INTRODUCTION

Plea bargaining is a pretrial negotiation between the accused and the prosecution where the
accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a
bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return drop
more serious charges. It is not available for all types of crime e.g. a person cannot claim plea
bargaining after committing heinous crimes or for the crimes which are punishable with death
or life imprisonment.
When a prosecutor reduces or dismisses a charge in the unilateral exercise of his discretion,
he does not place any pressure on the defendant to incriminate himself. Mercy is given, not
sold. Exchanging official concessions for restitution or information similarly involves no
element of compelled self-incrimination. The defendant is given more lenient treatment
because he has made the victim whole or because he has aided the prosecution of other
offenders, not because he has made his own conviction easier.
HISTORY
In the Jury System, the need for plea bargaining was not felt because there was no legal
representation. Later on, in 1960 legal representation was allowed and the need for Plea
Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in
American legal history. This concept has been used since the 19th century. Judges used this
bargaining to encourage confessions.

It would be wrong to assume that the concept of Plea Bargaining found favour of courts only
in the recent past. In fact it is used in the American Judiciary in 19thcentury itself. The bill of
Rights makes no mention of the practice when establishing the fair trial principle in the sixth
amendment but the constitutionality of the Plea Bargaining had constantly been upheld there.
In the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King, Jr. to
avoid execution sentence. He finally got an imprisonment of 99 years.

More than 90 percent of the criminal cases in America are never tried. The majorities of the
individuals who are accused of a crime give up their constitutional rights and plead guilty.
Every minute, a criminal case is disposed off in an American Court by way of a guilty plea or
Nolo Contendera Plea.

In a landmark judgment Bordenkircher Vs Hayes1, the United State Supreme Court held
that, “the constitutional rationale for Plea Bargaining is that no element of punishment or
retaliation so long as the accused is free to accept or reject the prosecutions offer. The Apex
Court however upheld the life imprisonment of the accused because he reject the ‘Plea
Guilty” offer of 5 years imprisonment. The Supreme Court in the same case however in a
different context observed that, it is always for the interest of the party under duress to choose
the lesser of the two evils. The courts have employed similar reasoning in tort disputes
between private parties also. In countries such as England and Wales, Victoria, Australia,
“Plea Bargaining” is allowed only to the extent that the prosecutors and defense can agree
that the defendant will plead to some charges and the prosecutor shall drop the reminder.

1
Bordenkircher Vs Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604, 1978 U.S
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HISTORY OF PLEA BARGAINING IN AMERICA
In a criminal trial in the United States, the accused has three options as far as pleas are
concerned guilty, not guilty or a plea of nolo contendere. A plea-bargain is a contractual
agreement between the prosecution and the accused concerning the disposition of a criminal
charge. However, unlike most contractual agreements, it is not enforceable until a judge
approves it. Plea-bargaining thus refers to pre-trial negotiations between the defence and the
prosecution, in which the accused agrees to plead guilty in exchange for certain concessions
guaranteed by the prosecutor.

Plea-bargaining has, over the years, emerged as a prominent feature of the American criminal
justice system. While courts were initially skeptical towards the practice4, the 1920s
witnessed the rise of plea-bargaining making its correlation with the increasing complexity in
the American criminal trial process apparent. In the United States, the criminal trial is an
elaborate exercise with extended voir dire and peremptory challenges during jury selection,
numerous evidentiary objections, complex jury instructions, motions for exclusion, etc. and
though it provides the accused with every means to dispute the charges against him, it has
become the most expensive and time-consuming in the world. Mechanisms to evade this
complex process gained popularity and the most prominent was of course, plea bargaining.

Thus, plea-bargaining gradually became a widespread practice and it was estimated that 90%
of all criminal convictions in the United States were through guilty pleas. In 1970, the
constitutional validity of plea-bargaining was upheld in Brady v. United States, where it was
stated that it was not unconstitutional to extend a benefit to an accused that in turn extends a
benefit to the State. One year later, in Santobello v. New York2 the United States Supreme
Court formally accepted that plea-bargaining was essential for the administration of justice
and when properly managed, was to be encouraged.
The fact that courts resources would have to be significantly increased to provide a trial for
every charge has been cited as both justification and reason for the inevitability of plea-
bargaining. Proponents of plea-bargaining argued that it would remove the risks and
uncertainties involved in a trial, thus introducing flexibility into a rigid, often-erratic system
of justice. It would also enable the court to avoid dealing with cases that involve no real
dispute and try only those where there is a real basis for dispute. Victims would be spared the
ordeal of giving evidence in court, which could be a distressing experience depending on the
nature of the case.
HISTORY IN INDIA
The famous jurist Nani Palkhivala has said "the greatest drawback of the administration of
justice in India today is because of delay of cases...................... The law may or may not be
an ass, but in India, it is certainly a snail and our cases proceed at a pace which would be
regarded as unduly slow in the community of snails. Justice has to be blind but I see no
reason why it should be lame. Here it just hobbles along, barely able to work."

2
404 U.S. 257 (1971)

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 In India, the concept of Plea Bargaining was not recognized by courts and it was considered
to be against the public policy.
In Murlidhar Meghraj Loya v. State of Maharashtra3;, the court held that-
“It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in
the United States but in our jurisdiction, especially in the area of dangerous economic crimes
and food offences, this practice intrudes on society’s interests by opposing society’s decision
expressed through predetermined legislative fixation of minimum sentences and by subtly
subverting the mandate of the law.”
In this case, the Supreme Court observed that a streamlined procedure should be devised if
the state was to administer justice by having recourse to plea bargaining.
In Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat;, the court held that-4
“the practice of Plea Bargaining was unconstitutional, illegal and would tend to encourage
corruption, collusion and pollute the pure fount of justice.”
In Uttar Pradesh v. Chandrika5;, the court held that-
“it is settled law that on the basis of plea bargaining Court cannot dispose of the criminal
cases. Mere acceptance or admission of the guilt should not be a ground for reduction of
sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be
reduced.”

The Law Commission (under the Chairmanship of Justice M.P. Thakkar) in its 142 Report,
considered the concept of plea-bargaining to overcome the problem of mounting arrears of
criminal cases. It adduced following five reasons as expressed by a large section of public
opinion in support of this provision:-

(i) Most people arrested, are guilty anyway; why bother with a trial;

(ii) Why waste public money;

(iii) “Plea bargaining” is a compromise; both sides give a little and gain a little;

(iv) Trials consume time and cost; and

(v) It is best (for both sides) to avail it since on the one hand there is always a chance that
even if the accused is guilty and the evidence is adequate there is a chance of a slip up. On
the other, the accused saves time and money and earns a concession in the form of a less
serious offence or sentence.

3
AIR 1976 SC 1929
4
(1980) 3 SCC 120
5
AIR 2000 SC 164
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The 154th Report of the Law Commission also recommended the ‘plea bargaining’ in Indian
Criminal Justice System. It defined Plea Bargaining as an alternative method which should be
introduced to deal with huge arrears of criminal cases in Indian courts.

Then under the NDA government, a committee was constituted which was headed by the
former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to
tackle the issue of escalating number of criminal cases. The Malimath Committee
recommended for the plea bargaining system in India. The committee said that it would
facilitate the expedite disposal of criminal cases and reduce the burden of the courts.
Moreover, the Malimath Committee pointed out the success of plea bargaining system in the
USA to show the importance of Plea Bargaining6.The Committee in its Report stated,

“Taking into account the advantages of plea-bargaining, the recommendations of the Law
Commission contained in the 142nd report7 and the 154th report may be incorporated so that
a large number of cases can be resolved and early disposals can be achieved. By no stretch of
imagination can the taint of legalising a crime will attach to it.”

The Committee pointed out that Probation of Offenders Act already gives the court the power
to pass a probation order. In addition to that, the power of executive pardon and power of re-
mission of sentences only lessen the length of imprisonment and do not condone the crime
committed. It pointed out the advantages of plea bargaining by stating that it will serve the
community interest as it will facilitate an earlier resolution of a criminal case, thus reducing
the burden of the court. It was of the view, that there was a possibility that number of
acquittals will also be reduced by this concept. It further stated that the Committee was in
agreement of the views of the Law Commission of India in its 142nd and 154th reports
wherein it thoroughly examined the subject of plea-bargaining/compounding/settlement
without trial and made detailed recommendations to promote settlement of criminal cases
without trial. 

The Supreme Court also time and again blasted the concept of Plea Bargaining saying that
negotiable in criminal cases is not permissible. Moreover in State of Uttar Pradesh Vs
Chandrika8 ,the Apex court held that it is settled law that on the basis of Plea Bargaining
court cannot dispose of the criminal case. The court has to decide it on merits. If the accused
confesses its guilt, appropriate sentence is required to be implemented. The court further held
in the same case that, mere acceptance or admission of the guilt should not be a ground for
6
Justice Malimath Committee on Reforms of Criminal Justice System, Parliament of
India, Report of the Committee on Reforms of Criminal Justice System,2003.
7
142nd Law Commission of India Report, Concessional Treatment for Offenders who on their
own initiative choose to plead guilty without any bargaining (1991), available at
http://lawcommissionofindia.nic.in/101-169/Report142.pdf
8
AIR 1999 SC 164
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reduction of sentence, nor can be the accused bargain with the court that as he is pleading
guilty the sentence be reduced despite this huge hue and cry, the government found it
acceptable and finally Section 265A – 265L, have added in the Code of Criminal Procedure
so as to provide for raising the Plea Bargaining in certain types of criminal cases.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the
parliament and finally it became an enforceable Indian law from enforceable from July 5,
2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure,
1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the existing Criminal
Justice System in the country, which is inundate with a plethora of criminal cases and
overabundant delay in their disposal on the one hand and very low rate of conviction in cases
involving serious crimes on the other.

Circulars of Hon’ble High Court

1. C.L. No. 31/2007 dated 29.08.2007 for informing Accused: While issuing summons to
an accused, he may be informed of the provisions of Plea Bargaining.
2. C.L. No. 49/2007 dated 13.12.2007 for Maximum Use of Plea Bargaining: Subordinate
Courts must make application and maximum use of provisions of Plea Bargaining.

SCOPE OF PLEA BARGAINING:

The concept of Plea Bargaining has now become a part of criminal jurisprudence. It benefits
both the State and the accused under the scheme of Plea Bargaining. If an eligible accused
admits his guilt voluntarily, the court may release him on probation or award lesser
punishment than prescribed. This way the accused saves time and money both.

DEPARTMENT-RELATED PARLIAMENTARY STANDING COMMITTEE ON

HOME AFFAIRS

ONE HUNDRED AND ELEVENTH REPORT ON CRIMINAL LAW

(AMENDMENT) BILL, 2003

(PRESENTED TO RAJYA SABHA ON 02, March 2005)

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(LAID ON THE TABLE OF LOK SABHA ON 04, March 2005)

Views of Members of the Committee:

On the issue of plea-bargaining, a section of Members felt that the provision was absolutely
unnecessary as there were other provisions (Section 320 coupled with Sections 357, 358 and
359) in Cr.PC under which compromise and compensation could be made/given in criminal
cases. Furthermore, it would give enormous power to public prosecutor, who is considered to
be the agent of the state, which can be misused by him and may lead to corruption.

It was pointed out that if the quantum of concession was mutually accepted by both the
parties, and was not acceptable to the Magistrate, trials would commence. In that situation,
the extra judicial confession made before the public prosecutor can be used against the
accused which may prejudice the delivery of justice.

Some Members welcomed the concept as it appeared to be advantageous and could be

experimented after removing technical difficulties.

Views of Witnesses:

(I) Welcoming the measure, changes were suggested for out of court settlement, which would
save the time of the Court. It was suggested that the public prosecutor, who is considered to
be the agent of the State, may be empowered to deal with the counsel of the accused directly
without the intervention of the Court;

(ii)Considering the fact that most of the victims being illiterate may not understand the
process of plea-bargaining and may go for plea-bargaining under pressure for which suitable
safeguards may be provided in the Bill; and

(iii)Plea bargaining may not be introduced without putting in place the independent
Directorate of Prosecution as a prerequisite, as recommended by the Supreme Court in Vineet
Narian’s case.

Observations/Recommendations of the Committee:

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The Committee while keeping in mind the views of the witnesses on plea bargaining feel that
as a pragmatic approach to management of crime and streamlining of the criminal justice
administration under a system burdened with three crore pending cases, some dispensations
which are fair, just and reasonable can be considered. However, it is of the strong view that
this provision of plea bargaining should be introduced only after putting in place the
Directorate of Prosecution as envisaged in the Code of Criminal Procedure (Amendment)
Bill, 1994 and endorsed by the Committee. It feels that there is no rationale for introducing
plea bargaining in the absence of the institution of the independent Directorate of Prosecution
and empowering the courts to settle the cases through ‘plea bargaining’ in the present set up.

The clause 7 seeks to introduce the concept of “Plea Bargaining” by inserting Chapter XXIA
having Sections 265A-K, after chapter XXI of the Code of Criminal Procedure.

RELEVANT PROVISION & PROCEDURE FOR PLEA BARGAINING:

 As Per Section 265-A, the plea bargaining shall be available to the accused who is

charged of any offence other than offences punishable with death or imprisonment or
for life or of an imprisonment for a term exceeding to seven years. Section 265 A (2)
of the Code gives power to notify the offences to the Central Government. The
Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying
the offences affecting the socioeconomic condition of the country.
 The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the
offences under the following laws for the time being in force which shall be the
offences affecting the socio-economic condition of the country for the purposes of
sub-section (1) of section 265A, namely,-
 (i) Dowry Prohibition Act, 1961.
 (ii) The Commission of Sati Prevention Act, 1987.
 (iii) The Indecent Representation of Women (Prohibition) Act, 1986
 (iv) The Immoral Traffic (Prevention) Act, 1956.
 (v) The Protection of Women from Domestic Violence Act, 2005
 (vi) The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of
Production, Supply and Distribution) Act, 1992.
 (vii) Provisions of Fruit Products Order, 1955 (issued under the Essential Services
Commodities Act, 1955).
 (viii) Provisions of Meat Food Products Orders, 1973) (issued under the Essential
Commodities Act, 1955). (ix) Offences with respect to animals that find place in
Schedule I and Part II of the Schedule II as well as offences related to altering of
boundaries of protected areas under the Wildlife (Protection) Act, 1972
 (x) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
 (xi) Offences mentioned in the Protection of Civil Rights Act, 1955.
 (xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection
of Children) Act, 2000.

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  (xiii) The Army Act, 1950.
 (xiv) The Air Force Act, 1950.
 (xv) The Navy Act, 1957.
 (xvi) Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation
and Maintenance) Act, 2002.
 (xvii) The Explosives Act, 1884.
 (xviii) Offences specified in sections 11 to 18 of the Cable Television Networks
(Regulation) Act, 1995.
 (xix) The Cinematograph Act, 1952.

 Section 265-B contemplates an application for plea bargaining to be filed by the

accused which shall contain a brief details about the case relating to which such
application is filed, including the offences to which the case relates and shall be
accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred the application, the plea bargaining the nature and extent of the
punishment provided under the law for the offence, the plea bargaining in his case
that he has not previously been convicted by a court in a case in which he had been
charged with the same offence. The court will thereafter issue notice to the public
prosecutor concerned, investigating officer of the case, the victim of the case and the
accused for the date fixed for the plea bargaining. When the parties appear, the court
shall examine the accused in-camera wherein the other parties in the case shall not be
present, with the motive to satisfy itself that the accused has filed the application
voluntarily.
 Section 265-C prescribes the procedure to be followed by the court in working out a
mutually satisfactory disposition. In a case instituted on a police report, the court shall
issue notice to the public prosecutor concerned, investigating officer of the case, and
the victim of the case and the accused to participate in the meeting to work out a
satisfactory disposition of the case. In a complaint case, the Court shall issue notice to
the accused and the victim of the case.
 Section 265-D deals with the preparation of the report by the court as to the arrival of
a mutually satisfactory disposition or failure of the same. If in a meeting under section
265-C, a satisfactory disposition of the case has been worked out, the Court shall
prepare a report of such disposition which shall be signed by the presiding office of
the Courts and all other persons who participated in the meeting. However, if no such
disposition has been worked out, the Court shall record such observation and proceed
further in accordance with the provisions of this Code from the stage the application
under sub-section (1) of section 265-B has been filed in such case.
 Section 265-E prescribes the procedure to be followed in disposing of the cases when
a satisfactory disposition of the case is worked out. After completion of proceedings
under S. 265 D, by preparing a report signed by the presiding officer of the Court and
parities in the meeting, the Court has to hear the parties on the quantum of the
punishment or accused entitlement of release on probation of good conduct or after
admonition. Court can either release the accused on probation under the provisions of
S. 360 of the Code or under the Probation of Offenders Act, 1958 or under any other
legal provisions in force, or punish the accused, passing the sentence. While
punishing the accused, the Court, as its discretion, can pass sentence of minimum

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 punishment, if the law provides such minimum punishment for the offences
committed by the accused or if such minimum punishment is not provided, can pass a
sentence of one fourth of the punishment provided for such offence. " Section 265-F
deals with the pronouncement of judgment in terms of mutually satisfactory
disposition.
 Section 265-G says that no appeal shall be against such judgment.
 Section 265-H deals with the powers of the court in plea bargaining. A court for the
purposes of discharging its functions under Chapter XXI-A, shall have all the powers
vested in respect of trial of offences and other matters relating to the disposal of a case
in such Court under the Criminal Procedure Code.
 Section 265-I specifies that Section 428 is applicable to the sentence awarded on plea
bargaining.
 Section 265-J talks about the provisions of the chapter which shall have effect
notwithstanding anything inconsistent therewith contained in any other provisions of
the Code and nothing in such other provisions shall be construed to contain the
meaning of any provision of chapter XXI-A.
 Section 265-K specifies that the statements or facts stated by the accused in an
application for plea bargaining shall not be used for any other purpose except for the
purpose as mentioned in the chapter. " Section 265-L makes chapter not applicable in
case of any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and
Protection of Children) Act, 2000.

For a valid disposal on plea bargaining it is important to follow the aforesaid procedure
contemplated in Chapter XXI-A. Even though 'plea bargaining' is available after the
introduction of the said amendment is available, in cases of offences which are not
punishable either with death or with imprisonment for life or with imprisonment for a term
exceeding seven years, the chapter contemplates a mutually satisfactory disposal of the case
which may also include the giving of compensation to victim and other expenses and same
cannot be done without including the victim in the process of arriving at such settlement.

The Hon'ble High Court in the case of Sh. Charan Singh v. M.C.D9. has held that no
disqualification on account of conviction could be attached to petitioner as he had been
released on probation. In this case, the Hon'ble Delhi High Court has quoted the case
of Trikha Ram v. V. K. Seth and Anr 10 wherein the Hon'ble Supreme Court held that the
benefit of Section 12 of The Probation of Offenders ACT, 1958 can be extended to the
service of the offender.

TYPES OF BARGAINING:
Charge Bargaining: It is a bargain or promise between the prosecutor and defendant to
deduct some of the charges brought against the defendant in exchange of guilty acceptance.
When accused accepts for guilty that he has committed the wrong then with the approval of
prosecution, there can be charge bargaining but it solely depends upon the will of
prosecution. Prosecution may accept or neglect it. After charge bargaining the defendant will
face specific charge.

Sentence Bargaining: it is a promise by the prosecutor, after acceptance of guilty, to

recommend the court specific sentence or bargained sentence or it can be done directly with
9
182 (2011) DLT 454 
10
AIR 1988 SC 285
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the trial judge. For this purpose, accused must be informed about the sentence likely to be
imposed in case he does not accepts his guilt but if he does so then prosecutor demands for
lesser sentence or favorable sentence instead what he was demanding earlier because of
showing some sort of innocence regarding his guilt or for saving court’s time.
Fact Bargaining: it attempts to bargain for the facts of the case. This type of plea bargaining
deals with alternate contentions on the facts of relevance in the case at hand. Both the parties
negotiate on the facts that are to be admitted by both of them. This type of plea bargaining is
said to be opposed to the spirit of the Criminal Justice System. This is because negotiating the
very facts of the case, is opposed to the spirit of criminal justice. Facts of a case cannot be
changed, a fact is a fact. If we negotiate on changing the very facts of the case it becomes no
less than a fiction.
REASONS FOR INTRODUCING THIS CONCEPT IN INDIA:

1) Speedy disposal of criminal cases i.e. reduction in heavy backlogs.

2) Less time consuming.
3) End of uncertainty of a case.
4) Saving legal expenses of both the parties i.e. accused and state.
5) Less congestion in jails.
6) Under present system, 75% to 90% of the criminal cases results in acquittal, in this
situation it is preferable to introduce this concept in India.
7) It is not fair to keep the accused with hard-core criminals because if the accused is
innocent then he will accept his guilt and in this situation, it is not reasonable.
8) In its report the commission pointed out that in several cases the time spent by the accused
in jail before commencement of trial exceeds the maximum punishment which can be
awarded to them if found guilty," there is unavailability of statistical data regarding under
trial prisoners etc., resulting in a denial of justice.

Benefits In Respect Of Victim:

a) He can easily get the compensation.
b) He can save himself from long drawn Judicial Process.
c) Less time and money consuming.

Benefits In Respect Of Accused:

a) In case of Minimum Punishment, he will get half punishment.
b) If no such punishment is provided, then he will get one fourth of the punishment provided.
c) He may release on probation or admonition.
d) He may get the gain of period already undergone in custody under section 428 of Cr.P.C.
e) No appeal lies against the judgment in favour of him.
f) Admission of accused cannot be used for any other purposes except for Plea-bargaining.
g) Less time and money consuming.

Relevant Case Laws:

In one recent case of Mumbai, published in ‘Times of India’ wherein, a Grade-I employee of
RBI, was accused of siphoning off Rs 1.48 crore from the RBI by issuing vouchers against
fictitious names from 1993 to 1997 and transferring the money to his personal account. He

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was arrested by the CBI in the year 1997, and released on bail in November the same year.
Charges were framed and case came before Special CBI Judge.

The accused stated that he is 58 years old and moved an application of plea- bargaining by
taking benefit of the amendment of 2005, came into force in 2006. The court directed the
prosecution for its response. The court rejected the application but from that time, it has
opened the doors and new hope in the minds of other accused.

In other case of Vijay Moses Das Vs. CBI11 , Uttrakahnd High Court (Justice Praffula Pant)
in March 2010 allowed the concept of plea-bargaining, wherein accused was charged under
section 420, 468 and 471 of IPC. In the said case, Accused supplied inferior material to
ONGC and that too at a wrong Port, which caused immense losses to ONGC, then
investigation was done through CBI by lodging a criminal case against the accused.
Notwithstanding the fact that ONGC (Victim) and CBI (Prosecution) had no objection to the
Plea-bargaining Application, the trial court rejected the application on the ground that the
Affidavit u/s (265-B) was not filed by the accused and also the compensation was not fixed.
The Hon’ble High Court allowed the Misc. Application by directing the trial court to accept
the plea-bargaining application.

Critical Analysis:
It has become a disputed concept because there are many views regarding the stated point.
Some authorities stress that introduction of plea- bargaining in India is exceptionally good as
it will reduce heavy backlog prevalent in Indian Judiciary as well as reduce congestion in
jails and other reasons whereas some authorities denied about it on the basis that the socio-
economic conditions existed in US and India are very different. Law Commission in its report
recommended it with the justification and reasons for accepting it. They stressed mainly on
the points stated above. On the other hand, Opponent of this concept thinks that:

1. It is showing too much softness towards defendants.

2. The process is unfair with the innocent. It is like legalizing a crime to an extent, we already
have provisions under probation of offenders Act, executive pardon.
3. According to one study of the US, one-third of the people who plead guilty would be
acquitted if they went to trial.

MAJOR DRAWBACKS OF PLEA-BARGAINING:

A) Involvement of the police in plea-bargaining process would tempt coercion on innocent
people.
B) If once guilty application of the accused is rejected then he would face great hardship to
prove himself innocent.
C) Court is impartially challenged due to its involvement in plea-bargaining process.
D) Involvement of the victim may lead to corruption.

One aspect can be taken that plea-bargaining will instead likely to dramatically increase the
number of cases where innocent persons find themselves imprisoned and with criminal
records. Sometimes police make poor innocent people, accused of crimes that they never

11
Criminal Misc. Application 1037/2006
11 | P a g e
committed, after being paid off by the actual perpetrators. With the concept of plea-
bargaining, these persons will be getting pushed to accept their guilt which they had never
committed. In the prevalent situation, where the acquittal rate is as high as 90% to 95%, it is
the poor who will be the victims of this concept and come forward to make confessions and
suffer the consequent conviction. This measure to get speedy justice will only lead to
miscarriages of justice. It is important to note that no programme of rehabilitation can be
effective for the mind of prisoner who has assumed himself as prisoner and convinced in his
own mind that he is in prison because he has became the victim of a senseless, undirected,
and corrupt system of justice and it undermines the very basis of criminal justice system.

Secondly, it will have striking effects in cases involving state officers, accused of human
rights abuse. In case of Custodial torture, this is yet to be made a crime. An Indian police
officer accused of torturing a person in his custody may instead only be tried for other
offences, such as those punishable under sections 323, 324 or 330 of the Indian Penal Code.
The punishments for these offences are within the limit prescribed for punishment under the
new law on plea-bargaining. This means that the new law may allow these torturers to escape
with lighter penalties, even after knowing the fact that their offences fall into the gravest
categories under international law.

CRIME RECORDS SHOWING WIDESPREAD ABUSE OF PLEA BARGAIN LAW

Over 4,000 cases of murder, robbery and crimes against women were disposed of by courts
last year after plea bargaining pacts between parties in violation of law passed by Parliament
a decade ago.

The 2005 amendment to the criminal procedure law that introduced the principle of plea
bargaining — whereby an offender can negotiate a compensation package with the victim —
explicitly barred courts from letting the accused get away with a lighter sentence for heinous
crimes punishable with more than seven years in jail and all crimes against women.
Statistics put out by the National Crime Records Bureau (NCRB), however, indicate that
courts did not let this condition imposed by Parliament stand in the way of plea bargains in
many cases.
According to the NCRB, courts disposed of 27 cases of murder, 55 of attempt to murder, 40
of rape and 27 of robbery by plea bargaining.
In addition, plea bargaining was used to dispose of 3,584 cases of crimes against women.
These included about 2,200 cases of cruelty by husband and his relatives and 1,045 of assault
with intent to outrage the modesty of women.
Retired Delhi high court judge SN Dhingra was surprised at the NCRB finding. “We all know
that plea bargaining is applicable only for offences which attract punishment for seven years
or less. In all other cases, there can’t be any plea bargain,” Justice Dhingra told HT,
wondering if it was a case of wrong reporting by the NCRB.
An NCRB official said there was no question of an error at the bureau’s level.

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Parliament turned the plea bargaining concept inspired by the United States into law in 2005
to help liquidate mounting arrears of criminal cases in courts and ease congestion in jails. But
some categories of crimes were kept out of its purview to ensure the rich and powerful did
not abuse the provision to the detriment of the poor.
The NCRB, for the first time, put a number to it in its recent report. In all, nearly 35,000
crimes under the Indian penal code had been disposed of under this provision in 2014. This is
just a little over 2% of the 1.3 million cases decided through the year. Madhya Pradesh
topped the list with as many as 25,000 of them. In Delhi, this provision was invoked in barely
250 cases. Maharashtra’s figure was marginally higher at 331 cases.
A police officer conceded that plea bargaining hadn’t really taken off, possibly for lack of
awareness.

RECOMMENDATIONS
Even though the amendment has tried to address the problems of under trial prisoners by
mandating the court to give accused the benefit of Probation of Offenders Act where so ever
it is permissible. Then Section 12 of the said Act provides that it shall not cast any stigma on
the offender. Sec 265 I also Section 428 applicable to the sentence awarded on plea
bargaining But there is lack of awareness amongst under trial prisoners. Provisions should be
incorporated in the chapter making the probation officers and jail superintendents duty bound
to conduct sessions in prisons informing the under trial prisoners of such a benefit which can
be availed by them.
A specified time should be laid down within which if a trial hasn't commenced the under trial
prisoner should be let free. Police, prosecution, and judiciary should be made accountable for
delays in their respective spheres, not the under trial prisoners.
The accused in cases that are at appeal stage prior to the 2005 Amendment should be allowed
to avail this alternative remedy. There should be more clarity on the offences which come
under socio economic offences. There should be guidelines given to the government as to
what basis an offence should be classified as socio economic offence. This can act as a
safeguard against using this power arbitrarily. The applicability of the section should be
widened and classification for the benefit of plea bargaining should not be merely based on
the number of years of punishment for a particular offence but it should also consider the
severity of the crime.
A parallel system should be set to consider cases dealing with plea bargaining. Only if the
forum feels that a satisfactory disposition cannot be worked out it should send the case back
to the court which should proceed from the stage where such application has been filed for
plea bargaining.
A time frame should be stipulated for working out a mutually satisfactory disposition.
COMPARING THE PROCESS OF PLEA BARGAINING IN INDIA WITH OTHER
COUNTRIES

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Plea Bargaining India Vs. United States Of America:

The concept of Plea Bargaining in India is regarded as a progeny of the concept of Plea
Bargaining in the United States Of America by many. This is true to a large extent, however,
there are some differences between the two countries, which are pointed out as under:

1. In the United States Of America adopting the process of plea bargaining by the
accused does not depend upon the offence that he or she is accused of. This is not
the case in India, here plea bargaining can only be treated as an option when the
offence that the accused is charged with has a maximum punishment of less than
seven years.
2. In America, the negotiation regarding plea bargaining is done between the
prosecutor and defendant, out of the court. However, in India, this process is
inevitably preceded by an application made by the defendant. This is done with the
sole purpose of minimising the chances of duress.
3. Another difference that exists is that in India there is a provision for the judge to
decide on the admissibility of the application for plea bargaining. If the court is of
the view that the punishment accorded for in plea bargaining is not satisfactory or
is mitigated by the factor of unfairness, it can be set aside. This is not the case in
the United States of America. 

Hence the concept of plea bargaining in India and the United States Of America, though
essentially the same has some significant differences as well. 

Plea bargaining is remarkably distinct in both substance as well as procedure in India, the
United States and Italy. Italy forms one end of the spectrum. The extent of application and
scope of plea bargaining in Italy is very limited, and confined to only cases of minor crimes
which attract five years of imprisonment or less. Moreover, Italian judicial system entails
pleading guilty to all charges, which is significantly different from the other two nations. Italy
may presently follow an adversarial system; however, this is the by-product of having a civil
law system.
On the other hand, the United States forms the other end of the spectrum. plea bargaining in
USA is applicable to each and every possible crime committed. Accused is free to take up
both charge bargaining and sentence bargaining with the expectations of earning sentence
concessions, which in most cases he does. There is a scarcity of cases in USA which are not
decided from plea bargaining, with most defendants ready to plead guilty right at the onset of
a case. The negative flak drawn by a convict who accepts plea bargaining is massively
outweighed by the outrageous period of time he would have to spend in jail in the event of

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losing the case. Thereby, most accused are allured by the prospect of accepting plea bargains.
As far as the procedure is concerned, all that is needed is for the prosecuting attorney to
appraise the Court of the settlement agreement desired. The entire process is free from the
hassles of making any submissions or filing any documents in the Court.
As far as India is concerned, it takes sort of a middle path, which is a reinstatement of the fact
that India is an amalgamation of the laws of various nations. India does permit plea
bargaining, however, it comes along with a lot of stipulations and restrictions, though, not as
acute as Italy. In addition, far fewer number of cases are resolved by the provision of plea
bargaining in India, compared to America. Procedure in India is way more complicated than
in USA, requiring the applicant to comply with all the specific provisions laid down in S.
265A-L of the Cr.P.C.
Adjudging the best of the three systems can be a contentious venture. However, it can be
better tackled after factoring in all the advantages and disadvantages of plea bargaining in
these countries.
In Britain and the United States, but in most inquisitorially rooted procedures, it is limited
to less serious cases. Germany is perhaps the exception to this, where sentence bargaining
practices have developed informally (they were not regulated by statute until 2009) and so
they were free from the constraints of procedural principles and are applied to both serious
and minor offenses12.

In Canada and elsewhere, the majority of criminal cases are dealt with through guilty pleas

resulting from agreements made between Crown and defence counsel prior to standing in

front of a judge In 1974, the Canadian Bar Association’s CBA Code of Professional Conduct,

a precursor to today’s Model Code, adopted a rule that seems to have started the journey

toward the acceptance of plea bargaining. The rule described limited scenarios where it was

proper for a lawyer to advise a client to enter a guilty plea, and cautioned against doing so

where the principal purpose of entering the plea was expediency. The rule read as follows:

CONCLUSION:
Even the Supreme Court has upheld that delay of one year in the commencement of trial is
bad enough; how much worse could it be when the delay is as long as three or five or seven
to ten years or more. Speedy trial is the essence of criminal justice and there is no doubt that
delays in trial itself constitutes denial of justice. Initially, the concept of plea- bargaining was
criticized by a group of society including legal experts and intellectuals by stating that it will
demoralize the public confidence in criminal justice system and also lead to lesser penalties
to rich class, conviction of innocent people and therefore, it has become disputed concept
now. Today, it is used by all great countries like USA, Europe, Canada and some authorities
stated that the prevalent conditions in India are very different from US, even then to meet out
the huge backlog of cases in India and ultimately it will have to be done with the consent of

12
Weigend, 2008; Rauxloh, 2011
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both the parties i.e. accused and prosecution, then what undermines? Therefore, India cannot
abstain itself for this law. This practice has been accepted by Indian Judiciary. It can reduce
the heavy backlog of cases in Indian courts; as it requires today and we hope that
overburdened criminal courts will soon get a relief with it and rate of disposing will become
rapid. According to the statistics of Delhi till 17/01/2011, out of 8630 total cases, only 4129
cases have settled and there is no statistic which show that in how many cases plea-
bargaining was demanded but even then only 309 were declared in which it was rejected . It
shows the heavy backlog under Indian Courts and application of plea- bargaining.

When the process is complete and the quantum of punishment and possibility of the probation
is finished, we can say that the victims are not the forgotten actor rather they have become a
key player in the criminal justice system.

According to the view of a Judge of Delhi High Court ‘over three crore cases are pending in
Indian courts. Plea-bargaining will solve cases involving petty offences and the courts will
concentrate on more serious offences. Indian jails have capacity of 2.56 lakh prisoners but
there are more than five lakh prisoners behind bars. The State governments spend more than
rupee 55 per day on each prisoner and annual expenditure comes up to Rs 361 crore. This
huge amount is spending by our Indian government to maintain these prisoners just because
of delayed criminal justice system. Plea- bargaining will help in reducing backlog under
Indian Judiciary and number of prisoners in jails also although the Constitutional obligation
to provide speedy trial is also being fulfill.

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