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Plea bargaining in Bangladesh context

Published : Thursday, 11 October, 2018 at 12:00 AM Count : 631
Mahjubah Marzan


The bargain between the prosecution and defendant to lessen, reduce or withdraw the sentence or charge in return of the defendant's guilty pleading,  can be termed as plea bargaining. In Bangladesh, there is still no specific provision for plea bargaining, and when an accused confesses under the provisions of section 164, 364 of Code of Criminal Procedure 1898 and 24-30 of Evidence Act 1872. It does not grant the accused any escapade from the prosecution and trial.
The very notion of plea bargaining demands that both parties in a criminal case can come under a negotiation where the defendant agrees to plead guilty and in return the prosecution rewards by overlooking more serious charges.
Plea Bargaining can be categorized into three types which are charge bargaining, sentence bargaining and fact bargaining. The first one comes into play when both parties agree to the drop some charges if the accused confesses. For example, it might be an agreement to reduce, withdraw or even agreement to acquit the defendant from multiple charges. The second one which is sentence bargaining has the most potential to be recognized in the context of Bangladesh.
The idea of pre-trial negotiations to lessen the terms of the sentence is gaining popularity preferably due to its potential for a speedy trial. Fact bargaining, on the other hand, offers both parties to conceal some facts in order to gain their own demands. However, until and unless the judge recognizes plea bargaining at trial, it has little to no value.
The concept of plea bargaining in other countries like the UK was introduced formally England by the Criminal Procedure and Investigations Act 1996 where the court will not only see when the accused pleads guilty but also how and at what stage of the proceeding the pleading was made. In the USA, plea bargaining is vastly practised and the administration of justice is greatly dependent upon plea bargaining.
According to Frontline-an educational foundation of USA, about 95 per cent of all felony convictions in the United States are the result of plea bargains. Also, while the offering of a less costly and speedy trial might be tempting; over-dependency on pre-trial negotiations might deprive the accused some fundamental rights like, right to be presumed innocent until guilty, right to a fair trial etc. In the famous case of Santobello vs. New York (404 US 260, 1971), the US Supreme court stated that "Plea bargaining is an essential component of the administration of justice. Properly administered, it is to be encouraged."
In Bangladesh, the practice of plea bargaining can open up new methods of justice delivery system and can help to reduce the lengthy process of trial. If both the parties can come to an agreement it will not only reduce the cost of a trial, going on for ages as seen typically in the judicial system of Bangladesh but can also open up new options for the prosecution.
The procedural overburden often denies the prosecutor the justice they deserve. Present status quo of Bangladesh as depicted by Hossain, Z in his Present and future trends of ADR in Bangladesh showed us that, the conviction rate is only 10% in Bangladesh and after the long-awaited trial most of the accused gets acquittal which is caused mainly by the evidential loop-holes happened during the time lapse.
India has recently introduced plea bargaining through the Criminal Law (Amendment) Act 2005, in cases where the punishment does not exceed seven years. It has also been made inapplicable in socio-economic cases.
Similar proposition maybe applied in Bangladesh. If a sort of a reward system like plea bargaining is introduced for the defendants, the rate of guilty pleading will increase and speedy justice for the petitioner can be ensured easily.
Mahjubah Marzan is a student of law at University of Chittagong

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