The latest figures reveal the pathetic conditions related to pendency of cases
in Indian courts. 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), the decision
came after eighteen years and the main accused went scot free, Bhopal Gas
tragedy (1984), 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.
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.
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. 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. Certain common law and civil law jurisdictions are now following the
procedure in various ways.
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.
Meaning Of Plea BargainingPlea 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
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.
Object Of Plea BargainingThe 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.
Drawbacks Of Plea Bargaining Some of the main drawbacks of the Plea Bargainingas principle are known
- The right to a fair trial is challenged.
- The involvement of police in the course of plea negotiations will
call for intimidation.
- The court is impartially contested by including the court in the
Plea Bargaining process.
- Involving the victim in the course of plea bargaining will call for
- The accused will face considerable difficulties in proving himself
innocent if the accused's pleading guilty applied in rejection.
Requirements Plea Bargaining should cover the following basic conditions, namely:
- The hearing should be held before the court in order to guarantee equal
- 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.
Types Of Plea BargainsPlea bargaining can mainly be classified into four types ,
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
E.g. pleading for manslaughter for dropping the charges of murder.
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.
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
The suspect pleads guilty to a subset of various initial offences under this
form of bargaining.
Plea Bargaining In India
Brief Historical BackgroundThe 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.
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
- 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
- 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
- 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
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
Section 265-I makes Section 428 applicable to the sentence awarded on plea
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)
Features Of The Model Of Plea Bargaining In India
- 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
- 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
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.
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
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
Independent Judicial AuthorityThe 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
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.
Arguments For Plea Bargaining In India
Fast Disposal Of CasesThe 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 RecordIn 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 MethodologyIndian 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
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 PublicityBesides, 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
Judicial Pronouncements To Plea Bargaining In IndiaIn Madanlal Ramchandra Daga vs. State of Maharashtra, 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 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, 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, 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
, 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
In Pardeep Gupta v. State
, 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
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
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
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