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Plea Bargaining And The Indian Laws

The latest figures reveal the pathetic conditions related to pendency of cases in Indian courts[1]. No less than three Crore of cases are pending before the courts according to the latest report. A large number of the cases have been lingering for about twenty years. The Chief Justice of India has shown his concern towards this pathetic condition of pendency of cases and thus vowed to clear the pendency in about five years.

The pendency of cases in India is thus a grave concern and is of primary importance. A number of high profile criminal cases in India were delayed to such an extent that the phrase, 'Justice delayed is justice denied' seemed true. The example of some of the cases which were delayed beyond imagination is; Uphaar Cinema fire case (1997)[2], the decision came after eighteen years and the main accused went scot free, Bhopal Gas tragedy (1984)[3], the case went on for several years but never the main culprit was incarcerated, 1984 anti-Sikh riot case (1984), till date the accused are free and victims are waiting for justice.

Thus, keeping such parameters in mind, the legislature of our country came with a solution to tackle with the pendency of cases. The concept of Plea bargaining though old in the global judicial scenario came to India recently in 2006. The criminal procedure code was amended and a new chapter XXI A was inserted by amendment act of 2005 containing the provisions related to plea bargaining.

Ten years have gone by since the revolutionary tool of plea bargaining was incorporated in the Indian criminal procedure code. The present work has been undertaken to assess the success of the concept of plea bargaining in India since its inception. The work has deployed simple doctrinal methodology of research and shall concentrate on the provided case laws, articles, legislation pertaining to the plea bargaining in India.
  The work shall also provide some suggestions if needed for plea bargaining to become an effective enough tool to tackle the pendency of cases. The article shall discuss in brief the history of plea bargaining as a global concept and then it shall assess the model of plea bargaining applicable in India by peeping into the advantages and disadvantages of plea bargaining in India.

Brief Historical Background Of Plea Bargaining

The rise of plea bargaining is usually traced to the nineteenth century, but it actually dates back hundreds of years to the adoption of confession law and has most certainly persisted for over eight centuries. Shortly after the Civil War, there was an explosion of plea deal litigation at the appellate level in the United States. Various courts summarily dismissed these bargains and allowed the accused to retract their confessions, citing previous confession precedent barring the provision of incentives in exchange for admissions of guilt.

However, these early American appellate rulings did not preclude American courts from taking a plea bargaining approach. Although collusion held plea bargaining alive in the late 19th and early 20th century, over criminalization necessitated its incorporation into standard criminal practise and eventual domination. Between 1908 and 1916, the percentage of federal sentences arising from guilty pleas increased from 50% to 72%. Despite the fact that plea bargaining rates increased dramatically in the early twentieth century, appellate courts were still wary of approving such agreements as they were challenged.[4][5]

The adversarial system's complexity rendered obtaining a verdict in a court case a difficult process, resulting in unjustified delays. The phenomenon of plea dealing arose as a result of the dysfunctional legal system and the inconsistencies of court trials.[6] Plea bargaining not only brought a breath of satisfaction to the accused who had been languishing in prison for years due to a lack of justice, but it also proved to be a time and cost efficient means for the court system to easily resolve felony trials.

In the United States, plea bargaining, also known as arranged pleas, is used to secure an overwhelming pace of about 95 percent of felony convictions. Plea bargains account for about 92 percent of prosecutions in England and Wales. Just 14.3 percent of trials in British crown courts go on trial, with the rest opting for a plea bargain.

In 1970, the American Supreme Court affirmed the practise in Bradley V. United States[7]. Certain common law and civil law jurisdictions are now following the procedure in various ways.[8]

As previously mentioned, plea bargaining is a relatively recent phenomenon in India, having only been adopted in 2006. Later in the paper, a systematic review of the Indian style of plea bargaining will be discussed. Figure 1 represents a timeline of plea bargaining history.

Plea Bargaining

  1. Meaning Of Plea Bargaining

    Plea Bargaining is a pretrial arrangement between the denounced and the arraignment where the charged consents to confess in return for specific concessions by the indictment. It is where a litigant confesses to a lesser allegation and the examiners consequently drop increasingly genuine accusations. It isn't accessible for a wide range of wrongdoing for example an individual can't guarantee supplication haggling in the wake of carrying out grievous wrongdoings or for the violations which are culpable with death or life detainment.

    The Supreme Court held that it was settled law in the State of Uttar Pradesh v. Chandrika (AIR 2000 SC164), which did not dispose of the criminal cases by means of plea bargaining. It must be decided by the Court on merits.
  2. Object Of Plea Bargaining

    The object of the legislative process is to:
    • Incorporate the principle of plea bargaining into the criminal process;
    • Decrease the number of inmates on trial.
    • Make the victim of crimes compensated by the accused.
    • To minimize delays in criminal proceedings.
  3. Drawbacks Of Plea Bargaining

    Some of the main drawbacks of the Plea Bargainingas principle are known in India:
    1. The right to a fair trial is challenged.
    2. The involvement of police in the course of plea negotiations will call for intimidation.
    3. The court is impartially contested by including the court in the Plea Bargaining process.
    4. Involving the victim in the course of plea bargaining will call for misconduct.
    5. The accused will face considerable difficulties in proving himself innocent if the accused's pleading guilty applied in rejection.
  4. Requirements

    Plea Bargaining should cover the following basic conditions, namely:
    • The hearing should be held before the court in order to guarantee equal justice.
    • The court must demonstrate itself, consciously and willingly, that the accused pleads guilty.
    • In order to avoid bias to the victim, any court order denying a request to plea bargaining shall be kept private.
  5. Types Of Plea Bargains

    Plea bargaining can mainly be classified into four types[9] [10][11][12],

Charge Bargaining:

This is the most well-known and popular form of plea bargaining. It requires a compromise on the charges or offences that the defendants will face at trial. A judge can usually dismiss the higher or other charges counts in exchange for a guilty plea to a lesser charge. A criminal charged with robbery, for example, could be given the option of pleading guilty to attempted burglary. As a consequence, it's simply a swap with compromises from both sides.

This kind of plea bargaining happens for getting less severe charges. This the most common form of plea bargaining in criminal cases. Here the defendant agrees to plead guilty to a lesser charge in consideration of dismissing greater charges.

E.g. pleading for manslaughter for dropping the charges of murder.

Sentence Bargaining:

A plea of guilty to the stated penalty rather than a lesser charge in exchange for a shorter sentence is known as sentence bargaining. It reminds the defence of the need to go to trial to make the point. It allows the convict to get a more lenient sentence. It is a procedure that was initiated in India, in which the accused, with the consent of the judge and the defendant or claimant, bargains for a lighter punishment than the offence warrants.

In this type of bargaining the main motive is to get a lesser sentence. In Sentence bargaining, the defendant agrees to plead guilty to the stated charge and in return, he bargains for a lighter sentence.

Facts Bargaining:

This is the least common type of deal, in which the prosecution agrees to admit to certain facts, removing the requirement for the prosecutor to assert them, in exchange for a promise not to add certain other facts into court.

This is generally not used in courts because it is alleged to be against Criminal Justice System. It occurs when a defendant agrees to stipulate to certain facts in order to prevent other facts from being introduced into evidence.

Counts Bargaining:

The suspect pleads guilty to a subset of various initial offences under this form of bargaining.

Plea Bargaining In India[13]

  1. Brief Historical Background

    The criminal amendment act of 2005 introduced plea dealing in India. A new chapter XXI A has been introduced, which contains provisions relating to the plea bargaining process. From the application for plea bargaining to the bargains that a prisoner can receive, sections 265 A to 265 L include the most fundamental requirements. In its 142nd, 154th, and 177th records, the Law Commission of India called for the implementation of "plea bargaining." The Law Commission's 154th Report proposed that the revised XXIA be integrated into the Criminal Procedure Code. The said Report did, in fact, refer to the Law Commission's previous report, the 142nd Report, which detailed the justification for the definition, its effective implementation in the United States, and how it could be codified.

    The Report suggested that the term be applied as an experimental measure to offences punishable by a sentence of less than seven years in jail and/or a fine, such as those protected by Section 320 of the Code. Plea bargaining should also be performed in terms of the extent and seriousness of the crimes, as well as the severity of the penalty. It was pointed out that the centre could not be open to habitual prisoners, those convicted of serious socioeconomic crimes, or those accused of crimes against women and children. The recommendation of the 154th Law Commission Report was supported and reiterated by the Law Commission in its 177th Report. Further, 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 justice[14].
  2. Procedure Related To Plea Bargaining In Brief

    • Plea bargaining is open to those charged with a crime other than that punishable by death, imprisonment for life, or a sentence of more than seven years in jail, according to Section 265-A. The right to inform the Central Government is provided by Section 265 A (2) of the Code. The Central Government released Notification No. SO 1042 (II) on July 11, 2006, listing the offences that have an effect on the country's socioeconomic situation.

      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.

      The court will then issue notice to the public prosecutor concerned, investigating officer of the case, the victim of the case and the accused for the date fixed for the purpose. When the parties appear, the court shall examine the accused in Camera where the other parties in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily.
    • Section 265-C lays out the steps that the court must take in order to reach a mutually acceptable resolution. In a lawsuit brought on the basis of a police report, the court must provide notice to the general prosecution, the case's investigation officer, the victim, and the perpetrator to attend a meeting to hammer out a fair resolution of the case. The Court must provide notice to both the accused and the survivor of the case in a lawsuit case.
    • Section 265-D deals with the court's preparing of a declaration on the achievement or lack of a mutually acceptable settlement. If a reasonable resolution of the case is reached in a meeting under section 265-C, the Court shall prepare a record of such disposition, which must be signed by the presiding officer of the Courts and all those persons who attended the meeting. If no such resolution has been reached, the Court shall record such observation and continue in accordance with the rules of this Code from the point at which the application under sub-section (1) of section 265-B was lodged.
    • When a fair resolution of the case has been carried out, Section 265-E prescribes the process to be followed in disposing of the case. The Court shall hear the parties on the quantum of the sentence or the accused's right to release on probation for good behaviour or after admonition after the proceedings under S. 265 D are concluded by drafting a report signed by the presiding officer of the Court and parties in the conference. The court has the option of either releasing the accused on probation under S. 360 of the Code, the Probation of Offenders Act, 1958, or any other applicable legislative provisions, or punishing the accused by passing the sentence.

      If the statute allows for a minimum penalty for the crimes committed by the convicted, the Court can impose a sentence of one-fourth of the punishment prescribed for such crime. If no such minimum punishment is given, the Court can pass a sentence of one-fourth of the punishment provided for such offence. Aside from that, where a report prepared under S 265 D, report on mutually agreeable disposition, provides a provision for providing compensation to the victim, the Court may also pass instructions to pay that compensation to the victim.

      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. A court for the purposes of discharging its functions under Chapter XXI-A, shall have all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under the Criminal Procedure Code.
      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.
  3. Features Of The Model Of Plea Bargaining In India[15]

    • The convicted party must take the opportunity to transfer the judicial machinery for agreed pleas for only those offences on which the cumulative sentence does not extend seven years.
    • The plea bargaining motion must be filed in the case where the crime is actually being charged. This is where the Indian scheme varies from the American scheme, in which the application is submitted together between the public prosecution and the accused after the parties have finished their talks.
    • If the court is pleased that the application was filed knowingly by the accused, the claimant, the accused, the public advocate, and the prosecuting officer, if the prosecution is one instituted on a police investigation, are given time to hammer out a mutually agreeable resolution of the case, which might include the accused givng up his or her rights.
    • The judge is not a bystander; he or she plays an important part in the proceedings. The court is in charge of ensuring that the whole operation is carried out with the accused's absolute and unconditional consent. When a fair resolution of the case has been reached, the court is required to dismiss the case after granting restitution to the claimant in accordance with the settlement and hearing the parties on the matter of penalty quantum. It may then impose the fine, which can range from one-fourth to one-half of the maximum penalty for the offence.
    • The statute also requires that the verdict be rendered in open court. A provision in favour of the accused has been inserted, stating that the argument or evidence claimed by an accused in a plea bargaining application can not be used for any other reason.
    • In the case of plea bargaining, the Judge's decision is binding, and there is no right of appeal to another court against it.
    • Section 265A states that plea bargaining is not available in cases where the sentence is more than seven years in jail and/or the crime has an effect on the country's socio-economic situation (as determined by the Central Government) or has been committed against a woman or a child under the age of fourteen years. In addition, the procedure is only available to first-time criminals.

    The conservative approach of the law has been revealed after reading the above parts relating to plea bargaining. A host of conditions added to India's plea bargaining model have limited it to prisoners committing crimes punishable by a maximum sentence of seven years in prison, given that the accused is not a minor and the offence committed by him is not socioeconomic in nature. Though a proved successful idea in the west, it has totally struggled to woo Indian audiences, as demonstrated by the judiciary's reaction, which is discussed below.
  4. Arguments Against Plea Bargaining In India

    Voluntarily Adopted Mechanism

    According to the legitimate arrangement managing Plea haggling, it is an intentional instrument which is possibly engaged when charged selects it energetically. However, the law is quiet on the point that on the off chance that, the settlement came to is in opposition to the reason for the legitimate framework.

    Involvement Of Police

    The Involvement of the police in request haggling additionally draws in analysis. As India is notorious for the custodial torment by police. In such situation, the idea of Plea Bargaining is bound to irritate the circumstance.


    The job of casualties in supplication bartering process is additionally not acknowledged. The job of casualty in this procedure would pull in defilement which is at last invalidating the point which is looked to be accomplished by such activity.

    Independent Judicial Authority

    The arrangements of Plea Bargaining don't accommodate a free legal power to assess supplication bartering applications. This is one of the glaring purposes behind its analysis.

    The in camera assessment of the charged by the court draw in may prompt open negativity and doubt for the request haggling framework. The inability to make private any request passed by the court dismissing an application could likewise make inclinations towards the denounced.

    Not The Final Solution
    The reasons given for the presentation of request haggling are the colossal congestion of correctional facilities, high paces of exoneration, torment experienced by under preliminary detainees and so on. In any case, the fundamental factor behind every one of these reasons is a deferral in the preliminary procedure.

    In India, the purpose for the deferral in preliminaries is numerous for example the activity of the analytical organizations just as the legal executive, individual enthusiasm of legal advisors and so on. Along these lines, the need of great importance is certifiably not a substitute for preliminary however an upgrade of the framework which can be as far as structure, piece and its work culture. Every one of these measures would guarantee sensibly quick preliminaries.
  5. Arguments For Plea Bargaining In India

    • Fast Disposal Of Cases

      The supplication dealing is valuable for both the arraignment and the protection on the grounds that there is no danger of complete misfortune at preliminary. It causes the lawyers to safeguard their customers in a simple manner in light of the fact that both the gatherings have dealing power. This is the means by which the long-standing questions can be settled and the court would likewise not have to confront encumbrance of case documents. Additionally, Plea dealing helps the courts in saving rare assets for the cases that need them most.
    • Less Serious Offences On One's Record

      In a nation like India, society assumes an indispensable job. When an individual is criticized by society it turns out to be hard for that individual to endure. Numerous a period criticism prompts alienation. In such situation, Plea Bargaining permits an individual to concede or no challenge in return for a decrease in the quantity of charges or the earnestness of the offenses. This outcomes in recording less genuine offenses on the official court records of a denounced. This can be useful for the charged when he is sentenced later on.
    • An Issue Free Methodology

      Indian is known for its long-standing case. Numerous cases procedures go for 8-multi year subsequently both the gatherings endure. There have been occasions where denounced invested more energy in prison than the most extreme discipline for which he was charged. Such examples show a grave encroachment of their human rights.

      Request bartering permits an individual to concede without employing an attorney. Be that as it may, If they stood by to go to preliminary, they would need to discover and employ a legal counselor, and in that procedure, they need to invest probably some energy working with the legal advisor to plan for preliminary and pay the legal advisor. The idea of supplication bartering shields the enthusiasm of such people by maintaining a strategic distance from the problems that they face when the case stays pending.
    • It Avoids Publicity

      Besides, Plea Bargaining is additionally a decent component to stay away from exposure in light of the fact that the more drawn out the case goes the greater exposure the denounces gets. Hence supplication bartering maintains a strategic distance from such exposure by a quick settlement of the case. Renowned and customary People who rely upon their notoriety in the network for their living, and those individuals who need to get away from any superfluous belittling. In spite of the fact that the updates on the supplication itself might be open yet it remains just for a brief timeframe when contrasted with updates on a preliminary.
    • Judicial Pronouncements To Plea Bargaining In India

      In Madanlal Ramchandra Daga vs. State of Maharashtra[16], The Hon'ble Supreme Court reprimanded the idea of Plea Bargaining and said that it meddles with the general public's inclinations. (see here)

      In Kasambhai versus State of Gujarat[17] and Kachhia Patel Shantilal Koderlal versus State of Gujarat and Anr, the Apex court said that the Plea Bargaining is against open arrangement. Additionally, it lamented the way that the officer acknowledged the supplication haggling of blamed. Besides, Hon'ble Court depicted this idea as an exceptionally indefensible practice. (see here)
The Court additionally held that training of request dealing as unlawful and illegal and will in general support the defilement, arrangement and dirty the unadulterated wellspring of equity.

Thippaswamy versus State of Karnataka[18], the Court said that initiating or driving a charged to concede under a guarantee or confirmation would be violative of Article 21 of the Constitution.

The Court additionally expressed that:
In such cases, the Court of bid or update should put aside the conviction and sentence of the denounced and remand the case to the preliminary court so the blamed can, on the off chance that he so wishes shield himself against the charge and in the event that he is seen as liable, legitimate sentence can be passed against him.

In State of Uttar Pradesh versus Chandrika[19], the Apex Court derided the idea of request haggling and held this training as unlawful and illicit. Here the Hon'ble Court was of the view that on the supplication haggling Court can't premise of discarding criminal cases. The case must be chosen the legitimacy. In promotion of the equivalent, court said that if the blamed admits his blame, he should be given the fitting sentence as required by the law. (see here)

In the State Of Gujarat versus Natwar Harchandji Thakor[20], the Court recognized the significance of supplication dealing and said that each "request of liable" which is interpreted to be a piece of the legal procedure in the criminal preliminary, ought not be comprehended as a "supplication bartering" ipso facto. It involves matter and must be chosen a case to case premise. Thinking about the dynamic idea of law and society, the court said that the very object of the law is to give a simple, modest and quick equity by settling questions.

In Pardeep Gupta v. State[21], Honourable Judge observed that "The trial court's rejection of the plea bargain shows that the learned trial court had not bothered to look into the provisions of chapter XXI A of Code of Criminal Procedure meant for the purpose of plea bargaining and rejected the application on the ground that since the applicant is involved in an offence under section 120-B Indian Penal Code and the role of applicant was not lesser than the other co-accused.

But none of the offences in which the petitioner has been booked attracted more than seven years punishment. The request of plea bargaining is ought to be considered taking into account the role of the accused, and the nature of the offence, etc. The High Court directed the trial court to reconsider the application of plea bargaining made by the accused in the light of provisions made in the Code of Criminal Procedure and not in a casual manner.

It is clear from the review of pre as well as post amendment judgments that plea bargaining is in a poor state in Indian criminal justice system as the number of cases reported under plea bargaining are very few.

It is interesting to see that before the Criminal Law Amendment Act 2005, all plea bargain cases were rejected by courts. The situation has changed in post 2005 period to some extent but still the judiciary tends to have a mixed approach towards this valuable addition to the Criminal Law Justice System and by any standard it is grossly underutilized in spite of its very restricted scope of applicability.

The concept of plea bargaining isn't completely new in India. Indian has just remembered it when it got its constitution in 1950. Article 20(3) of Indian constitution restricts self-implication. Individuals blame request expecting violatory of the said article. However, with the progression of time the thinking about the encumbrance on the courts, the Indian court has felt the need of Plea dealing in Indian legitimate framework.

At the point when a change is brought it is difficult to acknowledge it at first yet society needs to develop so is our legitimate framework. Everything has focal points and disservices and both must be examined all together arrive at a sound resolution. Dismissing something just based on its drawbacks would not be defended regardless. The idea of supplication dealing is developing in India and it isn't fitting to anticipate that it should be great. It must be improved by discussion, conversations, and talks.

Second, the courts and the legal profession should support the legislation relating to plea bargaining; otherwise, a specific law would not become a standard solution. Plea bargaining law should be given serious consideration and exercised on a daily basis. To remedy the terrible state of the judiciary in terms of litigation pending, plea bargaining seems to be the only near-term option that can effectively address the issue if it is given serious consideration.

Plea Bargaining is certainly a controversial concept which is accepted by few and abandoned by other people. True, Plea Bargaining accelerates the use of caseload, but it does so in an unconstitutional way. But maybe we don't have any other options than that. Too troublesome is the criminal court, to allow all cases to proceed. Only time will decide whether or not to introduce this concept.

  1. Press Trust of India, New Delhi, Updated: April 5, 2015 9:54 pm, the Indian Express.
  2. 2002 IVAD Delhi 979, 98 (2002) DLT 175, 2002 (63) DRJ 461
  3. 1990 AIR 273, 1989 SCC (2) 540
  4. John H. Langbein (1979): Understanding the Short History of Plea Bargaining, Faculty Scholarship Series, Paper 544. http://digitalcommons.
  5. Aabhas Kshetrapal (2013): A Deviation From The Former Adversarial Trial: The Concept Of Plea Bargaining And Its Contemporary Relevance,, BBA. LLB (Hons) Project, National Law University, Jodhpur,
  6. U.S. Sentencing Commission (2010): Sourcebook Of Federal Sentencing Statistics, available at
  7. 104, U.S. 442 (1881).
  8. Albert Alschuler (1979): Plea Bargaining and Its History , 79 Columbia Law Review 1
  9. K. V. K. Santhy (2013): Plea Bargaining in US and Indian Criminal Law Confessions for Concessions,
  10. - Chapter 5, Plea Bargaining in India
  11. K. T. Thomas (2011): Plea Bargain- a fillip to Criminal Courts, available on
  12. S. Rai (2007): Law relating to Plea bargaining, 47 Orient Publishing Company, New Delhi, Allahabad
  13. Plea Bargaining - A New Concept:
  14. Plea Bargaining- A New Development in the Criminal Justice System Posted on December 18, 2010 by Neeraj Aarora
  15. Neeraj Arora, Plea Bargaining - A New Development in Criminal Justice System. (2010)
  16. A.I.R 1968 SC 1267
  17. 1980 AIR 854
  18. [1983] 1 SCC 194
  19. 2000 Cr.L.J. 384(386)
  20.  (2005) 1 GLR 709
  21. Delhi High Court Bail Application No. 1298/2007 - Judgment on 3rd September 2007 reported in Reference No. 26

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