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ALTERNATIVE DISPUTE RESOLUTION AND LEGAL AID

ASSIGNMENT TOPIC: “APPILICATION OF ALTERNATIVE DISPUTR RESOLUTION IN

CRIMINAL CASES IN BANGLADESH”

SUBMITTED TO SUBMITTED BY

Toki Ashraf Nure Umme Habiba

Lecturer ID: UG10-33-19-024
Department of Law Department of Law
State University of Bangladesh State University of Bangladesh
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Table of Contents

What is ADR:..............................................................................................................................................3
Types of ADR:............................................................................................................................................4
Negotiation:.............................................................................................................................................4
Mediation:...............................................................................................................................................4
Arbitration...............................................................................................................................................4
Conciliation:............................................................................................................................................5
About ADR:................................................................................................................................................5
Present Practice of ADR in Bangladesh:.....................................................................................................6
Different types of ADR in Bangladesh........................................................................................................7
Informal ADR in Bangladesh..................................................................................................................7
Criminal Justice system of ADR in Bangladesh:.........................................................................................8
Model of ADR In Criminal Cases in Bangladesh:.......................................................................................8
Implantation of Plea Bargaining as ADR Mechanism in Bangladesh........................................................10
Various Methods of Plea Bargaining.....................................................................................................11
Suggested Mechanism of Plea Bargaining.............................................................................................11
Concept of the plea bargaining :................................................................................................................12
Canada...................................................................................................................................................12
England and Wales:...............................................................................................................................12
New Zealand:........................................................................................................................................13
United States:........................................................................................................................................14
India:.....................................................................................................................................................15
France....................................................................................................................................................15
Recommendations:................................................................................................................................16
Concluding Remarks:................................................................................................................................17
References.................................................................................................................................................18
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What is ADR:
Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a
wide range of dispute resolution processes and techniques that parties can use to settle disputes,
with the help of a third party. They are used for disagreeing parties who cannot come to an
agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help
settle disputes alongside the court system itself.

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained
widespread acceptance among both the general public and the legal profession in recent years. In
fact, some courts now require some parties to resort to ADR of some type, usually mediation,
before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008)
expressly contemplates so-called "compulsory" mediation; this means that attendance is
compulsory, not that settlement must be reached through mediation). Additionally, parties
to merger and acquisition transactions are increasingly turning to ADR to resolve post-
acquisition disputes.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts,
the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and
the desire of some parties to have greater control over the selection of the individual or
individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of
which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle
disputes. Since the 1990s many American courts have also increasingly advocated for the use of
ADR to settle disputes. However, it is not clear as to whether litigants can properly identify and
then use the ADR programmes available to them, thereby potentially limiting their effectiveness.

Alternative dispute resolution (ADR) refers to the different ways people can resolve disputes
without a trial. Alternative Dispute Resolution ("ADR") refers to any means of settling disputes
outside of the courtroom. The most familiar type of dispute resolution, civil litigation typically
involves a defendant facing off against a plaintiff before either a judge or a judge and jury.
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Types of ADR:
Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the

courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation,
and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue
to plague litigants, more states have begun experimenting with ADR programs. Some of these
programs are voluntary; others are mandatory.

The most famous ADR methods are the following:

1. Negotiation
2. Mediation
3. Arbitration
4. Conciliation

Negotiation:
Negotiation is often the first approach taken to resolving an intellectual property (IP) dispute.
The parties or their counsel hold discussions in the hope of reaching a mutually satisfactory
agreement. A negotiated agreement can become a contract enforceable by the courts.

Mediation:
Mediation involves an independent trained mediator who facilitates communication between the
two parties having the dispute, with the aim of achieving a settlement or resolution. The mediator
will discuss the issues and try to help the parties reach an agreement, but will generally not offer
their own opinions or assessment.  

Arbitration:

This is more formal than mediation, and involves a process in which the dispute is resolved by
the decision of an arbitrator (a nominated third party who is qualified to handle arbitration). The
arbitration process can be particularly useful in disputes which require an understanding of
technical knowledge and where privacy is important (eg to avoid disclosure of commercially
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sensitive information) or if there is an international element (ie to avoid multiple legal

jurisdictions). It runs as a tribunal process and decisions are binding. Many contracts will contain
an arbitration clause, which requires arbitration to be used in the case of a dispute.

Conciliation:
Conciliation is generally used for employment situations rather than commercial disputes.
Conciliation is a compulsory process before an individual wishes to bring a claim to the
Employment Tribunal. The conciliator will discuss the issues and try to help the parties reach an
agreement, often providing their own opinion after assessing the situation and the different
arguments. Their opinion may help to form a settlement or achieve a conclusion to the dispute.

About ADR:
It is important that ADR is used in a way that is appropriate and likely to lead to the best results
for all parties. These are some things to take into account when considering whether to use ADR
and which type is most appropriate for you:

1. ADR may not be suitable for every dispute, for example if the dispute involves a matter
of public interest, it may be more appropriate to have a court judgment to set a precedent.
2. Where a binding agreement is made (for example through negotiations or use of ADR),
parties normally give up the right to go back to court about the same matter. Similarly, an
award made at arbitration is generally binding and cannot appealed except in limited
circumstances.
3. Some agreements made at ADR may not be as easy to enforce as a court or tribunal
order. In some cases this can be addressed by having the terms of an agreement made into
orders by consent by a court or tribunal. You can also get legal advice or further
information about other ways of making ADR agreements and decisions binding.
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Present Practice of ADR in Bangladesh:

A.D.R. means Alternative Dispute Resolution, mostly applied to civil cases. When a civil case is
instituted in a court of competent jurisdiction, the scenario usually is, that a long time is taken to
serve the process, the defendants beat the law and submit their written statement/s after a long
delay beyond the permissible statutory period of two months, lawyers and judges do not take any
interest in screening out a false and frivolous case at the first hearing of the case under Order X
CPC (in fact no such first hearing takes place), they seldom try to shorten the disputed questions
of fact and law by application of Orders XI and XII of the CPC and mostly ignore the elaborate
procedure of discovery, interrogatories, notice to produce etc. contained in those Orders, the
issues of a case are seldom framed following the Code of Civil Procedure, the case takes several
years to reach a settlement date and on the date of positive hearing half a dozen or more ready
cases are fixed for hearing, resulting in the hearing of none. In the meantime years roll by,
presiding judge of a single case is transferred a number of times, witnesses of a single case may
be heard by more than one presiding judge, arguments are listened to may be by another
presiding judge and judgment may be delivered by a presiding judge who had had no connection
with the case ever before. Our legal system has thus been rendered uncaring, non-accountable
and formalistic. It delivers formal justice and it is oblivious of the sufferings and woos of
litigants, of their waste of money, time and energy and of their engagement in unproductive
activities, sometimes for decades. When they win a case the result is much worse than winning
it. When they lose a case they lose not only the subject matter of the dispute, but also a good part
of their fortune. If interlocutory matters are dragged up to the appellate or revision courts, their
woos know no bounds and their agonies are prolonged for an indefinite period. Appeals from
trial court decrees may reach unto the Appellate Division by which time the parties are
thoroughly drenched in misery. When a decree is thus obtained after protracted litigation, it does
not end there. Execution proceedings then re-starts a fresh litigation between the parties or even
their successors which may take years or decades to come to a conclusion and which may end up
with no real or positive benefit to the decree-holder plaintiff. This is the experience of a common
litigant in Bangladesh. Added to this inherent and in-built delay and expenses, corruption and
often terrorism at almost each stage of litigation is eating into the vitals of the justice delivery
system.
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Most of us who are or were in the judiciary and were or are practicing in the Bar think that
nothing can be done about it, or, at least, we have no role to play in the matter, either
individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and
helplessness. Many conscientious judges and lawyers have done what they could under the
circumstances, but their sincerity has been drowned into the general morass of malfunctioning of
the court system.

Different types of ADR in Bangladesh

There are three streams of ADR in Bangladesh:

a) Extra- judicial or community based ADR (informal);

b) ADR in Quasi-formal systems; and
c) ADR in formal legal system.

Informal ADR in Bangladesh

Informal ADR in Bangladesh includes traditional shalish and NGO modified Shalish. Quasi-formal ADR
includes village court and Board of Conciliation have originated from the informal shalish system and this is
why they all have been shown in the following single diagram.

ADR in different Bangladeshi Laws:

1. The Code of civil procedure, 1908.

2. The Code of Criminal procedure, 1898.
3. The Artha Rin Adalat Ain, 2003.
4. The arbitration Act, 2001.
5. The Bankruptcy Act, 1997.
6. The Muslim Family Court Ordinance, 1985.
7. The Muslim Family Law Ordinance, 1961.
8. The Gram Adalat Ain, 2006.
9. The Settlement of Disputes (Paura Area) Board Act, 2004.
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Criminal Justice system of ADR in Bangladesh:

Alternative Dispute Resolution (ADR) is a well-established procedure in the civil adjudication system, but it
has not been widely introduced in the criminal justice system. Inadequate number of judges, absence of
witnesses, etc. are making the criminal justice system more complex and causing delay in trial. As such, it is
the high time to introduce ADR mechanism in the criminal justice system to avoid any kind of complexity or
delay in trial.

Section 345 of the Code of Criminal Procedure, 1898 refers to the compoundable offences. Now-a-days, minor
offences are compoundable by the consent of the parties. Consent of court is not necessary in compounding as
offence if the parties are being agreed to do so amicably. However, compromise is not really possible in the
grievous offences such as murder. Simultaneously, pity offences can be settled by compromising of the parties
where the natural justice should be ensured, and the process needs to be guided by the legal activities.

ADR is now a popular option for the people at large to settle their disputes as it is time-efficient, cost-effective
and allows parties to avoid procedural complexity. Compounding is possible at any stage of the trial, and in
many cases, compounding is possible before pronouncing the judgment. In the case of Md. Joynal and others v
Rustom Ali and others (1984) 36 DLR (AD) 240, the Supreme Court of Bangladesh highly appreciated the
compromise which is the basic form of ADR. 

Indeed, to promote the ADR necessary steps should be taken by enlarging the scopes of section 345 of the
Code of Criminal Procedure, 1898. Offences under section 385 of the Penal Code, 1860 are also considerable
to be compromised by using the ADR mechanism and it can only be possible when necessary amendments in
laws are introduced. Many lawyers and legal professionals are not well familiarised with the process of ADR.
To make them aware, several training centers should be established at the earliest time possible. 

Model of ADR In Criminal Cases in Bangladesh:

Types of ADR in Criminal Case:

a) Compounding offence;
b) Plea Bargaining.

Compounding Offence:
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Compounding means compromise or amicable settlement. In civil proceedings there are provisions of
arbitration, mediation, conciliation and lots of other compromise between plaintiff and defendants. In criminal
proceedings, on the other hand, the usual rule is that all crimes are against the state and therefore no
compromise is possible between the offender and the victim without the intervention of the state. However, the
law on CrPC makes some provisions which allow some specific offences to be compounded. Offences which
may lawfully be compounded are mentioned in section 345. An offence created by a special law is non-
compoundable. The court cannot allow compounding of an offence which is not compoundable under section
345. Neither can the offender and the victim make an agreement to compound, settle or withdraw a complaint
with regard to an offence which is not mentioned in section 345. If any compounding is made otherwise than
mentioned in section 345, that compounding will be illegal and section 213 and 214 provide punishment for
illegal compounding. Thus for the purpose of compromise in criminal groups: compoundable offences and
non-compoundable offences. Offences mentioned in section 345 are compoundable and the rest are non-
compoundable.

Categories of Compoundable Offences: Compoundable offences may be of two types:

1. Those which can be compounded without the permission from the court; and
2. Those which cannot be compounded without Both the categories have been shown in table below.

Object of Compounding:

The principle of English law is that the composition of an offence is illegal if the offence is one of public
concern, but lawful if the offence is of private nature and for which damages may be recovered in a civil
action. This principle is adopted in our system and the CrPC lays down the cases which are compoundable.
The tabulation of the offences removes all uncertainty and must be taken as a complete guide. The policy of
the legislature adopted in section 345 is that in the case of certain minor offences, where the interests of the
public are not vitally affected, the complainant should be permitted to come to compromise with the party
against whom he complains.

Other Conditions about Compounding: There are some other conditions with regard to compounding offences
under section 345 which are as follows:
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1. When any offence is compoundable under this section the abetment of such offence or an attempt to
commit such offence (when such attempt is itself an offence) may be compounded in like manner.
2. When the person who would otherwise be competent to compound an offence under this section is
under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his
behalf may with the permission of the Court compound such offence.
3. When the accused has been sent for trial or when he has been convicted and an appeal is pending, no
composition for the offence shall be allowed without the leave of the Court to which he is sent or, as
the case may be, before which the appeal is to be heard.
4. The High Court Division acting in the exercise of its powers of revision under section 439 and a Court
of Session so acting under section 439A, may allow any person to compound any offence which he is
competent to compound under this section.
5. The composition of an offence under this section shall have the effect of an acquittal of the accused
with whom the offence has been compounded.
6. No offence shall be compounded except as provided by this section. Therefore, offences punishable
under laws other than the Penal code are not compoundable.

Implantation of Plea Bargaining as ADR Mechanism in Bangladesh

Plea bargaining may be called such an instrument in which the prosecutor and convict negotiate in an
agreement and subsequently the convict pleads guilty for some incentives provided by the prosecution. It is
honestly an agreement in criminal litigation between the prosecution and accused where the accused receives
lesser punishment by confessing guilt. It is an amicable method to resolve dispute by reducing cost and time of
both parties. Lack of adequate number of judges and backlog of cases are enormously increasing the sufferings
of litigants in criminal courts of Bangladesh and presently low rate of conviction has provoked such distress. In
these pending cases if the accused is not released on bail, he is confined in prison and as a result prisons are
gradually being overcrowded (Karim, 2015). Under such annoying circumstances, introduction of plea
bargaining can play efficient role by giving lesser punishment to the offender instead of rotting in prison.
Through plea bargaining the accused will receive lesser penalty by taking incentives from the prosecution. All
sorts of expenditures to run a criminal case and valuable time will be saved. Plea bargaining can also keep the
parties free from uncertainties due to long process criminal justice system. It is often debated that if plea
bargaining is induced occurrence of crime may be increased. However, this is not factual as the court before
granting an application of plea bargaining will scrutinize the overall issues of the crime (Alamin, 2015). Some
critics may further argue stating that plea bargaining is a mechanism to defeat due penalty. This is not also
substantial because the system of plea bargaining involves concession of treatment but not punishment.
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Therefore, an efficient and fair prosecution is the precondition for plea bargaining. As the criminal justice
system of Bangladesh got much similarity with India, our country may adopt identical method to implant the
principle of plea bargaining just like India. However, it is not argued that all forms of criminal offences should
come under the shed of ADR mechanism.

Various Methods of Plea Bargaining

Three various areas of plea bargaining for criminal cases are there namely i.e. Charge bargaining, Fact
bargaining and Sentence bargaining. Charge bargaining is the most common form of plea bargaining. It occurs
when the defendant is allowed to plead guilty by the prosecution to a lesser charge or to only some of the
charges brought against him. In such bargaining there remains an opportunity for the accused to negotiate with
the prosecution and reduce the number of charges against him. When multiple numbers of charges are framed,
some of them are exuded if the accused pleads guilty to less grave charge. But while only one charge is there, a
grievous charge is exuded in barter for a plea guilty to less significant charge. Sentence bargaining takes place
mostly in high profile cases when the accused in advance gets to know about his conviction and sentence if he
pleads guilty. In fact, it is an agreement for a lighter sentence to plead guilty by the accused and
recommendation is made by the prosecution for a specific sentence, provided that such recommendation must
be approved by the trial court. Fact bargaining occurs when either some tedious factual circumstances are not
revealed to the court by the prosecution to avoid severe punishment. In some other cases, the accused may
assists the prosecution by disclosing vital facts to the police of the concerned case. There remains a promise
between the litigants not to disclose such facts which may bind the court to pass to an obligatory minimum
judgment against the accused.

Suggested Mechanism of Plea Bargaining

The form of plea bargaining in India may be mimicked to engraft it in criminal justice strait of Bangladesh.
Discussing the methods of plea bargaining of India will be helpful to understand. Like India, a new and unique
chapter on plea bargaining can be incorporated in the Code of Criminal Procedure. Some basic features of the
scheme are as follows:

i. The accused may lodge a petition for plea bargaining in the trial court,
ii. The court must examine the application as well as the accused whether he has filed it voluntarily
or forcefully. Such negotiation takes place upon the free will of the prosecution and defense and
time is given to both parties to work out reciprocally. This involves giving of compensation and
case expenditure by accused to the victim.
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iii. If the case is settled through such mutual satisfaction, the court will sentence the accused by
giving one-fourth of the penalty for such offence. The court may award compensation to the
victim and release the accused on probation.
iv. The confession and admission by the accused in the application for plea bargaining must not be
used for other issues except plea negotiation
v. An appeal against the order in case of plea bargaining shall be barred by law.

Concept of the plea bargaining :

Canada:

Hon. Justice Pomerance: In some Canadian jurisdictions, such as the province of Ontario,
counsel adhere to a formalized process and fill out pre-trial forms in advance of the meeting,
setting out their positions on the issues. These forms help to structure the meeting by identifying
issues that typically arise in criminal cases. They also, in an ideal world, force counsel to think
through the case before entering the pre-trial. Of course, safeguards also flow from the ethical
obligations that rest upon Crown and defence counsel. The defence lawyer has an obligation to
take any resolution proposal to the accused for his or her consideration.116 There are clearly
defined limits on the circumstances in which a defence lawyer can ethically plead a client guilty.
The Crown has an obligation to discuss any proposed resolution with the complainant/victim in
the case and/or the investigating officer. This is not to say that the Crown is bound by such input.
To the contrary, the Crown, as a quasi minister of justice, must make an independent
determination of whether a resolution is in the public interest.

England and Wales:

Professor McEwan: The only process that involves the judge at all is that he may, not must,
indicate a sentence under Goodyear and only on the defences request. Even in the special fraud
structure described, the judge is not involved at all and is entitled to ignore the joint
recommendation as to sentence. The defendant may be unrepresented-unlikely at present in
serious fraud cases but there are problems regarding proposals on legal aid for serious trials, and
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we have had delays to hearing some serious fraud cases currently up for trial because of barrister
strikes over fees. Protections from prosecutors guidelines only are cited, which set out prosecutor
duties as to confidentiality and fairness for the fraud negotiations. Otherwise, the only
protections are in the professional Codes of Ethics that apply to any solicitors and barristers
involved. Maybe it would be unnecessary to do more since parties are not in a position to make
promises regarding sentencing. The only direct effect on sentencing in a British plea bargain
would be where the Crown accepts a plea to a lesser offense that carries such a low maximum
(compared with that for the initial charge) that the courts hands are effectively tied (subject to the
alleged power to reject the guilty plea). But such cases are rare, because most sentencing takes
place a long way short of the maximum. It is far more likely that the judge will refuse to accept
the plea if the maxima are miles apart, as in the case of rape, which carries a maximum of life
imprisonment, rather than sexual assault (formerly indecent assault), which would carry a
maximum of six months in the magistrates court. Most magistrates are lay persons and so are
unlikely to take issue with a case where an apparently inappropriate plea of guilty has been
accepted by the prosecution. However, there is an increasing tendency to prefer district judges,
formerly stipendiary magistrates, for the lower courts. These judges are professionals and may
take a stronger line and insist the case be sent up to the Crown Court, where the maximum for
sexual assault would be ten years.

New Zealand:
Hon. Judge Harvey: Yes, procedural protections are set out in the Criminal Procedure Act 2011.
As I advised before, the sentence indication process in New Zealand developed informally. The
important thing about the provisions of the Criminal Procedure Act is that statutory validation is
given to the sentence indication process. The various procedures and, in particular, procedural
safeguards make it clear that a sentence indication can only be sought by an accused person.
Furthermore, section 61(3) of the Act sets out the type of information that a judge should have
before making a sentence indication. Full submissions are filed by both prosecution and defence
setting out the various aggravating and mitigating circumstances of the offense and the offender
together with authorities that may justify an argument for setting a sentence at a particular level.
The Act also provides in section 62(4) the circumstances where second sentence indication may
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be sought and given.131 Under the informal practice prior to the Act, there was variation in
approach to seek a sentence indication, and the Act makes it clear that second indication can be
sought only where there is a change of circumstances. The practice prior to the enactment of the
Criminal Procedure Act was that the judge who gave the sentence indication would be the judge
who sentenced. If it transpired that the judge who sentence dafter a sentence indication was
different than the indicating judge and the sentencing judge disagreed with the indication, the
accused should have been given an opportunity to reconsider the plea on the basis of the earlier
indication. That provision is not contained in the legislation but is a matter of practice. The
importance of the provisions of sections 60-65 of the Act is that they clarify matters of practice
where there had previously been some variation under the informal scheme. The statutory
recognition of the previously informal process of sentence indications has clarified the validity of
such process beyond doubt. The statute makes it clear what is required by the indicating judge
and introduces an element of finality the one chance rule subject to changing circumstances.

United States:
This the only enforceable procedural safeguards governing plea agreements. The most detailed
section of the Rule specifies what the court must do before it can accept a defendant plea of
guilty. The Rule requires the court to address the defendant personally in open court to make
sure the defendant understands exactly what it means to plead guilty and what the defendant
misgiving up by pleading guilty. The court must explain to all defendants that, if they plead
guilty, they will be giving up the constitutional rights associated with a trial listed in the Rule.
The Rule also requires the court to describe the salient terms of the plea agreement. These
include the governments right to use any statements made by the defendant against the defendant
in prosecution for perjury, the nature of the charges, the maximum and minimum possible
penalties, and the terms of any waivers. Most recently, the Rule added a provision requiring
courts to notify all defendants seeking to plead guilty that anyone pleading guiltywho is not a
U.S. citizen may be removed from the United States, denied citizenship, and denied future
admission to the United States.
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India:
The concept of plea bargaining is successfully incorporated in Indian criminal justice system. A
report on “Concessional Treatment for the Offenders who on their own initiatives choose to
plead guilty without any Bargaining” was recommended by the twelfth Law Commission of
India to incorporate plea bargaining in their criminal justice system. Subsequently by the 154th
report on “The Code of Criminal Procedure, 1973” the Law Commission suggested that the
introduction of plea bargaining in criminal justice of India fell within the incumbent duty of
government. Initially the Indian Supreme Court was not in favor of plea bargaining and in State
of Uttar Pradesh vs. Chandrika (1999), the apex court concluded that the concept of plea
bargaining should not be adopted to dispose criminal cases but few years layer Gujarat High
Court in State of Gujarat vs. Natwar Harchanji Thakor (2005) pondered the necessity of
alternative mechanism to resolve the suffering due to caseloads in criminal courts. Accordingly
in 2005, the government of India Criminal Law (Amendment) Act, 2005 by which a new
Chapter XXIA was added in the Code of Criminal Procedure containing section 265A to 265L.
Offences for which the punishment is more than seven years of confinement or committed
against woman and child under the age of 14 years are not compoundable through plea
bargaining in India. The accused has to file an application for plea bargaining along with an
affidavit declaring his voluntariness to do so. Besides when a case is instituted under police
report, participation of the police officer, prosecution, victim and accused will take place for
negotiation.

France:

Crimes are of three types such as minor offences, intermediate and grave offence along with
three different courts namely police court, correctional court and assize court. Serious crimes are
tried in the Assize Court where the prosecutors have authority to charge an accused with a minor
offence in place of grave offence.
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Recommendations:
The criminal justice system of Bangladesh is threatened by sheer magnitude of unresolved cases.
This calls for effective and meaningful alternative dispute resolution process in administration of
criminal justice and in this respect plea bargaining will definitely be a pragmatic inclusion. A
new and complete chapter may be incorporated in the Code of Criminal procedure of 1898 like
India. Some recommendations are outlined below for active consideration:

i. Plea-bargaining may be applicable in respect of those penal and other special laws for
which punishment of imprisonment is prescribed up to a period of 7 years. Again it
may not be applicable to those offences such as offences relating to socio-economic
vulnerabilities of the country, violence against women and child, specially the
children below the age of 14. Moreover, it should not be applicable in case of habitual
offenders.
ii. The accused should have informed knowledge about the effect of plea bargaining.
Thus the court should have the duty to inform the accused that if he follows this
process, he will lose some constitutional rights like right to due process of law or
right to trial. A special provision in this respect can be inserted in the Code of
Criminal procedure (CrPC).
iii. Police should not be involved with the plea bargaining process because it can
aggravate corruption among police personnel. The judge and the prosecutors can take
this initiative if the accused is undefended to avoid long delay in dispensation of
justice. After negotiation between the accused and the prosecution, the court must
deliver the judgment openly to avoid confusion. The judgment delivered shall be final
and binding and no appeal or revision should lie against such ajudgment. The court
has to be satisfied that the application made by the accused is voluntary. If it is found
that the application of plea bargaining is involuntary the court may reject the petition.
iv. Plea bargaining may be used in anti-corruption cases as corruption cases are all
pervasive and need to be disposed off quickly. In this respect, the accused may apply
to the commission accepting his guilt. On receiving this plea the commission may
establish a court of special judge who will decide whether this plea should be
accepted or not. If the plea is accepted, the accused stands convicted but any kind of
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sentence is not imposed on him. The accused should be dismissed from service, will
be disqualified to take part in election or to obtain a loan from any bank.
v. In deciding the lenient sentence for the accused, the reaction of the victim and society
should be measured. The punishment of the accused might be reduced to one-third or
one-fourth rather than the original punishment that might be awarded for such an
offence.
vi. At the first stage of introducing plea bargaining in Bangladesh, only sentence
bargaining rather than charge bargaining should be allowed. If the opposite is done
there is a possibility that prosecution will be facilitated and in some cases, even the
lawyer of the accused may take undue advantage. Moreover, fact bargaining is a
process which is complicated and require skilled lawyers for both parties.

Concluding Remarks:
The Bangladesh criminal justice system is presently facing a significant number of pending
cases. Therefore, some compromises are warranted, as long as this is ‘fair, just and reasonable’.
In this respect, Plea bargaining could be a necessary evil for our criminal justice system. Without
timely introduction of plea bargaining, our court system has the risk of collapsing altogether
under the amount of cases going to trial every year. Our endeavour should be to use it towards
serving the ends of justice and only the actual implementation of the well tested provisions of
developed systems can help us improve the practice of ‘plea bargaining. A thorough analysis of
how this system works in other countries, its merits and demerits and how efficiently the system
helps in the expedient disposal of cases shall pave the way for effective implementation of the
option of plea bargaining in criminal justice administration. The article concludes by stating that
without the introduction of plea bargaining in Bangladesh, the criminal justice system would be
at a great disadvantage with the possibility of collapsing the system as a whole.
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References
[1] Black, H. (2011), Black’s Law Dictionary, 9thEdition, West Publishing Company, London,
p.1270.

[2] Milica, P. (2004), Plea Bargaining, The International Co-operation GroupDepartment of

Justice of Canada, p. 1.

[3] Smith, R. (2004), Should we really ban plea bargaining? The core concerns of plea
bargaining critics, Emory Law Journal, vol. 53, pp. 771-783.

[4] Kader, M. (2005), Plea Bargaining: An Overview of the practices of alternative criminal trial
and its prospects in the Criminal Justice Administration of Bangladesh. Dhaka University Law
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