CHAPTER – 1

INTRODUCTION

1.1 Introduction

A plea bargain allows both parties to avoid a lengthy criminal trial and may

allow criminal defendants to avoid the risk of conviction at trial on a more serious charge.

For example, in the legal system of the United States, a criminal defendant charged with

a felony theft charge, the conviction of which would require imprisonment in state prison,

may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may

not carry a custodial sentence.

In cases such as an automobile collision when there is a potential for civil

liability against the defendant, the defendant may agree to plead "no contest" or "guilty

with a civil reservation", which essentially is a guilty plea without admitting civil liability.

Plea bargaining can present a dilemma to defense attorneys, in that they

must choose between vigorously seeking a good deal for their present client, or maintaining

a good relationship with the prosecutor for the sake of helping future clients. However, in

the case of the USA for example, defense attorneys are required by the ethics of the bar to

defend the present client's interests over the interests of others. Violation of this rule may

result in disciplinary sanctions being imposed against the defense attorney by the appropri-

ate state's bar association.

In charge bargaining, defendants plead guilty to a less serious crime than

the original charge that was filed against them. In count bargaining, they plead guilty to a

1
subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in

advance what sentence will be given; however, this sentence can still be denied by the

judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (i.e.,

to affirm or concede) certain facts that will affect how the defendant is punished under

the sentencing guidelines.

Plea bargaining was considered a predominantly American phenomenon

during the 1970s, but has since spread throughout the world.

From the point of view of the accused, it means that he trades conviction

and a lesser sentence, for a long, expensive and tortuous process of undergoing trial where

he may be convicted. In practice, it represents not so much of “mutual satisfaction” as per-

haps “mutual acknowledgment” of the strengths or weaknesses of both the charges and the

defense s, against a backdrop of crowded criminal courts and court case dockets. Thus, it

involves an active negotiation process by which the accused offers to exchange a plea of

guilty, thereby waiving his right to trial, for some concessions in charges or for a sentence

reduction. A plea bargain is an agreement reached in a criminal case to finally settle it. In

a case instituted on a police report, the parties to the agreement are the accused, the inves-

tigating officer, the prosecutor and the victim. All of them must agree to settle the criminal

case in which the accused pleads guilty to the offence for which a trial is pending. In any

other case, the parties to the agreement are the accused and the victim. They must agree to

settle the criminal case in which the accused pleads guilty to the offence for which a trial

is pending. The agreement to settle a case must be under the guidance and supervision of

the Court.

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 Plea bargaining, in law, the practice of negotiating an agreement between

the prosecution and the defense whereby the defendant pleads guilty to a lesser offense or

(in the case of multiple offenses) to one or more of the offenses charged in exchange for

more lenient sentencing, recommendations, a specific sentence, or a dismissal of other

charges. Supporters of plea bargaining claim that it speeds court proceedings and guaran-

tees a conviction, whereas opponents believe that it prevents justice from being served. The

great majority of criminal cases in the United States involve some form of plea bargaining.

A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceed-

ings, whereby the prosecutor provides a concession to the defendant in exchange for

a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a

less serious charge, or to one of the several charges, in return for the dismissal of other

charges; or it may mean that the defendant will plead guilty to the original criminal charge

in return for a more lenient sentence.

Plea bargains are not always easy to recognize. Negotiations that result in

formal agreements are termed “explicit plea bargains.” However, some plea bargains are

called “implicit plea bargains” because they involve no guarantee of leniency. Explicit bar-

gains are the more important of the two.

Plea bargaining is a pretrial negotiation between the accused and the prose-

cution where the accused agrees to plead guilty in exchange for certain concessions by the

prosecution. It is a bargain where a defendant pleads guilty to a lesser charge and the pros-

ecutors in return drop more serious charges. It is not available for all types of crime e.g. a

3
person cannot claim plea bargaining after committing heinous crimes or for the crimes

which are punishable with death or life imprisonment.

An agreement as a result of negotiation between the prosecution and defense

(at time, also the judge) which settles a criminal case, usually in exchange for a more lenient

punishment. Typically, the defendant will plead guilty to a lesser crime or for a fewer

charges than originally charged, in exchange for a more lenient punishment than the de-

fendant would get if convicted at trial. It is seen as a win-win for all the parties as the

prosecution has a certain conviction on the record, the defendant is provided a more lenient

sentence than the risk of a higher one at trial and the judge is freed to move to other cases

and dispute to resolve.

Plea Bargaining can conclude a criminal case without a trial. When it is suc-

cessful, Plea Bargaining results in a plea agreement between the prosecutor and defendant.

In this agreement, the defendant agrees to plead guilty without a trial, and, in return the

prosecutor agrees to dismiss certain charges or make favorable sentence recommendation

to the court. Plea Bargaining is expressly authorized in statutes and in court rules.

The path of plea bargaining's rise was in great part a function of the powers and interests

of individual courtroom actors. Although criminal defendants play a distinct part in this

story, the most important actors prove to be prosecutors and judges. In the early decades of

the nineteenth century, plea bargaining was the work of prosecutors, who found natural

incentives in the quick and easy victories it gave them. But because judges and not prose-

cutors held most of the sentencing power and therefore most of the plea-bargaining power

4
could spread no further than those few cases in which prosecutors happened to hold the

balance of sentencing power.

It is true too, in view of threats such as long terms in prison, there is a strong

possibility that the innocent may plead guilty. It may well be a rational calculation, given

the penalty of going to trial, for there is clearly such a penalty. The prosecutor typically

induces a plea by offering a “carrot,” the lesser charge, and at the same time a gigantic

“stick.” It is not simply that he may well tack on additional charges enabling mandatory or

even consecutive punishments, should the defendant go to trial. He also can threaten that

he will introduce evidence of uncharged conduct at the sentencing, or even evidence of

counts for which the defendant was acquitted, so long as the defendant is convicted of

something. No other common law country in the world enables the prosecutor to seek a

sentence based on criminal conduct never charged, never subject to adversary process,

never vetted by a grand jury or a jury, or worse, charges for which the defendant was ac-

quitted.

Undoubtedly, speedy trial is an essence of criminal justice system and delay

in trial by itself constitutes denial of justice. Pendency for long periods operates as an en-

gine of oppression. In order to reduce the delay in disposing of criminal cases the Law

Commission recommended introduction of “Plea Bargaining” as an alternative method to

deal with huge arrears of criminal cases. Its introduction in Criminal Procedure code was

recommended by Law Commission.4This recommendation was supported by Malimath

Committee also. In statements of objects and reasons of the Act it is mentioned that disposal

of criminal trials don’t commence for as long as 3 to 5 years. In a given situation, plea

5
bargaining seems to be the only panacea left to bail out from this situation. The Act was

enforced with effect from 5th July, 2006.

This has certainly changed the face of the Indian Criminal Justice System.

Some of the salient features of ‘Plea Bargaining’ are that it is applicable in respect of those

offences for which punishment is up to a period of 7 years. Moreover it does not apply to

cases where the offence committed is a socio-economic offence or where the offence is

committed is committed against a woman or a child below the age of 14 years.5Plea bar-

gaining is a concept in which a prosecutor and an accused settle a criminal case among

themselves through bargain. In this case the accused agrees to plead guilty in exchange of

some concession. This concession includes reducing the original charge, dismissing the

charges etc. In fact a plea bargain allows the parties to settle the pending charge and the

parties agree on the outcome. Thus, plea bargaining, in its most traditional and general

sense, refers to pretrial negotiations between the defendant, usually conducted by the coun-

sel and prosecution, during which the defendant agrees to plead guilty in exchange for cer-

tain concession by the prosecutor.

According to Black’s Law dictionary defines plea bargaining as the process

whereby the accused and the prosecutor in criminal cases work out a mutually satisfactory

disposition.

This is not a new concept but it existed even in 19th century. In the United

States, plea-bargaining is significant part of the criminal justice system. In American Crim-

inal Justice System, plea bargaining is rule rather than exception. Majority of criminal cases

are settled by plea-bargaining rather than by a trial by jury. According to an estimate ninety

6
five percent criminal cases never go to trial because of the bargaining struck between the

prosecution and the attorney of the accused well before the trial commences. But it is a

subject to the approval of the court. The rules pertaining to Plea-bargaining in all states of

US are different. Therefore, more than 90% of the cases are settled through Pleabargaining

in US. It has become a prominent feature of American Judiciary that the disposing rate of

cases is very rapid therefore, backlog is under control. Prosecutor initiates about the plea-

bargaining proceedings.

One of the main arguments advanced in the favour of plea-bargaining is that

it helps in speedy disposal of accumulated cases and will expedite delivery of criminal

justice. In USA, Supreme Court established the constitutionality of plea bargaining in

Brady v. United States (1970). But the court warned that it would have “serious doubts” if

the “encouragement of guilty pleas by offers of leniency substantially increased the likeli-

hood that defendants, advised by competent counsel, would falsely condemn them-

selves6.”Sadly, there are numerous documented cases of innocent defendants pleading

guilty, including wellknown examples such as Brian Banks. In 2002, at the age of 17, Mr.

Banks was wrongly accused of rape yet chose a plea bargain with a maximum sentence of

seven years in prison. If he rejected the offer and lost at trial, he faced 40 years to life in

prison. He took the deal and falsely confessed. In 2012, after definitive evidence of his

innocence came to light, a California court reversed the conviction.

A million dollar question which comes to our mind is, how prevalent is the

phenomenon of innocent people pleading guilty? The few criminologists who have thus far

investigated the phenomenon estimate that the overall rate for convicted felons as a whole

7
is between 2 percent and 8 percent. The size of that range suggests the imperfection of the

data; but let us supposes that it is even lower, say, no more than 1 percent. When you recall

that, of the 2.2 million Americans in prison, over 2 million are there because of plea bar-

gains, we are then talking about an estimated 20,000 persons, or more, who are in prison

for crimes to which they pleaded guilty but did not in fact commit.

Similarly there are few cases such as Aaron Swartz, the twenty-six-year-old

Internet prodigy accused of wire fraud and violations of the Computer Fraud and Abuse

Act, who committed suicide after being offered a choice between a plea of guilty with a

six-month sentence or a trial in which he risked a seven-year sentence under the guidelines

if found guilty. Then there is the case of Kevin Ring, a lobbyist for Jack Abramoff, who

was convicted at trial. Abramoff, the conceded ringleader, pled guilty and got four years.

Offered a deal with no prison time if he cooperated, Ring refused, taking the case to trial.

After a trial finding him guilty, the prosecutor urged a seventeen-to-twenty-two-year sen-

tence, which the sentencing judge acknowledged could well have a “chilling effect” on the

exercise of the right to a jury trial.8

On the other side of the coin, in India such data is not available and the

position is also very different from US. As it came in the amendment Act of 2005 in Code

of Criminal Procedure9, there are not much cases regarding it but even though, position

under Indian Judiciary is very clear. There were huge debates on this point before it was

inserted in the Cr.P.C. till 2005, it was not accepted by the Indian Judiciary. Every time it

was opposed by court of law by saying that it is not recognized under Indian law. The

concept is not widely recognized as it came recently and because there are cases, in which

8
it was not applied properly. The initiation of plea-bargaining has to be by accused which is

different from US Law. Our law provides for number of negotiations between the accused

and the prosecutor or with the court itself which is a major difference from US. Unlike in

US, where plea-bargaining is for all sort of offences but in India, it is not for socio economic

offences or the offences against women and children. Court has to take great care at the

time of application of plea-bargaining.

Plea Bargaining can be described as a process whereby the accused may

bargain with the prosecution for a lesser punishment. In simple words, Plea Bargaining is

an agreement (contract) between the accused and the prosecution regarding disposition of

the criminal charge leveled by the prosecution against the accused. In layman’s language,

it is bargaining done by the accused of a serious and severe offence, with the authority for

a lighter punishment in lieu of a full-fledged trial.

The greatest drawback of the administration of justice in India today is be-

cause of delay of case. The law may or may not be an ass, but in India, it is certainly a snail

and our cases proceed at a pace which would be regarded as unduly slow in the community

of snails. Justice has to be blind but I see no reason why it should be lame. Here it just

hobbles along, barely able to work. India’s efficiency ‘in crime investigation, prosecution

and trial process is under a shadow of doubt and crisis of credibility because more than

seventy per cent accused are acquitted. When it is difficult or impossible to secure evidence

to establish crime through able investigation, what are the alternatives to send the criminals

to jails? One limited answer is plea bargaining where confessions will be bargained from

criminal under judicial supervision which might result in speedy trial and sentencing. This

9
article intends to examine the utility of plea bargaining. In India the conviction rate is grad-

ually falling which indicates an abysmal state of law and order or lack of it.

The statistics relating to crimes in 2011 released by National Crime Record

Bureau reflect the inefficient functioning of system. In 2011, the violent crimes were 2.56

lakhs while in only 84.5 per cent of these crimes marched to the stage of charge sheeting

while just 28 percent ended in conviction.

Maharashtra state recorded lowest conviction rate at 8.2%. The conviction

rates for different kinds of crimes in the country is: a) for crimes against women 26.9 per

cent, b) Economic Crimes 28.6 per cent, c) Crimes against SCs 31.8%, d) Property Crimes:

34.5 % as per the NCRB Records. The Union Minister told Rajyasabha in December 2011,

that around 3.2 crore cases were pending in high courts and subordinate courts across the

country while 56,383 cases were pending in the Supreme Court. It also said 74% of the

total 3.2 crore cases were less than five years old. Similarly, 20,334 out of 56,383 pending

cases in the apex court were less than one year old. There are more than 72 lakh criminal

cases such as murder, rape and riots are pending in different courts across the country with

Maharashtra having a highest backlog of over 13 lakh.

The question is can we bargain a conviction and negotiate some sentence

without much trouble for the state. The plea bargaining is somewhat an answer. It is also

called: plea agreement, plea deal or copping a plea, which is an agreement between the

prosecutor and defendant whereby the defendant agrees to plead guilty to a particular

charge in return for some concession from the prosecutor. It is a Pre-Trial procedure

10
whereby a bargain or deal is struck between the accused of an offence and the prosecution

with the active participation of the trial judge. It can further be explained as:

1. Withdrawal of one or more charges against an accused in return for a plea of guilty,

2. Reduction of a charge from a more serious charge to a lesser charge in return for

a plea of guilty.

3. Recommendation by the prosecutor to sentencing judges as to leniency of sentence

in lieu of plea of guilty.

Basically, the plea bargaining consists of an agreement (formal or informal)

between the defendant and the prosecutor. The prosecutor typically agrees to a reduced

prison sentence in return for the defendant’s waiver of his constitutional right against self-

incrimination and his right to trial. The dictionary meaning of Plea Bargaining is “the pro-

cess whereby the accused and the prosecutor in a criminal case work out a mutually satis-

factory disposition of the case, subject to approval of the court. It usually involves the de-

fendant’s pleading guilty to a lesser offence or to only one or some of the counts of multi-

count indictment in return for a lighter sentence than that possible for the graver charge.”

According to Justice A. K. Sikri, “There is no perfect or simple definition of Plea Bargain-

ing. Simply put, a plea bargain is a contractual agreement between the prosecution and the

defendant concerning the disposition of a case of a criminal charge.

However, unlike most contractual agreements, it is not enforceable until a

judge approves it.” Under this technique, the criminal cases are resolved through a “plea

bargain”, usually well before the case reaches trial. In a plea bargain, the defendant agrees

to plead guilty, usually to a lesser charge than one for which the defendant could stand trial,

11
in exchange for a more lenient sentence, and/or so that certain related charges are dis-

missed. For both the government and the defendant, the decision to enter into (or not enter

into) a plea bargain may be based on the seriousness of the alleged crime, the strength of

the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are

generally encouraged by the court system, and have become something of a necessity due

to overburdened criminal court calendars and overcrowded jails in the country like United

State of America. According to Justice M.Y. Eqbal, in plea bargaining also we have to

follow the Manu’s dictum i.e., to inflict just punishment on those who act unjustly by means

of bargain between the parties.

It is sum and substance of the philosophy of punishment in cases to be re-

solved through plea- bargaining. As a whole the guilty plea or no contest plea is the quid

pro quo for the concession and there is no other reason. A plea bargain (also plea agreement,

plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a

defendant arrange to settle the case against the defendant.

The defendant agrees to plead guilty or no contest and in some cases to also

provide testimony against another person in exchange for some agreement from the prose-

cutor as to the punishment.

A plea bargain can also include the prosecutor agreeing to charge a lesser

crime or reducing the charges or dismissing some of the charges against the defendant. In

most cases, a plea bargain is used to reduce the number of cases and their aggregate impact

on the criminal justice system as the number of cases which can be actually tried by a court

system is a fraction of the number of cases filed. Plea Bargaining can be of three types: -

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Charge Bargaining

It is a common and widely known form of plea. It involves a negotiation of the specific

charges or crimes that the defendant will face at trial. Usually, in return for a plea of guilty

to a lesser charge, a prosecutor will dismiss the higher or other charge(s). For example,

subject to the approval court, .in return for dismissing charges for first-degree murder, a

prosecutor may accept a guilty plea for Manslaughter.

Sentence Bargaining

It involves the agreement to a plea of guilty in return for a lighter sentence. It saves the

prosecution the necessity of going through trial and proving its case. It provides the defend-

ant with an opportunity for a lighter sentence. For example, it may be used to reduced

period of the sentence or amount of the fine associated with the crime being charged with.

Again it is with the approval of the court.

Fact Bargaining

This is the least used form of plea bargaining. It involves the agreement to a plea of guilty

and in return the Prosecutor agrees not to reveal any aggravating factual circumstances to

the court because that would lead to a mandatory minimum sentence or to a more severe

sentence under sentencing guidelines.

Besides the above two kinds of bargaining there is count bargaining,

wherein they plead guilty to a subset of multiple original charges, and fact bargaining where

the defendants plead guilty pursuant to an agreement in which the prosecutor stipulates to

certain facts that will affect how the defendant is punished under the sentence guidelines.

Coercive plea bargaining has been criticized as it infringes an individual‘s rights under

13
Article 8 of the European Convention on Human Rights. Another argument against plea

bargaining is that it may not actually reduce the costs of administering justice. Eg. if there

is only a 25% chance of conviction and punishing for 10 years imprisonment, defendant

may make a plea agreement for one year imprisonment and if plea bargaining is unavaila-

ble, the prosecutor might drop the case completely6 .Plea bargaining should consist of two

important qualities i.e., voluntariness and judicial scrutiny.

Plea bargaining emerged in the early years of the Republic as a localized

legal innovation that would eventually grow to become by the early 20th century this coun-

try’s primary method of criminal conviction. But despite plea bargaining’s long history at

the centre of American criminal justice, a set of coherent rules governing its use has never

emerged. Indeed, for much of its history, plea bargaining remained a largely unregulated

and informal form of pretrial negotiation.

Although courts acknowledge plea bargaining as an “essential component

of the administration of justice “or, more recently, recognized that “it is the criminal justice

system “courts have generally taken a hands-off approach in regulating its use, leaving

much discretion with prosecutors and defense attorneys in shaping plea bargaining pro-

cesses and outcomes. This reticence is in part due to the approach that courts have taken to

analogize plea bargains to contracts in private law describing them as the same as “any

other bargained-for exchange” between autonomous actors who proceed from a “mutuality

of advantage even though prosecutor and defendant have inherently unequal levels of

power, particularly when the accused is being held in jail pretrial. Placing substantive limits

on bargaining tactics, according to this line of thought, could potentially cast a chilling

14
effect that might foreclose plea negotiations altogether. In only a few cases have courts

attempted to define plea bargaining’s contours or set its outer bounds. Moreover, the few

statutes and procedural rules governing plea bargaining processes exert minimal control

over the direction and process of how plea bargains are made and are largely silent regard-

ing the actual substance of plea bargains themselves.

However, in recent years, courts have begun to fill the gaps in procedural

rules with case law clarifying the limits of prosecutorial discretion.

1.2 Objective of Plea Bargaining in India

Statistics as regards the criminal justice system in India are startling in 2001;

the number of inmates housed in Indian jails was almost 1, 00,000 more than their capacity.

It was estimated that 70.5% of all inmates were under trials and of these 0.6% had been

detained in jail for more than 5 years at the end of 2001.” 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. Since one reason for overburdened dock-

ets in the United States was the nature of jury trials, the experience of some jurisdictions

suggested that shortening the trial period could solve the problem.

In India, the reason behind delay in trials can be traced to the operation of

the investigative agencies as well as the judiciary. Expanding the list of compoundable

offences is not a wise option and what is actually needed is not a substitute for trial but an

overhaul of the system, in terms of structure, composition as well as work culture to ensure

reasonably swift trials. If then the trial procedure itself proves to be too long drawn out and

15
unmanageable, then one may think of launching an alternative to trial. Therefore refor-

mation of the existing system may be a more prudent approach rather than introducing a

parallel arrangement (as recommended by the Law Commission) or supplementing the pre-

sent arrangement (as suggested by the Act). 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.

The Salient Features of Plea-Bargaining

1. It is applicable only in respect of those offences for which punishment of imprison-

ment is up to a period of 7 years.

2. It does not apply where such offence affects the socioeconomic condition of the

country or has been committed against a woman or a child below the age of 14

years.

3. The application should be filed by the accused voluntarily.

4. An accused must file an application for Plea-bargaining in the court in which such

offence is pending for trial.

5. The accused and prosecution both are given time to work out a mutually satisfactory

disposition of the case, which may include giving compensation to the victim by

the accused and other legal expenses incurred during pendency of the case.

6. Where a satisfactory disposition of the case has been worked out, the Court shall

dispose of the case by sentencing the accused to one-fourth of the punishment pro-

vided or extendable, as the case may be for such offence.

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 7. The statement or facts stated by an accused in an application for plea-bargaining

shall not be used for any other purpose other than for plea-bargaining.

8. The judgment delivered by the Court in the case of plea-bargaining shall be final

and no appeal shall lie in any court against such judgment.

9. Three essentials work at the time of filing an application of plea-bargaining: o Ac-

cused’s voluntariness to plead guilty. o The statements or facts stated by an accused

in the application for plea-bargaining should not be used for any other purpose ex-

cept plea-bargaining. It is a contractual agreement between the prosecution and the

defendant regarding the disposition of criminal.

Summary – Here in the chapter – 1 we have studied the basic introduction

about the plea bargain

In the next chapter – 2 we will study about the historical background of the

plea bargaining.

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 CHAPTER - 2

HISTORICAL BACKGROUND OF PLEA BARGAINING

2.1 Historical Background of Plea Bargaining

The roots of plea bargaining may be seen long back in United State of Amer-

ica. It was a prosecutorial tool used only episodically before the 19th century. In America,

Fisher says, “it can be traced almost to the very emergence of public prosecution although

not exclusive to the U.S., developed earlier and more broadly here than most places.’’ But

because judges, not prosecutors, controlled most sentencing, plea bargaining was limited

to those rare cases in which prosecutors could unilaterally dictate a defendant’s sentence.

“Not until the crush of civil litigation brought on by the explosion of per-

sonal-injury cases in the industrial era did judges begin to appreciate the workload relief

plea bargaining promised.’’ In other words, plea bargaining is arguably another outgrowth

of late-19th-century industrialization.

Plea Bargaining is today a very common practice in so many developed

countries especially in the United State of America. Most of the criminal cases in America

are settled through plea bargaining. The Federal Rules of Criminal Procedure recognize

and codify the concept of plea bargaining or plea agreements.

The Supreme Court of United State has also approved this practice. During

19th Century even in America this was not so popular and practiced in the rarest cases. But

with the rapid growth in the population as well as increase in the court trials the courts

became overcrowded and by the end of twentieth century’s it became almost impossible

18
for the trial in every criminal case. This made vast majority of criminal cases resolved with

guilty pleas. Presently, since plea bargaining is expressly authorized in statutes and ap-

proved by the courts in America, it is conducted in almost every criminal case and roughly

Ninety percent of the cases are converted into plea agreements, except in the

Federal offences providing mandatory sentences and subject to United State Sentencing

Guide Lines(USSG). According to Justice M.Y. Eqbal, in fact Plea Bargaining has over the

years emerged as a prominent system of American Criminal Justice System. It has been

immensely successful in USA and with the passage of time plea bargaining has become the

norm rather than exception.

Non acceptance of this concept and even ban on the application of plea

agreements may also be witness in so many countries of the world. According to Justice

A.K. Sikri, “statutes codifying many federal Offences expressly prohibit the application of

plea agreements.” Plea bargaining was introduced in Pakistan in 1999.9 Under this, the

accused accepts his guilt and offer to return the proceeds of corruption as determined by

the investigators.

If the plea is accepted by the court, the accused stands convicted, but will

not be sentenced. However, the accused will be disqualified from taking part in election,

holding public office, obtaining any bank loan and is dismissed from service if he is a gov-

ernment official. It is also used in England, Wales and Australia but to the limited extent

of allowing the accused to plead guilty to some charges in return, for which the prosecutor

will drop the remaining charges. But there is no bargaining over penalty and penalty is to

be decided by the court. Irrespective of the facts that plea bargain has been criticized by the

19
jurists as violation of fundamental rights such as right to trial, self- incrimination, double

jeopardy and so on; gradually and slowly it is being adopted by the legislatures of series of

countries including India.

The evolution of plea bargaining into a force that affects over 95 percent of

defendants in the American criminal justice system took place mainly in the nineteenth and

twentieth centuries.While the right to plead guilty dates back to English common law tra-

ditions, a new phenomenon began to appear in America shortly after the Civil War. It was

during this period that state courts began witnessing an influx of appellate cases dealing

with apparent “bargains” between defendants and prosecutors. With resounding frequency,

these early experiments with bargained justice were rejected by the judiciary as demon-

strated by the case excerpts below.

Despite these early defeats for plea bargaining, the idea of bargained justice

did not die. On the contrary, though infrequent by today’s standards, plea bargaining con-

tinued to exist in the local and district court systems. By the turn of the century, plea bar-

gaining was on the rise, but not because it served mutually beneficial considerations of

prosecutors and defendants or because it advanced judicial economy.

Plea bargaining began to thrive in the early twentieth century because judges

and prosecutors began accepting bribes from defendants in return for “plea agreements”

that guaranteed reduced sentences. According to Professor Albert Alschuler, the gap be-

tween these judicial denunciations of plea bargaining [in the late nineteenth century and the

practices of many urban courts at the turn of the century and thereafter was apparently

extreme. In these courts, striking political corruption apparently contributed to a flourishing

20
practice of plea bargaining.” While corruption introduced plea bargaining to the broader

legal community, it was the rise in criminal cases before and during Prohibition that spurred

its growth and made it a legal necessity.

Between the early twentieth century and 1925, the number of cases in the

federal system resulting in pleas of guilty rose sharply from 50 to 90 percent. In return for

defendants’ assistance in moving a flood of cases through an overwhelmed system, they

were often permitted to plead guilty to lesser charges or given lighter sentences. As Prohi-

bition was extinguished, the United States continued its drive to create new criminal laws,

a phenomenon that only added to the courts’ growing case loads and the pressure to con-

tinue to use bargaining to move cases through the system. By 1967, the American Bar As-

sociation (ABA) was proclaiming the benefits of plea bargaining, even though it had not,

as of yet, been specifically approved by the Supreme Court. The ABA stated:

1. High proportion of pleas of guilty and nalo contendere does benefit the system.

Such pleas tend to limit the trial process to deciding real disputes and, consequently,

to reduce the need for funds and personnel. If the number of judges, courtrooms,

court personnel and counsel for prosecution and defense were to be increased sub-

stantially, the funds necessary for such increases might be diverted from elsewhere

in the criminal justice process. Moreover, the limited use of the trial process for

those cases in which the defendant has grounds for contesting the matter of guilty

aids in preserving the meaningfulness of the presumption of innocence.

By the time the Supreme Court agreed that plea bargaining was an available

form of justice in 1970, plea bargaining’s rise to dominance was already complete. The

21
Brady decision was delivered in the shadows of a force that led 90 percent of criminal

defendants in the 1960s to waive their right to trial and confess their guilt in court.

Today, a general consensus has evolved within plea bargaining scholarship

that plea bargaining became a dominant force as a result of prosecutors gaining increasing

power and control in an ever more complex criminal justice system. As prosecutors’ powers

to both operate within and manipulate the system grew, their ability to create incentives for

defendants to plead guilty also escalated. The key element of this machine, of course, is

prosecutorial discretion and the ability to select from various criminal statutes with signif-

icantly different sentences.

While prosecutors possessed the ability to control charging decisions and

sentencing recommendations throughout the nineteenth and twentieth centuries, their

power to control the criminal justice system and offer defendants deals increased through-

out the 1900s.82 For example, as the number of criminal statutes grew during the early

twentieth century, prosecutors had more choices when charging defendants and more dis-

cretion when selecting reduced charges in return for guilty pleas.

A further example is the implementation of the United States Sentencing

Guidelines in the last decade of the twentieth century, a tool that greatly increased prose-

cutors’ control of the system and increased their ability to force defendants into plea agree-

ments. Before the advent of modern sentencing guidelines, both prosecutor and judge held

some power to bargain without the other’s cooperation. Today, sentencing guidelines have

recast whole chunks of the criminal code in the mold of the old Massachusetts liquor laws.

By assigning a fixed and narrow penalty range to almost every definable offense,

22
sentencing guidelines often empower prosecutors to dictate a defendant’s sentence by ma-

nipulating the charges. Guidelines have unsettled the old balance of bargaining power

among prosecutor, judge, and defendant by ensuring that the prosecutor, who always had

the strongest interest in plea bargaining, now has almost unilateral power to deal.

While defendants also play an important role in the plea-bargaining process,

prosecutors’ control of charging decisions and their influence over sentencing are key ele-

ments that contributed to the system’s dominance. Prosecutors have been successful in us-

ing their increased powers to create incentives that attract defendants to plead guilty by

structuring plea agreements where the sentence a defendant receives in return for pleading

guilty is far lower than the sentence he or she risks with a loss at trial. In a 1981 article on

plea bargaining, Professor Albert Alschuler wrote of this “sentencing differential” and

stated, criminal defendants today plead guilty in overwhelming numbers primarily because

they perceive that this action is likely to lead to more lenient treatment than would follow

conviction at trial.

A number of studies suggest this perception is justified. Among these stud-

ies was an examination by David Brereton and Jonathan Casper that analysed robbery and

burglary defendants in three California jurisdictions. The results were striking and illus-

trated that defendants who exercised their constitutional right to a trial received signifi-

cantly higher sentences than those who worked with prosecutors to reach an agreement.

Plea bargaining’s rise to dominance during the nineteenth and twentieth cen-

turies resulted from prosecutors gaining increased power over the criminal justice system

and, through such power, the ability to offer increasingly significant incentives to those

23
willing to confess their guilt in court. Today, sentencing differentials have reached new

heights and, as a result, the incentives for defendants to plead guilty are greater than at any

previous point in the history of our criminal justice system. It should be no surprise, there-

fore, that every year more than 95 percent of defendants accept the government’s offers of

leniency and plead guilty rather than risk the consequences of failure at trial.

Initially it was not recognized under Indian Law, therefore, not much im-

portance was given to it as it was not in statutes. Reference may, however, be made to

Section 206(1) and 206(3) of the Code of Criminal Procedure and Section 208(1) of the

Motor Vehicles Act, 1988. These provisions enable the accused to plead guilty for petty

offences or less grave offences and whereupon the case is closed. Later on, on the basis of

US, our Law Commission recommended the application of plea- bargaining in India. They

also justified the reasons for the same. The Supreme Court of USA in Brady v. United

States10 and Santobello v. New York11 upheld the constitutional validity and the signifi-

cant role of the concept of plea- bargaining plays in disposal of criminal cases12.

Law Commission of India in its 142nd and 154th report suggested the con-

cept of Plea-bargaining in India. They observed that this tool will be alternative to be ex-

plored to deal with huge arrears of criminal cases. Malimath Committee was also substan-

tially in agreement with the views and recommendation of the Law Commission. Accord-

ing to them it will help in procuring speedy trial with benefits such as end of uncertainty,

saving of cost of litigation, avoiding prolonged trial and legal expensed of the parties. They

recommended where the offences are not of a serious character and the effect is mainly on

the victim and not on the society, it is desirable to encourage settlement without trial.

24
2.2 Reasons For Introducing This Concept in India

1. 1.Speedy disposal of criminal cases i.e. reduction in heavy backlogs.

2. Less time consuming

3. End of uncertainty of a case

4. Saving legal expenses of both the parties i.e. accused and state.

5. Less congestion in jails

6. Under present system, 75% to 90% of the criminal cases results in acquittal, in this

situation it is preferable to introduce this concept in India.

7. It is not fair to keep the accused with hard-core criminals because if the accused is

innocent then he will accept his guilt and, in this situation, it is not reasonable.

Summary – Here in the chapter - 2 we have studied the historical back-

ground of the plea bargaining system and the reason that why it in India.

In the next chapter- 3 we will see a depth and detailed analysis about the

plea bargaining system.

25
 CHAPTER – 3

PLEA BARGAINING: A DEPTH ANALYSIS

3.1 Plea Bargaining in India

The concept of Plea Bargaining was alien to the Indian judicial system till

5th July, 2006 that is the date from which Criminal Law (Amendment) Act, 2005 came into

operation. Prior to this it was considered to be against the public policy even by the Su-

preme Court of India. At the same time Law Commission of India had been advocating the

introduction of the provisions as to plea bargaining in the criminal justice system for a long

time.12It suggested to introduce plea bargaining as is in vogue in many states of US and

considered the question of introduction of concept of concessional treatment for those who

chose to plead guilty by way of plea bargaining. As a result, Criminal Law (Amendment)

Act, 2005 passed by the Indian Parliament incorporated into Code of Criminal Procedure,

1973 as Chapter XXIA and Concept of Plea Bargaining was thereby introduced to Indian

criminal justice process.

The Act provides that the plea bargaining is applicable only in respect of the

offences for which punishment of imprisonment is up to a period of seven years, offence

does not affect the socio-economic condition of the country or has not been committed

against a woman or child below the age of 14 years. It lays down procedure to enable an

accused to file an application for plea bargaining in the court where the trial is pending. On

receipt of such application court must examine the accused in camera so as to ascertain

whether the application has been filed voluntarily. The Court then issues a notice to public

prosecutors and the complainant, advancing them to workout, a mutually satisfactory

26
disposition of the case. Where the satisfactory disposition of the case is worked out the

court shall prepare a report to that effect and the report shall be signed by the all participated

in the meeting. If no satisfactory disposition of the case could be worked out, the court shall

start the proceeding from the stage application was given for plea

bargaining. In case the settlement is reached, the court can award compen-

sation on the basis of settlement to the victim and then hear the parties on the issue of

punishment. While disposing of the case so settled the court may release the accuse on

probation, if minimum sentence is provided for the offence committed, the accused may be

sentenced to half of such minimum punishment, otherwise, the accused may be sentenced

to one- fourth of the punishment provided or extendable for such offence. The accused may

also avail the benefit of setting off the period of detention undergone by the accused against

the sentence of imprisonment in pleabargained settlement. The judgment delivered by the

Court shall be final and no appeal shall lie in any court against such judgment except special

leave petition under article 136 or writ petition under article 226 and 227 of the constitution.

Finally, the statements or facts stated by the accused in the application for plea bargaining

shall not be used for any other purpose except for the purpose of this chapter.

The Indian concept of Plea Bargaining is inspired from the Doctrine of No

law Contendere. The doctrine has been under consideration by India for introduction and

employment in the Criminal Justice System. Indian Criminal Justice System has been inef-

fective in providing speedy and economical justice. Because Courts are flooded with astro-

nomical arrears, the trial life span is inordinately long and the expenditure is very high.

Subsequently majority of cases are arising from criminal jurisdiction and the rate of

27
conviction is very low. The fact that courts resources would have to be significantly in-

creased to provide a trial for every charge has been cited as both justification and reason

for the inevitability of plea-bargaining. Proponents of plea-bargaining argued that it would

remove the risks and uncertainties involved in a trial, thus introducing flexibility into a

rigid, often-erratic system of justice.

It would also enable the court to avoid dealing with cases that involve no

real dispute and try only those where there is a real basis for dispute. Victims would be

spared the ordeal of giving evidence in court, which could be a distressing experience de-

pending on the nature of the case. Recently the Government of India has accepted the Doc-

trine of Nolo Contendere or Plea Bargaining, on the Recommendations of the Law Com-

mission. Doctrine of Nolo Contendere has been considered in a manner according to social

and economical conditions prevailing in the country. Appropriate amendment has been in-

corporated in the Criminal Procedure Code, 1973. The new concept of Plea Bargaining will

be fruitful in resolving pending criminal cases and under trial in jails for years.

Plea bargaining has been inserted through Chapter XXI A in the Criminal

Procedure Code. It provides for pre - trail negotiations between the defense and the prose-

cution during which an accused might plead guilty in exchange for certain concessions by

the prosecution.

Recently in Indian criminal justice system plight and injustice to individual

victims has been emphasised and demands are made for providing actual, effective and

sufficient justice to them. In recent years many provisions have been added to the Criminal

Procedure Code (hereinafter CrPC) in order enable victims of crime to raise their

28
grievances at appropriate forum, and further in justice imparting their sufferings should be

taken care and accordingly decisions should be given. One of them is plea bargaining. In

India the concept of plea bargaining has been accepted and included in the CrPC but it is

not completely transplanted from other legal systems, like the American one, but adopted

with some modifications. Provisions relating to plea bargaining in Indian criminal justice

system are provided in Chapter XXI-A of CrPC which was added by Criminal Law

(Amendment) Act 2005 (2 of 2006) which came into force on 5.7.2006.

Plea bargaining is based on concept of restorative justice and in this regard

many provisions have been added in the CrPCedure Code by some recent criminal law

amendments. Previously, usually allegations were made that criminal justice system is fa-

vourable to the accused and in criminal procedures attempts are made to protect the interest

of accused with complete neglect of victim and his problems. Restorative justice talks about

justice to victim who is actually suffered of the criminal acts. Responsibility has been im-

posed on the state for compensating victims, for proper treatment of physical and psycho-

logical injury in cases of sexual or acid attacks.

Cases amount of fine are determined according to the need of medical ex-

penses to cover the full amount the victim had to spend. An appeal against the court‟s

decision may be brought before the Supreme Court. Criminal justice now is emphasising

the effective justice to victim and it is considered as one of the important objectives. In

National Human Rights Commission v. State of Gujarat1 Supreme Court observed: “It

needs to be emphasised that the rights of the accused have to be protected. At the same time

the rights of the victim have to be protected and the rights of the victim cannot be

29
marginalised. Accused persons are entitled to a fair trial where their guilt or innocence can

be determined. But from the victims’ perception the perpetrator of a crime should be pun-

ished. They stand poise equally in the scale of justice.”

Plea bargaining is American concept and there it is much developed but in

Indian Criminal Justice System it has never be considered as appropriate measure to tackle

crime challenge. Plea bargaining is considered as challenging our whole concepts of crim-

inal justice system. For the first time in India by Criminal Law (Amendment) Act 2005

provisions relating to plea bargaining has been added.

Law Commission in its 142nd report in 1991, 154th report in 1996 and 177th

report in 2001 recommended for inclusion of measure of plea bargaining in CrOC. Law

Commission recommended inclusion of plea bargaining for speedy disposal of case,

thereby, as a measure to provide speedy justice to victim. Law Commission in 142nd Re-

port observed: “The need for introducing the scheme has become compulsive in a situation

where trial of a criminal case culminating in an acquittal can take as many as 33 years in a

relatively petty case (involving alleged misappropriation of Rs. 12000, Rs. 4000 and Rs.

2000) and result in expenditure of as much as a crore of rupees to the State exchequer, with

no corresponding benefit to the community. And in a situation, as reported on 16.8.1989 in

Indian Express, where the Courts in a city like Bombay in 1988 recorded 124 rape cases

but could dispose of only one and in first six months in 1989 recorded 67 cases but could

dispose of not a single case”.

There is more than ample justification for introducing the scheme in as much as:

30
 1. It is not just and fair that an accused who feels contrite and wants to make amends

or an accused who is honest and candid enough to plead guilty in the hope that the

community will enable him to pay the penalty for the crime with a degree of com-

passion and consideration should be treated on par with an accused who claims to

be tried at considerable time-cost and money-cost to community.

2. It is desirable to infuse life in the reformative provisions embodied in Section 360

of the CrPC and in the Probation of Offenders Act which remain practically unu-

tilised as of now.

3. It will help the accused who have to remain as under-trial prisoner awaiting the trial

as also other accused on whom the sword of Damocles of an impending trial re-

mains hanging for years to obtain speedy trial with attendant benefits such as (a)

end of uncertainty, (b)saving the litigation cost, (c)saving the anxiety-cost, (d) being

able to know his or her fate and to start a fresh life without fear of having to undergo

a possible prison sentence at a future date disrupting his life or career, (e)s aving

avoidable visits to lawyer’s office and to court on every date of adjournment.

4. It will, without detriment to public interest, reduce the back-breaking burden of the

court cases which have already assumed menacing proportions.

5. It will reduce congestion in jails.

3.2 Plea Bargaining Around The World

In Common Law Countries

United States

Plea bargaining is a significant part of the criminal justice system in the

United States; the vast majority (roughly 90%) of criminal cases in the United States are

31
settled by plea bargain rather than by a jury trial. Plea bargains are subject to the approval

of the court, and different states and jurisdictions have different rules. The Federal Sen-

tencing Guidelines are followed in federal cases and have been created to ensure a standard

of uniformity in all cases decided in the federal courts. A two- or three-level offense level

reduction is usually available for those who accept responsibility by not holding the prose-

cution to the burden of proving its case; this usually amounts to a complete sentence reduc-

tion had they gone to trial and lost.

The Federal Rules of Criminal Procedure provide for two main types of plea

agreements. An 11(c)(1)(B) agreement does not bind the court; the prosecutor's recommen-

dation is merely advisory, and the defendant cannot withdraw their plea if the court decides

to impose a sentence other than what was stipulated in the agreement. An 11(c)(1)(C) agree-

ment, however, binds the court once the court accepts the agreement. When such an agree-

ment is proposed, the court can reject it if it disagrees with the proposed sentence, in which

case the defendant has an opportunity to withdraw their plea.

Plea bargains are so common in the Superior Courts of California (the gen-

eral trial courts) that the Judicial Council of California has published an optional seven-

page form (containing all mandatory advisements required by federal and state law) to help

prosecutors and defense attorneys reduce such bargains into written plea agreements.

Certain aspects of the American justice system serve to promote plea bar-

gaining. For example, the adversarial nature of the U.S. criminal justice system puts judges

in a passive role, in which they have no independent access to information with which to

assess the strength of the case against the defendant. The prosecutor and defense may thus

32
control the outcome of a case through plea bargaining. The court must approve a plea bar-

gain as being within the interests of justice.

The lack of compulsory prosecution also gives prosecutors greater discre-

tion as well as the inability of crime victims to mount a private prosecution and their limited

ability to influence plea agreements. Defendants who are held in custodywho either do not

have the right to bail or cannot afford bail, or who do not qualify for release on their own

recognizance may get out of jail immediately following the judge's acceptance of a plea.

Generally, once a plea bargain is made and accepted by the courts, the mat-

ter is final and cannot be appealed. However, a defendant may withdraw his plea for certain

legal reasons, and a defendant may agree to a "conditional" plea bargain, whereby they

plead guilty and accept a sentence, but reserve the right to appeal a specific matter (such as

violation of a constitutional right). If the defendant does not win on appeal the agreement

is carried out; if the defendant is successful on appeal the bargain is terminated. The de-

fendant in Doggett v. United States made such a bargain, reserving the right to appeal solely

on the grounds that he was not given a speedy trial as required by the United States Con-

stitution; Doggett's claim was upheld by the United States Supreme Court and he was freed.

The Plea Bargaining experienced a sharp rise in the 1920s in America as the

criminal trials in United States provide to be most expensive and time consuming in the

world. Criminal trial in the United State of those days was an elaborate exercise and com-

prised of peremptory challenges in a lengthy jury selection process, numerous evidentiary

objections, complex jury instructions, motion for exclusion, etc. Plea Bargaining emerged

as an effective mechanism to avoid the complex process of a criminal trial and soon it

33
gained popularity. The practice of Plea Bargaining was approved by the Supreme Court of

the United States mainly on the assumption that the persons who are convicted on the basis

of Plea Bargaining would ordinarily be convicted, if they had chosen to stand trial.

The plea won the approval of Supreme Court of United States and its en-

dorsement as “an essential component of the administration of Justice” inSantobellov

case.8Chief Justice Burger Explained there that the Plea Bargaining is to be encouraged

because; If every criminal charge were subjected to a full-scale trial, the states and the

Federal Government would need to multiply by many times the number of judges the Court

facilities.

Canada

In Canada, the courts always have the final say with regard to sentencing.

Nevertheless, plea bargaining has become an accepted part of the criminal justice system

although judges and Crown attorneys are often reluctant to refer to it as such. In most Ca-

nadian criminal proceedings, the Crown has the ability to recommend a lighter sentence

than it would seek following a guilty verdict in exchange for a guilty plea.

Like other common law jurisdictions, the Crown can also agree to withdraw

some charges against the defendant in exchange for a guilty plea. This has become standard

procedure for certain offences such as impaired driving. In the case of hybrid offences, the

Crown must make a binding decision as to whether to proceed summarily or by indict-

ment prior to the defendant making his or her plea. If the Crown elects to proceed summar-

ily and the defendant then pleads not guilty, the Crown cannot change its election.

34
Therefore, the Crown is not in a position to offer to proceed summarily in exchange for a

guilty plea.

Canadian judges are not bound by the Crown's sentencing recommendations

and could impose harsher (or more lenient) penalties. Therefore, the Crown and the defense

will often make a joint submission with respect to sentencing. While a joint submission can

entail both the Crown and defense recommending exactly the same disposition of a case,

this is not common except in cases that are sufficiently minor that the Crown is willing to

recommend a discharge. In more serious cases, a joint submission normally call for a sen-

tence within relatively narrow range, with the Crown arguing for a sentence at the upper

end of the range and the defense arguing for a sentence at the lower end, so as to maintain

the visibility of the judge's ability to exercise discretion.

Judges are not bound to impose a sentence within the range of a joint sub-

mission, and a judge's disregard for a joint submission is not in itself grounds for the sen-

tence to be altered on appeal. However, if a judge routinely disregards joint submissions,

that judge would compromise the ability of the Crown to offer meaningful incentives for

defendants to plead guilty. Defense lawyers would become reluctant to enter into joint sub-

missions if they were thought to be of little value with a particular judge, which would thus

result in otherwise avoidable trials. For these reasons, Canadian judges will normally im-

pose a sentence within the range of any joint submission.

Following a Supreme Court of Canada ruling that imposes strict time limits

on the resolution of criminal cases (eighteen months for cases in provincial court and thirty

months for cases in Superior Court), several provinces have initiated and intensified

35
measures intended to maximize the number of minor criminal cases resolved by a plea

bargain.

Largely particular to the Canadian justice system is that further negotiations

concerning the final disposition of a criminal case may also arise even after a sentence has

been passed. This is because in Canada the Crown has (by common law standards) a very

broad right to appeal acquittals, and also a right to appeal for harsher sentences except in

cases where the sentence imposed was maximum allowed. Therefore, in Canada, after sen-

tencing the defense sometimes has an incentive to try to persuade the Crown to not appeal

a case, in exchange for the defense also declining to appeal. While, strictly speaking, this

is not plea bargaining, it is done for largely the same reasons.

England And Wales

Plea bargaining is permitted in the legal system of England and Wales. The

guidelines by the Sentencing Council require that the discount it gives to the sentence be

determined by the timing of the plea and no other factors. The guidelines state that the

earlier the guilty plea is entered, the greater the discount to the sentence. The maximum

discount permitted is one third, for a plea entered at the earliest stage. There is no minimum

discount; a guilty plea entered on the first proper day of the trial would be expected to

provide a discount of one tenth. The discount can sometimes involve changing the type of

punishment, such as substituting a prison sentence for community service.

Plea bargaining in Magistrates' Court trials is permitted only to the extent

that the prosecutors and the defense can agree that the defendant will plead guilty to some

charges and the prosecutor will drop the remainder. However, although this is not

36
conducting a plea bargain, in cases before the Crown Court, the defense can request an

indication from the judge of the likely maximum sentence that would be imposed should

the defendant decide to plead guilty.

In the case of hybrid offences in England and Wales, the decision whether

to deal with a case in Magistrates' Court or Crown Court is not made by magistrates until

after a plea has been entered. A defendant is thus unable to plead guilty in exchange for

having a case dealt with in Magistrates' Court (which has lesser sentencing powers).

Pakistan

Plea bargaining as a formal legal provision was introduced in Pakistan by

the National Accountability Ordinance 1999, an anti-corruption law. A special feature of

this plea bargain is that the accused applies for it, accepting guilt, and offers to return the

proceeds of corruption as determined by investigators and prosecutors. After an endorse-

ment by the Chairman National Accountability Bureau, the request is presented before the

court, which decides whether it should be accepted or not. If the request for plea bargain is

accepted by the court, the accused stands convicted but neither is sentenced if in trial nor

undergoes any sentence previously pronounced by a lower court if in appeal. The accused

is disqualified to take part in elections, hold any public office, or obtain a loan from any

bank; the accused is also dismissed from service if a government official.

In other cases, formal plea bargains in Pakistan are limited, but the prosecu-

tor has the authority to drop a case or a charge in a case and, in practice, often does so, in

return for a defendant pleading guilty on some lesser charge. No bargaining takes place

over the penalty, which is the court's sole privilege.

37
Other Common Law Jurisdiction

In some common law jurisdictions, such as Singapore and the Australian

state of Victoria, plea bargaining is practiced only to the extent that the prosecution and the

defense can agree that the defendant will plead guilty to some charges or to reduced charges

in exchange for the prosecutor withdrawing the remaining or more serious charges. In New

South Wales, a 10-25% discount on the sentence is customarily given in exchange for an

early guilty plea, but this concession is expected to be granted by the judge as a way of

recognizing the utilitarian value of an early guilty plea to the justice system - it is never

negotiated with a prosecutor. The courts in these jurisdictions have made it plain that they

will always decide what the appropriate penalty is to be. No bargaining takes place between

the prosecution and the defense over criminal penalties.

3.3 In Civil Law Countries

Plea bargaining is extremely difficult in jurisdictions based on the civil law.

This is because, unlike common law systems, civil law systems have no concept of pleaif

the defendant confesses; a confession is entered into evidence, but the prosecution is not

absolved of the duty to present a full case. A court may decide that a defendant is innocent

even though they presented a full confession. Also, unlike common law systems, prosecu-

tors in civil law countries may have limited or no power to drop or reduce charges after a

case has been filed, and in some countries their power to drop or reduce charges before a

case has been filed is limited, making plea bargaining impossible. Since the 1980s, many

civil law nations have adapted their systems to allow for plea bargaining

Central African Republic

38
 In the Central African Republic, witchcraft carries heavy penalties but those

accused of it typically confess in exchange for a modest sentence.

China

In China, a plea bargaining pilot scheme was introduced by the Standing

Committee of the National People's Congress in 2016. For defendants that face jail terms

of three years or fewer, agrees to plead guilty voluntarily and agree with prosecutors' crime

and sentencing proposals are given mitigated punishments.

Denmark

In 2009, in a case about whether witness testimony originating from a plea

deal in the United States was admissible in a Danish criminal trial (297/2008 H), the Su-

preme Court of Denmark unanimously ruled that plea bargains are prima facie not legal

under Danish law,[44] but that the witnesses in the particular case would be allowed to

testify regardless (with the caveat that the lower court consider the possibility that the tes-

timony was untrue or at least influenced by the benefits of the plea bargain).

The Supreme Court did, however, point out that Danish law contains mech-

anisms similar to plea bargains, such as § 82, nr. 10 of the Danish Penal Code which states

that a sentence may be reduced if the perpetrator of a crime provides information that helps

solve a crime perpetrated by others, or 23 as of the Danish Competition Law which states

that someone can apply to avoid being fined or prosecuted for participating in a cartel if

they provide information about the cartel that the authorities did not know at the time.

If a defendant admits to having committed a crime, the prosecution does not

have to file charges against them, and the case can be heard as a so-called "admission case"

39
under 831 of the Law on the Administration of Justice provided that: the confession is sup-

ported by other pieces of evidence (meaning that a confession is not enough to convict

someone on its own); both the defendant and the prosecutor consent to it; the court does

not have any objections; 68, 69, 70 and 73 of the penal code do not apply to the case.

Italy

Italy has a form of bargaining, popularly known as patteggiamento but that

has a technical name of penalty application under request of the parts. In fact, the bargaining

is not about the charges, but about the penalty applied in sentence, reduced up to one third.

When the defendant deems that the punishment that would, concretely, be

handed down is less than a five-year imprisonment (or that it would just be a fine), the

defendant may request to plea bargain with the prosecutor. The defendant is rewarded with

a reduction on the sentence and has other advantages (such as that the defendant does not

pay the fees on the proceeding). The defendant must accept the penalty for the charges

(even if the plea-bargained sentence has some particular matters in further compensation

proceedings), no matter how serious the charges are.

Sometimes, the prosecutor agrees to reduce a charge or to drop some of

multiple charges in exchange for the defendant's acceptance of the penalty.

The defendant, in the request, could argue with the penalty and aggravating

and extenuating circumstancing with the prosecutor, that can accept or refuse. The request

could also be made by the prosecutor.

40
 The plea bargaining could be granted if the penalty that could be concretely

applied is, after the reduction of one third, inferior to five-year imprisonment (so called pat-

teggiamento allargato, wide bargaining); When the penalty applied, after the reduction of

one third, is inferior of two years imprisonment or is only a fine (so called "patteggiamento

ristretto" limited bargaining), the defendant can have other advantages, like sentence sus-

pended and the effacement of the crime if in five year of the sentence, the defendant does

not commit a similar crime.

In the request, when it could be applied the conditional suspension of the

penalty according to the article 163 and following of the Italian penal code, the defendant

could subordinate the request to the grant of the suspension; if the judge rejects the suspen-

sion, the bargaining is refused. When both the prosecutor and the defendant have come to

an agreement, the proposal is submitted to the judge, who can refuse or accept the plea

bargaining.

According to Italian law, a bargain does not need a guilty plea (in Italy there

is no plea declaration); for this reason, a bargaining sentence is only an acceptance of the

penalty in exchange with the stop of investigation and trial and has no binding cogency in

other trials, especially in civil trials in which parts argue of the same facts at the effects of

civil liability and in other criminal trials in which are processed the accomplices of the

defendant that had requested and got a bargaining sentence.

3.4 Benefits of Plea Bargaining

41
 Plea bargaining is the primary apparatus through which judges, prosecutors,

and defense attorneys cooperate and work together toward their individual and collec-

tive goals.

The primary benefit of plea bargaining for both the prosecution and the de-

fense is that there is no risk of complete loss at trial. In cases in which evidence for or

against a defendant is questionable, bargains may represent a feasible way for the attorneys

to minimize their potential losses by settling on a mutually acceptable outcome. Plea bar-

gaining can also be a way for the courts to preserve scarce resources for the cases that need

them most.

Prosecutors benefit from plea bargains because the deals allow them to im-

prove their conviction rates. Some prosecutors also use plea bargains as a way to encourage

defendants to testify against co-defendants or other accused criminals.

Plea bargains allow prosecutors to avoid trials, which are shunned because

they are time-consuming, labour-intensive, and costly but carry no guarantee of success.

Through the rational use of plea bargaining, prosecutors can ensure some penalty for of-

fenders who might be acquitted on technicalities. Although prosecutors cannot negotiate

every case (because that would incur public ire), they can bargain away routine cases or

those characterized by weak evidence or other difficulties, saving their time and resources

for cases that demand more attention.

Plea bargaining allows defense attorneys to increase their efficiency and

profits, because they can invest less time on plea-bargained cases. Disposing of cases effi-

ciently is important for both public and private attorneys.

42
 Public defenders are sometimes responsible for handling huge caseloads,

and private attorneys can make more money by bargaining than by going to trial. When

prosecutors issue charges that are arguably unmerited, defense attorneys can use negotia-

tion to achieve charge reductions. Defense attorneys may threaten to file many pretrial mo-

tions or to present an exceptionally zealous defense if prosecutors will not cooperate.

Judges also benefit from plea bargaining. The practice allows judges to pre-

side over efficient trials, to minimize the risk of rulings being overturned on appeal, and to

avoid the necessity of making rulings during trial. Most important to some judges, however,

is that plea bargains remove the burden of determining guilt, and the practice allows them

to share the responsibility for sentencing with the attorneys who fashioned the bargain.

Although plea bargains must be approved by judges before whom they are brought, judges

rarely refuse approval unless they feel that the defendant is legally innocent or has been

coerced into pleading guilty or unless the bargain calls for a penalty that the judge believes

is excessively harsh or lenient.

Defendants, of course, also benefit from plea bargains, because they can

limit the severity of the sanctions they face and add certainty to an otherwise unpredictable

process. Some defendants plead guilty to avoid the stigma of trial, because trials are open

to the public and may be reported in the media. Guilty defendants sometimes use the threat

of trial to persuade prosecutors to reduce the severity of penalties they face. Some defend-

ants, both guilty and innocent, may accept bargains that seem beneficial to them, especially

if they have been detained before trial and if accepting the bargain would mean getting out

of jail (e.g., an offer of “time served”).

43
 Sometimes even victims prefer plea bargains to trials. Plea bargains allow

victims to avoid testifying in court, which may be frightening or upsetting, especially for

victims of violent crimes. Some victims also appreciate the certainty provided by plea bar-

gains; they need not worry about the emotional trauma of dealing with the acquittal of

someone they feel is guilty.

Plea bargaining has been defended as a voluntary exchange that leaves both

parties better off, in that defendants have many procedural and substantive rights, including

a right to trial and to appeal a guilty verdict. By pleading guilty, defendants waive those

rights in exchange for a commitment from the prosecutor, such as a reduced charge or more

favourable sentence. For a defendant who believes that conviction is almost certain, a dis-

count to the sentence is more useful than an unlikely chance of acquittal. The prosecutor

secures a conviction while avoiding the need to commit time and resources to trial prepa-

ration and a possible trial. Plea bargaining similarly helps preserve money and resources

for the court in which the prosecution occurs. It also means that victims and witnesses do

not have to testify at the trial, which in some cases may be traumatic.

Time saving: Examining possible plus points of Plea bargaining in India, it

will help in cutting short the delay, backlogs of cases and speedy disposal of criminal cases,

saving the courts time, which can be used for hearing the serious criminal cases, putting a

certain end to uncertain life of a criminal case from the point of view of giving relief to

victims and witnesses of crime, saving a lot of time, money and energy of the accused and

the state, reducing the congestion in prisons, raising the number of convictions from its

present low to a fair level to create some sort of credibility to the system, not to facilitate

44
making of criminals by allowing innocents or unproven accused to live with the company

of hard core criminals during the trial and after conviction through making guilty plea.

Compensation to victims: The victims of crimes might be benefited as they

could get the compensation. They need not get implicated or involved either as witness or

seeker of compensation or justice any longer than required for acceptance of plea bargain-

ing. Whether they get money or not their time might be saved.

Benefits for Accused: The accused might be a beneficiary as he might get

half of minimum prescribed punishment. If no such minimum is prescribed, accused might

get one fourth of punishment prescribed, or released on probation or after admonition or

get concession of considering the period of undergone in custody as suffering the sentence

under section 428 of CrPC. He will be relieved of extended trial i.e, appeals consuming

unending time. Accused is also benefited even when plea bargaining fails as his admission

cannot be used for any other purpose. Ultimate benefit for him is that his time and money

are saved.

3.5 Disadvantages and Issues

Unfair: The system will be too soft for the accused and allow them unfair

means of escape in a dishonesty ridden society in India. It is an alternative way of legaliza-

tion of crime to some extent and hence not a fair deal. It creates a feeling that Justice is no

longer blind, but has one eye open to the right offer. Prosecutors and police, foreseeing a

bargaining process, will overcharge the defendant, much as a trade union might ask for an

impossibly high salary. It is inherently unfair, assuming you have two defendants who have

45
engaged in the same conduct essentially similar circumstances, to treat one more harshly

because he stands on his constitutional right.

Contempt for system: It may create contempt for the system within a class

of society who frequently come before the courts. A shortcut aimed at quickly reducing the

number of under-trial prisoners and increasing the number of convictions, with or without

justice. While countless numbers of poor languishing in the country's prisons while await-

ing trial, only a few might get a chance of bargaining.

Conviction of innocents: This process might result in phenomenal increase

in number of innocent convicts in prison. Innocent accused may be paid by the actual per-

petrators of crime in return to their guilty plea with assured reduction in penalty. Thus

illegal plea bargaining between real culprits and apparent accused might get legalized with

rich criminals corrupting police officials ending up in mockery of justice system. When

plea bargaining is certainly not resulting in acquittal or limited to penalties or payment of

damages, accused may not find it as useful and plea bargaining may not operate as incentive

at all.

Coercion: Element of coercion is not ruled out as the police is involved in

the process.

Derailment of Trial: Once the guilty plea comes forward and recorded on

the file and in the mind of the judge, the trial will be surely derailed. The court may not

strictly adhere to or depart from the requirement of proof of beyond reasonable doubt and

might lead to conviction of innocent.

46
3.6 Recommendations of Law Commission of India

The subject of the 142nd Report of the Law Commission of India (1991)

and the subsequent conclusions and recommendations were motivated by the abnormal de-

lays in the disposal of criminal trials and appeals. In this context the system of plea-bar-

gaining in the United States drew attention to itself and the Law Commission outlined a

scheme of plea-bargaining for India. The Commission noted that because no improvement

had been made in the situation and there was little scope for streamlining the system, the

problem was a grave one and clamoured for urgent attention.

Based on an analysis of plea bargaining as it exists in the United States, the

report stated that the practice was not inconsistent either with the Constitution or the fair-

ness principle and was, on the whole, worthy of emulation with appropriate safeguards.

The Commission conducted a survey to ascertain whether the legal community was in sup-

port of plea-bargaining and also to gather opinions on the applicability of the practice if the

earlier response was in the affirmative. Of those surveyed, a high percentage was in favour

of the introduction of the scheme; additionally, most were in favour of introducing the con-

cept only to specified offences. The report concluded that an improved version of the

scheme suitable to the law and legal ethos of India should be considered with seriousness

and with a sense of urgency.

The report also attempted to address some reservations that were expressed

as regards the introduction of plea-bargaining. The scheme would not be successful in India

due to illiteracy, which is comparatively much higher than in the United States and thus

people would not adequately understand the consequences of pleading guilty. The

47
Commission was of the opinion that because the contention fails to distinguish between

literacy and common sense, it does not hold ground. Further, the proposed scheme accounts

for this objection by providing for judicial officers to be plea judges, who would explain to

the accused persons, the consequences of pleading guilty under the scheme.

Prosecution pressures may cause innocent people to yield and forego their

right to trial. The Commission opined that such concerns could be dispelled if the judicial

officer explained the implications of the scheme and was satisfied that the application was

made by the accused of his own volition and not as a result of coercion or duress.

In the existing situation where the acquittal rate is as high as 90% to 95%, it

is the poor who will be the victims of the concept and come forward to make confessions

and suffer the consequent conviction. The Commission stated that the argument that the

scheme may not succeed was merely a matter of opinion and was not good enough a reason

to oppose the scheme. Also, in the trade-off between languishing in jail as an under trial

prisoner and suffering imprisonment for a lesser or similar period, the latter would be the

rational choice as long periods in jail brought about economic and social ruin.

The incidence of crime might increase due to criminals being let-off easily.

The Commission regarded this concern as unfounded as the authority considering the ac-

ceptance or otherwise of the request for concessional treatment would weigh all pros and

cons and look into the nature of the offence and exercise its discretion in granting or reject-

ing the request.

48
 Criminals may escape with impunity and escape due punishment. The Com-

mission stated that the scheme provides for concessional treatment and not for any punish-

ment and the stigma of conviction would persist.

As additional justifications, the Commission stated that considerable re-

sources would be saved and that the rehabilitation process of the offender would be initiated

early. The Commission concluded that the scheme for concessional treatment in respect of

those offenders, who on their own volition invoked the scheme, which incorporated appro-

priate safeguards, might prove beneficial.

The Commission envisaged that in due time, the scheme would encompass

all offences, but proposed that initially the scheme should be extended only to offences that

provide for imprisonment for a period of less than seven years. The extension of the scheme

would then be considered after a scrutiny of the results and in the light of public opinion.

The Commission also suggested further subdivision for a more effective and phased appli-

cation.

In its 154th Report, the Law Commission (1996) reiterated the need for re-

medial legislative measures to reduce the delays in the disposal of criminal trials and ap-

peals and also to alleviate the suffering of under trial prisoners. The 177th Report of the

Law Commission, 2001 also sought to incorporate the concept of plea-bargaining. The Re-

port of the Committee on Reforms of the Criminal Justice System, 2003 stated that the

experience of the United States was an evidence of plea-bargaining being a means for the

disposal of accumulated cases and expediting the delivery of criminal justice; the Commit-

tee thus affirmed the recommendations of the Law Commission of India in its 142ndth

49
Reports. and the 154th Report of the Law Commission points out that an order accepting

the plea passed by the competent authority on such a plea shall be final and no appeal shall

lie against the same.

As regards the procedure to be followed in cases where a minimum sentence

is provided for the offence, the competent authority may, after following the aforemen-

tioned procedure, accept the plea of guilty and record an order of conviction and impose a

sentence to the tune of half of the minimum term of jail provided by the statute for the

offence concerned. A statutory provision empowering the competent authority would have

to be made so that the provision prescribing the minimum sentence is not violated. The

competent authority shall have the power to record a conviction for an offence of lesser

gravity than that for which the offender has been charged in the charge-sheet or if the facts

and materials constitute an offence of lesser gravity.

The Law Commission was of the opinion that bargaining with the prosecu-

tor which provides the offender with an attraction to avail of the scheme is hazardous in the

Indian context, and that a just, fair, proper and acceptable scheme would be that the com-

petent authority can impose such punishment as may seem appropriate as regards the facts

and circumstances of the case subject to a limit of one-half of the maximum term provided

by the statute for the offence concerned

The scheme also bars habitual offenders, that is, persons convicted for an

offence under the same provision from invoking the scheme. There is, therefore, no merit

in the apprehension that those who secure concessional treatment may indulge in the same

activity again in the hope of being let off lightly once more. Persons charged with offences

50
against women and children are also excluded from the purview of the scheme. The scheme

allows for no negotiation between the accused and the State or the prosecutor or with the

court itself, which is a fundamental difference the scheme maintains from the practice, as

it exists in the United States. The scheme does not mention any provision or procedure for

withdrawal of pleas. These include subsequent withdrawal of the nature of stating that the

plea was not taken voluntarily. The scheme however maintains a difference between the

courts examining the case on merits and a totally separate institution i.e. the competent

authority for the purposes of the plea bargaining proceedings. It is important to note that

this separation ensures that the right to fair trial is not eroded.

Since the competent authority is an autonomous body to decide the fate of

the accused over the application made by him voluntarily and knowingly which has the

effect of eliminating the possibility of the prosecuting agency obtaining the plea through

fraud, misrepresentation or coercion. As regards determination of the quantum of substan-

tive punishment, it needs to be noted that in the American system, an offender would ap-

proach the court in a situation where the prosecution is agreeable to a concessional treat-

ment as well as the extent of the same. Thus, in the United States, the offender is assured

as to the extent of the concession that is likely to be secured in the event of the court agree-

ing to the bargain.

In India, the offender would be facing an unknown hazard, and may prompt

him to avoid availing of the scheme. However, this is qualified to the extent that the com-

petent authority, upon acceptance of the plea of guilty, is more or less limited in terms of

the sentence that can be awarded and the accused can be assured as to a substantial level of

51
leniency on most occasions. Such a situation creates an undue level of pressure on the ac-

cused to plead guilty so as to avail of the scheme. The trade-off for an innocent accused

with a strong case against him amounts to a choice between the expected difference be-

tween sentence at trial and sentence subsequent to availing of the scheme which would

become an increasingly safe prediction in time; and the risk of continuing with the trial and

maintaining his innocence.

This situation will result in the innocent pleading guilty unless the equilib-

rium situation is corrected by reducing the difference between sentences at trial and sen-

tences awarded by the competent authority. The unpredictability of the trial is also a factor

that should also be taken into account. The innocent will plead guilty due to the feeling of

hopelessness at attempting to rebut the evidence of the police, the severity of the sentence

anticipated, and the weariness of the case dragging on and the attractiveness of the existent

scheme.

It should be noted that no programme of rehabilitation can be effective on a

prisoner who is convinced in his own mind that he is in prison because he is the victim of

a mindless, undirected, and corrupt system of justice and in this manner the very basis of a

criminal justice system will be undermined. Understandably, the entire scheme owes its

existence to the severe pressure on the resources of the court. However, the scheme fails to

make the distinction between efficiency at the level of inception and the same being the

motivation for guilty pleas from the accused. The motivation for leniency is acknowledge-

ment of error and a desire to reform, not the conservation of resources. The failure to take

into account this basic distinction is a fallacy that needs to be addressed.

52
 Also, accused will inevitably assume some level of leniency in an implicit

manner. In a natural state that is, in the absence of plea bargaining, 50% to 75% of accused

plead guilty. Increase in case pressure may affect plea-bargaining but it would be fallacious

to assume that plea-bargaining is caused by caseload. This is however, the reason for intro-

ducing the scheme under the 142nd Report of the Law Commission. In fact, prosecutors

are the main propagators of plea-bargaining. It is contended that plea-bargaining went

hand-in-hand with the imposition of mandatory sentencing, which implies that prosecutors

will plea-bargain when judicial discretion is bound.

Thus, it may be inferred that even the scheme proposed by the Law Com-

mission of India may not be advantageous. At this juncture, it may be helpful to examine

compounding of offences under Section 320 of the Code of Criminal Procedure, 1973. The

issue is whether expanding the list of compoundable offences will be an effective solution

for the problem of overcrowded courts and whether this can then serve as an alternative to

the introduction of plea-bargaining. Since a crime is essentially a wrong against society, a

compromise between the accused and the victim does not ideally serve to absolve the ac-

cused from criminal responsibility.

However, offences, which are essentially of a private nature, are recognized

as compoundable offences while some others are compoundable with the permission of the

court. Compounding of offences has the effect of an acquittal and there is no admission of

guilt envisaged in the process. The extension of the list of compoundable offences seems

to be inconsistent with the logic underlying the same, which is that the offence is essentially

a private one. Also, the compounding of offences has the effect of an acquittal, which

53
certainly cannot be maintained for serious offences. The scope for consideration being in-

volved in the transaction is prima facie against public policy especially for more serious

offences and the same would operate to the detriment of the financially weaker classes.

The compounding of offences does not require the admission of guilt, which

is an essential requirement of commencing the rehabilitation and reformation of the ac-

cused. It is on this basis that the argument for extending compoundable offences so as to

allow courts to function expeditiously is misplaced, as the scope of any such expansion will

be severely restricted due to the aforementioned reasons.

The 154th report of the Law Commission (1996) recommended that plea

bargaining should be included as a separate chapter in the Indian criminal jurisprudence. In

the 12th Law Commission Report (1991) the conception of idea behind incorporating the

idea of plea bargaining was mentioned wherein it was stated that there needs to be some

remedial legislative measures to reduce the delays in the disposal of criminal trials and

appeals and also to alleviate the sufferings of under trial prisoners awaiting the commence-

ment of trials.

The NDA government formed a committee, headed by the former Chief Jus-

tice of the Karnataka and Kerala High Courts, where Justice V.S.Malimath came up with

some suggestions to tackle the ever-growing number of criminal cases. In its report, the

Malimath Committee recommended that a system of plea bargaining be introduced in the

Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to

reduce the burden of the courts.

54
 Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was intro-

duced in the parliament. The statement of objects and reasons, inter alia, mentions that, the

disposal of criminal trials in the courts takes considerable time and that in many cases trial

do not commence for as long as 3 to 5 years after the accused was remitted to judicial

custody. Though it could not be recognized by the criminal jurisprudence, it is seen as an

alternative method to deal with the huge arrears of criminal cases.

The bill attracted enormous public debate. Critics say that it should not be

recognized as it would go against the public policy under our criminal justice system. The

Supreme Court has also time and again reiterated the concept of plea bargaining saying that

negotiation in criminal cases is not permissible.

No plea bargaining is permitted in respect of the following:

1. Dowry Prohibition Act, 1961.

2. The Commission of Sati Prevention Act, 1987.

3. The Indecent Representation of Women (Prohibition) Act, 1986.

4. The Immoral Traffic (Prevention) Act, 1956.

5. Protection of Women from Domestic Violence Act, 2005.

6. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Pro-

duction, Supply and Distribution) Act, 1992.

7. Provisions of Fruit Products Order, 1955 (issued under the Essential Commodities

Act, 1955).

8. Provisions of Meat Food Products Order, 1973 (issued under the Essential Com-

modities Act, 1955).

55
 9. Offences with respect to animals that find place in Schedule I and Part II of the

Schedule II as well as offences related to altering of boundaries of protected , areas

under Wildlife (Protection) Act, 1972.

10. The SC and ST (Prevention of Atrocities) Act, 1989.

11. Offences mentioned in the Protection of Civil Rights Act, 1955.

12. Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of

Children) Act, 2000.

13. The Army Act, 1950.

14. The Air Force Act, 1950.

15. The Navy Act, 1957.

16. Offences specified in Sections 59 to 81 and 83 of the Delhi Metro Railway (Oper-

ation and Maintenance) Act, 2002.

17. The Explosives Act, 1884.

18. Offences specified in Sections 11 to 18 of the Cable Television Networks (Regula-

tion) Act, 1955.

19. Cinematograph Act, 1952.

Hereby, plea bargaining is not permissible in cases when:

1. Age of offender is below 18 years of age.6

2. Accused is previous convict for the same kind of offence for which person is ac-

cused and have applied for plea bargaining.

3. Offence for which person is accused affects socio-economic conditions of country.

4. Offence is committed against woman or child below 14 years of age.

56
 5. Offence comes in category of serious crime. Generally, such offences are identified

by prescription of severe punishments. When offence is punishable by death pen-

alty, life imprisonment, or imprisonment exceeding seven years.

6. Application for plea bargaining moved by accused is not voluntary.

7. Parties participating in meeting for working out mutual satisfactory disposition

failed to make such disposition.

Summary – Here in the chapter – 3 we studied the pleas bargaining system

in detailed in Indian and around the World in a detailed analysis.

In the next chapter -4 we will see the various judicial judgement that are

based on plea bargaining in India

57
 CHAPTER – 4

JUDICIAL TRENDS

4.1 Kasam bhai Abdul Rehman bhai Sheik etc. v. State of Gujarat and another: 1980

AIR 854, 1980 SCR (2)1037

This appeal by special leave is directed against a judgment of the Gujarat

High Court in suo motu revision against an order passed by the Judicial Magistrate, First

Class, Balasinor convicting the appellant of the offence under s. 16(1)(a)(i) read with s.7 of

the Prevention of Food Adulteration Act, 1954 and sentencing him to suffer simple impris-

onment till the rising of the Court and to pay a fine of Rs. 125/- or in default to undergo

simple imprisonment for- a further period of 30 days. The appellant was prosecuted in the

Court of the learned Magistrate for an offence of adulteration of turmeric powder punisha-

ble under s. 16(1)(a)(1) read with s. 7 of the Prevention of Food Adulteration Act, 1954.

It appears from the record that after some evidence was led on behalf of the

prosecution, plea bargaining took place between the prosecution, the defense and the

learned Magistrate and on the basis of an understanding arrived at between these three par-

ties, the appellant pleaded guilty and the learned Magistrate accepting this plea of guilty,

recorded a finding of conviction against the appellant and let off the appellant with a nom-

inal sentence of imprisonment till the rising of the Court and a small fine. It is, of course

true that there is no specific evidence to show that the plea for guilty was entered by the

appellant as a result of plea bargaining, but two circumstances, viz., (1) that the appellant

pleaded guilty, even though the sample was treated as cancelled by the public Analyst on

58
account of its being broken and leaking and there was no evidence of the report of the

public Analyst showing the sample as adulterated and (2) that the judgment of the learned

Magistrate was given in a cyclostyled form, clearly lead to the inference

that the plea of guilty was entered by the appellant in consequence of an assurance held out

by the prosecution and acquiesced in by the learned Magistrate that he would be let off with

a very light sentence. It is highly regrettable that the prosecution as well as the learned

Magistrate should have been a party to any such plea bargaining in a prosecution for adul-

teration involving the health and well-being of the community. Unfortunately, in our coun-

try adulteration has assumed alarming proportions and it is absolutely essential to wipe it

out ruthlessly and completely by bringing to book offenders responsible for adulteration

resulting in ruination of the health of the people.

The investigating agencies must intensify their efforts and catch hold of

those who for some private economic gain are prepared to jeopardize the health of the com-

munity and indulge in mass murder and when such persons are arraigned before the Court

and found guilty a really deterrent and punitive sentence must be imposed upon them. If it

comes to be known that even in respect of an offence of adulteration, it is possible to get

away with a light sentence, the anti-adulteration law will cease to have any meaning and

validity. It will be mocked at by the people as a futile legislative exercise.

Moreover, we find that here the learned Magistrate had got a cyclostyled

form of judgment in which merely blanks were filled in by him and this is the clearest

possible evidence that he was in the habit of encouraging plea bargaining and letting off

the accused lightly if there was a plea of guilty, so that he may get quick disposal without

59
any effort. This was a highly reprehensible practice and we are glad to note that the High

Court has expressed strong disapproval of it.

The Magistrate trying an accused for a serious offence like adulteration must

apply his mind to the evidence recorded before him and, on the facts as they emerge from

the evidence, decide whether the accused is guilty or not. It must always be remembered

by every judicial officer that administration of justice is a sacred task and according to our

hoary Indian tradition, it partakes of the divine function and it is with the greatest sence of

responsibility and anxiety that the judicial officer must discharge his judicial function, par-

ticularly when it concerns the liberty of a person.

The course followed by the learned Magistrate in the present case clearly

showed that there was no application of mind by him to the case laid on behalf of the pros-

ecution and he was a consenting party to the appellant being persuaded to enter the plea of

guilty and, acting mechanically on the plea of guilty as extracted from the appellant, he

appeased his insensitive conscience by recording a finding conviction against the appellant

and let him off with a mere sentence of imprisonment till the rising of the Court and a

nominal fine.

The High Court on its attention being drawn to the Order passed by the

learned Magistrate initiated suo motu proceeding in revision by issuing notice to the appel-

lant to show cause why the sentence imposed on him should not be enhanced. The appellant

appeared in answer to the notice and challenged the conviction recorded against him, but

the High Court did not go into the circumstances in which the plea of guilty was entered by

the appellant and relying on the plea of guilty proceeded on the basis that the appellant was

60
rightly convicted and since the offence said to be established against the appellant, was

with respect to an article of 'primary food' punishable under s. 16(1)(a) (i) of the Prevention

of Food Adulteration Act, 1954, the High Court held that the appellant was liable to be

sentenced to imprisonment for a minimum term of 3 months and a fine of not less than Rs.

500. The High Court accordingly enhanced the sentenced imposed on the appellant to 3

months' simple imprisonment and a fine of Rs. 500 or in default, further simple imprison-

ment for 30 days. This order made by the High Court is challenged in the present appeal

preferred by the appellant after obtaining special leave of this Court.

Now, it does not appear from the record whether the entire prosecution evi-

dence was completed before the learned Magistrate before the plea of guilty was entered

on behalf of the appellant, but one thing is clear that the finding conviction recorded by the

learned Magistrate against the appellant was not based on the evidence led on behalf of the

prosecution. The conviction of the appellant based solely on the plea of guilty entered by

him and this confession of guilt was the result of plea of bargaining between the prosecu-

tion, the defense and the learned Magistrate.

It is obvious that such conviction based on the plea of guilty entered by the

appellant as a result of plea bargaining cannot be sustained. It is to our mind contrary to

public policy to allow a conviction to be recorded against an accused by inducing him to

confess to a plea of guilty on an allurement being held out to him that if he enters a plea of

guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable,

unfair and unjust and would be violative of the new activist dimension of Art. 21 of the

Constitution unfolded in Maneka Gandhi's case. It would have the effect of polluting the

61
pure fount of justice, because it might induce an innocent accused to plead guilty to suffer

a light and inconsequential punishment rather than go through a long and ardous criminal

trial which, having regard to our combers and unsatisfactory system of administration of

justice, is not only long drawn out and ruinous in terms of time and money, but also uncer-

tain and unpredictable in its result and the judge also might be likely to be defected from

the path of duty to do justice and he might either convict an innocent accused by accepting

the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the pro-

cess of law and frustrating the social objective and purpose of the anti-adulteration statute.

This practice would also tend to encourage corruption and collusion and as

a direct consequence, contribute to the lowering of the standard of justice. There is no doubt

in our mind that the conviction of an accused based on a plea of guilty entered by him as a

result of plea-bargaining with the prosecution and the Magistrate must be held to be uncon-

stitutional and illegal. The High Court should have therefore, set aside the conviction of the

appellants and sent the case back to the learned Magistrate for trial in accordance with law,

ignoring the plea of guilty entered by the appellant. The High Court was clearly in error in

not doing so.

We accordingly allow the appeal, set aside the judgments of the High Court

as also the Order of conviction and sentence recorded against the appellant by the learned

Magistrate and remand the case to the learned Magistrate so that he may proceed with the

case from the stage at which the appellant confessed to a plea of guilty. The learned trial

Magistrate will ignore the plea of guilty entered by the appellant and proceed further with

the case after giving an opportunity to the prosecution to lead such additional evidence as

62
it thinks fit and then allowing the appellant to enter upon his defense and lead such evidence

in defense as he thinks proper and then dispose of the case in accordance with law. The

appellant will continue on the same bail on which he has been released by this Court by its

Order dated 30th March, 1979.

The facts giving arise to this appeal by special leave are almost identical

with those of Criminal Appeal No. 93 of 1980 save and except that the appellant is different

and for the same reasons as are given by us in our Judgment disposing of Criminal Appeal

No. 93 of 1980, we allow the present appeal, set aside the judgment of the High Court as

also the Order of Conviction and sentence recorded against the appellant by the learned

Magistrate and remand the case to the learned Magistrate so that he may proceed with the

case from the stage at which the appellant confessed to a plea of guilty. The learned trial

Magistrate will ignore the plea of guilty entered by the appellant and proceed further with

the case after giving an opportunity to the prosecution to lead such additional evidence as

it thinks fit and then allowing the appellant to enter upon his defense and lead such evidence

in defense as he thinks proper and then dispose of the case in accordance with law. The

appellant will continue on the same bail on which he has been released by this Court by its

Order dated 30th March, 1979.

4.2 State Of Uttar Pradesh vs Chandrika: AIR 1999 SC 164

These appeals by special leave are filed by the State of U.P. against the

judgment and order dated 28 November, 1997 passed by the High Court of Judicature at

Allahabad in Criminal Appeal Nos. 2747-48 of 1980 whereby the High Court accepted the

plea bargain and maintained the conviction of the respondent under Section 304 part

63
I, I.P.C. but altered the sentence to the period of imprisonment already undergone (without

stating actual period of imprisonment undergone by the respondent) plus a fine of Rs. 5000

in default of payment R.I. for six months.

The respondent along with two others was charged under Section 302 read

with Sections 307 and 34 I.P.C. for committing the murder of one Shyamadeo in Sessions

Case No. 233 of 1980. The Sessions Judge, Ballia by his judgment and order dated

28.11.1980 convicted the respondent under Section 304 I.P.C. and sentenced him to un-

dergo eight years R.I. Aggrieved by the said order, respondent preferred an appeal before

the High Court and at the time of hearing opted not to challenge the findings of conviction

recorded by the trial Court with a view to bargain on the question of sentence.

Learned Single Judge, (Malaviya, J.) accepted the bargain and allowed the

appeal by observing inter alia that as the incident had taken place long back and since the

appellant had been in jail for some time both as undertrial prisoner and as a convict, it was

desirable to substitute his remaining period of jail sentence as awarded by the trial court

and altered the sentence as stated above. The State has challenged that judgment and order

by filing these appeals. It is apparent that the order passed by the High Court is, on the face

6f it, illegal and erroneous.

It appears that the learned Judge has overlooked the settled law or is unaware

that concept of `plea bargaining' is not recognised and is against public policy under our

criminal justice system. Section 320 Cr. P.C. provides for compounding of certain offences

with the permission of the Court and certain others even without permission of the Court.

Except the above, the concept of negotiated settlement in criminal cases is not permissible.

64
This method of short circuiting the hearing and deciding the criminal appeals or cases in-

volving serious offences requires no encouragement. Neither the State nor the public pros-

ecutor nor even the Judge can bargain that evidence would not be led or appreciated in

consideration of getting flee bite sentence by pleading guilty.

For this purpose, we would first refer to the decision in Madanlal Ram Chan-

dra Daga etc. v. State of Maharashtra, [1968] 3 SCR 34 (Page No. 39), wherein this Court

held :-

"In our opinion, it is very wrong for a court to enter into a bargain of this

character. Offences should be tried and punished according to the guilt of the accused. If

the Court thinks that leniency can be shown on the facts of the case it may impose a lighter

sentence. But the court should never be a party to a bargain by which money is recovered

for the complainant through their agency. We do not approve of the action adopted by the

High Court.."

"To begin with, we are free to confess to a hunch that the appellants had

hastened with their pleas of guilty hopefully induced by an informal, tripartite understand-

ing of light sentence in lieu of nolo contenders stance. Many economic offenders resort to

practices the Americans call `plea bargaining', `plea negotiation', `trading out' and `com-

promise in criminal cases' and the trial magistrate drowned by a docket burden nods assent

to the sub rosa ante-room settlement.

The businessman culprit, confronted by a sure prospect of the agony and

ignominy of tenancy of a prison cell, `trades out' of the situation, the bargain being a plea

of guilt, coupled with a promise of `no jail'. These advance arrangements please everyone

65
except the distant victim, the silent society. The prosecutor is relieved of the long process

of proof, legal technicalities and long arguments, punctuated by revisional excursions to

higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and

persons, is avoided by one case less and the accused is happy that even if legalistic battles

might have held out some astrological hope of abstract acquittal in the expensive hierarchy

of the justice-system he is free early in the day to pursue his old profession.

It is idle to speculate on the virtue of negotiated settlements of criminal

cases, as obtains in the United States but in our jurisdiction, especially in the area of dan-

gerous economic crimes and food offences, this practice intrudes on society's interest by

opposing society's decision expressed through predetermined legislative fixation of mini-

mum sentences and by subtly subverting the mandate of the law. The jurists across the

Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justify it phil-

osophically as a sentence concession tO a defendant who has by his plea `aided in ensuring

the prompt and certain application of correctional measures to him.

This Court strongly disapproved the practice of plea bargain in Kachhia Pa-

tel Shantilal Koderlal v.State of Gujarat and another, [1980] 3 SCC 120. The Court held

that practice of plea bargaining is unconstitutional, illegal and would tend to encourage

corruption, collusion and pollute the pure fount of justice. In that case accused was con-

victed under Section 16(f )(a)(i) read with Section 7 of the Prevention of Food Adulteration

Act, 1954 by the Magistrate on the basis of plea bargaining which took place between pros-

ecution, the defense and the learned Magistrate and accused was let-off with a nominal

sentence of imprisonment till rising of the Court and a small fine.

66
 The High Court on its attention being drawn towards the order passed by

the learned Magistrate initiated suo motu proceeding in the revision by issuing notice to the

accused to show cause why the sentence imposed on him should not be enhanced. The High

Court enhanced the sentence and sentenced the accused to imprisonment for a term of three

months and a fine of Rs. 500. That order was challenged before this Court. The Court held

that the conviction of the accused was based solely on the plea of guilty entered by the

appellant as a result of plea bargaining between the prosecution, the defense and the learned

Magistrate.

Hence, it is settled law that on the basis of plea-bargaining Court cannot

dispose of the criminal cases. The Court has to decide it on merits. If accused confesses his

guilt, appropriate sentence is required to be imposed. Further, the approach of the Court in

appeal or revisions should be to find out whether the accused is guilty or not on the basis

of evidence on record. If he is guilty, appropriate sentence is required to be imposed or

maintained. If the appellant or his counsel submits that he is not challenging the order of

conviction, as there is sufficient evidence to connect the accused with the crime, then also

the Court's conscious must be satisfied before passing final order that the said concession

is based on the evidence on record. In such cases, sentence commensuration with the crime

committed by the accused is required to be imposed. Mere acceptance or admission of the

guilt should not be a ground for reduction of sentence. Nor can the accused bargain with

the Court that as he is pleading guilty sentence be reduced.

4.3 State of Gujarat vs Natwar Harchandji Thakor: 2005 CriLJ 2957, (2005) 1 GLR

709

67
 We make it clear that the grievance and voice raised by the learned single

Judge against impermissible "plea bargaining" is not, hereby, sought to be belittled or in

any way intended to be diluted. But the 'plea bargaining' and the raising of "plea of guilty",

both things should not have been treated, as the same and common. There it appears to be

mixed up. Nobody can dispute that "plea bargaining" is not permissible, but at the same

time, it cannot be overlooked that raising of "plea of guilty", at the appropriate stage, pro-

vided in the statutory procedure for the accused and to show the special and adequate rea-

sons for the discretionary exercise of powers by the trial Court in awarding sentences can-

not be admixed or should not be treated the same and similar.

Whether, "plea of guilty" really on facts is "plea bargaining" or not is a mat-

ter of proof. Every "plea of guilty", which is a part of statutory process in criminal trial,

cannot be said to be a "plea bargaining" ipso facto. It is a matter requiring evaluation of

factual profile of each accused in criminal trial before reaching a specific conclusion of it

being only a "plea bargaining" and not a plea of guilty simpliciter. It must be based upon

facts and proof not on fanciful or surmises without necessary factual supporting profile for

that.

It is unquestionable that concept of "plea bargaining" is not recognised in

any jurisdictions in our country. Therefore, it is illegal. The Hon'ble Apex Court has time

and again raised clear and consistent voice, in host of the judicial pronouncements, and also

has come down heavily, against the trick and play of the "plea bargaining". Therefore, so

far so "plea bargaining" is held not only illegal and unconstitutional but also intending to

encourage the complain, collusion and pollution of the poor punt of justice. Therefore, the

68
observation by the learned single Judge in those cases against the "plea bargaining" and

short circuiting the proceedings cannot be questioned.

However, as observed by us, hereinabove, that every "plea of guilty" during

the course of observance of the mandatory procedure prescribed in Code and particularly

in Sections 228(2), 240(2), 252 and also in Section 253 for the trial of case by the Magis-

trates, when plea of guilty is recorded as per the procedure prescribed cannot be said to be

a "plea bargaining".

In a criminal trial there must be justifiable material on record and any as-

sumption, presumption or surmise having no nexus with the factual profile of a given case

of an each accused cannot be sustained. It is matter of proof like any other proof of fact, as

provided in the Evidence Act.

It cannot be contended that, whenever, the "plea of guilty" is raised, then

less than minimum sentence awarded though may be in the light of "special and adequate

reasons" peculiar to the each accused and in the factual and contextual profile of a given

cases, is only "plea bargaining". It has to be proved and shown to the satisfaction of the

Court. It cannot be straightaway deduced. In the said case before the learned single Judge,

there may be supporting and justifiable material to hold it as "plea-bargain". But each and

every case cannot be termed or treated same way.

Let it be reiterated that at present, there cannot be any question that

"plea bargaining" is not recognised, so far and is not permissible. Whether "plea of guilty"

is "plea bargaining" or not, will be a matter of fact to be examined in each case, from the

factual matrix of the case and totality of the context and entire profile. It cannot be

69
contended that every "plea of guilty" is always plea bargaining in case of each case and

each accused. It cannot be also assumed without supporting facts and attending circum-

stances. It is a matter of proof and if on objective and independent evaluation of facts, it is

found to the satisfaction of the Court, then it cannot be allowed and sustained, being not

legal and permissible; in those cases based on facts and proof thereof. Thus, it is a matter

of proof and evaluation of evidence in each case.

4.4 The State of Gujarat vs Chelabhai Bhanabhai Prajapati: 1974 33 STC 147 Guj

The opponent herein is a dealer carrying on business of manufacturing

bricks for sale. The opponent was not registered under the Bombay Sales Tax Act, 1963

(sic). Assessment proceedings were started against the opponent in 1964. The opponent

was assessed for the period from 11th April, 1958, to 31st December, 1959, and 1st January,

1960, to 4th May, 1961, as an unregistered dealer. He was also assessed for the subsequent

periods from 5th May, 1961, to 31st March, 1963, and 1st April, 1963, to 24th October,

1965, as a registered dealer. It appears that the assessment order for the period form 1st

January, 1960, to 4th May, 1961, was passed by the Sales Tax Officer on 30th September,

1964, holding that the opponent was liable from 1st January, 1960.

The opponent went in appeal before the Assistant Commissioner of Sales

Tax who fixed his liability from 1st April, 1960. The Assistant Commissioner passed his

order on 27th August, 1965. In view of this order of the Assistant Commissioner of Sales

Tax, the Sales Tax Officer passed a fresh assessment order for the period from 1st April,

1960, to 4th May, 1960, on 15th January, 1966. In the meantime, on 27th July, 1965, the

Sales Tax Officer, Enforcement Branch, visited the place of business of the opponent and

70
seized account books, katcha rojmel, loose copies of bills, etc. The Sales Tax Officer, En-

forcement Branch, after seizure of the material wrote a letter to the Assistant Commissioner

who in his turn wrote a letter to the Deputy Commissioner, bringing to his notice the fact

about the new materials seized at the time of his visit. It was thereafter on 27th December,

1966, that the Deputy Commissioner took up the matter in suo motu revision and issued

notice to the opponent, asking him to show cause why the order of the Assistant Commis-

sioner of 27th August, 1965, be not revised.

The opponent appeared and contended, inter alia, that the Deputy Commis-

sioner was not entitled to exercise revisional jurisdiction under section 57 of the Bombay

Sales Tax Act, 1959. This contention did not find favour with the Deputy Commissioner,

who ultimately revised the order of the Assistant Commissioner by his order of 15th July,

1969, and fixed the liability of the opponent from 1st January, 1960, and, consequently,

made certain additions to the turnover of sales as well as of purchases. The opponent, there-

fore, took the matter in appeal before the Gujarat Sales Tax Tribunal.

Before the Tribunal, a contention was raised on behalf of the opponent

herein that the revising authority had no jurisdiction to initiate the revision proceedings on

the materials which did not form part of the record in existence before the taxing authority.

This contention found favour with the Tribunal and, therefore revision application of the

opponent was allowed and the order passed by the Deputy Commissioner on 15th July,

1969, in revision was set aside. At the instance of the State, the following question has been

referred to us for our opinion:

71
 "Whether, on the facts and in the circumstances of the case, the Deputy

Commissioner of Sales Tax, for the purpose of ascertaining whether there was any illegality

or impropriety in the order passed by the Assistant Commissioner of Sales Tax or any ir-

regularity in the proceeding adopted by him, and then assuming revisional jurisdiction un-

der section 57 of the Bombay Sales Tax Act, 1959, could take into consideration only the

record of the proceeding before the Assistant Commissioner or could also take into consid-

eration other material which the Sales Tax Officer, Enforcement Branch, had seized on

27th July, 1965, and which did not form part of the record of the proceeding before the

Assistant Commissioner ?"

In the case before us, it has been found by the Tribunal that the Deputy

Commissioner initiated revision proceedings after he received a letter from the Assistant

Commissioner, forwarding the report of the Sales Tax Officer, Enforcement Branch, who

had seized the account books, etc., of the opponent-company, after the Appellate Commis-

sioner passed an order in appeal, reversing the order of the Sales Tax Officer and holding

the opponent to be liable from 1st April, 1960. The Tribunal was, therefore, right when it

opined that the Deputy Commissioner has, for purposes of initiating revisional proceedings,

relied on the materials which were not part of the matter before the taxing authority.

The Deputy Commissioner, in other words, did not restrict himself to the

record of the proceedings before invoking revisional powers. In that view of the matter,

therefore, the Tribunal was right when it held the ratio of K. M. Cheria, Abdulla and Co.'s

case ([1965] 16 S.T.C. 875 (S.C.)), that the revising authority did not only call for the record

of the order or the proceedings and did not, for purposes of scrutinising or ascertaining the

72
legality or propriety of the order or regularity of the proceedings, consider the record alone.

The Tribunal was, therefore, justified in holding that the Deputy Commissioner had acted

beyond his jurisdiction in initiating revisional proceedings on certain materials which were

not part of the record of the Assistant Commissioner of Sales Tax.

On behalf of the revenue, it was urged that assuming that the Commissioner

could not have looked into the materials as disclosed from the seizure of the account books,

etc., by the Sales Tax Officer, Enforcement Branch, he has none the less power to order an

enquiry in which such materials can be legally considered. In our opinion, this further ques-

tion does not arise, as rightly held by the Tribunal that the Deputy Commissioner was not

within his powers under section 57 of the Act to initiate proceedings on materials which

were not part of the record of the assessment. In that view of the matter, therefore, the

further question does not arise and it does not require to be answered. We, therefore, answer

that question as under: "On the facts and in the circumstances of the case, the Deputy Com-

missioner, for initiating suo motu revision under section 57 of the Bombay Sales Tax Act,

1959, could take into consideration only the record of the proceeding before the Assistant

Commissioner and could not consider the material which did not form part of the said rec-

ord."

4.5 State of Gujarat vs Ishwar bhai Harkha bhai Patel: (1994) 2 GLR 1047, (1995)

ILLJ 793 Guj

This appeal for enhancement of sentence by the State of Gujarat, is directed

against the impugned judgment and order of sentence dated 21.8.1991, rendered in Crimi-

nal Case No. 838 of 1991, by Shri N. C. Chaudhari, the learned J. M. F. C., Idar, wherein

73
the respondent – Ishwar bhai Harkha bhai Patel, who came to be tried for the alleged officer

punishable under Section 21(1)(i)(iv)(c) read with Section 92 of the Factories Act, 1948,

on his pleading guilty came to be convicted for the same and sentenced to pay fine of Rs.

2,000/- and in default, to undergo S. I. for 20 days.

According to Mr. S. G. Patel, Factory Inspector, Ahmedabad, when he vis-

ited "Shri Sardar Patel Regional Oil Seeds Growers' Co-op. Union Ltd. " at Idar on

30.4.1991, it came to his notice that on 22.4.1991 at 9.05 hours, a serious accident had

taken place wherein one Manoj Maganbhai Katara, an employee working in the said factory

sustained injury as a result of which his left hand was cut-off right from elbow, as it got

entangled in the conveyer belt of the machine. On the basis of this fact, the Factory Inspec-

tor file a complaint on 26.6.1991 against the respondent before the learned Magistrate, Idar

for the aforesaid offences alleged against him.

On the summons being served upon the respondent, he appeared before the

Court by filing appearance of his learned Advocate Mr. K. M. Parmar. Thereafter on

21.8.1991, the respondent submitted a purshis Exh. 5 stating therein (i) that the alleged

offence against him was his first offence, (ii) that he will not repeat the same in future, and

(iii) that the lenient view be taken in the matter of sentence. Immediately thereafter, on the

very day, this plea of guilty by the accused came to be recorded wherein he pleaded guilty

and prayed for the mercy. The learned Magistrate accepting the said plea, convicted the

respondent for the aforesaid alleged offences and sentenced to pay fine of Rs. 2,000/-, as

stated above in para 1 of this judgment, giving rise to the present appeal for the enhance-

ment of sentence.

74
 Mr. K. C. Shah, the learned A. P. P. while challenging the impugned order

of sentence submitted that the same on face of it was quite illegal and unjust being contrary

to the statutory minimum sentence of fine of Rs. 5000/- as provided in Section 92 of the

Act. Mr. Shah making good the above submissions has invited attention of this Court to the

said Section 92 of the Act, in particular the proviso the said Section which reads as under :

General penalty for offences.-Save as it otherwise expressly provided in this

Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is

any contravention of any of the provisions of this Act or of the any rules made thereunder

or of any order in writing given thereunder, the occupier and manager of the factory shall

each be guilty of an offence and punishable with imprisonment for a term which may extend

to (two years) or with fine which may extend to (one lakh rupees) or with both, and if the

contravention is continued after conviction, with a further fine which may extend to (one

thousand rupees) for each day on which the contravention is so continued :

Provided that where contravention of any of the provisions of Chapter IV or

any rule made thereunder or under Section 87 has resulted in an accident causing death or

serious bodily injury, the fine shall not be less than (twenty five thousand rupees) in the

case of accident causing death, and (five thousand rupees) in the case of an accident causing

serious bodily injury."

Mr. Shah further submitted that the proviso to the aforesaid section makes

it amply clear that in case of accident-causing serious bodily injury, the accused was liable

to be punished at least with a fine not less than Rs. 5,000/-. On the basis of these submis-

sions, Mr. Shah finally urged that since the impugned order of sentences is ex-facie illegal,

75
this appeal for the enhancement of sentence deserves to be allowed, and accordingly, the

impugned order of the fine shall have to be modified by sentencing the respondent to pay

full amount of fine of Rs. 5000/-.

Now on carefully examining the record, it is indeed not possible to accept

the submissions made by Mr. Parikh that this was a case of 'plea-bargaining'. The reasons

for holding so are three fold - firstly, because the learned Magistrate in para-2 of his judg-

ment has specifically stated that (i) the accused has pleaded guilty quite voluntarily, (ii) for

that, he has passed a written purshis duly signed by him, (iii) that before recording the plea

of guilty, neither any inducement nor threat has been administered to the accused and (iv)

since the said plea of guilty was absolutely voluntary, the same has been accepted. Sec-

ondly, this is a case wherein in the complaint itself, it has been clearly stated that for the

alleged offence under Section 21(1)(iv)(c) of the Act, the sentence provided in proviso of

fine of Rs. 5,000/-. Thirdly, in the instant case, the respondent was represented by his

learned Advocate Mr. K. M. Parmar and in that view of the matter, ordinarily, (i) it indeed

cannot be believed that he was unaware of the legal consequences that may ensue when

knowing full well he pleaded guilty, viz., that he will be visited with minimum sentence of

fine of Rs. 5000/- even if he pleads guilty and (ii) that the learned member of the bar be-

longing to the noble profession would not be that much unethical to stoop so low as to be

a party to the 'plea-bargaining' which is nothing less than fraud on law and justice. In fact,

it is really unfortunate and shocking too that in the present case, the learned Magistrate has

neither cared to peruse the complaint wherein, as stated above, it has been expressly men-

tioned that the minimum sentence provided for the alleged offence was fine not less than

76
Rs. 5,000/-; not the relevant provisions of Section 92 of the Act; not perhaps it appears that

he was even conscious of the underlying the beneficial piece of legislation, viz.

The Factories Act, 1948. Under the circumstances, such gross defiance of

the Legislative mandate itself cannot be said to be a simple violation of law, and that too

not by the owner or the occupier of the factory, but by the learned Magistrate himself, who

is ordinarily expected to uphold the dignity and honour of the object underling the law on

the one hand and the cause of justice for weaker section like the working class on the other.

Such gross defiance of law, prima facie is serious dereliction of duty and unbecoming on

the part of any learned Magistrate, and therefore, the same is required to be taken very

serious note of, to sternly deal with it in the overall interest of administration of justice.

In fact not to do so, perhaps, may embolden such erring learned Magistrates

to discharge their duty carelessly and thereby seriously undermine the basic structure of the

'Rule of Law' where none other but the learned Magistrate himself is found to be violating

the law; by not violating some stray provisions but altogether eradicating the very object

underlying the Act. May be, that these sort of observations of the Court appear to be little

caustic and inconvenient for the concerned learned Magistrate to bear, but it is seen to be

believed that it echoes the extend of hurt and damage caused to the judicial conscience and

overall labour justice.

Such patently indiscreet act of 'plea-bargaining' cannot be defended on the

ground of some inadvertence as every as every learned Magistrate is bound to be aware of

his duties in matter of upholding the honour and enforcing the spirit of law. Rather, every

Court is supposed to know that "justice" is not a matter of personal property and charity

77
but it has a nexus with the public interest, and it has got to be administered accordingly. In

fact, to take such malignant attitude and mal-practice of 'plea-bargaining' by some of the

learned Magistrate lightly would be indirectly permitting them to go on frustrating such

beneficial piece of legislation with total impunity.

This Court, as a matter of fact, has come across hundreds of such cases

wherein such defiance of labour laws by some of the learned Magistrates have become an

order of the day! It is under such compelling circumstances only, that to arrest the alarming

unconcerned attitude of the learned Magistrates in effectively attending the Labour justice,

that this Court is constrained to make point-blank observations on pages of this judgment.

Accordingly, it is indeed high time to take little stricter view of the matter, against the erring

learned Magistrates, which this Court desires to do in the following two ways:

1. in the first instance, by sending observations made by this Court in such type of

cases to the concerned District and Session Judges by requesting them to hold in-

quiry and call for explanation from the delinquents and thereafter submit their report

to the concerned Hon'ble Units Judge of this Court.

2. Not only that but in each and every case of 'plea-bargaining' where the learned Mag-

istrate inflicts sentence less than the minimum prescribed, then in that case, in the

first instance, he shall forward a copy of the impugned judgment and order to the

concerned District and Session Judge, and in the second instance, to the High Court.

On receipt of such judgment and order, if the learned District Judge finds that the

sentence inflicted upon the respondent is less than the minimum it shall be his duty

to hold inquiry against such erring Magistrate, and thereafter, pass appropriate or-

ders after hearing him. Similarly, office of the High Court, on receipt of such orders,

78
 shall place the matter before the concerned Court taking up such matter in appeal

for admission.

Thus, the aforesaid first direction will take care of maintaining discipline

and brining the subordinate Magistrate within the legal bounds on the administrative side

and the second direction will correct the impugned judgment and order on the judicial side.

Of course, this does not mean that the aggrieved complainant should not file appeal for

enhancement of the sentence. generally, it is only when some grievance is made by the

aggrieved complainant before the High Court, that despite the fact that statute has provided

minimum sentence, the learned Magistrate has awarded less than that, and in those cases

only, the High Court enhances the sentence or remands the cases on the ground of 'plea-

bargaining', as the case may be.

This sort of incidental and once a while remanding by the High Court ap-

pears to be nothing more than treating the case merely symptomically rather than treating

the real and root cause of the disease itself. Taking into consideration the fact that the dis-

ease of 'plea-bargaining' and getting away with the lighter sentence despite number of judg-

ments on the elementary point of law has become a growing chronic disease it is required

to be treated intensively and deep-rootedly so that it can be effectively dealt with and erad-

icated, once and for all.

Moreover, one can quite understand sometimes some honest error made in

appreciation of the evidence and/or in interpreting any provisions of law but it is indeed

difficult to understand as to how the learned Magistrate can ever ignore the express mandate

of law prescribing the minimum sentence to be awarded in some cases! Lord Denning in a

79
decision rendered in case of Seaford Court Estates Ltd. v. Asher, reported in 1949 (2) All

ER 155 has observed that "when a defect appears, a judge cannot simply fold his hands and

blame the draftsman. He must sit to work on the constructive task of finding the intention

of the Parliament and then he must supplement the written words so as to give 'force and

life' to the intention of the Legislature.

A Judge should ask himself the question how if the makers of the Act had

themselves come across this truck in the texture of it, they would have straightened it out?

He must then do as they would have done. A Judge must not alter the material of which the

Act is woven, but he can and should iron out the creases"! No doubt there is no case of

blaming the draftsman in this case, yet at the same time with a definite view to give "force

and life" to the intention of the Legislature, this Court in absolute interest of the working

class and public at large would like to give direction to all the learned Magistrates to for-

ward a copy of impugned judgments and orders wherein the sentence of fine is inflicted

less than minimum prescribed in the relevant statutes in the first instance to the concerned

District and Sessions Judge, and in the second instance to the High Court, as discussed

above, as discussed above.

In view of the aforesaid discussions, the office is directed to forward a copy

of this judgment to the learned District and Sessions Judge to at once hold inquiry into the

matter and call for explanation from the concerned Magistrate as to why and under what

circumstances despite the minimum sentence prescribed under Section 92 of the Act, he

imposed less than the minimum and forward his report along with his observations to the

concerned Unit Judge of this Court for appropriate action.

80
 In view of the aforesaid discussion, since the impugned order of fine of Rs.

2,000/- is ex-facie illegal, being less than the statutory minimum of Rs. 5,000/- prescribed

under Section 92, this Court is under obligation to enhance the same to the tune of Rs.

5,000/- (Rupees Five Thousand only).

In the result, this appeal is allowed. The impugned order of sentence passed

against the respondent by the trial Court is accordingly modified. The sentence of fine is

enhanced from Rs. 2,000/- to Rs. 5,000/-, and accordingly, the respondent is directed to

pay balance amount of Rs. 3,000/- (Rupees three thousand) on or before 10th November,

1993, in default to undergo S. I. for three months.

4.6 State of Gujarat vs Tha. Somaji Jamaji: 1994 CriLJ 3458, (1995) 1 GLR 548

These three appeals for the enhancement of sentence by the State of Gujarat

are directed against the impugned judgment and order dated 20-1-1993, passed by Mr. K.K.

Vaisya, the learned J.M.F.C., Kadi; rendered in three different criminal cases being num-

bers 1026/92, 1027/92 and 1400/92, wherein respondent Tha. Somaji Jamaji, who came to

be tried for the alleged offences punishable under Section 66(1)(b) of the Bombay Prohibi-

tion Act, 1949 (for shorts Act) on his pleading guilty, was convicted for the same and sen-

tenced till rising of the court and to pay fine of Rs. 20/ - in each case, and in default, to

undergo further SI for two days.

To state prosecution case briefly - the respondent on three different dates

viz. 7-2-1992 at 23-50 hours, 5-3-1992 at 11-45 hours, and 19-5-1992 at 13-45 hours, was

found in possession of illicit liquor of the quantity - 2 litres, 16 litres and 2 litres respec-

tively in the public place at Nadi. Thereafter, when challaned before the court, he pleaded

81
guilty and the learned Magistrate accepting the same, convicted and sentenced him as stated

above in para-1 of this judgment giving rise to the present three appeals for enhancement

of the sentence. Incidentally, it may also be stated that the plea of guilty of the respondent

came to be recorded on the very day i.e. 20-1-1993 immediately followed by the aforesaid

order of conviction and sentence.

On perusal of the impugned Judgment and orders, it transpires to be stated

at the very outset that the same are not only unduly lenient and manifestly unjust, but the

same are in total disregard to the specific provisions contained in Section 66 of the Act and

is also perverse and ex facie result of the 'plea bargaining'.

Now, the very bare reading of the aforesaid Section 66(1)(b) along with the

proviso appended thereto clearly demonstrates as to how and up to what extent the im-

pugned orders of sentence are illegal and perverse and suffers from the patent vice of the

'plea-bargaining'! From the impugned Judgment and orders, it also appears that the learned

Magistrate before passing the same has not cared to read the provisions of Section 66(1)(b)

of the Act along with the proviso appended thereto. Under such circumstances, mechani-

cally accepting the plea of guilt without the respondent-accused given to understand that

he is liable to the minimum punishment of three months and/or still further sentence as

prescribed Under Section 66(1)(b) of the Act, despite his pleading guilty and to record the

order of conviction and sentence is ex facie illegal as it is nothing less than 'plea-bargaining'

prima facie haunted by the disposal mania!! Such an illegal practice of 'plea-bargaining' is

repeatedly deprecated by this Court and the Supreme Court in very many Judgments, which

are by this time reported and copies of some of this Court's decisions are circulated and yet

82
for the reasons best known to the learned Magistrate, the same is not heeded to at all and

the illegal practice of 'plea-bargaining' appears to be just going on unabated quite fear-

lessly!!! Such a conduct of the learned Magistrate unnecessarily:

1. Multiplies the proceedings as such cases are bound to be remanded,

2. Causes undue hardships to the accused to face the second round of trial,

3. Works quite a great prejudice to the prosecution, as it affects the availability of the

prosecution witnesses at the relevant time and the problem of memory which causes

to them,

4. Demonstrates total disregard of the decisions of this Court on the elementary prin-

ciples of law,

5. It also demonstrates contemptuous disregard to the legislative mandate to enforce

the law as directed by the legislature, and

6. To top all these, badly shakes the faith of the people in the administration of justice.

Only those learned Magistrates would pass such illegal and perverse orders

who are either unaware of the relevant provisions of law or who deliberately wants to over-

step to defy the same! Viewing this from any of the two angles, prima facie, this is total

dereliction of judicial duty and, therefore, quite unbecoming on the part of the concerned

learned Magistrate. This accordingly calls for a serious view to be taken to find its due

place, in the confidential report of defaulting learned Magistrate, else there is no way to

check and control the arbitrary exercise of their powers, defeating day-in and day-out the

promise of 'just and fair trial' -- both to the accused as well as the State.

83
 The learned APP Mr. S.R. Divetia has brought one more fatal infirmity to

the notice of this Court viz., that 'the plea of guilty' in all these cases came to be recorded

by the learned Magistrate in absence of the learned APP in charge of the matter on the very

same day. This also is quite unjust, unfair and accordingly illegal. No order can ever be

passed against the prosecution at the back of the learned APP without offering him an op-

portunity to hear him. In fact, had indeed the learned APP in charge of the case been given

an opportunity, he would have definitely persuaded the learned Magistrate not to take un-

duly lenient view of the matter, which is quite contrary to the statutory mandate.

In view of the aforesaid discussion, there is indeed no doubt that all these

cases are the cases of illicit 'plea-bargaining' and in that view of the matter, the same are

required to be quashed and set aside and thereafter to be remanded.

Now this takes us to quite an important and interesting question of law as to

whether at the admission stage, without issuing notice to the respondent-accused cases un-

der these appeals can be straightway remanded? Speaking ordinarily, of course, such ap-

peals when they are merely at the admission stage, in the first instance, notices are required

to be issued to the respondent-accused, and only after service of the same, any order can be

passed against them.

Now to this general ordinary practice, there indeed can be an exception. Ac-

cordingly, when the facts are glaring enough demonstrating 'plea-bargaining' and the per-

versity of the learned Magistrate beyond any manner of doubt, it cannot be disputes that

such matters are not required to be remanded.

84
 In this view of the matter, when the remand is the only foregone, inescapable

and irreversible conclusion, which even after the issuance of notice to otherwise cannot be

prevented, the mechanical issuance of notice unnecessarily adds to the workload of already

over-burdened Court, waiting precious public time and delaying the justice.

Even if the notices are issued and the respondent appears and he opposes

the remanding of the matter, by no stretch of imagination such an objection can never be

sustained. Further, the matter does not rest here for the simple reason that in any appeal for

the enhancement of sentence, once the Court reaches the conclusion that the impugned

order of sentence suffers from patent vice of the 'plea-bargaining' and is accordingly per-

verse, the same amount to total disregard of the 'legal procedure' resulting into denial of

fair and just trial both to the accused as well as the prosecution.

This in turn ex facie infringes Article 21 of the Constitution of India, going

to the roots vitiating the entire trial. This situation reduces the proceedings to square one

and relegates the accused to his original position where he was at the commencement of

the trial. Viewed from this angle, in case of 'plea-bargaining' the accused has indeed no

right to be heard on the point disputing the Court's discretion to remand the case. Strictly

speaking, the patent illegal procedure adopted by the learned Magistrate of recording 'plea-

bargaining' is the matter between this Court and the Court of the learned Magistrate, more

particularly when this Court does not enhance the sentence.

Thus, there is neither any legal nor moral justification for the respondent to

claim hearing of such matter at the admission stage and the Court would be prefectly justi-

fied in remanding the matter ex parte.

85
 Taking into consideration the fact that. the impugned Judgment and orders

are prima facie perverse, an attempt also to undermine and subvert the legislative honour

and the particular provisions under the Prohibition Act, the same is ex facie un-judicious

and in that view of the matter, unbecomingness on the part of the learned Magistrate, the

same is required to be brought to the notice of all concerned.

Accordingly, a copy of this Judgment and observations made therein are

directed to be kept in the confidential file of the learned Magistrate maintained by the

learned District and Sessions Judge, Mehsana. Further, a copy of this Judgment be imme-

diately forwarded to Hon'ble Mr. Justice C.V. Jani, the learned Judge of this court in charge

of the unit.

In the result, all these appeals are partly allowed. The impugned orders of

conviction and sentence passed by the trial court are hereby ordered to be quashed and set

aside. The cases remanded to the trial court to be decided on merits according to law. Hav-

ing regard to the fact that these cases are of the year 1992, the learned Magistrate is directed

to give top-most priority and decide the same as expeditiously as possible.

4.7 State Of Punjab vs Harbans Lal: 1983 CriLJ 13

These three appeals, being Criminal Appeals Nos. 304-SB, 333-SB and 334-

SB of 1980, have been filed at the instance of the State of Punjab seeking enhancement of

sentence. These are against three separate judgments and orders of Shri Gurdev Singh, Sub-

Divisional Judicial Magistrate, Ist Class, Moga. Since a common question of law has been

raised therein, it could be convenient to dispose them of by a common judgment. Yet their

facts have to be separately detailed, which are done hereafter.

86
 In Criminal Appeal No. 304-SB of 1980, respondent Harbans Lal was being

prosecuted for offence under Section 337, Indian Penal Code, before the said Magistrate.

The allegations against him were that on 24-11-1977 he had driven his bus No. PUF-5360

rashly and negligently so as to cause hurt to two persons namely, Sukhdev Singh and Atma

Singh; to the latter by striking against his tractor. Some formal prosecution evidence had

been led at the trial. On 16-1-1980, when further prosecution evidence was to be led, the

respondent made an application admitting the allegations of the prosecution. The learned

Sub-Divisional Judicial Magistrate was satisfied that the confessional statement of the ac-

cused was voluntary and without any pressure. He, therefore, convicted him for the offence

under Section 337, Indian Penal Code. On the question of sentence, he found that the ac-

cused-respondent was a first offender and was about 45 years of age. In view of the cir-

cumstances of the case and the confessional statement of the accused-respondent, he took

a lenient view and ordered the respondent to be released on probation under Section 360 of

Code of Criminal Procedure, 1973 (hereinafter called as the new Code) on a bond operative

for a term. The respondent was also required to pay Rs. 400/- as costs under Section 5(2) of

the Probation of Offenders Act payable equally to both the injured persons.

In Criminal Appeal No. 333-SB of 1980, Surjit Singh had been charged to

face trial under Section 25 of the Arms Act before the same Sub-Divisional Judicial Mag-

istrate. Initially he pleaded not guilty to the charge but on 15-1-1980, the date fixed for

prosecution evidence, he made a statement admitting the allegations of the prosecution.

The learned Magistrate convicted the accused-respondent on being satisfied that the con-

fessional statement was voluntary. Finding that the respondent was less than 21 years of

age and a first offender as also that he had confessed his guilt, he took a lenient view and

87
ordered the accused-respondent to be released on probation under Section 360 of the new

Code on a bond as envisaged therein. At the same time he required the respondent to Pay

Rs. 100/- as costs under Section 5(1)(b) of the Probation of Offenders Act.

In Criminal Appeal No. 334-SB of 1980, Surjit Singh was being tried under

Section 61(1)(a) of the Punjab Excise Act, 1914, before the same Sub-Divisional Judicial

Magistrate. On 15-1-1980, the accused-respondent made a statement under Section 313 of

the new Code admitting the allegations of the prosecution to be correct and prayed for

mercy. He was thus convicted of the charge. The learned Magistrate taking into account

that the accused was less than 21 years of age and was a first offender and had also made a

confessional statement, he ordered his release on probation under Section 360 of the new

Code on a bond as envisaged therein. He ordered simultaneously payment of Rs. 400/- as

costs to the State under Section 5(1)(b) of the Probation of Offenders Act.

None of the respondents have put in appearance despite registered A. D.

post-cards having been sent to them. On that score, the doubt which has crept in my mind

with regard to the respondent being common in Criminal Appeals Nos. 333-SB and 334-

SB of 1980, cannot be removed. In both cases, the learned trial Magistrate has treated the

accused-respondents to be first offenders. The name and description of the respondents in

both these appeals tally, but for the view I am going to take, I need not delve on this any

more, but otherwise it had repercussions.

As is plain, the learned Sub-Divisional Judicial Magistrate employed sim-

ultaneously though in part, the provisions of the new Code and those of the Probation of

Offenders Act. Learned Counsel for the State contends that in District Faridkot, within

88
which jurisdiction Moga falls, the Probation of Offenders Act 1958 had been made appli-

cable. On that score, he contends, Section 19 thereof completely effaced Section 360 of the

new Code. He further contends that the respondents could not have been dealt with under

that section at all and hence the respondents deserve to be sentenced substantively.

I may mention that a similar appeal on behalf of the State of Punjab against

one Rup Singh (Criminal Appeal No. 303-SB of 1980) in which the same question of law

had been raised, was decided by me on July 30, 1982. Incidently, the judgment and order

under appeal in that case had also been passed by Shri Gurdev Singh, the same Sub-Divi-

sional Judicial Magistrate, Moga. The judgment bore the date of 15th January, 1980. I did

not deal with the legal question in that appeal, for I had rested the judgment mainly on

merits, and also on the finding that there was a plea-bargaining between the respondent and

the Court, and had held that it was within the discretion of the learned Magistrate to take

into account the factors enumerated and release the respondent on probation. On the ques-

tion of law I observed as follows:

Concededly the Court was empowered to grant probation under Section 4 of

the Probation of Offenders Act. And if the record has to be straightened, lest there should

be any illegality, let the bond executed by the respondent seemingly be treated as one un-

der Section 4 of the Probation of Offenders Act. The period, in any case, has expired and

there can be no fruitful outcome of that aspects. Since the question of law has persistently

been raised, I might have as well answer it.

There are some distinctive features found in the beneficial provisions of the

Code and the Probation of Offenders Act (hereinafter referred to as the Act). Under Section

89
562 of the old Code, the Court had power to release certain convicted offenders on good

conduct instead of sentencing them to punishment. That provision was of universal appli-

cation, inclusive of the State of Punjab. Later the Act was brought on the statute book. It

could only come into force in a State if the State Government chose to apply it. for consid-

erations which would be highlighted presently. The State Government by notification in

the official gazette could appoint a date on which the provisions of the Act would be appli-

cable to a particular area, Or to different parts of the State, and different dates could be

appointed for different parts of the State for its applicability. The moment the Act ap-

plied, Section 19 came into operation which says:

Subject to the provisions of Section 18, Section 562 of the Code shall cease

to apply to the State or parts thereof in which this Act is brought into force.

The universal application of Section 562 of the old Code, thus ceased. The

old Code has now been replaced by the new Code and the analogous provision therein

is Section 360 providing for release of offenders on probation of good conduct or after ad-

monishing. The new provision now has to be read in Section 19 of the Act in place of Sec-

tion 562 of the old Code.

It is undisputable that Moga, where these trials took place, was initially a

part of Farozepore District to which the Act was applied with effect from 1-6-1967. Simi-

larly, Faridkot was a part of Bhatinda District to which the Act applied with effect from 1-

5-1966. On reorganisation, Faridkot became district by itself and Moga became its part.

The applicability of the Act was not at all affected. Thus, it goes without saying that the

90
provisions of Act applied to trials at Moga and not Section 360 of the Criminal Procedure

Code.

It is note-worthy that Section 361 of the New Code of Criminal Procedure

makes it incumbent upon a Court, if it does not want to deal with a case of an accused

person either under Section 360 of the Code of Criminal Procedure or under the provisions

of the Probation of Offenders Act (1958), to record special reasons in the judgment for not

having done so. There was no analogous provision in the Old Code. The spirit of the Leg-

islation now is that the twin beneficial provisions should alternatively be available to every

Court be it whether in the form of Section 360 of the New Code or in the form of the

provisions of the Act.

The broad distinctive features are these:

1. The Act is operative in specified areas, but the Code is of universal application in

the country. Where the Act is applicable, the provisions of Section 360 of the Code

of Criminal Procedure, by virtue of Section 19 of the Act. cease to apply;

2. Specific areas are chosen by the State government to the applicability of the Act

having regard to the social economic and political conditions of its population as

also their character, moral fibre, law awareness, educational facilities, employment

opportunities, developmental conditions, mobility and such like factors, the list be-

ing not exhaustive. These and other considerations noticably weigh with the State

Government when it brings an area under the provisions of the Act, for it tends to

be more reformatory in character as compared to the Code;

91
3. Under Section 360 of the Coda, release on probation is dependant on there being on

previous conviction against the offender. There is no such bar under the Act; for

offenders can be released under Sections 4 and 6 despite previous convictions.

4. The case of release after due admonition of the offender is at a different footing

both under Section 360 of the Code and Section 3 of the Act where previous con-

viction of the offender is a bar to release him after due admonition. The explanation-

to Section 3 of the Act circumscribes that for the purpose of that section, previous

conviction of the person shall include any previous order made under Section 3 or

S. " 4 of the Act.

5. The conviction or convictions for which the offenders are released on probation of

good conduct under the Act does not attract any disqualification. Section 12 of the

Act is a pointer in that direction providing that notwithstanding anything contained

in any other law, a person found guilty of an offence and dealt with under the pro-

visions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching

to a conviction of an offender under such law. The only exception to the rule is

when a person after release under Section 4 is subsequently sentenced for the orig-

inal offence, in that case the dormant conviction comes to activity and Section 12 of

the Act is not applicable, On the other hand order of release on probation of good

conduct under Section 360, Code of Criminal Procedure does not remove the dis-

qualification attaching to a conviction and there is no provision like Section 12 of

the Act in the Code. Section 5 of the Act authorises the Court to require a released

Offender to pay compensation and costs.

92
6. That compensation is payable for loss or injury caused to any person by the com-

mission of the offence, as also costs of the proceedings may be assessed and im-

posed. These ancillary orders are part and pracel of the framework of probation

under the Act. On the other hand on releasing a person under Section 360 of the

Code of Criminal Procedure the Court cannot ask the offender to pay the expenses

properly incurred for the prosecution or to pay any compensation for any loss or

injury caused by an offence.

7. The misunderstanding in that regard has been settled by the Supreme Court

in Girdhari Lal v. State of Punjab AIR 1932 SC 1229 (2): 1982 Cri LJ 1742 (D).

These orders can only be passed if the Court imposes a substantive sentence of fine.

In the absence thereof orders as envisaged under Section 357 cannot be passed. In

other words when Section 360 of the Code has been applied, Section 357 would be

rendered inoperative; whether it be a case of Sub-section (1) or Sub-section (3)

thereof. Under the latter subsection the Court when imposing a sentence, of which

fine does not find a part, can pass an order requiring the accused person to pay

compensation of such amount to the person who has suffered any loss or injury by

reason of his act for which he has been so sentenced. Under Section 6 of the Act,

the Court is restricted from sentencing any person to imprisonment who is less than

21 years of age, found guilty of having committed an offence punishable with im-

prisonment (but not with imprisonment for life). It can only do so if having regard

to the circumstances of the case including the nature of the of-fence and character

of the offender, it would not be desirable to deal with him under Section

93
 3 or Section 4 of the Act. And if the Court passes any sentence of imprisonment on

the offender, it shall record its reasons for doing so.

8. For releasing of an offender it need not send for the report of the Probation Officer,

but when it tentatively holds a view that he should not be so released then Sub-

section (2) of Section 6 of the Act makes it incumbent upon the Court to call a report

from the Probation Officer and consider it. Besides that the Court can have other

information available to it relating to the character, and physical and mental condi-

tion of the offender.

9. If it chooses to release an offender on probation, it can set some conditions, and

insert additional conditions under Section 8 of the Act. On the other hand the power

under Section 360 of the Code does not per se make it obligatory on the Court to

release an offender under 21 years of age. But Sections 360 and 361 of the Code

put the operation of release at the discretion of the Court and in case it is adverse to

the offender the court has only to supply special reasons for it.

10. The Court under the Act has the benefit of the aid of the Probation Officers opera-

tive in the field. Section 14 of the Act provides the duties of the Probation Officers,

and one of them is to supervise the probationers and the persons placed under their

supervision, as also to make them to endeavour to find them suitable employment.

No such facility is available to the Court under Section 360 of the Code of Criminal

Procedure. The reason is obvious; for where the Act is operative the brood of Pro-

bation Officers are available, to carry out the purposes of the Act, to advise the

Court and to assist the offenders. To confer such facility on a particular area, the

State Government has to apply its mind objectively, having regard to the peculiar

94
 nature of the defined area to be brought under the Act. On the other hand the

Code does not provide for any such machinery.

Having drawn such distinction between the spheres of the aforesaid two pro-

visions, it is of utmost importance that the trial Magistrates functioning in their respective

areas be well on guard for the applicability of the provisions applicable for their areas and

not the other. They have to bear in mind the distinction so that where the provisions of the

Act are applicable the employment of Section 360 of the New Code be not made. In cases

of such application, it would be an illegality resulting in highly undesirable consequences,

which the legislature, who gave birth both to the Act and the Code, wanted to obviate. Yet

the legislature in its wisdom has obliged the Court under Section 361 of the New Code to

apply one or the other beneficial provisions; be it Section 360 of the New Code or the

provisions of the Act. It is only by providing special reasons that their applicability can be

withheld by the Court. The comparative elevation of the provisions of the Act are further

noticed in Sub-section (10) of Section 360 of the New Code which makes it clear that noth-

ing in the said section shall affact the provisions of the Probation of Offenders Act, 1958,

Those provisions have a paramountcy of their own in the respective areas where they are

applicable.

Now in dealing with the case on merits, it is plain from the record and the

tenor of the judgment and orders under appeal that there were plea-bargaining between

each respondent and the Court. In this situation, the learned Magistrate exercised the dis-

cretion while taking into account all those factors and released the respondents on proba-

tion.

95
 For, the view I have taken on the legal question, the bond which was got

executed by each respondent under Section 360 of the New Code was illegal and uncalled

for. All the same, the period of bond executed by each respondent has expired. I would in

these cases as well, just to straighten the record, order that the respective bonds executed

by the respondents deemingly be treated as those under Section 4 of the Act. These are not

such cases in which I would impose substantive sentences on the respondents, as prayed

for. Orders of costs are legal and proper. The repetitive mode of plea-bargaining adopted

by the learned Magistrate is highly deprecated, however.

For the foregoing reasons, these appeals on the legal issue are technically

allowed but otherwise fail as to their outcome. Ordered accordingly.

Summary – Here in the chapter – 4 we have studied out the various Indian

cases judgements made by Indian judiciaries on the cases of pea bargaining.

In the next chapter – 5 we will study the various legal provisions that are

available for such cases of plea bargaining.

96
 CHAPTER – 5

LEGAL PROVISIONS

5.1 Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the con-

cept 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 bar-

gaining’ 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 re-

duce 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.

97
 Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was intro-

duced 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 Crim-

inal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the exist-

ing 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 con-

viction in cases involving serious crimes on the other.

The Criminal Law (Amendment) Bill, 2003 focused on following key issues

of the criminal justice system: -

1. Witnesses turning hostile

2. Plea-bargaining

3. Compounding the offense under Section 498A, IPC (Husband or relative of hus-

band of a woman subjecting her to cruelty) and

4. Evidence of scientific experts in cases relating to fake currency notes.

Finally, it introduced Chapter XXIA Section 265A to 265L and brought the

concept of plea bargaining in India. The following are provisions which it added:-

265A. Application of the Chapter

This Chapter shall apply in respect of an accused against whom-

1. The report has been forwarded by the officer in charge of the police station under

section 173 alleging therein that an offence appears to have been committed by him

other than an offence for which the punishment of death or of imprisonment for life

98
 or of imprisonment for a term exceeding seven years has been provided under the

law for the time being in force; or

2. A magistrate has taken cognizance of an offence on complaint, other than an offence

for which the punishment of death or of imprisonment for life or of imprisonment

for a term exceeding seven years, has been provided under the law for the time

being in force, and after examining complainant and witnesses under section 200,

issued the process under section 204, but does not apply where such offence affects

the socio-economic condition of the country or has been committed against a

woman, or a child below the age of fourteen years.

For the purposes of sub-section (1), the Central Government shall, by noti-

fication, 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.

265B. Application for Plea Bargaining

A person accused of an offence may file an application for plea bargaining

in the Court in which such offence is pending for trial.

The application under sub-section (1) shall contain a brief description of the

case relating to which the 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 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.

99
 After receiving the application under sub-section (1), the Court shall issue

notice to the Public Prosecutor or the complainant of the case, as the case may be, and to

the accused to appear on the date fixed for the case.

When the Public Prosecutor or the complainant of the case, as the case may

be, and the accused appear on the date fixed under sub-section (3), the Court shall examine

the accused in camera, where the other party in the case shall not be present, to satisfy itself

that the accused has filed the application voluntarily and where-

1. the Court is satisfied that the application has been filed by the accused voluntarily,

it shall provide time to the Public Prosecutor or the complainant of the case, as the

case may be, and the accused to work out a mutually satisfactory disposition of the

case which may include giving to the victim by the accused the compensation and

other expenses during the case and thereafter fix the date for further hearing of the

case;

2. the Court finds that the application has been filed involuntarily by the accused or he

has previously been convicted by a Court in a case in which he had been charged

with the same offence, it shall proceed further in accordance with the provisions of

this Code from the stage such application has been filed under sub section (1).

265C. Guidelines for Mutually Satisfactory Disposition

In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of

section 265B, the Court shall follow the following procedure, namely: -

1. In a case instituted on a police report, the Court shall issue notice to the Public

Prosecutor, the police officer who has investigated the case, the accused and the

100
 victim of the case to participate in the meeting to work out a satisfactory disposition

of the case: Provided that throughout such process of working out a satisfactory

disposition of the case, it shall be the duty of the Court to ensure that the entire

process is completed voluntarily by the parties participating in the meeting: Pro-

vided further that the accused may, if he so desires, participate in such meeting with

his pleader, if any, engaged in the case;

2. In a case instituted otherwise than on police report, the Court shall issue notice to

the accused and the victim of the case to participate in a meeting to work out a

satisfactory disposition of the case: Provided that it shall be the duty of the Court to

ensure, throughout such process of working out a satisfactory disposition of the

case, that it is completed voluntarily by the parties participating in the meeting:

Provided further that if the victim of the case or the accused, as the case may be, so

desires, he may participate in such meeting with his pleader engaged in the case.

Section 265-D (Report of The Mutually Satisfactory Disposition)

This provision talks about the preparation of the report of mutually satisfac-

tory disposition and submission of the same. Two situations may arise here namely:-

1. If in a meeting under section 265-C, a satisfactory disposition of the case has

been worked out, the report of such disposition is to be prepared by the court. It

shall be signed by the presiding officer of the Courts and all other persons who

participated in the meeting.

2. If no such disposition has been worked out, the Court shall record such observa-

tion and proceed further in accordance with the provisions of this Code from the

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 stage the application under sub-section (1) of section 265-B has been filed in

such case.

265E. Disposal of The Case

Where a satisfactory disposition of the case has been worked out under section 265D, the

Court shall dispose of the case in the following manner, namely: -

1. The Court shall award the compensation to the victim in accordance with the dis-

position under section 265D and hear the parties on the quantum of the punishment,

releasing of the accused on probation of good conduct or after admonition under

section 360 or for dealing with the accused under the provisions of the Probation of

Offenders Act, 1958 (20 of 1958) or any other law for the time being in force and

follow the procedure specified in the succeeding clauses for imposing the punish-

ment on the accused;

2. After hearing the parties under clause (a), if the Court is of the view that section 360

or the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other

law for the time being in force are attracted in the case of the accused, it may release

the accused on probation or provide the benefit of any such law, as the case may be;

3. After hearing the parties under clause (b), if the Court finds that minimum punish-

ment has been provided under the law for the offence committed by the accused, it

may sentence the accused to half of such minimum punishment;

4. In case after hearing the parties under clause (b), the Court finds that the offence

committed by the accused is not covered under clause (b) or clause (c), then, it may

sentence the accused to one-fourth of the punishment provided or extendable, as the

case may be, for such offence.

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Section 265-F (Judgment of the Court)

Talks about the pronouncement of judgment in terms of mutually satisfac-

tory disposition.

Section 265-G (Finality of Judgment)

Says that no appeal shall be against such judgment but Special Leave Peti-

tion (Article 136) or writ petition (under Article 226 or 227) can be filed.

Section 265-H (Power of the Court in Plea Bargaining)

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 Procedure Code.

Section 265-I (Period of detention undergone by the accused to be set off against the

sentence of imprisonment)

Says that Section 428 of CrPC is applicable for setting off the period of

detention undergone by the accused against the sentence of imprisonment imposed under

this chapter.

265-J (Savings)

Talks about the provisions of the chapter which shall have effect notwith-

standing 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 (Statement of the accused to be used)

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 Specifies that the statements or facts stated by the accused in an application

under section 265-B shall not be used for any other purpose except for the purpose as men-

tioned in the chapter.

Section 265-L (Non-application of the chapter)

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.

Summary – Here in the chapter – 5 we studied the legal provision and pro-

cedure for the plea bargaining in India.

In the next chapter – 6 we will conclude the conclusion of the whole research

and will also put some suggestions regarding the plea bargaining.

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 CHAPTER – 6

CONCLUSION AND SUGGESTIONS

6.1 Conclusion and Suggestions

Plea Bargaining is a pre–trial settlement between the prosecution and the

accused where the latter agrees to plead guilty to the offences charged in consideration of

leniency in sentencing or charge framing.

In India the legislative framework of Plea-Bargaining is found in Chapter

XXI A of the Criminal Procedure Code, 1973. It’s an alternative dispute resolution mech-

anism 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 jus-

tice system of U.S.A with some marked differences in the year 2005. The detailed proce-

dure for the Scheme is contained in Sections 265 A to 265 L of the Criminal Procedure

Code, 1973 where the judicial officer plays the central role and only sentence bargaining is

allowed. Great emphasis is paid to the voluntary participation of the accused and even the

victim’s participation and compensation is facilitated through the process of working out a

mutually satisfactory disposition of the case.

In America unlike the Indian jurisdiction the office of Prosecution plays the

central role and charge bargaining is allowed. It’s applicable to a wide range of offences in

105
contrast to India where only a truncated version has been adopted. As one of the objectives

of introducing the procedure has been the reduction of under trials in jail the provisions for

admonition and probation find a prominent place in the sentencing guidelines for the

scheme.

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.

The scheme covers this lacuna by making the judicial officer accountable

for ensuring voluntary participation by the accused. Though the scheme is in the Cr.P.C

since 2005 its impact cannot be assessed due to lack of studies on this area. But as a matter

of urgency if the criminal justice system desires to inspire confidence in the common man

and sustain itself then this procedure has to be used on a wider scale.

This disputed concept of Plea Bargaining is more a mechanism of conven-

ience 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 mak-

ing 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

106
scrutiny opens up the possibility of fair dealings in these bargaining. In the present atmos-

phere 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 Advo-

cates 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 re-

mains 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 mecha-

nism, 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.

Plea Bargaining is undoubtedly, a disputed concept few people have wel-

comed it while others have abandoned it. It is true that Plea Bargaining speeds up caseload

disposition, but it does that in an unconstitutional manner. But perhaps we have no other

choice but to adopt this technique. The criminal court are too over burdened to allow each

and every case to go on trial

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 The concept of plea bargaining is not entirely new in India. Indian has al-

ready recognized it when it got its constitution in 1950. Article 20(3) of Indian constitution

prohibits self-incrimination. People accuse plea bargaining of violatory of the said article.

But with the passage of time the considering the encumbrance on the courts, the Indian

court has felt the need of Plea bargaining in Indian legal system.

When a change is brought it is hard to accept it initially but society needs to

grow so is our legal system. Everything has advantages and disadvantages and both have

to be analyzed in order reach a sound conclusion. Rejecting something only on the basis of

its disadvantages would not be justified in any case. The concept of plea bargaining is

evolving in India and it is not appropriate to expect it to be perfect. It can only be improved

by debate, discussions, and discourses.

Today we are standing at a juncture where we have legislative provisions in

the form of Chapter XXI-A of Code of Criminal Procedure, 1973 in one hand and on the

other hand three champions that is Indian judiciary, a section of lawyers and Indian mind-

set. Objections have been raised from a section of lawyers stating that with the implemen-

tation of plea bargaining the deterrent effect of the law will leave way for the elite class of

the society. The rich may get away very easily by paying any amount of compensation and

serving a minimum sentence.

There have been a strong mandate of Indian judiciary against the concept of

plea bargaining as is evident from all the cases discussed above of course decided prior to

5th July, 2006 that is the date from which Criminal Law (Amendment) Act, 2005 came into

force. Not only this but mind set of the Indians where Judges are considered at the top of

108
the hierarchy of the justice delivery system and are kept at the place which is next to God.

So any concept like plea bargaining where amount of sentence is reduced or compensation

is paid and that too with the approval of court is very difficult to be accepted. In fact, these

are the core reasons which made the task of adaptation very difficult for plea bargaining in

India.

The aim of criminal justice is not only deterrent but is combination of pre-

vention, expiation, retribution and of course reformation. Taking all these into considera-

tion and also the exceptions of Chapter XXI-A of Code of Criminal Procedure, 1973, in-

troducing plea bargaining i.e. application only in respect of the offences for which punish-

ment of imprisonment is up to a period of seven years, offence does not affect the socio-

economic condition of the country or has not been committed against a woman or child

below the age of 14 years, one can appreciate with open heart the provisions of plea bar-

gaining in India.

More over this concessional treatment to the offenders who on their own

volition plead guilty has been introduced on the strong recommendations of Law Commis-

sion of India and Justice Malimath Committee Report. The Law Commission of India said,

“We have examined the cases decided in USA as well as by the Indian Supreme Court and

the 142nd Report (1991). We are of the view that plea bargaining can be made an essential

component of administration of criminal justice provided it is properly administered. For

that purpose, certain guidelines and procedure has to have to be incorporated in the Code

of Criminal Procedure.”

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 The inclusion of Chapter XXI-A of the Code has been introduced rather

cautiously by our law makers. They have limited the applicability to a large extent and also

restricted the scope of plea bargaining. It should be understood that when a concept is being

implemented into a legal system, it should be done in a manner, foreseeing the hindrances

that may be faced at the experimental stage. The provisions as such don’t show any ten-

dency of reducing case load.

If citizens are to be encouraged to use the alternative remedy of plea bar-

gaining then there is an urgency to bring in more clarity and predictability in the provisions.

It is agreed that there should be a balance between a rampant use of this remedy and the

possibilities that plea bargaining offers in order for it to be an effective and efficient alter-

native remedy. But, we are unable to appreciate plea bargaining to the extent it deserves to

be appreciated because of the extremely cautious approach in restricting its scope. It cannot

be denied that the Amendment is a sincere attempt at resolving the stated issues but it can

be better appreciated only if the reins are loosened a little more.

Finally the concept of plea bargaining is not new to India. It is a technique

of ADR and has been in practice since vedic period. It has been present in our country in

the form of ‘PANCH-NIRNAYA’, which means decision of elder men of the locality in

which parties to dispute reside or by the members of Panchayat whereas the origin of the

present form of plea bargaining may be traced in USA.

The requirement is to open the wrapper of potato chips and show to the In-

dians that the chips in beautiful pack before you are made of the same potatoes which you

have been cultivating in your fields since time immemorial. So keeping into our mind, the

110
peculiar social fabric and economic condition of our country if we implement the provisions

of plea bargaining with letter and spirit, we will be able to maintain balance between effi-

ciency and speed on the one hand and justice and dignity of court on the other hand. No

doubt every technique has it pros and cons but seeing the success of plea bargaining in USA

where more than ninety percent cases are being settle through this technique, we may con-

clude that all the limitation of plea bargaining may be overcome by proper education ,

awareness and will of all those making use of this technique.

In Indian Criminal Justice System plea bargaining is a new measure for

providing justice to victim of crime. Plea bargaining is prescribed to compensate victim for

loss caused to him due to crime commission; it is based on consideration that monetary

amount may help in restitution of victim. Traditionally, in Indian society emphasis is given

for retribution and deterrence for victim satisfaction whether it is individual victim or so-

ciety at large, and further, for protection of society by tackling crime, criminal and crimi-

nality.

Compensation by criminal to victim of crime and payment under mutual

satisfactory disposition which is a kind of agreement arrived between criminal and victim

of crime and in return criminal becoming liable for reduced punishment is considered in

Indian society completely different concept in Indian criminal justice system and Indian

societal considerations. Plea bargaining is always much criticised in India.

Crime problem day by becoming more and more serious even the existence

of society is challenged by increased rate of crime commission, need is to cope problem

effectively and for this purpose need is to reform the criminal or deter the criminal from

111
crime commission. Whenever any act is declared as crime, certainly act may be serious

otherwise it would have not been declared as a crime but declared as a civil wrong. Only

due to certain reasons for some crimes, procedure applicable may have been changed,

thereby, it should not be taken as crime is only against individual, but it should be taken

that the crime is always serious, only due to some rational reasons different procedure may

have been provided. Differentiation that particular crime is against the individual and par-

ticular crime is against society, may not be appropriate way of application of criminal jus-

tice.

Whenever any act is declared as crime always it should be taken that act is

dangerous one and only because of it act may have been declared as crime. Crime problem

can be tackled by infliction of effective and appropriate punishment or reformative

measures. It may reform the criminal or create deterrence and thereby reform the criminal

and he may not commit crime. Such actions against criminal may cause and strengthen

social solidarity, increase assurance in victim that he is protected against crime and crimi-

nals, thereby, save the individuals and ultimately members of society from fear of victimi-

sation. But plea bargaining provides a completely opposite consideration.

In penal statutes minimum and maximum punishments are prescribed to in-

flict effective sentence after detailed analysis. But in plea bargaining neither consideration

is given for deterrence creation nor for reformation of accused. Whole criminal justice con-

siders reformation and deterrence of criminal and potential criminals as main objectives;

and further, criminal justice ultimately focus on protection of victim and society; these are

112
ultimate objectives of criminal justice system. Plea bargaining is not based on aforesaid

basic considerations of criminal justice.

Already for petty offences provisions were provided in Criminal Procedure

Code permitting compounding9 and for some other offences complainant is permitted to

withdraw the case10. Effect of inclusion of provisions of plea bargaining is extension and

widening of compoundable offence for covering those offences also which have tradition-

ally been considered more serious. Plea bargaining is claimed for having victim centric and

victim restorative focus but detailed analysis shows that plea bargaining actually provide

protections to accused, It is soft and favourable to accused. Minimum punishment is always

taken as mandatory sentence and on conviction it is mandatory to inflict minimum sentence

but on plea bargaining even minimum sentence is reduced and half of minimum sentence

is inflicted.

Bargaining between the accused and the victim in which ultimately there is

exchange of reduction of punishment and compensation create situation in which it appears

that there is selling of crime; one person committed crime and now on payment of money,

he becomes lesser liable, another person suffered injury due to crime commission but now

by taking of money, he is selling his injuries. This whole procedure of plea bargaining

appears to legalise the crime commission. Proposal for plea bargain is given by accused;

whenever accused may find in the case that evidences available against him in the case are

direct, sufficient and substantial as it appears that ultimately he may be convicted and sen-

tenced, he may give such offer and on successful plea bargain, accused may become liable

for much lesser punishment only on expending some money giving it as compensation to

113
the victim. No doubt two checks are created and thereby tried to check such loopholes and

drawbacks, firstly, offer has to be accepted by victim, when he is not interested in reducing

liability of accused by taking compensation then he may refuse and in such case criminal

will have effective liability for crime as prescribed by substantive law, and secondly, court

has final say in the case, whole proceeding takes place in supervision of court, it is respon-

sibility of court to see whether plea bargaining is voluntary, and ultimately, disposition

prepared by party becomes absolute only on passing order by court in accordance with

disposition prepared by prosecution, victim and accused in case based on police report and

in accordance with disposition prepared by accused and victim in complaint case.

The victim is the person for whose protection criminal law originated and

has continued existence. Criminal justice has ultimate objective to protect life, property and

liberty of individuals and ultimately to protect the whole society. Every measure prescribed

in criminal justice should have focus for justice to individual victim and ultimately justice

to society at large, thereby, there is continuous need for reviewing of measures used for

justice imparting.

Even the Supreme Court has upheld that delay of one year in the commence-

ment of trial is bad enough. How much worse could it be when the delay is as long as three

or five or seven to ten years or more? Initially, the concept of plea- bargaining was criticized

by a group of society including legal experts and intellectuals by stating that it will demor-

alize the public confidence in criminal justice system and also lead to lesser penalties to

rich class, conviction of innocent people and therefore, it has become disputed concept

now. It is argued that the plea-bargaining concept no doubt undermines the public’s

114
confidence in the criminal justice system and as result of this it will lead to the conviction

of innocent, inconsistent penalties form similar crimes and lighter penalties for the rich27.

Today, it is used by all great countries like USA, Europe, Canada and some

authorities stated that the prevalent conditions in India are very different from US, even

then to meet out the huge backlog of cases in India and ultimately it will have to be done

with the consent of both the parties i.e. accused and prosecution, then what undermines?

Therefore, India cannot abstain itself for this law. This practice has been accepted by Indian

Judiciary. It can reduce the heavy backlog of cases in Indian courts, as it requires today and

we hope that overburdened criminal courts will soon get a relief with it and rate of disposing

will become rapid. According to the statistics of Delhi till 17/01/2011, out of 8630 total

cases, only 4129 cases have settled and there is no statistic which show that in how many

cases plea-bargaining was demanded but even then only 309 were declared in which it was

rejected. It shows the heavy backlog under Indian Courts and application of pleabargain-

ing28.

When the process is complete and the quantum of punishment and possibil-

ity of the probation is finished, we can say that the victims are not the forgotten actor rather

they have become a key player in the criminal justice system. According to the view of a

Judge of Delhi High Court over three crore cases are pending in Indian courts. Plea-bar-

gaining will solve cases involving petty offences and the courts will concentrate on more

serious offences. Indian jails have capacity of 2.56 lakh prisoners but there are more than

five lakh prisoners behind bars. The State governments spend more than rupee 55 per day

on each prisoner and annual expenditure comes up to Rs 361 crore. This huge amount is

115
spending by our Indian government to maintain these prisoners just because of delayed

criminal justice system. Plea- bargaining will help in reducing backlog under Indian Judi-

ciary and number of prisoners in jails also although the Constitutional obligation to provide

speedy trial is also being fulfilled.

To sum up, plea bargaining is a disputed and controversial concept. Very

few courts or judicial officers are welcoming it and others have abandoned it. Perhaps we

in India have no other choice but to adopt this concept because of numerous abovemen-

tioned reasons. We are of the opinion that only time will tell if this concept will have fruitful

effects and is justified or not.

6.2 Suggestions

1. Even though the amendment has tried to address the problems of under trial prison-

ers by mandating the court to give accused the benefit of Probation of Offenders

Act where so ever it is permissible. Then Section 12 of the said Act provides that it

shall not cast any stigma on the offender. Sec 265 I also Section 428 applicable to

the sentence awarded on plea bargaining. But there is lack of awareness amongst

under trial prisoners. Provisions should be incorporated in the chapter making the

probation officers and jail superintendents duty bound to conduct sessions in pris-

ons informing the under trial prisoners of such a benefit which can be availed by

them.

2. A specified time should be laid down within which if a trial hasn’t commenced the

under trial prisoner should be let free. Police, prosecution, and judiciary should be

116
 made accountable for delays in their respective spheres, not the under trial prison-

ers.

3. The accused in cases that are at appeal stage prior to the 2005 Amendment should

be allowed to avail this alternative remedy. There should be more clarity on the

offences which come under socio economic offences.

4. There should be guidelines given to the government as to what basis an offence

should be classified as socio economic offence. This can act as a safeguard against

using this power arbitrarily.

5. The applicability of the section should be widened and classification for the benefit

of plea bargaining should not be merely based on the number of years of punishment

for a particular offence but it should also consider the severity of the crime.

6. A parallel system should be set to consider cases dealing with plea bargaining. Only

if the forum feels that a satisfactory disposition cannot be worked out it should send

the case back to the court which should proceed from the stage where such applica-

tion has been filed for plea bargaining.

7. A time frame should be stipulated for working out a mutually satisfactory disposi-

tion.

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