The primary objective of having a criminal justice system is to maintain peace
and order in the society and provide for a redress mechanism when a citizen'
rights are violated. Therefore, the system criminalizes various actions which
violate or infringe the rights guaranteed to an individual in a civilized
society. But the unequal power equation between the accused and the State
mandates a procedure which is fair to the accused and protects his rights at
This endeavour to make the procedure fair enough to inspire
confidence in the accused and the society has given so many rights to the
accused that the resultant procedure is slow, cumbersome and expensive. All this
leads to a huge pendency of cases in various criminal courts of India and a
large population of under trials in Indian jails. The solution lies in looking
for alternative dispute resolution mechanisms for disposing off a criminal
case. Plea Bargaining is one of the many such alternatives available which
settle a criminal dispute without putting up the accused for a formal trial.
Meaning Of Plea Bargaining
In Black's Law dictionary, Plea bargaining has been defined as 'a negotiated
agreement between a prosecutor and a criminal defendant whereby the defendant
pleads guilty to a lesser offence or to one of multiple charges in exchange for
some concession by the prosecutor, usually a more lenient sentence or a
dismissal of the negotiated charges.
Plea bargaining is a pre-trial negotiation which the law allows between the
prosecution and the accused. As he is willing to cooperate with the prosecution
and accept his guilt and even in some cases offers to compensate the victim this
mechanism facilitates the reduction or dilution of his sentence.
Provision Under The Code Of Criminal Procedure, 1973 Regarding Plea Bargaining
Chapter 21A containing Section 265A – 265L deals with concept of Plea
bargaining. This chapter was incorporated under the code by The Criminal Law
(Amendment) Act, 2005.
Origin Of Plea Bargaining
The source of Plea Bargaining can be attributed to United States where about 90%
of criminal cases are disposed of on the basis of Plea Bargaining.
The concept of plea bargaining is said to be based on the principles of Nolo
Contendere, which is a Latin word, it means "I do not wish to contest."
In 1970 the American Supreme Court accepted the constitutionality of plea
bargaining in Brady v. United States and also encouraged its use in another
Rule 11 of The Federal Rules of Criminal Procedure gives the legislative
framework for administering plea bargaining in America.
Introduction Of Plea Bargaining In India
The Law Commission in its 142nd and 154th report highlighted the problems faced
by the criminal justice system of the country. After studying numerous foreign
criminal justice systems, they made out a case for introducing plea bargaining
The Malimath Committee on Criminal Justice Reform also reiterated their stand by
advocating in favour of Plea-Bargaining and agreed that the scheme can be
introduced in India.
Objective Of Plea Bargaining In India
As many as 4.83 lakh Indian nationals were lodged across the country's jails by
end of 2020, of which over 76 per cent were undertrials while 23 per cent were
convicts, according to new government data. Another 3,549 (or less than one per
cent) of prison inmates across the country were detenues, revealed the National
Crime Records Bureau's (NCRB's) annual 'Prison Statistics India 2020'.
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.
Therefore, 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.
Kinds Of Plea Bargaining
Plea Bargaining falls into two distinct categories depending upon the type of
prosecutorial concession that is granted. These are:
- Charge Bargaining: It refers to a promise by the prosecutor to reduce or
dismiss some of the charges brought against the defendant in exchange for a
- Sentence Bargaining: It refers to a promise by the prosecutor to
recommend specific sentence or to refrain from making any sentence,
recommendation in exchange for plea of guilty plea.
Application Of The Chapter: Section 265a
Section 265A allows only an accused charged with an offence punishable with less
than seven years to apply for plea bargaining.
The provisions of Plea Bargaining are not applicable in the following cases:
- The offence in which the maximum sentence is above 7 years.
- The offence which has been committed against a woman or a child below 14
years of age.
- Where the accused has been previously convicted for the same offence.
- Offence which affects the socio-economic condition of the country.
The Central Government shall, by notification, determine the offences under the
law for the time being in force which shall be the offences affecting the
socio-economic condition of the country.
Application For Plea Bargaining: Section 265b
Where Will Application Be Filed By The Accused Person?
The application has to be filed in the court where the offence is pending for
Content Of The Application
The application will contain the brief description of the offence charged with
and it should be supported by an affidavit declaring that:
- he is presenting the application voluntarily and
- he understands the nature of sentence and
- he has also to declare that he is not a previous convict for the same
In addition to the affidavit the procedure directs the judicial officer to call
the accused in person and confirm that the application has been filed
In practice this is done by administering a properly structured questionnaire to
the accused in camera. The questionnaire administered to the accused informs him
that he has a right to fair trial. That by resorting to plea bargaining he will
forego his right to trial, right to confront the complainant, right to bring
witnesses in support of his defence and right to be convicted only by proof
reasonable doubt. That the judgment delivered by the plea-bargaining judge in
terms of the mutually satisfactory disposition 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
Once the judicial officer is satisfied about voluntariness he will provide time
for working out a mutually satisfactory disposition of the case which should
have a provision for compensating the victim.
Guidelines For Mutually Satisfactory Disposition: Section 265c
Section 265 C further gives guidelines for working out the mutually satisfactory
disposition. Firstly, all the stakeholders in the case namely the prosecution,
accused, defence lawyer, accused and the victim are to be given notice for
participating in the meeting for working out the mutually satisfactory
disposition. This is significant as the victim is given the right to participate
and be part of a process meant to dispose of the case.
Secondly the judicial officer is made responsible to ensure voluntariness
throughout the meeting.
Report Of The Mutually Satisfactory Disposition To Be Submitted Before The Court: Section 265d
Once the meeting is over as aforementioned, Section 265 D talks of filing a
report regarding the outcome of the meeting irrespective of whether it is a
success or failure.
Disposal Of The Case: Section 265e
Section 265 E gives directions for the final disposition of the case in the
event of a successful disposition being worked out. The judicial officer is
mandated to do the sentencing in terms of this provision which has an inbuilt
relaxation in sentencing as a consideration of the accused guilty plea. This
implies that opting for this procedure guarantees leniency in the sentencing as
a matter of right.
For instance, if an offence has minimum punishment the Court may give half of
it and where no minimum sentence has been provided it may give one fourth of the
It also directs him to make use of the provisions dealing with admonition
under Section 360 of the Criminal Procedure Code and probation under the
provisions of Probation of Offenders Act, 1958.
Judgment Of The Court: Section 265f
Section 265F states that the judgement of the court should be given in an open
court which will be also signed by the presiding officer of the court.
Finality Of The Judgment: Section 265g
Section 265G makes it clear that the judgment delivered by the Plea Bargaining
Judge is final and the only appeal shall lie by a special leave petition
under Article 136 and writ petition under Articles 226 and 227 of the
Power Of The Court In Plea Bargaining: Section 265h
Section 265H talks about the powers of the court in plea bargaining. These
powers include powers in respect of bail, the trial of offenses and other
matters relating to the disposal of a case in such court under Criminal
Period Of Detention Undergone By The Accused To Be Set-Off Against The Sentence Of Imprisonment: Section 265i
Section 265I allows for setting off the period of detention undergone by the
accused against the sentence of imprisonment imposed under this procedure.
Statements Of Accused Not To Be Used: Section 265k
Section 265K assures the accused that the statements or facts stated by the
accused in an application for Plea Bargaining filed under Section 265 B shall
not be used for any other purpose than for this procedure.
Non-Application Of The Chapter: Section 265l
Section 265L makes it clear that this chapter will not be applicable in case of
any juvenile or child as defined in Section 2(k) of Juvenile Justice (Care and
Protection of Children) Act, 2000.
Section 2(k) defines juvenile or child as- "juvenile" or "child" means a person
who has not completed eighteenth year of age.
Benefits Of Plea Bargaining
Benefits In Respect Of Victim
- Quick Justice for Victim.
- He can easily get the compensation, which he may get on the discretion
- He can save himself from long drawn Judicial Process.
- It is Less time and money consuming.
- End of Uncertainty.
Benefits To Accused
- Provision of lesser Punishment.
- If no minimum punishment is provided, then he will get one fourth of the
- He may be released on probation or admonition, which may not affect his
- He may get the gain of period already undergone in custody under section
428 of Cr.P.C
- No appeal lies against the judgment in favour of him.
- Complete Protection available for admission of accused cannot be used
for any other purposes except for Plea-bargaining.
- Less time and money consuming.
- End of Uncertainty.
Plea Bargaining an alternative dispute resolution mechanism introduced solely to
deal with the twin problems of huge pendency of criminal cases and resultant
under trials. Though the Indian Supreme court was initially hostile to this
scheme it gradually accepted its role in bringing efficiency to the criminal
justice system. The Law Commission of India also advocated its use to solve the
many challenges facing the system. The scheme was finally incorporated from the
criminal justice system of U.S.A with some marked differences in the year 2005.
The scheme has its merits as it allows the accused to choose an option which is
quick and efficient as compared to the formal trial which is lengthy and
expensive. But its biggest demerit lies in the fact that the accused has to
forego many rights associated with right to fair trial.
There is universal agreement to the fact that the burgeoning of criminal cases
and growing under trials is a big challenge to the credibility of the criminal
justice system in India. Having an alternative dispute resolution mechanism like
Plea bargaining is just one of the many solutions to this complex problem.
- Bryan Garner, Black's Law Dictionary (8th edn, Thomson &West 2004) 1190.
- Brady v. United States, 397 U.S. 742 (1970).
- Indian Jail: 4.83 lakh Indians in jail up to 2020-end, less than one-fourth
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