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Contours and Contradiction of plea of guilty and "plea bargaining"

68. We make it clear that the grievance and voice raised by the learned single Judge against impermissible "plea bargaining" is not, hereby, sought to be belittled or in any way intended to be diluted. But the 'plea bargaining' and the raising of "plea of guilty", both things should not have been treated, as the same and common. There it appears to be mixed up. Nobody can dispute that "plea bargaining" is not permissible, but at the same time, it cannot be overlooked that raising of "plea of guilty", at the appropriate stage, provided in the statutory procedure for the accused and to show the special and adequate reasons for the discretionary exercise of powers by the trial Court in awarding sentences cannot be admixed or should not be treated the same and similar. Whether, "plea of guilty" really on facts is "plea bargaining" or not is a matter of proof. Every "plea of guilty", which is a part of statutory process in criminal trial, cannot be said to be a "plea bargaining" ipso facto. It is a matter requiring evaluation of factual profile of each accused in criminal trial before reaching a specific conclusion of it being only a "plea bargaining" and not a plea of guilty simpliciter. It must be based upon facts and proof not on fanciful or surmises without necessary factual supporting profile for that.

69. It is unquestionable that concept of "plea bargaining" is not recognised in any jurisdictions in our country. Therefore, it is illegal. The Hon'ble Apex Court has time and again raised clear and consistent voice, in host of the judicial pronouncements, and also has come down heavily, against the trick and play of the "plea bargaining". Therefore, so far so "plea bargaining" is held not only illegal and unconstitutional but also intending to encourage the complain, collusion and pollution of the poor punt of justice. Therefore, the observation by the learned single Judge in those cases against the "plea bargaining" and short circuiting the proceedings cannot be questioned.

70. However, as observed by us, hereinabove, that every "plea of guilty" during the course of observance of the mandatory procedure prescribed in Code and particularly in Sections 228(2), 240(2), 252 and also in Section 253 for the trial of case by the Magistrates, when plea of guilty is recorded as per the procedure prescribed cannot be said to be a "plea bargaining". In a criminal trial there must be justifiable material on record and any assumption, presumption or surmise having no nexus with the factual profile of a given case of an each accused cannot be sustained. It is matter of proof like any other proof of fact, as provided in the Evidence Act. It cannot be contended that, whenever, the "plea of guilty" is raised, then less than minimum sentence awarded though may be in the light of "special and adequate reasons" peculiar to the each accused and in the factual and contextual profile of a given cases, is only "plea bargaining". It has to be proved and shown to the satisfaction of the Court. It cannot be straightaway deduced. In the said case before the learned single Judge, there may be supporting and justifiable material to hold it as "plea-bargain". But each and every case cannot be termed or treated same way.

72. Let it be reiterated that at present, there cannot be any question that "plea bargaining" is not recognised, so far and is not permissible. Whether "plea of guilty" is "plea bargaining" or not, will be a matter of fact to be examined in each case, from the factual matrix of the case and totality of the context and entire profile. It cannot be contended that every "plea of guilty" is always plea bargaining in case of each case and each accused. It cannot be also assumed without supporting facts and attending circumstances. It is a matter of proof and if on objective and independent evaluation of facts, it is found to the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and permissible; in those cases based on facts and proof thereof. Thus, it is a matter of proof and evaluation of evidence in each case.