The Article tries to analyze the development of plea bargaining in Indian legal
system and the status quo post the Criminal Law (Amendment) Act, 2005. Further,
it critically analyzes some of the provisions of Chapter XXIA of Criminal
Procedure Code, 1973 to suggest measures for improving practicality of plea
bargaining on the parties concerned.
Concept Of Plea Barganing
Plea bargaining supports the concept of criminal justice system "Justice delayed
is justice denied". It is an option given to accused to accept certain facts,
charges or statements in response to which, the prosecution proposes to reduce
certain burden being advanced on the accused by the prosecution. It is a
contractual agreement between the parties concerning the disposition of criminal
charges enforceable on approval of the Court.
The objective behind such concept of plea bargaining inter alia is to curb the
problem of back logging of cases resulting in sufferings of under-trial
prisoners. The Doctrine of Nolo Contendere1, prevalent in United States is
pertinent to be included in the present context which ascribes the circumstance
where the accused either admits or declines the charges made against him.
The Indian legal system comprises of three types of plea bargaining:
- Charge bargaining
- Sentence bargaining
- Fact bargaining
Where the accused has an option to drop some charges or settling for a less
garve charge than it is know as charge bargaining. Negotiating for a lesser
punishment and admitting the guilt is Sentence
bargaining. Lastly, admitting certain facts and negotiating in return for an
agreement to not introduce other facts is called fact bargaining.
Judiciary Approach Towards Plea Bargaining
Several recommendations have been made by The Law Commission's reports as a
result of which the 2005 amendment to Chapter XXI-A was added to Cr.P.C
titled "Plea Bargaining" from Section 265-A to 265-L. Earlier to the said
amendment, the judiciary was reluctant in applying the concept and on many
instance rejected its application inspite of the Law Commission's
In case of Madanlal Ramachander Daga v. State of Maharashtra
3 the concept of
Plea bargaining was discussed for the first time by the Hon'ble Supreme Court
and it was observed that-
"It is wrong to enter into a bargain by the court with accused, offence needs to
be punished according to the guilt of the accused, and if any leniency needs to
be shown it is of facts not of sentence."
This interpretation of plea-bargaining was upheld time and again. However,
arguments were also presented against it in several cases. In the case of Kachhia
Patel Shantilal Koderlal v.State of Gujarat and another
4 the court held that
the concept of plea-bargaining is unconstitutional and illegal which would
increase corruption, collusion and would pollute the pure foundation of
imparting justice. However, as an implication of the 2005 amendment, the courts
were obliged to observe the acknowledgement of the concept of plea barraging in
Critical Analyses Of Chapter XXI-A
Chapter XXI-A of Criminal Procedure Code, 1973 consist of 12 Sections from 265A
to 265 L which deals with Plea Bargaining.
Section 265-A puts forward the applicability of plea bargaining with three
conditions. First, it is not available to offence for which punishment is more
than seven years or death or life imprisonment. Second, the offence which are
against women and children are also excluded and third, socio-economic offence
are excluded. Sub-Section 2 states that the socio-economic offence are to be
determined by Central Government. This section itself disregards the objective
on which plea bargaining was introduced i.e to curb the back logging of cases
which result in delayed justice, as it creates a vide sphere of offence not
covered under plea bargaining.
Socio economic offence covers legislation like Dowry Prohibition Act, 1961 and
Protection of Women from Domestic Violence Act, 2005, here plea bargaining can
help to reduce the burden of cases as well as the suffering of the under-trials,
but Section 265-A does not cover it.
Other than this it gives Arbitrary power to Central Government to categories
socio-economic offence, since the legislation does not define the offence
covered under it.
Section 265-B explains the procedure of plea bargaining in the court, the
accused has to file the application in same court where trial in ongoing then it
is upto court to determine whether the application is voluntary or not and will
take recourse accordingly.
There are many ambiguities in this section, for instance, in situations where
the court is of the opinion that the application is not voluntarily filed, it is
required to resume the trial. This will take a lot of time of the court to
determine first the character of the application then to continue the trial,
instead a different authority can be step up to determine the character of
Further sub section (4) obliges court to give an option to party to mutually
dispose-off the case, but it does not specify the time frame which is a grave
concern as the object of plea bargaining is speedy disposal of case.
Section 265 C guides how the mutual satisfactory disposition will take place. It
does not state that court should be involved in mutual satisfactory disposition
but put court in responsibility to ensure the process is voluntary. In fact, it
does not lay any principles that could ensure transparency as a consequence of
which the accused cannot be coerced at any stage of mutual satisfactory
There is lack of awareness in the under-trial prisoners about this concept.
Provisions should be made that would oblige the jail officers to conduct
sessions in jail and inform prisoner about this recourse its benefits.
Additionally, the judiciary should start practicing in positive way the option
of plea bargaining and legislation should extent its scope, so that as much as
possible accuse can take this remedy.
The inclusion of chapter XXI-A is a progressive step to mitigate the burden on
the Indian Judiciary, but it needs to be applied cautiously. Plea bargaining can
solve a number of problem which are prevalent in current Indian Judiciary like
burden of judiciary, problem related to under trial prisoner therefore a
positive look is required.
- Madanlal Ramachander Daga v. State of Maharashtra, AIR 1968 SC 1267
- Kachhia Patel Shantilal Koderlal v.State of Gujarat and another, 3
Written By: Tulsi Khoria,
3rd Year student of Institute of Law Nirma