Analyzing the Role of Plea Bargaining in Indian Criminal Justice System

Author: Biraj Kumar Sarkar, Student, (Surendranath Law College / University of Calcutta)

Edited By: Aman Tyagi, Student, University Five Year Law College, Jaipur

  1. Introduction-

The right to a speedy trial is a fundamental right guaranteed under Article 21 of the Indian constitution but in reality, more than 4 crore cases are pending in district and taluk levels alone. Overall 5.1 crore cases (2024) are pending all over India with 1.8 crore cases pending for the last 30 years. Not only that more than 70% of inmates of our Indian prisons are under trial. Lack of judiciary infrastructure, a huge number of court cases, and a lack of recruitment of judges are the main reasons for delay in our justice system. When an individual is detained by police for the allegation of some offense, that time the common man loses his respect in society, and due to the delay in trial, sometimes it leads to committing suicide or the real accused not being detained. To give some relief to courts, victims, or to the accused the lawmakers of India inserted a special chapter in the Code of Criminal Procedure 1973 in 2006 named “Plea bargaining” under chapter XXI A. Although this is not a new concept, around 90 countries have adopted this provision so far. Under this procedure, the person who is accused or the defendant can negotiate with the prosecution for a lesser punishment than what is provided by the law, by pleading guilty to a lesser serious offense. It is a legal agreement set up between the victim and the defendant which has some limitations and exceptions where this concept cannot be used.

Keywords: Plea Bargaining, Crpc, Negotiation, Prosecution, Chapter XXIA, Defendant, Sentence bargaining, Trial.

  • Meaning

Plea bargaining is the process that aims to reduce delays in the criminal justice system. The term plea bargaining is based on the principle of “nolo contendere” which means “I do not wish to contend”[1]. If we split the term “Plea Bargaining” into two words, the first word “plea” here refers to request and the second-word bargaining defines negotiation. Therefore we can say that plea bargaining involves requesting the victim to negotiate for a lesser punishment to avoid the rough sentence established by the law.

“Plea bargaining literature predicts that party strike plea bargains in the shadow of expected trial outcome”[2] – this implies that after predicting the sentence after the trial, the probability of the acquittal can be reduced by overlooking structural distortions. In a criminal case, under this concept, the victim and the defendant come to an agreement that after pleading guilty the prosecution will make some concession to the defendant’s punishment in return. The whole process of negotiation and agreement should be done under the supervision of the judge.

  1. Historical Background

The practice of plea bargaining was effective in the late 19th century in the United States but the origin of plea bargaining can be traced back to the 18th century in England where it was used to mitigate house sentences for capital offenses.  In the 19th century[3], the United States adopted it as an efficient process to tackle the growing number of cases in the USA. By the end of the 20th century plea bargaining became an effective solution for overburdened courts in the world.

Many proponents argue that the plea bargaining system not only reduces the burden on the judiciary but is also beneficial for both defendants and victims. For the defendant, it is beneficial as they do not have to face harsh punishment and the victims also get justice in a reasonable time. It alleviates the burden of caseloads of the courts and reduces the time and resources required for court trials.

However, the critics argue that plea bargaining can affect both the victim and the defendant as victims can be pressurized to accept the negotiation on the other side the innocent defendants can be pressurized to plead guilty.

  1. Evolution in India:

In ancient and medieval India, arbitration and mediation were the common methods for dispute resolution[4]. The Law Commission of India in 1991 had proposed concessional treatment for those who plead guilty on their own. Most of the legal communities supported this concept. The Law Commission of India in 2001, in its 177th report suggested the need for the concept of plea bargaining in India, which was later supported by the Justice Malimath committee[5] in 2003. After that in 2006, the amendment to the Criminal Procedure Code brought legitimacy and constitutionality of plea bargaining in India by adopting Chapter XXIA.

  1. Types / Kinds:

The concept of plea bargaining depends on various factors. As every case has its factual circumstances we cannot choose any specific concept for any case. We can categorize various types of plea bargaining which can be utilized after concerning the nature and condition of the cases. Some of the most common types are[6]

  • Charge bargaining: Charge bargaining means being ready to plead guilty to a less serious charge in exchange for a reduction of the punishment established by the law.

For example, a defendant charged with theft may plead guilty to trespass only.

  • Sentence bargaining: Sentence bargaining means the charge is the same but the sentence is lighter.

For example, a defendant charged with kidnapping can plead guilty and reduce his sentence by cooperating with law enforcement.

  • Fact bargaining: Fact bargaining should not be used in the court as it violates the ethics of fair trial. It involves an agreement between the prosecution and the defendant that the specific facts or evidence will be present or omitted at the time of trial and the other will not present before the court.

For instance, a person who committed robbery may reduce his sentence by pleading guilty and the prosecution presents the fact in trial that the defendant had snatched the victim’s watch only but did not apply any force to the victim.

  • Count bargaining: In this form of bargaining the defendant pleads guilty to some charges in exchange for the dismissal of other charges.

For example, a defendant is facing many charges and agrees to admit only some of them and have others dismissed for a lesser sentence.

  • Sentence recommendation bargaining: In this type of negotiation the prosecution bargains a specific punishment to the judge in exchange for the conviction of the defendant.

For instance, the prosecution requested the court to give six-month imprisonment or a fine for conviction of theft.

  1. Legal Provisions / Procedure

The legal provision of plea bargaining is mentioned under chapter XXIA which was inserted in 2006 as an act. In this chapter, there are a total of 12 provisions that explain and cover the whole process of plea bargaining. The processes of plea bargaining in general are –

  • Applicability of this chapter (Section 265A[7]):

To begin the concept of Plea bargaining a report has to be made before the officer in charge of the police station under section 173[8] or a magistrate has to issue a complaint of offense. The magistrate’s power to examine the complaint and witness is mentioned under section 200[9], and under section 204[10] of the Crpc he will issue further process.

  • Application for plea bargaining (265B[11]):
    • The application should be filed by the accused before the court in which the trial is pending.
    • In the application the defendant has to make brief details about the case accompanied by an affidavit, in which he has to mention that he has filed the application voluntarily with the understanding of all legal consequences as well as the punishment of the same and he has not previously been convicted for any offense by a court of law.
  • After receiving the application the court can issue a notice to the public prosecutor or the complainant and to the accused regarding the plea to appear on a given date which is fixed for the case.
  1. When the public prosecutor or the complainant and the defendant appear on the given date, the court will examine the accused on camera in the absence of the other party as the court wants to satisfy itself that the accused has filed the plea voluntarily without any pressure upon him. Such statements or facts stated by the accused will not be used for any other purpose except the need of this section.
  2. If the court is satisfied by the application the court will provide time to the public prosecutor or the complainant to go for a negotiation where the victim may be given compensation by the accused and other expenses. After that, the court will give another date for a further hearing of the case.
  3. In case the court finds that the application was filed involuntarily or the applicant was convicted by a court of law in which he was charged with the same offense, the court will dismiss the application and start the trial from the stage from which the application was filed, following the criminal procedure code.
  • Guideline for mutually satisfactory disposition (Section 265C[12]):

If the court is satisfied that the application was made voluntarily without any pressure on the defendant the court will follow the guidelines under section 265C

When the case is filed on a police report or anywhere else other than the police report (cognizance of the magistrate), the court will issue a notice to the public prosecutor, the investigating police officer, the accused, and the victim of the case for a meeting to mutual satisfactory disposition.

It is also mentioned that the court must conduct the whole process voluntarily. Following the same the accused or the victim (otherwise than on the police report) can participate in the meeting along with their pleader, if any.

  • Report of the mutually satisfactory disposition position (Section 265D[13]):

If the disposition is completed successfully the court will prepare a report of such disposition which will be signed by the presiding officer of the court along with the persons who participated in the meeting.

But if the mutually satisfactory disposal did not work out in that case after recording its observation, the court has to proceed from the stage where the application of the plea was filed.

  • Disposal of the case (Section 265E[14]):

After signing the disposition report the court will continue the further process of disposal.

  • The court will award compensation to the victim according to section 265D and hear the parties about the quantum of the punishment.
  • If the accused falls under section 360 of CrPC or the Probation of Offenders Act 1958 or any other law, he may be released on probation of good conduct or by any such law to punish the accused.
  • If the court finds the minimum punishment provided by law, the court can sentence the accused the half of the minimum punishment.
  • If the court did not find anything according to the provisions of sections 265 B and C, then the court can sentence 1/4th of the punishment provided by law as the case may be.
  • Judgment (Section 265F[15] and Section 265G):

The court has to deliver its judgment in an open court and the judgment should be signed by the presiding officer.

It is mentioned under section 265G[16], that the judgment of the court will be a final judgment and no appeal should be made against the judgment unless the exception is mentioned under articles 226 to 227 and 136.

  1. Exceptions:

There are certain exceptions to this provision. The concept of plea bargaining shall not be applicable-

  1. If the punishment for the reported or cognizance offense is life imprisonment or punishment of death sentence or exceeding 7 years of imprisonment.
  2. If the offense affects the socio-economic condition of the country. It’s it is to be noted that the central government has the authority to determine the offenses under the law by issuing notification regarding this.
  • If the offence has been committed against a woman or a child below the age of 14 years.
  1. If the application was filed involuntarily or under any pressure.
  2. If the applicant was convicted by a court of law in which he was charged with the same
  1. Case Laws / Overruling :
  2. Brady v. United States (1970):

In the case of Brady v. United States (1970)[17], the court upheld the constitutionality of the pre-bargaining as it does not violate a defendant’s constitutional right as long as they are doing such plead voluntarily.

State Of Gujarat v. Natwar Harchandji Thakor (2005):

The realization of the importance of plea bargaining in the Indian judiciary comes after the famous case of Harchandji Thakor in 2005[18]. The Gujarat High Court observed that plea bargaining is a factual examination in each case based on facts and circumstances.

  1. Joseph v State of Kerala (2013):

In the case of P. Joseph v State of Kerala[19], the Kerala high court declares that an illegal and ultra vires plea bargaining process violates the law. Such a trial process will proceed from the stage where it had reached prayer to the commencement of the Plea bargaining process.

Air Customs v. Begaim Akynova (2022)

In the case of Air Customs v. Begaim Akynova[20], the honorable Delhi High Court stated that plea bargaining applies to offenses under sections 132 and 135 of the Customs Act 1862,  if they are astutely followed by chapter XXIA of CRPC.

  1. Benefits and Drawbacks:

Plea bargaining is beneficial for the

  1. Victim: The Indian judicial process is very time-consuming as a consequence the victims have to face many difficulties to get justice. But in the case of plea bargaining, the victims can get justice in a reasonable time.
  2. Accused: The accused or the defendant got the benefit of being charged with lesser sentences rather than harsh punishment.
  3. Judiciary: It is also beneficial for the judiciary as the case resolves in the meantime and the court does not have to hold a case for years to years.
  4. Expenses and time: A speedy judiciary trial reduces the expenses and time of all victims, defendants, judges, and attorneys.

Drawbacks of the Plea Bargaining:

  1. The defendant may escape from harsh sentences by accepting a lesser charge and the defendant can become a habitant offender as he got the lesser punishment that he deserves.
  2. Victims may feel cheated as the accused avoids the proper trial and procedure to escape from the complete punishment that he deserves.
  3. Innocent defendants can be forced by the powerful complainant to plead guilty for offenses which he has not committed. On the other hand, the victims can also face the vice versa.
  4. The motive of the judiciary is to serve complete justice which is infringed in this procedure.
  5. C) CONCLUSION & COMMENTS

The Plea bargaining system in India plays a crucial role in the justice system with its pros and cons. This system offers a way to efficiently resolve cases and manage court caseloads.  It offers a mutually beneficial agreement between the prosecution and the defendant which presents an alternative resolution to criminal cases. But it can be a major drawback for innocent and poor people as they can be influenced or pressured by the powerful people of society. However, the judges need to exercise their discretion and judicial power wisely and effectively when approving any plea bargaining after considering relevant facts and the needs of the case. Thus, this tool has to be used carefully to serve fair justice in society.

  1. D) REFERENCES
  2. Books / Commentaries / Journals Referred
    1. The Code of Criminal Procedure,1973, S.N. Mishra, Nineteenth Edition
    2. The Code of Criminal Procedure,1973[ Act of 1973],Bare Act
  3. Online Articles / Sources Referred
    1. Ipleaders, All about plea bargaining – iPleaders
    2. Lexpeeps, https://lexpeeps.in/right-to-speedy-trial-need-of-the-hour/
    3. Legal Service India, Concept Of Plea Bargaining: Under Indian Legal System (legalserviceindia.com),
    4. Latestlaws,https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-177-law-relating-to-arrest-2001,
  4. Cases Referred
    1. Brady v. United States, 397 U.S. 742 (1970)
    2. State Of Gujarat v. Natwar Harchandji Thakor, 2005CRILJ2957, (2005)1GLR709
    3. Joseph v. State of Kerala, (2013) 7 SCC 569
    4. Air Customs v. Begaim Akynova, 2022 SCC Online SC 1263
  5. Statutes Referred
    1. Chapter XXIA of Crpc
    2. Probation of Offenders Act 1958

[1] Ipleaders, All about plea bargaining – iPleaders, (Last visited jun.10, 2024)

[2] Vogel, M. E.,Coercion to compromise: the federal courts and the origins of plea bargaining, Law and History Review, 25(2), 309-378, (2007).

[3]  Bibas, Stephanos, Plea Bargaining Outside the Shadow of Trial”, All Faculty Scholarship,924,(2004)

[4] Ipleaders, All about plea bargaining – iPleaders, (Last visited jun.10, 2024)

[5]Latestlaws,https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-177-law-relating-to-arrest-2001, (last visited jun. 10, 2024)

[6]Legal Service India, Concept Of Plea Bargaining: Under Indian legal System (legalserviceindia.com), (last visited jun. 10, 2024)

[7] Code of Criminal Procedure, 1973, § 265A, No.2, Acts of Parliament 1974(India).

[8] Code of Criminal Procedure, 1973, § 173, No.2, Acts of Parliament 1974(India).

[9] Code of Criminal Procedure, 1973, § 200, No.2, Acts of Parliament 1974(India).

[10] Code of Criminal Procedure, 1973, § 204, No.2, Acts of Parliament 1974(India).

[11] Code of Criminal Procedure, 1973, § 265B, No.2, Acts of Parliament 1974(India).

[12] Code of Criminal Procedure, 1973, § 265C, No.2, Acts of Parliament 1974(India).

[13] Code of Criminal Procedure, 1973, § 265D, No.2, Acts of Parliament 1974(India).

[14] Code of Criminal Procedure, 1973, § 265E, No.2, Acts of Parliament 1974(India).

[15] Code of Criminal Procedure, 1973, § 265F, No.2, Acts of Parliament 1974(India).

[16] Code of Criminal Procedure, 1973, § 265G, No.2, Acts of Parliament 1974(India).

[17] Brady v. United States, 397 U.S. 742 (1970)

[18] State Of Gujarat v. Natwar Harchandji Thakor, 2005CRILJ2957, (2005)1GLR709

[19] P. Joseph v. State of Kerala, (2013) 7 SCC 569

[20] Air Customs v. Begaim Akynova, 2022 SCC Online SC 1263