COMPARATIVE CRIMINAL PROCEDURE

INTRODUCTION

Plea Bargaining is a concept that originates in the United States and it has evolved over the
age to become a prominent feature of the American Criminal Justice System. Plea Bargaining
is the pre-trial negotiation between the defendant and prosecution during which accused
pleads guilty in exchange for certain concession by the prosecutor. This usually involves
negotiation to reduce either the sentence or the seriousness of the charges. In the U.S.A, more
than 75% of the Criminal Case end in guilty pleas, almost all resulting from plea bargaining.
In federal courts, virtually all defendants who plea guilty qualify for a 20% reduction of
sentence.1 Plea Bargaining is not an indigenous concept of Indian legal system. It is a part of
the recent development of Indian Criminal Justice System (ICJS). It was inculcated in Indian
Criminal Justice System after considering the burden of long-standing cases on the Judiciary.

The Plea bargaining is of three type in India : 1. Sentence bargaining, 2.Charge bargaining, 3.
Fact bargaining.

ANALYSIS

The Sixth Amendment to US Constitution enshrines the fair trial principle. But it did not
mention the practice of plea bargaining. However the US judiciary has upheld the
constitutionality of this process. The classic case of adoption of plea bargaining is the case of
assassination of Martin Luther KingJr.2 Plea Bargaining was upheld as constitutional in
United States in the case of Brady v. United States.3 Plea bargaining is heavily entrenched in
the American criminal administration. In this case the constitutional validity of the plea
bargaining was considered and the court upheld the constitutional validity of plea bargaining.
There are three kinds of pleadings that are accepted by the US courts.4

The Indian concept of plea Bargaining is inspired from the concept of : the accused can
plead guilty, not guilty or nolo contendere. Plea bargaining is based on the plea of nolo

1
Gale Encyclopedia of US history
2
Huie, William Bradford (1997). He Slew the Dreamer: My Search for the Truth About James Earl Ray and the
Murder of Martin Luther King (Revised ed.). Montgomery: Black Belt Press. ISBN 978-1- 57966-005-5.
3
397 U.S. 742 “In this case the Supreme Court held that merely because the agreement was entered into out of
fear that the trial may result in a death sentence, would not illegitimise a bargained plea of guilty. The U.S.
Supreme Court has approved practices such as plea bargaining when properly conducted and controlled.”
4
Corbitt v New Jersey 439 U.S. 212.

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contendere which, as per Fox v. Schedit & State Exrel Clark v. Adam, is a quasi-
confession. It is not an inherent right afforded to the accused, but once given by the court it
cannot be conditional or retracted in any manner.5
The Indian version of pleas bargaining leans heavily on the American provisions & the
implementation of the provisions which brought plea bargaining in very limited cases in a
limited manner. However, there are a few significant differences between the Indian and
the American scheme of plea bargaining:
GROUNDS OF INDIA ON PLEA AMERICAN MODEL OF
DIFFERENCE BARGAINING PLE BARGAINING
FILING OF The onus is on the defendant An application for plea
APPLICATION to file an application for plea bargaining is filed only after
bargaining. negotiations between the
accused and the prosecution
is over.
Indian law implies that the In U.S.A, there is no
LIMITATION ON THE victim has an active say in restriction or limitation on
KIND OF OFFENCES the bargaining proceedings, the kind of offences for
and may refuse or veto an which plea bargaining can be
unsatisfactory resolution. applied. It may be applied for
even in offences that carry a
sentence of death penalty or
life imprisonment.
VOLUNTARINESS OF There is a provision for the No such provision.
THE APPLICATION court to ascertain the
voluntariness of the
application

There was much debate before the incorporation of plea bargaining, since the courts were
vehemently opposed to it. In Muralidhar Meghraj Loya v. State of Maharastra6, Justice
Krishna Iyer, a closer inspection reveals the background of his observation. Justice Iyer’s
apprehensions have been mitigated to a great deal with the model that was implemented
finally. The offence in question was in relation to food adulteration which had widespread

5
Section 265B (2) of Criminal Procedure Code, 1973.
6
Muralidhar Meghraj Loya v. State of Maharastra AIR 1976 S.C. 1929.

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health ramifications. However, with the provisions of the CrPC, socio-economic offences are
omitted from the purview of the plea bargaining so if any offence has a broad spectrum
effect, the option of plea bargaining will not be available. Secondly, plea bargaining does not
always imply that the accused will not be jailed. He will still be punished, and his reduced
sentence cannot be lesser than half or one fourth as the case may be.
The rationale behind the introduction of plea bargaining in India was its efficacy in
disposing off cases quickly and hence substantially reducing in the backlog problem. The
courts have long maintained that justice delayed is justice denied. However, the Indian courts
are plagued with a systemic case of backlogs. Plea bargaining certainly seems like an
expeditious and efficient device to solve this problem; however it is yet to become popular.
Although the legislature has been extremely cautious in its approach towards it and has
succeeded in circumventing some of the issues that are associated with plea bargaining, there
is still scope for improvement to make it not only administratively efficient, but also
procedurally fair and just.
There are many other incidents of considering plea bargainin in Indian Legal Aspects like
in Kasambhai vs State of Gujarat7 & Kachhia Patel Shantilal Koderlal vs State of Gujarat
and Anr, the Apex court said that the Plea Bargaining is against public policy. Moreover, it
regretted the fact that the magistrate accepted the plea bargaining of accused. Furthermore,
Hon’ble Court described this concept as a highly reprehensible practice. The Court also held
that practice of plea bargaining as illegal and unconstitutional and tends to encourage the
corruption, collusion and pollute the pure fount of justice.
Thippaswamy vs State of Karnataka,8 the Court said that inducing or leading an accused to
plead guilty under a promise or assurance would be violative of Article 21 of the
Constitution.

I. Reasons for Introducing Plea Bargaining & Law Commission

The Law Commission of India advocated the introduction of ‘Plea Bargaining’ in the 142nd,
154th and 177th reports. The 142nd Report set out in extensor the rationale and its successful
functioning in USA and manner in which it should be given a statutory shape. This Report
recommended that the said concept be made applicable as an experimental measure to

7
Kasambhai vs State of Gujarat (1980 AIR 854).
8
Thippaswamy vs State of Karnataka, [1983] 1 SCC 194.

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offences which are punishable with imprisonment of less than 7 years and/or fine including
the offences covered by section 320 of the Code. It was also recommended that plea
bargaining can also be in respect of nature and gravity of the offences and the quantum of
punishment. It was observed that the said facility should not be available to habitual
offenders and to those who are accused of socio-economic offences of a grave nature and
those accused of offences against women and children. The 154th report recommended
dealing with huge arrears of criminal cases. This recommendation of the 154th Law
Commission Report was supported and reiterated by the Law Commission in its 177th
Report. 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 21 .In its report, the Malimath Committee
recommended that a system of plea-bargaining be introduced into the criminal justice system
of India to facilitate the earlier resolution of criminal cases and reduce the burden on the
courts.9

II. RECOMMENDATION

1. Even after section 12, 265 & 428 there is very less awareness between the
prisoners. Hence the provisions should be introduced to make jail superintendents
and probation officers to be duty bound to conduct sessions for creating awareness
in prisoners.
2. A time should be laid down within which if the trial hasn’t commenced the under
trial prisoner should be let free.
3. There should be more clarity on the offences which come under social economic
offences. Also govt. Should issue guidelines as to on what basis the offences will
be considered as Socio Economic offence so to avoid arbitrary use of the power.
4. A parallel system should be made to consider cases dealing with plea bargaining.
If the forum doest feel satisfactory to consider the case it may send it back to the
court which should proceed from the stage where such application has been filed
for plea bargaining.
5. A time frame should be stipulated for working out a mutually satisfactory
disposition.

9
Recommendation 106 Malimath Commission Report, http://www.hrdc.net/sahrdc/hrfeatures/HRF88.htm

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III. CONCLUSION

This disputed concept of Plea Bargaining is more a mechanism of convenience and mutual
benefit than an issue of morality, legality or constitutionality. There is an inevitable need for
a radical change in criminal justice mechanism. It may be a welcome change but only when
there is possibility of swift and inexpensive resolution of cases. If the sole purpose of
criminal justice system is to rehabilitate criminals into society, by making them undergo
specified sentences in prison, then plea bargaining looses most of its charm. Whether it is
known or not, plea bargaining is being practiced by the various stakeholders of ‗crime‘ and
criminal justice system. Putting this process under judicial scrutiny opens up the possibility of
fair dealings in these bargaining. In the present atmosphere plea bargaining is inevitable
component of adversarial system.

However, to make use of the available process and to secure the gains from these reforms, the
plea bargaining process could be successfully used, for which the police, judiciary and the bar
need to understand it in first place, and try to adopt. Defending Advocates should encourage
the litigant to opt for the plea bargaining rather than to treat the plea bargaining as threat to
their profession. It is obvious that the capacity building of police and judges should be the
high priority and a pre-requisite for experimenting the plea bargaining. It can be given a
chance of survival. From the experience in US it can be said that the plea bargaining remains
a disputed concept and a doubtful practice. As the overloading of courts with piling up of
criminal cases is threatening the foundations of the system, the plea bargaining may be
accepted as one of the required measures for speeding up caseload disposition. After giving a
rigorous trial to this mechanism, there should be a thorough study of its working, its impact
on crime rate, conviction rate, and ultimately how the rule of law is affected.

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REFERENCE

BOOKS:

1. The Code of Criminal Procedure – by Ratanlal & dhirajlal (21st ed).

ARTICLE:

1. Plea – Bargaining in India: Applicability, cases & comparative analysis, by Admin

Lawnn.
2. K.V.K. Santhy, Plea Bargaining In US And Indian Criminal Law Confessions For
Concessions, NALSAR LAW REVIEW, Vol 7:No.1, 2013.
3. SonamKathuria, The Bargain has been Struck: A Case for Plea Bargaining in India,
NLS Student Bar Review, Vol 19(2), 2007.
4. hree Ram’s The Law, Vol. II, Issue X October 2014, A monthly Journal cum Magazine
on Law and Judiciary.
5. Mrs Patil Deepa Praveen, Analysis of Plea Bargaining in India Cr.L.J. Jan. 2010 atp18

STATUTES:

1. Section 265 A to 265 L, The Criminal Procedure Code, 1973

LAW COMMISSION REPORTS:

1. The 142nd Report of the Law Commission of India.

2. The 154th Report of the Law Commission of India.
3. The 177th Report of the Law Commission of India.

RESEARCH PAPERS
1. Rosie Athulya Joseph, Plea Bargaining : a means to an end, Manupatra.

ONLINE DATABASES:
1. Westlaw (www.westlawindia.com)
2. SCC Online (www.scconline.com)
3. Lexis Nexis (www.lexisnexis.com)

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