As a civilized and democratic society, we have a strong belief in our judicial system, and we are distressed when they are not accomplished because ultimately they won’t be. There is no doubt that dissatisfaction is a significant catalyst for change but it can also result to exaggeration and misdiagnosis. The whole existence of modern civilized society relies on speedy justice. But perhaps the Indian judiciary system faces a major challenge, i.e. a delay in justice, although it has managed to win the trust of the people of this country as the last hope for justice. However, “Justice should not only to be done but undoubtedly it should be seen to be done and it is ensured by speedy justice or timely judgement.”The constitution of India under Article 21 had already explained ‘Right to speedy trial’ as a fundamental right but it continues to remain just only on paper not on the ground level. It is admitted that the growing number of legal issues in our country has overwhelmed the courts. Therefore, it is important to find out the alternatives to dispose of the cases with the speedy trail. One such strategy is “plea bargaining” which is to a certain extent borrowed from the American legal system where it is utilized as the standard methodology for processing accused persons quickly.
What is ‘Plea Bargaining’?
In the legal criminal context, the term “plea bargaining” refers to an arrangement between the defendant and the plaintiff to negotiate a settlement on a prosecution without ever being brought to court. It ensures that the offender admits his guilt in exchange for a lighter sentence which would have been given to him for such an offence. Basically, it corresponds to pre-trial negotiations between the defendant and the prosecutor. “Plead Guilty and bargain lesser sentence” is the shortest meaning of plea bargaining.
According to the Black’s Law Dictionary“Plea Bargaining” is,
“The process whereby the accused and the prosecutor in criminal casework out a mutually satisfactory disposition of the case subject to the Court approval. It usually involves the accused pleading guilty to a lesser offence or to only one or some of the courts of a multi-count indictment in return for a lighter than that possible for the graver charge.”
Types of ‘Plea Bargaining’
There are three types of Plea Bargaining,
1. Charge Bargaining
“It means an agreement to plead guilty to one of several charge or less serious charge by the defendant in exchange of dismissal of other or higher charge.”
2. Sentence Bargaining
“Bargaining for a favourable sentence, recommendation by the prosecutor, or bargaining directly with a trial judge for a favourable sentence”
3. Fact Bargaining
“In this type of bargaining, defendant admits certain facts in exchange for an agreement not to introduce any other facts as evidence.”
Origin & Development
The concept of ‘Plea Bargaining’ was first introduced in the United States during the 19th century and over the years, it has grown into a central aspect of the Criminal Justice System of America.In Brady v. United States, the US apex court upheld the constitutional validity of the plea bargaining and that “a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty”. In the Indian criminal system, the notion of Plea Bargaining is slightly different as compared to the American one. The Indian genre of Plea Bargaining is inspired from the doctrine of Nolo Contendere. After the recommendations of the several law commissions, finally this doctrine has been assimilated in the criminal system through the historical amendment of 2005 in Criminal Procedure Code, 1973. Initially, prior to 2005 the Indian judiciary always tried to create a resistance on the application of plea bargaining. They were very reluctant towards the application of same.
In Kachhai Patel Shantilal Koderlal vs. State of Gujarat and another, the court held that “the practice of plea bargaining as unconstitutional, illegal and wold tend to encourage corruption, collusion and pollute the pure fount of justice.” In another judgement the Supreme Court observed that “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.” However, post the amendment of 2005, the idea of pleas bargaining has been recognized in the Indian judiciary since the court has had no choice except to interpret the law and not make laws.
The procedure of ‘Plea Bargaining’ in India
“The procedure for plea bargaining was brought in as a result of the Criminal Law (Amendment) Act, 2005. It introduced a chapter XXIA containing section 265A to 265L into the Code of Criminal Procedure, 1973 and it came into effect on 5th July 2006.”
“STEP 1: Application for Plea Bargaining under section 265B – The application must be in writing, with a brief description of facts of the case supported with an affidavit sworn by the Accused.”
“STEP 2: Procedure on filing of the application – The Court will issue a notice to the Public Prosecutor or the Complainant and to the accused of an appearance on the date fixed for the case.”
“STEP 3: To provide time for mutually satisfactory settlement – Where the Court is satisfied that the application was filed by the accused voluntarily, it will provide time to the Public Prosecutor or the complainant and the accused to work out a mutually satisfactory disposition of the case and fix the date for further hearing of the case.”
“STEP 4: Procedure for working out mutually satisfactory disposition – In a police case, the Court will issue a notice to the Public Prosecutor, Investigating Officer, the accused and the victim of the case for participation in the meeting to work out a satisfactory disposition of the case. In a complaint case, the Court will issue a notice to the accused and the victim of the case for participation in the meeting to work out a satisfactory disposition of the case.”
“STEP 5: Duty of the Court
- To ensure that the accused has preferred Plea Bargaining voluntarily.
- To examine the accused in a camera where the other party shall not be present.
- To ensure that the accused has filed the application for Plea Bargaining after understanding the nature and extent of punishment provided by law for the offence.
- To ensure that the entire process of working out a satisfactory disposition of the case is voluntary.”
“STEP 6: Report of mutually satisfactory disposition – The Court will prepare a report of such disposition and it will be signed by the Presiding Officer of the Court and the participating parties.”
“STEP 7: Award of compensation and hearing the parties on the quantum of punishment – The Court will award compensation to the victim in accordance with the disposition 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, Cr.P.C. or dealing with the accused under the provisions of the probation of Offenders Act, 1958.”
“STEP 8: Mode of disposal of the case – Where Section 360, Cr.P.C. or the Probation of Offenders Act is attracted, the Court may release the accused on probation of good conduct or after admonition under Section 360, Cr.P.C. or the Probation of offenders Act, 1958.”
“STEP 9: Pronouncement and finality of the Judgement – The Court will deliver the judgement in the open Court and it shall be signed by the. Presiding Officer of the Court. The Judgement will be final and no appeal will lie against it except the writ petition under Articles 226 and 227 of the Constitution of India and Special Leave Petition under Article 136 of the Constitution of India against the judgement.”
“STEP 10: Setting off undergone period – The period of detention undergone by the accused will be set off against the sentence of imprisonment passed by the Court since the provision of Section 428, Cr.P.C. is applicable to the Plea Bargaining.”
“STEP 11: Stated facts cannot be used – The statements are given or facts stated by the accused cannot be used for any other purpose except for the purpose of plea bargaining.”
Scope of Applicability of ‘Plea Bargaining’
Whether these provisions apply in respect of all types of offence and all types of victims?
“Under Chapter XXIA of the Code of Criminal Procedure, 1973, section 265A to 265L deal with the concept of plea bargaining. Plea Bargaining in India is allowed in cases wherein:
- The maximum period of imprisonment is of seven years.
- The offence does not have an impact on the socio-economic condition of the country.
- The offence is not committed against a child or a woman.
According to section 265A, “Plea bargaining should be applicable to an accused who has not committed an offence for which the law provides the punishment of death or life imprisonment or imprisonment for more than seven years.” It also provides that Chapter XXIA of the Code of Criminal Procedure, 1973 will not apply to offences which affect the socio-economic condition of the country or have been committed against a woman or a child below fourteen years of age. “Thus, it can be concluded that the provisions of Chapter XXIA extend the scheme of plea bargaining in the Indian Criminal Jurisprudence, to a limited extend only, by giving discretion to the Court, restricting excess power to the prosecution, as seen from International jurisprudence, by giving sufficient measures to prevent the abuse of process.”
There is a very well settled critic saying in the legal system that is ‘Justice delayed is Justice deny’, which means if the victim doesn’t get Justice on time within a stipulated period, then it seems to be justice denied to the victim. It is accepted that as the cases have been increasing at a high rate, it is obvious that justice becomes more delayed. But, it the duty of the state to come up with new legal reforms to tackle the increased number of litigations. The excuse of a number of increased cases is totally unacceptable because it is the duty or responsibility of the government or judiciary to ensure the protection of the right to a speedy trial under article 21. The notion of plea bargaining is relatively new in India. It has numerous advantages and disadvantages at the same time. Therefore, even after the 15 years of its incorporation “its use is very low and the court is still overburdened with the pendency of cases and judicial backlogs. To make this more useful and to fulfil its desired objectives, there is a need to amend the provisions to cope with drawbacks or criticisms and to move with the present needs.”
Jain, Harshvardhan and Rautela, Mayank, Overview of Plea Bargaining in India (March 28, 2018). Available at SSRN: https://ssrn.com/abstract=3151302 or http://dx.doi.org/10.2139/ssrn.3151302.
 Plea Bargaining, Black’s Law Dictionary, 8th edition, 1190 (2004).
Rewari Sulabh, Aggarwal Tanya, Wanna Make a Deal? The Introduction of Plea Bargaining in India’, (2006) 2 SCC (Cri) J-12, Posted: 2006-12-20
 Brady v. United States, 397 U.S. 742 (1970)
 It is a Latin term which means, I do not wish to contest.
  3 SCC 120.
 Kachhai Patel Shantilal Koderlal vs. State of Gujarat and another,  3 SCC 120.
 State of U.P. vs. Chandrika, AIR 200 SC 164.
Section 265A Criminal Procedure Code, 1973.
This article has been written by Mukul Atre, 4rth Year, B.A. LL.B. Symbiosis Law School, Noida. Symbiosis International (Deemed University) Pune, Maharashtra
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