What is Plea Bargaining?

It refers to a person charged with a criminal offence negotiating with the prosecution for
a lesser punishment than what is provided in law by pleading guilty to a less serious
offence.
It primarily involves pre-trial negotiations between the accused and the
prosecutor. It may involve bargaining on the charge or in the quantum of sentence .
When was it introduced in India?
Plea bargaining was introduced in 2006 as part of a set of amendments to the CrPC as
Chapter XXI-A, containing Sections 265A to 265L .
In what circumstances is it allowed? How does it work?
In India, a plea bargaining process can be initiated only by the accused;
The accused will have to apply to the court for invoking the benefit of bargaining.
The applicant should state that it is a voluntary preference and that he has
understood the nature and extent of punishment provided in law for the offence .
The court would then issue notice to the prosecutor and the complainant or victim, if any,
for a hearing.
- The voluntary nature of the application must be ascertained by the judge in an in-
camera hearing at which the other side should not be present.

- Thereafter, the court may permit the prosecutor,the investigating officer and the
victim to hold a meeting for a “satisfactory disposition of the case”.
- The outcome may involve payment of compensation and other expenses to the victim
by the accused.
- Once mutual satisfaction is reached, the court shall formalise the arrangement by
way of a report signed by all the parties and the presiding officer.
- The accused may be sentenced to a prison term that is half the minimum period fixed
for the offence. If there is no minimum term prescribed, the sentence should run up to
one-fourth of the maximum sentence stipulated in law .

What is the rationale for the scheme?

The Justice Malimath Committee on reforms of the criminal justice
system endorsed the various recommendations of the Law Commission with regard to
plea bargaining.

 Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the concept of
Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It allows plea
bargaining for cases:

1. Where the maximum punishment is imprisonment for 7 years;

 2. Where the offenses don’t affect the socio-economic condition of the country;
3. When the offenses are not committed against a woman or a child below 14 are excluded
The 154th Report of the Law Commission was first to recommend the ‘plea bargaining’ in
Indian Criminal Justice System. It defined Plea Bargaining as an alternative method which
should be introduced to deal with huge arrears of criminal cases in Indian courts.

Then under the NDA government, a committee was constituted which was headed by the former
Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to tackle the issue
of escalating number of criminal cases. The Malimath Committee recommended for the plea
bargaining system in India. The committee said that it would facilitate the expedite disposal of
criminal cases and reduce the burden of the courts. Moreover, the Malimath Committee pointed
out the success of plea bargaining system in the USA to show the importance of Plea Bargaining.

Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament
and finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to
amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the
Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country,
which is inundate with a plethora of criminal cases and overabundant delay in their disposal on
the one hand and very low rate of conviction in cases involving serious crimes on the other.

 Types of plea bargaining:

There are three main types of Plea Bargaining namely;
1) Charge Bargain- The accused bargains against the charges he has framed with or for
lessor charges.

2) Sentence Bargain- here, the accused bargains for lesser punishment by accepting his guilt.

3) Fact Bargain- This is generally not happened as it is considered against the criminal justice
system. But in a few cases, it occurs when a defendant agrees to certain fact sof the case so that
new facts must not be introduced later as evidence.

 PROS/CONS OF PLEA BARGAINING:

 Advantages of plea bargaining:

1. · Plea bargaining ensures a speedy trial of criminal cases.
2. · It saves time and litigation cost of the parties.
3. · It also increases conviction rates.
4. · It reduces overcrowding of prisons in jails.
5. · It also reduces the burden of courts.
 6. · It saves undertrials from a long imprisonment.
7. · It allows offenders to start a new life.
8. · It is friendly in nature as the procedure is pragmatic.
9. · It is helpful when there is no evidence.
10. It encourages the accused to actively participate in plea bargaining process.
11. In the case of State Of Gujarat v. Natwar Harchandji Thakor, the Court recognized the
importance of plea bargaining by taking into account the increasing problems in the
criminal justice system, the Court said that the purpose of the lawmakers is to create such
laws that help in providing easy and expeditious justice.

 Drawbacks of plea bargaining:

· It is a threat to the victim’s right to a fair trial under Article 21 of the Constitution of India.
· Police may coerce to the accused as they are involved in the Plea Bargaining procedure.
· The accused will face great hardship to prove himself innocent by confessing his guilt.
· It violates the accused right against self-incrimination under Article 20(3) of the Constitution.
· There are chances of corruption in plea bargaining as victims and police both are part of plea
bargaining.
· It is against the principles of criminal jurisprudence and public policy.
· There is a risk that the innocent may plead guilty.
In Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr the Supreme Court held that
“the practice of plea bargaining is unconstitutional, illegal and could encourage corruption and
collusion”. Similarly, in Kasambhai v. State of Gujarat , the Court expressed its apprehension on
the concept of plea bargaining as in its view it was likely to be abused.
In the case of State of Uttar Pradesh v. Chandrika the Apex Court disagreed with the concept of
plea bargaining and held this practice as unconstitutional and illegal. The court said that “plea
bargaining cannot basis for disposing of criminal cases. The case has to be decided on merit. And
the accused must be punished as per law even though he confesses his guilt”.