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RESTORATIVE JUSTICE UNDER THE

CRIMINAL JUSTICE SYSTEM IN
INDIA: WITH SPECIAL REFERENCE
TO PLEA BARGAINING AND
COMPOUNDING MEASURES.

M.Phil Dissertation

By
Sarfaraz Ahmed Khan

Electronic copy available at: http://ssrn.com/abstract=2566126

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Contents
Acknowledgements
List of Cases
Abbreviation
Prelude

Chapter 1
RESTORATIVE JUSTICE UNDER CRIMINAL JUSTICE
SYSTEM: AN OVERVIEW
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10

INTRODUCTION
DEFINING RESTORATIVE JUSTICE
HISTORY AND DEVLOPMENT OF RESTORATIVE JUSTICE
RESTORATIVE JUSTICE IN UNITED STATES OF AMERICA
RESTORATIVE JUSTICE IN EUROPE
RESTORATIVE JUSTICE IN CANADA
RESTORATIVE JUSTICE IN NEW ZEALAND
RESTORATIVE JUSTICE IN INDIA
LIMITATION OF RESTORATIVE JUSTICE
CONCLUSION

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CHAPTER - 2
PLEA BARGAINING: AN INTERNATIONAL PERSPECTIVE
2.1
2.2
2.3
2.4
2.4.1
2.4.2
2.4.3
2.4.4
2.4.5
2.5
2.6
2.7

INTRODUCTION
DEFINITION OF PLEA BARGAINING
HISTORY OF PLEA BARGAINING
PLEA BARGAINING IN DIFFERENT PART OF THE WORLD
PLEA BARGAINING IN CANADA
PLEA BARGAINING IN SOUTH AFRICA
PLEA BARGAINING IN NEW ZEALAND
PLEA BARGAINING IN ENGLAND & WALES
PLEA-BARGAINING AND PROSECUTORIAL DISCRETION
IN CIVIL LAW COUNTRIES
ARGUMENTS IN FAVOUR OF PLEA BARGAINING
ARGUMENTS AGAINST PLEA BARGAINING
CONCLUSION

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CHAPTER : 3
PLEA BARGAINING IN INDIA: A NEW DIMENSION TO
CRIMINAL JUSTICE ADMINISTRATION VIS--VIS A TOOL TO
PROVIDE RESTORATIVE JUSTICE
3.1
3.2

INTRODUCTION
RECOMMENDATION OF DIFFERENT BODIES FOR
USE OF PLEA BARGAINING IN INDIA
3.2.1 LAW COMMISSION RECOMMENDATIONS

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3.2.2. COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM

3.2.3 RECOMMENDATIONS OF THE COMMITTEE FOR
CRIMINAL JUSTICE POLICY
CONSTITUTIONAL VALIDITY OF PLEA BARGAINING
3. 3
3.4
LAWS RELATING TO PLEA BARGAINING IN INDIA
PLEA BARGAINING IN INDIA VIS--VIS RESTORATIVE
3.5
JUSTICE
3.6
PLEA BARGINING AS PRACTICED IN INDIA
OBSERVATION OF PROSECUTORS, ADVOCATES AND
3.7
JUDGES IN RESPECT OF PLEA BARGAINING
3.8
CONCLUSION

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CHAPTER IV
COMPOUNDING OF OFFENCES VIS--VIS RESTORATIVE
JUSTICE
4.1
INTRODUCTION
4.2
COMPOUNDING OF OFFENCES
4.2.1 COMPUNDING OF OFFENCES AND
RESTORATIVE JUSTICE
4.3
SETTLEMENT OF CRIMINAL CASES BY LOK-ADALAT
4.3.1 LOK-ADALAT IN INDIA AND RESTORATIVE JUSTICE
4.4
WITHDRAWAL OF CASES
4.5
CONCLUSION

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CHAPTER V
OUT OF COURT SETTLEMENT AND RESTORATIVE JUSTICE
5.1
5.2
5.3
5.3.1
5.3.2
5.3.3
5.3.4
5.3.5
5.3.6
5.3.7
5.3.8
5.3.9
5.3.10
5.3.11
5.3.12
5.4
5.5
5.6
5.6.1

INTRODUCTION
OUT OF COURT SETTLEMENT IN INDIA: SCOPE
OUT-OF-COURT SETTLEMENTS: AN OVERVIEW
OF ITS PRACTICE IN DIFFERENT PLACE OF THE WORLD
UNITED STATES OF AMERICA
OUT OF COURT SETTLEMENT IN GERMANY
OUT OF COURT SETTLEMENT IN DENMARK
OUT OF COURT SETTLEMENT IN ENGLAND AND WALES
OUT OF COURT SETTLEMENT IN BELGIUM
OUT OF COURT SETTLEMENT IN ITALY
OUT OF COURT SETTLEMENT IN THE NETHERLANDS
OUT OF COURT SETTLEMENT IN PORTUGAL
OUT OF COURT SETTLEMENT IN AUSTRIA
OUT OF COURT SETTLEMENT IN POLAND
COUNCIL OF EUROPE RECOMMENDATION
ON OUT OF COURT SETTLEMENT
OUT OF COURT SETTLEMENT IN SOUTH AFRICA
VICTIM OFFENDER MEDIATION
ADVANTAGES AND DISADVANTAGES
OF OUT-OF-COURT SETTLEMENTS
ROLE OF STAKE HOLDERS IN OUT OF COURT SETTLEMENT
THE ROLE OF VICTIMS

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5.6.2
5.6.3
5.6.4
5.7
5.8

THE ROLE OF LEGAL REPRESENTATIVE

ROLE OF THE JUDICIAL OFFICER
ROLE OF OTHER INTERESTED PARTIES
LIMITATION ON OUT OF COURT SETTLEMENT
CONCLUSION

FINDINGS AND SUGGESTIONS

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PRELUDE
RESTORATIVE JUSTICE UNDER THE
CRIMINAL JUSTICE SYSTEM IN INDIA: WITH
SPECIAL REFERENCE TO PLEA BARGAINING
AND COMPOUNDING MEASURES.
INTRODUCTION:
The different forms of restorative justice which are practiced in many parts of
the world have inspired other jurisdictions to follow suit. Restorative justice aims to
support victims, allows them to participate in the process voluntarily, the accused gets
a chance to not only deserve some punishment but also to rectify the loss suffered to
the victim and to realize the consequence of commission of his offence. In traditional
criminal justice system the focus would had been to punish the offender for the wrong
he had done. But in reality punishment rarely addresses the needs of the victim. While
a victim may be satisfied that the offender is paying the price for his actions, inflicting
punishment cannot restore the victims' losses, answer their questions, relieve their
fears, help them make sense of their tragedy or heal their wounds1. Therefore, many
victims find their experiences with the offender-centric criminal justice system
unsatisfying, suggesting the need for a new approach to criminal justice2. Accordingly
the focus of criminal justice which was traditionally towards accused shifted to the
victims within restorative justice processes.
The criminal justice systems have traditionally neglected the aspiration of
victims. The state took responsibility to prosecute the offender considering whole
society as victims of offence. But facts remain that the victims of crime used to worst

Marty Price, Personazng Cime. Mediation Produces Restorativejusticefor Victims and Offender,
http://www.vorp.com/arcles/justice.htm (last visited Mar. 1, 2006)
2
Id Id. (suggesting that a retribution -based system does not satisfy the needs of victims. Instead,
victims frequently feel "empty and unsatisfied" at the end of a criminal prosecution process.

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sufferer and they need to be consulted as well as allowed to participate in all

processes. There lies the main lacuna in our processes. The restorative justice
processes considered that victims needs and aspiration should get priority as they
being the worst suffer and they should get whatever due to them. Victims need
reparation, support, participation and well as power to be part of decision making
processes. Restorative justice attempted to fulfill through diverse processes the needs
of the victims.
There are occasioned when the accused to the offence also being victimized by
the processes because of lengthy processes which take years to complete. In such
situation both victims as well as accused become victims of circumstances. The kind
of challenges, such as delay in justice, technical processes, etcetera, faced by the
administration of justice today in not unknown to us. The criminal justice system is
also facing all such challenges. A case lodged in 1920, was resolved in 1995. But
there was no one to hear the pronouncement of judgment. A case of defalcation of a
sum of Rs. 19000 was pending before the court for 33 years and state spent one crore
rupees in adjudication of the issue3. A 52 years old person attempted to jump into
parliament from visitors gallery saying Atalji mujhe nyaya do. Nyaya do. He was
a victim of the present day defective justice system. For a charge of embezzlement of
a small amount in Kendriya Sahakar Bank in Madhya Pradesh, he was in court for
more than 17 years. The case was ended in acquittal. However bank refused to take
him back in service4. The same kind of story we heard repeatedly from all over the
country.
The issue of under-trials detained in various prisons in the country has been a
matter of concern. The Central Government realizing the plight of under-trials and to
3

Madhabhushi Sridhar, Alternative Dispute Resolution: Negotiation & Mediation(Lexis Nexis) , 2006),
at page 217
4
id.

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ensure justice to common man, made allocation of Rs.502.90 crores for creation of
1734 courts named as Fast Track Courts all over the country. The scheme was for a
period of five years, which after intervention of the Supreme Court has been
continued for another five years, that is, until 31st March 2010 with a provision of
Rs.509 crores5. A successful judicial system is a hallmark of any developed
civilization. The failure of criminal justice system in bringing criminal conduct under
tight control is viewed as leading to the breakdown of the public order and
disappearance of an important condition of human freedom6.
Article 39A, as noted above, provides for equal justice and free legal aid. The
said article obligates the State in particular to provide free legal aid, by suitable
legislations or schemes or in any other way, to promote justice on the basis of equal
opportunity. Article 39A puts stress upon legal justice. The directive requires the State
to provide free legal aid to deserving people so that justice is not denied to anyone
merely because of economic disability. The Supreme Court in Sheela Barse v. State of
Maharashtra7 has emphasized that legal assistance to a poor or indigent accused
arrested and put in jeopardy of his life or personal liberty is a constitutional
imperative mandated not only by article 39A but also by articles 14 and 21 of the
Constitution. In the absence of legal assistance, injustice may result. Every act of
injustice corrodes the foundation of democracy and rule of law. Article 39A makes it
clear that the social objective of equal justice and free legal aid has to be implemented
by suitable legislation or by formulating schemes for free legal aid8.
In some situations, support in form of legal aid is not sufficient. It is
constitutional obligation on the part of the court to decide the case expeditiously.

5
Law Commission of India, Need for Justice-dispensation through ADR etc., Report 222 (2009) at
Para 1.56
6
Id at Para 1.57
7
AIR 1983 SC 378
8
Supra Note3

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Right to speedy trial has been recognized as fundamental right under the constitution.
The Supreme Court on various occasions, in its judgments, made it clear that speedy
trail is basic requirement of criminal justice and there can be no doubt that the delay
in trail by itself constitutes denial of justice9. In Maneka Gandhi10 Supreme Court
observed that there can be no doubt that speedy trail is an essential and integral part of
fundamental right to life and liberty enshrined under Article 21 of the constitution.
Even, there were occasions when Supreme Court fixed upper time limit for
completion of trail11. However, in subsequent decision such fixation of time limit was
overruled12. Now there is no binding time limit for trail. Nevertheless the speedy trail
is fundamental right guaranteed U/A 21 of the constitution.
The kinds of challenges which were faced by administration of justice in India
today were not alien in other parts of the world. Most of the jurisdictions in the world
started using restorative or quasi restorative justice to remedy the situations. Such
methods include, plea bargaining, victim-offender mediation, out of court settlement
etcetera. An out-of-court settlement is defined as an agreement between the
prosecution and the defense in terms of which the accused undertakes to comply with
conditions as agreed upon between the parties, in exchange for the prosecutor
discontinuing the particular prosecution. Such conditional discontinuation of
prosecution results in the diversion of the matter from the trial process. An out-ofcourt settlement needs to be distinguished from other pre-trial procedures and
agreements. It is distinct from sentence and plea agreements in that these follow upon
a decision by the prosecutor to institute a prosecution. The agreement may affect the
offences for which the accused is finally charged, but it invariably results in the
9

Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360. There are series of cases in which Supreme
Court approved this fundamental right such as Common Couse 1 & 2, A. R. Antullay v. Union of India
(1992) 1 SCC 225 etc.
10
Maneka Gandhi v. Union of India, AIR 1978 SC 597
11
Rajdeo Sharma v. State of Bihar, (1999) 7 SCC 604
12
P. Rama Chandra Rao v. Union of India (2002) SCC (Cri) 830

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conviction and sentence of the offender. Therefore, such offender will have been put
through the entire criminal process and will end up with a criminal record. An out-ofcourt settlement does not involve the entire criminal process, does not lead to a
conviction and does not result in a criminal record.
In India we allow settlement in minor cases which are compoundable under
the law. We allowed their settlement through Lok-Adalat also. We have also
incorporated the principle of Plea Bargaining, a sui generis model, for restricted
criminal cases. Accordingly these methods are intended to provide flexibility in
atleast minor criminal offences as well to provide restorative justice to the victims.
Settlement of criminal cases outside court was rarely thought off till a few decades
back. Accordingly, the Indian Supreme Court lamented against the idea of PleaBargaining in Murlidhar Meghraj Loya13 and Kasambhai Abdulrehmanbhai Sheikh
Case14. According to the Supreme Court the procedure of plea-bargaining would be
violative of Article 21 of the Constitution being clearly unreasonable, unfair and
unjust. Court further opined that it would have the effect of polluting the pure
fountain 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
arduous criminal trial deflecting the judge from his duty to do justice. He might either
convict an innocent accused by accepting the plea guilty or let off a guilty accused
with a light sentence. On the contrary Plea-bargaining has been implemented with a
great deal of success in USA. The Supreme Court of United States has upheld its
Constitutional validity and also endorsed the fact that plea-bargaining plays a
significant role in the disposal of criminal cases.
The US Supreme Court outlined the following relating to plea- bargaining: (1)

13
14

Murlidhar Meghraj Loya v. State of Maharastra AIR 1976 SC 1929

Kasambhai v. State of Gujarat AIR 1980 SC 854

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the Constitution does not forbid the plea of guilty; (2) the constitutional right to trial
can be waived provided the waiver is made voluntarily and with sufficient awareness
of relevant circumstances and the likely consequence of such of such waiver; (3) well
over 75% of the criminal conviction in the U.S.A. rest on the pleas of guilty; (4)
conviction based on guilty plea are not free from hazards for the innocent but
experience shows that there is not much likelihood of defendants advised by
competent counsel condemning themselves falsely. This view is based on the
condition that the courts will satisfy themselves of plea of guilty being voluntary and
intelligently made by competent defendants with adequate advice of counsel; there
being no reason to question the accuracy and reliability of the admission made by
defendants that they committed the crimes with which they are charged; (5) plea
bargaining is an essential component of the administration of justice and, if properly
administered, it deserves to be encouraged.
According to the US Supreme Court the practice is considered desirable
because: (a) if every criminal charge were subjected to full scale trial, it would be
necessary to multiply by many times the number of judges and court facilities; (b) it
leads to prompt and largely final disposition of most criminal cases; (c) it avoids
much of the corrosive impact of enforcement idleness during pre-trial confinement for
those who are denied release pending trial; (d) the public is protected from those who
are prone to continue criminal conduct even while on pre-trial release; (e) by
shortening the time between the charge and the disposition, it enhances the
rehabilitative prospects of the guilty when they are ultimately imprisoned; (f) judicial
and prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendants guilt or in which there is substantial doubt whether
the State can sustain its burden of proof; (g) a promptly imposed punishment after an
admission of guilt may be more effective to attain the objectives of punishment while

P a g e | 11

avoiding trial.
The United States experiment shows that plea-bargaining helps in disposal of
the accumulated cases and expedites delivery of Criminal Justice. Law Commission
of India in its 154th and 142nd reports adverted to the same. The Law Commission
observed that when an accused feels contrite and wants to make amends or is honest
and candid to plead guilty in the hope that the community will enable him to pay the
fine for the crime with a degree of compassion, then he deserves to be treated
differently from the accused who seeks trial involving considerable time, cost and
money and cost of the community. Law Commission noted the advantages of pleabargaining which ensures speedy trial with benefits such as end of uncertainty, saving
of cost of litigation, relieving of the anxiety that a prolonged trial might involve
besides avoiding legal expenses. The Law Commission also noted that it would
enable the accused to start a fresh life after undergoing a lesser sentence. Law
Commission noted that about 75% of total convictions are the result of pleabargaining in USA and they contrasted it with 75% of the acquittals in India. Law
Commission also observed that certainly plea bargaining is a viable alternative to be
explored to deal with huge arrears of criminal cases. The same might involve pre-trail
negotiations, and irrespective of the fact whether it is charge bargaining or
sentence bargaining it results in a reduced sentence and early disposal.
The Law Commission adverted to the views of the Indian Supreme Court in
this regard but felt that plea-bargaining can be made one of the components of the
administration of criminal justice with the only caveat being that it should be properly
administered. They recommended it for cases where imprisonment is less. According
to the Law Commission, plea bargaining could be introduced for cases where
punishment is less than seven years. However it was to exclude offences against
women and children or socio-economic offences.

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Malimath Committee have acceded the report of the law commission. It

opined that when the accused makes a plea of guilty, the judge after hearing the public
prosecutor or the de facto complainant can give the accused a suspended sentence
while releasing him on probation or may order him to pay compensation to the victim
and impose a sentence taking into account the plea bargaining or convict him for an
offence of lesser gravity. The Committee affirms that the recommendations of the
Law Commission contained in the 142nd report and the 154th report may be
incorporated for the resolution and early disposal of a large number of cases. It further
opined that since we already had compounding of offences in the statute under the old
Criminal Procedure Code, there is no reason for plea bargaining not being introduced
in the Criminal justice System. There the accused is not let off but is sentenced for a
lesser-sentence which fulfills the object of securing conviction, reducing the period of
trial and reducing pendency at the same time.
The concept of plea bargaining have got legislative recognition in India. It
brought a sui-generis system for plea bargaining which is alien in other jurisdiction of
the world. Under the Indianised system of plea bargaining the Victim will play an
important role in the determination as well as in the process of arriving at a mutually
satisfactory disposition of the case. Section 265A onwards clearly provids the victim
an opportunity to participate in the process. Thus in reality the process envisaged
under Chapter XXIA is a process of empowerment of victims and fulfill the basic
requirements of restorative justice processes.
The inclusion of Plea-bargaining under Code of Criminal Procedures
establishes the fact that court annexed restorative justice system can be effectively
used within CJS. As discussed earlier settlement of criminal cases by the parties
themselves outside courts are not alien under the prevalent CJS in India. Section 320
of the Code of Criminal Procedure enlists the categories of crimes which can be

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compounded, some of which can be compounded by the parties themselves while the
others can be compounded only if the court acceded to it. Most of the crimes under
this category are either minor or individualistic in nature. In fact, in United States and
several other developed countries Mediation and other mechanism are also being used
effectively for resolution of Criminal cases albeit in most of the circumstances they
are used for minor offences. In USA there exists an established system of victimoffender mediation which is being considered as potent tool for providing restorative
justice. In India we do not have any established mediation system for mediating
victim-offender in relation to criminal cases. Nevertheless, in India too, most of the
minor offences are resolved outside court. The Legal Services Authorities Act, 1987
empowered the Lok-Adalat to resolve criminal cases which are compoundable in
nature. Criminal Procedure allowed the parties concerned to compound offences such
offences which are specified therein. Moreover, criminal procedures authorize the
prosecutor to withdraw a case which can also be a result of settlement between state
and accused. Thus, there are different ways, some time with legal backing and some
time irrespective of legislative recognition, courts annexed or outside court settlement
were being used for criminal cases in one form or the other. The aforesaid processes
as has practiced may fulfill the requirements of restorative justice.

RESEARCH QUESTIONS:
1

What do we understand by restorative justice?

How it can be used within CJS?

Why we need restorative justice system within Indian CJS?

Whether restorative justice system is compatible with CJS keeping in mind the
human rights protection of the accused and victim?

Is the utilization of diverse processes of restorative justice systems such as

P a g e | 14

plea bargaining etcetera are constitutionally valid in light of Supreme Court's

opinion?
6

Which forms of criminal cases can be resolved through such restorative justice
systems including plea bargaining?

What were the reasons for incorporation of Plea Bargaining in India?

How far Plea Bargaining is effective in India as a restorative justice

mechanism to settle criminal cases?

Whether the restricted utilization of plea bargaining as well other processes

within CJS, such as plea bargaining which is applicable to offences punishable
up to 7 years excluding the offences against Children and women or socioeconomic offences, appropriate or does it need expansion?

10 How can restorative justice system help the victims of crime?

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CHAPTER - 1
RESTORATIVE JUSTICE UNDER CRIMINAL
JUSTICE SYSTEM: AN OVERVIEW
1.1 INTRODUCTION:
Restorative justice processes are effective methods for resolving conflicts
between crime victims and their offenders. It provides an entirely different way of
thinking about crime and victimization. Rather than the state being viewed as the
primary victim in criminal acts and placing victims and offenders in passive roles, as
is the case in the prevailing retributive justice paradigm, restorative justice recognizes
crime as first and foremost being directed against individual people15. In this way the
restorative justice main focus is on the victims and viewed them as active partner in
resolution of dispute rather than a passive object of criminal justice system. There was
growing need felt to shift the focus of criminal justice system towards victims and
their needs which restorative justice attempted to provide.
Restorative justice represents truly different paradigms which are;
1. Far more concerned about restoration of the victim and victimized community
than costly punishment of the offender.
2. Elevates the importance of the victim in the criminal justice process, through
increased involvement, input, and services.
3. Requires that offenders be held directly accountable to the person and/or
community that they victimized.

15

Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site

Assessment,
Western
Criminology
Review
1(1).
[Online].
(1998),
Available
at:
http://wcr.sonoma.edu/v1n1/umbreit.html.

P a g e | 16

4. Encourages the entire community to be involved in holding the offender

accountable and promoting a healing response to the needs of victims and
offenders.
5. Places greater emphasis on the offender accepting responsibility for their
behavior and making amends, whenever possible, rather than on the severity
of punishment.
6. Recognizes a community responsibility for social conditions which contribute
to offender behavior16.
The conventional criminal justice system focuses upon three questions: (1)
what laws have been broken? (2) Who did it?; and (3) What do they deserve? From a
restorative justice perspective, an entirely different set of questions are asked: (1)
Who has been hurt?; (2) What are their needs?; and (3) Whose obligation are these?17
The restorative justice process gradually became the most desirable mode of
dispute resolution process in most parts of the worlds. There are different forms of
process by which restorative justice is being practiced. However, there are certain
limitations and all cases may not be fit for restorative justice processes. In India also
different forms of dispute resolution mechanism are being followed within the
criminal justice administration, which fulfill the basic requirements of restorative
justice.

16
17

Id
Howard Zehr, The Little Book of Restorative Justice, 19-20 (2002)

P a g e | 17

1.2 DEFINING RESTORATIVE JUSTICE

Restorative justice is a philosophy, which gives society a different way to look
at crime and the criminal justice system18. There is a rich diversity of understandings
about the nature of restorative justice19. Parameter of this diversity range from
providing a more humane, participatory, inclusive, need-meeting, and effective
response to state-defined crime to proposing a new way of thinking, not merely the
nature of crime and how to response to it aftermath, but how to organize a social life
more justly. That is, how to organize a social life to better meet our individual and
collective needs and therefore to decrease the prevalence of harm in our communities
and societies20. One of the first to articulate restorative justice theory was Howard
Zehr21 who distinguishes the response to crime between retributive approach and
restorative approach22. According to Zehr, Restorative justice is a process to involve,
to the extent possible, those who have a stake in a specific offense and to collectively
identify and address harms, needs, and obligations, in order to heal and put things as
right as possible23. The United Nations adopted the basic principle on restorative
justice24 which defined the term as; restorative justice is a process whereby all the

18

Mary Ellen Remund, Is Restorative Justice on a Collision Course With the Constitution?,
Appalachian Journal of Law, Vol. 3:1
19
Johnstone, G. How and in what terms, should restorative justice be conceived? In H. Zehr and B.
Toews (eds.) Critical Issues in Restorative Justice, Monsey, NY, Criminal Justice Press, William
Publication (2004)
20
Dennis Sullivan & Larry Tifft, Handbook of Restorative Justice, Routledge International Handbooks,
USA, 2006
21
Howard Zehr was considered as grandfather of restorative justice. See Daniel W. Van Ness & Karen
Heetderks Strong, Restoring Justice, 26 (Ellen S. Boyne, Anderson Publg. Co. (1997)
22
Howard Zehr, Changing Lenses, A New focus for Crime and Justice, (Herald Press, 1990)
23
Id p 130
24
United Nation ECOSOC experts committee adopts restorative justice basic principle in 2002,
referred in Id p. 40.

P a g e | 18

parties with a stake in a particular offence come together to resolve collectively how
to deal with the aftermath of the offence and its implication for the future25.
According to Zehr, restorative justice can be contrasted with conventional
criminal justice along with the following key variables26.
Two Different Views of Justice
CONVENTIONAL

CRIMINAL RESTORATIVE JUSTICE

JUSTICE
1. Crime defined as violation of the state

1. Crime defined as violation of one

person by another

2. Focus on establishing blame, on guilt, 2. Focus on problem solving, on liabilities

on past (did he/she do it?)

and obligations, on future (what should be

done?)

3. Adversarial relationship and process 3. Dialogue & negotiation normative

normative
4. Imposition of pain to punish and 4. Restitution as a means of restoring both
deter/prevent

parties' goal of reconciliation/restoration

5. Justice defined by intent & process: 5. Justice defined as right relationships

right rules

and outcomes

6. Interpersonal, conflictual nature of 6. Crime recognized as interpersonal

crime obscured, repressed; conflict seen conflict; value of conflict is recognized
as individual vs. the state

25

This definition of UN ECOSOC expert committee is based on Tony Marshall of Restorative Justice
Consortium proposed in the year 1996. See Dennis Sullivan & Larry Tifft, Handbook of Restorative
Justice, Routledge International Handbooks, USA, 2006, p. 23
26
See, Mark S. Umbreit, THE HANDBOOK OF VICTIM OFFENDER MEDIATION: An
Essential Guide to Research and Practice, 2001 by Jossey-Bass Inc., 350 Sansome Street, San
Francisco, CA 94104

P a g e | 19

7. One social injury replaced by another

7. Focus on repair of social injury

8. Community on sideline, represented 8. Community as facilitator in restorative

abstractly by state
9.

Encouragement

process
of

competitive, 9. Encouragement of mutuality

individualistic values
10. Action directed from state to offender 10. Victim & offender engaged in the
victim ignored and offender passive

process. Victim rights/needs recognized

and

offender

encouraged

to

take

responsibility
11. Offender accountability defined as 11. Offender accountability defined as
taking punishment

understanding impact of action and

helping decide how to make things right

12. Offense defined in purely legal 12. Offense understood in whole contextterms, devoid of moral social, economic moral,
and political dimensions

social,

economic,

political

dimensions

13. "Debt" owed to state and society in 13. Debt/liability to victim recognized
the abstract
14. Response focused on offender's past 14.

Response

focused

on

harmful

behavior

consequences of offender's behavior

15. Stigma of crime irreparable

15. Stigma of crime reparable through

restorative action

16. No encouragement for repentance & 16.

forgiveness
17.

Dependence

professionals

Possibilities

for

repentance

forgiveness
upon

proxy 17. Direct involvement by participants

&

P a g e | 20

In retributive approach, crime is viewed as a violation against the state

defined by lawbreaking and guilt. Justice determines blame and administers pain in
contest between the offender and the state by systemic rules27. While restorative
justice views crime as a violation of people and relationships it creates obligations to
make things right. It involves the victim, the offender, and the community in search of
solutions which promote repair, reconciliation and reassurance28. Taking a restorative
approach sees crime as an injury rather than as lawbreaking with the purpose of
justice being healing rather than just punishment29. Accordingly, it is concerned not
only with determining appropriate responses to criminal behavior, but also with
reparation - that is, actions that attempt to repair the damage caused by the crime,
either materially or symbolically. Therefore, restorative justice encourages the victim
and the offender to play active roles in resolving conflict through discussion and
negotiation. Instead of taking over the process, and perhaps losing sight of the people
who are directly affected, the state and legal professionals become facilitators in a
system that encourages offender accountability, full participation of both victim and
offender, and efforts to fix the damage that has been done. Thus, restorative justice is
more than just a practice or a program - it is a philosophy, a way of looking at crime
and a response to crime based on the following principles:

Crime is first of all a violation of relationships among people, not just an act

against the state. Crime results in harm to victims, communities, and offenders, and
they must all be actively involved in the justice process.

All those affected by crime have roles and responsibilities and need to deal

collectively with its impact and consequences.

27

Id
Id
29
Daniel W. Van Ness & Pat Nolan, Legislating for Restorative Justice, 10 Regent U.L. Rev. 53
(1998)
28

P a g e | 21

Restoration, problem solving, and the prevention of future harm should be

emphasized30.
There are wide varieties of ways in which restorative justice programs are functional.
Accordingly need arises for some basis principle to assess one program whether it
forms the part of restorative justice or not. Zehr & Harry Mika indicated following
criteria to determine whether the program working towards restorative justice31;
(1)

Focus on the harms of wrongdoing more than the rules that have been broken;

(2)

Show equal concern and commitment to victims and offenders, involving both
in the process of justice;

(3)

Works towards the restoration of victims, empowering them and responding to

their needs as they see them;

(4)

Support offenders while encouraging them to understand, accept, and carry out
their obligations;

(5)

Recognize that while obligations may be difficult for offenders, they should
not be intended as harms, and they must by achievable;

(6)

Provide opportunities for dialogue, direct or indirect, between victims and

offenders as appropriate;

(7)

Involve and empower the affected community through the justice process, and
increase its capacity to recognize and respond to community bases of crime;

(8)

Encourage collaboration and reintegration rather than coercion and isolation;

(9)

Give attention to the unintended consequences of our actions and program;

and

(10)
30

Show respect to all parties including victims, offenders, and justice colleagues.

Law Commission of Canada, Restorative Justice in Canada: Consultative Paper, Available at

http://www.justice.gc.ca/eng/pi/pcvi-cpcv/cons.html Last visited on 10-08-2010
31
Howard Zehr & Harry Mika, Fundamental Concepts of Restorative Justice, 1 Contemp. Just. Rev.
47, 54-55 (1998)

P a g e | 22

There are a number of core program models for restorative justice programs.
Any program which fulfills the key variable as enlisted above can be qualified as
restorative justice program. Accordingly throughout the world restorative justice
programs are functioning in diverse forms. Few of the most common form of the
process of restorative followed in different parts of the world are (1) Victim-Offender
Mediation, (2) Family Group Conferencing and (3) Sentencing circles, healing circles
and community-assisted hearings.
(1) Victim-Offender Mediation was pioneered in Kitchener, Ontario, in 1974. Victimoffender mediation or reconciliation brings the victim and the accused person together
with a mediator to discuss the crime and to develop an agreement that resolves the
incident. This process allows victims to express their feelings to the accused and to
have offenders explain their actions and express remorse. The process is intended to
help victims gain a sense of closure, while offenders learn to take responsibility for
their actions. In many Canadian jurisdictions, this method is commonly used in
alternative measures programs. This approach has also been incorporated in hundreds
of programs throughout the United States, the United Kingdom, and Western Europe.
(2) Family Group Conferencing, based upon the Maori and Samoan tradition of
involving extended families in resolving conflicts, is the primary way of dealing with
young offenders in New Zealand. In Canada, mediators or facilitators help accused
persons and their families to meet with victims, their supporters, police, and others to
discuss and resolve the incident. The RCMP has been training officers and
community members in using this method. Most initiatives have focused on young
offenders, but some communities are using this model with adults in a process called
community justice forums.

P a g e | 23

(3) Sentencing circles, healing circles and community-assisted hearings are based
upon Aboriginal practices of having communities, families, elders, and people in
conflict discuss and resolve an issue flowing from an offence. Participants sit in a
circle and may pass a "talking stick" or "talking feather" from one speaker to another.
Traditional Aboriginal ceremonies such as burning sweet grass, passing a tobacco
pipe, or entering sweat lodges are often part of circles.

In sentencing circles, the victim, offender, family, and community members

meet with a judge, lawyers, police, and others to recommend to the judge what
type of sentence an offender should receive. The victim and the community
have the opportunity to express themselves to the offender, and may also take
part in developing and implementing a plan relating to the offender's sentence.

Healing circles are ceremonies intended to bring conflict to a close, allow the
participants to express their feelings, and indicate that the offender and victim
have undergone personal healing.

Community-assisted hearings, which are sometimes called, releasing circles,

are a type of National Parole Board hearing that is held in an Aboriginal
community rather than in a holding institution. These hearings are an
opportunity for the justice system, the community, and the offender to be
responsible for the successful reintegration of an offender back into the
community.

P a g e | 24

1.3 HISTORY & DEVLOPMENT OF RESTORATIVE

JUSTICE
Restorative Justice has been the dominant model of criminal justice
throughout most of human history of the world32. During those days crimes were
considered as the subject matter between individuals and not as a wrong against
state33. A major shift away from that model came at the end of the Dark Ages with the
Norman Conquest of much of Europe. It was during the Norman invasion of Britain
in the twelfth century when the focus of crime changed from being a victim offender
conflict to a violation of the Kings peace34. William the Conqueror used the legal
process as a tool for establishing preeminence. Crimes were no longer merely against
individuals in the community but rather a breach of the Kings peace giving the
monarch domination of his people35. Restorative justice values, principles, and
practice found its genesis, not only in British and American History, but also in
numerous indigenous cultures throughout the world36. Among these are many Native
American Tribes within the United States, the Aboriginal or First Nation people of
Canada, the Maori in New Zealand, Native Hawaiians, African Tribal councils, the
Afghani practice of jirga, the Arab or Palestinian practice of Sulha, and many of the
ancient Celtic practices found in the Brehon laws37.

32

John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Account, 25 Crime &
Justice, 1, 2 (1999), Quoted in Mary Ellen Remund, Is Restorative Justice on a Collision Course With
the Constitution?, Appalachian Journal of Law, Vol. 3:1, P 1
33
Daniel W. Van Ness, New Wine and Old Wineskins: Four Challenges of Restorative Justice, 4 Crim.
L.F. 251, 253 (1993).
34
Mark S. Umbreit, Victim Meets Offender: The Impact of Restorative Justice and Mediation, 1 (Crim.
Just. Press 1994)
35
John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Account, 25 Crime &
Justice, 1, 2 (1999) for detailed historical analysis see, Howard Zehr, Changing Lenses, 179-181
(Herald Press 1990).
36
Howard Zehr, The Little Book of Restorative Justice, 19-20 (2002), quoted in Mark S. Umbreit,
Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in the Twenty First Century: A
Social Movement Full of Opportunities and Pitfalls, Marquette Law Review, 89:251
37
Id

P a g e | 25

The present movement of restorative justice begins in 1974 when two juvenile
committed twenty-two acts of vandalism in Elmira, Ontario. Both pleaded guilty.
Neither juvenile had a prior record. It was suggested to the judge that some
therapeutic value might come from a confrontation between those youth and their
victims38. The judge was initially skeptical, but he eventually ordered the boys to talk
to each victim to ascertain the uninsured loss and then to report back to him.
Accompanied by Yantzi and Worth, the boys knocked on the front doors of their
victims homes. Together, the four were able to determine from the victims the value
of uninsured goods. When the juvenile reported back to the judge he ordered them to
make full restitution to the victims39. This began what was later to become known as
the Victim-Offender Reconciliation Program (VORP)40.
From the late 1970s to the early 1980s, a number of experimental programs
based on restorative justice principles and modeled after the Kitchener (Ontario)
program were initiated in several jurisdictions in North America and Europe, with the
first VORP in the United States located in Elkhart, Indiana, in 197841. From the mid
of 1980s to the mid of 1990s, the movement slowly began to be recognized in many
communities as a viable option for interested crime victims and offenders, though still

38

Mark Yantzi, a Mennonite employed as a probation/parole officer and Dave Worth, the local
Mennonite volunteer coordinator suggested to the judge McConnell. See for detail, Susan C. Taylor,
Victim-Offender Reconciliation Program A New Paradigm Toward Justice, The University of
Memphis Law Review, Vol. 26, 1995-1996
39
John Bender, VORP: A Beginning, Victim Offender Mediation, Special Issue 1990, at 1-3
40
Susan C. Taylor, Victim-Offender Reconciliation Program A New Paradigm Toward Justice, The
University of Memphis Law Review, Vol. 26, 1995-1996
41
Mark S. Umbreit, Mediation of Victim Offender Conflict, 1988 J of Disp. Resol. 85, 85-87 (1988),
quoted in Mark S. Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in
the Twenty First Century: A Social Movement Full of Opportunities and Pitfalls, Marquette Law
Review, 89:251, The first VORP in the USA began in 1978 in Elkhart, Indiana, under the auspices of
the probation department. It was quickly restructured as a community-based and community-funded
program. Howard Zehr is recognized as the principal developer and organizer of VORP in the United
States.

P a g e | 26

impacting a very small number of participants42. England initiated the first state
supported Victim Offender Mediation Program (VOM) during this period43.
The American Bar Association (ABA) has played a major leadership role in
the area of civil court mediation for over two decades. After many years of little
interest in criminal mediation, if not skepticism, in 1994 the ABA fully endorsed the
practice of victim-offender mediation and recommended its development in courts
throughout the country44. A study completed in the year 2000 found that at least
nineteen states had passed legislation promoting a more balanced and restorative
juvenile justice system45. Some other study during those times also found that twenty
nine states have specific state statutes promoting victim-offender mediation46. There
are individual restorative justice programs in virtually every state of America
established thereafter47.
The principle of restorative justice was gradually also developed in many
other parts of the world, including Australia, Canada, numerous European countries,
Japan, New Zealand, South Africa, several South American countries, South Korea
and Russia48. The international as well as regional bodies like United Nation and

42

Mark S. Umbreit, Mediation of Victim Offender Conflict, 1988 J of Disp. Resol. 85, 85-87 (1988),
quoted in Mark S. Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in
the Twenty First Century: A Social Movement Full of Opportunities and Pitfalls, Marquette Law
Review, 89:251
43
Tony F. Marshall, Results of Research from British Experiments in Restorative Justice, in Criminal
Justice, Restitution, and Reconciliation, 83, 83-86 (Burt Galaway & Joe Hudson eds. 1990)
44
Mark S. Umbreit, Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment,
Western Criminology Review 1(1). [Online]. (1998), Available at:
http://wcr.sonoma.edu/v1n1/umbreit.html.
45
Sandra OBrien, Restorative Juvenile Justice in the States: A National Assessment of Policy
Development and Implementation, available at http://fau.edu/barj/survey.pdf , quoted in Mark S.
Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in the Twenty First
Century: A Social Movement Full of Opportunities and Pitfalls, Marquette Law Review, 89:251
46
Elizabeth Lightfoot & Mark S. Umbreit, An Analysis of State Statutory Provisions for VictimOffender Mediation, 15 Crim. Just. Poly Rev. 418, 420 (2004)
47
Mark S. Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in the
Twenty First Century: A Social Movement Full of Opportunities and Pitfalls, Marquette Law Review,
89:251
48
Id

P a g e | 27

European Council have taken initiative for utilization of restorative justice within
criminal justice administration49. Accordingly, in most parts of the world the principle
of restorative justice has been adopted in some forms or the other50.

1.4 RESTORATIVE JUSTICE IN UNITED STATES OF AMERICA

A wide range of restorative justice practices, programs and policies are
practiced in United States. The most important form of restorative justice program is
Victim-Offender Mediation. Victim-Offender Mediation is extensively practiced
throughout USA. Even one and half decade back in Orange Country, California, a
victim-offender mediation and conferencing program received nearly one thousand
referrals of juvenile offenders and their victims each year51. In several United States
cities, prosecuting attorney offices routinely offer choices for victims of crime to
actively participate in the justice system, to participate in restorative dialogue with the
offender and others affected by the crime, and to meet whatever other needs these
individuals are facing. A program in Indianapolis works closely with the police
department in offering family group conferencing services in which young offenders
and their families meet the individuals they have victimized and work toward
repairing the harm, resulting in a significant reduction in recidivism among these
offenders52.

49

See Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ESCO Res.
2000/14, U.N. Doc. E/2000 (July 27, 2000); Council of Europe Committee of Ministers, Mediation in
Penal Matters, Recommendation No. R (99) 19 (Sept. 15, 1999)
50
See for detail discussion on the History and Development of Restorative Justice, Mark S. Umbreit,
Betty Vos, Robert B. Coates & Elizabeth Lightfoot, Restorative Justice in the Twenty First Century: A
Social Movement Full of Opportunities and Pitfalls, Marquette Law Review, 89:251
51
See, Mike Niemeyer & David Shichor, A Preliminary Study of a Large Victim/Offender
Reconciliation Program, 60 Fed. Probation 30, 31 (1996)
52
Mark Umbreit, Ted Lewis & Heather Burns, A Community Response to a 9/11 Hate Crime:
Restorative Justice through Dialogue, 6 Cont. Just. Rev. 383, 383-391 (2003)

P a g e | 28

A national survey of VOM programs in the United States provides an

overview of the type of cases typically brought to mediation. Juvenile offenders are
more likely to be the primary focus of U.S. VOM programs, with 45 percent of the
programs offering services solely to the juveniles and an additional 46 percent serving
both juvenile and adults. Only 9 percent of VOM programs nationwide are focused on
adults alone53. So far these kinds of cases are concerned one U.S survey found that
two-third of the cases referred to VOM are misdemeanors; the remaining third are
felony cases. The four most common offences referred, in order of frequency, were
vandalism, minor assault, theft, and burglary. Together these four offences accounted
for the vast majority of referrals. The primary referral sources were probation officers,
judges and prosecutors54.
So far satisfaction in the system is concerned which leads to the impression
about its fairness, not surprisingly the vast majority of VOM participants around
eighty percent across settings, cultures and types of offences were satisfied with the
process. They believe that the process was fair to both sides and that the resulting
agreement was fair. These experience led to a feeling that the overall criminal justice
system was fair55.

1.5 RESTORATIVE JUSTICE IN EUROPE

The principle of restorative justice is extensively practiced in Europe. Its
practices, programmes, policies, regulation and research have been well documented
during last few years56. The first experimental programmes took off in the beginning
53

Mark S. Umbreit, Robert B. Coates & Betty Vos, Victim-Offender Mediation: Three Decades of
Practice and Research, Conflict Resolution Quaterly, vol. 22, No. 1-2, Fall Winter (2004)
54
Id
55
Id
56
IVO AERTSEN, Restorative justice through networking: a report from Europe, 2007 Acta Juridica
91 2007. There is a growing body of knowledge on the general state of affairs of restorative justice in

P a g e | 29

of the 1980s, it is only in the beginning of the 1990s that countries such as Austria and
Norway adopted national legislation and provided public funding for the nation-wide
implementation of restorative justice. Other countries, such as Belgium, Finland,
England/Wales and Sweden had to wait until the late 1990s or the first half of the new
millennium for national legislation and sustained funding. Noteworthy also are the
(legal) initiatives in various Central and Eastern European countries in the same
period, e.g. in Poland, the Czech Republic and Slovenia57. Large countries such as
France and Germany adopted national legislation in the early 1990s, but established
restorative justice legally or defacto in a rather restrictive or unequal way in terms of
regional spread or types of offences. As a general finding, however, one can conclude
that by the end of the 1990s restorative justice had made a 'breakthrough' in Europe58.
The predominant model of restorative justice in Europe is victims offender
mediation. Conferencing-based models are only found in Belgium and the UK, and in
a more experimental way in countries such as Finland, the Netherlands and Norway59.
Non-governmental organizations (NGOs) play a major role in the initiation
and development of restorative justice programmes in many European countries. In
several European countries legislation permits or promotes mediation at any stage of
the entire criminal justice process60. The Council of Europe has supported restorative

Europe, in particular on different types of provisions, on annual national data recording, on national
legislation, on empirical and theoretical research and on the applicability of restorative justice to
particular situations such as violent conflict and mass victimisation. See, for example European Forum
for Victim-Offender Mediation and Restorative Justice (ed) 1lictinf-Qffender Mediation in Europe.
Making Restorative Justice Work (2000); D Miers and J Willemsens (eds) Mapping Restorative
Justice. Developments in 25 European Countries (2004); 1 Aertsen et al Rebuilding Community
Connections - mediation and restorative justice in Europe (2004); A Mestitz and S Ghetti (eds) VictimOffender Mediation in Europe: organization and practices in the juvenile justice systems (2005). See
also the first issue of ERA-Fonnn - Scripta iuris europaei (2002), which is a special issue on restorative
justice.
57
IVO AERTSEN, Restorative justice through networking: a report from Europe, 2007 Acta Juridica
91 2007
58
Id
59
Id
60
Recommendation R (99) 19 of the Council of Europe and with the EU Framework Decision, See
Article 10ofthe EU Council Framework Decision of 15 March 2001 on the 'Standing of Victims in

P a g e | 30

justice developments and networks in Europe by means of various resources, the most
important being the Recommendations by the Committee of Ministers61.
Recommendation on assistance to victims and the prevention of victimization
explicitly suggests member states to encourage experiments on mediation between the
offender and the victim and evaluate the results with particular reference to how far
the interests of the victim are served62. This Recommendation has been replaced by
the 2006 Recommendation on assistance to crime victims, which contains three
clauses on mediation63. This Article takes into account 'the potential benefits of
mediation for victims, but also states that 'the interests of victims should be fully and
carefully considered when deciding upon and during a mediation process. It further
mandates that due consideration should be given not only to the potential benefits but
also to the potential risks for the victim. Moreover, according to clause 3 of Article
13, member states 'should support the adoption of clear standards to protect the
interests of the victims.64'

1.6 RESTORATIVE JUSTICE IN CANADA

Many Canadian jurisdictions are developing restorative justice programs and
initiatives. Some already have comprehensive strategies, training material, and
evaluation plans. A 1998 survey found almost 200 initiatives under way across the
country, including conferences, seminars, publications, and a wide range of

Criminal Proceedings' (2001/220/J HA) OfficialJounil of the European Conlnuniies L 82 of 22 March

2001.
61
Member states are recommended 'to examine the possible advantages of mediation and conciliation
schemes' - see Article 11.1 of Recommendation R(85) 11. Referred in, IVO AERTSEN, Restorative
justice through networking: a report from Europe, 2007 Acta Juridica 91 2007
62
R(87)21, Article 17. See Id
63
Article 13 of the Recommendation
64
See IVO AERTSEN, Restorative justice through networking: a report from Europe, 2007 Acta
Juridica 91 2007

P a g e | 31

programs65. The approaches to restorative justice in these programs vary a great deal.
Some encourage or even require the use of mediation or other restorative processes in
labor relations or in civil and family cases, while others focus on criminal matters. In
some jurisdictions, programs are delivered through community agencies, while in
others programs are administered by government departments. Finally, some
programs are closely tied to Aboriginal or community justice, while others emphasize
crime prevention or alternative measures.
An important step came in 1996 when the sentencing principles in the
Criminal Code were amended. The 1996 principles encourage the use of communitybased sentencing and draw on key restorative elements such as the need to promote a
sense of responsibility in offenders and for them to acknowledge and make reparation
for the harm they have done to their victims and to the community. It stated that "all
available sanctions other than imprisonment that are reasonable in the circumstances
should be considered for all offenders, with particular attention to the circumstances
of Aboriginal offenders66." This statement, recently endorsed by the Supreme Court of
Canada in the Gladue decision, acknowledges that many Aboriginal justice projects
use a restorative approach that builds on values of healing and restoring harmony in
the community67. The growing use of restorative justice in Canada was also
highlighted in the October 1998 report of the Standing Committee on Justice and
Human Rights concerning victims of crime68. The report discussed victims' concerns
relating to restorative justice and recommended that the proposed "Office for Victims"
65

Corrections Services Canada. (September, 1998). Inventory of Canadian Events and Initiatives
Related to Restorative Justice. Ottawa: Corrections Services Canada. Quoted in Law Commission of
Canada, Restorative Justice in Canada: Consultative Paper, Available at
http://www.justice.gc.ca/eng/pi/pcvi-cpcv/cons.html Last visited on 10-08-2010
66
This was the part of one important passage, paragraph 718.2(e), of 1996 principle. See Law
Commission of Canada, Restorative Justice in Canada: Consultative Paper, Available at
http://www.justice.gc.ca/eng/pi/pcvi-cpcv/cons.html Last visited on 10-08-2010
67
Id
68
The Standing Committee's report, Victim's Rights, a Voice Not a Veto , reviewed the role of the
victim in the criminal justice system. See Id

P a g e | 32

assess the restorative justice initiatives in Canada to develop principles or guidelines

which ensure respect for victim's interests.
It is noteworthy to mention here that in 2002 when Nations Economic and
Social Council adopted the Basic principles on the use of restorative justice
programmes in criminal matters, Canada played a key role in its adoption and
Department of Justice of Canada also contributed to the development of a Statement
of Principles and Values of Restorative Justice and guidelines on the funding of
restorative justice programs69.

1.7 RESTORATIVE JUSTICE IN NEW ZEALAND

Family group conferences were introduced in New Zealand in 1989. Despite the
absence of specific reference to restorative justice in the debates introducing them,
their underlying philosophy incorporates key features of restorative justice70. In
particular, they aim to heal the damage that has been caused by youthful offending, to
involve those most affected by the offending in determining appropriate responses to
it and to "makes things better" both for young people who have committed offenses
and for their victims. This paper outlines the principles underlying the introduction of
family group conferences and describes the role they play in New Zealand's youth
justice system71. Family group conferences are made up of young person who have
committed the offense, members of his or her family and whoever the family invites,
the victim or their representative, a support person for the victim, a representative of
the police, and the mediator or manager of the process. The manager of the process is
69

See Arlne Gaudreault, Limit of Restorative Justice, available at

http://www.victimsweek.gc.ca/pub/pdfs/restorative_justice.pdf last visited on 10-08-2010
70
Morris, Allison and Gabrielle Maxwell. 1998. "Restorative Justice in New Zealand: Family Group
Conferences as a Case Study." Western Criminology Review 1 (1). [Online]. Available:
http://wcr.sonoma.edu/v1n1/morris.html.
71
Id

P a g e | 33

called a youth justice coordinator and is an employee of the Department of Social

Welfare. Sometimes a social worker and/or a lawyer is also present. The main goal of
a conference is to formulate a plan about how best to deal with the offending. There
are three principal components to this process:

Ascertaining whether or not the young person admits the offense, conferences
only proceed if the young person does so or if the offense has been proved in
the Youth Court;

Sharing information among all the parties at the conference about the nature of
the offense, the effects of the offense on the victims, the reasons for the
offending, any prior offending by the young person, and so on;

Deciding the outcome or recommendation.

The research in respect of family group conference in New Zealand showed that:

Victims were willing and able to participate in restorative justice processes;

A significant proportion of victims felt positively toward the process and were
satisfied with the outcomes;

Offenders were held accountable;

Reconviction rates were no worse and may be better than for court-based
samples; and

Factors in restorative justice processes may be linked to a lower probability of

reconviction.

P a g e | 34

1.8 RESTORATIVE JUSTICE IN INDIA

The restorative justice processes are recognized in India from time
immemorial. The concepts of compensation for wrong doing were practiced in ancient
and medieval periods in India. However, the present form of restorative justice and
manner of providing restorative justice, as practiced in western countries, are not
found in India. Instead, the Indian legislations incorporated mechanisms within
procedural which are akin to the restorative justice system. There are varieties of ways
in which restorative justice being practiced in respect of criminal cases such as Plea
Bargaining, Lok-Adalat etc. There are provisions of law which can be instrumental
for experiencing restorative justice in criminal cases such as compounding of
offences, withdrawal from prosecution, benefit of probation or making any accused an
approval72. It is necessary to understand whether all such mechanisms are compatible
with present restorative justice principles. Whether it fulfills the basic norms of
restorative justice to qualify as effective restorative justice mechanism? Each of such
procedure will be analyzed in subsequent chapters to assess in the light of basic
requirements of restorative justice principle.

1.9 LIMITATION OF RESTORATIVE JUSTICE

A significant number of victims refuse to be a part of the meeting73. Whether
or not they want to participate depends on several factors: the type of crime and the
repercussions; the time that has elapsed since the crime was committed; the nature of
their relationship to the offender; and their perceptions of the offenders ability to
understand the scope of the offence and the importance of reform. Many victims feel
72

Say for instance there can be a Victim-Offender Mediation through some organization in respect of
compoundable offence and the outcome of such mediation if resulted in settlement can be submitted to
the court for approval U/S 320 Cr.P.C.
73
Reeves, H. (1989). The Victim Support Perspective. In Martin Whright and Burt Galaway
(ed.). Mediation and Criminal Justice. Victims, Offenders and Community. Sage Publications,
44-56. See also Law Commission of Canada (2003). Transforming Relationships Through
Participative Justice, Ottawa: Department of Public Works and Government Services.

P a g e | 35

it is not worth the trouble and question the outcome of a meeting. Fear of retaliation
or simply being in the presence of the offender, the importance of getting or not
getting answers to their questions and the need to turn the page are some of the
reasons on which their decisions are based. Some victims have received no help and
have not recovered from the incident. Others feel very angry because they have been
cast aside by social agencies or the criminal justice system. Still others feel the
damage is beyond repair and that they have to move forward. They react differently
and are not at the same point in their healing process. The cost-benefit analysis can
therefore vary widely depending on their personality, their previous experiences and
the experiences resulting from their victimization74.
Using some form of restorative justice in cases of violent crime is a major
issue. The public and victims generally support the restorative justice model75, but are
very reluctant to accept it in cases of serious crime76. Experiments in this area have to
date been very cautious. They have concentrated on risk-free cases, mainly offences
against property. In the minds of the proponents of this practice, however, this does
not mean that restorative justice does not apply to violent crimes. The thinking is that
it should be used more in cases where the victim and the offender know each other
and their relationship has deteriorated77.

74

Arlne Gaudreault, Limit of Restorative Justice, available at

http://www.victimsweek.gc.ca/pub/pdfs/restorative_justice.pdf last visited on 10-08-2010
75
Bazemore, G. (1999). Crime Victims, Restorative Justice and the Juvenile Court: Exploring
Victim Needs and Involvement in the Response to Youth Crime, International Review of
Victimology, 6: 295-320.
76
Reeves, H. (1989). The Victim Support Perspective. In Martin Whright and Burt Galaway
(ed.). Mediation and Criminal Justice. Victims, Offenders and Community. Sage Publications,
44-56, See also Roberts, J. (2002). La justice rparatrice: quelques mises en garde. Actualits-Justice,
Canadian Criminal Justice Association, Vol. 17, 1: 1-3.
77
Umbreit, M., (1994). Victims meets offender. The impact of restorative and mediation, Monsey:
Criminal Justice Press, See also Fattah, E. (1998). A Critical Assessment of Two Justice Paradigms:
Contrasting Restorative and Retributive Justice Models. In Fattah, E., Peters, T. (ed). Support for
Crime Victims in a Comparative Perspective. Leuven: Leuven University Press, 99-110, See also
Roach, K. (2000). Changing punishment at the turn of the century: Restorative justice on the rise, Du
chtiment la justice rparatrice: une volution ? Canadian Journal of Criminology, Volume 42, 3:
250-280.

P a g e | 36

1.10 CONCLUSION
The restorative justice movement is having a great impact upon the criminal
justice system, policy makers and practitioners throughout the world. The restorative
justice movement holds a great deal of promise as we enter the twenty-first century.
By drawing upon the many traditional values of the past, from many different
cultures, we have the opportunity to build a far more accountable, understandable and
healing system of law and justice that can lead to a greater sense of community
through active victim and citizen involvement in restorative justice initiatives. It does
not stand on its own. Its practices and organizations are part of a context of ongoing
interaction with both the formal and informal environment. Restorative justice
initiatives can only survive in a partnership with related organizations and institutions,
such as victim support organizations, probation services, social work organizations
and the criminal justice system.

P a g e | 37

CHAPTER - 2
PLEA BARGAINING: AN INTERNATIONAL
PERSPECTIVE
2.1 INTRODUCTION:
There are different processes adopted within CJS throughout the world to
achieve resolution of disputes without following the complete trail with aim to reduce
the burden of court as well as prosecution. It also supposes to fulfill aspiration of both
accused and victims. Among such processes Plea Bargaining has been used mostly
within Criminal Justice System in most parts of the world. In fact guilty pleas actually
account for an overwhelming amount of criminal convictions in developed countries
like USA. A survey of the seventy-five most populous counties conducted in 1992,
found that guilty pleas accounted for ninety-two percent of all convictions in state
courts78. The guilty pleas have to be distinguished from plea bargaining79 in normal
circumstances. In India too, a large number of conviction resulted because of guilty
plea. However, the majority of such cases are minor offences invariably fine is
imposed on all such offences or cases where the accused has rare chance to establish
innocence as presumption has been imposed about the guilt such as Foreigners Act,
Anti-Terrorism Legislation, Passport Act etc80. Indeed, in the context of USA where a

78
Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 1992, 29 (1992) (for felony
defendants over a one year period). Referred in Douglas D. Guidorizzi, Should We Really Ban Plea
Bargaining?: The core concerns of Plea Bargaining Critics,47 Emory L.J. 753 (1988)
79
The guilty plea is a formal admission in court by a defendant as to his guilt of having committed the
criminal act charged. Not all guilty pleas result from plea bargains, but plea bargains generally result in
guilty pleas. Plea bargains come in a variety of forms but generally involve an exchange of concessions
from the state for the defendant's guilty plea.
80
According to Crime in India 2008 Trials were completed against 37,61,159 persons of the total
arrested persons, out of which 30,65,688 persons were convicted for these offences. The conviction
percentage in SLL cases was 81.5% (higher than 81.0% in 2007). The pendency for trial was lower at
62.8% during 2008 as compared to 2007 (63.4%). An analysis of crime head-wise disposal of arrested
persons showed that the highest percentage of persons pending disposal was under the Sati Prevention
Act at 100% (25 out of 25) followed by Terrorist & Disruptive Activities Act (96.7%) (5,193 out of
5,371). Information in respect of conviction for the categorized SLL crimes showed that conviction rate
was highest for persons arrested under 'Registration of Foreigners Act' (84.4%) (1,237 out of 1,465)

P a g e | 38

large number guilty plea in form of Plea Bargaining happened, it was argued by some
that it pervades our criminal justice system81. Despite its extensive use, scholars as
well as policymakers still debate the propriety of plea bargaining82 in places like
USA, Canada where it used most. Some scholars have argued for years that the
system of plea bargaining is inherently flawed and unfair to the accused83. On the
other hand, there were occasions when policymakers have attempted to "ban" plea
bargaining in response to the public's loss of faith in a system that allows "criminals"
to receive "bargains."84 Despite these criticisms, plea bargaining remains the primary
method of disposing of criminal cases in majority part of USA85.
In Santobello v. New York86 the Chief Justice Burger, who delivered the
opinion of the Court, highlighted the need for plea bargaining and observed:
disposition of charges after plea discussions is not only an essential part of the
process but a highly desirable part for many reasons. It leads to prompt and largely
followed by Indecent Representation of Women (Prohibition) Act (83.1%) (962 out of 1,157) and
'Indian Passport Act' (82.1%) (960 out of 1,169).
81
See Douglas D. Guidorizzi, Should We Really Ban Plea Bargaining?: The core concerns of Plea
Bargaining Critics,47 Emory L.J. 753 (1988), See also Herbert S. Miller et al., Plea Bargaining in the
United States 17 (1978) (stating that "project field research... suggests that the vast majority of guilty
pleas are arrived at through bargaining").
82
See Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969 (1992); Stephen J.
Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992); Robert E. Scott & William J.
Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909 (1992); Robert E. Scott & William J. Stuntz, A
Reply: Imperfect Bargains, Imperfect Trials, and Innocent Defendants, 101 Yale L.J. 2011 (1992) ("A
Reply").
83
See Albert W. Alschuler, The Changing Plea Bargaining Debate,69 Cal. L. Rev. 652 (1981); Albert
W. Alschuler, The Defense Attorney's Role in Plea Bargaining,84 Yale L.J. 1179 (1975); Albert W.
Alschuler, Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargaining
System,50 U. Chi. L. Rev. 931 (1983); Albert W. Alschuler, The Prosecutor's Role in Plea
Bargaining,36 U. Chi. L. Rev. 50 (1968); Albert W. Alschuler, The Trial Judge's Role in Plea
Bargaining,76 Colum. L. Rev. 1059 (1976); Douglas G. Gifford, Meaningful Reform of Plea
Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37 (1983); Kenneth Kipnis,
Plea Bargaining: A Critic's Rejoinder, 13 L. &Soc'y Rev. 555 (1979); John H. Langbein, Torture and
Plea Bargaining,46 U. Chi. L. Rev. 3 (1978); Stephen J. Schulhofer, Criminal Justice Discretion as a
Regulatory System, 17 J. Legal Stud. 43 (1988); Stephen J. Schulhofer, Due Process of Sentencing, 128
U. Pa. L. Rev. 733 (1980); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 Harv. L. Rev.
1037 (1984);Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992). See the further
discussion Douglas D. Guidorizzi, Should We Really Ban Plea Bargaining?: The core concerns of
Plea Bargaining Critics, 47 Emory L.J. 753.
84
See Michael L. Rubinstein & Teresa J. White, Alaska's Ban on Plea Bargaining, 13 L. &Soc'y Rev.
367, 374 (1979).
85
Douglas D. GuidorizziShould We Really Ban Plea Bargaining?: The core concerns of Plea
Bargaining Critics, 47 Emory L.J. 753
86
404 US 257 at 261 262 (1971)

P a g e | 39

final disposition of most criminal cases; it avoids much of the corrosive impact of
enforced idleness during pre-trail confinement for those who are denied release
pending trail; it protect the public from those accused person who are prone to
continue criminal conduct even while on pre-trail release; and by sentencing the time
between charge and disposition, it enhances whatever may be the rehabilitative
prospects of the guilty when they are ultimately imprisoned. In Brady v. United
States87, it was emphasized that plea bargains "extend a benefit to a defendant" in part
because he "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".
Similarly in Hutto v. Ross88 the Supreme Court observed on the need of pleabargaining, inter-alia, if criminal charge were subjected to a full scale trail, the State
and Federal Government would need to multiply by many times the number of judges
and court facilities. Disposition of criminal charges after plea discussions of pleabargaining is not only an essential part of the criminal process but a highly desirable
part. There are other plethoras of cases where court highlighted the need for the Plea
Bargaining in Jurisdiction like USA, Canada.
This Chapter will analyse the definition of plea bargaining, its history, need
and development, use in different parts of the world, appreciation as well as criticism.

2.2 DEFINITION OF PLEA BARGAINING

No standard definition of plea bargaining exists among practitioners nor it is
easy to give any perfect meaning to the expressionPlea Bargaining. The definition of

87
88

397 U.S. 742, 753 (1970)

50L. Ed. 2d 876, 878

P a g e | 40

"plea bargaining" varies, depending on the jurisdiction and on the context of its use89.
In general parlance, Plea bargaining may be defined as the process wherein the
prosecution and the accused/defense come to an agreement to resolve the case by
allowing an accused to plead guilty to a lesser crime than the one charged.
Accordingly we can say that the Plea Bargaining is pre-trail negotiations between the
accused and the prosecution during which the accused agreed to plead guilty in
exchange of certain agreed concessions in punishment90. In 1975, the Law Reform
Commission of Canada defined "plea bargaining" as "any agreement by the accused
to plead guilty in return for the promise of some benefit"91 Albert W. Alschuler92
defines plea bargaining in the following words, plea bargaining consists of the
exchange of official concessions for a defendants act of self conviction. Those
concessions may relate to the sentence imposed by the court recommended by the
prosecutor, the offence charged, or variety of other charges. N. M. Isakov and Dirk
van ZylSmit93 on the other hand refer to the process as, the practice of relinquishing
the right to go to trial in exchange for a reduction in charge and or sentence. There
are two types of plea bargain, charge bargaining and sentence bargaining. When a
defendant agrees to plead guilty to a lesser offense instead of the original charge or
charges this is called charge bargaining94. It involves offering a reduction of the
charges or the dismissal of one or more of the charges in exchange for the guilty plea.
Sentence bargaining, on the other hand, includes a wide range of offers that extends

89

Supra Note83
See Dr. SumanRai, Law Relating to Plea Bargaining, (Orient Publishing Company, 2008) at 7, See
also Madhabhushi Sridhar, Alternative Dispute Resolution: Negotiation & Mediation(Lexis Nexis,
2006)
91
Law Reform Commission of Canada, Criminal Procedure: Control of the Process (Working Paper
No. 15), Ottawa, Information Canada, 1975, at 45.
92
Albert W. Alschuler, Plea Bargaining and its History, Columbia Law Review, (1979) at1
93
Negotiated Justice and Legal Context, (1985), De Rebus p 173, Referred in SumanRai, Law Relating
to Plea Bargaining, (Orient Publishing Company, 2008)
94
Joseph A. Colquitt, Ad Hoc Plea Bargaining,75 TUL. L. REV. 695, 700 (2001)
90

P a g e | 41

beyond merely an offer for a lighter sentence in return for a guilty plea95. Essentially,
once a plea agreement has been obtained, the agreement has to be approved by the
court.
However, broad discretion of plea bargaining is left to the prosecutor.
Although there are constitutional limitations, prosecutors entertain a wide range of
power. They have the discretion to select which cases will be tried in court, "to drop
charges once having initiated a prosecution, and, of course, to plea bargain with a
defendant96." Thus, when a defendant is faced with a plea bargain deal, he or she has
the option of accepting or rejecting the offer.
The concept of plea bargaining is derived from the Latin term Nolo
Contendere. The plea of Nolo Contendere, sometimes called, also, Plea of
Nolvult or Nolle Contendere means, in its literal sense, I do not wish to contend.
It does not originate from early English Common Law. This doctrine is, also
expressed as an implied confession, a quasi-confession of guilt, a plea of guilty,
substantially though not technically a conditional plea of guilty, a substitute for plea
of guilty, a formal declaration that the accused will not contend97. David Gorden has
observed that the Latin word, `nolo means `I do not choose it. This statement,
variously, defined as `plea and `not a plea indicates that defendant will not fight the
charges against him of the same immediate effect as a guilty plea. It admits the fact

95

A non-exclusive list of sentence bargaining concessions include: judges agreeing to impose specific
time limits on probation; prosecutors recommending a specific sentence to the judge; judges agreeing
to a specific range of time to be imposed; prosecutors refraining from invoking special sentencing
provisions for repeat offenders; prosecutors remaining silent at the sentencing hearing; prosecutors not
opposing defendant's request for leniency or specialized rehabilitation programs; prosecutors
downplaying the harm to the victim; an agreement that defendant serves sentence in a particular
institution; a special sentencing arrangement where defendant serves a period of probation and then his
case is designated "non-adjudicated;" imposition of a fine or restitution; judges imposing concurrent
sentences for defendant's other matters such as probation or parole violations; and prosecutors agreeing
to schedule sentencing before a lenient judge. See also Supra Note86
96
Burton Atkins & Mark Pogrebin, the Invisible Justice System Discretion and the Law 6 (2d ed.
1982). Referred in Renada Williams-Fisher, Plea Bargaining Negotiations,33 S.U. L. Rev. 237
97
Fox v. Schedib;State Exrel Clark v. Adams, 363, US 807

P a g e | 42

charged, but cannot be used as a confession of guilt in other proceedings. Acceptance

by a Court is discretionary98. In United States v. Pannell99, it has been observed that
the plea, Nolo Contendere, was retained in the Federal Criminal Procedure (FCP),
Rule 11, to preserve and sometimes usefully devised by which a defendant may
admit his liability to punishment without being importantly raised in other
proceedings.
In order to identify the core problems of plea bargaining, it is essential to settle
for one definition that encompasses the broad range of practices that may be
considered plea bargaining.100 Black's Law Dictionary provides a general definition
that serves as a useful starting point to analyse the definition of plea bargaining.
Black's defines plea bargaining as: 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 defendant's pleading guilty to a lesser
offense or to only one or some of the counts of a multi-count indictment in return for
a lighter sentence than that possible for the graver charge101.
The first part of the aforesaid definition from Black Law Dictionary suggests
that plea bargains are "mutually satisfactory dispositions." While it is true that the
bargain struck must be agreed upon by both sides and the guilty plea must be made
intelligently and voluntarily102, this does not guarantee a mutually satisfactory result.
There may be circumstances in which prosecutor forced to present a highly favorable
offer to the accused because of either procedural error or lack of good evidences

98

Justice J.N.Bhatt, Doctrine Of Nolo Contendere Does It Not Deserve A Trial, available
athttp://lawcommissionofindia.nic.in/adr_conf/nolo%20contendere%204.pdf
Last visited on 15-06-2010
99
339 US 927
100
Supra Note83
101
Black's Law Dictionary (6th ed. 1990) at 1152.
102
Brady v. United States, 397 U.S. 742 (1970)

P a g e | 43

against the accused103. On the other hand, the strength of the prosecutor's bargaining
power may present the defendant with almost equally unfavorable choices104. For
example, the prosecutor's offer may involve merely not taking advantage of broad
powers granted by the legislature such as not overcharging the defendant, not
charging him as a multiple offender, or grouping several convictions for the same
incident into a single sentence. In either scenario, the description "mutually
satisfactory disposition" believes the true nature of the situation. Also, the phrase
"subject to court approval" suggests some sort of judicial review of the plea
bargaining agreement prior to acceptance by the judge. However, the true nature of
plea bargaining would include situations wherein the judicial review is nonexistent.
Implicit plea bargaining, by definition, is never officially subject to court approval.
Implicit plea bargaining involves situations where defendants do not negotiate for
certain concession but instead are presented with the fact that if they go to trial they
will be punished more severely105. Despite the lack of formal agreement for this
bargain, this type of plea bargaining is often made quite explicit to the defendant but
not subject to court approval. Additionally, prosecutors can independently drop
charges against the defendant in exchange for a guilty plea. Moreover, judges seldom
reject plea bargaining agreements involving sentencing recommendations by the
prosecutor106. Therefore, the phrase "subject to court approval" obscures the reality of
plea bargaining and inappropriately limits the definition of plea bargaining. However,
it may also be argued in this context that the judicial discretion creates check on the
power of prosecutor for entering undesirable bargaining. Indeed, it is a difficult task
103

Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining,36 U. Chi. L. Rev. 50 (1968) as
Quoted inSupra Note83
104
See Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv. L. Rev. 564,
579 (1977) ("The right to reject the proposed plea bargain is largely chimerical. Fear of heavier
sentence after trial and deference to advice of defense counsel might lead defendants to accept virtually
all plea agreements"). Referred in Supra Note83
105
Supra Note83
106
Douglas G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial
Discretion, 1983 U. Ill. L. Rev. 37 (1983);

P a g e | 44

to fix such boundary line and decide propriety of such bargaining settlement
objectively. Accordingly, the argument of Douglas is worth acceptance107.
Finally, the suggestion that plea bargaining "usually involves the defendant's
pleading guilty to a lesser offense in return for a lighter sentence" also distorts the
reality of plea bargaining by ignoring the vast array of concessions that may be
offered to a defendant in exchange for his guilty plea. The variety of concessions state
offers to a defendant extends to the limits of the prosecutor's or judge's imagination.
These concessions, generally, can be divided into two categories: charge bargaining
concessions and sentence bargaining concessions. Therefore, Black's characterization
of the exchange involved in plea bargaining understates the diversity of concessions
offered by the state in exchange for the defendant's guilty plea.
Accordingly scholars argued that, to really consider the core concerns of plea
bargaining critics, the definition of plea bargaining must encompass the broad range
of practices that constitute plea bargaining today. A comprehensive definition defines
plea bargaining as "the defendant's agreement to plead guilty to a criminal charge with
the reasonable expectation of receiving some consideration from the state.108" This
definition encompasses both explicit plea bargaining and implicit plea bargaining.
Although some practitioners refuse to acknowledge implicit bargaining as part of the
practice109, its use as a method of negotiating a guilty plea qualifies it as part of the
process of plea bargaining. In considering whether jurisdictions should ban or
severely restrict plea bargaining, the comprehensive definition should be used to
avoid confusion.
107

See argument on definition of Plea Bargaining at Supra Note83

See Supra Note83 , See also Supra Note90
109
See Teresa White Carns& John A. Kruse, Alaska's Ban on Plea Bargaining Reevaluated, 75
Judicature 310, 317 (1992) (Anchorage District Attorney distinguishes charge bargaining and plea
bargaining); Michael Perlstein, Plea Bargains: An Integral Part To Stressed-Out System; But
Sometimes They Backfire, The Times-Picayune, May 29, 1996, at A3 (New Orleans District Attorney
refuses to call the exchange of a guilty plea for sentence concessions plea bargains).
108

P a g e | 45

2.3 HISTORY OF PLEA BARGAINING

Though the Plea bargaining has emerged and gained acceptance in the legal
community only from last few decades110, it existed much before the Civil War111.
One of the earliest indications of plea bargaining was a 1485 English statute, which
authorized prosecutions for unlawful hunting before the Justice of the Peace112. The
statute provided that if a defendant confessed his crime then he was convicted of a
summary offense, but if the defendant denied his guilt then he was prosecuted as a
felon. Court reporters from appellate courts do not have cases where plea bargaining
is involved until after the Civil War. However, many courts disapproved the practice
of plea bargaining because of its secrecy and infringement on the defendant's rights113.
The Louisiana Supreme Court was especially concerned about the implications of
plea bargaining on innocent defendants, stating: In the instant case the accused
accepted the certainty of conviction of what he took to be a minor offense not
importing infamy, in order to avoid the risk of conviction of a graver offense
importing infamy. Not only was there room for error, but the thing was, what an
innocent man might do who found that appearances were against him, and that he
might be convicted notwithstanding his innocence114.
110

See Albert W. Alschuler, Plea Bargaining and Its History, 13 L. &Soc'y Rev. 211, 221 (1979)
("During most of the history of our legal system, guilty pleas were more discouraged than
welcomed."); Malcolm M. Feeley, Court Reform on Trial: Why Simple Solutions Fail 21 (1983)
(suggesting that the rise in plea bargaining was a result of the increases in court time and pretrial
petition, especially due to the fact that defendants were now routinely represented by counsel).
111
See Alschuler, Plea Bargaining and Its History, 13 L. &Soc'y Rev. 211, 221 (1979), at 221-23
(describing four specific instances of plea bargaining prior to the American Civil War); also see Supra
Note90(stating that plea bargaining also existed in the Middle Ages, the Renaissance, and the
American colonial period); Malcolm M. Feeley, Legal Complexity and the Transformation of the
Criminal Process: The Origins of Plea Bargaining,31 Isr. L. Rev. 183, 190, 199 fig.3, 202-05 (1997)
(stating that plea bargaining had its origins in the Middle Ages and was common in colonial New
York).
112
Alschuler, Plea Bargaining and Its History, 13 L. &Soc'y Rev. 211, 221 (1979)
113
Albert W. Alschuler, Guilty Plea: Plea Bargaining, in Encyclopedia of Crime and Justice 830
(Sanford H. Kadish ed. 1983) (stating that plea bargaining emerged after the Civil War).
114
See Griffin v. State, 77 S.E. 1080, 1084 (Ga. Ct. App. 1913) ("The law favors a trial on the merits.");
Pope v. State, 47 So. 487, 489 (Fla. 1908) ("The plea should be entirely voluntary by one competent to
know the consequences, and should not be induced by fear, misapprehension, persuasion, promises,
inadvertence, or ignorance."); Wight v. Rindskopf, 43 Wis. 344, 356-57 (1877). The court in this case

P a g e | 46

There are scholars who argued against the proposition that the plea bargaining
was part of criminal justice system from the inceptionof the criminal justice system
itself and observed as to opinion that plea bargaining has "always" been a part of our
criminal justice system is open to debate115. Nevertheless, the pervasive use of plea
bargaining became clearly evident during the late nineteenth and early twentieth
century.

Langbein (1978) identified similarities between the development of

medieval European law of torture and plea-bargaining. Both, he claims, were

developed to overcome the excessive trial's safeguards against false accusations
placed at trial. In the Middle Ages, a conviction required either two witnesses or a
voluntary confession. Since these rules hampered the system's ability to convict many
clearly guilty people, the law allowed a bypass. When the indications against
defendants were sufficiently convincing, torture replaced the voluntary confessions.
The current plea-bargaining process is a somewhat refined version of the torture
system since it coerces and induces defendants to plead guilty in order to overcome
the highly regulated, complex and expensive criminal trial.116. It is also argued that
the plea bargaining should be viewed as a natural outgrowth of a progressively
adversarial criminal justice system117.

stated: The profession of law is not one of indirection, circumvention, or intrigue... Professional
function is exercised in the sight of the world... Private petition goes to this, only as sharpening the
sword goes to battle. Professional weapons are wielded only in open contest. No weapon is
professional which strikes in the dark... Justice will always bear litigation; litigation is ... the safest test
of justice.
115
Supra Note110, See also Jay Wishingrad, The Plea Bargain in Historical Perspective, 23 Buffalo
L. Rev. 499 (1974), referred in Supra Note83
116
See http://law.haifa.ac.il/eale/site/WorkingPapers/Binder%20WP%20013.pdfLast Visited On 17-072010
117
Supra Note83, Douglas observed that the transformation of the criminal justice system over the
course of the nineteenth century provides a forceful explanation for the emergence of plea bargaining.
At common law, the "jury trial was a summary proceeding," conducted by private individuals or
sheriffs. Although most states had established a system of public prosecution by 1789, the public
prosecutor was primarily considered to be acting as a part of the judicial process. The framers of the
Constitution laid the foundations of an adversarial justice system in the new republic, but the operation
of that system differed significantly from today's system. "Not much is known about the day-to-day
work of the courtroom in ... 1800"; however, the absence of certain features in the system can be
deduced from the adoption of those features through statute or case law. During the early part of the
nineteenth century, many criminal prosecutions occurred without lawyers for the defendant, the

P a g e | 47

During the second half of the nineteenth century, cases involving explicit plea
bargaining agreements began to appear in appellate reports in USA118. One case that
interpreted a Michigan statute establishing certain requirements for a valid guilty plea
demonstrates a growing concern at that time over what could be characterized as plea
bargaining119. The court noted that the legislature passedthe statute "for the protection
of prisoners and of the public" in response "to serious abuses caused by prosecutors
procuring prisoners to plead guilty when a fair trial might show they were not guilty,
or might show other facts important to be known120." The court found it "easy to see
that the Legislature thought there was danger that prosecuting attorneys,... would
procure prisoners to plead guilty by assurances[, that] they have no power to make[,]
of influence in lowering the sentence, or by bringing some other unjust influence to
bear on them." The court found that the trial court cannot rely on the depositions
alone but must "examine the prisoner himself concerning the circumstances which
induced him to plead guilty." Accordingly the court reversed the conviction because
the trial court did not make an adequate, independent examination of the facts of the
case. However, one can infer from the policy statements of the court that plea
negotiation did occur at that time. The judicial response around the country, to both
explicit and implicit plea bargaining, mirrored the Michigan court's aversion to plea
negotiation121.

prosecution, or both. As the American legal profession grew, and more trials involved lawyers, the
length of the jury trial also increased. Correspondingly, guilty plea rates increased.
118
See State v. Richardson, 12 S.W. 245 (Mo. 1889);State v. Kring, 8 Mo. App. 597 (1880);Swang v.
State, 42 Tenn. (2 Coldwell) 212 (1865);Saunders v. State, 10 Tex. Ct. App. 336 (1881).
119
See Edwards v. People, 39 Mich. 760 (1878)
120
i.d.
121
See Deloach v. State, 77 Miss. 691, 692 (1900) ("All courts should administer the law... as to secure
a hearing on the merits if possible"); Kring, 8 Mo. App. at 597 ("The act of fixing the punishment,
being purely judicial, cannot be made the subject of an agreement between the circuit attorney and the
accused"); Swang, 42 Tenn. at 213-14 ("By the Constitution of the State, the accused, in all cases, has a
right to a "speedy and public trial,' ... and this right cannot be defeated by any deceit or device
whatever"). See for detail Supra Note83

P a g e | 48

By the 1920's, plea bargaining had become an established part of the judicial
system. Many states and cities had established crime commissions designed to survey
the workings of their criminal justice systems122. Studies generally reported a steady
increase in guilty plea rates from the turn of the century123.

In New York, for

example, statistics from 1839 showed twenty-five percent of convictions resulted

from guilty pleas. Ten years later, the rate of guilty pleas climbed to forty-five
percent. By 1869, they had jumped to seventy percent, and guilty plea rates continued
to rise each decade until they leveled off around ninety percent in the 1920s. This
increase in guilty plea rates clearly suggests an increase in the use of plea bargaining
to dispose of criminal cases124. One commission's study in 1924 confirms the
acceptance of plea bargaining in the criminal justice system by stating that "it is
generally felt that a defendant who pleads guilty to a charge ought to be given
somewhat more lenient treatment than if he pleads not guilty and is convicted."
Moreover, the commission acknowledged that "the essential thing inducing the
defendant to plead guilty is not always his actual guilt, but the kind of a bargain he
can make with the State."125
Alschuler has listed five factors for the emergence of plea bargaining in the 1920s126:
1) Increasing complexity of the trial process,

122

See generally Illinois Association for Criminal Justice, The Illinois Crime Survey (1929); Missouri
Association For Criminal Justice, The Missouri Crime Survey (1926); New York State Crime
Commission, Report to the Commission of the Sub-Committee on Statistics (1927); Georgia
Department of Public Welfare, Crime and the Georgia Courts, 16 J. Am. Inst. of Crim. L. &
Criminology 16 (1924). Referred in See for detail Supra Note83
123
See Hugh N. Fuller, Criminal Justice in Virginia 79 (1931) (guilty plea rates increased in urban
jurisdictions from fifty percent in 1917 to seventy-five percent in 1927); Georgia Department of Public
Welfare, (guilty plea rates increased seventy percent from 1916 to 1921); Raymond Moley, The
Vanishing Jury, 2 So. Cal L. Rev. 97, 107 (1928) (guilty plea rates steadily increased in the New Haven
Superior Court from seventy-five percent of all felony convictions in 1888 to over ninety percent in
1921).
124
Supra Note83
125
Georgia Department of Public Welfare, Crime and the Georgia Courts, 16 J. Am. Inst. of Crim. L.
& Criminology 16 (1924).
126
Alschuler, Plea Bargaining and Its History, 13 L. &Soc'y Rev. 211, 221 (1979), Referred in Jeff
Palmer , Abolishing Plea Bargaining: An End to the Same Old Song and Dance, 26 Am. J. Crim. L.
505

P a g e | 49

2) Expansion of substantive law (especially due to liquor prohibition),

3) Increasing crime rates,
4) Political corruption of urban criminal courts, and
5) Greater use of professionals in administration of justice).
The plea bargaining had reemerged as major form for settlement of criminal
cases in 1960s. Such re-emergence of plea bargaining was due to a couple of factors:
1) the "crime wave" of the 1960s produced by the World War II baby boom and the
increased proportion of young people in society, and 2) the increase in drug usage
(especially marijuana) and other cases of victimless crime127. In 1967, both the
American Bar Association and the President's Commission on Law Enforcement and
Administration of Justice noted their approval of plea bargaining128. Though initially
United States Supreme Court was reluctant to permit bargained waivers of procedural
rights, suggesting that they would not approve of plea bargaining129in 1971, the
United States Supreme Court specifically accepted plea bargaining as part of the
criminal justice system130.
Public disenchantment with the practice of plea bargaining probably reached its
peak in USA in the fall of 1973 when Vice President Spiro Agnew accused of
accepting bribes, avoided a possible prison term by being allowed to enter a nolo
contendere plea to a lesser charge."131 Two years following the United State Supreme

127

Jeff Palmer , Abolishing Plea Bargaining: An End to the Same Old Song and Dance, 26 Am. J.
Crim. L. 505
128
Supra Note125, See also Supra Note90
129
See Insurance Co. v. Morse, 87 U.S. (20 Wall.) 445, 451 (1874) (invalidating a Wisconsin statute
which required insurance companies to waive their right to remove civil lawsuits from state to federal
court, stating that "every citizen is entitled to resort to all the courts of the country, and to invoke the
protection which all the laws or all those courts may afford him. A man may not barter away his life or
his freedom, or his substantial rights.").
130
See Santobello v. New York, 404 U.S. 257, 264 (1971)("'Plea bargains' are important in the
administration of justice both at the state and at the federal levels."); Lawrence M. Friedman, Crime
and Punishment in American History 392 (1993) (reasoning that the United States Supreme Court
approved plea bargaining because of the increasing criminal case load throughout the nation).
131
H. Richard Uviller, Virtual Justice: The Flawed Prosecution of Crime in America 187 (1996)
(discussing that not only did a Vice President of the United States plea bargain but also a Chief Judge

P a g e | 50

Court's acceptance of plea bargaining, the National Advisory Commission on

Criminal Justice Standards and Goals recommended the abolition of all forms of plea
bargaining stating, "As soon as possible, but in no event later than 1978, negotiations
between prosecutors and defendants - either personally or through their attorneys concerning concessions to be made in return for guilty pleas should be prohibited."132
While the Commission's goal of abolishing plea bargaining was never reached, there
have been several attempts to abolish plea bargaining.133

Nonetheless, plea

bargaining remains a part of today's criminal justice system, although the Supreme
Court and Federal Rules of Criminal Procedure have placed many limitations on the
process134. Indeed the plea bargaining effectively functioned in almost all parts of the
USA.

2.4 PLEA BARGAINING IN DIFFERENT PART OF THE

WORLD:
The process of plea bargaining is being practiced in different parts of the
world. In some places it is used extensively and in some places it is used lesser in
of the New York Court of Appeals and the Croesus of the inside traders). Referred in Jeff Palmer ,
Abolishing Plea Bargaining: An End to the Same Old Song and Dance, 26 Am. J. Crim. L. 505, FN 29
132
James Steele & Donald Barlett, Justice in Philadelphia, The New Republic, May 26, 1973, at 21.
Referred in Supra Note125
133
On July 3, 1975, Alaska's attorney general, Avrum Gross, officially banned plea bargaining in
Alaska. (describing Alaska's ban on plea bargaining and the resulting low increase in jury trials, from
6.7% to 9.6%). There have also been several plea bargaining bans on specific crimes. Other plea
bargaining bans included: the 1976-1977 Michigan Felony Firearms Law provided for mandatory
prison terms for gun-related crimes, the 1973 New York law banned pleas to lower charges for anyone
charged with a Class A-1 drug offense, and Hampton County, Iowa prohibited prosecutors from
making deals with drug dealers. Texas also banned plea bargaining in felony prosecutions. See Supra
Note125 FN 31.
134
See Mabry v. Johnson, 467 U.S. 504, 508-09 (1984) ("It is only when the consensual character of
the plea is called into question that the validity of a guilty plea may be impaired."); Santobello, 404
U.S. at 262-63 (holding that the promise of the prosecutor must be kept and that the breaking of a plea
agreement by the prosecutor required a remand to state court); North Carolina v. Alford, 400 U.S. 25,
37-38 (1970) (holding that the judge has discretion in deciding whether or not to accept a defendant's
plea of guilty, even when the defendant claims he is innocent); Boykin v. Alabama, 395 U.S. 238, 24244 (1969) (holding that in order to accept a defendant's plea, there must be an affirmative showing that
the plea was intelligent and voluntary). Rule 11(e) of the Federal Rules of Criminal Procedure also
provides guidelines for plea bargaining. See Fed. R. Crim. P. 11(e) (1998) (providing procedures for
plea bargaining and among other things prohibiting the court from participating in discussions). The
American Bar Association in its Standards on Criminal Justice, Standards Relating to the Guilty Plea,
has established guidelines for receiving guilty pleas. See Joseph J. Senna& Larry J. Siegel,
Introduction to Criminal Justice (2d ed. 1981) at 340.

P a g e | 51

number. In last paragraph, we have seen its practice in USA while discussing the
history of Plea Bargaining. But there are other jurisdictions where Plea Bargaining is
practiced extensively. It is important to have a look on the functioning of Plea
Bargaining in other parts of the world.

2.4.1 PLEA BARGAINING IN CANADA

Plea bargaining itself is neither legislatively sanctioned nor prohibited in
Canada. Plea bargain has validity in Canadian law because the Crown Prosecutor, in
carrying out his/her duties, represents the Attorney General of the province.
Therefore, in essence, through the Crown Prosecutor, it is the Attorney General who
has struck the deal. It can occur when either the defense attorney feels that the defense
is not airtight', or the Crown may perceive that its case is weak and offer to reduce
the charge(s). It is most commonly employed however, simply to save time and
money. Negotiations can be done at various points during the process, all the way to
the trial date, but they usually occur much earlier in the process.
The very essence of plea negotiation is sentence reduction, which is influenced
by many uncertain elements, such as the relationship between the defence lawyer and
the Crown, and the cooperation between the suspect and the police. Victims typically
have no role whatsoever within such a process. Defendants are also frequently
isolated from, ignorant of, or confused by this behind-the-scenes' process dominated
by lawyers.
Bargaining has never been fully recognized as a legitimate practice in Canada,
at least not to the same extent as in some American jurisdictions. There is by no
means a uniform set of rules governing this process, and the way it functions depends
primarily on the nature of relationships that have grown up between magistrates,

P a g e | 52

Crown attorneys and defence counsel in particular parts of the province135. However,
it does not mean that the Plea Bargaining is not being followed in Canada. In 1988,
the Canadian Sentencing Commission identified three types of negotiations between
Crown and defence counsel that occur at different stages in the criminal justice
process136:

Charge Bargaining:
(a) Reduction of the charge to a lesser or included offence;
(b) Withdrawal or stay of other charges or the promise not to proceed on other
possible charges;
(c) Promise not to charge friends or family of the defendant

Sentence Bargaining:
(a) Promise to proceed summarily rather than by way of indictment;
(b) Promise of a certain sentence recommendation by the Crown;
(c) Promise not to oppose defence counsel's sentence recommendation;
(D) promise not to appeal against sentence imposed at trial;
(e) Promise not to apply for a more severe penalty;
(f) Promise not to apply for a period of preventive detention under s.688;

135

HediehNasheri,
Betrayal
of
Due
Process
(1998),
quoted
at
http://www.victimsofviolence.on.ca/rev2/index.php?option=com_content&task=view&id=378&Itemid
=197, Last Visited on 08-07-2010
136
i.d.

P a g e | 53

(g) Promise to make a recommendation as to the place of imprisonment, type of

treatment, etc.
(h) Promise to arrange the sentence hearing before a particular judge.
Fact Bargaining:
(a) Promise not to volunteer' information detrimental to the accused (e.g., not
adducing evidence as to the defendant's previous convictions);
(b) Promise not to mention a circumstance of the offence that may be interpreted by
the judge as an aggravating factor.
The propriety of plea bargaining at Canada in principle flows from the very
nature of the criminal justice system in Canada. The adversarial system accords to the
parties of a criminal prosecution wide discretion in determining the manner and form
of proceedings, and it expects this discretion to be exercised with a high standard of
integrity and responsibility. In such a system, there is a corresponding expectation on
lawyers to resolve issues before trial by mutual agreement. Adversarial proceedings
must be flexible in order to function. But practical considerations also makes plea
bargaining a necessity. The total cost of crime in Canada is estimated to be close to 59
billion dollars per year. The cost of crime include the expenditures required for
protection, those incurred by victimsand those associated with the functioning of the
justice system. Justice system costs alone amount to 20% of the total, or close to 12
billion dollars. These costs include expenditures on police, prosecution, legal aid,
courts and prisons. Measures such as resolution discussions can help reduce
expenditures. Resolving a criminal case either through a plea of guilty or by reducing
the length of a trial alleviates the workload of prosecutors, reduces the need for

P a g e | 54

judicial resources and courtroom facilities and decreases all the other expenses
necessitated by a trial137.
The reality is that the vast majority of criminal convictions are secured through pleas
of guilty. In 1998, a study conducted within the province of Ontario concluded that
91.3% of all criminal cases were resolved without the necessity of a trial138. Without
the practice of resolution discussions, the administration of justice could not operate
efficiently and would in fact grind to a halt139.
Prosecutors are vested with a great deal of responsibility in the criminal justice
system, for they represent the public interest in the broad sense of the term and must
see that justice is properly done140. Due to the benefit that flows to the administration
of justice from early guilty pleas, prosecutors are obliged to initiate, as well as
respond to, plea discussions, and they should make the best offer to the accused as
soon as practicable141.
There are a number of benefits that an accused may reap upon deciding to
admit criminal liability through an early guilty plea. In exchange for pleading guilty
and avoiding a lengthy trial, an accused may receive sentence concessions by the
prosecutor or the reduction, withdrawal or staying of some charges. Moreover,
Canadian courts have recognized that a guilty plea generally indicates genuine
137

MilicaPotrebicPiccinato, Plea Bargaining, The International Cooperation Group Department of

Justice of Canada 2004, available at http://www.justice.gc.ca/eng/pi/icg-gci/pb-rpc/pbrpc.pdf, last
visited on 17-07-2010
138
The 91.3% figure includes all charges that are resolved by guilty pleas or withdrawn by the
prosecutor. (See The Commission on Proceedings Involving Guy Paul Morin, Testimony of Peter
Griffiths relating to Exhibit 292, Statistical Monitoring Report of Ontario Court, Provincial
Division,12 December 1997, available on Quick Law in database "CRCM".) Of the 91.3% of cases,
75.5% were resolved before trial, while the other 15.8% remained unresolved until the day set for trial.
(See The Investment Strategy Report, Ontario Ministry of the Attorney General, Third Quarter of 1998,
referred to in the Report of the Criminal Justice Review Committee, February 1999, Chapter 6, Part 4,
available on Quick Law in database "CRCM".) , referred in id
139
Ontario Ministry of the Attorney General, Report of the Attorney Generals Advisory Committee on
Charge Screening, Disclosure, and Resolution Discussions, 1993, pages 1-523, at page 277.
140
Re Skogman v. The Queen, Decision of the Supreme Court of Canada, [1984] Canadian Criminal
Cases, Third Series, volume 13, pages 161-185. See also Regina v. Power, Decision of the Supreme
Court of Canada, [1994] Canadian Criminal Cases, Third Series, volume 89, pages 1-39.
141
Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter 20, pages V20-1 to V-20-11, at page V-20-5.

P a g e | 55

remorse on the part of the offender, and that it should be considered as a mitigating
factor by the court during the sentencing hearing142. A guilty plea may also provide an
element of certainty which is often absent at trial. In a properly conducted resolution
discussion, the prosecutor, the defence counsel and the accused will know the
agreement reached and the position of all parties regarding the potential disposition of
the criminal charges. It is important to remember, however, that the sentence that will
be ultimately imposed is entirely within the discretion of the judge assigned to hear
the guilty plea. A joint submission or recommendation by the prosecutor and defence
counsel regarding the disposition in a criminal case is not binding on the judge143.
However, judges are legally obligated not to reject a joint submission unless it is
contrary to the public interest and the sentence recommended would bring the
48

administration of justice into disrepute . This high threshold is intended to foster

confidence in an accused, who has given up his right to a trial, that the joint
submission obtained in return for a plea of guilty will be respected by the sentencing
judge144.
The Criminal Code of Canada provides that a pre-trial conference between a
prosecutor and the accused or defence counsel that is presided over by a judge may
take place in order to consider any matters that would promote a fair and expeditious
hearing145. A pre-trial conference may be initiated on application by the prosecutor,
the accused or the court. In the case of jury trials, these pre-trial conferences are
mandatory146.

142

Regina v. Layte, Decision of the Ontario County Court, [1984] Criminal Reports, Third Series,
volume 38, pages 204-208, at page 208.
143
Regina v. Cerasuolo, Decision of the Ontario Court of Appeal, [2001] Canadian Criminal Cases,
Third Series, volume 151, pages 445-448, at page 447.
144
Regina v. Dorsey, Decision of the Ontario Court of Appeal, [1999] Ontario Appeal Cases, volume
123, pages 342-346, at page 345. See also Supra Note141, at 447.
145
Section 625.1 of the Criminal Code.
146
Section 625.2 of the Criminal Code.

P a g e | 56

The role of the judge during a pre-trial conference is to remain fair and
impartial. It is inappropriate for a judge to become involved in plea bargaining, in the
sense of bartering to determine the ultimate sentence, or in pressuring any counsel to
change his position147 The purpose of this principle is to ensure that the resolution
discussions that take place at the pre-trial conference are wide-ranging, informal and
without prejudice to the parties, and to preserve judicial impartiality in the
courtroom148.
So far honoring the agreement is concerned there is a general obligation on
prosecutors to honour resolution agreements. These agreements are analogous to
undertakings and must be strictly and scrupulously carried out149. In addition to being
ethically imperative, the honouring of resolution agreements is a practical necessity.
These agreements dispose of the majority of the contentious issues that arise during
criminal prosecutions. Accordingly, if they are not binding and therefore cannot be
relied upon, then the corresponding benefits that resolution discussions can produce
are rendered unattainable. It is extremely rare for a prosecutor to attempt to repudiate
a resolution agreement. Moreover, the court will not allow a prosecutor on appeal to
repudiate the position taken at trial150except for the gravest possible reasons, such as
the sentence imposed was illegal, the prosecutor at trial was misled or it can be shown
that the public interest in the orderly administration of justice is outweighed by the
gravity of the crime and the gross insufficiency of the sentence151. The seriousness of

147

Ontario Ministry of the Attorney General, Report of the Attorney Generals Advisory Committee on
Charge Screening, Disclosure, and Resolution Discussions, 1993, at 365.
148
i.d. at 368.
149
i.d. at 313.
150
Regina v. Agozzino, Decision of the Ontario Court of Appeal, [1970] Canadian Criminal Cases,
volume 1, pages 380-382, at page 381 ; Regina v. Brown, Decision of the Ontario Court of Appeal,
[1972] Canadian Criminal Cases, Second Series, pages 227-228, at page 228.
151
Attorney General of Canada v. Roy, Decision of Quebec Queens Bench, [1972] Criminal Reports
New Series, volume 18, pages 89-93 at page 93 ; also cited in Federal Prosecution Service Deskbook,
"Proceedings at Trial and on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-11, and Law
Reform Commission of Canada, Plea Discussions and Agreements (Working Paper 60) (Ottawa :
1989), at 30.

P a g e | 57

the obligation to keep an agreement may be illustrated through an examination of

prosecution of one of the most dangerous criminals in Canada and his accomplice
wife152.
Between May 1987 and December 1992, Paul Bernardo, a diagnosed
psychopathic sexual sadist, murdered three women and sexually assaulted at least
eighteen. During that period, the authorities did not have any admissible evidence
identifying Bernardo as the perpetrator of these crimes. On 1 February 1993, the first
clue was discovered. The Centre of Forensic Sciences advised the police that there
was a match between Bernardos DNA and victims. However, this was not enough to
connect Bernardo to the three murders. There was only one way: through his wife
Karla Homolka. Homolka was both a victim of her husbands abuse and an
accomplice to his crimes. On 11 February 1993, Homolka retained a lawyer who
negotiated with the prosecutor on her behalf. She had invaluable information that
would assist the police in apprehending Bernardo, but she wanted a deal. The
prosecutor and police faced a serious dilemma. They had a strong case against
Homolka but nothing to convict Bernardo. The authorities were faced with the
unpleasant fact that if Bernardo was to be prosecuted for the murders, it was essential
that they have Homolkas evidence and cooperation. On 14 May 1993, the prosecutor
entered into an agreement with Homolka after months of discussions with her lawyer.
In exchange for her cooperation and testimony against Bernardo, she would plead
guilty to two counts of manslaughter and receive a sentence of 12 years
imprisonment. Homolka was sentenced on 6 July 1993.On 1 September 1995,
Bernardo was convicted of two counts of first-degree murder and sentenced to life
imprisonment without eligibility for parole for 25 years. He was also found to be a
dangerous offender and sentenced to be detained in a penitentiary for an indefinite
152

Supra Note135

P a g e | 58

period of time. Over one year later, the community at large was shocked by the
discovery of critical new evidence. On 22 September 1994, videotapes made by
Bernardo were discovered by the police. These videotapes captured the vicious sexual
assaults that were perpetrated by both Bernardo and Homolka against a number of
victims, including the deceased young women. Consequently, Homolkas deal with
the prosecutor came under heavy public scrutiny as she no longer could be portrayed
as the abused wife who was manipulated by a sadistic killer: rather, she was now seen
as a willing participant to the crimes. Had the authorities been in possession of the
tapes on 14 May 1993, the prosecutor would never have entered into the resolution
agreement with Homolka
Due to a profound and widely felt sense of public outrage at the fact that
Homolka was only sentenced to 12 years for her part in the commission of horrific
offences, the Attorney General of Ontario established an inquiry. The inquiry
examined the propriety of the decisions made by the prosecutors respecting Homolka.
The 14 May 1993 resolution agreement and the prosecutors decision not to charge
Homolka with murder after the discovery of the crucial videotapes were reviewed.
The result of the inquiry was that the conduct of counsel on both sides was
professional and responsible, and that the process surrounding the resolution
agreement was unassailable:
It is my firm conclusion that, distasteful as it always is to negotiate with an
accomplice, the Crown had no alternative but to do so in this case. The Crown has a
positive obligation to prosecute murderers. It is (...) often the "lesser of two evils" to
deal with an accomplice rather than to be left in a situation where a violent and
dangerous offender cannot be prosecuted153.

153

The Honourable Patrick T. Galligan, Report to the Attorney General of Ontario on Certain Matters
Relating to Karla Homolka, 15 March 1996, pages 46, 50.

P a g e | 59

The inquiry also concluded that the appropriate criminal sanction for
Homolkas involvement was in the range of ten to fifteen years of imprisonmen.
Therefore, the sentence of 12 years was held to be adequate. In respect of the
prosecutors decision not to charge Homolka with murder after the videotapes were
discovered, the inquiry held that it was not feasible for the prosecutor to charge
Homolka154. Such action would have violated the terms of the resolution
agreementand is barred by the Criminal Code of Canada155.

2.4.2 PLEA BARGAINING IN SOUTH AFRICA

Traditionally, South African law follows a system of discretionary
prosecution. It is within the discretion of the prosecutor to proceed with any
prosecution, and on the charge that he or she deems appropriate. Indeed, there is no
doubt that plea discussions and plea negotiation, however informal, does take place in
South Africa156 and are considered legal157. This is confirmed by a number of studies
on the existence of plea agreements158. According to a study conducted as early as
1983 by D van ZylSmit and N M Isakov159in the Cape Supreme Court, informal plea
negotiations are usually initiated by the party who is in a vulnerable position, and
depend very much on the personalities of and the mutual trust between the prosecutor
and the defence. During discussion with thirteen Cape judges, divergent views were
155

i.d.
Section 610(2) of the Criminal Code states that a conviction for the offence of manslaughter bars a
subsequent indictment for the same homicide charging it as murder.
156
N M Isakov, Dirk van ZylSmit,"Negotiated Justice and the Legal Context" 1985 De Rebus 173; N
M Isakov, D van ZylSmit"The Decision on How to Plead: A Study of Plea Negotiation in Supreme
Court Criminal Matters" 1986 SASK 3 et seq.; D P van der MerweDie Leerstuk van
VerminderdeStrafbaarheidunpublished LLD thesis Unisa 1980 185 footnote 7; D P van der Merwe
"InformeleStrafvermindering
by
Moord"
1982
THRHR141;JC
KrieglerHiemstraSuidAfrikaanseStrafproses5th edition(1993) at 259. Referred in South African Law
Commission, Simplification Of Criminal Procedure(Sentence Agreements), Project 73, May 2001, at
39
157
South African Law Commission, Simplification Of Criminal Procedure(Sentence Agreements),
Project 73, May 2001, at 39
158
Negotiated Justice and the Legal Context (1985) De Rebus 173, Referred in i.d.at 40
159
The Decision on How to Plead: A Study of Plea Negotiation in Supreme Court Criminal Matters"
1986 SACC 10 et seq., referred in Supra Note157
155

P a g e | 60

expressed on plea negotiations. The two extreme views were: (a) I refuse to have
anything to do with plea negotiation at all. I have an anathema to the US system
because a judge has no knowledge of the case whereas the prosecutor and defence do
have. It is not part of our system for a judge to even suggest a plea. In my view in no
circumstances should a prosecutor approach the judge before trial to ask the judge if it
would be appropriate were the prosecutor to accept a plea. (b) I often call in both
counsel and say, go and settle this matter. I brow-beat them a bit into a plea and say:
Surely you don't think this is murder; surely it is culpable homicide. Such discussion
is between myself and both counsel, assessors excluded. I don't think it's important if
the accused is found guilty of Culp or of murder with extenuating circumstances. He
is seemingly punished for the act he committed - no matter what legal label is
attached to it. The authorscame to the conclusion that plea negotiation should be
permitted and even be encouraged, since it has the tacit approval of jurists involved,
that substantive justice is sometimes a more important consideration than procedural
regularity, and that the majority of judges admit that they are involved in plea
negotiation in some way or other. However, there is no statistical study relating to
their prevalence or the degree to which the process limits the number of trials in
criminal cases and, except for the judgment in North Western Dense Concrete CC and
another v Director of Public Prosecutions (Western Cape)160there are hardly any
reported judgments in which the process was considered pertinently.161
In the North Western Dense case the first applicant, a close corporation, and
the second applicant, in his capacity as a member of the first applicant, were charged
in a regional court together with Muster, the production manager of the close
corporation. Muster was charged with culpable homicide only, while the applicants
160

North Western Dense Concrete CC and another v Director of Public Prosecutions (Western Cape),
1999 (2) SACR 669 (C).
161
S v Blank 1995 (1) SACR 62 (A) 82, See Supra Note156 at 40.

P a g e | 61

were also arraigned on additional charges. In exchange for Musters pleading guilty to
the charge of culpable homicide, the State agreed to withdraw all charges against the
applicants. It needs to be emphasized that the prosecutor was orally mandated by a
senior advocate in the Office of the respondent to accept the deal. Subsequent to this a
third party applied for certificate noble prosequifrom the respondent. Instead the
respondent reinstituted the charges against the applicants, who applied to the High
Court for an order interdicting the respondent from proceeding with the prosecution.
The Court had to decide whether plea bargaining was an integral part of the law of
criminal procedure and, if it was, whether it could and/or should interfere with the
decision of the respondent to reinstitute the charges against the applicants. The court
held that plea bargaining as a means of achieving a settlement of the lisbetween the
State and the accused was as much an entrenched, accepted and acceptable part of
South African law as were negotiations aimed at achieving a settlement of the
lisbetween private citizens in a civil dispute. In fact, the court expressed the view that
the criminal justice system would probably break down if the procedure were not to
be followed. The court held further that although it may need elaboration, an accurate
description of a plea agreement is that it is the practice of relinquishing the right to go
to trial in exchange for a reduction in charge and/or sentence. The court also found
that a deal in the sense of a negotiated settlement of the lisbetween the applicants,
Mostert and the State had been reached and that deal fell within the definition of a
negotiated plea agreement. The court found further that the Director of Public
Prosecutions was not obliged to institute a prosecution whenever a prima facie case
was made out and a private person demanded a certificate nolleprosequi. The
Directors of Public Prosecutions possessed discretion and were clothed with the
authority to decline to prosecute an accused person, even when a prima facie case had
been made out against that person. It would therefore be appropriate for the Court to

P a g e | 62

interfere with the decision-making of the respondent if the dictates of justice so

demanded. The Court took the view that it would be palpably unfair to allow the
respondent to enjoy and to continue to enjoy the benefits of the plea agreement
reached, but to be able to avoid doing what it was clearly contemplated he would do
when the agreement was reached. Accordingly, the Court held that the respondent had
to be held to his part of the bargain, and a basic rule of such procedure should be that
a prosecutor should stand by an undertaking solemnly given during the negotiations
leading up to a plea settlement. Instances where solemn agreements had been
concluded between accused persons and the prosecuting authorities, in terms whereof
accused persons gave up certain rights in exchange for an abandonment of
prosecution, are therefore instances where a stay of prosecution is the appropriate
remedy where the State subsequently appeared to renege on what it had offered as a
quid pro quo. The court accordingly granted an order permanently staying the
prosecution of the applicants162.
Catherine Clarke163 examined the practice of plea negotiations in South
African courts. According to her study and finding the South African criminal courts
evolve to be more efficient and equitable, the problems experienced in the US system
can be anticipated and possibly avoided. Indeed, if there is a theoretical bar to plea
negotiating in South Africa, it has been largely ignored in more recent years in favour
of a more participatory model of justice. A participatory model of criminal justice
makes an effort to hear community concerns, victims' rights groups and incorporate
rehabilitation and restitution programmes such as NICRO. New vision of the plea
negotiation process see it as a process to serve the accused, the system and
community. For example, a balanced plea agreement can move minor cases out of the
162

See for further discussion Supra Note 155

Catherine Clarke, A Message in a bottle for unknowing defenders: Strategic plea negotiations
persist in South African courts (1999), referred in, Supra Note157
163

P a g e | 63

system to make room for more important trials serving efficiency goals. Likewise, a
creative plea agreement can mandate a rehabilitative programme for the accused, and
establish a restorative justice plan to compensate a victim. Open-minded attitudes held
by all parties involved increasing the opportunities for just and restorative case
dispositions. Thus in South Africa also the plea bargaining are being practiced either
directly or indirectly.

2.4.3 PLEA BARGAINING IN NEW ZEALAND

In New Zealand also plea bargaining is practiced in most of the Districts. A
decade back a pilot scheme known as Astatus hearing, was introduced in the New
Zealand District Courts and it operates in district courts throughout the country164.
The scheme entails that defendants who plead not guilty are referred to a Astatus
hearing and thereafter the cases proceed as a defended hearing. Status hearings aim to
assist in the efficient disposition of cases and to promote the entry of proper pleas at
the first opportunity. An evaluation was done of the first 12 months of operation of
the scheme in the Auckland District Court and it showed that sentence indications
were given in fewer than a quarter of the cases and in most of these cases the
defendant pleaded guilty. The conduct of status hearings, however, differs from
district to district because no national guidelines were developed.

2.4.4 PLEA BARGAINING IN ENGLAND & WALES

In England and Wales the practice of plea bargaining is governed by principles
laid down by the Court of Appeal in Turner Case165. The court held that there should
be freedom of access between counsel and judge but that any discretion must be

164
165

See New Zealand Law Commission Report 66 Criminal Prosecutions October 2000.
(1970) 54 Cr. App R 352

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between judge and both counsel. The defendants solicitors can be present if he
chooses. The judge should never indicate the sentence he is minded to impose or that
he would impose one sentence on a verdict of guilty and one sentence on a plea of
guilty. Parker LCJ stated; the Judge should never indicate the sentence which he is
minded to impose. A statement that on a plea of guilty he would impose one sentence,
but that on a conviction following a plea of not guilty he would impose a severer
sentence is one which should never be made. This could take to be undue pressure on
the accused, thus depriving him of that complete freedom of choice which is essential.
This judgment in reality restricted the application of plea bargaining and suggested for
some change from different quarter. A Crown Court study conducted for Royal
Commission on Criminal Justice found that over 85% of prosecution and defense
barristers and 67% of the judges thought that the Turner rules should be reformed to
permit more realistic discussions of plea and sentence166. The Royal Commission
itself recommended that Judges should be able to indicate to defense counsel the
highest sentence they would impose in response to guilty plea at the point at which
the discussion was taking place167.

2.4.5
PLEA-BARGAINING
AND
PROSECUTORIAL
DISCRETION IN CIVIL LAW COUNTRIES
Unlike plea bargaining in adversarial systems, the economic research of the
parallel procedures in civil law countries is scarce168. Indeed Plea Bargaining is
extremely difficult in jurisdictions based on civil law. This is because unlike common
166

Zander and Henderson, Crown Court Study, prepared for Royal Commission on Criminal Justice,
London 1993, quoted in SumanRai, Law Relating to Plea Bargaining, Orient Publishing Company
(2007), at58
167
Report of the Royal Commission on Criminal Justice Cmd 2336 (London, 1993).
168
One reference to plea bargaining in civil law countries can be found in Adelstein and Miceli (2001)
who argue that the difference in criminal justice values in the two type of systems makes plea
bargaining a welfare increasing process in common law countries but not in civil law ones. Referred in
Oren Gazal-Ayal&LimorRiza, Plea-Bargaining And Prosecution, European Association Of Law And
Economics
Working
Paper
No.
013-2009,
available
at
http://law.haifa.ac.il/eale/site/WorkingPapers/Binder%20WP%20013.pdf last visited on 17-07-2010.

P a g e | 65

law systems, civil law system has no concept of plea if the defendant confesses that
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 he
presented a full confession. Also unlike common law systems, prosecutors 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 reduce the charges before a case has
been filed is limited, making plea bargaining extremely difficult169. Accordingly, the
differences between the two types of systems make much of the plea bargaining
literature irrelevant to civil law systems. In some places the system of Plea Bargaining
functions in restricted manner. For example, in Italy parties are allowed to apply for a
consensual punishment which does not exceed a sentence of five years170. This
process is often called patteggiamentoor bargaining, and seems to be similar to a
sentence bargaining in common law countries. In the Italian system, judges are
allowed to overturn prosecutorial refusal to offer a sentence discount and defendants
do not even have to admit their guilt in order to get such a bargain. These features
should have encouraged the parties to make use of the process.
Yet the process is generally regarded as a failure. Full trials still occur in 85
percent of the cases in Italy, in sharp contrast with the about 10 percent trial rate in
common law countries such as USA. The Italian system still suffers from excessive
caseload and delays. One possible explanation for the failure of plea bargaining to
clear up the market is the compulsory prosecution rule. In common law countries, if
too many defendants choose to go to trial, prosecutors can offer larger plea concession
and drop more cases. On the other hand, in Italy, the legality principle does not allow
prosecutors to drop cases, and the law does not allow charge bargaining or more than

169
170

SumanRai, Law Relating to Plea Bargaining, Orient Publishing Company (2007) at. 51
Langer, 2004, at 49to50, quoted in Supra Note166

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one third reduction in sentence bargaining. Since too few defendants agree to this
limited concession, the cases still pile up. Defendants thus know that prosecutors
cannot bring their case to trial promptly and hence prefer to reject the offer. As the
number of defendants who reject such offers increase, the delays increase too, and the
benefits from bargaining are further reduced. It thus might be that plea bargaining is
much less attractive to defendants in systems with compulsory prosecution. This is
just one example of the difficulty in implementing models developed in common law
countries for the analysis of plea bargaining in civil law jurisdictions. A more
thorough economic analysis and empirical research should be tailored for the study of
plea bargaining in civil law system171.
Estonia is another country where plea-bargaining has been introduced in the
90s allowing reducing penalty in exchange for confession and avoiding most of the
court proceedings. The plea-bargaining is permitted for the offence punishable by no
more than 4 years of imprisonment. Normally one third reduction in penalty is
given172.

2.5 ARGUMENTS IN FAVOUR OF PLEA BARGAINING

Plea bargaining derives resiliency and popularity from the fact that it provides
at least some benefits to all players in the criminal justice system: district attorneys,
defense attorneys, defendants, judges and, to a certain extent, victims. These benefits
provide strong incentives for participants to engage in plea bargaining and should be
acknowledged when presenting possible reforms of plea bargaining173.

171

Supra Note166
See Supra Note167 at 52, See also www.pbs.org
173
See Supra Note83
172

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Advocates supporting plea bargaining insist that there are no other alternatives and the
legal system will collapse without plea bargaining174. Chief Justice Burger pointed out
the possible devastating effects of abolishing plea bargaining stating: The
consequence of what might seem on its face a small percentage change in the rate of
guilty pleas can be tremendous. A reduction from 90 per cent to 80 per cent in guilty
pleas requires the assignment of twice the judicial manpower and facilities - judges,
court reporters, bailiffs, clerks, jurors and courtrooms. A reduction to 70 per cent
trebles this demand175.
Justice Burger points out one of the primary justifications for plea bargaining allowing the judicial system to handle the ever-increasing case load. There are other
advantages of plea bargaining also such as:
1) It allows for the best allocation of resources to reach a mutual end result,
2) It allows for greater flexibility in the system,
3) It allows the defendant to acknowledge guilt and manifest a willingness to assume
responsibility for his actions, and
4) It allows victims to be shielded from a trial.
Plea bargaining provides district attorneys with greater flexibility in disposing of the
criminal caseload. District attorneys often operate with limited resources and plea
bargaining provides a quick, efficient method of handling a large caseload. For
example, in response to a surge in the criminal caseload, the district attorney may
increase the attractiveness of plea offers to more efficiently allocate prosecutorial

174

Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice 19501990,(1993) at 87, stating that the "standard defense of plea bargaining has always been that it is
necessary to handle the enormous volume of cases," and without it the "criminal courts would
"collapse'". Referred in Jeff Palmer , Abolishing Plea Bargaining: An End to the Same Old Song and
Dance, 26 Am. J. Crim. L. 505, FN 31
175
Warren E. Burger, The State of the Judiciary - 1970,56 A.B.A. J. 929, 931 (1970); see also
Santobello, 404 U.S. at 260("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 and court
facilities.").

P a g e | 68

resources. The district attorney also will be able to concentrate the prosecution's
efforts on the more serious and high profile cases that will be of greater concern to the
public. In addition, individual assistant district attorneys benefit from plea bargaining
by being able to quickly dispose of their cases, lighten their caseload and eliminate
the pressures involved in going to trial. Plea bargaining may also satisfy what some
scholars argue is "an irrepressible tendency toward cooperation among members of
the courtroom work group."176 It allows this "courtroom work group" to satisfy their
"mutual interest in avoiding conflict, reducing uncertainty and maintaining group
cohesion."177
Advocates also argue that plea bargaining allows the defendant to acknowledge guilt
and manifest a willingness to assume responsibility for his actions178. The American
Bar Association has said: the defendant by his plea has aided in ensuring the prompt
and certain application of correctional measures to him [and] that the concessions
will make possible alternative correctional measures which are better adapted to
achieving rehabilitative, protective, deterrent or other purposes of correctional
treatment, or will prevent undue harm to the defendant from the form of conviction179.
Apart from the aforesaid benefits, the fact also remain that Public defender offices
have the same problem as district attorneys in allocating scarce resources. The quick
disposition of cases allows public defenders to give more time and effort to the cases

176

Robert A. Weninger, The Abolition of Plea Bargaining: A Case Study of El Paso County, Texas,35
UCLA L. Rev 265 (1987). See also James Eisenstein & Herbert Jacob, Felony Justice: An
Organizational Analysis of Criminal Courts (1991); Milton Heumann, Plea Bargaining: The
Experience of Prosecutors, Judges and Defense Attorneys (1978) at 2-6; Peter F. Nardulli, The
Courtroom Elite: An Organizational Perspective on Criminal Justice (1978). Referred in Supra Note
83
177
Stephen J. Schulhofer, Is Plea Bargaining Inevitable?97 Harv. L. Rev. 1037 (1984)
178
See Supra Note83 at 762 (stating that plea bargaining encourages rehabilitation); Robert A. Carp
& Ronald Stidham, Judicial Process in America, 3rdedn.(1996), at 177 ("Some penologists
(professionals in the field of punishment and rehabilitation) argue that the first step toward
rehabilitation is for a criminal to admit guilt and to recognize his or her problem.").
179
ABA Project on Standards for Criminal justice, Pleas of Guilty 2, Standard 1.8(b) (approved draft,
1968), See also Supra Note83

P a g e | 69

they consider more trial-worthy180.

Attorneys who are not associated with a public

defender office but are representing indigent clients may also find it in their direct
financial interests to dispose of cases quickly181. In exchange for pleading guilty and
avoiding trial, defendants can receive sentence-related concessions from the
prosecutor or the dismissal of some of the charges in their indictment. Although they
lose the chance of an acquittal, defendants escape the maximum penalties provided by
statute while at the same time "avoiding the anxieties and uncertainties of a trial182."
The judiciary also gains from plea bargaining. The quick disposition of cases
through plea bargaining may conserve judicial resources. A large number of plea
bargains alleviate congested caseloads and reduce the expense of providing jury
trials183.
Finally, victims may also benefit from the plea bargaining process. Plea bargains
allow the victim to gain an immediate sense of closure along with the knowledge that
the defendant will not go unpunished for the crime. Additionally, the victim may wish
to avoid the rigors of testifying at trial and the possibility of the prosecution not
getting a conviction184.

180

National Legal Aid and Defender Assoc., Indigent Defense Systems Analysis (1978) (A study of 399
defender agencies revealed that as attorney caseloads increased, so did the guilty plea rates). See Albert
W. Alschuler, The Defense Attorney's Role in Plea Bargaining,84 Yale L.J. 1179 (1975) at 1206-1256.
181
Albert W. Alschuler, The Defense Attorney's Role in Plea Bargaining,84 Yale L.J. 1179 (1975), at
1182-83. Alschuler describes lawyers characterized by members of the local bar as "pleaders" or "copout lawyers" who would only rarely try cases and enter up to twenty-five guilty pleas a day. In 1975,
lawyers could earn from $ 200 to $ 500 in fees for routine guilty plea cases. Id. Although these lawyers
may give misleading advice in pressuring their clients to plead guilty and may acquire their clients
through unethical means, the number of these "cop-out lawyers" in large cities may range from ten to
fifty percent of defense attorneys.
182
Supra Note83
183
See Chief Justice Warren Burger, The State of the Judiciary (1970),56 A.B.A. J. 929, 931 (1970),
The consequences of what may seem on its face a small percentage change in the rate of guilty pleas
can be tremendous. A reduction from 90 percent to 80 percent in guilty pleas requires the assignment
of twice the judicial manpower and facilities... A reduction to 70 percent trebles this demand.
184
Carolyn E. Demarest, Plea Bargaining Can Often Protect the Victim, N.Y. Times, Apr. 15, 1994 at
A30. Referred in Supra Note83

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2.6 ARGUMENTS AGAINST PLEA BARGAINING

It is established fact that the Plea bargaining does provide some direct
benefits to the different players in the judicial system, but there are indirect cost
involve in it. The most consistent criticism of plea bargaining centers on the idea that
plea bargaining undermines the integrity of the criminal justice system185. The
opponents of plea bargaining opposed it on several count. Some question which
frequently came in mind as can plea bargaining be viewed as an injustice to all? Will
it be viewed as contrary to the ethics of the prosecutor and the defending attorney who
are aware of presenting to the judge a defendant who has accepted a bargained guilty
plea? Can we say it is injustice to innocent defendant who may be victimized because
of scare tactics or to the guilty defendant who does not benefit from a just, congruous,
and rehabilitative sentence? To the victim, who sees himself or herself treated as a
party that is secondary and not central to the legal debate? And to society at large,
who see that the offenders are dealing lightly even though they pleaded guilty.
The criticism still exists today, but the increased number of criminal cases
flooding the courts has forced critics to downplay this concern in light of the apparent
necessity of plea bargaining in handling the increased number of cases. Instead, critics
now emphasize the loss of the virtues inherent in public trials. Additionally, many
criticize plea bargaining based on the fact that criminals benefit from bargaining with
the state and avoid what may be seen as the appropriate sanction for their crime.
Finally, critics assert that the state's bargaining power is so great that it can coerce
innocent defendants to plead guilty186.

185

Supra Note123 ; Mark H. Haller, Urban Crime and Criminal Justice: The Chicago Case, 57 J.
Am. Hist. 619 (1970) (describing the President of the Chicago Crime Commission condemning plea
negotiation as "paltering to crime"); Justin Miller, The Compromise of Criminal Cases,1 S. Cal. L. Rev.
1 (1927).
186
Supra Note83

P a g e | 71

Opponents of plea bargaining, as discussed above, point out four central

oppositions to the practice of plea bargaining (1) the injustice done to the innocent;
(2) the injustice done to the victims; (3) the injustice done to the public (community);
and (4) the disregard for the principles of justice and the principles of sentencing. The
most serious concern with plea bargaining pertains to the possible coercion of
innocent defendants to plead guilty. While some express this criticism as the coercion
of guilty pleas based on the unequal bargaining power of the state, the Yale Law
Journal's 1992 symposium articles on plea bargaining revealed the true concern of this
criticism to be the increased risk of innocent defendants pleading guilty187. The
unilateral power of the state to determine the sanctions for different offenses can
provide a broad range of options for prosecutors to overcharge or threaten to pursue
the most severe penalty if the defendant goes to trial188. The harsh penalties associated
with conviction at trial provide the prosecutor with significant leverage to persuade
defendants to plead guilty. In some cases, this may result in innocent defendants being
faced with a choice where the cost of pleading guilty outweighs the risks of going to
trial189. Risk-averse defendants will accept the state's offer and plead guilty. The
incentives inherent in plea bargaining, therefore, create an increased risk of innocent
defendants receiving punishment190.
Thus there are strong arguments also against the plea bargaining. However, if
proper safeguards are placed in place some of the criticism can be addressed. The

187

Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969 (1992)
Lloyd L. Weinreb, Denial of Justice: Criminal Process in the United States,(1977) at 57-59
189
See North Carolina v. Alford, 400 U.S. 25 (1970) (upholding a guilty plea despite defendant's
protestations of innocence): I pleaded guilty on second degree murder because they said there is too
much evidence, but I ain't shot no man, but I take the fault for the other man. We never had an
argument in our life and I just pleaded guilty because they said if I didn't they would gas me for it, and
that is all.
190
Robert E. Scott & William J. Stuntz, A Reply: Imperfect Bargains, Imperfect Trials, and Innocent
Defendants,101 Yale L.J. 2011 (1992) ("A Reply").
188

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need is for a middle ground to balance between the argument in favour and against
plea bargaining.

2.7 CONCLUSION:
If plea bargaining is to be used, it should be used to further justice, to seek a
disposition that reflects the alleged crime and provides a proportionate charge, plea
negotiations should not be used to reduce case backlog. The focus of the debate
require to be how best manner we can use the plea bargaining and to place effective
safeguards so that it cannot be abused or misused, rather than whether plea bargaining
is good' or bad'. There is no doubt that plea bargaining is a system that may work
and produce justice in some cases, but overuse of the practice and the abuse of it have
created great concern among the public and criminal justice officials alike.
Humanizing the plea bargaining experience would without question provide great
psychological benefits for both the victim(s) and the defendant - just by knowing that
they were able to share their side of the story, and contribute at least some input to the
discussion of sentencing. There are those, on the other hand, who fear that victims
will be disruptive and troublesome to the process because of high emotions on their
part.
Proponents of plea bargaining stress that the myriad of protections afforded the
accused within the criminal justice system keep this risk negligible. Moreover, the
prosecutors and defense lawyers assessment of their chances of success at trial vectors
these risks of litigation. The main criticism which appears was about the improper
conviction but such risk of improper conviction that would already exist at trial.
Moreover, any increased risk of improper conviction is offset by the lighter sentences
imposed on these defendants.The problems associated with plea bargaining are not so
great that it will not be practiced and need to be abolished or used only in minimal
circumstances. The need is for proper safeguards mechanism and controlling method.

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CHAPTER : 3
PLEA BARGAINING IN INDIA: A NEW DIMENSION TO
CRIMINAL JUSTICE ADMINISTRATION VIS--VIS A
TOOL TO PROVIDE RESTORATIVE JUSTICE
3.1 INTRODUCTION:
The arrears of criminal cases awaiting trail are assuming menacing proportion.
Disposal of criminal trial takes considerable time with even commencement of trial
becoming a long drawn affair in many cases.191. It is also a matter of common
knowledge that majority of cases ultimately end in acquittal. Even The Supreme
Court in a series of cases lamented against such delay in trail192. To overcome this
delay in trial, Law Commission of India mooted the concept of plea-bargaining
pre-trial negotiations between the accused and the prosecution, wherein the accused
agrees to plead guilty for the charges leveled against him in exchange for certain
concessions which he gets as a quid pro quo, with the courts usually taking a lenient
view, particularly in cases of lesser gravity193. Such proposals of the law commission
were corroborated by other bodies in India194. Against this background the plea of
Nolo Contendere or plea bargaining got legal recognition in India. A Chapter195 was
incorporated in the Cr.P.C. with the hope that things will change for the better. The
move failed to make any significant change with the concept not being practiced in
most places unlike many other jurisdictions like United States, Scotland and other
European and non-EuropeanCourts196 where the plea plays a very important role.

191

Supra Note167 at 168

HussainaraKhatoon v. State of Bihar, AIR 1979 SC 1360
193
The Law Commission of India, Report on Concessional Treatment for Offenders who on their own
initiative choose to plead guilty without any Bargaining, Report No. 142 (1991);also see The Law
Commission of India, Report onThe Code of Criminal Procedure, 1973Report No. 154 (1996)
194
See Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home
Affairs (2003)
195
Chapter XXIA which was inserted by Criminal Law Amendment Act, 2005
196
Supra Note96
192

P a g e | 74

The advantages of plea bargaining which can be availed of is reflected from

the following statement of our former Chief Justice, for instance many minor
offences against property are still classified as non bailable, whereas it is evident that
classifying them as compoundable offences and relying on methods such as pleabargaining may be more effective and agreeable to address the injury caused by the
same. It is also obvious that the number of offences wherein arrests can be made
without warrants need to be streamlined in a systematic manner197.
The concept of plea bargaining as incorporated under Indian Law is different
from other systems followed in western world. It is in reality a sui generis system of
plea bargaining. However experience shows that our system has not lived up to our
expectation. Barring few places, we hardly find the use of plea bargaining in courts.
In Indian plea bargaining system the number of stake holders is much higher than
other places. The system is made non-applicable to a variety of offences. This makes
it necessary to see whether the deviation from the plea bargaining concept was in the
interest of CJS.
This Chapter looks into the recommendations of different bodies for plea
bargaining and the constitutionality of plea bargaining in India. Endeavour shall also
be made to have a closer look on the different provisions relating to plea bargaining in
India and justification of such deviation in respect of plea bargaining in India.

3.2 RECOMMENDATION OF DIFFERENT BODIES FOR USE OF

PLEA BARGAINING IN INDIA:
There are several bodies which continuously recommended in favour of plea
bargaining. It includes the Law Commission of India, Police Commission, Committee
197

K.G. Balakrishnan, Criminal justice system growing responsibility in light of contemporary

challenges, 10th D.P. Kohli Memorial Lecture, (New Delhi April 2, 2009), available at
http://cbi.gov.in/speech/dpkohli_cji_200904202.pdf

P a g e | 75

on Criminal Justice Reform and a few years back, the committee for Criminal Justice
Policy. These recommendationslaid to the enactment of Criminal Law Amendment
Act, 2005 which incorporated a new Chapter in Cr.P.C vide Chapter XXI on Plea
Bargaining. Now it is important to see some of the recommendation.

3.2.1 LAW COMMISSION RECOMMENDATION:

The Law Commission observed that when an accused feels contrite and wants
to make amends or is honest and candid to plead guilty in the hope that the
community will enable him to pay the fine for the crime with a degree of compassion,
then he deserves to be treated differently from the accused who seeks trial involving
considerable time, cost and money and cost of the community198.

The Law

Commission in its 142nd report stated that it is desirable to infuse life into reformative
provisions embodied in Sec.360 Cr.P.C. and the Probation of Offenders Act which
according to the Law Commission remain unutilized. Law Commission noted that
plea-bargaining ensures speedy trial with benefits such as end of uncertainty, saving
of cost of litigation, relieving of the anxiety that a prolonged trial might involve and
avoiding legal expenses. The Law Commission also noted that it would enable the
accused to start a fresh life after undergoing a lesser sentence. Law Commission noted
that about 75% of total convictions are the result of plea bargaining in USA and they
contrasted it with 75% of the acquittals in India. Law Commission observed that pleabargaining is a viable alternative to be explored to deal with huge arrears of criminal
cases. The same might involve pre-trail negotiations, and whether it is charge
bargaining or sentence bargaining it results in a reduced sentence and early
disposal.

198

The Law Commission of India, Report No. 142

P a g e | 76

Law Commission was of the view that plea-bargaining can be made one of the
components of the administration of the criminal justice, provided it is properly
administered, and could be introduced in cases where the imprisonment is less.
According to Law Commission offences where punishment is lesser than seven years
and / or fine may be brought into schemes of things where plea bargaining should be
adhered to. However, LCI has not suggested for application of plea bargaining in all
cases unlike in the United States, where plea bargaining is available for all the crimes
and offences. According to Commission, Plea-bargaining in India should not be
extended to socio economic offences or for offences against women and children.
Law Commission recommended that when the accused makes a plea of
guilty,the court after hearing the public prosecutor or the de facto complainant can
give the accused a suspended sentence while releasing him on probation or the court
may order him to pay compensation to the victim and impose a sentence taking into
account the plea bargaining or convict him for an offence of lesser gravity. The Law
Commission

after

thorough

examination

of

the

subject

of

plea-

bargaining/compounding/settlement without trial has in its 142nd and 154th reports

made detailed recommendations to promote settlement of criminal cases without trial.
The 142nd Law Commission Report while suggesting for incorporation of a
Chapter in Cr.P.C in respect of plea bargaining put forward

the following

justification which is worth referring:199

(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 compassion and consideration should be treated on par with an

199

The 142nd Report, Law Commission of India

P a g e | 77

accused who claims to be tried at considerable time- cost and money-cost to

the community.
(2) It is desirable to infuse life in the reformative provisions embodied in section
360 of the Criminal procedure Code and in the Probation of Offenders Act
which remain practically unutililized as of now.
(3) It will help the accused who have to remain as under-trial prisoners awaiting
the trial as also other accused on whom the sword of Damocles of an
impending trial remains hanging for years to obtain speedy trial with attendant
benefits such as(a) End of uncertainty.
(b) Saving it litigation-cost.
(c) Saving in anxiety-cost.
(d) Being able to know his or her fate and to start of fresh life without fear of
having to undergo a possible prison sentence at a future date disrupting his
life or career.
(e) Saving avoidable visits to lawyers office and to Court on every date or
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.
(6) In the USA nearly 75% to 90% of the criminal cases if not more, result in
acquittals.
The commission further suggested for exclusion of certain category of offences
from the purview of the scheme of plea bargaining, at least in the initial period which
the committee referred to as first phase of the scheme, namely;

P a g e | 78

(a) Second timer i.e. persons who have been convicted for an offence under the
same provision at any time in the past.
(b) Persons who are charged with a non-technical socio economic offence.
(c) Person who are charged with offences against women and children.
Law Commission in its 154th Reports again recommended that the concept of Plea
Bargaining may be made applicable as an experimental measure, to offences which
are liable for punishment with imprisonment of less than seven years and or fine
including the offences covered by Section 320200 of the Cr.P.C. Plea Bargaining can
also be assessed keeping in mind the nature and gravity of offences and the quantum
of punishment.
Commission further suggested that such plea bargaining can be availed at any
stage after charge sheet is filled. It recommended that in cases where the accused is
entitled to probation under the statute such benefit may be given to the accused. The
commission further recommended that if the offence for which guilty plea is made
provides a minimum sentence, the Court may impose of such minimum sentence.
Likewise 142nd Report, the Law Commission recommended that plea bargaining
should not be available to habitual offenders, those who are accused of socio
economic offences of grave nature as well as offences against women and children.
The Law Commission further recommended for incorporation of a new chapter in
Code of Criminal Procedure being Chapter XXIA on Plea Bargaining. Interestingly,
the 154th Report recommended for categories of plea bargaining namely sentence
bargaining and charge bargaining. The relevant recommendations are as follows:
The Court shall on such plea of guilty being taken, explain to the accused that
it may record conviction for such offence and it may after hearing the accused
proceed to hear the Public Prosecutor or the aggrieved person as the case may be:
200

Compoundable Offence

P a g e | 79

(i) Imposed a suspended sentence and release him on probation.

(ii) Order him to pay compensation to the aggrieved person, or
(iii)Impose a sentence, which commensurate with the plea bargaining. Or
(iv) Convict him for offence of lesser gravity than that for which the accused has
been charged if permissible in the facts and circumstances of the case.
The observation as to conviction of the accused for offence of lesser gravity
indicates that the Law Commission was not against the idea of charge bargaining.
However, the amended law has no provision for charge bargaining in India.
The Law Commission recently in another report201 advised that the new
system of plea bargaining incorporated in the Criminal Procedure Code shall be
available to the under-trial prisoners and the court and the prosecuting agency and the
lawyers should make them aware of the benefits of the benevolent provision
incorporated in our statute. It further observed that the challenges before the criminal
justice system was to balance the rights of the accused while dispensing speedy and
effective justice.

3.2.2. Committee on Reforms of Criminal Justice System

The Malimath Committee202 observed that Plea-bargaining which has been
implemented with a great deal of success in USA, has to be considered for India.
According to the Committee the United States experiment shows that plea-bargaining
helps to dispose of accumulated cases and expedites delivery of Criminal Justice.
Committee referred to the 154th and 142nd Law Commission reports which also
advocated the same. Taking into account the advantages of plea-bargaining, the
201

Law Commission of India, Fast Track Magisterial Courts for DishonouredCheque Cases, Report
No. 213
202
Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs
(2003)

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recommendations of the Law Commission contained in the 142nd report and the
154th report may be incorporated so that a large number of cases can be resolved and
early disposals can be achieved. By no stretch of imagination can the taint
oflegalizing a crime be attached to it. It should not be forgotten that the Probation of
Offenders Act already gives the court the power to pass a probation order. Further the
power of executive pardon, power of remission of sentences has already an element of
not condoning the crime but lessening the rigor or length of imprisonment. In
imposing a sentence for a lesser offence or a lesser period the community interest is
served and it will facilitate an earlier resolution of a criminal case, thus reducing the
burden of the court. Perhaps it would even reduce the number of acquittals for after
prolonged trial it is quite possible that the case may end in acquittal.
The committee argued that provision for compounding of offences being
already there in the statute even under the oldCr.P.C. there is no reason for plea
bargaining to be not introduced inthe Criminal JusticeSystem.Therein the accused is
not let off but is sentenced for a lesser sentence with the object of securing conviction,
reducing the period of trial and reduced pendency all achieved in one go. As the
Committee was substantially in agreement with the views and recommendations of
the Law Commission in the said reports the committee felt it unnecessary to examine
further the issue of plea bargaining in detail.

3.2.3
RECOMMENDATION
OF
FORCRIMINAL JUSTICE POLICY:

THE

COMMITTEE

N. R. MadhavaMenon Committee203 was formed for suggesting Criminal

Justice Policy for India. One of the recommendations of the committee was for

203

Committee on DRAFT NATIONAL POLICY ON CRIMINAL JUSTICE, Ministry of Home Affairs

Government of India, JULY, 2007

P a g e | 81

enactment of Correctional Offences Code (COC). It suggested that a second group of

offences which are more serious than the social welfare offences and which may need
police intervention may be brought under legislation to be called Correctional
Offences Code (COC). This would include offences punishable up to three years of
imprisonment and/or fine. It further suggested that all such cases may be open to
settlement through LokAdalats, Plea Bargaining and other alternative methods
avoiding trials. On the issue of Criminal Justice and Civil Society, the Committee
observed that civil society has an important role to play in crime prevention and law
enforcement. Criminal laws increasingly adopt provisions accommodating the
peoples participation in the administration of justice. Apart from prevention of
crimes and assistance in investigation and trial, the amended criminal procedure code
shall encourages settlement of criminal cases through compounding and plea
bargaining. On the issue of criminal justice reform the Committee suggested that
settlement without trial (compounding and plea bargaining) should assume
mainstream status in criminal proceedings and laws should be developed accordingly.

3. 3 CONSTITUTIONAL VALIDITY OF PLEA BARGAINING:

The Supreme Court of India had examined the concept of plea bargaining and
its constitutionality much before the enactment of Criminal Law Amendment Act,
2005 which incorporated the provisions relating to plea bargaining204. In both the
cases court did not approve the procedure of plea bargaining on the basis of informal
inducement. In Kasambhais case the court squarely observed that conviction based
on plea of guilty entered by the accused as a result of plea bargaining could not be
sustained and that it was opposed to public policy to convict the accused by inducing

204

MurlidharMeghrajLoya v. State of Maharastra AIR 1976 SC 1929; Kasambhai v. State of Gujarat

AIR 1980 SC 854

P a g e | 82

him to confess to a plea of guilty on allurement being held out to him that if he enter
a plea of guilt he will be let off lightly.
The Supreme Court has also time and again blasted the concept of plea bargaining
saying that negotiation in criminal cases is not permissible. A decade back in State of
Uttar Pradesh V. Chandrika205, the Apex Court held that it is settled law that court
cannot dispose of the criminal caseson the basis of plea bargaining. The court has to
decide it on merits. If the accused confesses his guilt, appropriate sentence must be
implemented. The court further held in the same case 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 on the ground that as he is pleading guilty the sentence
be reduced. However all these judgment were passed when there was no legislative
mechanismor procedure in place to check its misuse. Similar kind of constitutional
issues were raised in USA regarding its practice making it is essential to have a look
on how the courts at other jurisdictions reacted to the challenge of constitutionality of
plea bargaining.
In United States of America, which had taken lead in plea bargaining, the
judiciary did not address the constitutionality of plea bargaininguntil after its
establishment as a part of the criminal justice system206. Initially, the Court questioned
the validity of the plea bargaining process as burdening the defendant's right to a jury
trial. In United States v. Jackson, the Court invalidated a statute that allowed the
imposition of the death penalty only after a jury trial207. The majority opinion declared
that any provisions the purposes or effects of which are "to chill the assertion of
constitutional rights by penalizing those who choose to exercise them ... [are] patently
205

2000 Cr.L.J. 384(386)

Douglas D. Guidorizzi, SHOULD WE REALLY "BAN" PLEA BARGAINING?: THE CORE
CONCERNS OF PLEA BARGAINING CRITICS, Spring (1998) 47 Emory L.J. at 753
207
390 U.S. 570 (1968)
206

P a g e | 83

unconstitutional.208"

In writing for the majority, Justice Stewart noted that the

problem with the statute was not that it coerced guilty pleas and jury waivers, but that
"it needlessly encouraged them.209"
However the situation changed soon after. Just two years later, the Court
limited the holding of Jackson in Brady v. United States210.

In Brady, the Court

pointed out the positive aspects of plea bargaining, emphasizing that the practice
benefits both sides in the adversary system. Additionally, the Court justified the
practice of plea bargaining by noting that a guilty plea suggests some "hope for
success in rehabilitation211." Justice white who delivered the opinion of the court,
observed, the issue we deal with is inherent in the criminal law and its administration
because guilty pleas are not constitutionally forbidden, because the criminal law
characteristically extends to judge or jury a range of choices in setting the sentence, in
individual cases, and because both the State and defendant often find it advantageous
to preclude the possibility of the maximum penalty authorized by the law.212The
Supreme Court further observed that pleas of guilty made by some people because
their reach of Statute law is alone sufficient reason for surrendering themselves and
accepting punishment, by others because apprehension and charge, both threatening
acts by the Government, for them into admitting their guilt, and by still others because
post indictment accumulations of evidence may convince the defendant that trail is
not worth the agony and expense to the defendant and his family are all valid, and
are not improperly compelled, in spite of the states responsibility for some of the
factors motivating the pleas.213 U.S. Supreme Court also found that the award of

208

390 U.S. 570 (1968)

390 U.S. 570 (1968)
210
397 U.S. 742 (1970)
211
397 U.S. 742 (1970)
212
397 U.S. 742 (1970)
213
397 U.S. 742 (1970)
209

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lesser punishment pursuant to plea bargain is not invalid. It was observed that,
although the fact that the prevalence of guilty pleas as the basis of convictions is
explainable because of the mutuality of advantage to the defendant and the State does
not necessarily validate such pleas nor the system which produces them, nevertheless
it is not unconstitutional for the State to extend the benefit of a lesser penalty than
after trail to a defendant who in turn extends a substantial benefit to the State and who
demonstrate by his crime and to enter the correctional system in a frame of mind that
afford hope for success in rehabilitation over shorter period of time than might
otherwise be necessary214. The Court upheld a guilty plea where demanding a jury
trial could have resulted in a death sentence for the defendant. Noting that not every
plea made for fear of the death penalty was invalid, the Court stated that Jackson
merely required that guilty pleas be intelligent and voluntary215. In same year, in
North Carolina v. Alford, the Court abandoned the rehabilitation rationale for plea
bargaining216. In upholding the guilty plea the Alford Court emphasized the facts that
the defendant had made an intelligent and voluntary choice and that there was strong
evidence of guilt in the record217.
In the following year validity of plea bargaining was also uphold by the
United States Supreme Court in Santobello v. New York218. Chief Justice Burger,
who delivered the opinion of the court, observed that, disposition of charges after
plea discussions is not only an essential part of process but a highly desirable part for
many reasons. It leads to prompt and largely final disposition of most criminal cases;
it avoids much of the corrosive impact of enforced idleness during pre-trail
214

397 U.S. 742 (1970)

397 U.S. 742 (1970) at 747
216
400 U.S. 25, 27-29& note 2 (1970) (upholding a guilty plea entered to avoid a possible death
sentence despite the fact that the defendant clearly asserted his innocence both before and after the
plea).
217
400 U.S. 25 at 37-38
218
Santobello, 404 U.S. at 260-61.
215

P a g e | 85

confinement for those who are denied release pending trail; it protects the public from
those accused persons who are prove to continue criminal conduct even while on pretrail release; and by shortening the time between charge and disposition, it enhances
whatever may be the rehabilitative prospects of the guilty when they are ultimately
imprisoned219. It emphasized the state's interest in the quick and efficient disposition
of criminal cases, specifically stating that plea bargaining costs less and is faster than
full-scale jury trials. In fact, primarily for the same efficiency reasons, the Court
added that "as long as it is properly administered, plea bargaining is to be
encouraged.220"
Repelling another attack on the constitutionality of plea bargaining, the Supreme
Court addressed a claim of prosecutorial vindictiveness in Bordenkircher v. Hayes221.
The Court rejected a due process violation claim and found a presumption of equal
bargaining power between prosecutors and defendants222. In discussing this additional
justification, the Court stressed the advantage to both sides in the process, asserting
that both sides "arguably possess relatively equal bargaining power223." Although it
noted that "there are undoubtedly constitutional limits" on a prosecutor's discretion in
plea bargaining, the Court reaffirmed the prosecutor's broad discretion in presenting a
defendant with "the unpleasant alternatives of forgoing trial or facing charges on
which he was plainly subject to prosecution224." The Court refined this reasoning later
in United States v. Goodwin225. In this case, the defendant was indicted on additional
charges after plea negotiations had broken down and he requested a jury trial. The
Court held that a prosecutor may file additional charges if an initial expectation that a
219

Santobello, 404 U.S. at 260-61.

Santobello, 404 U.S. at 260.
221
Bordenkircher, 434 U.S. at 358-62 (prosecutor threatened to re-indict defendant on more serious
charges if he did not accept the plea offer).
222
Bordenkircher, 434 U.S. at 358-62
223
Bordenkircher, 434 U.S. at 362. (quoting Parker v. North Carolina, 397 U.S. 790, 809 (1970))
224
Bordenkircher, 434 U.S. at 365
225
457 U.S. 368 (1982).
220

P a g e | 86

defendant would plead guilty to lesser charges proved unfounded226. The Court
refused to adopt a presumption of vindictiveness, thereby reaffirming the legitimacy
of the plea bargaining process.
In a series of subsequent decisions the court has approved the constitutionality
of the plea bargaining227. The challenge at to constitutionality has gone through same
kind of phase in USA from the unconstitutional to constitutional and beyond. In India
also, as the legislation with certain safeguards are in place, we can now assume that
the judiciary will no longer consider plea bargaining as unconstitutional within Indian
Criminal Justice System228.

3.4 LAWS RELATING TO PLEA BARGAINING IN INDIA

A new chapter XXIA on Plea Bargaining has been introduced in the
Criminal Procedure Code by Criminal Law (Amendment) Act, 2005229. The
incorporation of plea bargaining principle has definitely given a new dimension to
Indian Criminal Justice System. In India a draft bill was introduced for the first time
in 2003. 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. In this background the bill saw plea bargaining as an alternative method to
deal with the huge arrears of criminal cases. The bill attracted enormous public

226

457 U.S. 368 (1982) at 379-80

Hutto v. Ross, 50L.Ed.2d. 876; Chaffin v. Stynchocombe, 412 US 17 (1973); Blackledge v. Allison,
431 US 63 (1997); Weatherford v. Bursey, 429 US 545 (1977); Newton v. Rumery, 480 US 386 etc.
228
In fact recently, Former Chief Justice of India, Justice K. G. Balakrishnan while delivering
memorial lecture encouraged for using plea bargaining. SeeK.G. Balakrishnan, Criminal justice
system growing responsibility in light of contemporary challenges, 10th D.P. Kohli Memorial
Lecture, (New Delhi April 2, 2009), available at http://cbi.gov.in/speech/dpkohli_cji_200904202.pdf
229
The Criminal Law Ammendment Act, 2005 came into force from 5th July, 2006 vide Notification
No. S.O. 990 (E), dated 3-07-2006.
227

P a g e | 87

debate. However, finally it got enforced from 5th July, 2006. The salient features of
the amendment as highlighted by the ministry are as follows230:-

1)

The Plea Bargaining is applicable only in respect of those offences for which
punishment of imprisonment is up to a period of 7 years

2)

It 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
14 years

3)

The application for Plea Bargaining should be filed by the accused voluntarily

4)

A person accused of an offence may file an application for Plea Bargaining in

the court in which such offence is pending for trial.

5)

The complainant and the accused are given time to work out a mutually
satisfactory disposition of the case, which may include giving the
victimcompensation and other expenses incurred during 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
provided or extendable, as the case may be for such offence.

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

230

Press Release of Department of Home Affair, Government of India dated 5th July, 2006 available at
http://pib.nic.in/release/release.asp?relid=18723&kwd=Plea+Bargaining, last visited on 01-08-2010

P a g e | 88

Recently THE GRAM NYAYALAYAS ACT, 2008231 was enacted to empower

the tribunal to accept applications for plea bargaining. It provides that a person
accused of an offence may file an application for plea bargaining in Gram Nyayalaya
in which such offence is pending trial and the Gram Nyayalaya shall dispose of the
case in accordance with the provisions of Chapter XXIA of the Code of Criminal
Procedure, 1973.
The Criminal Law Amendment Act, 2005 added 12 Sections in Chapter XXI in
respect of Plea Bargaining. Section 265A232 incorporated principles relating to
applicability of the Act in respect of particular class of offences as well as the stages
of proceeding. The Section lays down the jurisdiction providing that the Chapter shall
apply to cases where Charge Sheet has been submitted by the police U/S 173 Cr.P.C.
or Court have taken cognizance on complaint and process have been issued U/S 204
Cr.P.C. It further provides that application can only be made in respects of offences
other than those punishable with death, life imprisonment or imprisonment for more
than 7 years. The process shall also be inapplicable in respect of socio economic
offences and offences against women and children below 14 years. Section 265B
provides the procedure for filling application for plea bargaining. It provides that a
brief description of the case shall be stated along with accompanied affidavit stating
231

Section 20. of the Act

265A. Application of the Chapter.-(1) This Chapter shall apply in respect of an accused against
whom(a) 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 or of imprisonment for a term exceeding seven
years has been provided under the law for the time being in force; or
(b) 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.
(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the
offences under the law for the time being in force which shall be the offences affecting the socioeconomic condition of the country.

232

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the voluntariness of such plea233. Clause (3) obliges the court to issue notice after
receiving the application while clause (4) mandate the court to hear accused in camera
to ascertain voluntariness of application234. Once the court is satisfied with the
voluntariness of the application, the court can ask the stake holder for settlement by
coming to a mutually satisfactory disposition taking into account the need of victim to
get compensation etc. Section 265C provides guidelines for achieving mutually
satisfactory disposition. It mandates for involvement of all stake holder,for example in
a case initiated on police report, the Public Prosecutor, Investigating Officer, Victim
and the accused are to reach at a mutually satisfactory disposition and in a case
initiated on complaint all the aforesaid stake holder excluding police shall decide on a
mutually satisfactory disposition235.

233

265B. Application for plea bargaining.-(1) A person accused of an offence may file an application
for plea bargaining in the Court in which such offence is pending for trial.
(2) 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.
234
(3) 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.
(4) 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(a) 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;
(b) 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).
235
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:(a) 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 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:

P a g e | 90

Once the mutually satisfactory disposition is workedout the court has to

prepare a report which shall be signed by all parties participating in the proceeding
and if it is not worked out then the court shall proceed to hear the matter from pre
application stage236. Section 265E provides the guidelines for disposal of cases where
mutually satisfactory disposition is worked out. It provides the following ways to
dispose of the case, namely:(a) the Court shall award compensation to the victim in accordance with the
disposition 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
punishment on the accused;
(b) 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;

Provided further that the accused may, if he so desires, participate in such meeting with his
pleader, if any, engaged in the case;
(b) 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.
236
265D. Report of the mutually satisfactory disposition to be submitted before the Court.-Where in a
meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall
prepare a report of such disposition which shall be signed by the presiding officer of the Court and all
other persons who participated in the meeting and if no such disposition has been worked out, the
Court shall record such observation and proceed further in accordance with the provisions of this Code
from the stage the application under sub-section (1) of section 265B has been filed in such case.

P a g e | 91

(c) after hearing the parties under clause (b), if the Court finds that minimum
punishment has been provided under the law for the offence committed by the
accused, it may sentence the accused to half of such minimum punishment;
(d) 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.
Section 265F obliges the court to pronounce the judgment in open court while
265G declares that all such judgment shall be binding and no appeal shall lie against
such judgment. However, it further clarifies that such limitation on appeal shall not
bar judicial review under the constitutional provisions237. Sec 265-H238 vests the court
with all power which it exercises in normal court proceeding while Section 265-I239
provides that the undergone imprisonment of the accused shall be set off. Sec 265J240
incorporates the saving clause while Section 265K241 makes it clear that the statement
of the accused can be used for any other purpose other than plea bargaining under

237

Section 265 F. Judgment of the Court.-The Court shall deliver its judgment in terms of section 265E
in the open Court and the same shall be signed by the presiding officer of the Court.
265G. Finality of the judgment.-The judgment delivered by the Court under section 265G shall be final
and no appeal (except the special leave petition under article 136 and writ petition under articles 226
and 227 of the Constitution) shall lie in any Court against such judgment.
238
265H. Power of the Court in plea bargaining.-A Court shall have, for the purposes of discharging its
functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters
relating to the disposal of a case in such Court under this Code.
239
265-I. Period of detention undergone by the accused to be set off against the sentence of
imprisonment.-The provisions of section 428 shall apply, for setting off the period of detention
undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the
same manner as they apply in respect of the imprisonment under other provisions of this Code.
240
265J. Savings.-The provisions of this Chapter shall have effect notwithstanding anything
inconsistent therewith contained in any other provisions of this Code and nothing in such other
provisions shall be construed to constrain the meaning of any provision of this Chapter.
Explanation.-For the purposes of this Chapter, the expression "Public Prosecutor" has the meaning
assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under
section 25.
241
265K. Statements of accused not to be used.-Notwithstanding anything contained in any law for the
time being in force, the statements or facts stated by an accused in an application for plea bargaining
filed under section 265B shall not be used for any other purpose except for the purpose of this Chapter.

P a g e | 92

Chapter XXI. Section 265 L242 made the process of plea bargaining inapplicable to
juvenile or child under Juvenile Justice (Care & Protection) Act, 2000.
While on the one hand Criminal Procedure Code has laid down an elaborate
procedure for plea bargaining on the other hand it has restricted its applicability in
respect of those offences for which punishment of 7 years and above has been
provided and also for those offences which are committed against a woman or a child
below the age of 14 years. The division bench of the Gujarat High Court243 observed
in respect of requirement for reform in administration of criminal justice that the very
object of law is to provide easy, cheap and expeditious justice by resolution of
disputes, including the trial of criminal cases and considering the present realistic
profile of the pendency and delay in disposal in the administration of law and justice,
fundamental reforms are inevitable. Nothing should be static. So it can be said that
plea bargaining is a redressal measure which shall add a new dimension in the realm
of judicial reforms.
Plea bargaining as introduced in India shows significant deviation from the
established practice of plea bargaining adopted the world over. It is important to note
of all those shifts which make our plea bargaining a sui generis system and to
critically evaluate them.
First, plea bargaining under Chapter XXI does not taken into account charge
bargaining. Normally in USA and other places, as we have seen in last chapter, plea
bargaining can be either for sentence bargaining or for charge bargaining. No
significant justification has been given in respect of omission of charge bargaining. In

242

265L. Non-application of the Chapter.-Nothing in this Chapter shall apply to any juvenile or child as
defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.".
243
State of Gujarat V. NatwarHarchanjiThakorm, (2005) Cr. L.J. 2957

P a g e | 93

fact the law commission in its 154th report which is the basis for incorporation of the
new chapter recommended for introduction of charge bargaining244. Once we agreed
over introduction of plea bargaining to give concessional treatment to the accused
who pleads guilty, there was nothing wrong in incorporating the principle of charge
bargaining along with sentence bargaining.
Secondly, the plea bargaining is available only in cases where punishment is
up to seven years. It is also inapplicable to socio-economic offences and offences
against women and children. In USA and other places no such restriction is imposed.
In present day scenario, where more than 90% of cases dealing with serious offence
result in acquittal, allowing plea bargaining in all these cases will not make the
situation worse, rather it will help in securing conviction. The need of the hour is
surety of conviction and not severity of punishment. General masses are losing faith
in the system. In such circumstances conviction with lesser punishment in place of
acquittal will help in bringing back the faith in the system. Moreover plea bargaining
in India tries to give victims a more effective role by allowing mutually satisfactory
disposition to redress their grievance over being traditionally neglected within the
criminal justice system. Now victims of several offences can get compensation or
reparation from the accused but women victim and child victim will be deprived of it
because our law has excluded them from the purview of plea bargaining.
Thirdly, our law has expanded the concept of stake holders in respect of plea
bargaining. In India almost everyone associated with the offence and its prosecutions
is responsible for arriving at a mutually satisfactory disposition. In the process of

244

The Law Commission in its 154th Report recommended that the accused who is applying for plea
bargaining, the court may Convict him for offence of lesser gravity than that for which the accused has
been charged if permissible in the facts and circumstances of the case. Thus the Law Commission kept
the option open for charge bargaining.

P a g e | 94

reaching a mutually satisfactory disposition victims, accused, Defense lawyer,

prosecutor and investigating officer all have to take part with the Ld. Judge playing a
very important role in the process. All the aforesaid participants have diverse interest.
The prosecutors interest lies in securing justice by convicting the culprit while
defense lawyers interest lies in securing acquittal or at least getting minimum
punishment for his client. On the other hand victim may be interested in conviction
with higher punishment along with reparation while investigating officer may be
looking towards conviction. At the same time the accused will be expecting maximum
benefit by pleading guilty. Further the judge will be intending to decide the matter
judiciously. We know that if in any process of negotiation the number of stakeholders
is more, it will be difficult to negotiate as their interest will be diverse. So in such
situations when a large number of people having diverse interests negotiate, chances
of arriving at a mutually satisfactory disposition invariably diminish. This is why
plea bargaining in India fails in majority of cases. In USA and other places it is the
prosecutor and the accused/ accused lawyer who bargain, making the chances of
settlement much higher. The increase in number of stake holders was intended to
provide protection but the present scenario shows that the concern was ill placed. That
function can be successfully carried out by our judges who are entrusted with the
responsibility of giving it ultimate approval.
Fourthly, the law is silent about the outcome where one out of the six stake
holder refuses to agree. Say for instance everyone is agreeable to the process but the
victim wants higher compensation and accused does not has the financial capability to
pay such compensation. Can the court proceed in such cases even if the victim refuses
to agree to the terms? Is the negotiation in such cases a mutually satisfactory
disposition? As per wording of the legislation, such settlement will not be performed.

P a g e | 95

Thus the chances of settlement again become minimal. The 2008 Cr.P.C has
incorporated the principle of compensation from state exchequer. Cant we use such a
principle to satisfy the interest of victim instead of allowing the system to fail under
certain circumstances?
Fifthly, Chapter XXI provides that if the parties concerned cannot reach a
mutually satisfactory disposition the court shall proceed from the stage of preapplication. It further provides that the application of the accused shall not be used for
any purpose other than plea bargaining. However, after failure of negotiation the same
judge will conduct the trail. Under our judicial system the Judges are given wide
discretion in punishment. Moreover, there is no uniformity among judges in
appreciating evidence. Once a judge is acquainted with the fact that the accused has
committed the offence, there are chances that the judge will carry the impression in
his mind which will ultimately have an impact upon the appreciation process.
Theoretically we can argue that the judge shall be neutral and impartial but in practice
the knowledge of the fact that accused has committed offence and had in pleaded
guilty will always have an effect on the mind of judge. Accordingly, either some other
judge should participate in the proceeding with strict direction of non-discloser of
proceeding or alternatively, the case should be transferred to other judge for trail once
the parties fail to reach a mutually satisfactory disposition.

3.4.1 PLEA BARGAINING IN INDIA VIS--VIS RESTORATIVE

JUSTICE:
The sui generis system of plea bargaining as incorporated within Criminal
Procedure Code in India is an attempt to provide alternative means of dispute
resolution in criminal cases. It is basically a procedure, incorporated in Chapter XXIA of the Criminal Procedure Code, for a mutually satisfactory disposition of a

P a g e | 96

criminal case. The issue which comes up is whether we can consider such dispute
resolution mechanism as a component of restorative justice processes. In plea bargain
proceedings, the Investigating Officer, the Public Prosecutor, the victim of a crime,
the complainant and the person accused of an offence join hands to voluntarily settle a
pending criminal case to each others mutual satisfaction. The process is completely
voluntary. If the plea bargain succeeds, the criminal case is disposed of in terms of the
agreed settlement. If the plea bargain does not succeed, the criminal case proceeds
from the stage when the plea bargain application was filed. There are several benefit
to plea bargaining. The process is 100% voluntary, the applicant is likely to get a
much reduced punishment and there will be quick disposal of the pending criminal
case. It satisfies the needs of the victims as victims play important role unlike our
traditional criminal justice system. If settlement arises the plea bargain will results in
an amicable and mutually satisfactory disposition of the pending criminal case245. If
an admonition or a supervisory order is passed under the Probation of Offenders Act,
1958, then Section 12 of the said Act provides that it shall not cast any stigma on the
offender. This again helps the accused and saves him from stigma. The application for
a plea bargain can be filed : (a) by any adult accused of an offence that is punishable
with imprisonment of less than seven (7) years, (b) the applicant should not have
been earlier convicted of a similar offence, (c) the offence shall not against women,
child and socio-economic offence.

245

Application process and content of application provided in Section 265B(2) of the Criminal
Procedure Code. It requires only a brief description of the case, including the offence to which the case
relates. Application should disclose the name of the applicant and enough information to identify the
case in which the application is filed. The application should be as simple as possible, but it should
disclose: (a) The case number (if any), (b) the FIR number and date, (c) the police station and district
concerned, (d) the statute and its sections alleged to have been violated, (e) The next date of hearing.
The application need be accompanied by an affidavit stating: (a) the application has been voluntarily
filed, (b) the applicant has understood the contents of the application, (c) the applicant is aware of the
nature and extent of a punishment provided by law in his case, (d) the applicant has not been previously
convicted in a case in which he has been charged with the similar offence.

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The court which receives the Plea Bargain application will consider the
application and issue notice to the Investigating Officer of the case, the Public
Prosecutor, the victim of the offence (if any) and the complainant. Whenever
necessary, if it is found that the applicant/accused is not represented by a lawyer, he
will be provided the services of a free legal aid lawyer. Preferably, before meeting
with judge, all the parties concerned in the Plea Bargain should try to arrive at a
settlement in consultation with the Public Prosecutor. If it is not possible to reach a
settlement in advance, the Judge will assist the parties in arriving at an amicable
settlement. If a Plea Bargain is being arrived at: (a) the Judge will have an in camera
or Private discussion with the applicant in the presence of his lawyer to determine
Whether the Plea Bargain is voluntary, Whether the Plea Bargain is acceptable to the
applicant, Whether the applicant has understood the meaning and effect of the Plea
Bargain. Judge will also look into whether the needs of the victims are taken care of,
did the victim consent to such agreement. If the Judge is satisfied that the Plea
Bargain meets all the legal requirements, he will accept it and pass an order disposing
of the case in terms of the settlement. All the parties to the Plea Bargain are required
to sign the order recording the settlement. Most importantly, the entire Plea Bargain
proceedings are absolutely confidential. If the Plea Bargain fails, then no party can
use anything said in the Plea Bargain proceedings in the pending criminal case. Even
the trial Judge will not ask any question about the Plea Bargain proceedings.
According to ECOSOC246 definition restorative justice is a process whereby
all the parties with a stake in a particular offence come together to resolve the issue of
dealing with the aftermath of the offence and its implication for the future. Now if we
analyze the process of plea bargaining in India, the victim plays an important role in

246

United Nation ECOSOC experts committee adopts restorative justice basic principle in 2002

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the process. The western concept of plea bargaining leaves the victim from the
process. In USA the bargaining takes place normally between prosecutors and the
accused. The sui generis concept of plea bargaining in India is a mixture of Plea
Bargaining and victim-offender mediation as followed in USA. This mixture of two
processes in Plea Bargaining in India without doubt makes the system compatible
with restorative justice model. The stake holders come to a mutually satisfactory
disposition by discussion. This discussion should be victim centric, recognizing the
harm suffered by the victim and the way it can be rectified. The need of the victims
has to be taken into account while coming to a mutually satisfactory disposition. The
involvement of such a large number of stake holders in the process gives
circumstantial guarantee of fulfillment of the needs of all stake holders as well society
at large. While one may argue that plea bargaining as prevalent in developed world
may not take into account aspiration of the victims and hence is not a restorative
justice but that is not the case of Indianised plea bargaining. Moreover, pleading
guilty and negotiating with the victim and others helps the accused to realize the
suffering of the victim which in turn helps him to change his behavior in future. All
such characteristic are the elements of restorative justice. Accordingly, there is no iota
of doubt that the process of plea bargaining in India is one of the restorative processes
and will help in achieving restorative justice.

3.6 PLEA BARGINING AS PRACTICED IN INDIA

Though the concept of plea bargaining become part of our criminal justice
system from mid of 2006 but in reality it has been adopted in very few places.247.
247

In West Bengal only three cases of plea bargaining appear to the knowledge of researcher.
Researcher has interviewed Director, Directorate of Prosecution, West Bengal, because if there would
had any plea bargaining it should have come to knowledge of him as prosecutor agency have to play a
key role in the process. Researcher has also interviewed a large number Prosecutors, Judges and
Advocates and none of them informed about the practiced of plea bargaining by them except three
prosecutors.

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Delhi is the only State which has taken lead in successful implementation of plea
bargaining. The following figure shows the extensive use of plea bargaining in
Delhi248.
Total
Name of Court
Sl.No.

Pending for

Cases not fit for

Cases not

MSD

Plea Bargaining

settled

2848

745

55

652

1396

referred
Complex

Settled

cases
1

TIS HAZARI

PATIALA HOUSE

254

189

10

23

32

KARKARDOOMA

1128

472

79

194

383

ROHINI

209

119

22

67

632

286

NIL

79

267

5071

1811

145

970

2145

DWARKA as on
5
09/07/2010
TOTAL

There are only a few cases in other States where plea bargaining has been
adopted. one of such case was from Maharashtra where in which first plea bargaining
taken place after enactment of provision relating to plea bargaining.

3.7 OBSERVATION OF PROSECUTORS, ADVOCATES AND

JUDGES IN RESPECT OF PLEA BARGAINING.
The researcher has interviewed 73 prosecutors, magistrate and lawyers in
respect of functioning of plea bargaining. On questioning whether they have
knowledge about plea bargaining and what are the provisions relating to it, all the
respondents replied in affirmative. However, so far as knowledge about provisions is
concerned 57 people mentioned the relevant sections of the Cr.P.Cwith the remaining
keeping the space blank. On questioning what kind of cases can go for plea
bargaining, most of them replied that offences punishable with imprisonment up to 7
248

PLEA BARGAINING, as on 30/07/2010, Available at http://delhicourts.nic.in/plea/stats.html,

last visited on 05-08-2010

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years can proceed for plea bargaining. However, only 23 people were aware of any
other restrictions on applicability of plea bargaining. Plea bargaining does not apply
to offences against women and children as well as socio economic offences. Majority
of them were aware of all the stake holders involved. However some of them went on
to mention just the accused, with few of them nurturing the conception of the accused
and the victim being the only stake holders. There were some respondent who left the
column blank, probably because they had no knowledge about it. This is indicative of
the ignorance on the part of the functionaries.
On questioning whether we had both charge bargaining and sentence
bargaining, 21 person replied correctly that we have recognized only sentence
bargaining under Cr.P.C. 6 people replied No Idea while 25 person left the column
blank. 21 person replied that our law recognized both Charge Bargaining and
Sentence bargaining Again it indicates that our functionaries are not well equipped
with the concept of plea bargaining. On questioning whether they had applied Plea
Bargaining ever as one of the functionaries of Criminal Justice System all of them
either said No or Not-Yet except three. These three prosecutors had applied it
successfully in a case under 323IPC offence case249 and two cases under U/S 279
IPC250.
Upon being asked about efficacy of plea bargaining in India, the respondents
gave diverse answers such as, disposal of cases earlier, speedy trail, compensation
to victim, decreasing the number of pendency, give relief to litigant, settle the
dispute quickly & amicably etc. When quizzed about the reasons for nonimplementation of plea bargaining, the respondents located different answers such as,

249

The APP from Chinsurah Court, Hoogly District, remarked, In a case U/S 323 IPC, I as a
prosecutor found that the accused filed an application with affidavit and then I was called with the
complainant and Investigating Officer to appear. Compensation to victim was granted.
250
One case was from Alipurdwar U/S 279, 338 IPC, and another was under same provision of law
from DhakhinDinajpur.

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lack of awareness among parties and lawyers, lack of knowledge of all concerned
persons, lack of knowledge of lawyers and judges, indifferent attitude of lawyer,
ignorance among police authorities, material loss of defense, accused ignorance
of plea bargaining etc.
These observations are highly reflective of the glaring lack of awareness even
among functionaries. In order to effectively implement plea bargaining, we need
continuous effort through trainingetcto create awareness among functionaries as well
as the disputants.

3.8 CONCLUSION:
Today courts in India are flooded with astronomical arrears of cases making
reduction in backlog of cases a pressing necessity. Moreover we find that out of the
huge number of pending cases, almost 70% - 80% of the cases arise from criminal
jurisdiction, and again, reportedly, the rate of conviction is below 6 out of 100 cases.
In such circumstances is it not proper that we give a serious thought to the concept of
plea bargaining given the fact that it has been successfully employed in many parts of
the world? With such plea-bargaining in our system, there is a possibility for the
accused to admit to his or her guilt in return for a lower penalty. This method will
prevent the delays associated with the presentation and contestation of evidence in the
usual trial procedure251.
We have analyzed the genesis of plea bargaining in India and how the
different bodies have uniformly argued for its implementation. As plea bargaining is
part of our criminal justice system, we must make effective use of it. Challenge to

251

K.G. Balakrishnan, Criminal justice system growing responsibility in light of contemporary

challenges, 10th D.P. Kohli Memorial Lecture, (New Delhi April 2, 2009), available at
http://cbi.gov.in/speech/dpkohli_cji_200904202.pdf

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theconstitutionality of plea bargaining is unsustainable as experience of other

jurisdictionshave shown. However, we need to look into the adequacy of legislation as
pointed out in this chapter. Moreover, lack of awareness is one of the main reasons for
its non implementation; we have to take strong initiative in this regard.
It is an established fact that human behavior compels a person to decide on the
basis of alternativesavailable to him. The present Criminal Justice System shows that
the accused has only 6-10% chances of conviction and around 90% chances of
acquittal. In such situations it is will be rare for the accused to ask for lesser
punishment when he knows that he has 90% - 96% chances of securing acquittal. So
to make the system fair and plea bargaining really effectively we must strive towards
making the whole system more effective.The offender should not be left to nurture the
idea that it is possible for him to manipulate the system and secure acquittal regardless
of the offence he has committed. In USA or other places one of the main reason
behind plea bargaining being effective is the high rate of conviction. In these
countries accused are aware that they have only 10-20% chance of securing acquittal
and 80%-90% chance of conviction with higher penalty; hence they find it profitable
to settle for lesser sentence. Thus, in order to make plea bargaining more effective, we
need to improve the whole criminal justice system.

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CHAPTER IV
COMPOUNDING OF OFFENCES VIS--VIS
RESTORATIVE JUSTICE
4.1 INTRODUCTION:
The process of compounding of offences is well recognized in almost all
jurisdictions with certain variations. Most of the jurisdictions in world allowed
compounding of offences, mostly with regard to minor offences. The rationale for the
compounding of offences is that the chastened attitude of the accused and the
praiseworthy attitude of the complainant in order to restore peace and harmony in
society must be given effect to in the composition of offences.252 In India, the
procedural law of the country has incorporated the provisions relating to
compounding of offences since beginning253. The policy of the legislature adopted in
Section 320 is that in the case of certain minor offences, where the interest of the
public are not vitally affected, the complainant should be permitted to come to terms
with the party against whom he complains in respect of offences specified in the
section254. Other legislation like Legal Services Authorities Act, 1987 also made the
provisions for compounding of offences in respect of compoundable offences through
Lok-Adalat. Moreover, the law permitted cases to be withdrawn in some cases by the
complainant and under certain circumstances by the prosecutors255. The mechanisms
for compounding of offences as well as withdrawal from prosecutions are
instrumental in inculcating restorative justice within Indian CJS.

252

Law Commission of India, 154th report, Chapter XII, Paragraph 2.

The Section 320 of Cr.P.C has incorporated the provision relating to compounding of offences. In
the previous legislation of 1898, Section 345 had the provisions relating to compounding of offences.
254
Biswabahan v. Gopen, AIR 1967 SC 895
255
Section 257 of the Cr.P.C permits withdrawal of the compliant by complainant while Section 321
permits withdrawal of prosecution by prosecutors.
253

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4.2 COMPOUNDING OF OFFENCES:

The term compounding of offences signifies that the person against whom the
offence has been committed has settled his dispute with the accused in respect of
cases which falls within the purview of Section 320 Cr.P.C and do not want to
continue prosecution256. It is also defined as arrangement or settlement of difference
between the injured party and the person against whom the complaint is made257.
Some time it is being alleged that this abstention from prosecution was the result of
some gratification, not necessarily of a pecuniary character, to act as an inducement
for it258. The purpose of allowing compounding of offences was that certain offences
principally concern individual person and not people at large. Accordingly, if the
parties are agreeable to settle those cases themselves, the law should recognize such
desire of the parties, the legislature has enacted the provision on compounding of
offence.
Section 320259 of the Act permits compound of the offence. The offences
which are mentioned in first column can be compounded by the parties referred in last
column of the last260. The other offences in the list can be compounded with the
permission of the court by the parties referred in the list261. When the offences under
the law are compoundable the abetment to such offence are also compoundable262.
The law further permits the compounding of offence by legal guardian if the offences

256

Sir John Woodroffe, Code of Criminal Procedure, 3rdEdn., 2009, p1313

Emperor v. Ali Bhai Abdul, ILR 45 Bom 346
258
Sir John Woodroffe, Code of Criminal Procedure, 3rdEdn., 2009, p1313
259
320. Compounding of offences. (1) The offences punishable under the sections of the Indian Penal
Code specified in the first two columns of the Table next following may be compounded by the persons
mentioned in the third column of that Table
260
Section 320 (1) of the Cr.P.C.
261
Section 320 (2) Cr.P.C. which provides that the offences punishable under the sections of the Indian
Penal (45 of 1860) Code specified in the first two columns of the Table next following may, with the
permission of the Court before which any prosecution for such offence is pending, be compounded by
the persons mentioned in the third column of that Table
262
Section 320 (3) Cr.P.C: 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.
257

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committed against children or lunatic etc263. In cases when the accused has been
committed for trial or when he has been convicted and an appeal is pending, Section
320 clause (5) provides that no composition for the offence shall be allowed without
the leave of the Court to which he is committed, or, as the case may be, before which
the appeal is to be heard. The provision further allow the High Court and Court of
Session to compound the offence while exercise their revisional power264. The Act
has created a limitation in respect of habitual offender. It provides that no offence
shall be compounded if the accused is, by reason of a previous conviction, liable
either to enhanced punishment or to a punishment of a different kind for such
offence265. Most importantly the Act provided that the effect of compounding shall be
amounted to acquittal of the accused266. Lastly the Act provides that no offence shall
be compounded unless they are permissible under Cr.P.C267.
Section 320 of the Cr.P.C contains provisions with regard to; (a) the person
who may compound; and (b) the nature of the offences that may be compounded; and
(c) the stage of criminal proceedings at which the compounding can sought to be
made; and (d) it also provides that in regard to some offences the mere consent of the
injured person shall not be suffice for composition; he must obtain permission of the
court. In Shankar Rangayya268, the Madras High Court held that Sub-Sec (9) must,
therefore, be taken to mean that no offence shall be compounded except where the
263

Section 320 (4) (a): When the person who would otherwise be competent to com- pound 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. (b) When the
person who would otherwise be competent to compound an offence under this section is dead, the legal
representative, as defined in the Code of Civil Procedure, 1908 (5 of 1908), of such person may, with
the consent of the Court, compound such offence.
264
Section 320 (6): A High Court or Court of Session acting in the exercise of its powers of revision
under section 401 may allow any person to compound any offence which such person is competent to
compound under this section.
265
Section 320 (7) of the Cr.P.C.
266
Section 320 Clause 8 provides that 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.
267
Section 320 Clause (9) provides that no offence shall be compounded except as provided by this
section.
268
Shankar Rangayya v. SankarRamayya, AIR 1916 Mad 483

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provisions of this Section are satisfied as to each of the four matters said above. The
effect of the Clause (9) of Section 320 would be that offences which are not specified
in two sub-sections are not compoundable. The offences created by special laws are
not compoundable unless the special laws itself provides for compounding of such
offence269. There are special laws which itself made certain offence compoundable
such as some offences under Negotiable Instrument Act, 1881270. Even though Clause
(9) of Section 320 Cr.P.C impose bar on compounding offences other than mentioned
therein, the Supreme Court in Mahesh Chand Case271 gave permission to compound
the offence U/S 307 IPC. Post Mahesh Chand case272 the different High Court in India
had given conflicting judgments273. One the one hand some High Courts followed
Supreme Court decision and allowed the compounding the offence by invoking their
inherent jurisdiction274. On the other hand there are cases in which other High Courts
have refused to compound the offence275 by strictly following the wording of Section
320 Cr.P.C and also on the ground that they do not have the plenary power conferred
on the Supreme Court in Article 142 of the Constitution under which apparently
Supreme Court permitted compounding of offence U/S 307 IPC. Similarly in the
cases relating to 498A the different High Courts have taken different views. While
some High Court gave approval for compounding of offences while other refused

269

See Trikam Das Udeshi v. Bombay Municipal Corporation, AIR 1954 Bom. 427,
HariChandranPagadai v. ThangaswamiNadar AIR 1949 Mad 501.
270
Sec 147 of the Negotiable Instrument Act, amended by 2000 Amendment Act make all offences
punishable under the Act compoundable.
271
Mahesh Chand v. State of Rajasthan, 1991 SCC (Cr.) 159
272
Id
273
See Dr. K. N. ChandrasekharanPillai, R. V. Kelkars Criminal Procedure, 5th Edition, (2008)
274
ThathapadiVenkatalakshmi v. State of A.P., 1991 Cr.L.J 749 (AP), DaggupatiJayalakshmi v. State,
1993 Cr.L.J. 3162 (AP), Manoj Kumar v. State of Rajasthan, 1999 Cr.L.J 10 (Raj), State v. Md. Akbar,
1999 Cr.LJ 1121 (J&K)
275
Desbo v. State, 1992 Cr.L.J. 74 (Cal), Golak Chandra Nayak v. State of Orissa, 1993 Cr.L.J 274
(Bom), Mohan Singh v. State of Rajasthan, 1993 Cr.L.J. 3193 (Raj), Sanathan Ram v. State 1991Cr.LJ
758 (Ori), Basanta Kr. Baral v. State of Orissa, 1997 Cr.L.J 2182 9Ori), State of Karnatka v.
SrinivastaIyengar, 1996 Cr.L.J 3103 (Kant)

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it276. The decision of the Supreme Court in Mahesh Chand was over ruled in Ram Lal
v. State of J & K277 in which the Supreme Court hold that an offence which law
declared to be not compoundable even with the permission of the Court cannot be
compounded at all. In B. S. Joshi v. State of Haryana278 the Supreme Court again
ruled that in a situation of proceedings on the basis of non-compoundable offence like
Section 498A and 406, the High Courts could quash them using their inherent power
U/S 482 Cr.P.C.
The Malimath Committee279 strongly recommended for inclusion of other
offences also within the purview of compoundable offence. Committee observed that
in addition to the offences prescribed in the Code as compoundable with or without
the order of the court there are many other offences which deserve to be included in
the list of compoundable offences. According to Committee, where the offences are
not of a serious character and the impact is mainly on the victim and not on the values
of the society, it is desirable to encourage settlement without trial. The Committee felt
that many offences should be added to the table in 320(1) of the Code of Criminal
Procedure. The Committee further recommends offences which are compoundable
with the leave of the court, may be made compoundable without the leave of the
court. The Standing Committee on Gram Nyalaya Bill also support the idea of using
such mechanism in minor criminal cases to be dealt with by Gram Nyalaya280.The
Committee felt that in the present scenario, rural poor are reluctant to approach the
Courts because the process of litigation is expensive, formal, and highly technical.
The Committee, during its discussions, could gather that setting up of Gram
Nyayalayas at the level of Panchayat at intermediate level throughout the country will
276

See Dr. K. N. ChandrasekharanPillai, R. V. Kelkars Criminal Procedure, 5th Edition, (2008),

Chapter VII, Page 451-454
277
(1999) 2 SCC 213
278
(2003) 4 SCC 675
279
Malimath Committee
280
Standing Committee on Gram Nyalaya Bill

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require huge funds both from the Central and the State exchequers in respect of
buildings, for residential purposes and for the Headquarters of Gram Nyayalayas,
salaries and allowances to the Nyayadhikaris and staff and other infrastructural
expenses. The Committee observed that they are also aware of the huge backlog of
cases and inordinate delays in disposal of cases in courts at all levels. The Committee
opined that for the people belonging to the underprivileged classes, majority of the
victims of this state of affairs of the judicial, due consideration/attention is given to
the reforms in judicial administration pertaining to such classes. The Committee
applauds the intention of the Government in bringing forward this Bill i.e.,ensuring
access to justice to citizens at grass root level.
Recently the Law Commission applauded the idea of extensive use of
compounding and other similar mechanism in Criminal Cases281. The Law
Commission in respect of dishonor of cheque cases observed that by inserting section
147 in the Act in 2002, offence punishable under section 138 of the Act has been
made compoundable and it does not provide for any other or further qualification or
embargo like sub-section (2) of section 320 of the Criminal Procedure Code. The
parties can compound the offence as if the offence is otherwise compoundable. Thus,
the offence is made straightway compoundable like the case described under subsection (1) of section 320. No formal permission to compound the offence is required
to be sought for. Even prior to section 147, the opinions expressed by different High
Courts and also the Apex Court appear to be in favour of approving the process of
compounding of offences in respect of cheque dishonor cases such as in
RameshbhaiSomabhai Patel v. DineshbhaiAchalanandRathi282, compounding and
settlement between the parties, taking into consideration the aim and object of the
281

Law Commission of India, Report on Fast Track Magisterial Courts for DishonouredCheque Cases,
213th Report, (2008)
282
2005 Cri. L. J. 431(Gujarat).

P a g e | 109

provisions of the Act was allowed. If the matter in relation to which the cheque had
been issued has been settled between the parties, such settlement be given effect to
keeping in mind the object of introducing the relevant provisions of the Act; the court
can note the same and record the settlement between the parties283. Thus the
legislative discourse, judicial interpretation as well as different committees
continuously recommended for use of compounding mechanism within Criminal
Justice System.

4.2.1 COMPUNDING OF OFFENCES VIS--VIS RESTORATIVE JUSTICE

Indian law permits certain categories of offences, majority of which are minor
offence, to be compounded by the parties284. Compounding of offences per se is not a
restorative justice process. Both the parties have to submit an application that they
have settled the dispute and want to compound. The process by which they arrived at
the settlement may have a component of restorative justice. In India, village
panchayat are well functional in most part of the countries. If two disputing parties
with the support of elderly people of the panchayat settle the case and such settlement
takes into account the need and aspiration of the victim, with the victim participating
in it on a voluntary basis then it will qualify as an instrument for restorative justice.
Thus compounding of offences can also be instrumental for providing restorative
justice to the victims where they themselves settle their cases.

4.3 SETTLEMENT OF CRIMINAL CASES BY LOK-ADALAT:

The term Lok-Adalat literally means Peoples court. The literal meaning itself
indicates that the Lok-Adalat is different from traditional courts and it involves people
283

Employees State Insurance Corporation v. A. P. Heavy Machinery and Engg. Ltd. 2005 Cri. L. J.
1080 (A. P.).
284
See list under section 320 Cr.P.C.

P a g e | 110

participation285. Lok-Adalats are organized by Taluka Legal Services Committee or SubDivisional Legal services Committee at Sub-Division level286. Similarly the District Legal
Services Committee organizes Lok-Adalat at District level287, High Court Legal Services
Committee organizes Lok-Adalat at High Court level288, State Legal Services Authority at any
place in the State289 and Supreme Court legal Services Committee organizes Lok-Adalat at
Supreme Court290. All the aforesaid bodies have power to organize Lok-Adalat at their
respective jurisdiction291. The Lok-Adalat is basically consists of a panel of three members of
which one shall be either a serving judge or retired judge. The other two are usually an
advocate and social worker. The members of Lok-Adalat need to act as conciliators and
facilitators between the parties. Their attempt is to bring some settlement between the
parties. Section 19 authorizes the Lok-Adalat to deal with criminal cases but restricts it to
compoundable offences292. The Lok-Adalat has been established to supplement the

court system in India. Since the inception of Lok-Adalat thousands of cases have been
settled throughout the country. However, the experience shows that rarely criminal
cases are transferred for Lok_Adalat293. There are studies which recommended for the
use of Lok-Adalat in criminal cases also like cases under Negotiable Instruments Act
etc294.
Thus the Lok-Adalat also has potentiality to settle out of court processes a
large number of criminal cases which are minor in nature and which are declared as
compoundable under the law.

285

Sarafaraz Ahmed Khan, Lok-Adalat, (2005), APH Publication

See Section 11A of the Legal Services Authorities Act, 1987
287
See Section 10 of the Legal Services Authorities Act, 1987
288
See Section 8A of the Legal Services Authorities Act, 1987
289
Section 6 of the Legal Services Authorities Act, 1987
290
Section 3A of the Legal Services Authorities Act, 1987
291
Section 19 of the Legal Services Authorities Act, 1987
292
Section 19 of the Act provides in last clause that the Lok-Adalat shall have no jurisdiction in respect
of any case or matter relating to an offence not compoundable under the law.
293
Sarfaraz Ahmed Khan, Lok-Adalat (2005)
294
See suggestion and recommendation, Sarfaraz Ahmed Khan, Lok-Adalat (2005),
286

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4.3.1 LOK-ADALAT IN INDIA VIS--VIS RESTORATIVE JUSTICE:

In the process of Lok-Adalat, the victims play a very important role.
Settlement at the Lok-Adalat cannot be reach unless the victim agrees to it and the
fulfillment of victim aspiration is the basic requirement for settlement. A victim
cannot be forced to take part in negotiation unless the victim himself agrees to it.
Accordingly, we can say that in the Lok-Adalat process, the victims participate on a
voluntary basis and they themselves negotiate with the help of the panel of members
present there. While deciding on compromise, victims definitely consider his/her
aspiration and the process makes the accused realize the wrong done by him. All
these process fulfill the basic requirement of restorative justice principle. Lok-Adalat
in respect of criminal cases definitely falls within one of the categories of restorative
justice processes. Needless to say that though large number of cases being settled
through Lok-Adalat, the criminal cases rarely referred to it. It is seldom practiced to
settle criminal cases as our mindset is that offence are against the state and are not
amenable to bargaining. Though there is huge scope of providing restorative justice
through Lok-Adalat in respect of compoundable offences, it is still underutilized and
need is for multi dimensional action.

4.4 WITHDRAWAL OF CASES:

Normally once a case started it should not stopped unless such stoppage has
sound consideration germane to public interest295. Section 321 Cr.P.C296 implicitly

295

Subhash Chandra v. State (Chandigarh Administration), (1980) 2 SCC 155

321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge
of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw
from the prosecution of any person either generally or in respect of any one or more of the offences for
which he is tried; and, upon such withdrawal,- (a) if it is made before a charge has been framed, the
accused shall be discharged in respect of such offence or offences ; (b) if it is made after a charge has
been framed, or when under this Code no charge is required, he shall be acquitted in respect of such
offence or offences : Provided that where such offence- (i) was against any law relating to a matter to
which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police

296

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makes room for such considerations by enabling the public prosecutor to withdraw
from prosecution of any person with the consent of the court. The withdrawal from
prosecution under this section may be justified on broader considerations of public
peace, larger considerations of public justice and even deeper consideration for
promotion of long lasting security in a locality, of order in disorderly situation or
harmony in a faction milieu, or for halting a false and vexatious prosecution297.
Withdrawal from prosecution is permissible for any offences and unlike compounding
of offences, there are no restrictions in withdrawing power of the prosecutors. Such
withdrawal can be made at any stage before the pronouncement of Judgment298. The
section does not indicate the reasons which should weigh with the Public Prosecutor
to move the court for permission nor the grounds on which the court will grant or
refuse permission299. However, the role of the prosecutor and the court has been
clearly indicated by the Supreme Court in several decisions300.
Withdrawal from prosecution can also be used as an instrument for addressing
the need of the victims. In cases where sufficient evidence is not available against the
accused and the accused agreed to provide reparation to the victim, the prosecutor
may with the consent of the court withdraw from the prosecution. There may be other
circumstances in which prosecutor can withdraw the cases if it serves the needs of

Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or (iii) involved
the misappropriation or destruction of, or damage to, any property belonging to the Central
Government, or (iv) was committed by a person in the service of the Central Government while acting
or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag
hot been appointed by the Central Government, he shall not, unless he hag been permitted by the
Central Government to do so, move the Court for its consent to withdraw from the prosecution and the
Court shall, before according consent, direct the Prosecutor to produce before it the permission granted
by the Central Government to withdraw from the prosecution.
297
Subhash Chandra v. State (Chandigarh Administration), (1980) 2 SCC 155
298
See Dr. K. N. ChandrasekharanPillai, R. V. Kelkars Criminal Procedure, 5th Edition, (2008),
Chapter VII, Page 456-457, See also T. C. Thiagarajan v. State, 1982 Cr.L.J 1601, 1607 (Mad)
299
M. N. Sankarayarayanam Nair v. P. V. Balakrishnan, 1972 SCC (Cri) 55
300
Rajendra Kr. Jain v. State, (1980) 3 SCC 435, SheonandanPaswan v. State of Bihar, (1983) SCC
(Cri) 224. A decade back in Abdul Karim v. State of Karnatka, (2000) 8 SCC 710 the supreme court
observed on the power of the court and prosecutor in respect of withdrawing from prosecution. This
case was related to abduction of film star Raj Kumar and withdrawal of the charges against the accused
related to Veerapan.

P a g e | 113

justice. While withdrawal from prosecution can be done only by prosecutor U/S 321
Cr.P.C, the law permits withdrawal of complaint by complainant301. It may be noted
that the Section 257 requires the complainant to satisfy the magistrate that there are
sufficient grounds for withdrawal the complaint. If the magistrate is not convinced, he
can proceed with the trail302. When the complainant proceeds to withdraw a case, such
act of the complainant may be result of settlement of dispute outside courts. It has
been seen in different circumstances that the complainant and accused either through
their own understanding or with the help of third party agree to compromise, it may
the visible example of achieving restorative justice principle provided it voluntary.
The power of the court to check and permit such withdrawal will also help in
minimizing the chance of its misuse.

4.5 CONCLUSION
The process of compounding of offences, Lok-Adalat, withdrawing from
prosecution are few of the examples of the process where victim offender in most of
the circumstances came in contact with each other eye to eye and decide about their
case. These provisions can be instrumental for implementation of restorative justice
principle in India. The outcome of the process of restorative justice, be is Mediation
or otherwise can get legal sanction with compounding of offences. The settlement
between victims and accused in summon cases where restorative justice have been
provided to the victim can end by withdrawal of compliant by complainant. The state
can also in such cases where peace and harmony can be restored between victims and
301

Section 257.Withdrawal of complaint. If a complainant, at any time before a final order is passed in
any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him
to withdraw his complaint against the accused, or if there be more than one accused, against all or any
of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused
against whom the complaint is so withdrawn.
302
See Dr. K. N. ChandrasekharanPillai, R. V. Kelkars Criminal Procedure, 5th Edition, (2008),
Chapter VII, Page 467

P a g e | 114

offender, the aspiration of victims can be fulfilled the accused and restorative justice
can be provided to the victims, withdraw the prosecution. Such withdrawal process
can also act as a tool for providing restorative justice. In these ways the CJS which
was mainly accused centric can mold itself and become victims centric to provide
support to the victims. During these processes of settlement or withdrawal the accused
can also realized and understand the suffering of the victims which will help in his
reformation which is one of the prime objective of the restorative justice. Thus the
process of compounding of offences including compounding by Lok-Adalat as well as
withdrawal from prosecution can be used as an effective instrument for providing
restorative justice.

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CHAPTER V
OUT OF COURT SETTLEMENT AND
RESTORATIVE JUSTICE
5.1 INTRODUCTION:
There are diverse forms of dispute resolution mechanisms which can be used
also within Criminal Justice System to settle the case outside court, mainly in minor
offences, and get legal approval from the court. Some time such settlement recognized
as compounding of offences some time withdrawal of complaint or prosecution. In
some part of the world apart from compounding of offences by the parities or
withdrawal by the prosecutors or complainant, there established a system of third
party assistance in form of victim offender mediation or the Indian system like LokAdalat. Thus if we classify such out of court settlement, there are two ways of settling
dispute (1) by parties themselves or accused and prosecutors, and (2) with the
assistance and support of third party like Mediator and panel of Lok-Adalat or
otherwise. In India also there are different ways in which parties can reach outside
settlement in criminal cases. Those practices include compounding of offences303,
withdrawal from prosecution304, withdrawal of complaint under certain cases and
under certain circumstances305 as discussed in the last chapter and conditional pardon
to accused306. In reality out of court settlement is practiced since long in India.
Among the Islamic Countries the concept of blood money by which a victim
member can forgive the accused after satisfying their aspiration is one of such
example of out of court settlement in criminal cases.

303

Section 320 Cr.P.C. permit compounding of offences.

The prosecutors can withdraw a case U/S 321 Cr.P.C
305
Section 257 Cr.P.C. permit withdrawal of the complaint.
306
Section 306 Cr.P.C. permit pardon to accused on his/her becoming approver.
304

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The out of court settlement is practiced in most parts of the world with or
without the support of the third party like mediators. In India several committees
suggested for increased use of out of court settlement307. In other countries also
several bodies recommended for extensive use of out of court settlement308.
Accordingly need arises for discussing practice of out of court settlement in different
parts of the world, prevalent practice in India in respect of out of court settlement, use
of out of court settlement with support from third party like mediator or Lok-Adalat
and to suggest measures for reform.

5.2 OUT OF COURT SETTLEMENT IN INDIA: SCOPE

Out of court settlement is practiced in India in one form or other since the
inception of criminal procedure itself. Those practices include compounding of
offences309, withdrawal from prosecution310, withdrawal of complaint under certain
cases and under certain circumstances311 and conditional pardon to accused312. Indian
Law did recognize out of court settlement with the intervention of third party as in the
case of Lok-Adalat313. However, we do not have any established mediation concept in
India in respect of criminal cases unlike civil cases314. Nevertheless, there was no

307

Such as Law Commission, Malimath Committee etcetera. See the details in the previous chapters.
South African Law Reform Commission, Canadian Law Commission as well as EU Commission
recommended for use of Out of Court settlement. Discussion about these committee recommendations
can be found in this chapter later parts.
309
Section 320 Cr.P.C permit compounding of offences. It enlisted some of the offences where
compounding can be done without consent of the court, which are minor in nature, and in some cases
which slightly serious but in general minor with the permission of the court.
310
The prosecutors can withdraw a case U/S 321 Cr.P.C. Such withdrawal can be on various grounds.
The provision may become instrumental in settlement between prosecutor and accused and then it can
be withdrawn.
311
Section 257 Cr.P.C. permit withdrawal of the complaint.
312
Section 306 Cr.P.C. permit pardon to accused on his/her becoming approver.
313
Section 20 of the Legal services Authorities Act, 1987 suggest that Lok-Adalatcan not take
cognizance in criminal cases unless it is compoundable offence.
314
Even in civil cases we do had any legislative backing for mediation except few reference like
Industrial Dispute Act, 1947 etc until Section 89 was incorporated in Code of Civil Procedure by virtue
of C.P.C Amendment Act, 1999. This Section empowered the court to refer the matter to either for (a)
Arbitration, (b), Conciliation, (c) Mediation and (d) Lok-Adalat.
308

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established mediation concept in India till Section 89 was incorporation of C.P.C .

Even such incorporation was not sufficient as there were no laws governing
Mediation. However, because of judicial activism we got Mediation rule being
implement by some High Courts in India315.
So far juvenile offenders who has ben described as Juvenile in Conflict with
Laws316 is concerned, Rule (11) Sub-Clause (11)317 categorically provides that in
dealing with cases of juveniles in conflict with law the Police or the Juvenile or the
Child Welfare Officer from the nearest police station, shall not be required to register
an FIR or file a charge-sheet, except where the offence alleged to have been
committed by the juvenile is of a serious nature such as rape, murder or when such
offence is alleged to have been committed jointly with adults; instead, in matters
involving simple offences, the Police or the Juvenile or the Child Welfare Officer
from the nearest police station shall record information regarding the offence alleged
to have been committed by the juvenile in the general daily diary followed by a report
containing social background of the juvenile and circumstances of apprehension and
the alleged offence and forward it to the Board before the first hearing. It intended to
non-prosecution in minor offences where juvenile was alone offender. Similarly in
cases where enquiry have being conducted by the Juvenile Justice Board, Section
15318 of the Act empowered to pass various alternative orders such as group

315

As there was no laws which govern Mediation, Supreme Court in Salem Bar Association Case
appointed JagananthRao Committee to submit Mediation Rules and the committee submitted its
recommendation to the Supreme Court which being implemented by different High Court.
316
Section 2 (L) of Juvenile Justice (Care & Protection of Children) Act, 2000 defined the term
"juvenile in conflict with law" as a juvenile who is alleged to have committed an offence;
317
Model Rule namely Juvenile Justice (Care and Protection of Children) Rules, 2007, which has been
implemented by most of the states with minor variations.
318
Section 15 of the Juvenile Justice (Care & Protection of Children) Act, 2000 provides for Order that
may be passed regarding juvenile as follows;
Where a juvenile is arrested, the officer incharge of the police station or the special juvenile
police unit to which the juvenile is brought shall, as soon as may be after the arrest, inform(a) the parent or guardian of the juvenile , if he can be found, of such arrest and direct him to be present
at the Board before which the juvenile will appear; and

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counseling, probation etc. All the aforesaid mechanism are used within Criminal
Justice System with aim to provide restorative justice within its ambit to the extent
possible.

5.3 OUT-OF-COURT SETTLEMENTS: AN OVERVIEW OF ITS PRACTICE

IN DIFFERENT PLACE OF THE WORLD.
Most of the countries in the world have some mechanism for out of court
settlement. Offences which can be settled outside court may be varying from one
jurisdiction to another. In USA and Europe most of the Countries and States practiced
Out of Court Settlement. Professor Hans-Jrg Albrecht of the Max Planck Institute
for Foreign InternationalCriminal Law in Freiburg, Germany prepared a report on
current developments regarding out-of court settlements in Europe for the
Commission319. According to the study report, the main aim of the procedure is the
simplification and acceleration of the criminal process without undermining the rule
of law and basic standards of fair and just criminal process. Cost-efficiency is a major
consideration. Criminal cases must be finalised within a reasonable time. Restitution
(b) the probation officer of such arrest to enable him to obtain information regarding the antecedents
and family background of the juvenile and other material circumstances likely to be of assistance to the
Board for making the inquiry.
Where a juvenile having been charged with the offence is produced before a Board, the Board
shall hold the inquiry in accordance with the provisions of this Act and may make such order in
relation to the juvenile as it deems fit:
Provided that an inquiry under this section shall be completed within a period of four months
from the date of its commencement, unless the period is extended by the Board having regard to the
circumstances of the case and in special cases after recording the reasons in writing for such extension.
(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other law for the time being in force, the
Board may, if it thinks so fit,(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and
counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counsell in g and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of
age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any
parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with
or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for
any period not exceeding three years;
319
Quoted in, South African Law Commission, Project 73, Sixth Interim Report On Simplification Of
Criminal Procedure Out Of Court Settlements In Criminal Cases, August 2002

P a g e | 119

and restorative justice plays an important role, especially in the interests of crime
victims. At the same time stigmatization of the offender is reduced320.

5.3.1 Out of Court Settlement in United States of America

The practice of out of court settlement in United States as wel as its purpose
can be explain from the observation of, Professor Candace McCoy321who writes;
Most often, a prosecutor will demand that the accused admit guilt and agree
toparticipate in a diversion program, often involving drug or alcohol treatment. In
return, the prosecutor will not make formal charges or will drop the charges already
made. Theresult is that the offender will have no criminal record and the prosecutor
will have assured a measure of social control and, optimistically, rehabilitation. A
thoughtfulprosecutor has thus worked to prevent a juvenile or petty criminal from
being stigmatizedwith a criminal conviction an important consideration for juveniles
whose lives maychange for the worse be being labelled delinquent. A pre-trial
diversion program may involve restitution to the victim, voluntary public service, or
other conditions. If a personaccomplishes the requirements of such a program, formal
charges if made are dismissed, leaving no criminal record. But if the person does
not fulfill the program requirements, the prosecutor may then pursue the original
charges.
The point is that the prosecutor has complete power to decide who will receive
thebenefits of diversion, the conditions necessary to avoid criminal charges, and
whetherto restart prosecution due to noncompliance. As a matter of policy, the
prosecutor has determined who might be capable of rehabilitation or, indeed, whether
a person is guiltyof the crime or not. And the prosecutor has arguably widened the
320

id
In Prosecution in Michael Tonry (ed) The Handbook of Crime and Punishment
(1998) Oxford University Press at 460.

321

P a g e | 120

net of state control over lives of people accused of crime, because defendants
assigned to diversion programs probably would not have received such extensive
conditions of compliance if they had proceeded through regular adjudication into
court and been sentenced by a judge. This is simply one example of the great
discretionary power the prosecutor can wield over the lives of a great number of
people and all before their cases ever get near a courtroom.
A fairly common practice in the USA is that of deferred prosecution322, where
prosecutionis suspended on compliance by the defendant of some condition or
conditions. This practice is closely related to out-of-court settlements. At first,
deferred prosecution was informally implemented, without statutory authority, but in
June1964 the Department of Justice issued a memorandum that formalized the
institutional use of deferred prosecution323. Some of the useful points that have been
highlighted in studies on deferred prosecution include the following:
(1) One should not underestimate the risk of the abuse of power by prosecutors.
Although the accused is supposed to comply with the conditions of the deferred
prosecution voluntarily, it remains the threat of conviction that is used to encourage
such compliance. One of the safeguards against abuse is the availability of a legal
advisor.
(2) The ideal duration of supervision under deferred prosecution has been shown to be
from 6 to 23 months.

5.3.2 Out of Court Settlement in Germany

322

Carol J. DeFrances, Steven K. Smith, Louise van der Does: U.S. Department of Justice, Office of
Justice Programs, Bureau of Justice Statistics Prosecutors in State Courts, 1994(October 1996) NCJ151656 (see www.ojp.usdoj.gov/bjs/pub/ascii/pisc94.txt ): 59% of prosecutors used deferred
prosecution for felony prosecution.
323
Stephen J Rackmill "Printzlien's legacy, the 'Brooklyn Plan'" (1996) Federal probation
60(2) 8 at 10

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It is important, when considering the German position, to keep in mind that, according
to the German understanding of the principle of legality, every criminal complaint has
to be investigated and, if sufficient evidence is found to exist, prosecuted. Therefore,
German law does not accept discretionary prosecution. Nevertheless, the power of
prosecutors to settle cases out of court has been expanded constantly in last few
decades. In terms of 153 of the German Procedural Code a prosecutor may
unconditionally dismiss a case if the guilt of the suspect is marginal. This means
that both the degree of intent or negligence should be satisfied, and the damage or
injury caused, should be marginal. Dismissal is, in general, based on the discretion of
the prosecutor. In the case of more serious offences, despite compliance with the
above mentioned criteria, the decision has to be affirmed by the court. In terms of
153a of the German Procedural Code a prosecutor may dismiss a case of minor
guilt if the offender complied with conditions set by the prosecutor. The payment of
an amount of money (Geldbue), which is different from a fine as the latter is
confined to criminal convictions, is by far the commonest such condition, although
compensation, community service and maintenance orders are imposed in a small
number of cases324.

5.3.3 Out of Court Settlement in Denmark

The prosecutor may dismiss a case if costs, expected length of proceedings or
workload required by processing a case would be unproportional compared to the
significance of the case and the expected outcome. This option was mainly introduced
for economic crimes. The prosecutor may waive prosecution at own discretion if (1)
only a fine is prescribed as punishment; (2) the accused is a juvenile and confesses to
the crime; (3) the expected costs of the trial would be disproportionate; (4) the law
324

i.d

P a g e | 122

authorises waiving; or (5) rules of the executive permits waiving. Provision is also
made for a summary fine, similar to the South African admission of guilt. In this case
the accused can pay the fine immediately, or consent to the fine but negotiate to pay
in instalments325.

5.3.4 Out of Court Settlement in England and Wales

In simple cases and in cases where the suspect had confessed to the offence, police
have the power to caution the offender and to dismiss the case after a formal caution
had been issued. However, neither the police nor the prosecuting services have the
power to impose fines or any other conditions in exchange for waiving prosecution326.

5.3.5 Out of Court Settlement in Belgium

The first option open to a Belgian prosecutor is a simple, unconditional nonprosecution. This is limited to petty offences, and the decision has to be made in
accordance with the general guidelines from the ministry of justice. Such decisions
have to be justified in writing. Conditional non-prosecution is also possible. The
suspect has to agree to such conditions, which are usually closely related to probation.
The report also makes mention of the procedure provided for in 216 of the Belgium
Procedural Code. This appears to be a typical out-of-court settlement, to which a wide
variety of conditions can be attached, including the proposal of a fine, which is
available for all offences punishable by fine or imprisonment of up to 5 years327.

5.3.6 Out of Court Settlement in Italy

325

Id
Prof. Dr. Hans Jrg Albrecht, Settlements Out Of Court:A Comparative Study Of European Criminal
Justice Systems, (Max Planck, ISBN: 0-621-31583-4)
327
Id
326

P a g e | 123

Italian criminal procedure does not allow the prosecutor any discretionary dismissal
of criminal cases. A couple of abbreviated procedures are provided for, but a judge is
always involved, and the outcome of the case is determined only by the judge328.

5.3.7 Out of Court Settlement in The Netherlands

Dutch criminal procedure allows the prosecutor not to open a criminal trial, based on
reasons of public interest. Some of the considerations that may prompt such a decision
include: that other agencies may be able to deal with the offence, that the offence is
petty or has occurred a long time ago, or that there are factors peculiar to the offender
or in the relationship between the offender and the victim which would make
punishment superfluous (eg the victim participated in the crime).
Decisions not to prosecute can take one of two forms: (1) informal decisions, or (2)
formal decisions with notification of the judge. On the fulfillment of following
requirements namely (1) only criminal offences not carrying a sentence of more than
6 years imprisonment; (2) the suspect has to consent to the transaction, and (3) the
guidelines by the Dutch ministry of justice have to be complied with, the Dutch
Criminal Code 74 allows the prosecutor to dismiss a case. Four conditions can be
attached to a transactie: (1) payment of a sum of money, (2) payment of an amount
equivalent to the value of items which can be forfeited, (3) consent to confiscation, or
(4) compensation and restitution329.

5.3.8 Out of Court Settlement in Portugal

328

Id
See e.g. Albrecht, H.-J., Schdler, W. (Eds.): Community Service, Dienstverlening, Travail d
IntretGnral - A New option In Punishing Offenders in Europe. (Freiburg, 1986).

329

P a g e | 124

For petty offences a summary procedure is provided for. Although no trial takes
place, it is restricted to a small range of offences. It is not sufficiently close to an outof-court settlement to warrant further consideration330.

5.3.9 Out of Court Settlement in Austria

The Austrian Criminal Code 42 provides that a particular act will under certain
circumstances not be regarded as a crime. In following circumstances, the prosecutor
is allowed to dismiss the case, namely: (1) the offence is not punishable with more
than 3 years imprisonment, (2) punishment is not required for the deterrence of the
offender, and (3) the offence has only resulted in minor loss or damage and the
offender has compensated the victim or has made a serious attempt to effect
compensation. Conditional dismissal has been provided for since 1 January 2000.
Before allowing the dismissal the following conditions can be imposed namely: (1)
fine, (2) community service, (3) probation, or (4) victim-offender mediation331.

5.3.10 Out of Court Settlement in Poland

The Polish Code of Criminal Procedure does not really provide for any process
related to an out-of-court settlement. It does provide for abbreviated procedures in the
case of less serious offences, but these procedures generally culminate in a conviction
and sentence. The prosecutor may only decide not to institute prosecution in the case
of petty offences where the danger to society is insignificant.

5.3.11 COUNCIL OF EUROPE RECOMMENDATION ON OUT OF COURT

SETTLEMENT
330
331

Supra Note323
I.d.

P a g e | 125

On 17 September 1987 the Committee of Ministers to member states of the

Council ofEurope accepted a report332 which is pertinent to further development of
out of court settlement mechanism within Criminal Justice System. It is hard to assess
its actual impact on the law of European countries. On the face of it the document has
not been widely implemented. Yet, many countries have since introduced some
legislation relating to speedier criminal procedures, discretionary prosecution, and
etcetera333.
Few of the important recommendations were as follows:
(1) no physical coercive order should be ordered;
(2) the procedure should be subject to express or tacit acceptance;
(3) acceptance of or compliance with such a proposal should preclude any prosecution
in respect of the same facts; and
(4) the procedure should not infringe the right of the suspect to have his case brought
before a judicial authority334.

The Council of Europe further made following recommendation;

(1) In the light of their constitutional requirements, member states should review their
legislation with regard to out-of-court settlements in order to allow an authority
competent in criminal matters and other authorities, intervening at this stage, to
promote the possibility of out-of-court settlements, in particular for minor offences:
(2) The law should prescribe the conditions which the authorities may propose to the
alleged offender, more particularly: (i) the payment of a sum of money to the state or
to an institution of public or charitable nature; (ii) the restitution of goods or
332

Council of Europe,The simplification of criminal justice (Recommendation R(87)18) (1988)

Strasbourg.
333
Prof. Dr. Hans Jrg Albrecht, Settlements Out Of Court:A Comparative Study Of European Criminal
Justice Systems, (Max Planck, ISBN: 0-621-31583-4)
334
Id

P a g e | 126

advantages obtained by the commission of the offence; (iii) that appropriate

compensation be granted to the victims of the offence either in advance of the
settlement or as a part of it.
(3) The competence of the authorities concerned to make such a proposal and the
categories of offences should be determined by law. The authorities should be able,
for the benefit of the alleged offender, to revise its proposal after having taken note of
possible objections made by the alleged offender.
(4) The authorities should specify the circumstances in which they have recourse to
out-of-court settlements and should draw up guidelines and tables of amounts payable
for out-of-court settlements in order to ensure, as far as possible, the principle of
equality before the law. With this aim, it is useful to publish the circumstances,
guidelines and tables of amounts payable.
(5) The alleged offender who does not wish to accept the proposal for an out-of-court
settlement should always be entirely free to ignore or refuse the offer.
(6) The acceptance of the out-of-court settlement by the alleged offender and the
fulfillment of the conditions make the renunciation of the right to prosecute definitive.
(7) The authorities should publish an annual report on how they have exercised their
powers of out-of-court settlement, without disclosing the identity of the alleged
offenders.

5.3.12 OUT OF COURT SETTLEMENT IN SOUTH AFRICA:

Unconditional discontinuation of prosecution has been in place for many
years. The basic criterion for the decision to institute a prosecution is, firstly, that
sufficient, admissible evidence should be available to provide a reasonable prospect

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of a successful prosecution335.

In the absence of a reasonable prospect of a

conviction, a prosecution should not be pursued. The second is that a prosecution

should normally follow if there is sufficient evidence for a conviction ...unless public
interest demands otherwise336. It is clear that our law does not oblige a prosecutor to
institute a prosecution whenever sufficient evidence is available. A variety of factors
should be considered in determining whether public interest dictates that a
prosecution should follow or not. The relevance of these factors, and the weight to be
attached to each of them, depends on the circumstances of each individual case and,
therefore, on the discretion of the prosecutor. The factors that are involved basically
centre around the triad of factors entailed in sentencing, namely the seriousness of the
offence, the circumstances of the offender and the interests of society. More detailed,
these factors include the relationship between the accused and the victim, the
economic impact of the offence, its impact on public order and morale, the attitude of
the victim, the likely expense of the prosecution, the accuseds previous convictions,
the willingness of the accused to co-operate with the authorities in the investigation
and prosecution of others, and whether the objectives of criminal justice would be
served better by preferring a non-criminal alternative to a prosecution.
Criminal Procedure Act provides, though only in one section, for out-of-court
settlement. Section 6(1)(c) provides the prosecutor with the authority to suspend a
prosecution whilst placing the accused under correctional supervision. It does not lead
to the conviction of the accused, and a successful completion of the correctional
supervision ends the matter. Section 341 of CPA suggested for compounding of minor
offences337.

335

National Prosecuting Authority of South Africa Prosecution Policy (2000) 3.

Id
337
Any class of cases mentioned in Schedule 3 of CPA.
336

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5.4 VICTIM OFFENDER MEDIATION:

One popular form of restorative justice is victim-offender mediation338.
Victim-offender mediation evolved from traditional mediation, which continues to
grow in different places of the world in response to widespread dissatisfaction with
the adversarial process in resolving certain types of disputes339. Mediation is a
facilitative process in which a third party neutral facilitates a conversation between
two or more parties, with the goal of assisting the parties in resolving the dispute340.
Accordingly, we can say that Victim-offender mediation is a process that provides
interested victims of primarily property crimes and minor assaults the opportunity to
meet the juvenile or adult offender, in a safe and structured setting, with the goal of
holding the offender directly accountable for his or her behavior while providing
importance assistance and compensation to the victim. With the assistance of a trained
mediator, the victim is able to let the offender know how the crime affected him or
her, to receive answers to questions, and to be directly involved in developing a
restitution plan for the offender to be accountable for the losses he or she incurred.
The offender is able to take direct responsibility for his or her behavior, to learn of the
full impact of what he or she did, and to develop a plan for making amends to the
person he or she violated341.
In mediation, the mediator facilitates communication between the parties,
assists the parties in identifying the issues of the dispute, and generates options for

338

Alyssa H. Shenk, Note, Victim-Offender Mediation: The Road to Repairing Hate Crime Injustice,
17 OHIO ST. J ON DisP.RESOL. 185, 185 (2001)
339
James Coben& Penelope Harley, Fall 2003 Dispute Resolution Institute Symposium: Intentional
Conversations about Restorative Justice, Mediation and the Practice ofLaw, 25 HAMINEJ. PUB L. &
POL'Y 235, 240-41 (2004).
340
Kimberlee K. Kovach, Mediation: Principles And Practice,14 (Thomson West 2004) (1994), quoted
in Russell E. Farbiarz, VICTIM-OFFENDER MEDIATION: A NEW WAY OF DISCIPLINING
AMERICA'S DOCTORS, 12 Mich. St. U. J. Med. & L. 359 2008
341
MARK S. UMBREIT, ROBERT B. COATES & BETTY VOS, Victim-Offender Mediation:Three
Decades of Practice and Research, CONFLICT RESOLUTION QUARTERLY, vol. 22, no. 12, Fall
Winter 2004

P a g e | 129

settlement342. In our Anglo-American system of justice, offenders are not held directly
accountable for their actions against their victims. Because of this, offenders often fail
to understand the human impact of their actions, especially the emotional
repercussions of victimization343. Victim-offender mediation draws on a restorative
justice model by allowing the parties to discuss the offense, resolve feelings and
issues about it, and negotiate an agreement acceptable to both parties. But most
importantly, it allows victims to participate in a meaningful way in the criminal
justice system. This model even benefits the offender; they are held accountable for
their actions in a more constructive and humane manner344. A national survey of
VOM programs in the United States provides an overview of the types of cases
typically brought to mediation. Juvenile offenders are more likely to be the primary
focus of U.S. VOM programs, with 45 percent of programs offering services solely to
juveniles and an additional 46 percent serving both juveniles and adults. Only 9
percent of VOM programs nationwide are focused on adults alone345. In the U.S.
survey, fully two-thirds of the cases referred to VOM are misdemeanors; the
remaining third are felony cases. The four most common offenses referred, in order of
frequency, were vandalism, minor assaults, theft, and burglary. Together, these four
offenses accounted for the vast majority of referrals. The primary referral sources
were probation officers, judges, and prosecutors346.

342

Russell E. Farbiarz, VICTIM-OFFENDER MEDIATION: A NEW WAY OF DISCIPLINING

AMERICA'S DOCTORS, 12 Mich. St. U. J. Med. & L. 359 2008
343
Melinda Smith, Mediation and the Juvenile Offender, SPRING/SUMMER 1991, Melinda Smith is
Director of the New Mexico Center for Dispute Resolution.
344
id
345
MARK S. UMBREIT, ROBERT B. COATES & BETTY VOS, Victim-Offender Mediation:Three
Decades of Practice and esearch, CONFLICT RESOLUTION QUARTERLY, vol. 22, no. 12, Fall
Winter 2004
346
Id

P a g e | 130

The goal of mediation is to have the parties talk directly to each other in order
to discuss their dispute and reach a "mutually acceptable resolution.''347 Because a
resolution is not forced upon the parties, mediation tends to be more successful in
repairing strained relationships, providing emotional space for apology and healing,
and allowing a discussion of a broad range of issues. This method also generally
results in an agreement that is adhered to by all parties348.
In USA the victim-offender mediation beganas an experiment in Kitchener,
Ontario349. In that experiment, the probation officer of two boys convicted of
destroying property suggested that an appropriate punishment for the boys consisted
of visiting the homes of their victims so that they could confess their crimes and reach
restitution agreements. A local judge agreed, and the probation officer's plan was
implemented. Few expected this experiment to be as successful. Within a few months,
the boys met with each victim and made reparations350. After a few years, victim
offender mediation migrated south and became a staple in the American criminal
justice system351.
In the general model, victim-offender mediation proceeds in four stages. In the
first stage, commonly referred to as intake, the mediator learns about the conflict from
the disputants, and "must determine whether the offense and parties are appropriate
347
Melinda Smith, Mediation and the Juvenile Offender, SPRING/SUMMER 1991, Melinda Smith is
Director of the New Mexico Center for Dispute Resolution.
348
Gary Paquin& Linda Harvey, Tberapeutic Jurisprudence, Tranformative Mediation and Narrative
Mediation: A Natural Connection, 3 FL. COASTAL L.J. 167, 169 (2002). Statistically, mediation
increases four-fold the likelihood that restitution resulting from an agreement made during victimoffender mediation will be paid.
349
IlyssaWellikoff, Vietim-Offender Mediation and Violent Cimes: On the Way to Justice, 5
CARDOZO J. CONFLICT RESOL. 2, 2 (2003); See also Alyssa H. Shenk, Note, Victim-Offender
Mediation: The Road to Repairing Hate Crime Injustice, 17 OHIO ST. J ON DisP.RESOL. 185, 185
(2001); Mark S. Umbreit, Mediating Interpersonal Conflicts: A Pathway to Peace 138 (CPI Publishing
1995) (1995).
350
Id
351
Id.Victim-offender mediation made its first appearance in the US in Elkhart, Indiana in 1978, and
quickly found a niche in juvenile courts, as well as the adjudication of property crimes and nmdor
assaults. Victim-offender mediation was met with great success in this arena and received endorsement
from the American Bar Association in 1994. As a result of this stamp of approval, victim-offender
mediation has been expanding its scope, and there is a trend towards using the process to mediate
crimes of violence.

P a g e | 131

for mediation. The second stage is preparation for confrontation. Confrontation is

conducted in several ways, depending upon whether a "social work case development
model" or "pure mediation" model is used. The next phase is the mediation itself.
Mediation sessions are focused upon "dialogue rather than reaching a restitution
agreement and facilitating empathy and understanding between the victim and the
offender." Lastly, if the parties cannot reach an agreement, the case is remanded to the
court. The final phase of victim-offender mediation is follow-up. If an agreement has
been reached, the offender is monitored to ensure compliance with the agreement352.
Victim-offender mediation provides many benefits unavailable in the
retributive criminal justice system. The most significant benefit is that victimmediation humanizes the criminal justice process353.Additionally, victim-offender
mediation has the unique power to allow victims and offenders to enter into nontraditional reparation agreements which reflect justice that is meaningful to the
participants. Victim-offender mediation provides an important benefit to offenders
and the community by generating a lower rate of recidivism354. In reality the victimoffender mediation has the potential to achieve results that are much more satisfying
to victims, offenders, and the criminal justice system in general; this is accomplished

352

Russell E. Farbiarz, VICTIM-OFFENDER MEDIATION: A NEW WAY OF DISCIPLINING

AMERICA'S DOCTORS, 12 Mich. St. U. J. Med. & L. 359 2008
353
By providing the victim with an opportunity to speak directly to the offender and discuss how the
crime has affected his or her life, victim-offender mediation gives the victim a therapeutic outlet that
initiates the emotional healing process., See Id Russell
354
Studies indicate that offenders who participate in victim-offender mediation are far less likely to
commit a crime in the future. See John Braithwaite, Restorative Justice: Assessing Optimistic and
Pessimistic Accounts, 25 CRIME &JUST. 1, 22-23 (1999). Braithwaite indicates that there is a
"decline in recidivism among mediation cases." Several studies indicated lower rates of recidivism
among mediation cases when compared to similarly situated non-mediation cases, although the
differences frequently fell short of statistical significance. One study by Forsythe, which did not fall
short of statistical significance, reported that there was a 20% reoffending rate for mediation cases
involving juveniles compared to a 48% rate for the cases going to court. See also William R. Nugent,
Mona Williams & Mark S. Umbreit, The Practice of Restorative Justice: Participation in VictimOffender Mediation and the Prevalence and Severiy of Subsequent Delinquent Behavior: A MetaAna~sis, 2003 UTAH L. REv. 137, 156, 164 (2003)

P a g e | 132

by the mere act of infusing the principles of restoration and rehabilitation into the
criminal justice system355.
Victim offender mediation is practicing throughout the USA and some other
places following the USA experience. As it has been seen earlier, that Victims
offender mediation has potentiality to resolve different kind of cases. Accordingly
such experiences can be used in India.

5.5 ADVANTAGES AND DISADVANTAGES OF OUT-OF-COURT

SETTLEMENTS
The South African Law Commission highlighted following advantages of the
out-of-court settlements356:
(1) Most importantly, they will contribute to saving precious court time and costs,
since the case can be finalized without going to court, and without the time
consuming task of settling factual disputes.
(2) The saving in time means that more cases can be dealt with more rapidly,
something that should improve the perception of the administration of justice.
(3) The accused person has certainty over the outcome of the case, provided the
conditions of the agreement are complied with.
(4) The accused person does not end up with a record of previous convictions, a factor
which often prompts people to dispute a criminal charge.
(5) If all parties involved approach the matter with open minds there are ample
opportunities for restorative justice as an outcome of an out-of-court settlement.
However, expectations in this respect should be tempered by the experience in
355

Russell E. Farbiarz, VICTIM-OFFENDER MEDIATION: A NEW WAY OF DISCIPLINING

AMERICA'S DOCTORS, 12 Mich. St. U. J. Med. & L. 359 2008
356

SOUTH AFRICAN LAW COMMISSION, OUT OF COURT SETTLEMENTS IN CRIMINAL

CASES,
PROJECT
73
(August
2002),
Available
at
http://www.justice.gov.za/salrc/reports/r_prj73_intrep6_2002aug.pdf last visited on 17-07-2010

P a g e | 133

jurisdictions employing out-of-court settlements, namely that such conditions are

rarely used.
(6) Victims can be protected from publicity, and from having to be subjected to cross
examination, and yet benefit from compensation or restitution by the accused.
The main disadvantages of out-of-court settlements are the following357:
(1) The possibility exists that the public may view private settlements with suspicion,
something that may impact negatively on the image of the administration of justice.
However, it is unrealistic to expect each dispute and crime to be settled in open court.
The criminal justice system simply does not have that capacity. Also, secrecy can
sometimes be preferable.
(2) Some may argue that the lack of judicial control over out-of-court settlements is
another disadvantage358.
(3) There are various ways in which lawyers and public prosecutors can influence an
accused person improperly to make the required admission or to consent to the
conditions of the out-of court settlements. However, this will not be something
peculiar to out-of-court settlements.
(4) The decision to enter into out-of-court settlements and the nature of the conditions
can be based on irrelevant factors, such as the personality of the prosecutor and legal
representative, which could lead to the unequal treatment of accused persons.
However, the exercise of discretion by the prosecutor is an integral part of the
criminal justice system as it currently stands. If applied correctly, out-of-court
settlements could become an instrument furthering the effective administration of
justice.

357

Id
The Society of Advocates of Kwa Zulu-Natal, South Africa, found this disadvantage to be serious.
The Law Commission of South Africa suggested for increase in the role of the judiciary. In India too,
there are cases where judicial play important role in approval of settlement.

358

P a g e | 134

5.6 ROLE OF STAKE HOLDERS IN OUT OF COURT SETTLEMENT:

Each stake holder of the Criminal Justice System play very important role in
the process of out of court settlement. Some of the roles of each of such stake holder
are as follows;

5.6.1 THE ROLE OF VICTIMS

What kind of role a victim should have in the process of out of court
settlement was and is the issue of concern for different bodies? Should they allowed
to be given any input in the decision to enter into an out-of-court settlement? If they
should, a further question is the extent of this input and whether a victim should be
able to veto the prosecutor's decision to enter into an out of- court settlement359? It is
expected that since the settlement procedure will often be victim-driven, victims
should be given considerable input in the decision whether to enter into such a
settlement360. The South African Law Commission observed that the victim or
victims representative should get the opportunity to make representations to the
prosecutor on whether an out-of-court settlement would be fair within the
circumstances, to make suggestions with respect to restorative justice conditions and
to provide proof of damages suffered as a result of the offence. The prosecutor will
have to take such representations into account in reaching his or her decision, but
should not necessarily be bound by them361. However, it was opined that the victim,
who is subjectively involved in the matter, should not be in a position to veto the
decision to enter into an out-of-court settlement. In order to enable the victim to make
359

There may be cases where entire settlement agreement reached between victims and accused
directly as in the case of compounding of offence, the victim definitely control the proceeding.
Similarly, if victim and accused are assisted by third party mediator as in the case of Victim-Offender
Mediation, victims are decision making authority and they do have power to veto. However, the main
issue appeared where settlement is reached between prosecutor and accused as in the case of
withdrawing, probation, approval etc., what kind of role victims should have?
360
South African Law Commission
361
South African Law Commission

P a g e | 135

these representations, the victim should be notified of the intended out-of-court

settlement, whenever possible. In India also victims are neither given any power to be
part of either withdrawing proceeding nor any role in decision making relating to
grant of probation or approver. At least their opinion could be sought on those
circumstances. Law Commission also observed that it should not be possible for a
victim to institute a private prosecution against a person who has entered into an outof-court settlement with the prosecutor362. There can be some power to the victims
before such settlement, as an interested party, to be able to take the matter on review
if the settlement is unreasonable, or made in bad faith.

5.6.2 THE ROLE OF LEGAL REPRESENTATIVE

A further question is whether the legal representative should be given any
specific role to play, whether this role should be spelled out or whether general
principles should apply in this respect. The Canadian Law Reform Commission
recommended that, if the accused is legally represented, the prosecutor must negotiate
with the legal representative363. The South African Law Commission also
recommended that such requirement makes sense also in an out-of-court settlement
scheme. Beyond this function, which should be contained in legislation, the ordinary
principles with respect to legal representation should apply364. In India also the legal
representative can participate in the process on behalf of victims or accused in certain
circumstances.

362

In India say for example the result of withdrawal from prosecution amounted to acquittal from the
case. Accordingly, no question arises for instituting a separate case as it will amount to double jeopardy
within the meaning of Art. 20 of the Constitution and Section 300 of Cr.P.C.
363
MilicaPotrebicPiccinato, Plea Bargaining, The International Cooperation Group Department of
Justice of Canada 2004, available at http://www.justice.gc.ca/eng/pi/icg-gci/pb-rpc/pbrpc.pdf, last
visited on 17-07-2010
364
SOUTH AFRICAN LAW COMMISSION, OUT OF COURT SETTLEMENTS IN CRIMINAL
CASES,
PROJECT
73
(August
2002),
Available
at
http://www.justice.gov.za/salrc/reports/r_prj73_intrep6_2002aug.pdf last visited on 17-07-2010

P a g e | 136

5.6.3 ROLE OF THE JUDICIAL OFFICER

It must be determined whether the judicial officer should have any role in out-of-court
settlements, such as confirming the settlement, as is currently the case with respect to
admissions of guilt. In India the judicial officer played very important role. In case of
compounding of offences which are subject to court permission365 the judicial officer
has to apply its mind and decide whether compounding is made voluntarily by the
victims, it is in the interest of justice, so on and so forth. In Provincial Govt. v.
Bipin366 the court held that while granting permission to compound an offence the
court should act judicially and should exercise a sound and reasonable discretion. Law
Commission of India observed that the safeguards of the courts permission is to
prevent an abuse of the right to compound and to enable the court to take into account
the special circumstances of the case which justify composition367. In RamjiLal v.
State of Haryana368 the Supreme Court caution that while granting permission to enter
into composition and accepting the same, the chastened attitude of the accused and the
commendable attitude of the injured complainant, in order to restore harmony in
society, were taken into consideration by the court. The Law Commission of South
Africa observed in the light of their believe that the settlement should not amount to a
previous conviction and that the accused should only consent to the settlement,
judicial officer should not play any role until an out-of-court settlement has been
entered into369. However, to grant final approval to the settlement the judicial officer
has to act judicially to at least determine the voluntariness of such settlement.

365

See Section 320 Clause (2) of Code of Criminal Procedure, 1973

AIR 1945 Nag 104, See also V. K. Mannur v. State of Mysore, AIR, 1965 Mys 238
367
41st Law Commission Report, pp 213-214, para 24.67
368
(1983) 1 SCC 368
369
SOUTH AFRICAN LAW COMMISSION, OUT OF COURT SETTLEMENTS IN CRIMINAL
CASES,
PROJECT
73
(August
2002),
Available
at
http://www.justice.gov.za/salrc/reports/r_prj73_intrep6_2002aug.pdf last visited on 17-07-2010
366

P a g e | 137

5.6.4 ROLE OF OTHER INTERESTED PARTIES:

There are other interested parties who are associated with the case such as
probation officer or the investigating officer. The question is whether an out-of-court
settlement should also be preceded by consultation with them. The Law Commission
of South Africa suggested that consultation may be held with them but such
consultation should not be a formal requirement for an out-of-court settlement. This
should not prevent the prosecutor or the defense from obtaining a probation officer's
report. Furthermore, if the investigating officer is of the opinion that an out-of-court
settlement shouldnot be entered into in a specific case, the initiative to prevent this
should come from the police agency, rather than requiring the prosecutor to consult in
each and every instance. On the other hand, however, the prosecutor should not be
allowed to enter into a settlement without sufficient information about the offence and
its surrounding circumstances370. In India we do not have any legal requirements
except in some exceptional circumstances such as under Juvenile Justice Act, the
probation officer as well investigating officer has to submit Social Back Ground
Report (SBR) which helps the Board to determine further course of action371.
However, this is not normally for reaching settlement outside the court but helps the
board to give benefit to juvenile offender372. Similarly, in Child labor case, the Child
Labor Welfare Officer plays very important role they have to be consulted.
Thus there may be circumstances where some other party having interest in
the case may need to be consulted. Indeed, their role can be minimal and they cannot
be normally allowed to override the desire of the disputed parties to reach out of court
settlement.

370

Id
See Rule 11 of Model Juvenile Justice (Care and Protection) Rule, 2007
372
Under the Juvenile Justice (Care and Protection) Act, 2000, such juvenile offenders are known as
Juvenile in Conflict with laws U/S 2 of the Act.
371

P a g e | 138

5.7 LIMITATION ON OUT OF COURT SETTLEMENT:

According to the South African Law Commission373 the offences that should
qualify the accused person for an out-of-court settlement would generally be restricted
to offences at the lower end of the scale of severity. The question is whether the
legislation should specifically limit such offences or whether this decision should be
left to the discretion of the prosecutor. Law Commission observed that ideally some
guidance should be given in the legislation. The Law Commission cautioned that
there is no room in our law for an out-of-court settlement to be imposed upon an
accused person or for improper influencing of the accused to accept the settlement or
its conditions. The Commission observed that an admission of guilt should not be
required for purposes of an out-of-court settlement, but that the accused should
consent only to the terms of the out-of-court settlement before it can be implemented.
The accused persons should be able to enter into a settlement with more freedom if
consent is the only requirement374. In U.S. in the celebrated case of Hudson375, it has
been observed that in the absence of statutes to the contrary, the Courts cannot accept
a plea of Nolo Contendere for capital offence. It is, also, interesting to mention that
in some Courts, this plea is not accepted where imprisonment is mandatory on
conviction of the offence charged. In Federal Courts, a number of States jurisdictions
accept the Nolo Contendere in a felony cases as well as in misdemeanor case.
However, there are some jurisdictions, in which the plea is accepted in cases of
misdemeanor exclusively punishable by a fine or for which imprisonment or fine are
alternative punishments. In U.S., such plea has been accepted in great variety of
cases; although in most of them, questions of the propriety of the plea has been
373

SOUTH AFRICAN LAW COMMISSION, OUT OF COURT SETTLEMENTS IN CRIMINAL

CASES,
PROJECT
73
(August
2002),
Available
at
http://www.justice.gov.za/salrc/reports/r_prj73_intrep6_2002aug.pdf last visited on 17-07-2010
374
Id
375
Hudson Vs. U.S. 363 U.S. 807

P a g e | 139

decided in cases referred to earlier. However, it is important to note that such plea has
been accepted in prosecutions for crimes against the persons, against the property,
against the public peace, public decency or good morals, public justice and in
prosecutions for other offences and statutory violations376.
In India there are restriction imposed in respect of out of court settlement
keeping in mind larger public interest. However, there is need for perusal of such
limitation and their justification. So far plea bargaining is concerned, the India
Laws377 has excluded its applicability to (a) offences punishable exceeding 7 years,
(b) offences against women, (c) offences against children below 15 years of age and
(d) socio economic offences. Similarly the power of the disputant to compound their
dispute relating to commission of offence is restricted under Indian law378. The most
of the offences covered by the provision are minor in nature where punishment
quantum is quite minimal. There are some offences where punishment is higher such
as 7years but all those offences are individualistic like bigamy, adultery etc.
Moreover, the last clause made it clear that only those offences can be compounded
which are mentioned in the provision. The judiciary though some time expanded the
ambit but only in restricted manner and mainly exercising their inherent power379. The
offences under special laws are not compoundable unless such special laws specified
it380. Similarly there are restrictions in respect of probation granted to convicted
accused. Only selective cases where punishment is less are eligible for probation381.

376

Justice J.N.Bhatt, DOCTRINE OF NOLO CONTENDERE : DOES IT NOT DESERVE A

TRIAL? Available at http://lawcommissionofindia.nic.in/adr_conf/nolo%20contendere%204.pdf last
visited on 15-06-2010
377
See Section 265 A of Cr.P.C.
378
See Section 320 Cr.P.C which restrict the power of compounding of offences only those offences
covered by Clause (1) & Clause (2)
379
We have seen earlier that court have allowed compounding of offences U/S 498A IPC or 406 IPC
but by exercising inherent power granted to High Court U/S 482 Cr.p.C. Thus such powers are not
available to the Magistrate.
380
Negotiable Instrument Act allows compounding of offences by incorporating specific sections in
this regard.
381
See Section 360 Cr.P.C and Probation and Offenders Act

P a g e | 140

So far withdrawing from prosecution is concerned, the prosecutors are given wide
power. Any cases at any stage before pronouncement of judgment can be withdrawn
by prosecutor in-charge of the case382. However, such power has to be exercised with
caution and need approval of the court383. The power to grant approver is also with the
court384.
Thus the power to reach out of court settlement is not beyond limitations.
There are limitations, some time rightly, which restricted the applicability of out of
court settlement to only specific class of cases.

5.8 CONCLUSION:
There are other processes of restorative justice which are functioning in other
parts of the world and which can be practiced in India. One of the major forms of
restorative justice process is Victim-Offender Mediation. In India we do not have any
legislation which can regulate such Victim-Offender Mediation. Nevertheless, if
Victim-Offender Mediation is conducted in respect of compoundable offence and if
the parties reach some settlement, such settlement can be submitted for court approval
U/S 320 Cr.P.C. for compounding of the offence. Thus the outcome of the VictimOffender Mediation can be approved by court. Similarly the other processes of
restorative justice like conferencing etc. can also be practiced in respect of
compoundable offence. Thus though we do not have any direct law to regulate such
restorative justice process but power granted under Criminal Procedure Code can be
instrumental for implementation of restorative justice processes in India. However,
there are limitations and the main limitation is the nature of the offences in which

382

See Section 321 Cr.P.C.

Id
384
Section 306 Cr.P.C
383

P a g e | 141

such procedure can be applied. It can only be applied in respect of compoundable

offences.
There are limitations of aforesaid restorative justice processes in India. The
restorative justice process such as plea bargaining can be conducted only in respect of
offences where punishment is less that 7 years and in case the offence is not against
women, children and socio economic offences. Similarly, process of restorative
justice by Lok-Adalat, other means like settlement through the intervention of third
parties or otherwise can be done only in respect of compoundable offences. Thus the
process of restorative justice in India is restricted to minor offences. Moreover, such
out of court settlement got due encouragement from law commission or similar
bodies. Other than compounding of offences, withdrawing power U/S 321 and LokAdalat, there are other procedures under Cr.P.C which may be instrumental for out of
court settlement such as pardoning power U/S 306 Cr.P.C as well power of the court
to release the person on probation U/S 360 of Cr.P.C or Probation of offender Act.
The out of court settlement in different forms are being followed throughout
the globe as we have seen earlier. The experience of such practiced can provide a
guide for expansion of out of court settlement in India. The practice like VictimOffender mediation which is seen as tool to provide restorative justice, can be utilized
in India. Within the present legal framework it is permissible in the case of
compoundable offence as such outcome of the mediation can be submitted to the
court for compounding the offence. Thus there is need to utilization of out of court
settlement extensively in India.

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FINDINGS AND SUGGESTIONS

In India, study has found that dispute resolution outside the formal court
system was effective since time immemorial in some form or other. The present
system of court annexed settlement as well as outside court settlement provides a
golden opportunity to the disputant to resolve their dispute through the mechanism
best suited to them. Such plenty of mechanism which have the components of
restorative justice help a large number of parties to settle their disputes outside court.
Restorative justice provides a large number of advantages in comparison to the
adjudicatory processes, such as speedy disposal, cost effectiveness, maintenance of
good relationship and chances of continuity of relationship, less formality, more
compliance etc. In different parts of the world, people started using restorative justice
system within criminal Justice System in different ways, such as plea bargaining,
Victim-Offender Mediation, out of court settlement etc.
Benefits obtained by such processes in other jurisdictions have compelled our
legislature to use it within the Indian Criminal Justice System. The result of such
incorporation of different processes within criminal justice is emergence of Plea
Bargaining within criminal procedure. Moreover, since the beginning of the criminal
procedure in India there were provisions which could have been instrumental for
using restorative justice within CJS such as compounding of offence, withdrawing
from prosecution etc. Thus the study shows that out of court settlement within
criminal justice system was not alien in India.
The concept of plea bargaining was in reality the expansion of use of
restorative justice within criminal justice administration. It is being used to further
justice. Reduction of backlog of cases was not the sole reason for its extensive use.
Though there were arguments against Plea Bargaining but countries like USA made it

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an important tool to settle criminal cases by placing effective safeguards to prevent its
abuse or misuse. There have been instances where around 80% - 90% cases were
settled through plea bargaining. Plea bargaining has an old history and by 1920s plea
bargaining became an established part of the judicial system. There were several
reasons for emergence of plea bargaining as well as its expansion which includes (a)
increased complexity of the trail process, (b) expansion of substantive law such as
liquor related offence etc., (c) increasing crime rates and (e) greater use of
professional administration of justice. The plea bargaining process was used in several
countries apart from USA. In some part of the Canada around 93% of the cases were
resolved through plea bargaining. In order to provide safeguards to the process, the
Criminal Code of Canada prescribed for pre-trail conference between prosecutor and
the accused or defense counsel with the judge presiding over. The Judges role in such
process was to be fair and impartial. South Africa went on to prescribe discretionary
prosecution and number of states followed suit. Today we find extensive use of pleabargaining in New Zealand, England and Wales as well as in some Civil Laws
Countries.
There were arguments in favor of plea bargaining such as best allocation of
resources to reach mutual end result, greater flexibility in the system, allowing the
accused to acknowledge guilt and assume responsibility for his action, victims to be
shielded from trail. Even the judiciary approved the constitutional validity of the
process at the same time holding it to be highly desirable within criminal justice
system. There were some counter argument mainly based on fair trail principle and
apprehension of false conviction. The main criticism which appeared was about
improper conviction but such risk of improper conviction was already existing and
would not be a new additional. Moreover, any increased risk of improper conviction
is offset by the lighter sentences imposed on these accused. The problems associated

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with plea bargaining are not so huge so as to warrant its abolishment or used in
minimal circumstances. What is needed is proper safeguard mechanism and a method
to control the whole process. Plea bargaining in most places is for both sentence
bargaining as well as charge bargaining unlike India where we have recognized only
sentence bargaining.
In India too, we find courts being flooded with astronomical arrears of cases.
The conviction rates are at minimum level varying from 6% to 10% of the total
offences. There are large number of minor offences which if given opportunity can be
settled through plea bargaining. Under such circumstances Indian legislature had
given serious thought to the concept of plea bargaining, which has been successfully
employed in many parts of the world. The incorporation of plea bargaining within
CJS was also a result of several recommendation made by different bodies like Law
Commission of India, Criminal Justice Reform Committee, Committee on Criminal
Justice Policy etc. In India though The Supreme Court had earlier refused to approve
plea bargaining as being constitutionally valid but with the incorporation of specific
legislative provisions we can assume the process to be valid within the ambit of
Indian Constitution. Moreover, the U.S. Supreme court has not only declared the
process constitutionally valid but also held it to be highly desirable. We even came
across some judicial remark stating that it is likely for our judicial system to collapse
in the absence of plea bargaining. Indian Plea Bargaining system is a sui generis
system which had provided opportunity to a large number of stakeholders to
participate. In contrast to US system where the victims have no role to play in plea
bargaining process, Indian plea bargaining system allows victims to play significant
role .The position stands that the stakeholders cannot reach a mutually satisfactory
disposition without the approval of the victim. The plea bargaining process
recognized the rights of the victims to participate in the process. There are restrictions

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in respect of the categories of cases which can go for plea bargaining. The law has
created limitation in respect of cases where the punishment is 7 years and more as
well as offences against children, women and social economic offences. Further the
Indian plea bargaining does not recognize charge bargaining prevalent in many parts
of the world. However study has found that plea bargaining is not effective in most
parts of the country. Delhi has taken lead in settlement of a large number of cases by
plea bargaining. There is need for awareness about plea bargaining among most of the
stakeholders.
It is an established fact that human behavior compels a person to decide on the
basis of alternatives available to him. The present Criminal Justice System shows that
the accused has only 6-10% chances of conviction and around 90% chances of
acquittal. In such situations it is will be rare for the accused to ask for lesser
punishment when he knows that he has 90% - 96% chances of securing acquittal. So
to make the system fair and plea bargaining really effectively we must strive towards
making the whole criminal justice system more effective. In USA or other places one
of the main reason behind plea bargaining being effective is the high rate of
conviction. In these countries accused are aware that they have only 10-20% chance
of securing acquittal and 80%-90% chance of conviction with higher penalty; hence
they find it profitable to settle for lesser sentence. Thus, in order to make plea
bargaining more effective, we need to improve the whole criminal justice system.
There are other processes apart from plea bargaining where settlement can be
reached outside court without intervention of the court; indeed they need approval of
the courts. The out of court settlement are of two categories, one which need
intervention of third party which includes Lok-Adalat, Panchayat, Village Elders etc
and the second one by the parties themselves or between prosecutor and accused but
taking into account the aspiration of the victims. These categories of out of court

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settlement are distinguished from plea agreement.

The concept of out of court

settlement got encouragement from different bodies such as Law Commission of

India, Criminal Justice Reform Committee, and Committee for Criminal Justice
Policy etc. Different processes for out of court settlement are being followed in
different places in the world which includes USA, Germany, Denmark, England &
Wales, Belgium, Italy, The Netherland, Portugal, Austria, Poland etc. Council of
Europe had also issued an elaborate recommendation for the use of out of court
settlement in Europe. Similarly the South African Law Commission has also
recommended for use of out of court settlement in South Africa. One of the effective
out of court settlement mechanism as followed in USA and other countries are
Victim-Offender Mediation. This started as one of tool for providing restorative
justice to the victims. In this process the Mediator facilitates communication between
the parties, assists the parties in identifying the issues and generates option for
settlement. The goal of mediation is to have the parties talk directly to each other in
order to discuss their dispute and reach a mutually acceptable resolution.
Out of court settlement is practiced in India in one form or other since the
inception of criminal procedure itself. There are procedures incorporated in Criminal
Procedure, which directly or indirectly, very instrumental for out of court settlement
such as compounding of offences, withdrawal from prosecution, withdrawal from
compliant, pardoning power, Lok-Adalat etc. In India we dont have established
Mediation process for resolution of criminal cases but the process of compounding of
offences can be used for getting judicial recognition of criminal cases where
settlement is reached through mediation. Moreover, the process of Lok-Adalat is one
of the glorious examples of the process through which criminal cases can be settled
outside courts. One of the important issues which have come up about out of court
settlement is the role of the stake holders and this needs some clarification for

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effective functioning of the system. Though a large number of cases are settled
through such processes out of court, there is need to imposing limitation on such
power. All offences cannot be settled through out of court settlement. There are
restrictions under Indian law such as provision for only limited number of cases being
compoundable. Similarly Lok-Adalat can take cognizance only in respect of
compoundable offences. Several bodies have suggested expansion of the offences in
the compoundable offence list. So on the one hand there is need to expand the concept
of compoundability and on the other hand there is need to lay down appropriate
limitation in respect of settlement of criminal cases.
The

use

of

restorative

justice mechanism

within

criminal justice

administration is in reality a process by which we can provide restorative justice. In

restorative justice process, the focus of criminal justice shifts from the accused to the
victim. The widely accepted definition of ECOSOC provides that it is a process
whereby all the parties with a stake in a particular offence come together to
collectively resolve issues relating to dealing with the aftermath of the offence and its
implication for the future. The entire focus of such discussion shall be victim oriented.
There are different ways in which restorative justice can be contrasted with traditional
criminal justice system most importantly the role of the victims being much wider and
decisive in restorative justice processes. There are a number of core program model
of restorative justice which are being followed in most of the countries such as victimoffender mediation, family group conferencing, Sentencing circles, healing circles
and community-assisted hearings, etc. Though some form of restorative justice
process is being followed from time immemorial but the present movement of
restorative justice started from 1974 onwards and since then it was continuously
expanded. The present forms of restorative justice have its genesis in the traditional

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justice system which is followed in different communities and societies. The principle
of restorative justice was gradually developed in other parts of the world, including
Australia, Canada, numerous European countries, Japan, New Zealand, South Africa,
several South American countries, South Korea and Russia etc. and several
international as well as regional bodies provided encouragement for its utilization.
In India too, there are different ways in which criminal cases are settled, either
through court annexed settlement or otherwise such as plea bargaining, outside court
settlement such as compounding of offences, Lok-Adalat etc. The plea bargaining
process as incorporated in India is a mixture of plea bargaining system of other
country as well as restorative justice process. In sui generis Plea Bargaining process
victims get rights to decide about the case, participate in the process along with other
stake holders and if their aspirations are fulfilled settled the case by virtue of
mutually satisfactory disposition. This process is nothing but fulfillment of the
restorative justice system. Similarly other processes followed in India such as LokAdalat, compounding of offences etc. give enormous rights to the victims to decide
about their own case which makes the process a restorative justice process. Moreover,
the process like Victim-Offender Mediation which is not prevalent in India may be
practiced and the outcome can be recognized through court by compounding of
offences. Thus the use of all such processes within criminal justice system is in reality
a potent tool to provide restorative justice in India.

SUGGESTIONS
1. There is need for expansion of different forms of restorative justice in India; say for
instance mediation can be conducted between the victim and offender, at least in

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respect of minor offences. Similarly, conciliation can be an effective tool to resolve

minor criminal cases.

2. There is need for more institutionalized restorative justice processes should become
functional for resolution of criminal cases such as court annexed mediation etc.
Similarly, for minor offences and those offences which are more individualistic like
Bigamy, Adultery etc., can be resolved through such quasi mandatory mediation or
compounding processes.

3. The restorative justice system within the criminal justice administration has to be
popularized. There is need for awareness program, training for functionaries and
proper policy framework.

4. The successful implementation and functioning of process like Plea Bargaining or

compounding of offences with effective bargaining power to the victims will not be
possible unless we have effective traditional justice system and active normal court
system. Accordingly, on the one hand we need to explore and utilize different
restorative justice process within CJS and on the other hand endeavor shall be made
to make court system effective so that people can get speedy justice.

5. Lok-Adalat is one of the important dispute resolution processes which have the
power to settle compoundable offences. Rarely criminal cases are referred to the
Lok-Adalat not even minor compoundable offences. We can use this institution
which in turn can successfully able to provide restorative justice to the victims.

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6. Gram Nyayalayas do have power to deal with minor offences. There is need for
encouragement of Gram Nyayalayas to resolve most of the minor criminal cases and
to use restorative justice system like victim-offender mediation for minor criminal
offences, wherever feasible.

7. The concept of plea bargaining is relatively new in India. There is need to popularize
it among the functionaries. The hostile attitude of lawyers is one of the biggest
hurdles in effective implementation of plea bargaining in India. So a training
program for all functionaries with regard to plea bargaining is an absolute necessity.

8. India has recognized only sentence bargaining even though the law commission
report suggested for incorporation of both categories of plea bargaining i.e.,
sentence bargaining and charge bargaining. The concept of charge bargaining can
also be introduced in India.

9. The plea bargaining in India is applicable only for some restricted cases. The concept
of plea bargaining can be expanded to all kind of cases because what we need in
present administration of justice is guarantee of punishment for offender and not
severity of punishment. If the accused pleads guilty and gets half or one fourth of
the punishment prescribed while at the same time fulfilling the aspiration of victims
then this cannot be said to be lesser justice. Accordingly, the process of plea
bargaining can be expanded to other categories of offences also.

10. There is no reason for the women victims, child victims or victims of socio-economic
offences to be deprived of the benefits of plea-bargaining because in plea bargaining
process there is a guarantee of conviction with due consideration to the needs and

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aspiration of the victims. Accordingly plea bargaining can also be expanded to such
category of offences.

11. There is need for determination of the role of the stake holders in plea bargaining
processes. Say for instance can the stake holders proceed with mutually satisfactory
disposition if the investigating officer opposes such settlement. To meet such
situation clear guidelines are required.

12. In the plea bargaining process once all the stakeholders failed to arrive at mutually
satisfactory disposition the law suggests that the case must start again from preapplication stage. It may be that the case will start before the same judge. The judge
who had seen the application of guilty pleading as well as took part in negotiation
process may prejudice the accused on failure of the process. Once the plea
bargaining process fails, the case should be transfer to another judge for
adjudication so that impartial justice can be delivered.

13. The concept of out of court settlement should also be encouraged and popularized.

14. The scope of compounding of offences need to be expanded and more offences
must be included in the list of compoundable offences.

15. The concept of victim-offender mediation, which is in reality a tool for providing
restorative justice, shall be started and encouraged.

16. There is need for providing appropriate limitation in respect of use of out of court
settlement in criminal cases. In cases of major offences where it will not be

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appropriate to negotiate and bring victim-offender face to face, can be excluded

from the purview of out of court settlement.

17. The process like withdrawal of prosecution, pardoning the accused etc., can also be
used as a tool for out of court settlement in respect of minor offences. However,
victims concerns have to be taken into account while settling such cases

18. The traditional criminal justice system has in some way neglected the victim as crime
was mainly seen as a wrong against the state. Now it is time to see the offence as a
wrong firstly against the victim and then against the state. Victims should play a vital
role in the process of administration of justice.

19. The processes of plea bargaining, compounding of offences, out of court settlement
etcetera can be used as an effective tool to provide restorative justice. The
legislature, policy makers, the functionaries of CJS and all other associated members
should encourage such processes in criminal cases to achieve restorative justice.

20. There is need for mainstreaming of restorative justice processes in India and the
traditional justice system like Panchayat Justice shall be revived.