DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

2022-2023

Plea Bargaining in India

SUBMITTED BY SUBMITTED TO
Sanjay Singh Dr. Prem Kumar Gautam
200101118 Assistant Professor
section B National Law University
5th semester Lucknow

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ACKNOWLEDGEMENT
I have taken a lot of efforts in preparing criminal procedure project on the topic Plea
Bargaining in India. However, this would have not been possible without the kind support and
help of my friends and family. I would like to express my sincere thanks to all of them. I express
my deep gratitude and to my subject teacher Dr. Prem Kumar Gautam Sir for giving me his
exemplary guidance, monitoring and constant encouragement throughout the project. I
would like to express my gratitude towards my parents and members of RMLNLU for their
kind support and encouragement which helped me in the completion of this project. My
thanks and appreciations also go to my colleagues in developing the project and people who
willingly helped me out with their abilities.

Table of Content

I. Introduction
II. Brief history
III. Type of plea bargaining
IV. Plea Bargaining in India
V. Scope of Plea Bargaining
VI. Procedure of Plea Bargaining
VII. Challenges in India
VIII. Conclusion

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Introduction
According to Merriam Webster dictionary plea bargaining is the negotiation of an agreement
between a prosecutor and a defendant whereby the defendant is permitted to plead guilty to
a reduced charge or sentence1. In other words, Plea Bargaining is a process of negotiation
between the prosecution and the defendant. Whereby the defendant plead guilty in return
of lesser imprisonment, punishment, sentence or fine. The concept of plea bargaining is based
on Latin word “Nolo contendere” which means I do not wish to contest2. According to Black's
law dictionary: “Plea-bargaining is the process whereby the accused and the prosecutor in a
criminal case work out a mutually satisfactory disposition of the case subject to court
approval. It usually involves the accused’s pleading guilty in return for a lighter sentence than
that possible for the graver charge”3.
Eminent Professor Feeley (1982) argues that Plea bargaining is in fact a “bureaucratic justice
“in which both the prosecutor and the defence are commonly bound in the quest
for organisational convenience, financial self-interest and the desire to maintain a working
legal system as against their moral responsibility to search for the truth and to ensure justice4.

Plea bargaining was introduced to Indian Legal system through criminal law amendment act
2005 with a view to reduce the burden of courts flooded with cases. Saving the time of court
by not going through the process of trial and it’s in the interest of the accused whose
punishment get reduced or the accused get other kind of concession. In many cases it has
been observed that the procedure becomes punishment for the accused, serving more time
in jail than prescribed sentence due to delay in court proceedings, adjournments etc. The
accused has the advantage of saving the time, money, resources which he spends while
defending himself. But plea bargaining can not be done in all offences, it also has its limitation
discussed further in this paper.

Brief History
Plea bargaining origin can be traced to USA, where approximately 90% of the cases are solved
by plea bargaining5. Plea bargaining is successfully practised in uk and usa. In United Kingdom
Plea Bargaining has been practised in courts for almost 300 years but still courts in England
do not recognise its existence officially. The White paper on criminal justice in England and
Wales issued on 6 February 1990 does not mention it. Earlier the practise of Plea bargaining
was an ill kept secret from court in England. Whenever the court officially noticed its use, it
was adversely commented upon6. However Serious Fraud Office Act 1987 is the first instance

1
Merriam Webster dictionary, https://www.merriam-webster.com/dictionary/plea%20bargaining
2
https://www.law.cornell.edu/wex/nolo_contendere
3
Black's law dictionary 8th edn, 1190 (2004)
4
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6505&context=jclc
5
Plea and Charge Bargaining , Janaury 24, 2011,Page 1,
https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf
6
People v Barheim, 307 at 310

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where plea bargaining is openly recognised regulated and formalised form of plea bargaining
in England and Wales.
In America the process has been in practise for about a century however it was officially
recognised five decades ago in the case of Brady v United States7 in 1970, the Supreme Court
of USA upheld the constitutionality of plea bargaining- “[W]e cannot hold that it is
unconstitutional for the State to extend a benefit a defendant who in turn extends a
substantial benefit to the state and who demonstrates by his plea that he is ready and willing
to admit his crime and to enter the correctional system in a frame of mind that affords hope
for success in rehabilitation over a shorter period of time than might otherwise be necessary”.

Type of plea bargaining

Plea bargaining may result either in the accused pleading guilty to a charge or in pleading only
contendere. In the first he admits his guilt to the charge, whereas in the second he does not
contest the charge without admitting it in either case he can be convicted and sentence the
differ they differ only inconsequential stigma and other consequences. There are 3 type of
plea bargaining.
1. Charge bargaining
In charge bargaining, the defendant agrees to plead guilty to reduced charge the
prosecutor bargains with the defence council agreeing to drop some charges or to
scale down the gravity of the charge or to give any other concession for the accused
pleading guilty. In the process the prosecutor may hold out a threat to add more
charges which was organised as legitimate component of bargaining by U.S. Supreme
court in Bordenkircher v Hayes8. The process is informal, and no record is maintained.
In this process the judge is not privy to the agreement.

2. Sentence Bargaining
In sentence bargaining a pre-trial conference is held in which prosecutor, defence
counsel, judge and the accused participate. The judge is equipped with pre-sentence
report of the accused informing about the social economic background. The intended
advantage was that the presence of the accused would lead to finalisation of the
negotiation in one meeting. In his absence his counsel had to consult him. The judge
is supposed to supervise the negotiation and guide them in the context of the
background of the accused.

3. Fact Bargaining
In fact bargaining, negotiation involves an admission to certain facts (stipulating to the
truth and existence of provable facts, thereby eliminating the need for the prosecutor
to prove them) in return for an agreement not to introduce setting other facts.

7
397 U.S. 742 (1970)
8
434 US 357

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Plea Bargaining in India
The concept of plea bargaining was introduced in Indian criminal justice system upon the
recommendation of the 154th report of law commission of India and of Malimath committee
on criminal justice reform of 2003. The code of criminal procedure, 1973 has been amended
by criminal law amendment act, 2005. Chapter XXIA, section 265-A to 265-L consisting of total
12 sections.

Earlier the Criminal Jurisprudence of India did not recognize the concept of “plea bargaining”
as such. However, reference may be made to section 206 (1) and Section 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 and to pay small fines
whereupon the case is closed. The Government was hesitant to take a policy decision on the
introduction of the plea bargaining in the criminal justice system due to opposition from the
legal experts, judiciary etc. The Hon’ble Supreme Court has criticized the concept of Plea
Bargaining in, Murlidhar Meghraj Loya v. State of Maharashtra9 in this case the apex court
held “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 dangerous
economic crimes and food offences, this practice intrudes on society’s interests by opposing
society’s decision expressed through predetermined legislative fixation of minimum
sentences and by subtly subverting the mandate of the law.” In this case, the Supreme Court
further observed that a streamlined procedure should be devised if the state was to
administer justice by having recourse to plea bargaining.
➢ Another case Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat10, the court
held that- “the practice of Plea Bargaining was unconstitutional, illegal and would tend
to encourage corruption, collusion and pollute the pure fount of justice.”
➢ In Uttar Pradesh v. Chandrika11, the court held that- “it is settled law that on the basis
of plea bargaining Court cannot dispose of the criminal cases. 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.”
➢ In Hussainara Khatoon v. State of Bihar12 and many other cases Supreme Court held
that “the right to life under Article 21 includes right to speedy trial, only through which
right to life can be attained” Thus to ensure a speedy trial, and to provide for right to
life enshrined in our fundamental rights, the concept of plea bargaining has been
introduced in the Criminal Procedure Code. At last, keeping in view the huge arrears
and inordinate delays in disposal of criminal cases and on the recommendations of the
Malimath Committee and on 142nd, 157th ,177th law commission report a new chapter
XXI-A of Plea Bargaining has been added to the Code of Criminal Procedure.

9
AIR 1976 SC 1929
10
(1980) 3 SCC 120
11
AIR 2000 SC 164
12
A.I.R 1979 S.C.1360

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The concept of Plea Bargaining has now become a part of criminal jurisprudence. It benefits
both the State and the accused under the scheme of Plea Bargaining. This affects cases in
which the maximum punishment is imprisonment for seven years; however, offenses
affecting the socio-economic condition of the country and offenses committed against a
woman or a child below the age of fourteen are excluded. The reason why plea bargainst are
favored is that it allows criminals who accept responsibility for their actions to receive
consideration for their remorse and for not causing limited resources to be expended in
further investigating and litigating their case. In other cases, a defendant may be culpable in
one criminal matter, but have information that would help in prosecuting a broader or more
significant matter. In such a case, prosecutors may agree to reduced charges or sentencing in
the first matter, in exchange for the defendant’s, cooperation (e.g. testimony) in prosecuting
the larger matter. In other cases, prosecutors may be certain of the guilt of the defendant in
a matter, but the evidence may not be enough to convince a jury of the defendant guilt. It is
of benefit to both the prosecutor and the defendant to arrange a plea bargain - this avoids
the chance that the defendant could be found not guilty (which is unfavorable to the
prosecutor) or be found guilty of serious charges (which is unfavorable to the defendant).

Scope of plea bargaining

The concept of Plea Bargaining has now become a part of criminal jurisprudence. It benefits
both the State and the accused under the scheme of Plea Bargaining. If an eligible accused
admits his guilt voluntarily, the court may release him on probation or award lesser
punishment than prescribed. This way the accused saves time and money both.

Application of the Plea-Bargaining chapter XXI13

The provisions of Plea Bargaining are applicable in the following cases: -
I. The offence in which the maximum sentence is below 7 years.
II. The offence which has been committed against a woman or a child above 14 years of
age.
III. Where the accused has not been previously convicted for the same offence.
IV. Offences which do not affects the socio-economic condition of the country.

The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences
under the following laws for the time being in force which shall be the offences affecting the
socio-economic condition of the country for the purposes of sub-section (1) of section 265A14,
namely,-
I. Dowry Prohibition Act, 1961.
II. The Commission of Sati Prevention Act, 1987.
III. The Indecent Representation of Women (Prohibition) Act, 1986

13
https://legislative.gov.in/sites/default/files/A1974-02.pdf
14
https://legislative.gov.in/sites/default/files/A1974-02.pdf

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 IV. The Immoral Traffic (Prevention) Act, 1956.
V. The Protection of Women from Domestic Violence Act, 2005
VI. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of
Production, Supply and Distribution) Act, 1992.
VII. Provisions of Fruit Products Order, 1955 (issued under the Essential Services
Commodities Act, 1955).
VIII. Provisions of Meat Food Products Orders, 1973) (issued under the Essential
Commodities Act, 1955).
IX. 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 the Wildlife (Protection) Act, 1972.
X. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
XI. Offences mentioned in the Protection of Civil Rights Act, 1955.
XII. Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of
Children) Act, 2000.
XIII. The Army Act, 1950.
XIV. The Air Force Act, 1950.
XV. The Navy Act, 1957.
XVI. Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and
Maintenance) Act, 2002.
XVII. The Explosives Act, 1884.
XVIII. Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation)
Act, 1995.
XIX. The Cinematograph Act, 1952

Procedure of Plea Bargaining

A. Application Stage
Section 265 B15 of Crpc 1973 provides the procedure to be followed. If an accused wishes to
plead guilty voluntarily under the aforementioned provisions, he may move an application to
the concerned court with the details of his case supported by an affidavit declaring that :
a) he is presenting the application voluntarily and
b) he understands the nature of sentence and
c) he has also to declare that he is not a previous convict for the same offence.

2. On receipt of application and affidavit from the accused, the trial court shall issue the notice
to public prosecutor or the complainant, as the case may be, and to the accused to appear on
the date fixed for the case.
3. The court shall examine the accused in camera and satisfy himself that the accused has

15
https://legislative.gov.in/sites/default/files/A1974-02.pdf

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given his application voluntarily and he is eligible for presenting such application.
4. If the court finds that the accused has not given his application voluntarily or he has been
convicted earlier for the same offence then the application shall be rejected, and the case
shall be sent back for regular trial.

B. Guidelines for Mutually Satisfactory Disposition

Section 265(C) of the Code of Criminal Procedure provides following procedures for the
mutually satisfactory disposition under section 265(B)(4)(a)-
I. In a case instituted on a Police Report:
The court shall issue notice to the Public Prosecutor, investigating officer, the accused
and the victim of the case to participate in the meeting to work out a satisfactory disposition.
Pleader of the accused may be allowed to participate in such a meeting.

II. In a case instituted otherwise than a Police Report:

The notice shall be issued to the accused and the victim of the case to participate in
the meeting to work out the satisfactory disposition of the case. Pleader of the accused or the
victim may also be permitted to participate in the meeting on the desire of the victim or the
accused. In both the above cases the court shall ensure that the disposition is worked out
voluntarily.

C. BARGAINING/NEGOTIATION STAGE
When the court finds that the accused has not been convicted earlier for the same offence
➢ he is above 18 years of age, and he understands the nature of offence and the
proposed sentence,
➢ Then the court shall provide time to the public prosecutor or the complainant/victim,
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 and fix the date of further hearing of the case.
➢ For purposes of negotiation and preparing a report, the aid and help of advocate may
be taken.

D. EXAMINATION & REPORT

After receiving such report, the court shall prepare its own report and take the signature of
all the members who have taken part in such negotiation. And If no such disposition is worked
out, the court shall record such observation and proceed further from the stage the
application was filed in such case.

E. JUDGEMENT
Where the satisfactory disposition of the case has been worked out :
➢ The court shall award the compensation to the victim in accordance with the
disposition and after hearing of the parties on the quantum of punishment, release
the accused on probation of good conduct or after admonition U/s. 360 Cr.P.C. or deal

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 with the accused under the Probation of Offenders Act, 1958,
➢ The court may sentence the accused to half of such minimum punishment provided
under the law for the offence committed by the accused, or
➢ If minimum sentence is not provided under the Act, the court may sentence the
accused to one fourth of the punishment provided or extendable, as the case may be,
for such offence.

FINALITY OF JUDGMENT
The judgment delivered by the court shall be final and no appeal, except the Special Leave Petition
under Article 136 and Writ Petition under Article 226 and 227 of the Constitution shall lie in any court
against such judgment

Challenges in India
The concept of plea bargaining is quite new to Indian legal system though not completely
unknown, courts have taken their time to accept it. The benefits of plea bargaining are
numerous at the same time there are also some drawback, the pros of plea bargaining are
the time of court is saved, end of uncertainty, accused resources are saved, fast disposal of
criminal cases qualified for plea bargaining, quick justice for victim, and victim can ask for
compensation, accused get lesser punishment and can be released on probation and in case
where there is no minimum punishment is prescribed accused will get one-fouth of
punishment provided. The drawbacks are threat to fair trail and when the police gets involved
coercion comes inevitably, the victim may become corrupt and ask for money and if the plea-
bargaining application is rejected it become very difficult for the accused to prove his
innocence in the case. From last decades only handful cases are disposed in comparison to
pending criminal cases in India through Plea bargaining. In 2015, only 4,816 cases out of a
total number of 10,502,256 cases pending for trial under the general penal law went for plea
bargaining, i.e. a mere 0.045%16 The challenges are quite numerous and can only be tackled
by balanced judicial interpretation of Plea bargaining and people should be made aware
about plea bargaining.

In the U.S., one of the most visible measures of a prosecutor’s work is his cases. Prosecutors
have a lot riding on the quick resolution of cases. Similarly, judges also encourage timely pleas
since they realize that an increase in the number of trials would only overburden their
dockets. Contrary to this, both Indian prosecutors and judges have much less personal stake
in the resolution of individual cases. Investigations in India are wholly in the hands of the
police. Indian prosecutors, appointed by the government, do not participate in investigations
at all. They receive details about a case once it reaches the judicial stage, i.e. when the matter
moves to the court. Moreover, prosecutors in district courts usually have meagre resources,
which they have to use to handle a large number of cases. Prosecutors and judges hardly ever
handle their cases from start to finish, considering both the frequency of administrative

16
https://www.legalserviceindia.com/legal/article-1784-plea-bargaining-in-india-a-ship-with-holes.html

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transfers and the lifespan of a case averaging beyond two years. Thus, Indian prosecutors and
judges don't have the same level of incentive as their American counterparts to actively root
for plea bargaining.

Conclusion
To conclude, Plea bargaining is quite controversial concept in Indian Criminal Justice System
few accept it other reject it, the concept of plea bargaining was successful in USA but in India
it has failed to achieve even it's basic objective that is to reduce the burden of court, reduce
the pendency of cases, to reduce the time of trial procedure and focus on trial of such cases
which are more important. Plea bargaining was introduced in India about 17 years ago.
However, until now, not even 0.5% of the total criminal cases pending in the country have
been disposed of using this process. Clearly, this experiment has failed to leave a mark in the
criminal justice system, and the flaws in the Indian model are solely to blame. It is time to
rethink plea bargaining in India and the only path towards redemption is to go back to the
drawing board and make it a more appealing option for all actors involved.

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