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Plea Bargaining - A Practical Solution

Written by: Sowmya Suman - Final Year student - B.A. LL.B (Hons.) Faculty of Law, Jamia Millia Islamia, New Delhi
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When one’s own legal system flounders, one naturally looks towards practices in other countries, which seem to provide the solution. Statistics as regards the criminal justice system in India are startling in 2001; the number of inmates housed in Indian jails was almost 1, 00,000 more than their capacity. It was estimated that 70.5% of all inmates were under trials and of these 0.6% had been detained in jail for more than 5 years at the end of 2001.

The practice of what has come to be known as ‘plea bargaining’ has been the subject of considerable debate over the last few decades. In Canada, the discussion has centered on the exact nature of the practice and on the term by which it should be known. In 1975, the Law Reform Commission of Canada defined ‘plea bargaining’ as ‘any agreement by the accused to plead guilty in return for the promise of some benefit’. But over the years, considerable objections grew against designating the practice in any way that implied that justice could be purchased at the bargaining table. Consequently, there was a movement away from the use of the term ‘plea bargaining’ and toward more neutral expressions such as ‘plea discussions’, ‘resolution discussions’, ‘plea negotiations’ and ‘plea agreements’. The use of such expressions marked an evolution in the practice itself, since they implicitly acknowledged it to be much more wide ranging than simple bargaining and to involve the consideration of issues beyond merely that of an accused pleading guilty in exchange for a reduced penalty.

The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo Contendere. The doctrine has been under consideration by India for introduction and employment in the Criminal Justice System. Indian Criminal Justice System has been ineffective in providing speedy and economical justice. Because Courts are flooded with astronomical arrears, the trial life span is inordinately long and the expenditure is very high. Subsequently majority of cases are arising from criminal jurisdiction and the rate of conviction is very low.

Recently the Government of India has accepted the Doctrine of Nolo Contendere or Plea Bargaining, on the Recommendations of the Law Commission. Doctrine of Nolo Contendere has been considered in a manner according to social and economical conditions prevailing in the country. Appropriate amendment has been incorporated in the Criminal Procedure Code, 1973. The new concept of Plea Bargaining will be fruitful in resolving pending criminal cases and under trial in jails for years.

Plea bargaining has been inserted through Chapter XXI A in the Criminal Procedure Code. It provides for pre - trail negotiations between the defence and the prosecution during which an accused might plead guilty in exchange for certain concessions by the prosecution. The judge would decide if the plea bargaining was resorted to with malafide or bonafide intention. There are certain exceptions laid down to plea bargaining under the Bill. It has been proposed that there will be no plea bargaining in three cases namely, offences against women, children below the age of 14 years and socio-economic offences (like offences under Food Adulteration Act etc). There can be plea bargaining for offences where punishment prescribed is 7 years or less.

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.

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:-

The Plea Bargaining is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years.

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.The application for Plea Bargaining should be filed by the accused voluntarily.

A person accused of an offence may file an application for Plea Bargaining in the court in which such offence is pending for trial.|

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

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.

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.
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.

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.

Recommendations by the Law Commission of India

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 good enough a 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 142ndth 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:
# The expected difference between sentence at trial and sentence subsequent to availing of the scheme which would become an increasingly safe prediction in time; and

# The 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, 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.

Plea Bargaining In India
In India, plea bargaining cannot be availed of in respect of offences punishable with a sentence exceeding seven years. In other words, 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 socio-economic conditions of this country, which the Central Government would notify. On July 11, 2006 the Central Government actually issued a notification cataloguing 19 statutes as affecting the socio-economic conditions of the country and the offences in those statutes now stand excluded from the plea bargaining process. The second category of exclusion comprises offences committed against women. The third consists of offences committed against children below the age of 14. Despite such vast areas of exclusion there are many offences for which the accused will be entitled to avail themselves of the advantages of plea bargain.
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 Kasambhai’s case, the 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.

In the case of Murlidhar Meghraj Loyat v. State of Maharashtra, the Supreme Court observed as under:
“we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance. Many economic offenders resort to practices the American call ‘plea bargain’, ‘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 prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic battles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his old professions. 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. The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly" justify it philosophically as a sentence concession to a accused who has, by his plea 'aided in ensuring the prompt and certain application of correctional measures to him.”

“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.”

The Supreme Court in the case of Rajinder Kumar Sharma and Anr v. The State and Anr observed as under:
“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 account, putting fake signatures and getting cheque encashed on the basis of forged signatures, this shows his criminal bent of mind. If he is really repentfull, he must undergo some punishment for his crime committed and the sufferance which he made to the society.”

Considering the view of the Supreme Court in the above two cases, it is quite evident that the term ‘plea bargaining’ existed since a long time. Though the judiciary did not find it necessary to recognize it then, however, now it has got the recognition and is being implemented as well. The importance of this doctrine has been well explained by the Indian judiciary.

Plea bargaining has been introduced as a prescription to the problem of overcrowded jails, overburdened courts and abnormal delays. It cannot be denied that the practice may result in faster disposal of cases; because delayed trials are problematic in many aspects, the proposal may seem appealing. However, this introduction is unlikely to succeed, for the practice had existed in the United States long before it received any legislative backing and was thus, merely given recognition. Therefore, the success of plea-bargaining in the United States cannot be looked at in isolation of its origin, a supporting American culture and radically different roles for entities like the prosecutor, etc. Additionally, the nature and extent of plea-bargaining in England indicates that plea-bargaining cannot simply be transplanted from the United States. There is thus, no reason to believe that the practice will achieve the same scale and magnitude of success in India that it has in the United States. Further, the scheme incorporated by the Criminal Law (Amendment) Act, 2005, is grossly inadequate because many factors crucial to the functioning of such a system in India have not been taken into consideration.

The reasons that are cited for the introduction of plea-bargaining include the tremendous overcrowding of jails, high rates of acquittal, torture undergone by prisoners awaiting trial, etc. can all be traced back to one major factor, and that is delay in the trial process. Since one reason for overburdened dockets in the United States was the nature of jury trials, the experience of some jurisdictions suggested that shortening the trial period could solve the problem. In India, the reason behind delay in trials can be traced to the operation of the investigative agencies as well as the judiciary. Expanding the list of compoundable offences is not a wise option and what is actually needed is not a substitute for trial but an overhaul of the system, in terms of structure, composition as well as work culture to ensure reasonably swift trials. If then the trial procedure itself proves to be too long drawn out and unmanageable, then one may think of launching an alternative to trial. Therefore reformation of the existing system may be a more prudent approach rather than introducing a parallel arrangement (as recommended by the Law Commission) or supplementing the present arrangement (as suggested by the Act).

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