complex and high-priority matters. A plea bargain is not ipso facto, a matter of right of an accused. It is within the particular discretion of the court concerned to accept or reject such a plea.
However, if the court accepts such a plea, it must do so unqualifiedly. Plea bargaining encourages defendants to cooperate with law enforcement authorities in providing critical information and evidence related to their cases or other criminal activities.
This cooperation is particularly valuable in cases involving organised crime, corruption, etc where gaining insider information can significantly aid in dismantling criminal networks. Plea bargaining presents numerous advantages for the criminal justice system in Nepal. Its potential to expedite case resolution, manage resources more efficiently, encourage cooperation, etc. makes it a viable tool for achieving a fair and effective criminal justice system. However, to fully harness these benefits, careful implementation and monitoring are necessary to safeguard against potential abuses and ensure that the rights of all parties involved are protected.
