A

Dissertation Report
on
“Law of plea bargaining and criminal justice
system in India: A social and legal study”

Session:- 2020-2021

Under the Guidance of Submitted by

Prof. Sandeep Dev Pandey Alok Kumar Dwivedi
Govt. Law. College Rewa LL.M Part- 2 (Term-II)
Roll No. 1916400030
Enrollment No.
152021630071
 Acknowledgement

I have grateful pleasure my Guide Prof. Sandeep Dev Pandey

Govt. Low College Rewa For this valuable guidance and remarkable it is
due to encouragement provided by this that they could reach at this final
stage.
I Greatly Thank to Mr. Yogendra Kumar Tiwari (Principal) has
been very supportive and helping. It was support that helped to complete
the Project Report “Law of plea bargaining and criminal justice system
in India: A social and legal study” it always made that we were provided
everything we needed.
I am very happy to express our thanks fullness to each member
of Govt. Low College Rewa for their help in various stages in this
Project work.

Thank you
Alok Kumar Dwivedi
LL.M. Part-2 (Term-
II) Roll No. 1916400030
 Declaration

I am Alok Kumar Dwivedi LL.M. Part-2 (Term-II) from Govt.

Low College Rewa Certify that the Project report entitled of "Law of
plea bargaining and criminal justice system in india: A social and legal
study" Prepared by Me. It is my personal and authentic work under the
guidance of Guide Prof. Sandeep Dev Pandey.

Date ………………
Place……………… Signature of Student
Alok Kumar Dwivedi
LL.M. Part-2 (Term-
II) Roll No. 1916400030
Date …………….

CERTIFICATE

This is to certify that Alok Kumar Dwivedi LL.M. Part-2 (Term-

II) from Govt. Low College Rewa has successfully completed his/her
Project work our Institute this period we found he/she very Honest
Sincere and hard worker. And his/her behavior was satisfactory.
We wish best of luck for his/her future.

Guided By
Prof. Sandeep Dev Pandey
 Content
 Abstract
 Introduction
 PLEA-BARGAINING IN INDIA
 APPROACH OF INDIAN JUDICIARY
 The Indian model of Plea bargaining
 Plea- Bargaining: Present Status in India
 The salient features of plea-bargaining
 Development of Plea Bargaining in Modern India
 Position under US law and Indian Law
 The Criminal Law (amendment) Act,2005
 From 2006 Plea Bargaining is Permitted Procedure of Criminal Justice
in India
 Reasons to growth in India
 Justification for Plea Bargaining
 Procedure of Plea Bargaining
 Role of the Prosecutor
 Pitfalls in the Process of Plea Bargaining
 Relevant Case Laws
 Critical Analysis
 Advantages of plea bargaining
 Disadvantages of plea bargaining
 Suggestions
 Conclusion
 Bibliography
Abstract

“Plead Guilty and bargain Lesser Sentence” is the shortest possible meaning of Plea Bargaining. “Plea
bargaining” falls into two distinct categories; first category is “charge bargaining” which refers to a
promise by the prosecutor to reduce or dismiss some of the charges brought against the defendant in
exchange for a guilty plea. The second category, “sentence bargaining” refers to a promise by the
prosecutor to recommend a specific sentence or to refrain from making any sentence recommendation in
exchange for a guilty plea. The concept of plea bargaining was introduced in India Criminal Justice
System in the year 2005 by means of Criminal Law (Amendment) Act, 2005. By this amendment, a new
Chapter XXI A has been introduced in the Code of Criminal Procedure.
Plea bargaining is a novel concept in India. In the modern era of the criminal justice system the vast
majority of criminal convictions are produced through bargained pleas. It is the process whereby the
accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case
subject to the court approval. It usually involves the defendant pleading guilty to lesser offence as to only
one or some of the courts of a multi-count indictment in return for a lighter sentence than that possible for
the graver charge. Therefore, plea-bargaining refers to pre-trial negotiations between the defendant
through his/her counsel and the prosecution during which the accused agrees to plead guilty in exchange
of lesser punishment. In India, the position is very different from the US. In the US and Europe, plea
bargaining is a widely prevalent practice which helps expedite the legal process.
Today, when many defendants who come before the court have much less in the way of prospects to
lose, leniency may be more likely to be regarded with cynicism, as an act of weakness by the state, and
Plea bargaining may grow more problematic. Plea bargaining allows the accused to bargain with the court
on the sentence that will be awarded. In India, it was introduced by way of an amendment Act of 2005 in
Code of Criminal Procedure and there are not many cases related to plea bargaining. Interestingly, there
was controversy and huge debates with respect to the introduction of this concept in Cr.P.C. till 2005
because it was not accepted by the Indian Judiciary. Furthermore, the concept is not widely recognized as
it came recently. In India the initiation of plea-bargaining has to be by the accused which is different from
US Law. Indian law provides for a number of negotiations between the accused and the prosecutor or
with the court itself which is different from the US. Court has to take great care at the time of application
of plea-bargaining. In this paper, an attempt has been made to discuss various aspects of plea bargaining
including judicial attitude on this issue and appropriate suggestions will be given accordingly.
Introduction:-

“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."
-Nani Palkhivala
The path of plea bargaining's rise was in great part a function of the powers and interests of
individual courtroom actors. Although criminal defendants play a distinct part in this story, the most
important actors prove to be prosecutors and judges. In the early decades of the nineteenth century, plea
bargaining was the work of prosecutors, who found natural incentives in the quick and easy victories it
gave them. But because judges and not prosecutors held most of the sentencing power and therefore most
of the plea-bargaining power could spread no further than those few cases in which prosecutors happened
to hold the balance of sentencing power.
It is true too, in view of threats such as long terms in prison, there is a strong possibility that the
innocent may plead guilty. It may well be a rational calculation, given the penalty of going to trial, for
there is clearly such a penalty. The prosecutor typically induces a plea by offering a “carrot,” the lesser
charge, and at the same time a gigantic “stick.” It is not simply that he may well tack on additional
charges enabling mandatory or even consecutive punishments, should the defendant go to trial. He also
can threaten that he will introduce evidence of uncharged conduct at the sentencing, or even evidence of
counts for which the defendant was acquitted, so long as the defendant is convicted of something. No
other common law country in the world enables the prosecutor to seek a sentence based on criminal
conduct never charged, never subject to adversary process, never vetted by a grand jury or a jury, or
worse, charges for which the defendant was acquitted.

Undoubtedly, speedy trial is an essence of the criminal justice system and delay in trial by itself
constitutes denial of justice. Pendency for long periods operates as an engine of oppression. In order to
reduce the delay in disposing of criminal cases the Law Commission recommended introduction of “Plea
Bargaining” as an alternative method to deal with huge arrears of criminal cases. Its introduction in
Criminal Procedure code was recommended by the Law [Link] recommendation was
supported by the Malimath Committee also. In statements of objects and reasons of the Act it is
mentioned that disposal of criminal trials don’t commence for as long as 3 to 5 years.

In a given situation, plea bargaining seems to be the only panacea left to bail out from this situation.
The Act was enforced with effect from 5th July, 2006. This has certainly changed the face of the Indian
Criminal Justice System. Some of the salient features of ‘Plea Bargaining’ are that it is applicable in
respect of those offences for which punishment is up to a period of 7 years. Moreover it does not apply to
cases where the offence committed is a socio-economic offence or where the offence is committed against
a woman or a child below the age of 14 [Link] bargaining is a concept in which a prosecutor and an
accused settle a criminal case among themselves through bargain. In this case the accused agrees to plead
guilty in exchange for some concession. This concession includes reducing the original charge,
dismissing the charges etc. In fact a plea bargain allows the parties to settle the pending charge and the
parties agree on the outcome. Thus, plea bargaining, in its most traditional and general sense, refers to
pretrial negotiations between the defendant, usually conducted by the counsel and prosecution, during
which the defendant agrees to plead guilty in exchange for certain concession by the prosecutor.
 According to Black’s Law dictionary defines plea bargaining as the process whereby the accused
and the prosecutor in criminal cases work out a mutually satisfactory disposition.
Earlier the Criminal Jurisprudence of India did not recognize the concept of “plea bargaining” as
such. However, reference may be made to section 206 (1) and Section 206 (3) of the Code of Criminal
Procedure and section 208 (1) of the Motor Vehicles Act, 1988. These provisions enable the accused to
plead guilty for petty offences and to pay small fines whereupon the case is closed.

The Government was hesitant to take a policy decision on the introduction of the plea bargaining in
the criminal justice system due to opposition from the legal experts, judiciary etc. The Hon’ble Supreme
Court has criticized the concept of Plea Bargaining in its judgment namely, Murlidhar Meghraj Loya v.
State of Maharashtra, AIR 1976 SC 1929.

Further, the Hon’ble Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of
Gujarat and Anr 1980CriLJ553 strongly disapproved the practice of plea bargain. The Apex Court held
that practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption,
collusion and pollute the pure fount of justice. Similarly, in Kasambhai v. State of Gujarat, AIR 1980 SC
854 the Supreme Court had expressed an apprehension that such a provision is likely to be abused.

The Law Commission of India advocated the introduction of ‘Plea Bargaining’ in the 142nd, 154th
and 177th reports. The Law commission noted that the experience of the United States was evidence of
plea bargaining being a means for the disposal of accumulated cases and expediting the delivery of
criminal justice.

Based on the recommendation of the Law Commission, the new chapter on plea bargaining making
plea bargaining in cases of offences punishable with imprisonment upto seven years has been included in
Crl.R.C and the same has come into effect from 05.07.2006. A consideration of Chapter XXI-A dealing
with plea bargaining will show that certain procedures prescribed for plea bargaining under Sections 265-
A to 265-L of Cr.P.C are to be complied to make it a valid plea bargaining. As per Section 265-A, the
plea bargaining shall be available to the accused charged of any offence other than offences punishable
with death or imprisonment or for life or of an imprisonment for a term exceeding seven years. Section
265-B contemplates an application for plea bargaining to be filed by the accused which shall contain a
brief description of the case relating to which such application is filed, including the offence to which the
case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred, after understanding the nature and extent of the punishment provided under the law
for the offence, the plea bargaining in his case and that he has not previously been convicted by a court in
a case in which he had been charged with the same offence. Sub-clause 4(a) is to the effect that if the
court is satisfied with the voluntary nature of the application, then it shall provide time for working out a
mutually satisfactory disposition of the case which may include giving to the victim by the accused
compensation and other expenses.

Section 265-C prescribes the procedure to be followed by the court in working out a mutually
satisfactory disposition. 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. Section 265-E prescribes the
procedure to be followed in disposing of the cases when a satisfactory disposition of the case is worked
out. Section 265-F deals with the pronouncement of judgment in terms of such mutually satisfactory
disposition. Section 265-G says that no appeal shall lie against such judgment. Section 265-H deals with
the powers of the court in plea bargaining. Section 265-I makes Section 428 applicable to the sentence
awarded on plea bargaining. Section 265-J contains a non obstante clause that the provisions of the
chapter 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 says 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 of the
chapter. Section 265-L makes the 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.

Unless the aforesaid procedure contemplated in Chapter XXI-A is followed the same cannot be a
valid disposal on plea bargaining. 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 disposition of the case which may also include giving compensation to victim and
other expenses. The same cannot be done without involving the victim in the process of arriving at such a
settlement.

The provisions also mandate the court to give accused the benefit of Probation of Offenders Act
wherever it is permissible. Thus, if an admonition or a supervisory order is passed under the Probation of
Offenders Act, 1958, then Section 12 of the said Act provides that it shall not cast any stigma on the
offender. Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an
offence and dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to
the conviction. Thus, the Government employees who are released on probation under the Probation of
offenders Act are saved from the disqualification which is attached to conviction.

Concept of Plea Bargaining should be encouraged and the litigant should be encouraged to avail the
remedy of plea bargaining to settle the pending cases. For the successful implementation of plea
bargaining and to achieve its objectives, the role of judiciary and the bar is very important. The member
of the bar should encourage the litigant to opt for the plea bargaining rather than to treat the plea
bargaining a threat to their profession. With the changing world scenario where all the countries are
shifting to ADR from the traditional litigation process which is lengthy as well as complex, the plea
bargaining may be one of the best recourse as an ADR mechanism to meet the challenges of disposal of
pending cases.
PLEA-BARGAINING IN INDIA

Huge arrears of criminal cases are a common feature in almost all the criminal courts. It is in this
background, the law commission felt that some remedial legislative measures to reduce the delays in the
disposal of criminal trials and appeals and also to alleviate the suffering of under trials prisoner’s. The
Law Commission in its 142nd Report on Concessional treatment of offenders who on their own initiative
choose to plead guilty without bargaining (1991) considered the question of introduction of the concept of
concessional treatment for those who choose to plead guilty by way of plea-bargaining. Criminal
jurisprudence of India does not recognize the concept of “plea bargaining” as such. Reference may,
however, be made to section 206(i) and section 206(3) of Code of criminal procedure and Section 208(1)
of Motor Vehicles Act, 1988. These provisions enable the accused to plead guilty for petty offences and
to pay small fines whereupon the case is closed. But there is no bargaining between the prosecutions on
the one hand and the accused on the other hand.

The Law Commission has examined the cases decided in the U.S.A. as well as the Supreme Court
of India in respect of this concept and the 142nd [Link] Commission was of the view that the plea
bargaining made an essential component of administration of criminal Justice provided it is properly
administered. For that purpose, certain guidelines and procedures have to be incorporated in the code of
criminal procedure.

So, plea bargaining would not apply to serious offences. Three more categories of offences have
also been excluded from its purview. First are those offences affecting the socio-economic status of this
country. The second category of exclusion comprises offences committed against women. The IIIrd
consists of offences committed against children below the age of 14. Despite such vast exclusion areas of
these are many offences for which the accused will be entitled to avail themselves of the advantages of
plea bargain.

APPROACH OF INDIAN JUDICIARY:-

Indian judiciary has adopted a very strict approach towards plea bargaining. A crime is essentially a
wrong against the society and the state. Therefore any compromise between the accused person and the
Individual victim of the crime, or for that matter the state, should not absolve the accused from criminal
liability. It is an approach, which the Indian Judiciary has been following. Indian legal system does not
recognize the concept of plea-bargaining and considers it illegal and unconstitutional.
This has been reflected by the Supreme Court in a series of cases Madan Lal Ram Chandra Daga
v. State of Maharashtra. Is first case in this line wherein the Supreme court observed that “in our
opinion, it is very wrong for a court to enter into a bargain of this character. Offences should be tried.

The Supreme Court of India has examined the concept of plea-bargaining in the case of Murlidhar
Meghraj Loyat v. State of Maharashtra and Kasambhai v. State of Gujarat. In the Kasambhai case
Supreme court resisted a plea of guilt based on plea bargaining, as it would be opposed to public policy, if
an accused were to be convicted by inducing him to plead guilty, by holding out a light sentence as an
allurement. Such a procedure would be clearly unreasonable, unfair, unjust and would be violative of
Article 21 of the Constitution unfolded in Maneka Gandhi’s case. It would have the effects of polluting
the pure fount of Justice because it might induce an innocent accused to plead guilty to suffer a light and
in consequential punishment rather than go through a long and arduous criminal trial.
 Basheshar Nath v. The Income Tax Commissioner Supreme Court states that plea bargaining
amounts to waiver of a constitutional right to have a trial implicit in article 21, which is not permitted
under Indian law, The U.S. Supreme Court has held in Bokyn v. Albania, that plea bargaining involves
waiver of three constitutional right viz.,
(1) right to trial
(2) right to confront adverse witnesses and
(3) privilege against self incrimination.

In India, a law permitting waiver of these rights, induced by allurement of lighter sentence may not
be permissible.

The Indian model of Plea bargaining:-

Chapter XXI A of the Cr.P.C. inserted by the Criminal Law (Amendment) Act of 2005 consists of
twelve provisions detailing the plea bargaining [Link] provisions, though, are not entirely in sync
with the scheme recommended by the Law Commission of India in its one hundred and forty second and
one hundred and fifty fourth Reports and endorsed by the Malimath Committee." Both schemes are
discussed in turn in this section.

As per the [Link] initiative to move the machinery for negotiated pleas is left to the accused. A
person accused of an offence for which the maximum punishment does not exceed seven years may file
an application for plea bargaining in the court in which such offence is pending for [Link] is where the
Indian scheme differs crucially from the American scheme, often considered the prototype, where an
application is made by the public prosecutor and the accused after negotiations between them are over.'
On receiving the application, the court has
to examine the accused in camera, and if it is satisfied that the application has been filed by the accused
voluntarily, the victim, the accused, the public prosecutor and investigating officer, if the case is one
instituted on a police report, are given time to work out a mutually satisfactory disposition of the case,
which may include the accused giving compensation to the victim and other expenses incurred during the
case." This is where the second major divergence from the American system comes in: it is implicit from
the provision that the victim has the power to veto the bargain reached, unlike in the United States where
the inability of victims to mount private prosecutions or to compel public prosecution reinforces the
bargaining power of prosecutors and the limited ability of victims to influence the terms of plea
agreements.

The judge is not envisaged to be a silent spectator, but has a significant role to play in the process.
The court is responsible for ensuring that the whole process is carried out with the full and voluntary
consent of the accused. Where a satisfactory disposition of the case has been worked out, the court is
bound to dispose of the case after awarding compensation to the victim as per the settlement arrived at,
and after hearing the concerned parties on the issue of quantum of punishment. It then has to award the
sentence, and this may range from one fourth
to one-half of the prescribed punishment for that offence. This is similar to the practice in other common
law jurisdictions such as the United Kingdom and Australia, where plea bargaining is permitted to the
limited extent that the prosecutors and the defence can agree that the defendant will plead guilty to some
charges and the prosecutor will drop the rest, while the courts have reserved their power to decide always
what the appropriate penalty is to be.'

The law also makes it mandatory to pronounce the judgment in open court. A clause has been added
in favour of the accused stipulating that the statement or facts stated by an accused in an application for
plea bargaining shall not be used for any other purpose. The judgment delivered by the Court in case of
plea bargaining shall be final and no appeal shall lie in any court against the judgment.

Certain other provisions also indicate the cautious approach of the legislature. Section 265A
declares that plea bargaining cannot be availed of in respect of those offences for which punishment is
more than an imprisonment of seven years and/or where the offence affects the socio-economic condition
of the country (to be notified by the Central Government) or has been committed against a woman or a
child below the age of fourteen years. The availability of the procedure is also restricted to first time
offenders.

The scheme described above and incorporated into the Cr.P.C. is, nonetheless, at divergence with
that suggested by the Law Commission of India in its Reports, which it called "concessional treatment for
those who on their own choose to plead guilty without any bargaining". The scheme envisaged the
constitution of a "competent authority"- a Metropolitan Magistrate or a Magistrate of the First Class
specially designated as a "Plea-Judge" by the High Court in case of offences punishable with
imprisonment for less than seven years, and in case of other offences, two retired judges of the High
Court appointed in consultation with the Chief Justice of the High Court and his two senior most
colleagues- to decide on whether or not to accord concessional treatment to an accused who makes an
application for the [Link], theoretically, there is no room for bargaining or underhand dealings with
the prosecution or the judge trying the case. The victim and the prosecutor have a role to play only insofar
as they have a right to be heard and place their points of view before the competent authority. Quite
apparently, the scheme recommended was, thus, only a formalisation of the practice of showing some
leniency in punishment to those who plead guilty, rather than plea bargaining in its conventional sense.

Plea bargaining is sometimes seen as being akin to compounding of offences under section 320 of
the Cr.P.C. as both involve methods of Alternative Dispute Resolution (ADR).But there are some
important differences between the two. Compounding of an offence has the effect of an acquittal. There is
no admission of guilt which is the starting point for both punitive and rehabilitative rationales for
punishment. Secondly, only offences that are essentially of a private nature have been recognised by the
Cr.P.C. as compoundable, while some others are compoundable with the permission of the [Link] is
because a "crime" is essentially seen as a wrong against society at large and the state, thereby, acquiring
an interest in criminal punishment, a compromise between the accused and the the victim is generally not
allowed. This also explains why an expansion of the list of compoundable offences under section 320 of
the Cr.P.C. could not have been an answer to the problem of overcrowded dockets and jails for which
plea bargaining was purportedly introduced in India.

Plea- Bargaining: Present Status 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."
This is a new concept under Indian Law which was introduced after the amendment Act of 2005 in
Code of Criminal Procedure.

What is Plea- Bargaining?

“Plea-bargaining is the process whereby the accused and the prosecutor in a criminal case work out a
mutually satisfactory disposition of the case subject to the court approval. It usually involves the
defendant pleading guilty to lesser offence as to only one or some of the courts of a multi-count
indictment in return for a lighter sentence than that possible for the graver charge”. – Black’s Law
Dictionary.

Therefore, it can be said that plea-bargaining refers to pretrial negotiations between the defendant
through his/her counsel and the prosecution during which the accused agrees to plead guilty in exchange
for lesser punishment.

The origin and rise of plea – bargaining:-

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 York 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.

Types of Bargaining:-

[Link] Bargaining:-

It is a bargain or promise between the prosecutor and defendant to deduct some of the charges
brought against the defendant in exchange for guilty acceptance. When an 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 a specific charge.

It happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only
some of the charges framed against him. Prosecution generally has vast discretion in framing charges and
therefore they have the option to charge the accused with highest charges that are applicable. Charge
bargain gives the accused an opportunity to negotiate with the prosecution and reduce the number of
charges that may be framed against him. Plea bargain in which a prosecutor agrees to drop charges on
some of the counts or reduce the charge to a less serious offence by the accused is commonly referred to
as charge bargain.
It may include:

a) The reduction of charge to a lesser or included offence;

b) The withdrawal or stay of other charges;

c) An agreement by the prosecutor not to proceed on a charge;

d) An agreement to reduce multiple charges to one all-inclusive charge;

For example, an accused with drunk driving and driving with license suspected, may be offered the
opportunity to plead guilty to just the drunk driving charge
[Link] Bargaining:-

It is a promise by the prosecutor, after acceptance of guilt, to recommend the court specific sentence
or bargained sentence or it can be done directly with the trial judge. For this purpose, the accused must be
informed about the sentence likely to be imposed in case he does not accept his guilt but if he does so
then the prosecutor demands for lesser sentence or favorable sentence instead of what he was demanding
earlier because of showing some sort of innocence regarding his guilt or for saving the court's time.

‘Sentence bargain’ occurs when an accused is told in advance what will be his reduced sentence if
he pleads guilty. Sentence bargain may allow the prosecutor to obtain a conviction to the most serious
charge, while assuring the accused of an acceptable sentence. Sentence bargain may include the
following: A recommendation by a prosecutor for a certain range of sentence or for specific sentence, or a
joint recommendation by a prosecutor and defence counsel for a range of sentence or for a specific
sentence, or an agreement by a prosecutor not to oppose a sentence recommendation by defence counsel,
or an agreement by a prosecutor not to seek additional/optional sanctions, such as prohibition and
forfeiture orders.

In most of the jurisdictions, sentence bargain generally can only be granted on being approved by the
trial judge. Many jurisdictions severely limit sentence [Link] happens when an accused or defendant is
told in advance what his sentence will be if he pleads guilty. A sentence bargain may allow a prosecutor
to obtain a conviction in the most serious charge, while assuring the defendant of an acceptable sentence.
Indian legislative mechanism favors sentence bargaining.

3. Fact Bargaining:-

The least used negotiation involves an admission to certain facts (“stipulating” to the truth and
existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in
return for an agreement not to introduce certain other facts into evidence.

In fact, bargaining involves an admission to certain facts in return for an agreement not to introduce
certain other [Link] the judge accepts the defendants guilty or no contest plea and enters a conviction,
that judge cannot later over turn the plea agreement. However, when the parties agree upon a negotiated
plea that requires that the defendant perform certain conditions, the Court retains jurisdiction until the
conditions are satisfied. If the defendant does not satisfy the condition, the judge can reject the plea and
resentence the defendant. The scheme of plea bargain is not a matter of choice rather it is a situation out
of compulsion. With the sharp increase in the institution of criminal cases almost all the criminal
jurisdictions over the world find it difficult to cope up with the arrears of cases. Disposition of cases
through the scheme of plea bargaining, no doubt may not be equivalent to a full-fledged fair trial but
docket explosion makes it imperative to go for plea bargaining.

The concept of plea bargaining has the following distinct features:-

a) Avoids Uncertainty of Trial - In most cases, the plea bargain is to avoid uncertainty of trial and the
risk of undesirable result to the other side. Obviously, the scheme provides both prosecution and defence,
with some control over the outcome of the cases. The accused is left to choose between certainty of
accepting sentence for a less serious charge or the uncertainty of trial in which he might be found not
guilty, but which also carries the risk of being found guilty of the original, more serious charges.
b) Expedition- As Criminal Courts become more and more crowded, there is an increased pressure to
resolve the cases as quickly as possible. Regular trials can take months, years or even decades. Resolution
of a case through plea bargain can be arranged in a couple of days, thus, reducing the time consumed in
resolution of a case. It affords total guarantee for expeditious disposal of a case.

Traditional Objective To Plea Bargaining And An Appraisal Of The Indian Scheme:-

The most common justification for plea bargaining is its utility in disposing of a large number of
cases in a prompt, efficient and simple [Link],while in the United States this remains a
justification and post hoc rationalisation for the legislative recognition of the antecedent practice of plea
bargainings in India it is also the raison d'etre for the introduction of the practice. Even then, the
conventional caseload explanation has come to be questioned in the United States. For example, Milton
Heumann, attacks the case-pressure explanation and suggests an alternative explanation based on
courtroom dynamics and workgroup interactions Also, while in the United States, a prime reason for
overburdened dockets was the nature of jury trials, the prime reason in India for delayed disposition of
criminal cases is structural, that is, the way the investigating agencies and courts functionY Whether or
not the introduction of plea bargaining will be successful in relieving the courts of some of their burden is
an open question. Thus, there is a need to look beyond the administrative rationale associated with ADR
practices and examine the objections raised against plea negotiations.

There are three, main arguments against plea bargaining that need to be considered. The first focuses
on procedural fairness for individual defendants: that any system of plea bargaining is improper because it
places a price on the exercise of important constitutional rights like the forfeiture of the concessions
available after a guilty plea. The second is that societal interest in rational and appropriately stringent
criminal sentences is compromised on the sole ground of
administrative expediency. The third concern is that the plea negotiation system, by its very nature, is
likely to produce unfair or distorted results. Each is considered in turn.

A. Punishment and Societal Interest

Proponents of the abolitionist view allege that plea bargaining. Seriously impairs the public interest
in effective punishment of crime and accurate separation of the guilty from the innocent. It weakens the
deterrent and incapacitative effect of law by allowing some accused to escape just desserts Albert
Alschuler, for example, has argued that considerations such as case pressure, efficiency, the probable
outcome of trial neither reflect the purpose of punishment nor the culpability of the [Link]
conclusion reached by abolitionists, in effect, is that the resulting sentences cannot be justified by any
rationale for penal sanction, be it deterrence, societal protection, rehabilitation or even retribution.

The counter-argument in support of plea bargaining runs that by obtaining guilty pleas, prosecutors
can pursue more cases and dispose of cases at a greater rate, potentially resulting in greater aggregate
deterrent or incapacitative effects with a finite amount of resources.30 Also perhaps, as has been
suggested by the United States Supreme Court, a shortening of the time between the charge and the
disposition enhances whatever may be the rehabilitative prospects of the guilty? Moreover, as was argued
by the Law Commission, treating an accused who feels remorse and wants to reform, or is honest enough
to plead guilty in the hope that the state will show some benevolence, at par with an accused being tried at
the cost of time and money of the society, may also not be just and fair.

Furthermore, while certain accused might appear to reduce their expected probability of
punishment, the safeguard built in the Cr.P.C. is that the accused in serious cases and offenders with
previous criminal histories cannot avail of concessional treatment by pleading guilty. Moreover, it cannot
be denied that a punishment meted out promptly is likely to better serve the societal purpose than that
meted out after a protracted and ungainly trial.

B. Unfairness of Result

The second major concern expressed is that the disposition of cases would be influenced by factors
extraneous to the correctional needs of the accused or requirements of law enforcement (such as court
workload) so that either of the following two consequences might occur: offender of a serious crime
escapes with undeserved leniency, or an innocent person is punished.

The problem with the argument that the system motivates factually innocent persons to plead guilty
is that it assumes that innocent persons are necessarily exonerated at trial. If most defendants did not face
a very real chance of conviction at trial, all incentive to apply to the court under section 265A would be
eliminated and with it this criticism against plea bargaining.

As regards the hazard of factually guilty accused persons eluding the just dessert, here one must ask
two questions. First, what is the likelihood of the accused getting convicted if no bargain had been made?
Secondly, is not the assumption that the accused is factually guilty contradictory to the basic principle of
presumption of innocence?

It has been suggested that the variation in sentence between accused who plead guilty and those who
are found guilty after trial signifies that one category is not receiving the appropriate quantum of
[Link] adequate response to this suggestion is that punishment is generally never believed to be
precise; the discount might be acceptable if it remains within the limits of punishments customarily
imposed for the particular type of crime. Moreover, the Indian scheme provides that the sentence discount
cannot exceed one-fourth of the maximum punishment [Link], by exempting socio-economic
offences and offences which carry punishment of more than seven years imprisonment, it ensures that the
nature of the plea does not outweigh the seriousness of the crime.

The Parliament has also attempted to build into the law a safeguard against inducement or threat.
This safeguard takes the form of active judicial participation in the process. The judge's role is to promote
fairness of the proceedings and to ensure that the plea is taken voluntarily and after informed
consideration,and also to determine the sentence finally. If there is no prima facie material spelling out
the offence the applicant is charged with, it is arguable that the judge can, at his discretion reject the
application of the accused on the ground that it indicates
prosecutorial coercion or pressure. The judge can also reject the application of a guilty person escaping
with unduly lenient punishment inasmuch as the court alone would decide the appropriate punishment in
the circumstances of the case, and as the aggrieved party will get a chance to be heard before the court
passes an order as to punishment. Judicial participation in plea negotiation will help minimise the danger
of sentencing irrationalities by ensuring that granting of concessions in return of a plea of guilty is limited
to legally relevant factors and not factors like wealth, sex, age, education, etc., and also that interests of
the society and desires of the victim are not absolutely ignored.

At this stage, it is also pertinent to draw attention to the plea bargaining model suggested by the
Law Commission Reports. Under the scheme envisaged by the Law Commission, the sole arbiter of an
application for pleading guilty in return of a concession was an independent, specially designated judicial
authority instead of the trial judge as under the present statutory scheme. This provision should have been
incorporated into the Cr.P.C., so as to prevent any perceived or actual violence to the accused's right to a
fair trial.

Even assuming that judicial involvement may not be a foolproof device, the solution then is not to
abolish plea bargaining but to ensure adequate safeguards, empowering the weaker party, and
incorporating reforms as and when the need arises.

C. Procedural Fairness and the Defendant

The severest of the critics attack the supposed coerciveness of the process. Plea bargaining is
characterised as a series of threats and promises by legal officials that induce defendants to forfeit many
of their constitutional rights and plead guilty On similar lines, it is also criticised as being antagonistic to
due process and making a mockery of the criminal process. It is argued that the dual sentencing structure
penalises defendants for exercising constitutionally guaranteed legal rights, and renders due process
concerns subordinate to procedural convenience. Critics are sometimes skeptical of the procedure because
of the alleged prosecutorial overreaching and overcharging it invites.

In this context, some scholars in support of negotiated pleas argue that statutory penalties are often
too harsh, and that tailoring punishment through charge or sentence adjustments makes the criminal
justice system more responsive to the exigencies of individual cases.

Concerns about the alleged coerciveness of the process the lack of any rules of evidence in plea
negotiation,overlook the fact, documented by published studies of plea bargaining in other jurisdictions,
that the primary determinant of a guilty plea is the assessment of the probable outcome of a trial* As was
explained earlier, any negotiation will necessarily happen "in the shadow of the trial" The simple point is
that criminal trials produce one "winner" and one "loser." As the uncertainty of this result swells, so does
the incentive for both sides to find some mutually satisfactory accommodation in which the benefits of
success at trial are discounted by the possibility of failure.

In a plea bargain, no side is an absolute loser or winner. The practice can accommodate the interests
of both [Link] is beneficial to the accused insofar as it helps him/her to avoid the cost, time, mental
anxiety and other practical burdens that a trial entails. Even if he/she is factually guilty and there is
sufficient evidence, the element of risk and uncertainty in a trial cannot be completely eliminated. In
many lesser offences, trial may actually be too costly and embarrassing an option in light of the lenient
sanctions that can be anticipated following conviction. The state, on the other hand, can save on judicial
and prosecutorial resources,and perhaps be effective in achieving the object of punishment by the
promptness in punishment. Prosecutors also benefit from plea bargaining as it enables them to secure high
conviction rates while avoiding the expense, uncertainty and opportunity costs of trials.
 Therefore, it is clear from the foregoing discussion that if not better, the newly-introduced system of
plea bargaining is no less rational or constitutional than the trial process. As long as a system of plea
bargaining that meets the following four basic criteria suggested by Thomas Church, none of the charges
discussed in this chapter leveled against plea bargaining are applicable:

(1) the defendant always has the alternative of a trial at which both verdict and sentence are determined
solely on the merits;

(2) the defendant is represented throughout negotiations by a competent counsel;

(3) both defence and prosecution have equal access to relevant evidence; and

(4) both sides possess sufficient resources to take a case to [Link] direction for reform then should be to
seek to achieve these conditions rather than to question the reality that plea bargaining now is.

PROVISIONS OF PLEA BARGAINING:-

The “Law Commission of India” in its 142nd (1991), 154th (1996) and 177th (2001) report and the
“Malimath Committee on Reforms of Criminal Justice System (2003)”, intimated and evoked the
incorporation of “Plea Bargaining”, abducting the examples of the concept’s success in the USA.

“ Plea Bargaining” was inserted in the “Indian criminal justice system” as a result of “Criminal law
reforms” introduced in 2005. “Section 4 of The Criminal Law (Amendment) Act, 2005” introduces
Chapter XXIA containing Section 265A - 265L into “The Criminal Procedure Code, 1973” which came
into force on [Link] following are the procedure and provision of plea bargaining available to the
accused under the Criminal Procedure Code, 1973:-

1. Section 265A4 of the Code provides that “Plea Bargaining” will be available to an accused/defendant
charged with an offence other than the offences which are punishable with “Capital Punishment or life
imprisonment or imprisonment for a term exceeding 7 years”. The Central Government has issued
Notification notifying the offences disturbing the “Socio Economic condition” of the state.

2. Section 265-B6 provides that a “Plea Bargaining” application carrying brief details about the case
along with an affidavit ensuring its voluntariness may be filed by the accused. In such “Plea Bargaining”
application the accused shall state that he has not been previously convicted by any court in any similar
offence.

In “Vijay Moses Das and another v. CBI”,“The second reported case was from Uttarakhand. Accused
proposed to plea bargaining and the ONGC (Victim) and CBI (Prosecution) had no objection to such
request, but the trial court rejected on the ground that the Affidavit under section 265B was not filed by
the accused and compensation was not fixed. Justice Prafulla Pant of Uttarakhand High Court, hearing the
Criminal Miscellaneous Application directed the trial court to accept the plea bargaining application.”

In “Rahul Kumpawat v. Union of India”, 2016 Raj. HC,8 Additional Chief Metropolitan Magistrate
(CBI Cases), Jodhpur, the learned trial Court has refused to accept application of the accused-petitioner
under Section 265-B for plea bargaining.P.K. LOHRA, J. held that, therefore, viewed from any angle,
impugned order merits annulment for securing ends of justice. In any eventuality, the High Court is not
expected to be a silent spectator, while exercising inherent powers.

Consequently, impugned order passed by the learned trial Court is quashed and set aside and the
matter is remanded back to the learned trial Court for considering plea bargaining of the petitioner afresh
strictly in accordance with law.

3. Section 265-C9 of the Code explains the practice to be adopted by the court in working out a “Mutually
Satisfactory Disposition - MSD”. In case “instituted on a police report”, the court shall issue notice to the
public prosecutor, investigating officer, victim and accused of the case to participate in the meeting to
work out a satisfactory disposition of the case. And in a “complaint case”, the Court will issue notice to
the accused and the victim.

4. Section 265D contains the provisions relating to the preparation of the report by the court regarding the
arrival of a “Mutually Satisfactory Disposition - MSD” or failure of the same. Where the “mutual
satisfactory disposition - MSD” of the case has been done in a meeting convened u/s 265-C of the Code,
the Court will make a report of such MSD which shall be executed by the presiding officer of the Court
and by all other persons who had participated in the meeting. However, if no such MSD has been worked
out in the meeting then the Court will record the failure of the meeting and proceed further from the initial
stage of filing of application for “Plea Bargaining” u/s 265B(1).

5. Section 265E contains the provisions relating to the procedure which is to be followed to dispose a
matter where a MSD between the parties of the case is worked out. In such situation the Court may acquit
the accused on “probation of good conduct or after admonition under Section 360 of the Code or may
release him under the Probation of Offenders Act, 1958”, and if the court does not go by the probation
relaxation provisions then the court proceed to hear the parties on the quantum of sentence and the court
shall dispose of the matter by sentencing the accused to ½ of the minimum punishment provided or may
sentence the accused ¼ of the maximum punishment provided or extendable.

In a recent case “Kasiff Shamshuddin @ Kasiff v. State of Karnataka”,12 “Petitioners who have
been convicted by the Magistrate in exercise of the power vested under Section 265-E of Cr.P.C. and u/s
241 of Cr.P.C. for the offences punishable under Sections 120-B, 420, 419, 465, 468, 472 and 511 and
Section 14(a) to (c) of Foreigners Act and Section 5 of Foreigners Registration Act and have been
imposed with sentence of imprisonment for the said offences are seeking for sentence so imposed to run
concurrently in these two cases instead of consecutively. The higher sentence of imprisonment issued in
each of these two cases is 21 months (1 year 9 months) and in both these cases, learned Magistrate has
ordered that punishment so imposed should run concurrently. Petitioners in both these cases had sought
for plea bargaining and had pleaded guilty. Accordingly, sentences came to be imposed in both the
cases.”

6. Section 265-F contains the provisions relating to the delivering of judgment in case of “Mutually
Satisfactory Disposition – MSD”.

7. Section 265G provides that the judgment delivered by the court under Chapter XXI-A of the Code is
final and in any situation no appeal shall lie against such judgment. However, such judgments may be
challenged in “High Courts under Articles 226 and 227 of the Constitution” by way of Writ Petition and
in Supreme Court under “Article 136 of the Constitution by way of Special Leave Petition”.
 In “Sudhamol P.V. v. Mariamma Varghese and another”, conviction entered against the accused and
the sentence imposed on her, without scrupulously following the procedure prescribed in the Code for
conducting plea bargaining, cannot be sustained. Judgment is liable to be set aside. The trial court is
directed to conduct the trial in accordance with law and dispose it of within 3 months.

8. Section 265-H Provides for the powers of the court to function under Chapter XXI-A. A court dealing
with a case relating to “Plea Bargaining” will have all such powers which it has relating to the trial of
offences and other matters relating to the disposal of a case in such Court under “The Code of Criminal
Procedure, 1973”.

9. Section 265-I contains the provisions relating to filing the application to the court under Section 428
for setting off the period of custody undergone by the accused.

10. Section 265-J saves this chapter from the effects of any inconsistent provision enshrined in any other
provisions of the Code and such other provisions shall not affect the meaning of any provision or term of
chapter XXI-A. This section is called the “Saving Clause” of this chapter.

11. Section 265-K states that in the application for “Plea Bargaining” the statements given by an accused
will never be used for any other purpose other than for disposing of the application of “Plea Bargaining”.

12. Section 265L provides that his chapter will never be applicable in the cases of any juvenile or child as
defined in “Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000”. Unless the
above mentioned modus operandi provided in “Chapter XXI-A” is followed the same cannot be a valid
and lawful disposal of a case of “plea bargaining”. And the participation of the victim is must in the
practice and procedure of arriving at such a settlement.
The salient features of plea-bargaining:-

A new Chapter (Chapter XXI A) on Plea Bargaining has been inserted in the Criminal Procedure
Code 1973. A notification to bring into effect the new provision has been issued and it has come into
effect from 5th July, 2006. Plea Bargaining was introduced through the Criminal Law (Amendment) Act,
2005 which was passed by Parliament in the winter session of 2005.

The salient features are as follows:-

1. It is applicable only in respect of those offences for which punishment of imprisonment is up to a

period of 7 years.

2. It does not apply where such offence affects the socio- economic condition of the country or has been
committed against a woman or a child below the age of 14 years.

[Link] application should be filed by the accused voluntarily.

4. An accused must file an application for Plea-bargaining in the court in which such offence is pending
for trial.

5. The accused and prosecution both are given time to work out a mutually satisfactory disposition of the
case, which may include giving compensation to the victim by the accused and other legal expenses
incurred during pendency of the case.

6. Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case by
sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for
such offence.

7. The statement or facts stated by an accused in an application for plea-bargaining shall not be used for
any other purpose other than for plea-bargaining.

8. The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie
in any court against such judgment.

9. Three essentials work at the time of filing an application of plea-bargaining.

10. Accused’s voluntariness to plead guilty.

11. The statements or facts stated by an accused in the application for plea-bargaining should not be used
for any other purpose except plea-bargaining.

12. It is a contractual agreement between the prosecution and the defendant regarding the disposition of
criminal charges. However, it is not enforceable until a judge approves it.

It generally occurs prior to the trial, but in some cases, it may occur anytime before a verdict is
rendered or not. It is a derogation from the concept that ‘a judge can only decide a sentence after hearing
in an open court’.
Development of Plea Bargaining in Modern India:-

Dispute blocks development, disturbs the peaceful conduct of human life and hence disputes
sustained without resolution develop into a conflict beyond control under normal [Link]
disputes are inevitable, there is an urgent need to find a quick and easy method of resolution. Due to the
impact of British judicial system in India, we are following an adversarial method of resolving disputes in
the Courts. Modern legal system strongly believes in pitting one party against another to derive truth, the
contradicting claims are tested against each other and a decision is imposed by a powerful third party that
generally is the [Link] is popularly known as the adversary system followed in most of the common
law countries.

In adversarial style, the disputants necessarily deny the claim or allegation of each other irrespective
of it being incontrovertible truth. Formality forces them to contradict each [Link] civil cases pleadings
differ in diametrically opposite directions making it very difficult to identify the real issues to be
adjudicated. In criminal cases charges are framed on the one hand and the accused provides arguments or
explanation to dispute in each and every contention. Except allotting time and supervising the conduct,
the Court has no major role in the trial. If both parties fail in their responsibilities the presiding officer has
very less role to play. Real reason for increasing the filing of criminal cases is not that Indians have
turned increasingly litigant. It is because people have become more conscious of their rights and
obligations.

People repose much higher faith in the judiciary, so they knock on their doors for justice. The
number of cases pending trial in the 12,378 district and subordinate courts in the Country is estimated to
be [Link] of the reasons attributed to the huge increase in the number of pending cases in higher
courts and subordinate courts is that the vacancies for judges were not filled in time.

Therefore, the biggest challenge before the Indian justice delivery system is that of delay in the
dispensation of justice. Heavy backlog of cases in the courts and inevitable delay in dispensing justice has
been to such an extent that it is shaking the public trust and confidence in the legal system. It is tending to
erode the quality of social justice and creating impediments in the socio- economic development of the
[Link] timeliness and responsive justice are totally neglected in the criminal justice system due to
overload of cases. In most of the cases trials do not commence for a period of 2 to 3 years after the
accused was remitted to judicial or police custody. Large number of persons accused of criminal offences
are unable to secure bail and they are in jail for years together. The time spent by the accused in the jails
before the commencement of trials exceeds the maximum punishment, which can be awarded to them
even if they are found guilty of an offence charged against them.

Constitutional Mandate for Speedy Justice The Supreme Court made it clear that “speedy trial” is
of essence to criminal justice and there can be doubt that delay in trial, by itself constitutes denial of
justice.

In Maneka Gandhi v. Union of India the Supreme Court observed that there can be no doubt
that speedy trial, and by speedy trial we mean a reasonably expeditious trial, is an integral and essential
part of fundamental right to life and liberty enshrined in Article 21 of the Constitution of India.
 In a significant judgement in Abdul Rehman Antulay v. R.S. Nayak the Supreme Court declined
to fix any time limit for trial of offences. The burden lies on the prosecution to justify and explain the
delay. The Court held that the right to speedy trial and speedy justice flowing from Article 21 is available
to accused at all stages namely the stage of investigation, inquiry, trial, appeal, revision and retrial. As
regards the time limit the Court said that it has to be decided by balancing the attendant circumstances
and relevant factures, including nature of offence, number of accused and witnesses, the workload of the
court etc. No time limit can be fixed for speedy trial.

In Moses Wilson v. Kasturba the Supreme Court expressed concern in delay in disposal of cases
and directed the concerned authorities to do needful in the matter urgently before the situation goes totally
out of control. In the present case, a suit was filed in 1947 for a sum of Rs.7000/- and continued for 60
years and had not been disposed of until 2008. Thus the Court expressed deep concern at the delay in
disposing of cases in our courts. Because of the delay in disposal of cases, people in this Country are fast
losing faith in the judiciary. Delay in speedy justice violates the right to life. The Preamble of the
Constitution enjoins the State to secure social, economic and political justice to all its citizens, making the
Constitutional mandate for speedy justice inescapable.

The Directive Principle of State Policy under Article 38 (1) directs the State to strive for reducing
inequalities amongst groups of people in different areas. The State shall secure that the operation of the
legal system promotes justice on the basis of equal opportunities and shall, in particular, to provide legal
aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice
are not denied to any citizen by reason of economic or other [Link] of the most neglected aspects
of criminal justice system is the delay caused in the disposal of the criminal cases and detention of the
poor accused pending trial.

The criminal justice system in India is facing a very serious crisis today. It is a matter of common
experience that in many cases where the persons are accused of minor offences punishable not more than
three years or even less-with or without fine, the proceedings are pending for years together. If they are
poor and helpless they languish in jails for long periods either because there is no one to bail them out or
because there is no one to think of them.

The very pendency of criminal proceedings for long periods by itself operates as an engine of
oppression. Quite often the private complainants institute these proceedings out of oblique motives. Even
in case of offences punishable for seven years or less with or without fine the prosecution are kept
pending for years and years together in criminal [Link] is a crying shame upon our adjudicatory system
which keeps men in jail for years on and without a trial. In all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial. Everyone arrested or detained shall be entitled to trial within
reasonable time or to release pending trial. Even though in our Constitution speedy trial is not specifically
enumerated as a fundamental right, it is implicit in Article 21 of the Constitution.

In Maneka Gandhi v. Union of India it was held that Article 21 confers a fundamental right on
every person not to be deprived of his life or liberty except in accordance with the procedure prescribed
by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such
deprivation would violate his fundamental right under Article 21 and he would be entitled to enforce such
fundamental right and secure his release.
 In Hussainara Khatoon (IV) v. State of Bihar the Supreme Court observed “The State cannot
avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or
administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is
necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court,
as the guardian of the fundamental rights of the people, to enforce the fundamental right of the accused of
speedy trial by issuing necessary directions to the State which may include taking positive action, such as
augmenting and strengthening the investigative machinery, setting up new courts, building new courts,
providing more staff and equipment to the courts, appointment of additional judges and other measures
calculated to ensure speedy trial.

Despite the judicial interpretation of the Apex Court, the situation has not been changed. Legal
rights even today remain non-existent for a large percentage of the illiterate, ignorant and poor population
of our country. The Courts in these cases did not simply affirm the blueprint of legal norms, but have tried
to assess the reality prevailing in society and administration at different stages, namely, the prison stage,
the bail stage and other law enforcement levels, revealing the sad state of affairs prevailing in the society
and depicting the vast gap existing between law in words and law in action. According to the figures
compiled by the Supreme Court, a total of 2,46,00,000 criminal cases were pending in subordinate courts
as on 11th October 2014. It is estimated that in some of the subordinate court over 30 to 40 per cent
arrears relate to petty cases and out of the total pending cases, 40percent of the cases were pending for 5
years and [Link] overflowing dockets of the Courts all over the country should not however be taken
as a sign of failure of the system but a sign of faith in the administration of justice by those who are
involved in litigation.

In Moti Ram v. State of Madhya Pradesh Krishna iyer, J. Observed:

“The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to
psychological and physical deprivation of jail life,usually under more onerous conditions than are
imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from
contributing to the preparation of his defence. Equally important, the burden of his detention frequently
falls heavily on the innocent members of his family.”

Long delay has also the effect of defeating justice in quite a number of cases as a result of such
delay, the possibility cannot be held out of loss of important evidence, because of fading of memory or
death of a witness. The consequence thus would be that a party with even a strong case may lose it not
because of any fault of its own, but because of the tardy judicial process entailing disillusionment to all
those who at one time, set high hopes in courts. The delay in the disposal of cases has affected not only
the ordinary type of cases but also those which by their very nature, call for early relief. The problem of
delay and huge arrears stares us all and unless we can do something about it, the whole system would get
crushed under its weight. We must guard against the system getting discredited and people losing faith in
it and taking recourse to extra legal remedies with the sinister potentialities.
Position under US law and Indian Law:-

This concept has not emerged recently but existed even in the 19th century. In the United States,
plea-bargaining is a significant part of the criminal justice system, Majority of criminal cases are settled
by plea-bargaining rather than by a trial by jury. But it is subject to the approval of the court. The rules
pertaining to Plea-bargaining in all states of the US are different. More than 90% of the cases are settled
through Plea-bargaining in the US. It has become a prominent feature of American Judiciary that the
disposing rate of cases is very rapid therefore, the backlog is under control. Prosecutor initiates the plea-
bargaining proceedings. One of the main arguments advanced in the favour of plea-bargaining is that it
helps in speedy disposal of accumulated cases and will expedite delivery of criminal justice.

In India, the position is very different from the US. As it came in the amendment Act of 2005 in
Code of Criminal Procedure, there are not many cases regarding it but even so, the position under Indian
Judiciary is very clear. There were huge debates on this point before it was inserted in the Cr.P.C. till
2005, it was not accepted by the Indian Judiciary. Every time it was opposed by the court of law by
saying that it is not recognized under Indian law and other reasons. The concept is not widely recognized
as it came recently and because there are cases in which it was not applied properly. The initiation of
plea-bargaining has to be by the accused which is different from US Law.

Our law provides for a number of negotiations between the accused and the prosecutor or with the
court itself which is a cardinal difference from the US. Unlike in the US, where plea-bargaining is for all
sorts of offences but in India, it is not for socio economic offences or the offences against women and
children. Court has to take great care at the time of application of plea-bargaining, therefore, there is no
recent case in which plea-bargaining has been accepted. Speedy trial is the essence of criminal justice and
there can be no doubt, if there is delay in trial by itself, constitutes denial of justice.

Law Commission of India in its 142nd and 154th report suggested the concept of Plea-bargaining in
India. They observed that this tool will be an alternative to be explored to deal with huge arrears of
criminal cases. The Malimath Committee was also substantially in agreement with the views and
recommendation of the Law Commission. According to them it will help in procuring speedy trials with
benefits such as end of uncertainty, saving of cost of litigation, avoiding prolonged trial and legal expense
of the parties. They recommended where the offences are not of a serious character and the effect is
mainly on the victim and not on the society, it is desirable to encourage settlement without trial.

Section 265-A to 265-L provides for the plea-bargaining under Code of Criminal Procedure. It is a
device which ensures that victims receive acceptable justice in reasonable time without risking the
prospects of hostile witness, inordinate delay and non- affordable costs. This principle is not applicable
for hard crimes or serious crimes, therefore, Indian Law does not provides plea-bargaining for the
offences in which

(a) offence in punishable with death or imprisonment for life;

(b) punishable with imprisonment for a term exceeding 7 years;

(c) committed against socio economic conditions of the country;

(d) offence committed against women and children below the age of 14 years.

The judgment of plea-bargaining cases are final and no appeal lies on such judgment. However, a
writ petition to the State High Court under Articles 226 and 227 of the Constitution or a Special leave
petition to the Supreme Court under Article 136 of the Constitution can be filed by the accused. This acts
as a check on illegal and unethical Bargains.

The provisions also authorize the court to give accused the benefit of Probation of Offenders Act
wherever it is possible. Section 12 of the Probation of Offenders Act, 1958 provides that a person found
guilty of an offence and dealt with under section 3 or 4 of the said Act, shall not suffer any
disqualification attached to the conviction. Thus, the Government employees who are released on
probation under the Probation of offenders Act are saved from the disqualification attached to this. There
is one case decided on this point (Sh. Charan Singh vs. M.C.D. (Writ Petition (Civil) No. 18725/2005)
decided on 05/10/2006).

The litigant should be encouraged to avail the remedy of plea-bargaining to settle the pending cases.
For the successful implementation of plea-bargaining, its application should be necessarily
understandable. With the changing world scenario where all the countries are shifting to ADR mechanism
from the traditional litigation process which is very lengthy and time consuming, the plea-bargaining may
be one of the best recourse as an ADR mechanism to meet the challenges of disposal of pending cases.

There are other reasons for the backlog of cases. Even if everything is in order there are simply not
enough mechanisms available to try a person. For example, in India, there are not enough courts to deal
with the number of cases pending. There are also shortages of public prosecutors due to a backlog in
appointments.

Comparison of Indian Law with American Law:-

Plea bargaining in the Indian criminal procedure is different in its purpose and detail. Desire to
reduce the pendency of criminal cases prompted the Indian law makers to give plea bargaining a try.
Compensation to victims of crime by the accused is the extraordinary feature of plea bargaining in India.
It is expected that 50 thousands out of 28.3 millions criminal cases pending trial would be disposed of
through the process of plea bargaining. Unlike in American system, plea bargaining cannot be resorted to
settle all types of crimes in India. Only sentence bargaining is allowed as per the provisions of plea
bargaining in the Indian Code of Criminal Procedure.

The complainant plays an important role in the concept of plea bargaining in Indian system because
it is he who, on the request of the accused to the court, is given time by the court to work out a mutually
satisfactory disposition of the case. Since it is sentence bargain only, the prosecution agency has a limited
role to play and all the modalities of the bargain are to be work out mutually by the complainant and the
accused person. In contrast, in America, the prosecutor plays an active role during a charge bargain. The
plea bargaining in Indian laws symbolizes part bargain and part compounding with the permission of the
court.

Plea bargaining is different from compounding of offence. The distinction between compounding of
offence and plea bargaining of offence is that conviction is exempted in the former situation, whereas,
lesser punishment is awarded in the latter situation. Compounding is stigma free whereas plea bargaining
attaches the stigma of a convict to the applicant.

In India, Response of Judiciary:-

After the US has experimented, reformed and practiced the process of plea bargaining in 19th
Century India, a century after, now discussing the implementation of the provisions which brought plea
bargaining in very limited cases in a limited manner.

It is termed as immoral compromise in criminal cases, or trading out in India. The moral question
dominates the criticism of plea bargaining concept. Apart from academia the apex court also was not in
favour of this practice in the circumstances prevailing in India. While the Law Commission of India was
continuously researching and recommending introduction of plea bargaining, the Supreme Court of India
was questioning its moral base and apprehending its consequences because of dishonest circumstances
prevailing around. The Supreme Court criticized it in its judgment namely, Murlidhar Meghraj Loya v.
State of Maharashtra,as follows:
“......call plea bargaining‘,’plea negotiation‘, trading out‘ and compromise in criminal cases‘ and
the trial magistrate drowned by a docket burden nods assent to the sub rosa anteroom
settlement. The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy
of a prison cell, trades out‘ of the situation, the bargain being a plea of guilt, coupled with a promise of
no jail‘. These advance arrangements please everyone except the distant victim, the silent society…”

The Supreme Court in Kachhia Patel ShantilalKoderlal v. State of Gujarat strongly disapproved of
the practice of plea bargain again. It observed that practice of plea bargaining is unconstitutional, illegal
and would tend to encourage corruption, collusion and pollute the pure fount of justice.

In yet another case Kripal Singh v. State of Haryana observed that neither the Trial court nor the
High Court has jurisdiction to bypass the minimum sentence prescribed by Law on the
premise that a plea bargain was adopted by the accused.

In Kasambhai v. State of Gujarat, expressed an apprehension of likely misuse. In State of Uttar

Pradesh v. Chandrika, the Supreme Court held that it is settled law that on the basis of Plea Bargaining
court cannot dispose of the criminal cases. Going by the basic principles of
Administration of justice merits alone should be considered for conviction and sentencing, even when the
accused confesses to guilt, it is the constitutional obligation of the court to award appropriate sentences.
Court held in this case that mere acceptance or admission of the guild

Shift in judicial thinking:-

But it was the Gujarat High Court that recognized the utility of this method in State of Gujarat v.
Natwar Harchandji Thakor 19 , as an alternative measure of redressal to deal with huge arrears in criminal
cases. The court reasoned the change as follows: ―the very object of law is to provide easy, cheap and
expeditious justice by resolution of disputes, including the trial of criminal cases and considering the
present realistic profile of the pendency and delay in disposal in the administration of law and justice,
fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really
a measure and redressal and it shall add a new dimension in the realm of judicial reforms.”
 The seed of the process of plea bargaining is found in Section 206(1) and 206(3) of the Code of
Criminal Procedure and Section 208 (1) of the Motor Vehicles Act, 1988. Under these provisions the
accused can plead guilty of petty offences or less grave offences and settle with
penalties for small offences to close the cases.

“Plea of guilty” and "plea bargaining":-

Ahmedabad High Court brought out a distinction between “plea of guilty‘ and “plea bargaining”.
The Court said:
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 the 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 a 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.”

It is interesting to note that Subsection (2) of Section 240 provides that the charge shall then be read
and explained to the accused and he shall be asked as to whether he pleads guilty of the offence charged
or claims to be tried. Section 241 provides that if the accused pleads guilty Magistrates shall record the
plea and may in his discretion convict him thereon. Now, it is not obligatory on the part of the Magistrate
to convict him even if the accused pleads guilty, he may proceed with the trial.

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".

The Criminal Law (amendment) Act,2005

A formal proposal for incorporating plea-bargaining into the Indian criminal justice system was put
forth in 2003 through the Criminal Law (Amendment) Bill, 2003 (hereinafter referred to as the Bill).
However, those provisions failed to come through and were reintroduced with slight changes through the
Criminal Law (Amendment) Bill, 2005, which was passed by the Rajya Sabha on 13-12-2005 and by the
Lok Sabha on 22.12.2005. The provisions were thus finally incorporated into the Code of Criminal
Procedure, 1973 as Chapter XXI-A through the Criminal Law (Amendment) Act, 2005, notified in the
Official Gazette of India as Act 2 of 2006 (hereinafter referred to as the Act).
 Recognizing that there are significant differences in criminal procedure as well as in the role and
status of various agencies, the Act does not give recognition to any existing practice akin to plea-
bargaining. Instead, it enables an accused to file an application for plea-bargaining in the court where the
trial is pending. The court, on receiving the application, must examine the accused in camera to ascertain
whether the application has been filed voluntarily. The court must then issue notice to the Public
Prosecutor or the complainant to work out a mutually satisfactory disposition of the case. The negotiation
of such a mutually acceptable settlement is left to the free will of the prosecution (including the victim)
and the accused. If a settlement is reached, the court can award compensation based on it to the victim
and then hear the parties on the issue of punishment. The court may release the accused on probation if
the law allows for it; if a minimum sentence is provided for the offence committed, the accused may be
sentenced to half of such minimum punishment; if the offence committed does not fall within the scope of
the above, then the accused may be sentenced to one-fourth of the punishment provided or extendable for
such offence.

The accused may also avail of the benefit under Section 428 of the Code of Criminal Procedure,
1973 which allows setting off the period of detention undergone by the accused against the sentence of
imprisonment in plea-bargained settlements. The court must deliver the judgment in open court according
to the terms of the mutually agreed disposition and the formula prescribed for sentencing including victim
compensation. It may be noted that this judgment is final and no appeal lies apart from a writ petition to
the State High Court under Articles 226 and 227 of the Constitution or a special leave petition to the
Supreme Court under Article 136 of the Constitution.

The positive aspect of the Act is that the offences in which a mutually satisfactory agreement can be
reached are limited. Secondly, the judge is not completely excluded from the process and exerts
supervisory control. Therefore at least theoretically, administrative control of the process of granting
concessions to those who plead guilty is ensured. Thirdly, the Act ensures that such an opportunity will
not be available to habitual offenders. Fourthly, the fact that the Act does not provide for an ordinary
appeal from the judgment in such a case is a step towards expediting the disposal of cases.

At the same time, a process for reviewing illegal or unethical bargains does exist though it may be
noted that Article 136 of the Constitution does not confer a right of appeal on a party as such but confers a
wide discretionary power on the Supreme Court to grant special leave. Also, though the remedy under
Articles 226 and 227 of the Constitution can be made use of, it is unclear whether the victim of the
offence can utilize this remedy.
Research of the Law Commission:-

The Law Commission of India advocated the introduction of ‘Plea Bargaining‘ in the 142nd, 154th and
177th reports. The 142nd Report set out in extenso the rationale and its successful functioning in the USA
and manner in which it should be given a statutory shape. This Report recommended that the said concept
be made applicable as an experimental measure to offences which are punishable with imprisonment of
less than seven years and/or fine including the offences covered by section 320 of the Code. It was also
recommended that plea bargaining
can also be in respect of nature and gravity of the offences and the quantum of punishment. It was
observed that the said facility should not be available to habitual offenders and to those who are accused
of socio-economic offences of a grave nature and those accused of offences against women and children.
The 154th report recommended dealing with huge arrears of criminal cases. This recommendation of the
154th Law Commission Report was supported and reiterated by the Law Commission in its 177th Report.
 The Report of the Committee on the reform of criminal justice system, 2000 under the Chairmanship
of Justice (Dr) Malimath stated that the experience of United States was an evidence of plea bargaining
being a means for the disposal of accumulated cases and expediting the delivery of criminal [Link] its
report, the Malimath Committee recommended that a system of plea-bargaining be introduced into the
criminal justice system of India to facilitate the earlier resolution of criminal cases and reduce the burden
on the courts

Recommendation by Law commission:-

The subject of the 142nd Report of the Law Commission of India and the subsequent conclusions
and recommendations were motivated by the abnormal delays in the disposal of criminal trials and
appeals. In this context the system of plea-bargaining in the United States drew attention to itself and the
Law Commission outlined a scheme of plea-bargaining for India. The Commission noted that because no
improvement had been made in the situation and there was little scope for streamlining the system, the
problem was a grave one and clamored for urgent attention.

Based on an analysis of plea bargaining as it exists in the United States, the report stated that the
practice was not inconsistent either with the Constitution or the fairness principle and was, on the whole,
worthy of emulation with appropriate safeguards. The Commission conducted a survey to ascertain
whether the legal community was in support of plea-bargaining and also to gather opinions on the
applicability of the practice if the earlier response was in the affirmative. Of those surveyed, a high
percentage was in favour of the introduction of the scheme; additionally, most were in favour of
introducing the concept only to specified offences. The report concluded that an improved version of the
scheme suitable to the law and legal ethos of India should be considered with seriousness and with a
sense of urgency.

The report also attempted to address some reservations that were expressed as regards the introduction of
plea-bargaining:
The scheme would not be successful in India due to illiteracy, which is comparatively much higher
than in the United States and thus people would not adequately understand the consequences of pleading
guilty. The Commission was of the opinion that because the contention fails to distinguish between
literacy and common sense, it does not hold ground. Further, the proposed scheme accounts for this
objection by providing for judicial officers to be plea judges, who would explain to the accused persons,
the consequences of pleading guilty under the scheme.
Prosecution pressures may cause innocent people to yield and forego their right to trial. The
Commission opined that such concerns could be dispelled if the judicial officer explained the implications
of the scheme and was satisfied that the application was made by the accused of his own volition and not
as a result of coercion or duress.

In the existing situation where the acquittal rate is as high as 90% to 95%, it is the poor who will be
the victims of the concept and come forward to make confessions and suffer the consequent conviction.
The Commission stated that the argument that the scheme may not succeed was merely a matter of
opinion and was not a good enough reason to oppose the scheme. Also, in the trade-off between
languishing in jail as an under trial prisoner and suffering imprisonment for a lesser or similar period, the
latter would be the rational choice as long periods in jail brought about economic and social ruin.
 The incidence of crime might increase due to criminals being let-off easily. The Commission
regarded this concern as unfounded as the authority considering the acceptance or otherwise of the
request for concessional treatment would weigh all pros and cons and look into the nature of the offence
and exercise its discretion in granting or rejecting the request.

Criminals may escape with impunity and escape due punishment. The Commission stated that the
scheme provides for concessional treatment and not for any punishment and the stigma of conviction
would persist.

As additional justifications, the Commission stated that considerable resources would be saved and
that the rehabilitation process of the offender would be initiated early. The Commission concluded that
the scheme for concessional treatment in respect of those offenders, who on their own volition invoked
the scheme, which incorporated appropriate safeguards, might prove beneficial.

The Commission envisaged that in due time, the scheme would encompass all offences, but
proposed that initially the scheme should be extended only to offences that provide for imprisonment for
a period of less than seven years. The extension of the scheme would then be considered after a scrutiny
of the results and in the light of public opinion. The Commission also suggested further subdivision for a
more effective and phased application.
In its 154th Report, the Law Commission reiterated the need for remedial legislative measures to
reduce the delays in the disposal of criminal trials and appeals and also to alleviate the suffering of under
trial prisoners. The 177th Report of the Law Commission, 2001 also sought to incorporate the concept of
plea-bargaining. The Report of the Committee on Reforms of the Criminal Justice System, 2003 stated
that the experience of the United States was an evidence of plea-bargaining being a means for the disposal
of accumulated cases and expediting the delivery of criminal justice; the Committee thus affirmed the
recommendations of the Law Commission of India in its 142nd Reports and 154.

The 154th Report of the Law Commission points out that an order accepting the plea passed by the
competent authority on such a plea shall be final and no appeal shall lie against the same.
As regards the procedure to be followed in cases where a minimum sentence is provided for the
offence, the competent authority may, after following the aforementioned procedure, accept the plea of
guilty and record an order of conviction and impose a sentence to the tune of half of the minimum term of
jail provided by the statute for the offence concerned. A statutory provision empowering the competent
authority would have to be made so that the provision prescribing the minimum sentence is not violated.
The competent authority shall have the power to record a conviction for an offence of lesser gravity
than that for which the offender has been charged in the charge-sheet or if the facts and materials
constitute an offence of lesser gravity.

The Law Commission was of the opinion that bargaining with the prosecutor which provides the
offender with an attraction to avail of the scheme is hazardous in the Indian context, and that a just, fair,
proper and acceptable scheme would be that the competent authority can impose such punishment as may
seem appropriate as regards the facts and circumstances of the case subject to a limit of one-half of the
maximum term provided by the statute for the offence concerned.

The scheme also bars habitual offenders, that is, persons convicted for an offence under the same
provision from invoking the scheme. There is, therefore, no merit in the apprehension that those who
secure concessional treatment may indulge in the same activity again in the hope of being let off lightly
once more. Persons charged with offences against women and children are also excluded from the
purview of the scheme.

The scheme allows for no negotiation between the accused and the State or the prosecutor or with
the court itself, which is a fundamental difference the scheme maintains from the practice, as it exists in
the United States. The scheme does not mention any provision or procedure for withdrawal of pleas.
These include subsequent withdrawal of the nature of stating that the plea was not taken voluntarily. The
scheme however maintains a difference between the courts examining the case on merits and a totally
separate institution i.e. the competent authority for the purposes of the plea bargaining proceedings. It is
important to note that this separation ensures that the right to fair trial is not eroded.

Since the competent authority is an autonomous body to decide the fate of the accused over the
application made by him voluntarily and knowingly which has the effect of eliminating the possibility of
the prosecuting agency obtaining the plea through fraud, misrepresentation or coercion.

As regards determination of the quantum of substantive punishment, it needs to be noted that in the
American system, an offender would approach the court in a situation where the prosecution is agreeable
to a concessional treatment as well as the extent of the same. Thus, in the United States, the offender is
assured as to the extent of the concession that is likely to be secured in the event of the court agreeing to
the bargain. In India, the offender would be facing an unknown hazard, and may prompt him to avoid
availing of the scheme.

However, this is qualified to the extent that the competent authority, upon acceptance of the plea of
guilty, is more or less limited in terms of the sentence that can be awarded and the accused can be assured
as to a substantial level of leniency on most occasions. Such a situation creates an undue level of pressure
on the accused to plead guilty so as to avail of the scheme. The trade-off for an innocent accused with a
strong case against him amounts to a choice between:

[Link] expected difference between sentence at trial and sentence subsequent to availing of the scheme
which would become an increasingly safe prediction in time; and

#[Link] risk of continuing with the trial and maintaining his innocence.

This situation will result in the innocent pleading guilty unless the equilibrium situation is corrected
by reducing the difference between sentences at trial and sentences awarded by the competent authority.
The unpredictability of the trial is also a factor that should also be taken into account. The innocent will
plead guilty due to the feeling of hopelessness at attempting to rebut the evidence of the police, the
severity of the sentence anticipated, and the weariness of the case dragging on and the attractiveness of
the existent scheme.
It should be noted that no programme of rehabilitation can be effective on a prisoner who is
convinced in his own mind that he is in prison because he is the victim of a mindless, undirected, and
corrupt system of justice and in this manner the very basis of a criminal justice system will be
undermined.

Understandably, the entire scheme owes its existence to the severe pressure on the resources of the
court. However, the scheme fails to make the distinction between efficiency at the level of inception and
the same being the motivation for guilty pleas from the accused. The motivation for leniency is
acknowledgement of error and a desire to reform, not the conservation of resources. The failure to take
into account this basic distinction is a fallacy that needs to be addressed.
Also, the accused will inevitably assume some level of leniency in an implicit manner. In a natural
state that is, in the absence of plea bargaining, 50% to 75% of accused plead guilty. Increase in case
pressure may affect plea-bargaining but it would be fallacious to assume that plea-bargaining is caused by
caseload. This is, however, the reason for introducing the scheme under the 142nd Report of the Law
Commission. In fact, prosecutors are the main propagators of plea-bargaining. It is contended that plea-
bargaining went hand-in-hand with the imposition of mandatory sentencing, which implies that
prosecutors will plea-bargain when judicial discretion is bound.

Thus, it may be inferred that even the scheme proposed by the Law Commission of India may not
be advantageous. At this juncture, it may be helpful to examine compounding of offences under Section
320 of the Code of Criminal Procedure, 1973. The issue is whether expanding the list of compoundable
offences will be an effective solution for the problem of overcrowded courts and whether this can then
serve as an alternative to the introduction of plea-bargaining. Since a crime is essentially a wrong against
society, a compromise between the accused and the victim does not ideally serve to absolve the accused
from criminal responsibility. However, offences, which are essentially of a private nature, are recognized
as compoundable offences while some others are compoundable with the permission of the court.
Compounding of offences has the effect of an acquittal and there is no admission of guilt envisaged in the
process.

The extension of the list of compoundable offences seems to be inconsistent with the logic
underlying the same, which is that the offence is essentially a private one. Also, the compounding of
offences has the effect of an acquittal, which certainly cannot be maintained for serious offences. The
scope for consideration being involved in the transaction is prima facie against public policy especially
for more serious offences and the same would operate to the detriment of the financially weaker classes.
The compounding of offences does not require the admission of guilt, which is an essential requirement
of commencing the rehabilitation and reformation of the accused. It is on this basis that the argument for
extending compoundable offences so as to allow courts to function expeditiously is misplaced, as the
scope of any such expansion will be severely restricted due to the aforementioned reasons.

From 2006 Plea Bargaining is Permitted Procedure of Criminal Justice in India :-

Recommendations of Law Commission and Malimath Committee were accepted by legislature and
by Criminal Law (Amendment) Act 2005 provisions relating to plea bargaining were included in
Criminal Procedure Code by adding one new Chapter XXI-A in which Sections 265 A to 265 L deal with
this aspect of criminal justice administration. Section 265-A CrPC clearly specifies that plea bargaining
shall not be applicable in case of offences affecting socio-economic conditions of the country. The
Central Government by issuance of notification on 11th July 2006 declared offences punishable under
nineteen Acts as offences affecting socio-economic conditions of the country and in case of such offences
plea bargaining is not applicable. Such aforesaid Acts are Dowry Prohibition Act 1961, The Commission
of Sati Act 1987, Indecent Representation of Women (Prohibition) Act 1986, Immoral Traffic
(Prevention) Act 1956, Protection of Women from Domestic Violence Act 2005, SC-ST (Prevention of
Atrocities) Act 1989, Cinematograph Act 1952 etc.
Protection of the socio-economic condition of a country is a necessary responsibility imposed on
the state, it can never be jeopardised by an act committed by any person. Nowadays many offences are
committed which challenge the well-being of society which can never be permitted and in such case no
lenient reaction can be permitted, therefore explicitly it is provided in Section 265- A CrPC for non-
applicability of plea bargaining in case of socio-economic offences to be specifically notified in this
regard. The list of Acts forming this category is inclusive and from time to time other Acts may be added
in this category. Furthermore, Section 265-A CrPC declares for non-applicability of plea bargaining in
respect of offences against women.
In the list of Acts notified by the Central Government as penalizing offences affecting socio-
economic conditions of the country many Acts deal solely with offences against women. In addition to
that general provision is given declaring inapplicability of plea bargaining in reference to any offence
against women. Security and protection of women are considered prime responsibility of society, thereby,
stern punishments are prescribed for offences against women because of that deterrence may be created
and potential criminals shall not dare to commit crime against women. In recent years crimes against
women are posing a serious challenge before society at large due to commission of such offences in a
brutal manner and further nature and rate of such crime commission is becoming more and more serious
and alarming.
Thereby, in case of offences against women, it is explicitly declared for inapplicability of plea
bargaining for such offences. Furthermore, Section 265-A CrPC declares that plea bargaining is not
applicable for commission of offences against children below the age of fourteen years. Children are the
future of society and need to be protected. They are in a constructive phase, thereby, wrongful acts may
badly affect their socialisation, personality building and ultimately the whole perception about society;
children are always needed to be protected.
In this regard never lenient punishment can be inflicted on an offender endangering the well-being of
children; such offender cannot be given any benefit of plea bargaining. Section 265-L of CrPC protects
children one another very important aspect. For reformation and rehabilitation of children a very
enlightened enactment has been made. When any offence is committed by a child, he cannot be deprived
from reformative and rehabilitative procedures provided in the Juvenile Justice (Care and Protection of
Children) Act in the name of plea bargaining. But confusion arises after amendment in Juvenile Justice
(Care and Protection of Children) Act 2000 in 2015 and a new Act was passed Juvenile Justice (Care and
Protection of Children) Act 2015 by which some children for commission of some offences are treated as
adult criminals and penalised, and in such case whether provisions relating to plea bargaining will be
applicable for such children or not. Such children are not reformed by reformative and rehabilitative
measures given in Juvenile Act but tried and punished like adults, therefore they should not be deprived
of benefit of plea bargaining in the same manner as it is available to adult criminals. Section 265-L of
CrPC provides:

“Nothing in this Chapter shall apply to any Juvenile or Child as defined in sub-clause (k) of Section 2
of the Juvenile Justice (Care and Protection of Children) Act 2000 (56 of 2000).”

Plea bargaining is not permitted for habitual criminals. Habitual criminals by repeated commission
of crime particularly the same or similar kind of crime clearly shows that that accused has developed
criminal mentality and maturity in criminal culture, such a person is a hardened criminal, difficult to be
reformed and always he may pose a problem for society at large by his repeated crime commission. With
such hardened criminal measure is provided in criminal law that he may be liable for more stern
punishment in comparison to first offender. Recidivist persons cannot be subjected to reformative action
for which he is never amenable and lenient punishment which may be indicative to him as the criminal
justice is favourable for crime commission. In the case of habitual criminals, the need is always felt to
give the stern message that whenever he will manifest his criminal mentality in the form of crime
commission he shall be subjected to severe punishment.
Plea bargaining can never be a suitable measure for dealing with habitual criminals. Section 265-B
(4) (b) CrPC explicitly provides that when court finds that the accused offering for plea bargaining has
previously been convicted by court for the same offence for which now he is charged then plea bargaining
shall not be permitted and he shall be tried in the case. Serious crimes create grave impact over the
society at large, usually such crimes create fear of victimisation in members of society.
Generally, for effective tackling of serious crimes criminal law prescribes stern, severe and longer
extent of punishment. The Malimath Committee recommended that for serious crimes plea bargaining has
not to be permitted. In case of serious crime, the need is felt to create deterrence in criminal elements to
prevent commission of such crimes. Lenient reaction to serious crime and criminals committing such
crime cannot be an effective measure to deal with crime and criminality in the society. Thereby, Section
265 A CrPC clears that plea bargaining is not permitted in case of serious crimes. Section 265 A permits
plea bargaining only for offences which are not punishable by death penalty, life imprisonment or
imprisonment exceeding seven years. The provisions contained in Section 265-A CrPC clearly specify
that for serious crimes plea bargaining cannot be permitted; it is permitted only for offences punishable
with fine or imprisonment for a term extending up to seven years or both.
Section 265- A (1) CrPC provides:
“This Chapter shall apply in respect of an accused against whom- (a) the report has been
forwarded by the officer in charge of the police station under Section 173 alleging therein that an offence
appears to have been committed by him other than an offence for which the punishment of death or of
imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the
law for the time being in force; or (b) a Magistrate has taken cognisance of an offence on complaint,
other than an offence for which the punishment of death or of imprisonment for life or of imprisonment
for a term exceeding seven years, has been provided under the law for the time being in force, and after
examining complainant and witnesses under Section 200, issued the process under Section 204, but does
not apply where such offence affects the socio-economic condition of the country or has been committed
against a woman, or a child below the age of fourteen years.”

Hereby, plea bargaining is not permissible in cases when:

1. Age of the offender is below 18 years of age.

2. Accused is a previous convict for the same kind of offence for which person is accused and has
applied for plea bargaining.

3. Offence for which person is accused affects socio-economic conditions of the country.

4. Offence is committed against a woman or child below 14 years of age.

5. Offence comes in the category of serious crime. Generally, such offences are identified by prescription
of severe punishments. When offence is punishable by death penalty, life imprisonment, or imprisonment
exceeding seven years.

6. Application for plea bargaining moved by the accused is not voluntary.

7. Parties participating in meetings for working out mutual satisfactory disposition failed to make such
disposition. Plea bargaining is made at pre-trial stage generally before the framing of charge. Section 265-
A CrPC mentions stages in the case for moving of application for plea bargaining:
i). In case in which police lodged an FIR and investigation was made; in such case plea bargaining is
permissible only after submission of police report. On conclusion of trial u/s 173 CrPC police officer
submits police report on which Magistrate takes cognisance u/s 190 CrPC. Section 265-A (1) (a) CrPC
directs that after submission of a police report, at any stage the accused may voluntarily give a proposal
for plea bargaining. Thereby, in case based on police report, application for plea bargaining may be
moved at any time during cognisance and afterward.
ii) In case based on complaint, the accused may voluntarily move application for plea bargaining after
completion of examination of complainant and witness u/s 200 CrPC and issuance of process u/s 204
CrPC.
Thereby, in a complaint case the accused may give offer for plea bargaining at any time after
completion of cognisance. For plea bargaining establishing of case is also a necessary requisite; when
case is investigated by police officer through detailed investigation with submission of police report case
is prima facie established while in complaint case the complainant directly files case before the
Magistrate, thereby, case is prima facie established only after examination of complainant and witnesses
u/s 200 CrPC and such establishing of case is indicated by issuance of process. Because of it, in police
cases the accused may offer for plea bargaining after submission of police report means during
cognisance and afterwards while in complaint case such offer may be given after taking cognisance and
afterwards.
Main provision relating to plea bargaining is given in Section 265-B CrPC, it clears that proposal
for plea bargaining is moved by the accused by filing of application before the trial court. Accused person
does not give a proposal for bargain directly to the prosecution or victim but it is given to the court. Court
after receiving application from the accused for plea bargaining, issues notice to the Public Prosecutor in
case instituted on police report or complainant in case instituted on complaint and accused to appear in
the court on a fixed date. First most responsibility imposed on the court is to find out whether such a
proposal for plea bargaining moved by the accused is voluntary, for this purpose the court on a fixed date
examines the accused in camera, in absence of another party to the case. On examination of accused
person court may have any one of the three situations:

1. Court is satisfied that the accused voluntarily offered for plea bargaining. In this situation plea
bargaining is permitted and court provides time and opportunity to the accused and public prosecutor or
complainant, as the case may be, to work out mutually satisfactory disposition. Or

2. Court finds that accused involuntarily applied for plea bargaining. Accused may be pressured or due to
some other reason he has no willingness for plea bargaining. On identifying this type of situation court
shall not permit plea bargaining; court shall initiate trial proceeding. Or

3. Court finds that the accused is a previous convict for the same kind of offence, in this situation plea
bargaining shall not be permitted and court initiates trial proceedings.

In second and third situations plea bargaining is not permissible; as soon as Court identifies these
situations proposal for plea bargaining is rejected by court and proceeding for trial is continued again. In
the first situation, it means when the accused person is not a habitual criminal committing the same kind
of offence and offer for plea bargaining is moved voluntarily, court permits and facilitates proceedings
relating to plea bargaining. Further for plea bargaining due to provisions contained in Section 265-A
CrPC it is necessary that offence for which an accused is charged should be punishable with fine or
imprisonment for a term not exceeding seven years or with both.
Hereby, plea bargaining is permissible when offer for it is moved by the accused voluntarily, the
accused is not a habitual criminal and the offence for which the accused is charged is not punishable with
death punishment, life imprisonment or imprisonment exceeding seven years. When court finds out that
the accused was not previously convicted for the same kind of offence, offence for which the accused is
charged does not come in prohibited category and the accused has offered for plea bargaining voluntarily,
court may direct the conduct of proceeding for plea bargaining.
In case instituted on police report for proceeding of plea bargaining court issues notice to Public
Prosecutor, investigating officer who made investigation of the case and the victim of the case or when
case is instituted on complaint court issues notice to the accused and the victim of the case, these persons
make meetings to work out mutually satisfactory disposition of case. Court has the responsibility to
supervise and control the meeting to ensure that the entire process is completed voluntarily by parties
participating in the meeting to prepare a mutually satisfactory disposition of the case. If they desire, the
accused and victim are permitted to participate in a meeting along with their respective pleaders. In
dispositions prepared during the proceeding, the main component is the amount of compensation to be
paid by the accused to the victim. Plea bargaining as claimed is based on restorative justice there by
attempt is made to provide speedy justice and further, his injury suffered is taken care of and attempted to
satisfy by providing compensation to him.
In plea bargaining, the victim gets compensation and the accused becomes liable for reduced
punishment. In criminal law compensation provision is not a new thing; it has been traditionally available
in criminal proceedings in India. But in the criminal justice system in India compensation is awarded out
of fines collected from the criminal.
Traditionally a criminal is punished by imposition of fine or other punishments or both; when fine
is imposed as punishment, either the whole amount of fine or some part of the realised amount of fine is
given as compensation to the victim. Such a traditional measure to compensate victims is provided in
Section 357 CrPC. One more development has occurred in the recent past that compensation may be
given by the state to victims of crime commission. In this regard now provisions are given in section 357-
A CrPC. State has responsibility to protect citizenry against crime commission and State has failed,
thereby it has to compensate aggrieved persons. State has failed in tackling the crime problem, thereby,
responsibility to compensate victims.
Under Section 357-A CrPC compensation is given by the State. In Section 357 CrPC
compensation is given from a fine amount collected from criminals; fine forms part of public exchequer,
thereby, from another perspective this compensation may also be taken as paid by the state. In the
criminal justice system in India traditionally criminals are punished but never compensation is directly
paid by the criminal to the victim. In civil law such compensation payments are made which is paid by
wrongdoer to the injured person.
Plea bargaining is an exception to aforesaid well established rule of criminal law and in pursuance
of it compensation is directly paid by offender to victim of offence. Further, compensation amount is
decided by the offender and victim by mutual bargain. This aspect of proceeding of plea bargaining
brings the criminal proceeding similar to contract making. In Law of Tort also such sort of proceeding is
not permitted; in Law of Tort amount of compensation is always determined by court and never parties to
dispute are permitted to decide the remedy themselves.
Section 265-E (a) CrPC specifically clears that main purpose of plea bargaining is determination of
compensation amount payable by offender to victim of crime. For payment of compensation and
determination of compensation amount voluntary bargains are made amongst offender, Prosecution
officer, investigating officer and victim in case based on police report and between offender and victim in
case based on complaint. Court during the bargain keeps vigil on the whole bargain and settling of matter
which is called disposition should take place voluntarily, in this regard specific duty is imposed on the
court u/s 265-C CrPC. When persons participating in the meeting for plea bargaining failed to work out
mutually satisfactory disposition, the Court had to record its observation and proceed in trial from the
stage the application under Section 265-A (1) CrPC was filed in the case. When bargain parties have
succeeded in arriving at mutually satisfactory disposition, the Court has now the responsibility to prepare
a report of such disposition which is signed by the presiding officer of court and all the persons
participating in the meeting. Section 265-D of CrPC provides:

“Where 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 officer of
the Court and all other persons who participated in the meeting and 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.”

On successfully working out mutually satisfactory disposition, it is accepted by court through

preparation of a report on it which is signed by the presiding officer of the court and persons participating
in the meeting. Now after it there is no need for trial; on the basis of pleading of guilt in disposition of
case the accused is convicted. Now the case enters the sentencing stage; the court passes a compensation
order in accordance with the disposition prepared u/s 265-D CrPC. Further court takes evidence and
Court considers whether convict has prospect of reformation; on identifying such a situation with him, he
may be released after due admonition or probation of good conduct u/s 360 CrPC or Probation of
Offenders Act 1958, as the case may be. When the court identifies that the accused has no prospect of
reformation but he has to be sentenced then the court takes evidence for determination of nature and
extent of punishment.
In plea bargaining, an offender is not completely exonerated from his liability, he is still liable for
punishment but on the basis of payment of compensation and acceptance of crime commission (pleading
of guilt) he is treated leniently and his penal liability is reduced. When offence is punishable with
maximum imposable punishment, Section 265-E (d) CrPC prescribes that court may sentence the accused
to one fourth of the punishment provided for the offence or extendable punishment. In some cases
minimum sentence is also provided for the offence particularly offences under special penal statute are
punishable by minimum and maximum punishment.
In case of maximum punishment the court has discretion, no doubt it is judicial discretion but the
court is empowered to determine any extent of punishment extending up to maximum prescribed
punishment. In some cases minimum punishment is also prescribed; minimum sentence is mandatory
sentence, court has no discretion for minimum imposed sentence, court is bound to impose minimum
sentence and then court has discretion to extend it up to maximum sentence. But in case of plea
bargaining minimum sentence is also reduced and in Section 265-E (c) CrPC provides that when for
offence minimum punishment is provided in penal statute, court in case of plea bargaining may sentence
the accused to half of minimum sentence provided for offence.
In case of plea bargaining sentence to be imposed on accused is determined that when offence is
punishable by maximum sentence only, sentence to be imposed on accused shall be one-fourth of
maximum sentence, and when offence is punishable by minimum and maximum sentence both, sentence
to be imposed shall be half of minimum sentence provided for the offence. Minimum and maximum
sentence may be imprisonment or fine or both, and hereby, accordingly one half and one fourth of
punishments may be calculated. Court passes judgment in open court. In the beginning when a proposal
for plea bargaining was moved by the accused, the court examined the accused in camera to find out
whether such an offer was made voluntary. At the stage of pronouncement of judgment, Section 265-F of
CrPC declares that judgment shall be pronounced in open court. Section 265-G CrPC declares that
judgment passed by court on plea bargaining is final and it cannot be challenged by any party to the case
except under Constitutional provisions.
In plea bargaining every party voluntarily prepares a mutually satisfactory disposition, therefore
later on they cannot be permitted to challenge a disposition prepared and accepted by them and
accordingly judgment passed by court. Due to it Section 265-G CrPC declares orders passed by Court as
unappeasable order under provisions of Criminal Procedure Code but it shall remain subject for challenge
under Constitutional provisions contained in Article 136, 226 and 227 of Constitution. Section 265-G
CrPC provides:

“The judgment delivered by the Court under Section 265 G shall be final and no appeal (except the
special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution)
shall lie in any Court against such Judgment.”

Only the pendency of cases against the accused does not debar the accused from getting benefit of
plea bargaining. In Chapter XXI-A some prohibitions are given like offence with which accused is
charged affects socio-economic conditions, offence is against woman or child under fourteen years age,
or accused is previously convicted for same kind of offence, offence for which the accused is charged
does not come in prohibited category and the accused has offered for plea bargaining voluntarily, court
may direct for the conduct of proceeding for plea bargaining. In case instituted on police report for
proceeding of plea bargaining court issues notice to Public Prosecutor, investigating officer who made
investigation of the case and the victim of the case or when case is instituted on complaint court issues
notice to the accused and the victim of the case, these persons make meetings to work out mutually
satisfactory disposition of case. Court has the responsibility to supervise and control the meeting to ensure
that the entire process is completed voluntarily by parties participating in the meeting to prepare a
mutually satisfactory disposition of the case. If they desire, the accused and victim are permitted to
participate in meetings along with their respective pleaders.
In dispositions prepared during the proceeding, the main component is the amount of
compensation to be paid by the accused to the victim. Plea bargaining as claimed is based on restorative
justice there by attempt is made to provide speedy justice and further, his injury suffered is taken care of
and attempted to satisfy by providing compensation to him. In plea bargaining, the victim gets
compensation and the accused becomes liable for reduced punishment. In criminal law compensation
provision is not a new thing; it has been traditionally available in criminal proceedings in India. But
always in the criminal justice system in India compensation is awarded out of fines collected from the
criminal. Traditionally a criminal is punished by imposition of fine or other punishments or both; when
fine is imposed as punishment, either the whole amount of fine or some part of the realised amount of fine
is given as compensation to the victim. Such a traditional measure to compensate victims is provided in
Section 357 CrPC.
One more development has taken place in the recent past that compensation may be given by the
state to victims of crime commission. In this regard now provisions are given in section 357-A CrPC.
State has responsibility to protect citizenry against crime commission and State has failed, thereby it has
to compensate aggrieved persons. State has failed in tackling the crime problem, thereby, responsibility to
compensate victims. Under Section 357-A CrPC compensation is given by the State. In Section 357 CrPC
compensation is given from a fine amount collected from criminal; fine forms part of public exchequer,
thereby, from another perspective this compensation may also be taken as paid by state. In the criminal
justice system in India traditionally criminals are punished but never compensation is directly paid by the
criminal to the victim. In civil law such compensation payments are made which is paid by wrongdoer to
the injured person.
Plea bargaining is an exception to aforesaid well established rule of criminal law and in pursuance
of it compensation is directly paid by offender to victim of offence. Further, compensation amount is
decided by the offender and victim by mutual bargain.
This aspect of proceeding of plea bargaining brings the criminal proceeding similar to contract
making. In Law of Tort also such sort of proceeding is not permitted; in Law of Tort amount of
compensation is always determined by court and never parties to dispute are permitted to decide the
remedy themselves. Section 265-E (a) CrPC specifically clears that main purpose of plea bargaining is
determination of compensation amount payable by offender to victim of crime. For payment of
compensation and determination of compensation amount voluntary bargains are made amongst offender,
Prosecution officer, investigating officer and victim in case based on police report and between offender
and victim in case based on complaint. Court during the bargain keeps vigil on the whole bargain and
settling of matter which is called disposition should take place voluntarily, in this regard specific duty is
imposed on the court u/s 265-C CrPC. When persons participating in the meeting for plea bargaining
failed to work out mutually satisfactory disposition, the Court had to record its observation and proceed in
trial from the stage the application under Section 265-A (1) CrPC was filed in the case. When in bargain
parties have succeeded in arriving at mutually satisfactory disposition, the Court has now the
responsibility to prepare a report of such disposition which is signed by the presiding officer of court and
all the persons participating in the meeting. Section 265-D of CrPC provides:

“Where 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 officer of the
Court and all other persons who participated in the meeting and 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.”

On successfully working out mutually satisfactory disposition, it is accepted by court through

preparation of a report on it which is signed by the presiding officer of the court and persons participating
in the meeting. Now after it there is no need for trial; on the basis of pleading of guilt in disposition of the
case the accused is convicted. Now the case enters the sentencing stage; the court passes a compensation
order in accordance with the disposition prepared u/s 265-D CrPC. Further court takes evidence and
Court considers whether convict has prospect of reformation; on identifying such a situation with him, he
may be released after due admonition or probation of good conduct u/s 360 CrPC or Probation of
Offenders Act 1958, as the case may be. When the court identifies that the accused has no prospect of
reformation but he has to be sentenced then the court takes evidence for determination of nature and
extent of punishment.
In plea bargaining, an offender is not completely exonerated from his liability, he is still liable for
punishment but on the basis of payment of compensation and acceptance of crime commission (pleading
of guilt) he is treated leniently and his penal liability is reduced. When offence is punishable with
maximum imposable punishment, Section 265-E (d) CrPC prescribes that court may sentence the accused
to one fourth of the punishment provided for the offence or extendable punishment. In some cases
minimum sentence is also provided for the offence particularly offences under special penal statute are
punishable by minimum and maximum punishment. In case of maximum punishment the court has
discretion, no doubt it is judicial discretion but court is empowered to determine any extent of punishment
extending up to maximum prescribed punishment.
 In some cases minimum punishment is also prescribed; minimum sentence is mandatory sentence,
court has no discretion for minimum imposed sentence, court is bound to impose minimum sentence and
then court has discretion to extend it up to maximum sentence. But in case of plea bargaining minimum
sentence is also reduced and in Section 265-E (c) CrPC provides that when for offence minimum
punishment is provided in penal statute, court in case of plea bargaining may sentence the accused to half
of minimum sentence provided for offence. In case of plea bargaining sentence to be imposed on accused
is determined that when offence is punishable by maximum sentence only, sentence to be imposed on
accused shall be one-fourth of maximum sentence, and when offence is punishable by minimum and
maximum sentence both, sentence to be imposed shall be half of minimum sentence provided for the
offence. Minimum and maximum sentence may be imprisonment or fine or both, and hereby, accordingly
one half and one fourth of punishments may be calculated.
Court passes judgment in open court. In the beginning when a proposal for plea bargaining was
moved by the accused, the court examines the accused in camera to find out whether such an offer was
made voluntarily. At the stage of pronouncement of judgment, Section 265-OF CrPC declares that
judgment shall be pronounced in open court. Section 265-G CrPC declares that judgment passed by court
on plea bargaining is final and it cannot be challenged by any party to the case except under
Constitutional provisions. In plea bargaining every party voluntarily prepares a mutually satisfactory
disposition, therefore later on they cannot be permitted to challenge a disposition prepared and accepted
by them and accordingly judgment passed by court. Due to it Section 265-G CrPC declares orders passed
by Court as unappeasable order under provisions of Criminal Procedure Code but it shall remain subject
for challenge under Constitutional provisions contained in Article 136, 226 and 227 of Constitution.
Section 265-G CrPC provides:

“The judgment delivered by the Court under Section 265 G shall be final and no appeal (except the
special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution)
shall lie in any Court against such Judgment.”

Only the pendency of cases against the accused does not debar the accused from getting benefit of
plea bargaining. In Chapter XXI-A some prohibitions are given like offence with which accused is
charged affects socio-economic conditions, offence is against woman or child under fourteen years age,
or accused is previous convict; in these cases accused is prohibited from making plea bargaining. Further,
court may reject application for plea bargaining when such application is not voluntarily moved. But the
court cannot reject the application for plea bargaining on any other ground which is not mentioned in
Chapter XXI-A of Criminal Procedure Code. When aforesaid situations are not present then the court will
not deny to facilitate the plea bargaining. Now it is only for prosecution or the victim to reject the offer
for plea bargaining.
In Rahul Kumpawat v. Union of India Through CBI Rajasthan High Court decided this case on 4th
November 2016 and observed that the trial court can reject the application for plea bargaining only on
those grounds which are mentioned in Chapter XXI-A of Code. In this case an application for plea
bargaining was moved by the accused but it was rejected by court on the ground that many cases were
pending against the accused. Appeal was made before the High Court u/s 482 CrPC. The High Court
observed that plea bargaining is American concept developed since the 19th Century.
In India it has been included in Criminal Procedure Code from Section 265-A to 265-L, and now
any issue relating to it should be decided according to these provisions. Court can reject an application for
plea bargaining only on those grounds mentioned in the provisions; rejection on any other ground, which
is not mentioned in the provisions, is not proper. For this case, the High Court found that grounds of
rejection of plea bargaining application is not mentioned in the provisions, therefore, set aside the order of
rejection order and the case was remanded to trial court for reconsideration according to legal provisions.

Rahul Kumpawat v. Union of India Through CBI High Court observed:

“A bare perusal of Section 265-A CrPC makes it explicitly clear that mere pendency of criminal
cases against an accused cannot be cited as an embargo for entertaining plea bargaining under Chapter
XXI A CrPC. Moreover, in the instant case, accused petitioner as volunteer to enter into plea bargaining
and therefore, it was expected of the learned trial Court to consider the same as per mandate of Chapter
XXI A [Link] it is true that plea bargaining in Indian Legal System is infancy but its recognition is
clearly discernible in CrPC after introduction of Chapter XXI A w.e.f. 05.07.2006. Broadly in the system
of pretrial negotiations where the accused pleads guilty in return, he can fructify concessional treatment
from the prosecution. The underlying object is to shorten the litigation and, therefore, in adherence to
legislative intent, the Courts are also expected to accede to the prayer of the accused person in
appropriate cases to ensure speedy disposal.”

Rajinder Kumar Sharma v. The State case was decided by Delhi High Court on 26 February
2007. In this case petitioner accused opened a fake account in the Bank in the name of the complainant
and cashed a cheque worth Rs 17640/- belonging to the complainant sent by Unit Trust of India.
Complaint filed FIR, case was investigated by police officer and on completion of investigation, he
submitted a charge-sheet. Complaint and petitioner accused were close relatives, some relatives mediated
and accused returned the amount of cheque and they made settlement out of court. Now petitioner
accused filed petition u/s 482 requesting for quashing of FIR.
The High Court refused and the petition was dismissed. Court decided that offences which affect
society compromise cannot be permitted. Those offences which are of trivial nature, compounding may
be permitted but offences which are graver and serious are not against individuals but against society, in
such cases compounding cannot be permitted. Plea bargaining and compounding of cases has some
differences. Court observed plea bargaining is permitted and lenient punishment is inflicted in such cases
as the criminal is repenting for crime commission and he is prepared for some punishment. Criminal
mentality may not create problems in future in case of plea bargaining as the person is repenting. Further
he is going to suffer some punishment. In case of compounding repent is not shown and further any
punishment to an even lesser extent is not going to be inflicted.
Delhi High Court observed:

“A Crime under IPC or any other penal law is not a crime against an individual, it is crime against
the society and the State and that is the reason that State or any of its agencies is the prosecutor in
criminal cases. The suppression of crime is the most important function of the State. The maintenance of
law and order and compliance of laws by the citizens is the responsibility of the State. Criminal law has
been mainly concerned with protection of elementary social interest in the integrity of life, liberty and
property. The legislature in its wisdom considered some offences as trivial offences and some offences
more serious and of graver nature. Those offences which did not affect the society at large have been
made compoundable under Section 320 CrPC. However, all offences under IPC or under other Acts have
not been made compoundable because the legislature considered that some offences cannot be
compoundable and the perpetuator of such offences must be punished according to the law, so that the
criminal tendency is curbed. Recently, the legislature has introduced plea bargaining under law so as to
benefit such accused persons who repent of their criminal act and are prepared to suffer some
punishment for the act. The purpose of plea bargaining is also to see that the criminals who admit their
guilt and repent, a lenient view should be taken while awarding punishment to them”.

Reasons to growth in India:-

A Backlog in Jails:
The failure of democracy to deliver justice within a time frame has brought a sense of frustration,
loss of faith and dissatisfaction amongst them. On this point as famous Jurist Late Nani A Palkhivala has
gone on record to say,
“If I were asked to mention the greatest drawback of the administration of justice in India today, I
would say that it is DELAY. There are inordinate delays in the disposal of cases. We, as a nation, have
some fine qualities, but a sense of value of time is not one of them. Perhaps there are historical reasons
for our relaxed attitude to time. Ancient India had evolved the concept of eternity and infinity. So what do
thirty years, wasted in litigation, matter against the backdrop of eternity? Further, we believe in
reincarnation, what does it matter if you waste this life? You will have many more lives in which to make
good .I am not aware of any country in the world where litigation goes on for as long a period as in
India. Our cases drag over a length of time, which makes eternity intelligible. 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 a community of snails. Justice has to be blind but I see no reason why it should also be
lame: here it just hobbles along, barely able to walk.”

Further this point of view has been enlightened by Mr. Justice [Link] in his article that Indian
Judiciary, though fair and powerful, is awfully overcrowded and slow. The problem of delay in
dispensation of justice is a major problem being faced by the Indian Judiciary. Besides being highly
stressful, it has also become exorbitantly expensive and time consuming for the litigants. In the last 56
years, due to its impartial and fearless role in dispensation of justice, it has won the confidence of the
people of this country who find it to be the last resort to get their legitimate due. At the same time
however, one factor, which is becoming responsible for questioning the efficacy of the justice delay
system is the delays in deciding cases. Backlog and delay are among the most significant problems in the
Indian Judiciary.
One of the reasons for the huge backlog indicated by the 120th Report of the Law Commission is the
inadequate strength of Judges compared to the population of the country. The strength of the Judges and
of Judicial Officers has not been proportionately increased either with the growth of population or with
augmentation of litigation. Therefore, this problem of justice delays has caught up the attention of
judiciary and legislature alike. It is in the background, the Law Commission felt that some remedial
legislative measures to reduce the delays in the disposal of criminal trials and appeals and also to alleviate
the suffering of under-trial prisoners.
The Law Commission in its 142nd Report on Concessional Treatment of Offenders who on their
own initiative Choose to Plead guilty without any Bargaining (1991), considered the question of
introduction of the concept of concessional treatment for those who choose to plead guilty by the way of
plea bargaining. Thus in India, the problem of delay and backlog is rather acute in criminal cases, as
compared to civil cases. The third hypothesis i.e. there is problem of backlogs and docket management
leading to prolonged trials completely stands validated here as its increasing impact on the Indian
Criminal Justice Process that it appears to be on the verge of collapse which is visible from the following
figures: Besides it, the need of plea bargaining in India has been analysed.
Plea Bargaining and Contradictions:-

In a criminal case State has to bring charges and prosecute the perpetrators to get him convicted and
State has to prove the guilt beyond reasonable doubt by following fair trial procedure established by the
law. Plea bargaining is an agreement in a criminal case where the accused is pleading guilty in return for
some benefit. It has been introduced as an alternative to criminal trials. There are some fundamental
issues involved which make the institution of plea bargaining objectionable.
Firstly, Indian Constitution guarantees certain fundamental trial rights of an accused within the
meaning of Articles 14, 19, 20 and 21. Plea bargaining is no more than offering of incentive to waive
these trial rights.24 Doctrine of waiver has no application to the provisions of law enshrined in part-III of
the Constitution. It is not open to an accused person to waive or give up his Constitutional right and get
convicted. These rights have been put in the Constitution not merely for the benefit of an individual but as
a matter of public policy for the benefit of the general public. It is the duty of the Court to protect their
rights against themselves. These rights include right against self-incrimination, right to confrontation and
right to have a fair and full trial.

Secondly, The guilty plea represents the defendants’ decision not to contest the State’s case against
him and results in the loss of many Constitutionally guaranteed rights associated with the right to a fair
trial.

Thirdly, The justification for showing concession that the defendant has saved the government the
time, the expense, and the risk of trial appears much weaker. A sacrifice of penological interest seems less
objectionable when it is incurred for the sake of compensatory interest. Right against self- incrimination
has recommended itself to be one of the cordial principle of administration of criminal justice system
raised to the Constitutional status for which Article 20(3) of the Constitution of India says:

“No person accused of an offence shall be compelled to be a witness against himself” .

Thus plea bargaining makes serious intrusion into the Constitutional value of the accused. Accused
should not be compelled to self-incriminate or plead guilty for a specific benefit in the form of either
lesser charges or reduced sentences. In such cases mercy should be given but not to be exchanged.

[Link] of Due Process:-

Due process guarantees that the law and legal proceedings should be fair within criminal
proceedings and not conducted outside of the law. The concept of due process was first noted in the
United Kingdom with the advent of the Magna Carta (1215) which established the rule of law in the
United [Link] Magna Carta set out the rules which governed the relationship between the King
and his subjects. The Magna Carta states that:

“No freeman shall be taken and imprisoned or disseized or exiled or in any way destroyed, nor will
we go upon him nor send upon him, except by the lawful judgment of his peers and by the law of the
land.”
 The due process clause and the corresponding principles were exported by England to its North
American colonies and became incorporated into their Statutes. In the United States of America, the
principle of due process is guaranteed in the Fifth Amendment and the Fourteenth Amendment of the
[Link] prohibit the government from arbitrarily or unfairly depriving an individual of their
basic Constitutional rights such as liberty.

In India, the judicial concern for human life and personal liberty has transformed procedures
established by law into due process of law. Article 21 of our Constitution has both substantive and
procedural facets. The substantive facet confers the fundamental right to life and personal liberty and the
procedural facet guarantees that the deprivation of substantive right shall be only in accordance with the
procedure established by law which is just fair and reasonable, not only under Art.14 but also under
Act.19 of the Constitution. The principle that procedural facet of Article 21 should answer the test of
reasonableness under Article 14 and 19 .

The Supreme Court in the cases of C. Cooper v. Union of India, Maneka Gandhi v. Union of India,and
Sunil Batra v. Delhi Administration.
The natural consequence was accountability of procedural facets of Article 21 to the test of
reasonableness in Article 19 and 14 became the norm. This norm is the procedure established by law with
due process of law. Thus the process under Article 21 which includes

a) There must be a valid law.

b) The law must provide a procedure.

c) The procedure must be just, fair and reasonable and

d) The law must satisfy the requirements of Article 14 and 19 i.e. it must be reasonable.

The plea bargaining makes serious inroads into these vital elements of due process placing itself in
the position of an antinomy. Plea bargaining uproots a few simple precepts of criminal justice that
command unqualified support of like minded people.

a) That it is important to hear what someone may be able to say in his defence before convicting him of
crime.

b) That when he denies his guilt, it is also important to try to determine on the basis of all the evidence
whether he is guilty.

c) And finally it is wrong to depart from these precepts by saying that we do not have the time and money
to listen, that most defendants are guilty anyway, and that trials are not perfect.
The law should be heard before it is condemned and not vice versa. Like that, plea bargaining is
head on contradictory to the due process enshrined in our Constitution.

[Link] with Goals of Criminal Justice System:-

 Plea bargaining conflicts with two primary goals of criminal justice system- truth determination and
protection of the individual from [Link] of innocent from the guilt is a central concern of almost
every legal [Link] theory plea bargaining is a strategy for reducing costs that induces only guilty
defendants to forego their right to trial, but in practice the negotiated guilty plea offers advantages to
innocent and guilty individual alike.

There are several reasons as to why an innocent accused who knows he did not commit the crime
with which he is charged might decide to plead guilty. These include the overwhelming nature of the size
of prosecutorial concession, the desire to protect third parties, the fear of additional prosecution, pressure
from family, the conditions of pre-trial detention and various self- destructive tendencies. If placed on
trial, these innocent accused persons might well be released. Plea bargaining thus threatens the goal of
truth determination by increasing the chances of conviction of the innocent defendant.

[Link] sentence:-

The concept of plea bargaining springs from the negotiation between the prosecution and the defence
before actual trial takes place and leniency to the accused in the sentencing process. In the sphere of
administration of criminal justice, sentencing policy occupies a significant place. Inadequate sentences
can do harm to the system and deterrence must form part of the sentencing process as the crimes are
increasing day by day.

Sentencing policy must take cognizance of factors like the severity of the crime committed and the
quantum of alarm or the magnitude of the sense of insecurity the crime prevailed in the [Link]
of the society from recurring aggression by law adhering people ought to be curbed by the hammering
hands of law and the rule of law must be established. It is only possible through a scientific sentencing
policy which evaluates reformative trends in proper perspective.

4. Anti- Adversarial System:-

The system of criminal trial envisaged by the Criminal Procedure Code 1973 is the adversary system
based on the accusatorial [Link] this system the prosecutor representing the State (or the people)
accuses the defendant (the accused person) of the commission of some crime; and the law requires him to
prove his case beyond reasonable doubt. The law also provides fair opportunity to the accused person to
defend himself. The judge, more or less, is to work as an umpire between the two contestants. Challenge
constitutes the essence of adversary trial and truth is supposed to emerge from the controverted facts
through effective and constant challenges.
Adversary system is by and large dependable for the proper reconciliation of public and private
interests i.e. public interest in punishing the criminals and private interest in preventing wrongful
convictions. The system of criminal trial assumes that the State using its investigative resources and
employing competent counsel will prosecute the accused who, in turn, will employ equally competent
legal services to challenge the evidence of the prosecution.

Justification for Plea Bargaining :-

 The quality of Justice suffers not only when an innocent person is punished or a guilty person is
exonerated but when there is enormous delay in deciding criminal [Link] in administering law is
seen as a hindrance in crime prevention. The crime loses its gravity with the increase in the gap between
the incidence of crime and punishment of the offender. Relevant evidence and witnesses may disappear in
the process due to which criminal courts are unable to dispose of the cases on merits.

Judiciary is known for its impartiality and independence in taking up matters and deciding them.
Indian judiciary is facing the biggest challenge when it sees frustration on the face of the people of India
regarding non-disposal of cases in criminal matters for a long time. Heavy backlog of cases in the courts
and inevitable delays in dispersing justice has been to such an extent that it is shaking public trust and
confidence in the legal system and it is tending to erode the quality of social justice and hampering the
socioeconomic development of theCountry. Even the Supreme Court has stated that a delay of one year in
the commencement of trial is bad enough, how much worse could it be when the delay is there to five
years or more. Speedy trial is the [Link] in speedy justice violates Article 21 of the Constitution.

In Moses Wilson v. Karturba ,the Supreme Court expressed concern in delay in disposal of cases
and directed the concerned authorities to do needful in the matter urgently before the situation goes totally
out of control. The theory of justice delayed is justice denied can be rightly applied after seeing the
present situation in India. The lengthy trial procedure which takes years or sometimes decades to
conclude the proceeding really affects the rights of the accused as well as [Link] October 2014 there
were 2.5 crore backlog pending cases in district and High Courts.
There were 36 lakh of them were more than 10 years old. Even the Supreme Court had more than
22,000 cases pending in the [Link] simplifying the trial process and making trials more available, cases
can be disposed of expeditiously. To reduce the burden of the courts and to provide speedy justice to the
accused and victims the concept of plea bargaining has been introduced in the realm of criminal
jurisprudence. If the accused is voluntarily ready to plead guilty in exchange for concessions in the form
of reducing the quantum of sentence it can be entered into in the form of an agreement with the
prosecutor. It’s a kind of pre- trial negotiation, where convictions are assured one.

Plea bargaining has been justified for many reasons like,Plea bargaining permits a prompt
resolution of criminal proceedings with win-win situation for both sides and avoids delay and
uncertainties of trial and appeal.

1) Plea bargaining results in improved equity in so far as right sentence guidelines may fail to take into
account an accused person’s particular circumstances.

2) It protects the public from those accused persons who are prone to continue criminal conduct even
while on pretrial release.

3) It shortens the time between charge and disposition thereby enhancing whatever may be the
rehabilitative prospects of the guilty when they are ultimately imprisoned and

4) In the context of co-operation agreements plea bargaining serves a greater good by allowing the
government to prosecute higher level criminals where such prosecution would not be possible without the
information or testimony of the cooperating defendant.
Judicial Discretion and Procedure in Plea Bargaining:-

Section 265-B to 265-K of the Criminal Procedure Code 1973 provides a scheme where the accused
and the prosecutor have to work out an agreement to solve the case with the consent of the Court by
paying expenses and compensation to the victim.

Plea Bargaining in Pre-charging Stage:-

Privileged accused is the soul of the plea bargaining system. Without participation of the accused
this remedy or practical use of this law is not possible. Under Section 265- B of the Code process of plea
bargaining is set in motion after issue of process and when the accused comes to the court. This provision
does not empower the court to sue motto ascertain the willingness of the accused to plead bargain. To
make the law effective and the accused aware of such provision in the law being incorporated a decade
ago, a judicial officer can ask the accused about his awareness of the existence of such provision and tell
the accused about its advantages. After ascertaining the willingness of the accused to opt for exercising
his right to plea bargain, the judicial officer has to ask him to file an application.

Application for plea bargaining has to contain the following information :

a) Brief description of the case including the nature of the offence and

b) An affidavit sworn by the accused stating that

i) He has made an application voluntarily,

ii) Knows the nature of the offence and quantum of punishment and

iii) Has not previously been convicted with the same offence.

On the date fixed for hearing, the Court has to ascertain the voluntariness of the application. There
should not be any pressure from any quarters particularly from the prosecutor or police. The Court then
issues notice to the public prosecutor or complainant of the case and the accused shall be examined in
camera,where the other party to the case shall not be present to satisfy itself that the application is
voluntary,then it will provide a mutually satisfactory disposition of the case.
But there will always be an element of pressure on the accused since he is being offered a lesser
charge or reduced sentence. Accused may agree to such concessions in many cases. In such cases of give
and take, it becomes a difficult task for the court to ascertain the voluntariness of the accused. Court has
to ascertain it only on the basis of facts and circumstances of each case. Then the Court has to provide
time to the public prosecutor or complainant and the accused to work out a mutually satisfactory
disposition of the case which may include the payment of compensation to the victims and other expenses
during the case by the accused. But it does not provide a specific time frame with respect to mutually
satisfactory disposition which is of grave concern since the purpose of plea bargaining is for speedy
justice and disposal of cases.
In addition the section does not permit a person who has been convicted of the same offence to apply
for plea bargaining. Here the lawmakers failed to consider the severity of the offence and has yet again
restricted the scope of plea bargaining. There may be a situation where a person may take recourse to plea
bargaining for less severe offence but the mutually satisfactory disposition may not work out and it may
result in his conviction. The provision fails to consider such a situation while barring persons convicted of
the same offence from using plea bargaining.

Offence must be pending for Trial:-

The process of plea bargaining will occur if the offence is pending for trial. The trial merges the
accusatory, determinative and sectional phases of criminal procedure and concentrates its effective
control in the hands of the prosecutor. On the other hand the formal law of trial envisages a division of
[Link] plea bargaining prior to the trial undermines the presumption of innocence. It also
waters down the burden of proof from beyond reasonable doubt to a clear and convincing standard, which
trivializes criminal procedure and reduces it to the level of civil trials.
Hence, reduces the valuation of life and liberty to the same position as that of property. The quest for
truth thus seems to be resulting in a draconian police State proposing an end to fundamental rights.
Especially in India where society has been built upon graded inequalities, the removal of little equality
given by law would have grave repercussions on the society leading to the use of police and prosecutors
as tools by powerful groups. The other drawback of this provision would be that it undermines the
purpose of plea bargaining which is to ensure that the accused plea bargains. But the provision has given
the concept a new dimension at a practical level where the litigants forecast the expected outcome of the
trial and reduce it by the probability of acquittal and then the prosecution offers some proportional
discount to the accused. Hence, plea bargaining has turned into something which is more like a settlement
in the shadow of trial outcome which makes it a speculative game.
No Prior Conviction by the Court:-

Section 265-B (2) which mentions the fact that the accused that is to plea bargain must not have
previously been convicted by a court, apart from deterring habitual offenders it can also be interpreted as
a step towards a concessionary system from an adjudicatory one. By doing this and not subjecting an
accused to a trial even once is in a way showing the accused a loophole in law to escape the actual
punishment for the crime committed. Reading Section 265-B (4) (a) and Section 320 of the Code has led
to infer that plea bargaining is also leading to an increase in compoundable offences and reduction of
judicial [Link] such instance which shows that cases which could come under plea bargaining are
filed under Section 320 of the Criminal Procedure Code is the decision of Delhi High Court. Where the
appellants seek immunity from prosecution and request the compounding authority to settle the case.

Thus on the ground that the appellants made a full and true disclosure of facts they have been let off.
The Court has held that the judicial review in such cases is clearly quite limited. This leads us to debate
on another aspect as to whether Cr. P. C. keeping in mind the two sections ( section 320 and section 265)
should incorporate a provision to the effect that unless otherwise expressly provided, all offences would
be compoundable. One can view that the offences should not be made compoundable as this would put at
stake the very nature of the criminal trial. It would reduce the importance of criminal actions and affect
the judicial mentality, which for the purpose of easy disposal of cases will develop bargaining habits
rather than judicial habits.
The noticeable point is that there is not even a single phase of judicial scrutiny due to the
introduction of plea bargaining at pre-charging stage. Further in case the Court feels that the application
has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in
which he had been charged with the same offence then it is required to continue from the stage where the
application was filed. It means if the court finds that the application has been made under duress or
pressure, or that the applicant after realizing the consequences is not prepared to proceed with the
application, the Court should reject the application. Such an application may be rejected either at the
initial stage or after hearing the public prosecutor and the aggrieved party by giving reasons.
Entrusting the duty on Courts to decide on whether a case is fit for plea bargaining or not also will
take up time of the Courts.

Mutually Satisfactory Disposition of a Case:-

Section 265 C of the Code lays down the guidelines for mutually satisfactory disposition of a case.
In working out a mutually satisfactory disposition under section 265 B (4)(a), the Court shall follow the
following [Link] case instituted on a police report, the court shall issue notice to the public
prosecutor, the police officer who has investigated the case, the accused and the victims of the case to
participate in the meeting to work out a satisfactory disposition of the [Link] duty is entrusted on the
court to ensure that the entire process is completed voluntarily by the parties participating in the meeting.
The victim may participate with the help of an advocate. Court is not involved in the process but it should
ensure that the process is voluntary.
This process is in favor of rich accused persons only. Because wealthy accused can retain good
rather than beg for and depend on the legal aid counsels. He has the time and funds to research his case.
But not usually employ pre-plea discovery to gather evidence and will accept the prosecution's claim for
his case. Here judicial officers have to be watchful of the results of entering the plea and status of the
accused. They also have to provide efficient legal aid counsels to the accused who protects his rights at
such a participatory process.

In a case instituted by a private complaint, the court shall issue notice to the accused and the victim
of the case to participate in a meeting to work out a satisfactory disposition of the case. If the parties so
desire they may participate in a meeting with their pleaders engaged in the case and court has to ensure
that process is voluntary. This makes it clear that plea bargaining is a strategic rather than adjudicative or
a sentencing activity. Its purpose is the negotiated surrender of the accused’s procedural rights in return
for tactical concessions uniquely within the discretion of the prosecutor to grant. The task of arriving at
mutually satisfactory disposition is left with the prosecutor and the accused without court having any say
in it. If the accused wishes to waive his procedural rights, the Courts are bound to respect his judgment
provided that this judgment is not the product of undue coercion or misinformation. But this provision in
fact does not lay down any guiding principle for the Court to make sure that there is transparency and the
accused is not coerced at any stage of the process.

Victim’s Participation and Compensation :-

The State being the prosecutor and aggrieved party, the actual victim had no say in the proceedings
apart from informing the crime to the police and giving evidence when called for. It was taken for granted
that punishing the accused was satisfaction enough for the victim. In fact with the low rate of conviction
and high rate of acquittal, the victim is not able to draw even that satisfaction. Even the Supreme Court
was of the view that punishing the accused was enough.
It was observed in National Human Rights Commission v. State of Gujarat

“It needs to be emphasized that the rights of the accused have to be protected. At the same time the
rights of the victims have to be protected and the rights of the victims cannot be marginalized. Accused
persons are entitled to a fair trial where their guilt or innocence can be determined. But from the victims'
perception the perpetrator of a crime should be punished. They stand poised equally in the scales of
justice.”

The Court was considering the rights of victims/witnesses in a fair trial. This guideline judgment
gave directions to conduct criminal proceedings in the country. Realising that millions of victims suffer
silently as a result of crime and abuse of power, the United Nations General Assembly adopted the
declaration of "Basic principles of Justice for Victims of Crime and Abuse of Power" in 1985. Articles 4
to 6 of the declaration stressed the need for compassion to the victims putting in place suitable machinery
and legal framework for protection of the victims.

The Supreme Court in State of Uttar Pradesh v. Sattan @ Satyendra opined:

“The Court must not only keep in view the rights of the criminal but also the rights of the victim of
the crime and the society at large while considering the imposition of appropriate punishment.”

Similarly, the UN General Assembly adopted another resolution on the Basic Principles and
guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International
Humanitarian Law, 2005. The principles enunciated therein recognised restitution and compensation to
victims and satisfaction and guarantee of non repetition of crime as forms of reparation. Law apart, the
victims often suffer from actions or inactions of police. Delayed response in helping the victim, even
refusal to register a First Information Report, laxity and delays in investigation and filing charge sheet,
improper or casual filing of charge sheet resulting in acquittal of the accused are some of the examples
which can cumulatively be termed secondary victimization of the person (this time by the police).

In fact, on the other hand, the police should act in the best interest of the victim. However fact
remains that the criminal justice system, by and large, has been ignoring the victim. Law should be
impartial, not taking sides. It should neither be pro-accused or outright pro-victim. What is required is to
strike a balance. Compensation provisions do exist in the Indian Criminal Law. Sections 357 to 359 of the
Code of Criminal Procedure, 1973 provide for the compensation to the victim and costs to innocent
persons arrested wrongly. Section 357 (1) provides for award of compensation only from out of the fine
imposed by the court. Similarly section 357(3) provides for compensation to be awarded only while
imposing a sentence other than that of fine. This was not found to be enough in the present environment
of plea bargaining and therefore the Law Commission in its 142nd Report, in the context of its
recommendations for plea bargaining, recommended amendment in section 357 and inserting a new
provision as section 357 A.
The Commission was of the view that it is necessary to amend this section to enable the court to
direct payment of compensation to the aggrieved party even in cases where no conviction has been
recorded and regardless of whether fine is imposed or not if an offence is compounded before the court.
At last the Law Commission's recommendation has been accepted and section 357 A has been inserted in
the Code of Criminal Procedure, 1973 by the Code of Criminal Procedure (Amendment) Act, 2008 (Act
No. 5 of 2008).The mutually satisfactory disposition of the case in a plea bargaining process includes
victim’s participation and payment of compensation to the victim and other expenses during the [Link]
Court has to fix the next hearing date only after the payment of such benefit to the sufferer.

Under the Criminal Procedure Code 1973, Sub section 3 of Section 357 empowers the Court to
order the accused to pay compensation to the victim in case of loss or [Link] awarding compensation
the capacity of the accused to pay has to be determined. If the accused is poor one, then he may not pay
the compensation. In such cases Section 357 A provides a remedy. It provides a victim compensation
scheme. In this scheme every State government in coordination with the Central Government has to
prepare a fund for the purpose of compensation to the victim or his dependents who have suffered loss or
injury as a result of crime and who require rehabilitation.

In such cases District Legal Services Authority or the State Legal Services Authority shall decide the
quantum of compensation to be awarded under the scheme. It is true that this new provision is a step
forward but, it is flawed in the sense that

1) It makes the public exchequer bear the brunt of the compensation. The accused or the offender has
nothing to do with it.

2) It does not provide anything by which the accused may be made to see his folly of committing the
offence.

3) Creating the compensation fund out of the public exchequer means making the public at large (the
taxpayers) pay for the crime committed by a criminal. This is really justice for criminals and not criminal
justice.

4) If the victim is a taxpayer, the provision means that he has to pay for his own compensation and
thereby rewarding the criminal for the crime perpetrated against him.

It would have been better and desirable if the accused was made to pay the compensation to the
victim out of his own resources in addition to the prison sentence, if any. The financial burden in addition
to the prison sentence would definitely make the accused see the injustice or crime perpetrated by him. If
the compensation is exemplary considering the accused's status, it may force him not to venture again. It
may also help in his reformation if he could ill-afford the amount awarded as compensation.

After having a successful meeting and if a satisfactory disposition of a case is worked out, the Court
has to prepare a report of such disposition with the signature of the presiding officer of the Court and all
other persons participated in the [Link] the meeting failed and no disposition has been worked out, the
Court shall record such observation and proceed further to conduct a regular trial.

In case of a negative result of the meeting the presiding officer may become prejudiced towards the
accused, thinking that he has wasted time of the Court, raising the plea as delaying tactics. Prosecutors
may bring such charges against the accused. In such cases utmost care has to be taken and allow the
whole process once more. But if things do not workout due to harsh stands taken by parties then mandate
of section 265 K has to be followed by the Court while conducting a regular [Link] means if the process
of bargaining is successful one then the facts disclosed during negotiation cannot be used as evidence in
any other case against the accused. If the process fails to reach any conclusion then the prosecutor will get
a chance to utilise the facts for other purposes in other cases. It has been found by the legal scholars that
when the evidence against the accused is weak, the prosecutor will propose generous bargaining terms in
order to overcome the accused’s inclination to go to trial.

On the other hand if the prosecutor’s evidence is strong, he will offer few plea concession since the
accused whose chance for acquittal is slight will need only a small inducement to renounce his right to go
to [Link] prosecutor in India will also adopt this strategy because he shares administrative goal of the
entire plea bargaining process which is the elimination of the maximum number of [Link] a
satisfactory disposition of the case has been worked out under Section 265-D the Court has to dispose of
the case in the following manners.

1) The Court has to award compensation to the victims in accordance with the disposition under Section
265-D.

2) Hear the parties on the quantum of punishment.

3) Releasing of the accused on probation of good conduct or after admonition under section 360 of the
Code or dealing with the accused under the provisions of the Prohibition of Offenders Act 1958.

4) Court may sentence the accused to half of the minimum punishment.

If the Court finds that the offence committed by the accused is not covered under clause (b) or
clause(c) of Section 265-E then it may sentence the accused to one fourth of the punishment for such
offence. The provision clearly states that in India, sentence bargaining is allowed and not charge
bargaining. In cases where the provisions of Probation of Offenders Act 1958 ( [Link] ) and Section 360
of the Code are applicable to an accused applicant, he would be entitled to make an application that he is
desirous of pleading guilty along with a prayer for availing the benefit under these legislations.

In such cases the Court after hearing the public prosecutor and the aggrieved party may pass
appropriate order conferring the benefit of these legislative provisions. If the Court feels it may release
the accused on probation after getting a report from the probation officer. In cases where it appears to the
Court that having regard to P.O Act and section 360 of the Code and having regard to the circumstances
of the case ,the case if not fit for granting the benefit of the said provisions, the application as a whole
may be rejected without recording any order of conviction.

Involvement of Judge:-

The sentencing differential in plea bargaining from that of an ordinary trial makes plea bargaining
[Link] element of coercion is like a judicial torture in the process of plea bargaining. Like the
European law tried to devise safeguards for the use of torture that proved to be illusory and these
measures bear a resemblance to the concept of plea bargaining. The most important among them is the
characterization of induced waivers as [Link] Europeans made the tortured victim repeat his
confession voluntarily but under the threat of being tortured and in the case of plea bargaining it is on the
basis of greater sentence, the tortured confession is less reliable than the negotiated plea because the
degree of coercion involved is greater. However the moral element is the same.
Accordingly, the adversarial setup in India acts as a catalyst to this problem. In such a system it is
followed that if the opposing parties reach a settlement, then the deciding authority should not be allowed
to disturb it.

So, though the court does not have to entertain an application if it is ascertained at the very outset
that the accused did not file it voluntarily, the Act has no provision for the court to reject the settlement.
Therefore, in a scenario where there may be serious failure in the capabilities of the accused, a risk of
prosecutorial coercion and the probability of corruption at various levels, a reasonable level of discretion
on the part of the deciding authority is required. Keeping the judge at the sidelines will result in the
inequality of the bargaining power of the prosecution and the defence. This imbalance will work in the
favor of the accused if he is well connected. Hence, the duty of the court in accordance with section 265-
C (a) and (b) should include judges also in it. The duty of the court is to do justice. The Courts must not
only keep in view the rights of the criminal, but also the rights of the victim of crime and the society at
large while considering imposition of the appropriate punishment.

Here the concept of plea bargaining undermines the rights of both victim and accused. Since the
victim does not get justice as the accused is not adequately punished and the accused does not have the
right to trial prior to plea bargaining or the right to appeal. This leads to a new string of arguments linking
the concept of mutually satisfactory disposition and judicial scrutiny. Hence, the scope and the extent of
judicial involvement at the stage of achieving the mutually satisfactory disposition between the public
prosecutor or the complainant of the case and the accused should be made clear. The involvement of
judges at the stage of achieving mutually satisfactory disposition can be argued both ways.

The judicial participation at this stage is incorrect because:

(i) it can give the defendant impression that he will not receive a fair trial if he is tried by the same judge;

(ii) makes it difficult for the judge objectively to determine the voluntariness of the plea and

(iii) may induce the defendant to plead guilty even if he is innocent.

Thus, it has been reiterated in various case laws that judicial participation in plea bargaining is
inherently coercive and tends to destroy the voluntariness of the defendant’s plea. Judicial involvement in
plea negotiations has also been frowned upon as intrusion by judges into prosecutor’s [Link]
most Courts in the United States of America disapprove judicial participation yet, the question arises as to
what whether a mere presence of judge constitutes participation. While some American case laws hold
that judicial participation can be to the extent that the judge maintains a passive role in plea negotiations
which shows that mere presence does not amount to judicial participation however most of the cases
uphold complete exemption of judicial participation of any [Link] only this issue is severed and taken
there mere presence of a judge does constitute participation as there is a relationship between sentencing
and plea bargaining. But the solution to this could be provision for an independent judicial authority for
evaluating plea bargaining applications.

However, in India due to the lack of discretion in the hands of the judges in plea bargaining cases as
can be inferred from section 265- E this relationship is almost absent. From the plain reading of section
265-E the phrase sufficiently supports the view that the court shall award compensation to the victim in
accordance with the disposition under section 265-D and hear parties on the quantum of punishment.
However, the role of the judiciary must not only be limited to determining the quantum of punishment.

The view is in consensus with the judgment of State of Uttar Pradesh v. Chandrika even though
it is one prior to the 2005 (Amendment) Act to the Code, where the court held that the court must dispose
of cases on the basis of merits and not merely on the basis of plea bargaining.
This view has formed the ratio of a recent 2009 Supreme Court judgment of State of Karnataka v.
Muralidhar,where the court held that it is the duty of every court to award proper sentences keeping in
mind the nature of offence and the manner in which it was committed.
 Thus, undue sympathy to impose inadequate sentences would do more harm to the justice system to
undermine the public confidence in the efficacy of law and society cannot endure such serious threats for
[Link] system has provided certain safeguards to the plea bargainers. This is visible in section 265-K of
the Code where the statements (or confessions) given by the accused during any stage of the plea
bargaining proceedings cannot be used during any other proceedings except those particular plea
bargaining proceedings.

Thus, it can be inferred that the legislatures intended to keep the judicial scrutiny minimal at the
stage of coming into a mutually satisfactory disposition. Due to sentencing disparity in similar types of
cases and due to plea bargains the judges should preside over the negotiating sessions. This would ensure
that the negotiating session is limited to “legally relevant” factors [Link] 265-C to section 265-E
specifically states that the court has to assist all the parties to the dispute to arrive at the satisfactory
disposition of the case. Report of the negotiation has to be submitted before the Court and finally the
court has to dispose of the case through a sentence bargaining process.

Finality of the Judgment:-

The Court has to deliver its judgment in the open court in terms of section 265-E and the same shall
be signed by the presiding officer of the Court. Here the judge cannot correct the sentencing disparity
which has been created by the bargaining process. Judge can conduct oral examination of the accused to
satisfy himself that the plea bargaining result is voluntary and that it has a factual basis.

The Judgment delivered by the court under Section 265 G shall be final and no appeal shall lie in any
court against such judgment except the special leave petition under Article 136 and writ petition under
Articles 226 and 227 of the Constitution. The language of section 265-G makes it clear that an appeal
against a conviction can only be challenged by way of writ petition before the High Court and Supreme
Court. But the grounds of appeal have not been spelt out. It is not required because of the extraordinary,
discretionary and plenary nature of powers of the superior court under Articles 136 and 226 and 227 of
the Constitution of India.

The logic behind the bar to appeal against the conviction of plea of guilty or plea bargaining was
stated in State of Sikkim v. Futi Sherpani. It was held that a conviction on confession is immune from
any interference by any higher court and should operate as a waiver of the right to challenge the same any
further unless there was nothing to confess in fact or in law or the confession was vitiated by mistake of
law or fact or by fraud or misrepresentation. But the sentence following a confession can always be
challenged if it is excessive or if it is not authorized or is beyond what is authorized by law.

The subordinate court has all the powers for the purposes of discharging its functions regarding bail,
trial of offences and other activities. The accused has a right to set-off the period of detentions he had
already undergone in the same case during the investigation, inquiry or trial, but before the date of
conviction in compliance with the provisions of section 428 of the Code. Section 428 confers a benefit on
a convict reducing his liability to undergo imprisonment out of sentence imposed for the period which he
had already served as an under trial prisoner.

Waiver of Right to Appeal:-

 The accused agrees to waive the rights which would accrue to him under the ordinary procedure, in
order to save the State’s resources that would be spent on trial. In exchange for this the State provides him
with a lenient punishment. Also it has been propagated that they deserve a different treatment from those
accused who seek trial involving considerable time, cost and money to the [Link] most common
public policy argument for upholding appeal waiver is to provide finality of judgment and sentences, as
the ultimate objective of plea bargaining is to reduce the caseload in the courts. This could have adverse
implications since plea bargaining arrangement is for mutual benefit to the accused and the State,and if
there is an error in judgment it results in detriment to the accused, and no appeal is provided to remedy
the situation, it is blatant injustice and advantage to the State. Furthermore, the waiver of right to appeal is
a very selfish approach taken up by the State.

Since we know that in criminal cases the offence is considered as against the society, is the reason
the public prosecutor of the State argues on behalf of the victim to get justice. But the concept of plea
bargaining is done to actually reduce the caseload of the State by making reduced sentences and no right
to appeal incase of inadequate bargain as an incentive to save State’s time and resources. As a result it is
only detrimental to the victim and the society as they do not get complete justice as the offender is not
given adequate punishment as has been proposed by the Statute.

Thus, this is a very unethical approach adopted by the State. The other issue is whether plea
bargains tend to get better in superior courts and if they do then, the waived right to appeal would hamper.
This is because the prosecution case sometimes gets stronger in the litigation process and the prosecutor
will offer the accused less incentive to plead guilty.

Thus, even if there is plea bargaining it should not be just at the pre-charging stage without judicial
scrutiny. This is because sometimes in a case although the accused initially resists plea bargaining after
strong evidence is reiterated against him by the prosecutor hemay weigh the possible penalties associated
with the trial versus plea [Link] would lead him to plea bargain with a lesser incentive by the
prosecutor. This would serve the dual purpose of the victim getting justice as well as a speedy trial with
the case being litigated in front of the judge. This process would then do justice to the term speedy trial,
the purpose for which this concept has been introduced.

Thus it can be argued that the concept of guilty plea during the trial should be combined with the
concept of plea bargaining. Hence, one can propose that the following “consensus” model instead of
“concessions' ' model of plea bargaining, will place lesser emphasis on the role of manipulations,
concessions and coercion in producing pleas. It will avoid stressing on the court's mechanism and
safeguarding the rights of the victim simultaneously. Since it focuses less on the concessions on the
sentence of the accused and more on the object and purpose for which plea bargaining was introduced.
There should be a right to appeal and that the accused should not be discriminated against and deprived of
their rights on the ground that they plea bargained.

Procedure of Plea Bargaining:-

A. Application stage:-
1. If an accused wishes to plead guilty voluntarily under the aforementioned provisions, he may move an
application to the concerned court with the details of his case supported by an affidavit declaring that :

a) he is presenting the application voluntarily and

b) he understands the nature of sentence and

c) he has also to declare that he is not a previous convict for the same offence.

2. On receipt of application and affidavit from the accused, the trial court shall issue the notice to the
public prosecutor or the complainant, as the case may be, and to the accused to appear on the date fixed
for the case.

3. The court shall examine the accused in camera and satisfy himself that the accused has given his
application voluntarily and he is eligible for presenting such application.

4. If the court finds that the accused has not given his application voluntarily or he has been convicted
earlier for the same offence then the application shall be rejected and the case shall be sent back for
regular trial.

B. Guidelines for Mutually Satisfactory Disposition:-

S. 265(C) of the Code of Criminal Procedure provides following procedures for the mutually
satisfactory disposition under section 265(B)(4)(a):-

(i) In a case instituted on a Police Report: The court shall issue notice to the Public Prosecutor,
investigating officer, the accused and the victim of the case to participate in the meeting to work out a
satisfactory disposition. Pleader of the accused may be allowed to participate in such a meeting.

(ii) In a case instituted otherwise than a Police Report:The notice shall be issued to the accused and the
victim of the case to participate in the meeting to work out the satisfactory disposition of the case.
Pleaders of the accused or the victim may also be permitted to participate in the meeting on the desire of
the victim or the accused.

In both the above cases the court shall ensure that the disposition is worked out voluntarily.

C. Bargaining/Negotiations stage:-

• When the court finds that :

the accused has not been convicted earlier for the same offence and he is above 18 years of age and he
understands the nature of offence and the proposed sentence ,

• Then the court shall provide time to the public prosecutor or the complainant/victim, as the case may be,
and the accused to work out a mutually satisfactory disposition of the case which may include giving to
the victim by the accused the compensation and other expenses and fix the date of further hearing of the
case.

• For purposes of negotiation and preparing a report, the aid and help of advocates may be taken.

[Link] and report:-

• After receiving such a report, the court shall prepare its own report and take the signature of all the
members who have taken part in such negotiation.

• If no such disposition is worked out, the court shall record such observation and proceed further from
the stage the application was filed in such a case.

E. Judgement:-

Where the satisfactory disposition of the case has been worked out :

(i) The court shall award the compensation to the victim in accordance with the disposition and after
hearing of the parties on the quantum of punishment, release the accused on probation of good conduct or
after admonition U/s. 360 Cr.P.C. or deal with the accused under the Probation of Offenders Act, 1958,

(ii) The court may sentence the accused to half of such minimum punishment provided under the law for
the offence committed by the accused, or

(iii) If a minimum sentence is not provided under the Act, the court may sentence the accused to one
fourth of the punishment provided or extendable, as the case may be, for such offence.

[Link] of judgement:-

The judgment delivered by the court shall be final and no appeal (except the SLP under Article 136
and W.P. under Article 226 and 227 of the Constitution) shall lie in any court against such judgment.

Non-Applications of provisions:-
Under section 265 L of the code of criminal Procedure 1973, Nothing in this Chapter shall apply to
any Juvenile or Child as defined in sub-clause (k) of section 2 of the Juvenile Justice (Care and Protection
of Children) Act, 2000 (56 of 2000).

Concessions for the Accused:-

Plea bargain may have following specific incentives for an accused:

1) The first and foremost incentive is that the accused is not required to wait for a long time.

2) Less expenses, accused can save lot of money on account of advocates fees
3) Less efforts ; It always takes more time and efforts to bring a case to trial than to negotiate and handle
a plea bargain, thus, it requires less efforts

4) Less sentence; Receiving a lighter sentence for less severe charge that might result in taking the case to
trial and losing it is also an obvious advantage. For those who are held in custody and who do not qualify
for release on bail or cannot arrange for bail may get out of jail comparatively sooner.

5) Less tarnished record ; Pleading guilty in exchange for a reduction in the number of charges or the
seriousness of the offences will definitely reflect in a better manner on an accused’s record than the
convictions that might result following trial for all charges .

6) Less Adverse Publicity; a quick disposition of the cases reduces the length of adverse public opinion
against the accused and his family and thus, can save him from a lot of embarrassment.
.
At the same time, some of the persons can view it as an act of remorse on the part of the accused
having a sympathetic approach for him Accused person is free to exercise his right to have a full trial.
They are not required to accept an offer by the prosecutor. A plea agreement usually involves the accused
receiving certain concessions in exchange for a waiver of the trial rights and thereby eliminating the need
for a lengthy trial. Concessions may include being allowed to plead guilty to a lesser offence and
receiving a lenient sentencing recommendation by the court. After acceptance of the plea the accused may
get out of jail within a short time on probation with some obligations.

The provisions also mandate the Court to give accused the benefit of Probation of Offenders Act
wherever it is permissible. Thus, if an admonition or a supervisory order is passed under the Probation of
Offenders Act, 1958, then Section 12 of the said Act provides that it shall not cast any stigma on the
offender. Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an
offence and dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to
the conviction. Thus, the Government employees who are released on probation under the Probation of
offenders Act are saved from the disqualification which is attached to conviction.

The Delhi High Court in the case of Sh. Charan Singh v. M.C.D. has held that no disqualification on
account of conviction could be attached to the petitioner as he had been released on probation. In this
case, the Delhi High Court has quoted the case of Trikha Ram v. V.K. Seth, Wherein the 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.A trial usually requires a much longer wait and causes much more stress than taking a plea
bargain. Lesser sentences getting through a plea bargaining is better for an accused person's record than
conviction that might result following trial. It plays a vital role if the accused is ever convicted in future.

Role of the Prosecutor:-

Like a Judge, a prosecutor with a clogged calendar and a long cause list always finds it difficult to
prepare each case ideally for being presented before the court. This may not be humanly possible as well.
Plea bargaining, being much quicker and requiring less time, tends to lighten the burden of the prosecutor,
affording him an opportunity to do justice to more serious cases by preparing them in an effective
manner. Another benefit to the prosecutor is in the form of assured conviction. Despite long, expensive
and valiant battle, the prosecution may lose the case but then plea bargaining provides him with a respite
in the shape of conviction for a lesser charge or reduced sentence.
 Plea bargain also provides flexibility to the prosecutor in the sense that the prosecutor can offer a
deal to someone whom, though guilty, has given testimony about co-accused or helped in resolution of
ticklish [Link] has a heavy burden to keep the criminals out of streets and innocent out of the
prison. The prosecutor is in a peculiar and very definite sense the servant of the law, the two fold aim of
which is that guilt shall not escape or innocence [Link] prosecutor commits an error it has a disastrous
result, the innocent are castin to the prison while guilty remain free having an opportunity to commit
another crime.

In an ideal world the guilty accused would realize that accepting a plea bargain would allow him to
receive a lesser sentence while the innocent's case, if going to trial, would be acquitted. Unfortunately this
system has many limitations that impede the plea bargaining process. As a trail does not guarantee
convocation or acquittal, the guilty accused may be willing to take chance at trial, which is his right,
which innocent may decide to enter into a plea bargaining believing the evidence against him is [Link]
order to convince to plead guilty and to encourage accused to forgo his right to trial the prosecutor has to
offer various considerations or incentives in sentencing including dropping of some of the charges or a
specific sentences.

Plea bargaining provides an opportunity to the prosecutor by providing a platform to resolve the
criminal proceedings and to remove uncertainty about the outcome of a trial. In trial the burden of proof is
entirely on the government prosecutor to prove each necessary element of the statutory violation against
the accused beyond a reasonable doubt. Criminal litigation carries significant risk for both the prosecution
and the accused. For the Government a trial always carries with it the risk of an acquittal, which in return
may result in a loss of credibility, a negotiated plea bargain relieves uncertainty and gives the parties
some control over the resulting disposition and it is an intelligent way to increase their conviction rates.

First prosecutor’s goal should be to dispose of each case in the fastest and in the most effective
manner in the interest of getting his and the courts work done. Second as an advocate his goal should be
to maximize both the number of convictions and the severity of the sentences that are imposed after
[Link] as a guardian of the public interest has to argue for the adequate punishment to the
offenders.

Prosecutorial Incentives:-

When a prosecutor enters in to plea bargains he is able to handle more cases, conviction rates soar,
more criminals removed from the streets, public confidence in the government raises accordingly and
prosecutor advances his own career through high conviction [Link] incentives lead to the logical
result that prosecutors frequently try to enter plea bargaining agreements.
Ultimately it increases the efficiency of the criminal justice system. Efficiency is achieved through
maximum conviction of the guilt and dismissal of charges against the innocent. Plea bargaining reduces
the time a prosecutor spends on a case and more cases can be handled. Convictions are guaranteed by a
plea bargaining and gains information necessary to indict and convict other criminals.

Factors to be considered:-

The prosecutor bases his decision on whether to proceed to trial or enter into a plea bargaining
arrangement upon many factors; the gravity of the crime, the defendant’s criminal records and
characteristics of the victim and the [Link] exact nature of the crime contributes to bargaining
power of the prosecutor in negotiations. The more horrible the crime, the longer the sentence. The public
will demand for conviction. By going to the plea bargaining even the hesitant prosecutor will ensure
conviction.

If the accused is uneducated or socially disadvantaged, the prosecutor may show leniency. If the
criminal records of the accused are not good it will encourage the prosecutor to expedite the cases and
close it through plea agreement. If the case goes to trial the judge may not get the information about the
criminal records and may get the acquittal order. Evidence the prosecutor has against the defendant is
instrumental in his decision whether or not to pursue a prosecution or to enter a plea bargain. The
prosecutor’s access to evidence is not limited like the trial judge. Prosecutors can evaluate the admissible
and inadmissible evidence in considering whether it is likely that the defendant is guilty, whether to
pursue the prosecution and whether to offer a plea bargain.

Prosecutor represents the State and he should not neglect the interest of the victim while offering a
plea bargaining. In crimes, plea bargaining allows for expedited closure without the victim having to face
the [Link] of information regarding the accused's innocence put the prosecutor in a strange
position in the process of plea bargaining. Here the prosecutor has to offer the same deal to the guilty and
innocent defendant. Finally the information and evidence gathered during investigation separates innocent
from the guilty. Prosecutors have to rely on procedural safeguards to protect the innocent from
conviction.

The safety procedures start as soon as the accused is apprehended, the police arrest the suspect of a
crime,the prosecutor’s office reviews the evidence and the preliminary investigation determines the
existence of probable cause that the accused committed the crime. Finally Judge’s questioning of the
accused in open court and the accused's opportunity to admit or deny the charges serve as the ultimate
safeguard.

In order to close a case without trial the prosecutor may offer strong incentives to the accused. The
plea offered by the accused must come voluntarily without having any threat. Indictment against third
persons if the accused does not agree to plead guilty is also a threat. Prosecutor has to study the mental
condition of the accused while taking admissions on guilt. Accused who claim insanity are unable to
remember events or are mentally handicapped are attributable in large part to the prosecution who persists
in his prosecution in the face of these obstacles to the accused.

The prosecutor has to be very careful as an officer of the court while entering in to a plea agreement
as a representative of the State. It is his duty to assist the court to protect the interest of the innocent
accused and convict the criminals.

Defence Counsel’s Role in Plea Bargaining:-

The Constitution guarantees accused the right to be represented by an [Link] includes right to
effective assistance of counsel, taken with attorney- client privilege, act to ensure that an accused receives
professional advice exclusively from his attorney. Prosecutors have to make all plea offers to the accused
person’s Attorney and not to the accused directly. Defence counsel has to provide effective assistance to
the clients. As a result, the defence council is the only party who knows all the information necessary to
assess the case and to recommend the best course to his client. Counsel has to inform about the
consequences of pleading guilty and trial decisions.

It is the duty of the accused to appoint a well read and competent advocate to argue in the court by
paying good financial incentives. Prosecutors exert pressure on defense counsels to accept plea offers. As
the defense lawyers and prosecutors are trying cases against each other every day each often feels
pressure to accept offers made by the other. As both have no confidence in the outcome of the trial the
uncertainty element of the trial act as an incentive to enter into plea bargaining.

Generally defense advocates will get better information than the prosecutor regarding clients
factual [Link] the defense lawyer faces both factually guilty and innocent defendants, has to decide
whether to opt for plea bargaining or to go a [Link] Factually guilty client plea bargaining is a more
desirable route than trying a case. After assessing the risk of conviction at trial he has to determine the
course.

Role of the Trial Judges:-

Crowded calendars and loaded cases have made the job of Judges quite cumbersome. The scheme of
plea bargaining can prove a bonanza in this respect because a pretty good number of cases can be
resolved without lengthy examination, cross examination of witnesses and long arguments. Time so saved
can definitely be utilized for imparting qualitative justice in more serious cases. This can ultimately
enhance the prestige of the judiciary as well as the faith of common man in the efficacy of the system The
Court and trial judges also have an interest in the plea negotiation .
Generally the court is not and should not be a party to the plea negotiation, by accepting plea
bargaining and taking seriously stipulated sentencing negotiations, the court encourages the early and
expeditions resolution of the criminal process. This early resolution thereby eases the strain on
overscheduled dockets, preserves public funds and promotes judicial efficiency. The judge's role is not
that of one of the parties to the negotiation but that of an independent examiner to verify that the accused
plea is the result of an intelligent and knowing choice and not based on misapprehension or the product of
coercion. In a guilty plea trial judges never impose a more severe sentence than that recommended by the
prosecutors at the same time the prosecutor cannot bind the court regarding the quantum of sentences.

The trial judge’s role during the proceedings should be essentially passive. He should not offer
advice to the accused or to the prosecutor concerning the decisions that each must take and should not
comment on the strength of the evidence or likelihood of conviction at [Link] this process of reciprocal
give and take policy of plea bargaining between prosecutor and the defense council finally the judge
relinquishes his right to facilitate the truth finding process in exchange for the certainty that his decision
will not be subjected to reversible [Link] this process of plea bargaining the judge, prosecutor and
defense attorneys are similarly situated in that each have a mutual interest in reducing the uncertainty. In
the absence of trial proceedings the courts are reducing the total number of reversible errors committed by
judges.

The United Nations General Assembly adopted the declaration of “Basic principles of Justice for
Victims of Crime and Abuse of Power '' in [Link] recognized four major components of rights of victims
of crime
a) access to justice and fair treatment
b) restitution
c) compensation and
d) assistance.
Under the United Nations Declaration the onus is on the State to “Endeavour to provide financial
compensation , to both victims who have suffered bodily injury or impairment of physical or mental
health as a result of serious crimes, as well as the family of those who have died as a result of
victimization”.

In Indian legal system there is neither comprehensive legislation nor a statutory scheme providing
for compensation by the State to victims of crime. The State generally makes to the innocent victims of
violence and major accident, ex-gratia payment, which is not only ad-hoc and discretionary, but also
inadequate. Under the Criminal Procedure Code 1973, section 357 (3) empowers the Court to order the
accused to pay compensation to the victim in case of loss or injury to the victim. This compensation is
other than the fine imposed by the court. This compensation has to be paid by the accused. In awarding
compensation the capacity of the accused to pay has to be determined.

This was not found to be enough in the present environment of plea bargaining and therefore the
Law Commission in its 142nd Report, in the context of its recommendations for plea bargaining,
recommended amendment in section 357 and inserting a new provision as section 357 A. The same was
inserted in the Code of Criminal Procedure 1973 by the Code of Criminal Procedure (Amendment) Act,
2008. This provision has been called the Victim compensation scheme. If it is not possible for the accused
to pay the compensation because of poverty or of any other reason, under section 357-A Every
Stategovernment in coordination with the central government has to prepare a fund for the purpose of
compensation to the victim or his dependents who have suffered loss or injury as a result of crime and
who require rehabilitation.

In such cases District Legal Service Authority orState Legal Service Authority shall decide the
quantum of amount of compensation to be awarded under the [Link] amount of compensation must
be reasonable one and it depends on facts and circumstance of the [Link] 5 of the Probation of
Offenders Act 1958 also provides that court directing the release of an offender also has to direct him to
pay such compensation as the court thinks reasonable for the loss or injury caused to any person by the
offender.

In Rudul Shah v. State of Bihar the Supreme Court of India articulated the concept of
“Compensatory Jurisprudence” for the flagrant infringement of fundamental rights implicit in Article 21
of the Constitution. Where in State has been held vicariously responsible for crimes committed by its
officers and asked to compensate victims whether it is a sovereign or non-sovereign [Link]
bargaining process recognizes the victims right to get compensation from the accused. Accused while
entering a plea agreement has to make a provision for the [Link] bargaining has canvassed
“Victim oriented reform” to the criminal justice administration.

Victim has now moved from being a “forgotten actor” to becoming a key player in the criminal
justice process. The rights of the victim are better upheld as they can bargain over the court decisions.
The problem arises only when the accused has nothing in his hand to [Link] this process all stakeholders
of the agreement are getting incentives in return they are giving something. Both accused and the victim
are getting some benefits in the form of reduced sentences of imprisonment and compensation
respectively. Judge, Prosecutors and Defense counsels are similarly situated in that each has a mutual
interest in reducing the uncertainty at the trial process.
Considerations to the Victim:-

The process of plea bargaining includes payment of compensation to the victim. In a welfare State,
the rights of each person has to be protected by the State so that status quo can be [Link] are
ample provisions in all legal systems for the protection of the accused. But the sufferer of the crime was
neglected. ‘Victim’ means a person suffering, injured or destroyed by the action of another that may be as
a result of the event or circumstance.

Protection available to abused:-

• Section 12 of the Probation of Offenders Act, 1958 provides that a person found guilty of an offence and
dealt with under section 3 or 4 of the said Act, shall not suffer any disqualification attached to the
conviction.

• The Government employees who are released on probation under the Probation of offenders Act are
saved from the disqualification which is attached to conviction in view of Charan Singh Vs. M.C.D. (Writ
Petition (Civil) No. 18725/2005) decided on 05/10/2006 .

• The major cause of concern for the accused in case of plea of guilt is that the same should not be used
against him. Section 265-K provides that the statements or facts stated by an accused in an application for
plea bargaining file under section 265-B shall not be used for any other purpose except for the purpose of
this Chapter.

View of Supreme Court Prior to the Legislation:-

In India, the concept of Plea Bargaining was not recognized by courts and it was considered to be
against public policy.

In Murlidhar Meghraj Loya v. State of Maharashtra; AIR 1976 SC 1929, 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; (1980) 3 SCC 120, the court held that-

“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. Chandrika; AIR 2000 SC 164, the court held that-
 “It is settled law that on the basis of plea bargaining, the Court cannot dispose of the criminal cases.
Mere acceptance or admission of guilt should not be a ground for reduction of sentence. Nor can the
accused bargain with the Court that as he is pleading guilty the sentence be reduced.”

Keeping in view the huge arrears and inordinate delays in disposal of criminal cases and on the
recommendations of the Malimath Committee, a new chapter XXI-A of Plea Bargaining has been added
to the Code of Criminal Procedure.

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.

When are plea bargains made?

A plea bargain may be made by an accused when-

(a) The report has been forwarded by the officer in charge of the police station under s. 173 Cr.P.C.
alleging therein that an offence appears to have been committed by him other than an offence for which
the punishment of death or of imprisonment for a term exceeding seven years has been provided under the
law for the time being in force; or

(b) A Magistrate has taken cognizance of an offence on complaint, other than an offence for which the
punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has
been provided under the law for the time being in force, and after examining complaint and witnesses
under Section 200, issued the process under s. 204.
Who can file an application for plea bargaining?

1. Any accused person above the age of 18 years and against whom a trial is pending, can file an
application for plea [Link], there are some exceptions to this general rule.

[Link] offence against the accused should carry a maximum sentence of less than 7 years.

3. The offence should not have been committed by the accused against a woman or a child below the age
of 14 years.

[Link] accused should not have been covered under Section 2(k) of the Juvenile Justice (Care and
Protection of Children) Act, 2000.

[Link] accused should not have earlier been convicted for the same offence.

[Link] offence should not affect the socio economic condition of the country.

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.

Application of Plea Bargaining:-

Section 265-A of the Code of Criminal Procedure 1973 lays out the applicability of plea bargaining
mechanism. The process commences when the accused above the age of 18 years files an application for
plea bargaining before the commencement of the trial in a Court where the case is pending. This
mechanism has to be used in criminal cases where

a) Punishment is below seven years and

b) Accused is not previously convicted for the same offence,

c) Offences are not affecting socio-economic conditions of the country and

d) The offence is not against a woman or a child below the age of 14 years.

Benefits of Plea Bargaining:-

It can be claimed in two circumstances;

Firstly,If a report is forwarded by the officer in charge of the police station after the completion of
investigation to the magistrate under Section 173 of the Code 9 alleging there in that an offence appears
to have been committed by an accused other than an offence for which punishment of death or life
imprisonment or more than seven years imprisonment has been provided by the law.

Secondly,If the magistrate has taken cognizance of an offence on complaint under Section 190 (1) of
the Code followed by examination of a complainant and witness under Section 200 and issuance of
process under section 204 which means, after commencement of proceedings upon a private complaint.
Subsection (2) of section 265 A of the Code confers power on the central government to determine those
offences under the law that affect socio-economic condition of the Country and notify the same for the
purpose of applications of the concept of plea [Link] provision loses out the very objective of
introducing plea bargaining.

One of the reasons for the introduction of plea bargaining was due to back logging in cases which
resulted in delay in justice. The applicability in this section is restricted to offences for which punishment
is less than seven years. The provision has excluded those crimes for which the punishment of death or
imprisonment for life or punishment for more than seven years is provided by the law. If the accused is
guilty of an offence for which punishment is more than seven years he is not provided the right to plea
bargaining. But in United States jurisdiction this care of not allowing plea bargaining for very serious
crimes is not taken off and even for heinous crimes accused is allowed to plea bargain.
It shows that in India plea bargaining is not available in case of heinous crimes and it is available
only in those offences which are triable only by the magistrates. Applicability is restricted to certain
offences of lesser gravity. Socio-Economic offences cover many legislations starting from Dowry
Prohibition Act 1961 to the recent Protection of Women from Domestic Violence Act 2005. For the
crimes under these 16 Statutes there is no provision for plea bargaining. Where the offences are
compoundable, the process of plea bargaining may not add improvement. Many charges were kept
beyond scope of the process of plea bargaining. A very few sections of crimes besides petty cases like a
scuffle, misappropriation of accounts, forgery, defamation and other offences can be solved with the
mutual consent of both the parties using the law of plea bargaining. When plea bargaining is not
applicable to a large number of Statutes, the very purpose of the Amendment in reducing the caseload is
lost. Another concern is about those offences where a minimum sentence is prescribed by the law.

In Kirpal v. State of Haryana where in on the basis of plea bargaining the trial court sentenced the
petitioner to the period already undergone but the High Court enhanced the sentence to the minimum
prescribed under law being rigorous imprisonment for seven years, the Supreme Court observed that,
neither the trial court nor the High Court has the jurisdiction to bypass the minimum limit prescribed by
law on the premise that a plea bargaining was adopted by the accused.

Here too the applicability of plea bargaining is very much restricted, since a person who has
committed an offence for which the minimum punishment is lesser than seven years cannot take recourse
to plea bargaining if the minimum punishment is prescribed by law. Subsection (2) of Section 265(A) of
the Code confers arbitrary power to the Government to decide those offences which constitute socio-
economic offences. There are no guidelines in the system laying down the basis for classifying offences
as socio economic offences. This could later result in the violation of Article 14 of the Constitution in
case an accused feels that the classification is arbitrary and discriminatory. It is specifically made clear by
Section 265-L of the Code that the option of going for plea bargaining is not available to juveniles.

Juvenile Justice (Care and Protection of Children) Act 2000 will protect the rights of the juveniles. It
means whether a child is an offender or victim the system of plea bargaining is not applicable. Juveniles
are not allowed to plea bargain. This is because juveniles are not to be treated as offenders under the said
legislation. If allowed to plea bargaining, the whole purpose of the Act will be defeated.

Laws where Plea-Bargaining is applicable:-

1. The Arms Act, 1959, where punishment is minimum three years imprisonment which may be extended
up to seven years.

2. The Representation of people Act, 1951, where punishment is imprisonment for a term which may be
extended up to three years or fine or both.

3. The Prevention of Corruption Act, 1988, where punishment is minimum six month imprisonment
which may be extended up to seven years.

4. The Negotiable Instrument Act, 1881, where punishment is imprisonment for a term which may be
extended up to two years.

5. Criminal Law (Amendment) Act, 1957, Section 17(1) where punishment is imprisonment for a term
which may be extended up to six month or fine or both. Section 17(2) where punishment is imprisonment
for a term which may be extended up to three years or fine or both.

6. Also various other Acts in which plea-bargaining is applicable are, The Drugs and Cosmetics Act,
1940, The Electricity Act, 2003, The Essential Commodities Act, 1955 etc.

Efforts of National Legal Services Authority:-

The National Legal Services Authority (NALSA) created under the Legal Services Act is responsible
for providing legal aid to needy under-trial prisoners and facilitating ADR mechanisms. It is supported by
the State and District units. ; NALSA has taken up the task of creating awareness about the provisions of
Plea Bargaining among the legal fraternity and the public at large through its units. It has launched a
programme of arranging periodical seminars, workshops and discussions at the district and state level.
The Bihar State Legal Services Authority took up a programme of educating the under-trial prisoners
about plea bargaining. Equipped with posters, banners and leaflets it took quite a good number of sessions
in the Khudiram Central Jail, Muzaffarpur making the inmates aware of the provision.

The process was repeated in Beur Control Jail at [Link] per directions of the Goa State Legal
Service Authority its district units are holding periodical seminars and workshops. The South Goa District
Legal Service Authority, Madgaon has come up with good suggestions like the number of times a person
can take benefit of the scheme should be increased; awareness in the public needs to be created; camps
should be organized in jails; there should be a system of counseling for the offenders; and more
importantly the punishment for offences attracting imprisonment of less than three years should be
disposed of by imposing fines only.

In Karnataka only 247 cases have been decided on the basis of plea bargaining in the last five
years.114 In Gujarat also during 2006 to 2010 only 22 cases have been reported and solved in the State
that too in the court of chief metropolitan magistrate in Ahmedabad. Courts in most of the other cities
including Gandhi nagar,Vadodara and Rajkot have never registered a case for plea bargaining. It is
estimated that around 21.5 lakh cases are awaiting trial in Gujarat.

Causes for Under Use of Plea Bargaining:-

In most of the subordinate courts in India, the use of a plea bargaining system to reduce the backlog
is not satisfactory one. The above referred tables show very poor use of plea bargaining for disposal of
cases. Definitely the object with which legislators introduced plea bargaining ten years ago is not even
slightly achieved. There are many reasons for the use of the concept. The main reason is lack of
awareness amongst accused, lawyers, and public prosecutors and even sometimes amongst judges.
Reasons behind poor use of plea bargaining are;

a) Unawareness regarding the importance of the provisions of plea bargaining in public at large.

b) Higher rate of acquittal in criminal cases. In India the conviction rate is very low compared to other
States. It is only 42% in India but conviction rate in China is 96%, Japan 98%, Korea 90%, Canada 69%,
Australia 78%. In our Country the witnesses are not willing to visit the witness box to narrate or describe
and unfold the actual happenings of the incident. Reasons for such an attitude are extraneous force,
influence and consideration, lack of witness protection, dilatory investigation, long gap between date of
crime and date of trial. When the accused is under the impression that the witness will not tell anything
about the incident in question then there is no fun in filing an application to invoke the provision of plea
bargaining. When acquittal is sure no accused will think about a sure conviction in a plea bargaining
process.

c. Reluctance of advocates to advise their client for opting plea bargaining.

d. Hostility of witness during trial

e. Sure conviction after entering into a plea bargaining agreement leaving black spot on the accused's
future life.

f. Reluctance of prosecution and judicial officers to encourage the accused persons for plea bargaining.

g. Coercive and corrupt practices during the Investigation process by the police officers.
h. Risk of prejudice against the accused. The failure to make confidential in any order passed by the court
while rejecting an application could also create prejudice against the accused.

i. The examination of the accused in camera as opposed to open court may lead to public cynicism and
distrust for the plea bargaining system.

j. Magistrate may be biased against the accused as in the event of the application being rejected they may
well oversee the trial knowing that the accused was previously prepared to plead guilty. This is clearly
unfair to the accused and by knowing this accused may not go for plea bargaining.
Pitfalls in the Process of Plea Bargaining:-

Apart from these reasons there are some major pitfalls or lacunae in the process of plea bargaining
which need to be addressed. The concept undoubtedly gave a new facet to the criminal justice system and
the provisions under Chapter XXI- A of the Criminal procedure Code 1973, are of such nature that they
need to be reanalyzed in the light of the practical problems undergone by the accused.

a) The justification for plea bargaining is the high rate of acquittal in criminal cases. However it lures the
poor, illiterate and innocent accused to choose it because of its nature and therefore pressurize him to cut
short his other Constitutional remedies.

b) In spite of the provision that the statements of the accused cannot be used for any other purpose the
system allows coercion by the State Government or the police officers over the accused to a certain
degree.

c) There is no provision for the withdrawal of an application of plea bargaining made under section 265-B
of the Cr.P.C. Once the application is made it will become mandatory for the accused to go for it. It will
become mandatory for the accused to go with the process.

d) In the second provision of section 265 C(a) the accused has discretion to appear though his advocate.
However no such right has been given to the victim and therefore does not enable the victim to participate
effectively in the plea bargaining proceeding when the case is instituted on a police report.

e) Judicial discretion is not given to the Court for the amount of compensation. Under the present law, the
amount has to be determined in accordance with the disposition made under section 265-D of the Cr.P.C.

f) Relating to sentencing policy the concept of plea bargaining undermines the public confidence in the
criminal administration system and as a result it will lead to conviction of innocence. Inconsistent
penalties for similar crimes and lighter penalties for the rich will affect the interest of the society in giving
appropriate punishment for crimes.

g) System is against theories of punishment. The institution of plea bargaining is against theories of
punishment such as determined, retribution and proportionality as criminals spend less time in jails.

h) By involving the Court in the plea bargaining process there will be manipulation of the judicial system
and impartially may be questioned. If the police are involved in the process it would invite coercion. By
involving victims in the process the corruption may take up its head in the system. There may be chances
of abuse of power by the prosecutor. It will also increase the risk of wrongful conviction and would result
in offenders receiving lenient sentences.

i) A process for reviewing illegal or unethical bargaining does exist. Though it may be noted that Article-
136 of the Constitution does not confer a right of appeal on a party as such but confers a wide
discretionary power on the Supreme Court to grant special leave. Also thought the remedy under Articles
226 and 227 of the Constitution can be made use of, it is unclear whether victim of the offence can utilize
this remedy .
j) If the guilty application is rejected then the accused would face great hardship to prove himself
innocent.

k) Offenders are disposed of undeterred, untreated and with minimal regard for public safety.

l) By sidestepping formal court proceedings and due process, plea bargaining allows unconstitutional
practices to go unchecked.

m) Bartered guilty pleas are not evidence of genuine repentance for crime and the acceptance of the
legitimacy of punishment, or the potential for rehabilitation.

n) Plea bargaining is destructive of the advisory method of justice, which is the cornerstone of the
criminal justice system in a free society. The adversary system breaks down in plea bargaining because
the prosecutor, defence counsel and the judge act in their own best interests rather than on behalf of the
people, the victim and justice.

o) Outcome of cases depends on the personal interests and administrative convenience of the practitioners
and in which sentences are unrelated to the crimes committed or to the accused genuine correctional
needs.

p) In a bargain situation, the whole truth of the matter might not come. Plea bargaining is at its budding
stage in our country and there are other causes of concern that the law makers need to consider while
making further amendments. The process may lead to poor police investigations and cases may not get
enough time and proper attention and for this reason cases may not be prepared well. This may become a
tendency for the investigating officers and others concerned to rely on plea bargaining instead of
investigating the truth.

EXCEPTIONS TO PLEA-BARGAINING:-

Under the Indian Penal Code, 1860, offences under Section 115, 119, 302, 304, 304-B, 305, 307,
498, 498A and various other offences where plea-bargaining is not applicable. Offences affecting the
Socioeconomic condition, like Dowry Prohibition Act 1961, The Commission of Sati Prevention Act,
1987, The Immoral Traffic (Prevention) Act, 1956, The Army Act, 1950, The Explosives Act, 1884 etc.
are also excluded from the purview of plea-bargaining, acquittal or a more serious punishment.

Plea bargaining, as most criminal justice reformers believe, is more suitable, flexible and better fitted
to the needs of society, as it might be helpful in recurring admissions in cases where it might be difficult
to prove the charge laid against the accused. The idea of plea bargaining or mutually satisfactory
disposition is to avoid expenses, unpredictable trials and the potential for harassment in all the small and
medium crimes. It reduces the flow of criminal cases in the system and saves the time, resources and
energy of the system managers to deal with serious crimes, which threaten national security and may
cause large-scale damage to life and property.
It is a device to ensure the victims receive acceptable justice in reasonable time without risking the
prospects of hostile witnesses, inordinate delay and unaffordable costs. It reduces the arrears and
pendency in the system by diverting to large numbers of crimes for alternative settlement without trial
under control of Court to ensure fairness in the process.6 This practice is prevalent in western countries,
particularly the United States, England, and Australia. In the U.S .Plea bargaining has gained very high
popularity, whereas it is used only in a restricted sense in the other two countries.

On the recommendations of the Malimath Committee,8 Code of Criminal Procedure has been
recently amended by adding Chapter XXIA, consisting of 12 sections (sec 265-A to 265 L). The Central
Government has notified the socio-economic condition of the country, which has been kept out of the
purview of the plea bargaining. Not only will it expedite the disposal of cases, it may also result in
adequate compensation for the victim of crime, since he along with the prosecutor will be in a position to
bargain with the accused. In the present chapter an attempt has been made to discuss the emerging
concept of plea bargaining in the criminal justice system and its types, reasons, justification etc in the
light of decided case laws along with the study of the Law Commission of India.

Relevant Case Laws:-

Judicial trends pre amendments:-

Because so much of plea bargaining occurs behind the scenes, critics further argue that the above
abuses go largely unchecked, and, consequently, the risk of convicting innocent defendants may increase.
To some limited purposes sentence bargaining has been applied almost regularly in India in cases where
changing the nature of punishment and reducing the quantum of sentence was within the discretionary
power of the trial courts. Constitutionality and legality of ‘sentence bargaining’ so resorted to by Indian
courts have been examined by the apex courts in several cases.

Position and the Uses of Plea Bargaining:-

First Plea Rejected: Mr Sakharam Bandekar, a grade I employee of Reserve Bank of India was accused
of misappropriation of 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. The CBI arrested him on October 24, 1997
and released on bail in November. The Court of special CBI formed charges on March 2, 2007. The
accused made an application for plea bargaining on the grounds of old age, and tried to take advantage of
the just passed amendment to criminal law providing for this new process. The CBI opposed the plea
bargaining attempt by saying,

“the accused is facing serious charges and plea bargaining should not be allowed in such cases of
corruption. The process may please everyone except the distant victims and the silent society.”

Agreeing with the CBI’s reasoning the court rejected Bandeker’s application.

a) Vijay Moses Das v. CBI :- The second reported case from Uttarakhand was successful. A person who
was accused of supplying substantial material to Oil and Natural Gas Corporation and that too at a wrong
post causing immense losses to ONGC sought the plea bargaining. The CBI investigated and initiated
prosecution under sections 420, 468 and 471 of IPC. Accused proposed plea bargaining and ONGC
(victim) and CBI(prosecution)had no objection to such a request, but the trial court rejected on the ground
that the affidavit under section 265 B was not filed. Then the Uttarakhand High Court hearing the
criminal miscellaneous application directed the trial court to accept the plea bargaining application.
In Mumbai a magistrate’s court on 25th May 2011 accepted a plea bargain application and convicted
four foreign nationals who were accused of stealing diamonds worth Rs 6.6 crore at an international
Jewelry show in the year 2010 October to 21 month rigorous imprisonment. The maximum punishment in
such cases is usually seven years. The foreigners were Mexicans and one Venezuelan convicted by the
37th Esplanade Court after they had pleaded guilty to their offence and sought a plea bargain under the
provisions of the Cr.P.C.

b) David Headly case :-Pakistani American David Headly 49 year old, Lashkor & Toiba operative
charged with conspiracy in Mumbai terror attack has pleaded guilty before the American court to bargain
for a lighter sentence to avoid capital punishment. He moved the plea bargain at a court in Chicago. He
was facing a charge of conspiracy involving damaging public places, murdering and maiming persons in
India and providing material support to foreign terrorist plots and abetting the murder of American
citizens in India.
In India plea bargaining is not allowed in such serious anti national crimes. Now David Headly is
facing 30 years of imprisonment in American Jails and appeared as ‘approver’ in the trial related to the
terrorist attack in Mumbai Session Court.

c) State of Gujarat v. Natwar Harchadi Thakur :-The High Court of Gujarat observed in this case that
very object of law is to provide easy, cheap and expeditions justice by resolution of disputes including the
trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in
the administration of law and justice fundamental reforms are inevitable. There should not be anything
static .It will add a new dimension in the realm of judicial reforms.

d) Brijlal Amarbanshi v. State of Maharashtra In this case charge was framed on 19.6.2007. At that
time the appellants pleaded not guilty. After some time, however, on some advice they jointly pleaded
guilty whereupon the court convicted them and imposed full sentence. The accused persons appealed to
the High Court praying for remand of the case on the ground that they did not understand the implication
of their pleading guilty, they would not have pleaded guilty had they understood that thereafter the
sentence would be so severe: and the plea-bargaining was held to be unconstitutional and illegal way back
in 1980 and hence the trial court ought not have accepted their guilty plea. The Special Judge informed
the accused persons that if they insist on pleading guilty, they would suffer sentence according to law and
even they would not be able to prefer appeal. The Bombay High Court (Nagpur Bench) stated the law
regarding pleading guilty (perhaps in terms of section 229,230, 240 and 241 of the Code) as follows :

“Ordinarily in serious offence, plead guilty is to be avoided and it is desirable to direct that the case
should be tried. Even if plea is recorded which would be done by distinctly putting to the accused each
fact alleged in charge, which if proved, would constitute an offence. Yet even on observing these
safeguards, the court would not be relieved from its duty of being satisfied that the guilty was made by the
accused upon fully understanding the repercussions and with free will, and is genuine and not due to
misunderstanding and it would be to have the accused being tried. It is also to be ensured that the
accused are duly represented through Advocate.”

Observing that the guilty plea in question was neither voluntary, nor understanding nor in the form
of admission or confession of each fact and act which constitute ingredients of offence charged, accused
persons did not understand or misunderstood the implication of their pleading guilty and what the accused
had admitted was the whole parcel of charge which police have made against them, and this type of plea
of guilt is not an admission of facts, held the plea to be not valid. The appeal was allowed and the matter
was remanded for fresh trial. It is to be noted that the charge was framed after the provision of plea
bargaining in the Cr.P.C. had come into force.
 Hence the case was within the purview of the [Link] A of the Cr.P.C. The case having been
decided after coming into force of the Chapter XXI A of the Code, and the whole being whether the plea
of guilty was valid and acceptable for lenient sentencing, the courts should have examined the matter
from this angle also. Unfortunately that has not been done.

a) Raju Diwalu Uketone v. State of Maharashtra In this case surprisingly the same Nagpur Bench as
late as in 2009 negatived applicability of the provisions of plea bargaining to an offence under section
376, IPC not on the basis that the offence called for imprisonment of not less than 7 seven years which
puts it beyond purview of plea bargaining but on the ground that the Supreme Court in State of Uttar
Pradesh v. Chandrik held that the concept of plea bargaining is not recognized and is against public policy
under our criminal justice system. The Supreme Court was right to hold what it did in the year 2000, but
to blindly follow the same in 2009 even after introduction of plea bargaining on the statute book speaks
for itself.

b) Re: 122 Prisoners In this case the detention of under-trial prisoners exceeded the prescribed period.
The State tried to explain the delay on the ground that there was no adequate machinery to produce them
before the Court. Court took a serious view thereof and suggested recourse to S. 436-A and methods such
as 'plea bargaining'. The plight of such under-trial prisoners was sadly commented upon by the Kerala
High Court. The Court observed :

“On hearing both sides, it appears that the main cause for the unwarranted detention of the under-
trial prisoners is their non-production in Court, due to want of sufficient police escort, as alleged by the
prisoners. It is also an admitted fact that there is difficulty in providing adequate police escort on all
occasions, for want of sufficient police men.”

“Resultantly, prisoners continue to remain within the four walls of different jails in despair, awaiting
their long-overdue production before the Court, for want of police escort from jail to Court. The voice of
the several Magistrate Courts in the State in this regard also seems to be unheard by the State machinery.
No one seems to be prepared to take up the burden for the failure, except shirking the responsibility from
shoulder to shoulder. This shall not continue any longer, especially since serious violations of the
fundamental rights of the citizens are involved in the matter. No fundamental right shall ever be denied to
any prisoner, except to the extent deprived of by law, for the mere reason that he is a prisoner. A prisoner
does not cease to have his Constitutional right except to the extent he has been deprived of it in
accordance with law".

The Supreme Court in Nilabati Behera v. State of Orissa, (1993 (2) SCC 746): (1993 Cri LJ
2899) observed that the wrongdoer is accountable and the State is responsible if the person in custody is
deprived of his life except according to the procedure established by law. The Supreme Court, in R. D,
Upadhyay v. State of A. P. (2001 (1) SCC 437), observed in a case of violation of fundamental rights of
the prisoners at the hands of the State, as follows:

"All that the Courts can do in such cases is to award such sums of money, which may appear to be
giving some reasonable compensation, assessed with moderation, to express the Court's condemnation of
the tortious act committed by the State."

The Supreme Court continued to observe thus:

 "the compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the
breach of its public law duty and is independent of the rights available to the aggrieved party to claim
compensation under the private law in an action based on tort, through a suit instituted in a Court of
competent jurisdiction or/ and prosecute the offender under the penal law".

Ordering costs and damages against the State is only one of the solutions to compel the State to
discharge its duty. As pointed out by learned Amicus Curiae, Mr. C. S. Dias, there are provisions in the
Code itself to prevent such state of affairs to certain extent. There is also machinery in the state to check
unnecessary overcrowding of the under trial prisoners in the jails. ... Therefore, it sounded like a myth
when submissions were made by the Amicus Curiae that even now there are several under trial prisoners
who have been in custody for more than the maximum period prescribed under section 436 A of the
Code. But, the myth is an awful reality now, as per the statement of the Director General of Police
(Prisons). As pointed out by learned Amicus Curiae, application of Section 436 of the Code by the
criminal Courts will be one of the remedies for this evil.

Section 436 A provides for the maximum period for which an under trial prisoner can be detained.
Where a person has, during the period of investigation, inquiry or trial under this Code of an offence
under any law, (excluding offence for which punishment of death has been specified as one of the
punishments under that law), undergone detention for a period extending up to one-half of the maximum
period of imprisonment specified for that offence under that law, he shall be released by the Court on his
personal bond with or without sureties.
It is also provided under section 436 A of the Code that no person shall in any case be detained
during the period of investigation, inquiry or trial for more than the maximum period of imprisonment
provided for the said offence under that law. In computing the period of detention under this section for
granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be
excluded. Yet, as per the first proviso to section 436 A, the Court may order continued detention of a
person for a period longer than one-half of the said period or release him on bail, instead of the personal
bond with or without sureties, after hearing the Public Prosecutor, and for reasons to be recorded by the
Court in writing.

It is also relevant to make reference to section 437(6) of the Code, in this context. As per sub-section
(6) of section 437 of the Code, in any case triable by a Magistrate, if the trial of a person accused of any
non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody during the whole of the said period, be released
on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate
otherwise directs.

So, the normal rule is to release a prisoner on bail, who has completed such sixty days of detention
as specified above unless the Court otherwise directs. The rule is mandatory in nature, as indicated by the
expression "shall" in the provision itself. But, if any such prisoner is to be detained any further in prison,
it shall be done only as per a specific order passed by the Magistrate in writing, recording reasons for the
continued detention. Thus, it follows that if any prisoner is detained in any of the prisons in the State for
more than the period stated in section 437(6) of the Code, without any reasoned order in writing for the
continued detention; such detention is unauthorised and illegal. Such a prisoner deserves immediate
release from prison, subject to what has been laid down in Section 437(6) of the Code. Noticing
inadequate number of Magistrate courts in the State and their pathetic working conditions, the Court also
suggested recourse to the "Plea Bargaining":
 “Therefore, I take this as an occasion to remind the Magistrate Court about the important
amendments introduced into the Code by which "plea-bargaining" has become possible now which can,
to a certain extent, check the evil of a long period of detention of prisoners during trial. This may help the
Courts to reach a finality of the proceedings in appropriate cases, without going through the ordinary
time-consuming procedure in a trial. The Criminal Court of the State shall therefore, consider the
possibility of invoking provisions laid down for "plea-bargaining", in appropriate cases.”

c) Anupam Sharma v. NCT of Delhi The Delhi High Court in this case likened plea bargaining to
mediation and advocated its application as a measure to lighten docket explosion. The Court observed :

“'Restorative justice' may be used as a synonym for mediation. The object and nature of restorative
justice aims at restoring the interest of the victim. Involvement of the victim in the settlement process is
welcome in the process of restorative justice. It is a process of voluntary negotiation and concentration
(sick consultation), directly or indirectly between the offender and the victim.”

d) Gurcharan Singh v. State through the MCD In this case noticing the debilitating effect of prolonged
and delayed trial the Delhi High Court commended introduction of Plea bargaining in the criminal justice
delivery system. The Court observed:

“However, the Court, in my opinion, cannot lose sight of the debilitating effect of a prolonged and
delayed trial, upon the petitioner. This aspect has to assume some importance, because the offender, the
nature of the offence, and the propensity to crime, in such cases, are relevant factors to be kept in mind,
while engaging in the sentencing process. Modern trends in penology point to adoption of a reformative
oriented approach by the Court; in India, circumstantial flexibility has been injected by introduction of
Plea bargaining in respect of lesser offences.”

e) Rajinder Kumar Sharma v. The State The underlying theme of introducing the concept of Plea
bargaining in Indian criminal delivery system was nicely analysed by the Delhi High
[Link] first, unintentional and chance offence attracting the provisions of Plea bargaining
from a pre-meditated and coolly planned offence though attracting less than seven years imprisonment, it
was observed:

“Recently, the legislature has introduced plea bargaining under law so as to benefit such accused
persons who repent upon their criminal act and are prepared to suffer some punishment for the act. The
purpose of plea bargaining is also to see that the criminals who admit their guilt and repent upon, a
lenient view should be taken while awarding punishment to them. But the legislature has not thought it
proper to give right to the individual to compound any offence and every offence in which loss to
individual is also involved. When a person goes to the extent of opening fake accounts, putting fake
signatures and getting cheques encashed on the basis of forged signatures, this shows his criminal bent of
mind. If he is really repent full, he must undergo some punishment for his crime committed and the
sufferance which he made to society.”

f) Govt of NCT of Delhi v. Robin Singh The Delhi High Court noted its optimism about the future of
Plea bargaining observing:
 “Today, with plea bargaining being a well-recognized facet of the administration of criminal law
and a part of criminal jurisprudence in India, we do perceive a large ' number of cases involving
thousands and thousands throughout the country, appearing before the Summary Courts and paying
small amounts of fine, more often than not, as a measure of plea bargaining. Foremost would be amongst
them petty crimes committed mostly by the young and/or the inexperienced. Some may even undergo a
petty sentence of imprisonment of a week or ten days.”

g) Pardeep Gupta v. State In this case the accused was charged with offences under sections
420/468/471/34 the Indian Penal Code. His application for plea bargaining was rejected by the trial court
on the ground that the accused was involved in an offence under Section 120 B of the IPC and his role
was not lesser than the other co-accused. The Delhi High Court took exception observing that none of the
offences attracted more than seven years punishment and therefore were covered by Chapter XXI A of
the Cr. P.C. and set aside the judgment of the trial court and directed it to consider the accused's
application for plea bargaining.

h) Sakti Pado Gope v. The State of Jharkhand In this case the Jharkhand High Court has set an
example by reducing the sentence applying provisions of plea bargaining to offence under section 148 of
the IPC.

i) State of Gujarat v. Jayantibhai Chaturbhai Patel In this case when the accused were charged with
offences under section 3, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 and summons were
ordered to be issued, and issued on the same date, accused filed their Vakalatnama on the same date, they
pleaded guilty and the court recorded it on the same date and imposed minor fine and imprisonment of ten
days on the same date; the High Court observed that this sequence of events and proceeding clearly
indicate an understanding among all concerned, including learned Magistrate and held that it amounted to
abuse of the provisions of law.

j) Union of India (UOI) through Assistant Director, Directorate of Revenue Intelligence Delhi Zonal
Unit [Link]. Anil Chanana S/o late Mr. K.C. Chanana and Chief Commissioner of Customs (DZ) In this
case observing that the Customs (Compounding of Offence) Rules, 2005 appear to have been framed
keeping in view the Statement of Objects and Reasons for the introduction of 'plea bargaining' to the
effect that settlement procedures are intended to see that protracted proceeding before the authorities or in
courts are avoided by resorting to settlement of cases. The Delhi High Court held that the interpretation of
such rules of settlement need to be liberally construed and resort to a challenge to a decision taken by the
Compounding Authority should not be made as a matter or rule but as an exception.

k) V. Subramanian v. The State by Sub Inspector of Police In this case the plea of guilty was made
before introduction of the provisions of plea bargaining. The High Court held that the plea of guilty being
premature and the case having not been made in accordance with the provisions of Chapter XXI -A of the
Cr.P.C.1973, particularly not involving the victim, its benefits could not be extended to the appellant. The
Court observed:

“Unless the said procedure contemplated in Chapter XXI-A is followed the same cannot be a valid
disposal on plea bargaining. Even though 'plea bargaining' is available after the introduction of the said
amendment, 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
disposition of the case which may also include giving compensation to victim and other expenses. The
same cannot be done without involving the victim in the process of arriving at such a settlement.”

Finally holding the appellant entitled to make an application for plea bargaining the High Court
directed the trial court accordingly.
Plea bargaining in service matters :-
The Supreme Court as far back in 1998 in Ran Singh v. State of Haryana had held that plea
bargaining should not be encouraged in service matters but once accepted the plea of guilty, it cannot be
used to punish the employee because there is always some meeting of minds before such a plea is put
forth.
This view was followed by Allahabad High Court in Ashok Kumar Srivastava v. Raebarellly
Kshetriya Gramin Bankwherein the plea of guilty was offered by the delinquent on an assurance from the
previous Chairman for lesser punishment but the new Chairman did not abide by the assurance given by
his predecessor and punished the employee on the strength of his admission of guilt. Relying upon Ran
Singh's case the High Court held that it was not open to the new Chairman to ignore the plea bargaining
entered into and accepted by his predecessor. Except in the first two cases, the above are examples of
good and positive beginnings. It is hoped that the other High Courts and the Magistrate courts in the
country will follow these examples.

In State of UP v. Chandrika, the Supreme Court decided that the disposal of cases on the basis of
plea bargaining is not.
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 was arrested by the CBI in the
year 1997, and released on bail in November the same year. Charges were framed and the case came
before a 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, which 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 another case of Vijay Moses Das Vs. CBI (Criminal Misc. Application 1037/2006), Uttarakhand
High Court (Justice Prafulla Pant) in March 2010 allowed the concept of plea-bargaining, wherein the
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 it on the basis that the socio- economic conditions existed in US and
India are very different. The 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.

Critical analysis of Plea Bargaining in the Code of Criminal Procedure:-

Prior to the Criminal law (Amendment) Act 2005, the concept of plea bargaining was totally alien
to our Indian criminal justice process and the Apex court examining the concept of plea-bargaining in the
State of U.P. v. Chandrika.14 In the same year in Kripal Singh v. State of Haryana,15 the Apex Court also
observed that neither the Trial Court nor the High Court has jurisdiction to bypass the minimum sentence
prescribed by law on the premise that a plea-bargain was adopted by the accused.

A formal proposal for incorporating plea-bargaining into the Indian criminal justice process was put
forth in 2003 and reintroduced on recommendation of the Malimath Committee with slight changes
through the Criminal law (Amendment) Bill, 2005 which was passed by both the houses of Parliament. It
was finally incorporated into the Code of Criminal Procedure, 1973 as Chapter XXI-A through the
Criminal law (Amendment) Bill, 2005 and came into being from July 5, 2006. Recognizing that there are
significant differences in criminal procedures as well as in the role and status of various agencies in
different countries, the act does not give recognition to any existing practice akin to plea-bargaining.
Instead, it lays down a procedure with a distinct feature of enabling an accused to file an applicant for
plea-bargaining in the court where the trial is pending under section 265B of [Link], 1973.

The Act further requires that the Court after receiving the application must examine the accused in
camera to ascertain whether the application has been filed voluntarily. Once the court is convinced that
the accused is participating in the plea-bargain voluntarily, the court must then issue notice to the Public
Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually
satisfactory disposition of the case. The negotiation of such a mutually acceptable settlement is left to the
free will of the prosecution (including the victim) and the accused. If a settlement is reached, the court
can award compensation based on it to the victim and then hear the parties on the issue of punishment.
The court may release the accused on probation if the law allows for it: if a minimum sentence is
provided for the offence committed, the accused may be sentenced to half of such minimum punishment;
if the offence committed does not fall within the scope of the above, then the accused may be sentenced
to one-fourth of the punishment provided or extendable for such offence.

The accused may also avail of the benefit under Section 428 of the Cr.P.C., 1973 which allows
setting off the period of detention undergone by the accused against the sentence of imprisonment in plea-
bargained settlements. The court must deliver the judgment in open court according to the terms of the
mutually agreed disposition and the formula prescribed for sentencing including victim compensation. It
may be noted that his judgment is final and no appeal lies apart from a writ petition to the State High
Court under Articles 226 and 227 of the Constitution or a special leave petition to the Supreme court
under Article 136 of the Constitution.

The statement or facts stated by an accused in an application for plea bargaining shall not be used
for any other purpose other than for plea-bargaining. These were the statutory provisions, in a nutshell,
for the use of plea-bargaining in the Indian criminal justice process.

The provisions adopted in India are suffering with ambiguity and not clear as to what stage plea
bargain can be applied. But on reading the provisions of Section 265A in conjunction of expression from
the stage the application under subsection (1) of Section 265B has been filed used in clause (b) sub-
section (4) of Section 265B and Section 265D and the provision of Section 207, 208, 209, 211, 212, 213,
218, 223, 228, 240, 251 of Cr.P.C., relate to the procedure upto the stage of framing charge, it reveals that
proper stage for the application of plea-bargaining shall be after charge is framed.

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 the present system, 75% to 90% of the criminal cases result 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.

Arguments in favour of Plea bargaining:-

The principal benefit of the plea bargaining, for most of the accused, is to receive a lighter sentence
for a less severe charge than what might result from taking the case to trial and losing. Another fairly
obvious benefit that accused can reap from plea bargaining is that they can save an advocates’ fees. It
almost always takes more time and effort to bring a case to trial than to negotiate and handle a plea
bargain. There may be other benefit as well such as:

1. Speedy justice:-
The Indian judiciary at present is overburdened and underfunded. There are a number of cases in
the Courts at the moment which will perhaps take years to reach a decision. Resorting to plea bargaining
would provide a relatively quick, efficient method of handling large caseload. The fundamental goal of
plea bargaining is to provide clear space in the legal system for cases 'worth' a trial. Because plea
bargaining permits a prompt resolution of criminal proceedings with all the benefits that result from final
disposition and avoids delay and the uncertainties of trial and appeal.

[Link] cost:-
A large amount of money along with the time is spent on preparing for the arguments in the Court
only to find that the other party is seeking extension of date of hearing. Thereby, the money spent in
preparation will become a waste. On the other hand plea bargaining would help to eliminate this problem.

[Link] working relationship:-

Plea bargaining may also satisfy what some scholars argue is "an irrepressible tendency toward
cooperation among members of the courtroom work group." It allows this "courtroom work group" to
satisfy their "mutual interest in avoiding conflict, reducing uncertainty and maintaining group cohesion."

[Link] allocation of resources:-

Another justification of plea bargaining is that it allows for the most efficient allocation of resources.
"The bargain is recognized explicitly as a transaction in which unrelated objectives of the defendant and
the State are served. The defendant wants to minimize his punishment, wholly without regard to its
possible benefit to society or himself. The State wants to avoid a trial."

[Link] grounds of economy or necessity:-

Viewing plea negotiation less as a sentencing device or a form of dispute resolution than as an
administrative practice, they argue that society cannot afford to provide trials to all the accused who
would demand them if guilty pleas were unrewarded. At least, there are more appropriate uses for the
additional resources than an effective plea bargaining could save.

[Link] Dispute Resolution:-

A second view treats plea bargaining, not primarily as a sentencing device, but as a form of dispute
resolution. Some plea bargaining advocates maintain that it is desirable to afford the accused and the State
the option of compromising factual and legal disputes. They observe that if a plea agreement did not
improve the positions of both the accused and the State, one party or the other would insist upon a trial.

[Link] release from Jail:-

An accused who is held in custody and does not qualify for release on his own recognizance or who
either does not have the right to bail or cannot afford bail may get out of jail immediately following the
judge’s acceptance of a plea. Depending on the offence, the accused may get out altogether, on probation,
with or without some community service obligations. The accused may have to serve more time, but will
still get out much sooner than if he or she insisted on going to trial.

[Link] disposal of cases:-

A trial usually requires a much longer wait and causes much more stress than taking a plea bargain.

[Link] the record of the accused for his bright future:-

 Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness
of the offences looks a lot better on an accused person’s record than the convictions that might result
following trial. This can be particularly important if the accused is ever convicted in the future.

[Link] free:-
Some people plead guilty especially to routine, minor first offences without engaging a lawyer. If
they waited to go to trial, they would have to find a good lawyer and spend both time and money
preparing for trial.

[Link] Public eye:- All persons who depend on their reputation in the community to earn a living
and people who don’t want to bring further embarrassment to their families may choose to plead guilty to
keep their names out of the public eye. While news of plea itself may be public, the news is short lived
compared to news of a trial. And rarely is an accused person’s background explored in the course of a
plea bargain to the extent it may be done at trial.

12 Rehabilitative approach:-
If rehabilitation and reformation of the offender commences early and he can start a fresh life without
loss of time. And when the offender pleads guilty he feels cleansed of the feeling of guilt. Through this
the faith in honesty is reinforced.

Arguments against Plea Bargaining:-

Scope of disparity in sentencing Plea bargaining results in leniency of sentencing. Critics argue that
plea bargaining not only results in less severe sentences but also greater sentencing disparity, which tends
to undermine the entire criminal system. Critics insist that plea bargaining and the resulting leniency
allows the criminal to escape full punishment. A plea of guilt based on plea bargaining, as it would be
opposed to public policy, if an accused were to be convicted by inducing him to plead guilty, by holding
out a light sentence as an allurement. It proves the fourth hypothesis that the concept of plea bargaining is
a potent tool to disburse criminal administration of justice. It has merits along with demerits. But the
merits overweigh the demerits. So it helps in reducing the burden of the judiciary.

ADVANTAGES OF PLEA BARGAINING:-

1. Fast disposal of cases:- No need to enter into the long trial procedures. The Gujarat High Court
observed in the “State ofGujarat v. Natwar Harchanji Thakor”,that “the very object of the law is to
provide easy, cheap and expeditious justice”.

[Link] saving:- Examining possible plus points of Plea bargaining in India, it will help in cutting short
the delay, backlogs of cases and speedy disposal of criminal cases, saving the courts time, which can be
used for hearing the serious criminal cases, putting a certain end to uncertain life of a criminal case from
the point of view of giving relief to victims and witnesses of crime, saving a lot of time, money and
energy of the accused and the state, reducing the congestion in prisons, raising the number of convictions
from its present low to a fair level to create some sort of credibility to the system, not to facilitate making
of criminals by allowing innocents or unproven accused to live with the company of hard core criminals
during the trial and after conviction through making guilty plea.
3. A hassle-free approach:- It allows a person to plead guilty without hiring a lawyer.

4. It avoids publicity:- The longer the case goes in trial the more negative publicity the accused gets i.e.
in society, relatives etc.

5. Benefit of the Accused:- As the accused may be inflicted with ½ of minimum prescribed punishment
or ¼ of punishment prescribed. he may be released on probation or gets concession of considering the
period of undergone in custody by way of setting-of that period of the sentence u/s 428, Cr.P.C

Benefits in respect of Victim:-

a) Compensation to victims:- The victims of crimes might be benefited as they could get the
compensation. They need not get implicated or involved either as witness or seeker of compensation or
justice any longer than required for acceptance of plea bargaining. Whether they get money or not their
time might be saved.

b)Time saving:-He can save himself from the long drawn Judicial Process.

c)Money saving:- Less time and money consuming.

Benefits in respect of Accused:-

a)Reduce in punishment:- 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 be released on probation or admonition.

d) He may get the gain of the 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.

DISADVANTAGES OF PLEA BARGAINING:-

1. “Plea Bargaining” is a voluntarily adopted method on behalf of the accused only i.e. this process
cannot be initiated on behalf of the victim by offering to receive compensation from the accused.

2. The participation of victims in this procedure would magnetize corruption because of greed. In case the
accused has agreed to opt for plea bargaining then the victim may put a demand for huge compensation
and may involve other officials to meet such demand by giving them some share out of the compensation
money.
3. Plea Bargaining is not the final solution i.e. accused will still be convicted.

4. The “Concept of Plea Bargaining” is a threat to the “right to fair trial”.

5. In the situation where plead guilty application of the accused is discarded or rejected then the accused
would face great hardship to prove himself innocent.

[Link]:-The system will be too soft for the accused and allow them unfair means of escape in a
dishonesty ridden society in India. It is an alternative way of legalization of crime to some extent and
hence not a fair deal. It creates a feeling that Justice is no longer blind, but has one eye open to the right
offer. Prosecutors and police, foreseeing a bargaining process, will overcharge the defendant, much as a
trade union might ask for an impossibly high salary. It is inherently unfair, assuming you have two
defendants who have engaged in the same conduct
essentially similar circumstances, to treat one more harshly because he stands on his constitutional right.

[Link] for the system:-It may create contempt for the system within a class of society who
frequently come before the courts. A shortcut aimed at quickly reducing the number of under-trial
prisoners and increasing the number of convictions, with or without justice. While countless numbers of
poor languish in the country's prisons while awaiting trial, only a few might get a chance of bargaining.

[Link] of innocents:- This process might result in a phenomenal increase in the number of
innocent convicts in prison. Innocent accused may be paid by the actual perpetrators of crime in return to
their guilty plea with assured reduction in penalty. Thus illegal plea bargaining between real culprits and
apparent accused might get legalized with rich criminals corrupting police officials ending up in mockery
of justice system. When plea bargaining is certainly not
resulting in acquittal or limited to penalties or payment of damages, accused may not find it as useful and
plea bargaining may not operate as incentive at all.

[Link]:- Element of coercion is not ruled out as the police is involved in the process.

[Link] of Trial:- Once the guilty plea comes forward and recorded on the file and in the mind of
the judge, the trial will be surely derailed. The court may not strictly adhere to or depart from the
requirement of proof beyond reasonable doubt and might lead to conviction of innocence.

Major drawbacks of plea-bargaining:-

A) Involvement of the police in plea-bargaining process would tempt coercion on innocent people.

B) If once a 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 the plea-bargaining process.

D) Involvement of the victim may lead to corruption.

 One aspect can be taken that plea-bargaining will instead likely 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 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.
Suggestions :-

The following suggestions are proposed based on the study: Plea bargaining as an alternative
mechanism can become a valuable tool for expediting the justice delivery system and reducing the
pendency of cases in various criminal courts if it incorporates the following suggestions in Chapter XXI-
A of the Criminal Procedure Code 1973.

1) A provision has to be inserted making it mandatory for the Court while issuing the summons to inform
the accused about the concept of plea bargaining.

2) A provision has to be inserted to set up a Committee to consider the cases referred from the Court to
deal with the process of plea bargaining, so that, the disposition arrived at, would be made in more
voluntary environment and if the Committee opines that, a satisfactory disposition cannot be worked out,
it should send the plea bargaining case back to the Court.

3) A provision should be inserted for the hearing of plea bargaining in the open court and the Court
should weigh the financial and social conditions of the victim as well as the accused before permitting a
settlement.

4) Section 265-A (1) should be widened so that the 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 .

5) Section 265- A (2) should be amended to give clarity about the offences which come under socio-
economic offences. This can act as a safeguard against using this power arbitrarily.

6) Under section 265-B, when the Court is rejecting a plea bargaining application, the order must be kept
confidential to prevent prejudice to the accused.

7) Under section 265-B, there is no provision for the withdrawal of an application of plea bargaining.
Once the application is made, it will become mandatory for the accused to go with the process. To avoid
such a situation, amendment has to be made, by inserting a provision for the withdrawal of application of
plea bargaining.

8) In section 265-C, a time frame should be stipulated for working out a mutually satisfactory disposition.

9) In the second provision of Section 265-C (a), a provision should be inserted, to allow the victim to
participate through a lawyer so that the victims would be competent enough to look after his interest and
to inspect the proceedings in such a case.

10) To promote transparency, a provision should be inserted for the court to record the final plea
bargaining disposition arrived under section 265-C.

11) In the disposition made under Section 265- D, the Court should be given a basic level of discretion to
revise the amount so that the compensation amount would be reasonable.
12) A provision should be inserted to make the jail superintendent's duty bound to conduct awareness
programs in prisons informing the under trial prisoners about plea bargaining.

It is submitted that a faithful implementation of the above suggestions will help in a better way
towards strengthening the process of plea bargaining as an effective alternative mode of solving criminal
cases.
Conclusion:-

Even the Supreme Court has upheld that a 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 the
criminal justice system and also lead to lesser penalties to rich class, conviction of innocent people and
therefore, it has become a 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 both the parties i.e. accused and
prosecution, then what undermines?

Therefore, India cannot abstain itself from 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 statistics 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 probation is
finished, we can say that the victims are not the forgotten actors, 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 a 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 spent by our Indian government to
maintain these prisoners just because of the 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 fulfilled.

The primary responsibility of the State is to maintain law and order so that citizens can enjoy peace
and security. The State discharges the obligation to protect life and liberty of the citizens by taking
suitable preventive and punitive measures by following fair trial and if found guilty to punish him. The
system followed in India for dispensation of criminal justice is the adversarial system of common law.
Over the years taking advantage of several lacunae in the present system of justice delivery, large
numbers of criminals are escaping convictions.

Even though speedy justice is the goal of the Indian Constitution, the Indian judiciary is facing a
major problem that is delay in justice. An ever increasing number of litigations have overburdened the
courts from all corners. It has affected Indian criminal justice which has resulted in delayed justice. Delay
during investigation, lack of public cooperation, delays during trial, absence of a system of day to day
hearing are all the reasons for delay in criminal justice in India.

To administer the rule of law and to ensure speedy justice certain necessary steps need to be taken
by the State. When a system fails to deliver justice, generally it looks towards the merits of other legal
systems. The need for finding alternative methods to provide justice arises due to the working of the
present system of administration of justice which is crumbling under the weight of pending cases. Many
concepts and processes have been imbibed from legal systems of the other countries, with the aim of
speedy disposal of cases.

In modern India, criminal jurisprudence did not recognize the concept of plea bargaining as such.
However section 206(1) and section 206(3) of the Code of Criminal Procedure, 1973 and section 208 of
the Motor Vehicles Act 1988 do enable the accused to plead guilty for petty offences and to pay fines
where upon case is closed, but in such case there is no plea bargaining between prosecution and the
accused. The Indian Supreme Court, therefore had strong reservations about plea bargaining since
according to procedure by which a person is convicted on plea bargaining made as a result of inducement
was considered to be violative of Article 21 of the Constitution. Prior to 2005 neither the Code of
Criminal Procedure nor any other law authorized plea bargaining and if there had been a legal provision
authorizing the procedure the objection would not have been made.

But it was the Gujarat High Court that recognized the utility of this method. The Court reasoned the
change by stating that the very object of the law is to provide speedy justice by resolution of disputes,
including trial of criminal cases and considering the present realistic profile of pendency and delay in
disposal of cases fundamental reforms are inevitable. There should not be anything static. It is really a
measure and plea bargaining will add a new dimension in the realm of judicial reforms.

To reduce the delay in disposal of crores of criminal cases in the county the 154th Report of the Law
Commission first recommended the introduction of plea bargaining as an alternative method to deal with
huge arrears of criminal cases. This recommendation finally found support in the Malimath Committee
Report on Reforms of Criminal Justice in the year 2003. The system of plea bargaining was introduced as
a result of criminal law reforms introduced in the Criminal Law (Amendment) Act 2005 which came in to
effect from July 5 2006, in the form of Chapter XXI-A to the criminal procedure having Section 265-A to
265-L, so as to provide for raising the plea of plea bargaining to certain types of criminal cases.

As the overloading of courts with piling up of criminal cases is threatening the foundations of the
system, the plea bargaining may be accepted as one of the required measures for speeding up case load
disposition. Concept of Plea Bargaining should be encouraged and the accused should be encouraged to
avail the remedy of plea bargaining to settle the pending cases. For the successful implementation of plea
bargaining and to achieve its objectives, the role of judiciary and the lawyer is very important. The
members of the bar should encourage the accused to opt for the plea bargaining rather than to treat the
plea bargaining as a threat to their profession. With the changing world scenario, where all the countries
are shifting to Alternative Dispute Resolution mechanism from the traditional litigation process which is
lengthy as well as complex, the plea bargaining may be one of the best recourse as an alternative
mechanism to meet the challenges of disposal of pending cases. Plea bargaining involves constitutionality
of providing accused to plead guilty with incentives. The plea of guilt represents the accused’s decision
not to contest the State's case against him and results in loss of many Constitutional rights. Despite its
negative impact upon Constitutional rights, it can be tolerated if it is structured and constructed in a
proper manner.

Although plea bargaining is an antinomy of due process, yet a system of plea bargaining that can
answer the requirement of due process is not logically [Link] the verdict and sentence is
based on merit, where the accused is represented by a competent counsel it will succeed. The idea of plea
bargaining cannot be objected, if it is allowed to be adopted by subordinate courts only in cases which are
trivial in nature. The judicial time thereby saved may be used for expeditiously disposing of other cases
with full trial.

Plea Bargaining is undoubtedly a disputed concept. Few people have welcomed it while others have
abandoned it. The concept has been introduced in India in the form of Chapter XXI-A of the Criminal
Procedure Code 1973, a decade ago as a prescription to the problem of overcrowded jails, burdened
courts and abnormal delays. The prosecutor is relieved of the long process of proof, technicalities and
long arguments, the court is relieved that it's ordeal, surrounded by a crowd of papers and persons, is
avoided by one less case and the accused is happy that he is free early in the day to pursue his old
profession. It cannot be denied that the practice may result in faster disposal of cases, because delayed
trials are problematic in many aspects, the system may seem appealing. In India, the legislatures have
adopted a very successful method from the most powerful country in the world, however they have failed
to see that the facilities and functional safeguards present in the American Criminal Justice System which
prevents their judicial system from any kind of injustices.

The concept of plea bargaining introduced in India ten years ago has been slow to catch on, largely
because of lack of awareness amongst under trial prisoners and officers of the court. The concept is more
a mechanism of convenience and mutual benefit than an issue of morality, legality or constitutionality.
There is an inevitable need for a radical change in criminal justice mechanism. They have limited the
applicability to a large extent and also restricted the scope of plea bargaining. When a concept is being
implemented into a legal system it should be done in a manner, foreseeing the hindrances that may be
faced at the experimental stage. The twelve provisions as such don’t show any tendency of reducing case
load. If citizens are to be encouraged to use the alternative remedy of plea bargaining then there is an
urgency to bring in clarity and predictability in the provisions.

The criminal justice system seems to have become a commercial transaction, with the State agreeing
to reduce the sentence of the accused, if the accused agrees to plead guilty and save the State the trouble
of conducting a trial. Further, the sentences imposed by plea bargaining are not even remotely adequate to
rehabilitate a person. Further, the current model of plea bargaining in India which allows plea bargaining
only in cases where the punishment prescribed for the crime committed is less than seven years, or where
the crime is not against women or children etc., the Law Commission of India has made it very clear that
eventually plea bargaining will cover all the offences under the Indian Penal Code. In that case, one must
be ready to face a situation where a person accused of several counts of armed robbery will be allowed to
go free after serving a minor sentence for the crime of theft. This would be a time when plea bargaining
would be seen as something inevitable, which can be avoided if measures are taken in time.

Thus, plea bargaining as given in Criminal Procedure Code 1973, with no judicial scrutiny is taking
our adversarial system towards a concessionary one. If the concept of plea bargaining is allowed to
function it should be allowed with judicial scrutiny. This is because as plea bargaining becomes more
pervasive in the criminal justice system the public will lose faith in that system because it allows
criminals to receive bargains. However, even if it is not completely banned then the level of judicial
scrutiny must be raised tremendously.

In Chapter XXI-A of the Criminal Procedure Code1973,'Plea Bargaining' process has been inserted,
wherein, one does not find mention of any bargaining at any stage for anything. Plea bargaining in its
literal sense implies exchanging or bartering a 'plea' for something. Obviously the plea is a 'plea of guilty'
of the offence(s) charged with. If an accused is expected to tender a plea of guilty voluntarily waiving or
forgoing his fundamental right of trial it should be conceded that he would also expect something in
exchange.

There are three means of such exchange: fact bargaining, charge bargaining or sentence bargaining.
The fact and charge bargaining in fact are precursors of sentence bargaining. Such bargaining can only be
done with the prosecution because the victim has nothing to give to the accused in exchange as a criminal
case is between the accused and the State (prosecution). Chapter XXI-A of the Criminal Procedure Code
1973, provides for a mutually satisfactory disposition between the accused and the victim. Impliedly, on
arriving at such a mutually satisfactory disposition the accused may expect concessional treatment like
invoking the Probation of Offenders Act or no imprisonment or at least reduced sentence. In fact there is
no assurance of even that.

Section 265B provides the procedure for setting the machinery in motion. The accused is supposed
to initiate the process by filing an application showing his desire for invoking the provision of plea
bargaining. His application has to be voluntary. He has only to briefly state the case and the offence and
also that he understands the gravity of his offence and normal penal provisions relating thereto. He is not
required to plead guilty or to undertake to plead guilty to the charge(s) or the fact(s). He is also not
required to plead for mercy in so many words. No format for such an application is prescribed. Further,
the court is required to ascertain before proceeding further, that the application has been filed voluntarily
without inducement, coercion or pressure. The application is not a plea form or plea of guilty.

Section 265 B (4) (a) clearly states that the disposition may include giving to the victim by the
accused the compensation and other expenses during the case. There is no mention as to what the accused
can expect in exchange for voluntarily sticking his neck out. Section 265 C then speaks of the disposition
which is the crux of the provision, which provides that, in a case instituted on the basis of a police report,
the police (investigating) officer, the accused and the victim shall participate in the meeting to work out a
mutually satisfactory disposition. Similarly, in a case instituted otherwise than on a police report, the
accused and the victim/complainant shall participate in the meeting. It has not been spelt out as to what
shall be the terms or scope and ambit of the disposition.
A report has to be made by the court on such disposition under section 265D. Apparently the
disposition is not a plea agreement. A plain reading of the section 265E (a) indicates, however, that the
disposition means only compensation to the victim/complainant. It also appears that the court is bound by
this disposition as is evident from the wording:

"the court shall award the compensation to the victim in accordance with the disposition under
section 265D and hear the parties on the quantum of punishment."

A conjoint reading of sections 265B (4) (a), 265 E (a) and 265 E (c) and (d) makes it clear that if an
accused prefers to invoke the provision for plea bargaining, he will have to agree to a compensation and
then hope (but be not sure or assured) that the court may award a lesser sentence. If the disposition really
means working out only compensation to the victim, any discussion about reduction of charge(s) or
sentence, the question arises what is there for the accused? Why should he invoke the provision or
participate in such a deliberation at all? If even after agreeing to a compensation he is awarded the
punishment as per the Statute without any concession, the accused cannot do anything and is virtually
duped because there will not be any appeal. Of course section 265E(c) and (d) speak of less than
minimum (or one-fourth of the maximum) punishment, but it is at the discretion of the court. It may or
may not grant the concession as provided.

Frankly, this is not an incentive for an accused to come forward for this aspect of plea bargaining.
What is more, there is no provision for withdrawing an application. It means that an application once
preferred cannot be withdrawn. Moreover, an appeal is barred except by way of invoking the writ
jurisdiction (section 265G); but the grounds for maintaining such a petition is not stated. It is not clear
whether the writ petition can be maintained on the ground that the application was a result of improper
legal advice, or inducement or coercion by the victim/public prosecutor, or quantum of the sentence. In
absence of any sentencing guidelines the quantum (which is under absolute discretion of the trial court)
cannot possibly be successfully achieved.

Even if it is assumed that, although not written, the disposition covers punishment or charge also,
the court shall consider the disposition only to the extent of compensation. Award of punishment shall
apparently depend on the submissions and pleading of the parties and facts and circumstances of the case
as in any other sentencing hearing. It is pertinent to recall the "Statement of Objects and Reasons''
proposing the Bill. It was specifically stated that Plea bargaining :

“means pretrial negotiations between accused and prosecution during which the accused agrees to
plead guilty in exchange for certain concessions by the prosecutor”.

If that is so, it is surprising why it has not been clearly provided for. The ambiguity surrounding the
"mutually satisfactory disposition" is mysterious. It could very well be provided that pretrial negotiation
shall be held between the police officer investigating the case, public prosecutor and complainant to work
out a mutually satisfactory disposition including compensation to the victim and concession in sentencing
to the accused for pleading guilty; and it would have been in consonance with the statement of objects
and reasons. Obviously it was intended, by providing for mutually satisfactory disposition, to provide for
charge and sentence bargaining.

It is also interesting to note that the Law Commission, in para 9.9(iii) of its 154th report had
recommended imposition of sentence commensurate with the plea bargaining. It is desirable to quote the
relevant Para which runs as follows:

The Court shall on such a plea of guilty being taken, explain to the accused that it may record a
conviction for such an offence and it may after hearing the accused proceed to hear the Public Prosecutor
or the aggrieved person as the case may be:

i) impose a suspended sentence and release him on probation,

ii) order him to pay compensation to the aggrieved party, or

iii) impose a sentence, which is commensurate with the plea bargaining

iv) convict him for an offence of lesser gravity than that for which the accused has been charged
if permissible in the facts and circumstances of the case.

Obviously the Law Commission intended to introduce the concept of plea bargaining as existing in
other countries with no strings attached. A conjoint reading of the two reports 142nd and 154lh also
reveals the change of attitude and thought process within the Law Commission during the period from a
categorical 'no plea bargaining' to a 'formal plea bargaining'. A consideration of the two reports and the
provision finally enacted also shows that the eagerness to give combined effect to the two reports and at
the same time avoid objections and apprehensions as far as possible, has resulted in an enactment which
leaves much to be desired. It appears that in fact the 142nd Report only has been given effect to but with a
name taken from the 154th Report. This view is strengthened by the fact of amendment in section 357 of
the Criminal Procedure Code1973, by inserting section 357-A regarding victim compensation as
recommended by the 142nd Report.

It is feared that unless these issues are addressed properly, apprehensions will persist in the minds
of the first time offenders, and the provision does not apply to habitual offenders anyway. It is feared that
the provision may not be workable in its present shape. Nevertheless, a positive beginning having been
made, the advantages would outweigh the demerits. Plea bargaining would greatly improve the current
disturbing criminal jurisprudential system. Of course the Superior Courts shall have to straighten out the
curves by interpreting the provision. The Parliament also may have to amend the provision to make it
workable.

However, it is still a beginning. Many roadblocks would have to be faced and crossed. The public
at large will have to be taken along and in confidence in this crusade. The Bar and the Bench equally need
to be educated and enlightened. The Law schools shall have to bear greater responsibility in preparing the
future members of the Bar and the Bench. A massive awareness drive will have to be launched at every
stage and level: at the law schools, Bar Associations, Judicial Officers' training Institutes and the jails.
Only then it can be hoped that the declared goals of the provision shall be achieved and the first time
offenders do not turn into habitual ones.

From the above analysis, hypotheses No.1 to No.4 drawn by the researcher for this study are hereby
established and proved to be true and correct. It is suggested that the process of plea bargaining should be
strengthened by incorporating the following suggestions.
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[Link]
203
[Link]
legal
[Link]

NEWS
PAPERS/MAGAZINE

The Times of India,

th
8 March, 2016
th
The Week, 7 February,
2016
Law Z, Vol-11 No.8 Issue
120, August 2011
th
Vijayavani,11 October,
2014
th
Hindustan Times, 12
February, 2009