Concept of Plea Bargaining in India
A critical analysis

Anisha Gupta, Faculty of law (CLC), Delhi University.

Date : 11/05/2015 - Location : New Delhi

Critical Analysis of the Concept of Plea Bargaining in India


Society cries for justice when a crime is committed. It cries more when criminal trial does not commence in time and it loses its faith when justice is denied to the victim because of the delayed trial and non-conviction of the guilty. The Supreme Court declared in Hussainara Khatoon v State of Bihar Hussainara Khatoon v state of Bihar, [(1980) 1 SCC 98, 107: 1980 SCC (Crime) 40] that speedy trial is a fundamental right of the citizen. Our courts are well aware of the fact that speedy trial is sine qua non for proper administration of justice. Despite various judgements of the Supreme Court, speedy trial has become almost impossible due to mounting arrears in the courts and the courts getting overburdened because of them. As a consequence, justice has become the biggest casualty.

In order to overcome these problems in the criminal justice system, the concept of plea bargaining has been incorporated in the Code of Criminal Procedure 1973, by the amendment of 2005, adding chapter XXI (A) in the Code.

This article tries to trace the origin of plea bargaining and critically analyse the concept of plea bargaining in India. The main objective of the present study is to understand the concept of plea bargaining and examine whether it is practical for our legislatures to incorporate it in Indian criminal jurisprudence where the crime rate is extremely high, crimes often go unpunished, criminals move freely, the victim is helpless, our courts are so much overburdened that they have no time to deal with each and every case according to its merits and entire society has no option but to remain silent against such justice delivery system. Since a crime is a wrong against the whole society, it is important to examine whether we can allow plea bargaining between the accused and the victim of the crime.

Meaning and Origin of Plea Bargaining

It may be defined as a process of negotiations between the prosecution and the accused or his lawyer which results in the accused pleading guilty for a promise to reduce the charge, or lesser the charges or getting a lesser punishment. Generally, plea bargaining occurs prior to trial, but it may occur anytime before the judgement[1]. In layman's term, plea bargaining can be defined as pre-trial negotiations or a deal, an agreement between the accused and the prosecution or their counsels, by which the accused agrees to plead guilty in exchange for certain concessions in terms of lightening the sentence by the prosecution.

The United States (US) has a long history of the practice of 'plea bargaining' and there are numerous cases wherein this concept has been discussed and interpreted. The prosecuting agency has a leading role in this process; it has the discretion to reduce or dismiss some of the charges against the accused and also to make recommendations to the court about the sentences in exchange for a guilty plea[1]. In the US a vast number of cases are dealt with under this procedure. The concept refers to various practices: the prominent amongst them being charge bargaining, fact bargaining and sentence bargaining.

In Charge Bargaining -- A defendant pleads guilty to a less serious crime than the original charge. It occurs when the defendant pleads guilty to necessarily included offences. It gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges that may be framed against him. Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant an opportunity for a lighter sentence.

Fact bargaining involves negotiations and admissions of certain facts stipulating to the truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove them, in return for an agreement not to introduce certain facts into evidence[1].

The U S Supreme Court in Brady v United States 297 US 742-25 L.Ed. 2d 747, Hutto v Ross 50 L.E.d 2d 876, Chaffin v Stynchcombe 412 US 17 (1973), Blackledge v Allison 52 L.E.d. 2d 136, Weatherford v Bursey 429 US 545 (1977), upheld the constitutional validity and the significant role of the concept of plea bargaining in the disposal of criminal cases. In Santobello v New York 404 US 257 (1971), the US Supreme Court formally accepted that plea bargaining was essential for the administration of justice and when properly managed, was to be encouraged.

Thus, plea bargaining is immensely successful in the US, so much so that it has become a norm rather than the exception. It is now an important part of the criminal justice system in the US and the vast majority of criminal cases in the US are settled by plea bargain rather than by a jury trial.

In countries such as England and Wales, Victoria, Australia, plea bargaining is allowed only to the extent that the prosecutors and the defence can agree that the defendant will plead to some charges and the prosecutor shall drop the remainder. The European countries are also slowly legitimizing the concept of plea bargaining, though the Scandinavian countries largely maintain prohibition against the practice.

In India although plea bargaining was not there in the Criminal Procedure Code (Cr.P.C.), yet a large number of cases which as per law or public policy were being tried summarily. Such type of cases is mainly being related to traffic, municipal or other petty offences committed normally by the young or by the non- habitual offenders. Further, after the enactment of The National Legal Services Act, courts are trying to settle various criminal cases relating to minor offences by way of holding Lok Adalat[1]. The provisions relating to plea bargaining brought in by the Amendment Act, 2005 do not apply to socio-economic offences, offences against women and children and offences punishable with seven or more years of imprisonment.

Reasons behind Incorporation of the Concept of Plea Bargaining Under Indian Jurisprudence

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 cases[1].

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 dispensing 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 the country[1]. Speedy trial is the essence of criminal justice and there can be no doubt that delays in trial by itself constitute denial of justice[2]. The theory of 'justice delayed is justice denied' can be rightly applied after seeing the Indian context. The most common complaints about the justice system are: (i) more number of litigation by people or (ii) overburdening of courts with cases.

For instance, by October 3, 2001 there were 2.03 Crore backlog pending cases in District Courts and High Courts. More than 80 per cent cases were from seven states Uttar Pradesh, Gujarat, Bihar, Karnataka, Madhya Pradesh, West Bengal and Maharashtra. There were 35, 57,637 cases pending in different High Courts of the country. Five lakh of them were more than ten years old. Even the Supreme Court had 21,995 cases pending therein.

The Law Commission of India in its 120th Report (1987) observed that late disposal of backlog cases is because of less number of judges in the country. There are roughly 10.5 judges per million people whereas the figure is more than four times in Australia, United Kingdom (UK), US and Canada. There was also a suggestion for increase in the number of judicial officers. Because of overburdening of courts with cases, there is gross neglect towards the status of under trials. Although the capacity of jails is 2.56 lakh prisoners there are more than five lakh prisoners behind the bars.

The state governments spend more than Rs. 55 per day on each prisoner and the annual expenditure comes to as 361 crore. If we could adopt different methods (speedy trial) then the situation would have been totally different. The state governments would be able to reduce the number of under trials in the jails and also the huge expenditure on them[1].

Plea bargaining can be used to avoid uncertainty of the trial and minimise the risk of undesirable results for either side. Plea bargaining is generally regarded as a win-win situation. The accused gets a waived term if he confesses to the crime, while the speedy disposal and decreasing backlog eases the pressure on the prosecutors and the judges.[1]

Observations of the Law Commission

Before introducing the concept of plea bargaining, various Law Commissions made recommendations in favour of the incorporation of plea bargaining in the Indian criminal jurisprudence. While doing this, various factors were taken into consideration such as the arrears of criminal cases awaiting trial and considerable time taken for disposal of criminal cases. In many cases, trial does not commence even after the accused has been remanded to judicial custody for periods ranging from three to four years.

Therefore, to reduce the delay in disposal of criminal cases, 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[1]. This recommendation finally found support in the Malimath Committee Report. The committee then submitted its report to the Government of India, Ministry of Home Affairs in March 2003 with a recommendation to introduce plea bargaining into the criminal justice system of India to facilitate earlier resolution of criminal cases and reduce the burden on the courts.

While recommending the concept of plea bargaining in the Indian criminal justice system, it was observed by the 12th Law Commission in its 142nd Report as under:

1. It is not just and fair that an accused who feels contrite and wants to make amends or an accused who is honest and candid enough to plead guilty in the hope that the community will enable him to pay the penalty for the crime with a degree of compassion and consideration should be treated on par with an accused who claims to be tried at considerable time-cost and money-cost to the community.

2. It is desirable to infuse life in the reformative provisions embodied in Section 360 of the Criminal Procedure Code and in the Probation of Offenders Act which remain practically unutilized as of now.

3. It will help the accused who have to remain as under trial prisoners as also other accused on whom the sword of Damocles of an impending trial remains hanging for years to obtain speedy trial with benefits such as- (a) End of uncertainty (b) Saving in litigation cost (c) Saving in anxiety cost (d) Being able to know his or her fate and to start a fresh life without fear of having to undergo a possible prison sentence at a future date disrupting his life or career (e) Saving avoidable visits to lawyer's office and to court on every date or adjournment.

4. It will, without detriment to public interest, reduce the back-breaking burden of the court cases which have already assumed menacing proportions.

5. It will reduce congestion in jails.

The Law Commission in its 142 Report, having considered the concept as is being practised in other countries, recommended that the scheme for concessional treatment to offenders who plead guilty on their own volition in lieu of a promise to reduce the charge, to drop some of the charges or getting lesser punishment be statutorily introduced by adding a chapter in the Code of Criminal Procedure.

After examining the 142nd Report, the Law Commission in its 154th Report was of the view that plea bargaining can be made an essential component of administration of criminal justice provided it is properly administered[1]. A few recommendations were given in the favour of plea bargaining by the 154th Law Commission report, such as:

1. This concept may be made applicable as an experimental measure, to offences which are liable for punishment with imprisonment of less than seven years and/or fine including the offences covered by Section 320 of the Cr.P.C.

2. Plea bargaining should not be available to habitual offenders, those who are accused of socio-economic offences of a grave nature and offences against women and children.

Applicability of Plea Bargaining and Procedure under the Code of Criminal Procedure

In India, the system of plea bargaining is in its experimental stage. The system was introduced as a result of criminal law reforms introduced in the Criminal Law (Amendment) Act, 2005 (Act 2 of 2006). Though the Act was passed on January 11, 2006, the provisions were notified and came into effect from July 5, 2006 only.

There was a lot of criticism against the concept of plea bargaining being incorporated in the Cr.P.C. The Supreme Court has also blasted the concept of plea bargaining, saying that negotiation in criminal cases is not permissible. In State of Uttar Pradesh v Chanderlok (2000) Cr. L.J. 384 (384), it held that it is settled law that, on the concept of plea bargaining, a court cannot dispose of the criminal cases. The court has to decide a case on its merits; if the accused confesses his guilt an appropriate sentence is required to be implemented. The court further held in the same case that, mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty, the sentence be reduced.

In civil cases we find compromises actually encouraged as a more satisfactory method of settling disputes between individuals than an actual trial. However, if the dispute...finds itself in the field of criminal law, "law enforcement" repudiates the idea of compromise as immoral or at best a necessary evil. The "State" can never compromise. It must "enforce the law". Therefore open methods of compromise are impossible.

Further, the Supreme Court in Kasambhai Abdulrehtnanbhai Sheikh v. State of Gujarat AIR 1980 S.C. 854 observed that convictions based on the plea of guilt entered by the appellant as a result of plea bargaining cannot be sustained. It is contrary to the public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilt he will be let off every lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of this new activist dimension of Article 21 of the Constitution unfolded in Maneka Gandhi's case. It would have the effect of polluting the pure font of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and tough criminal trial, if the process is violative of the spirit of Article 21, as found above, even a statutory backing may not render it legitimate. The second hurdle it may be stopped at is the fact that plea bargaining amounts to waiver of a constitutional right to have a trial implicit in Article 21, which is not permitted under the Indian law Basheshar Nath v Income Tax Commissioner, AIR 1959 SC 149.

But despite such hue and cry, the Government found it acceptable and finally introduced Chapter XXIA to the Code, having Section 256-A to 265-L added in the Cr.P.C., so as to provide for raising the plea of plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High court observed in State of Gujarat v Natwar Harchanji (2005) G.L.J. 2957, that 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 of criminal cases, fundamental reforms are inevitable.

Applicability: Section 265-A deals with applicability of Chapter XXIA. Benefit of plea bargaining can be extended in two circumstances. One is, if a report is forwarded by a station house officer of a police station after the completion of investigation to the magistrate. The other is, if the magistrate has taken cognizance of an offence on a complaint under Section 190 (a) followed by examination of a complainant and witness under Section 200 or Section 202 and issuance of process under Section 204. Thus, it means, after commencement of proceedings upon a private complaint under S. 190 (a) of the Code.

However, if the accused is involved in an offence which is punishable with death, life imprisonment or of imprisonment more than 7 years, the benefit cannot be extended. Apart from that the offences that affects socio-economic conditions of the country, which are notified[1] by the Central Government as offences against women or offences against a child below the age of 14 years, benefit of plea bargaining is not available. Under Section 265-L the provisions of plea bargaining is not applicable to any juvenile or child as defined under the Juvenile Justice (Care and Protection of Children) Act, 2000. The saving provisions under Section 265-J have extended an independent existence to the Chapter, in case of inconsistency with other provisions of the Code. K.N. Chandrasekharan Pillai (Rev.) R.V. Kelkar's Criminal Procedure, 5th edition (2008) Eastern book company.

Procedure: As per Section 265-B, the process of plea bargaining starts with an application from the accused. The application is to be filed before the trial court only. The application must be in writing, with brief description of facts of the case supported by an affidavit sworn by the accused affirming the genuineness of the application as voluntarily submitted with details of previous conviction of the accused. Upon receipt of the application, the trial court has to issue notice to the prosecution, either to the public prosecutor or to the complainant in Section 190(a) cases and also to the accused intimating the date of hearing of the application.

While appearing before the court, after receipt of notice from the court, the examination of the accused shall be done in-camera, avoiding the presence of other parties. It is specifically required so, to ensure the genuineness and authority of the application. Before proceeding further, the court has to ensure that the application is made voluntarily by the accused. If the court feels, after examination of the accused, the application is involuntarily submitted or the accused is not eligible for plea bargaining on the ground of earlier conviction in a case charged with same offence, the court has to drop the proceedings and proceed further with the trial from the stage, wherein the application is entertained by the court.

After examination of the accused, if the court feels the accused is eligible for plea bargaining, the courts gives time to the prosecution and the accused to work out a mutually satisfactory disposition of the case. Such a mutually satisfactory disposition includes awarding of compensation and other charges and legal expenses to the victim. There must be a notice to the public prosecutor (defined under Section 2(u) and explained in Section 25 of the Code), investigation officer of the case, the victim or de facto complainant and to the accused, in cases instituted upon police report, to work out the solution in a joint meeting of the parties. In cases instituted otherwise than a police report, there shall be notice to the accused and the complainant/victim to participate in the joint meeting. The accused can participate with his lawyer in the meeting. That means the actual presence of the accused is required irrespective of a representation through the lawyer. Apart from that the court shall ensure that every actions of the parties during the meeting is voluntarily made and without any vitiating or coercive elements. That means the presence of the judicial officer is necessary during the process of joint meeting. Under Section 265-D, the court has to prepare a report if a mutually satisfactory disposition of the case has been worked out and such report shall be signed by the presiding officer of the court and the parties in the joint meeting. If no satisfactory disposition is made out, the court has to proceed with the case, by dropping the proceedings in plea bargain and start the proceedings from the stage, wherein the application is entertained.

Disposal of case on the basis of report: After completion of proceedings under Section 265-D, by preparing a report signed by the presiding officer of the court and parties in the meeting, the court has to hear the parties on the quantum of the punishment or accused person's entitlement of release on probation of good conduct or after admonition. The court can either release the accused on probation under the provisions of Section 360 of the Code or under the Probation of Offenders Act, 1958 or under any other legal provisions in force, or punish the accused, passing the sentence.

The court has to pronounce the judgment, under Section 265-F. in terms of its findings under Section 265-D, either releasing the accused or punishing the accused. The judgment passed under Section 265-F is final and no appeal will lie against such judgment under Chapter 29 of the Code. However, such judgments are subject to challenge under Articles 226 and 227 of the Constitution before a High Court by filing a Writ petition and Article 136 of the Constitution before the Supreme Court by filing a Special Leave Petition. A court, while proceeding with an application of plea bargaining, has all the powers invested with a court, under the provisions of the Cr.P.C. in respect of granting and rejecting bail, trial of offences and other general matters relating to disposal of case, particularly under the provisions in Chapter XXIV of the Code. An accused, while disposal of his application under plea bargaining, is entitled for setting off the period of detention from the sentence of imprisonment imposed under Section 265-E. He is entitled to set off the period of detention 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 only. This provision enables early release of under trial prisoners, who are the real victims of our delayed judicial process.

Thus the provisions of Chapter XXIA extends the scheme of plea bargaining in the Indian criminal jurisprudence to a limited extent only, by giving discretion to the court, restricting excess power to the prosecution, as seen from international jurisprudence, by giving sufficient measures to prevent the abuse of process.

Criticism of Plea Bargaining

Plea bargaining is a compromise between the prosecution and the accused. One course of argument questions whether a State should compromise. It is contended that the "State" can never compromise. It must "enforce the law" and hence the notion of law enforcement repudiates the idea of compromise as immoral or at best a necessary evil. Therefore, open methods of compromise are impossible. The State is the guardian of its people and it is incumbent upon it to ensure a criminal justice system which serves as a lifebuoy to the entire social Diaspora.

Some of the major drawbacks of the process of plea bargaining, as observed through various studies, are as follows:

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

2. Plea bargaining undermines the basic premise of "crime and punishment' that is the foundation of the criminal law and the criminal justice system.

3. Plea bargaining is an infringement on the court's responsibility and discretion in sentencing.

4. Bargain-based justice is always more of a bargain for the accused than it is for the state and the public. If the defendant does not consider a plea bargain offer generous enough, he or she can simply hold out for trial, knowing that the legal strength of the state's case will be weakened further by time.

5. Prosecution has the power to present the accused with unconscionable pressures. The prosecution has the incentive to maximize the benefit of pleading guilty in the weakest cases. The more likely an acquittal at trial, the more attractive a guilty plea is to the prosecution. But in a borderline case that does go forward, the prosecution may very well threaten the most serious consequences to those accused who may very well be innocent.

6. Unfair sentences can be imposed on defendants who plead not guilty and are convicted at trial. The sentence may reflect a punishment for not having entered a bartered guilty plea, thereby penalizing the defendant for exercising the constitutional right to trial.

7. Plea bargaining is dominated entirely by practical considerations that should be irrelevant to the disposition of criminal cases. Such factors neglect justice, penological considerations, the plight of the victim, and the needs of society.

8. By sidestepping formal court proceedings and due process, plea bargaining allows unconstitutional police practices to go un-checked.

9. Unwarranted variation in prison terms attributable to plea bargaining is a source of inmate riots. "No sentence should (ever) be imposed simply because it may result in less expensive, faster resolution of the case." Bartered guilty pleas are not evidence of genuine repentance for crime, the acceptance of the legitimacy of punishment, or the potential for rehabilitation.


The Supreme Court has time and again criticised against the concept of plea bargaining, saying that negotiations in the criminal cases is not permissible. But due to the fact that plea bargaining provides easy, cheap and expeditious justice by resolution of disputes, including the trial of the criminal cases and considering the present realistic profile of the pendency and delay in disposal of criminal cases, the government found it acceptable and finally introduced it.

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