A project report on criminology &

criminal justice administration

Plea bargaining

School ofLaw & governance

SUBmITTED TO-

Dr. P.k. mishra

SUBMITTED BY-

pritam ANANTa

CUSB1713131012

Semester 1st

session 2017-18

1
 PLEA BARGAINING

Table of Contents

1. Plea Bargaining In Indian Legal System....................................................3

2. Meaning......................................................................................................4
3. Scope of Plea Bargaining.......................................................................... 4
4. History........................................................................................................4
5. The origin and rise of plea bargaining.....................................................5
6. Plea Bargaining In America.......................................................................6
7. Plea Bargaining In Indian Context.............................................................7
8. Silent Features of Plea Bargaining...........................................................10
9. The Criminal Law (Amendment) Act, 2005............................................11
10.Recommendations by the Law Commission of India...............................12
11.Types of Plea Bargaining.........................................................................13
12.Advantages of Plea Bargaining...............................................................14
13.Disadvantages ..........................................................................................15
14.Object of Plea Bargaining.........................................................................16
15.Drawbacks of Plea Bargaining.................................................................18
16.Requirements...........................................................................................19
17.Practical Analysis.....................................................................................19
18.Critical Analysis.......................................................................................20
19.Cases.........................................................................................................21
20.Conclusion................................................................................................23
21.Bibliography.............................................................................................25

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 Plea Bargaining In Indian Legal System

A new chapter, that is Chapter XXI A on Plea Bargaining has been introduced
in the Criminal Procedure Code. It was introduced through the Criminal Law
(Amendment) Act, 2005, which was passed by the Parliament in its winter
session. It became effective from 5thJuly 2006. Originally Plea Bargaining is an
American concept its origin can be traced back in America during the 19th
Century. Over the years Plea bargaining has emerged as a prominent feature of
the American Judicial System.

In India Plea Bargaining has certainly changed the face of the Indian Criminal
Justice System. Plea Bargaining is applicable in respect of those offences for
which punishment is up to a period of 7 years. Moreover it does not apply to
cases where the offence committed is a Socio-Economic offence or where the
offence is committed against a woman or a child below the age of 14 years.
Also once the court passes an order in the case of Plea Bargaining no appeal
shall lie to any court against that order-2.

Plea Bargaining

An agreement as a result of negotiation between the prosecution and defences

(at time, also the judge)which settles a criminal case, usually in exchange for a
more lenient punishment. Typically the defendant will plead guilty to a lesser
crime or for a more fewer charges than originally charged, in exchange for a
more lenient punishment than the defendant would get if convicted at trial. It is
seen as a win-win for all the parties as the prosecution has a certain conviction1
on the record, the defendant is provided a more lenient sentence than the risk of
a higher one at trial and the judge is freed to move to other cases and dispute to
resolve.

Plea Bargaining 2 can conclude a criminal case without a trial. When it is

successful, Plea Bargaining results in a plea agreement between the prosecutor
and defendant. In this agreement, the defendant agrees to plead guilty without a

1
1968 AIR 829, 1968 SCR
2
pre-trial negotiations

3
trial, and, in return the prosecutor agrees to dismiss certain charges or make
favorable sentence recommendation to the court. Plea Bargaining is expressly
authorized in statutes and in court rules.

Meaning

Plea Bargaining can be described as a process whereby the accused may bargain
with the prosecution for a lesser punishment3. In simple words, Plea Bargaining
is an agreement (contract) between the accused and the prosecution regarding
disposition of the criminal charge leveled by the prosecution against the
accused. In laymans language, it is bargaining done by the accused of a serious
and severe offence, with the authority for a lighter punishment in lieu of a full
fledged trial by jury4.

Scope of Plea Bargaining:

The concept of Plea Bargaining has now become a part of criminal

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

History

It would be wrong to assume that the concept of Plea Bargaining found favour
of courts only in the recent past. In fact it is used in the American Judiciary in
19thcentury itself. The bill of Rights makes no mention of the practice when
establishing the fair trial principle in the sixth amendment but the
constitutionality of the Plea Bargaining had constantly been upheld there. In the
year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King,
Jr. to avoid execution sentence. He finally got an imprisonment of 99 years.

More than 90 percent of the criminal cases in America are never tried. The
majorities of the individuals who are accused of a crime give up their

3
Supra 1
4
Larson, Aaron (2 August 2016). "How Do Plea Bargains Work". ExpertLaw. Retrieved 5 September 2017

4
constitutional rights and plead guilty. Every minute, a criminal case is disposed
off in an American Court by way of a guilty plea or Nolo Contendera Plea5.

In a landmark judgment Borden kircher Vs Hayes6, the United State Supreme

Court held that, the constitutional rationale for Plea Bargaining is that no
element of punishment or retaliation so long as the accused is free to accept or
reject the prosecutions offer. The Apex Court however upheld the life
imprisonment of the accused because he reject the Plea Guilty offer of 5 years
imprisonment. The Supreme Court in the same case however in a different
context observed that, it is always for the interest of the party under duress to
choose the lesser of the two evils. The courts have employed similar reasoning
in tort disputes between private parties also. In countries such as England and
Wales, Victoria, Australia, Plea Bargaining is allowed only to the extent that
the prosecutors and defense can agree that the defendant will plead to some
charges and the prosecutor shall drop the reminder.

The origin and rise of plea bargaining

In a criminal trial in the United States, the accused has three options as far as
pleas are concerned guilty, not guilty or a plea of nolo contendere 7. A plea-
bargain is a contractual agreement between the prosecution and the accused
concerning the disposition of a criminal charge. However, unlike most
contractual agreements, it is not enforceable until a judge approves it. Plea-
bargaining thus refers to pre-trial negotiations between the defence and the
prosecution, in which the accused agrees to plead guilty in exchange for certain
concessions guaranteed by the prosecutor8.

Plea-bargaining has, over the years, emerged as a prominent feature of the

American criminal justice system. While courts were initially skeptical towards
the practice4, the 1920s witnessed the rise of plea-bargaining making its
correlation with the increasing complexity in the American criminal trial
process apparent. In the United States, the criminal trial is an elaborate exercise
with extended voir dire and peremptory challenges during jury selection,
5
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved
6
Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604, 1978 U.S. LEXIS 56 (U.S. Jan. 18, 1978)
7
Id
8
434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 [1978]).

5
numerous evidentiary objections, complex jury instructions, motions for
exclusion, etc. and though it provides the accused with every means to dispute
the charges against him, it has become the most expensive and time-consuming
in the world. Mechanisms to evade this complex process gained popularity and
the most prominent was of course, plea bargaining.

Thus, plea-bargaining gradually became a widespread practice and it was

estimated that 90% of all criminal convictions in the United States were through
guilty pleas. In 1970, the constitutional validity of plea-bargaining was upheld
in Brady v. United States, where it was stated that it was not unconstitutional to
extend a benefit to an accused that in turn extends a benefit to the State. One
year later, in Santobello v. New York9 the United States Supreme Court formally
accepted that plea-bargaining was essential for the administration of justice and
when properly managed, was to be encouraged.

The fact that courts resources would have to be significantly increased to

provide a trial for every charge has been cited as both justification and reason
for the inevitability of plea-bargaining. Proponents of plea-bargaining argued
that it would remove the risks and uncertainties involved in a trial, thus
introducing flexibility into a rigid, often-erratic system of justice. It would also
enable the court to avoid dealing with cases that involve no real dispute and try
only those where there is a real basis for dispute. Victims would be spared the
ordeal of giving evidence in court, which could be a distressing experience
depending on the nature of the case.

Plea Bargaining In America

The Plea Bargaining experienced a sharp rise in the 1920s in America as the
criminal trials in United States provide to be most expensive and time
consuming in the world. Criminal trial in the United State of those days was an
elaborate exercise and comprised of peremptory challenges in a lengthy jury
selection process, numerous evidentiary objections, complex jury instructions,
9
404 U.S. 257 (1971)

6
motion for exclusion, etc. Plea Bargaining emerged as an effective mechanism
to avoid the complex process of a criminal trial and soon it gained popularity.
The practice of Plea Bargaining was approved by the Supreme Court of the
United States mainly on the assumption that the persons who are convicted on
the basis of Plea Bargaining would ordinarily be convicted, if they had chosen
to stand trial.

The plea won the approval of Supreme Court of United States and its
endorsement as an essential component of the administration of Justice in
Santobellov 10 case. Chief Justice Burger Explained there that the Plea
Bargaining is to be encouraged because;

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 the Court facilities.

Plea Bargaining In Indian Context

To reduce the delay in disposing criminal cases, the 154th Report of the law
commission first recommendation the introduction of Plea Bargaining as an
alternative method to deal with huge arrears of criminal cases. This
recommendation of the Law Committee finally found a support in Malimath
Committee Report11. The NDA government had formed a committee, headed
by the former Chief Justice of the Karnataka and Kerala High Court, Justice
V.S. Malimath to come up with some suggestions to tackle the ever growing
number of criminal cases. In its Report, the Malimath Committee recommended
that a system of Plea Bargaining be introduced in the Indian Criminal Justice
System to facilitate the earlier disposal of criminal cases and to reduce the
burden of the courts. To strengthen its case, the Malimath Committee also
pointed out the success of Plea Bargaining system in U.S.A.

In India, plea bargaining cannot be availed of in respect of offences punishable

with a sentence exceeding seven years. In other words, plea bargaining would
not apply to serious offences. Three more categories of offences have also been
excluded from its purview. First are those offences affecting socio-economic
conditions of this country, which the Central Government would notify. On July

10
Supra 2
11
ASA 20/025/2003

7
11, 2006 the Central Government actually issued a notification cataloguing 19
statutes as affecting the socio-economic conditions of the country and the
offences in those statutes now stand excluded from the plea bargaining process.
The second category of exclusion comprises offences committed against
women. The third consists of offences committed against children below the age
of 14. Despite such vast areas of exclusion there are many offences for which
the accused will be entitled to avail themselves of the advantages of plea
bargain.

The Supreme Court of India has examined the concept of plea-bargaining in the
case of Murlidhar Meghraj Loyat v. State of Maharashtra12 and Kasambhai v.
State of Gujarat13. In Kasambhais case, the Supreme Court resisted a plea of
guilt based on plea-bargaining, as it would be opposed to public policy, if an
accused were to be convicted by inducing him to plead guilty, by holding out a
light sentence as an allurement.

In the case of Murlidhar Meghraj Loyat v. State of Maharashtra14, the Supreme

Court observed as under:

we are free to confess to a hunch that the appellants had hastened with their
pleas of guilty hopefully, induced by an informal, tripartite understanding of
light sentence in lieu of nolo contendere stance. Many economic offenders
resort to practices the American call plea bargain, plea negotiation15, trading
out and compromise in criminal cases and the trial magistrate drowned by a
docket burden nods assent to the sub rosa anteroom settlement. The
businessman culprit, confronted by a sure prospect of the agony and ignominy
of tenancy of a prison cell, 'trades out' of the situation, the bargain being a plea
of guilt, coupled with a promise of 'no jail'. These advance arrangements please
everyone except the distant victim, the silent society. The prosecutor is relieved
of the long process of proof, legal technicalities and long arguments, punctuated
by revisional excursions to higher courts, the court sighs relief that its ordeal,
surrounded by a crowd of papers and persons, is avoided by one case less and
the accused is happy that even if legalistic battles might have held out some
astrological hope of abstract acquittal in the expensive hierarchy of the justice-

12
1976 AIR 1929, 1977 SCR (1)
13
1980 AIR 854, 1980 SCR (2)1037
14
Supra 3
15
Id

8
system he is free early in the day to pursue his old professions. It is idle to
speculate on the virtue of negotiated settlements of criminal cases, as obtains in
the United States but in our jurisdiction, especially in the area of dangerous
economic crimes and food offences, this practice intrudes on society's interests
by opposing society's decision expressed through predetermined legislative
fixation of minimum sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly condemn the bad odour of purchased pleas
of guilt and partly" justify it philosophically as a sentence concession to a
accused who has, by his plea 'aided in ensuring the prompt and certain
application of correctional measures to him.

In civil cases we find compromises actually encouraged as a more satisfactory

method of settling disputes between individuals than an actual trial. However, if
the dispute... finds itself in the field of criminal law, "Law Enforcement"
repudiates the idea of compromise as immoral, or at best a necessary evil. The
"State" can never compromise. It must enforce the law." Therefore open
methods of compromise are impossible.

The Supreme Court in the case of Rajinder Kumar Sharma and Anr v. The State
and Anr16 observed as under:

Recently, the legislature has introduced plea bargaining under law so as to

benefit such accused persons who repent upon their criminal act and are
prepared to suffer some punishment for the act. The purpose of plea bargaining
is also to see that the criminals who admit their guilt and repent upon, a lenient
view should be taken while awarding punishment to them. But the legislature
has not thought it proper to give right to the individual to compound any offence
and every offence in which loss to individual is also involved. When a person
goes to the extent of opening fake account, putting fake signatures and getting
cheque encashed on the basis of forged signatures, this shows his criminal bent
of mind. If he is really repentfull, he must undergo some punishment for his
crime committed and the sufferance which he made to the society.

Considering the view of the Supreme Court in the above two cases, it is quite
evident that the term plea bargaining existed since a long time. Though the
16
63 (1996) DLT 682

9
judiciary did not find it necessary to recognize it then, however, now it has got
the recognition and is being implemented as well. The importance of this
doctrine has been well explained by the Indian judiciary.

Silent Features of Plea Bargaining

The Salient Features of Plea Bargaining:

A new Chapter (Chapter XXI A) on Plea Bargaining has been inserted in the
Criminal Procedure Code 1973. A notification to bring into effect the new
provision has been issued and it has come into effect from 5th July, 2006. Plea
Bargaining was introduced through the Criminal Law (Amendment) Act, 200517
which was passed by Parliament in the winter session of 2005. The salient
features are as follows:-

The Plea Bargaining is applicable only in respect of those offences for

which punishment of imprisonment is up to a period of 7 years.

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

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

Bargaining in the court in which such offence is pending for trial.|

The complainant and the accused are given time to work out a mutually
satisfactory disposition of the case, which may include giving to the
victim by the accused, compensation and other expenses incurred during
the case.

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.

17
Retrieved 28 June 2017

10
 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.

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.

The Criminal Law (Amendment) Act, 2005

A formal proposal for incorporating plea-bargaining into the Indian criminal

justice system was put forth in 2003 through the Criminal Law (Amendment)
Bill, 2003 (hereinafter referred to as the Bill). However, those provisions failed
to come through and were reintroduced with slight changes through the
Criminal Law (Amendment) Bill, 2005, which was passed by the Rajya Sabha
on 13-12-2005 and by the Lok Sabha on 22.12.2005. The provisions were thus
finally incorporated into the Code of Criminal Procedure, 1973 as Chapter XXI-
A through the Criminal Law18 (Amendment) Act, 2005, notified in the Official
Gazette of India as Act 2 of 2006 (hereinafter referred to as the Act).

The positive aspect of the Act is that the offences in which a mutually
satisfactory agreement can be reached are limited. Secondly, the judge is not
completely excluded from the process and exerts supervisory control. Therefore
at least theoretically, administrative control of the process of granting
concessions to those who plead guilty is ensured. Thirdly, the Act ensures that
such an opportunity will not be available to habitual offenders. Fourthly, the
fact that the Act does not provide for an ordinary appeal from the judgment in
such a case is a step towards expediting the disposal of cases. At the same time,
a process for reviewing illegal or unethical bargains does exist though it may be
noted that Article 136 of the Constitution does not confer a right of appeal on a
party as such but19 confers a wide discretionary power on the Supreme Court to
grant special leave. Also, though the remedy under Articles 226 and 227 of the
Constitution can be made use of, it is unclear whether the victim of the offence
can utilize this remedy. there are significant differences in criminal procedure as
well as in the role and status of various agencies, the Act does not give
recognition to any existing practice akin to plea-bargaining. Instead, it enables

18
The Hindu. 6 July 2006. Retrieved 28 June 2017
19
Sec 131 (1) (a)

11
an accused to file an application for plea-bargaining in the court where the trial
is pending. The court, on receiving the application, must examine the accused in
camera to ascertain whether the application has been filed voluntarily. The court
must then issue notice to the Public Prosecutor20 or the complainant to work out
a mutually satisfactory disposition of the case. The negotiation of such a
mutually acceptable settlement is left to the free will of the prosecution
(including the victim) and the accused. If a settlement is reached, the court can
award compensation based on it to the victim and then hear the parties on the
issue of punishment. The court may release the accused on probation if the law
allows for it; if a minimum sentence is provided for the offence committed, the
accused may be sentenced to half of such minimum punishment; if the offence
committed does not fall within the scope of the above, then the accused may be
sentenced to one-fourth of the punishment provided or extendable for such
offence. The accused may also avail of the benefit under Section 428 of the
Code of Criminal Procedure, 1973 which allows setting off the period of
detention undergone by the accused against the sentence of imprisonment in
plea-bargained settlements. The court must deliver the judgment in open court
according to the terms of the mutually agreed disposition and the formula
prescribed for sentencing including victim compensation. It may be noted that
this judgment is final and no appeal lies apart from a writ petition to the State
High Court under Articles 226 and 227 of the Constitution or a special leave
petition to the Supreme Court under Article 136 of the Constitution.

Recommendations by the Law Commission of India

The subject of the 142nd Report of the Law Commission of India and the
subsequent conclusions and recommendations were motivated by the abnormal
delays in the disposal of criminal trials and appeals. In this context the system
of plea-bargaining in the United States drew attention to itself and the Law
Commission outlined a scheme of plea-bargaining for India. The Commission
noted that because no improvement had been made in the situation and there
was little scope for streamlining the system, the problem was a grave one and
clamored for urgent attention.

20
Supra 3

12
Based on an analysis of plea bargaining as it exists in the United States, the
report stated that the practice was not inconsistent either with the Constitution
or the fairness principle and was, on the whole, worthy of emulation with
appropriate safeguards. The Commission conducted a survey to ascertain
whether the legal community was in support of plea-bargaining and also to
gather opinions on the applicability of the practice if the earlier response was in
the affirmative. Of those surveyed, a high percentage was in favour of the
introduction of the scheme; additionally, most were in favour of introducing the
concept only to specified offences. The report concluded that an improved
version of the scheme suitable to the law and legal ethos of India should be
considered with seriousness and with a sense of urgency.

Types of Plea Bargaining

There are three main types of Plea Bargaining namely,

1) Charge Bargain
2) Count bargaining
3) Sentence Bargain
4) Fact Bargain

Charge Bargain-the most common form of plea bargaining, the defendant

agrees to plead guilty to a lesser charge provided that greater charges will
be dismissed. A typical example would be to plead to manslaughter rather
than murder.
Example: The prosecution charges Andrew with burglary, but he pleads
guilty to trespassing and the prosecution dismisses the burglary charge.

Count bargaining. Many consider count bargaining to fall under charge

bargaining. Here, the defendant pleads to only one or more of the original
charges, and the prosecution drops the rest.

13
 Example: The prosecution charges Joey with both robbery and simple
assault. The parties agree that Joey will plead to the assault charge, and
that the prosecution will dismiss the robbery21 charge.

Sentence Bargaining: far less common and more tightly controlled that
charge bargaining, sentence bargaining is when a defendant agrees to
plead guilty to the stated charge in return for a lighter sentence. Typically
this must be reviewed by a judge, and many jurisdictions simply don't
allow it.
Example: Max agrees to plead to the charge of misdemeanor resisting
arrest, and the prosecution agrees to recommend that the judge not
sentence him to jail time.
Fact Bargaining: this is the least common form of plea bargaining, and it
occurs when a defendant agrees to stipulate to certain facts in order to
prevent other facts from being introduced into evidence. Many courts
don't allow it, and in general, most attorneys do not favor using fact
bargains.
Example: The government files an indictment against Cole for drug
trafficking. Federal agents caught him with over five kilograms of
cocaine. Five kilograms triggers a sentence involving many years in
prison, so Cole agrees to plead guilty to the offense in exchange for the
prosecutions stipulation that he possessed less than five kilograms

Advantages of Plea Bargaining

Time saving: Examining possible plus points of Plea bargaining in India,

it will help in cutting short the delay, backlogs of cases and speedy
disposal of criminal cases, saving the courts time, which can be used for
hearing the serious criminal cases, putting a certain end to uncertain life
of a criminal case from the point of view of giving relief to victims and
witnesses of crime, saving a lot of time, money and energy of the accused
and the state, reducing the congestion in prisons, raising the number of
convictions from its present low to a fair level to create some sort of
credibility to the system, not to facilitate making of criminals by allowing

21
Section 390 in The Indian Penal Code

14
 innocents or unproven accused to live with the company of hard core
criminals during the trial and after conviction through making guilty plea.

Compensation to victims22: The victims of crimes might be benefited as

they could get the compensation. They need not get implicated or
involved either as witness or seeker of compensation or justice any longer
than required for acceptance of plea bargaining. Whether they get money
or not their time might be saved.

Benefits for Accused: The accused might be a beneficiary as he might

get half of minimum prescribed punishment 23 . If no such minimum is
prescribed, accused might get one fourth of punishment prescribed, or
released on probation or after admonition or get concession of
considering the period of undergone in custody as suffering the sentence
under section 428 of Cr.P.C. He will be relieved of extended trial i.e,
appeals consuming unending time. Accused is also benefited even when
plea bargaining fails as his admission cannot be used for any other
purpose. Ultimate benefit for him is that his time and money are saved.

Disadvantages

Unfair: The system will be too soft for the accused and allow them unfair
means of escape in a dishonesty ridden society in India. It is an
alternative way of legalization of crime to some extent and hence not a
fair deal. It creates a feeling that Justice is no longer blind, but has one
eye open to the right offer. Prosecutors and police, foreseeing a
bargaining process, will overcharge the defendant, much as a trade union
might ask for an impossibly high salary. It is inherently unfair, assuming
you have two defendants who have engaged in the same conduct
essentially similar circumstances, to treat one more harshly because he
stands on his constitutional right.

22
Section 228 A of the Indian Penal Code
23
Id

15
 Contempt for system: It may create contempt for the system within a
class of society who frequently come before the courts. A shortcut aimed
at quickly reducing the number of under-trial prisoners24 and increasing
the number of convictions, with or without justice. While countless
numbers of poor languishing in the country's prisons while awaiting trial,
only a few might get a chance of bargaining.

Conviction of innocents: This process might result in phenomenal

increase in number of innocent convicts in prison. Innocent accused may
be paid by the actual perpetrators of crime in return to their guilty plea
with assured reduction in penalty. Thus illegal plea bargaining between
real culprits and apparent accused might get legalized with rich criminals
corrupting police officials ending up in mockery of justice system. When
plea bargaining is certainly not resulting in acquittal or limited to
penalties or payment of damages, accused may not find it as useful and
plea bargaining may not operate as incentive at all.

Coercion: Element of coercion is not ruled out as the police is involved

in the process.

Derailment of Trial: Once the guilty plea25 comes forward and recorded
on the file and in the mind of the judge, the trial will be surely derailed.
The court may not strictly adhere to or depart from the requirement of
proof of beyond reasonable doubt and might lead to conviction of
innocent.

Object of Plea Bargaining

By introducing the concept of Plea Bargaining in the Criminal Procedure the

object of the legislature is;

1. To reduce the pending litigation- There are more than 3 crore cases
pending in different courts of India. Many of these cases are pending for
24
Supra 4
25
Fisher, Maryanne (May 14, 2010)

16
 more than 10 years. Below are the approximate number of cases pending
in Supreme Court, High Courts and District and Subordinate courts in
India.
o Around 60,000 cases are pending in Supreme Court.
o Around 42 lakh cases are pending in different High Courts.
o Around 2.7 crore cases pending in District and Sub-ordinate Courts.

2. To decrees the number of under trial prisoners.- overcrowding as one of

the biggest problems faced by prison inmates. The occupancy rate at the
all India level at the end of 2015 was 114.4 per cent.
Sixty-seven per cent of the people in Indian jails are undertrials
people not convicted of any crime and currently on trial in a court
of law.
Among the larger States, at 82.4 per cent, Bihar had the highest
proportion of undertrials, followed by Jammu & Kashmir (81.5 per
cent), Odisha (78.8 per cent), Jharkhand (77.1 per cent) and Delhi
(76.7 per cent).
Three States from the Northeast also had a high proportion of
undertrials: Meghalaya (91.4 per cent), Manipur (81.9 per cent)
and Nagaland (79.6 per cent).

3. To make provision of compensation 26 to the victim of crimes by the

accused.- Now accepting that there is no uniformity in the legal system in
the country to address the issue of compensation to the victims of crime,
it is expedient to discuss the legal position in respect of compensation to
the victims of the offence. Post independence, the criminal trials were
governed by criminal Procedure Codes 1898 and then by 1973 Code
(Cr.PC). Till the year 2008, there was a provision more or less similar
in both the codes for compensation to the victims of the offence that is
section 545 in the old Code and section 357 in the new Code.

4) To cut delay the disposal of criminal cases.- The Bench, Bar and litigant
parties, though essential components of the system, at times constitute a triangle
of delays. The Bench, partly because they are over burdened, they have to
dispose of maximum number of cases in the shortest possible time; the Bar,

26
Id

17
because they are also over burdened, busy members of the Bar have little time
to attend to each and every case accepted; and the unscrupulous and some
professional litigants, because they have a weak case and want to prolong the
trial to continue to enjoy the usufruct of the suit property in their
possession/control.

Drawbacks of Plea Bargaining

Some of the major drawbacks of the concept of Plea Bargaining as is

recognized in India are as under;

Major drawbacks of plea-bargaining:

I. Involvement of the police in plea-bargaining process would tempt

coercion on innocent people.
II. If once guilty application of the accused is rejected then he would face
great hardship to prove himself innocent.
III. Court is impartially challenged due to its involvement in plea-bargaining
process.
IV. Involvement of the victim may lead to corruption.

One aspect can be taken that plea-bargaining will instead likely to

dramatically increase the number of cases where innocent persons find
themselves imprisoned and with criminal records. Sometimes police
make poor innocent people, accused of crimes that they never committed,
after being paid off by the actual perpetrators. With the concept of plea-
bargaining, these persons will be getting pushed to accept their guilt
which they had never committed. In the prevalent situation, where the
acquittal rate is as high as 90% to 95%, it is the poor who will be the
victims of this concept and come forward to make confessions and suffer
the consequent conviction. This measure to get speedy justice will only
lead to miscarriages of justice. It is important to note that no programme
of rehabilitation can be effective for the mind of prisoner who has
assumed himself as prisoner and convinced in his own mind that he is in
prison because he has became the victim of a senseless, undirected, and
18
 corrupt system of justice and it undermines the very basis of criminal
justice system.

Secondly, it will have striking effects in cases involving state officers,

accused of human rights abuse. In case of Custodial torture, this is yet to
be made a crime. An Indian police officer accused of torturing a person in
his custody may instead only be tried for other offences, such as those
punishable under sections 323, 324 or 330 of the Indian Penal Code. The
punishments for these offences are within the limit prescribed for
punishment under the new law on plea-bargaining. This means that the
new law may allow these torturers to escape with lighter penalties, even
after knowing the fact that their offences fall into the gravest categories
under international law.

Requirements

To ensure fair justice, Plea Bargaining must encompass the following minimum
requirements namely,

1) The hearing must take place in court27.

2) The court must satisfy itself that the accused is pleading guilty knowingly
and voluntarily.

3) Any court order rejecting a Plea Bargaining application must be kept

confidential to prevent prejudice to the accused28.

Practical Analysis

Sections 265A to 265L are incorporated in the Code of Criminal Procedure

(Cr.P.C.) by Amendment Act with effect from 5th of July, 2006 to give effect to
the system of Plea Bargaining.

27
Supra 5
28
Id

19
 1. The accused is entitled to avail the benefit of plea bargaining both in
the cases instituted on the police report as well as by way of a private
complaint under Section 200 Cr.P.C.
2. The benefit of plea bargaining is available to the accused that is not
guilty of committing an offence punishable by death or life sentence and
not exceeding seven The benefit also does not apply if the crime affects
the socio-economic conditions of the society and also to the crimes
committed against woman or child below the age of 14 years. Plea
bargaining is not applicable to juvenile offenders.
3. The accused should make an application. The court should conduct in
camera inquiry to ascertain that the application is voluntary and without
duress. The Court should notify the public prosecutor and the victim to
arrive at final disposition.
4. On the admission of guilt, the Court should impose One-Fourth of the
sentence prescribed for the offence. In case the offence is punishable for
minimum imprisonment half of such imprisonment is to be imposed. In
both the situations, the Court can award compensation to the victim after
productive negotiations with the accused and the victim.
5. The accused is entitled to the benefit of Probation of Offenders Act 29, the
benefit of let off under section 428 Cr.P.C. and benefit of bail.
6. The accused convicted in the system of a plea of bargaining has no right
of appeal, but the remedy of writ jurisdiction under Articles 226 and
227[8] and Special Leave Petition under Article 136[9] of the
Constitution of India is not barred.

Critical Analysis:

It has become a disputed concept because there are many views regarding the
stated point. Some authorities stress that introduction of plea- bargaining in
India is exceptionally good as it will reduce heavy backlog prevalent in Indian
Judiciary as well as reduce congestion in jails and other reasons whereas some
authorities denied about it on the basis that the socio- economic conditions
existed in US and India are very different. Law Commission in its report
recommended it with the justification and reasons for accepting it. They stressed
mainly on the points stated above. On the other hand, Opponent of this concept
thinks that:

29
State of Rajasthan v Sri Chand

20
1. It is showing too much softness towards defendants.

2. The process is unfair with the innocent. It is like legalizing a crime to an

extent, we already have provisions under probation of offenders Act, executive
pardon.

3. According to one study of the US, one-third of the people who plead guilty
would be acquitted if they went to trial.

Cases

First case, Plea Rejected: Mr. Sakha-ram Bandekar, a grade I employee of

RBI, was accused of siphoning off Rs 1.48 crore from the RBI by issuing
vouchers against fictitious names from 1993 to 1997 and transferring the money
to his personal account. The CBI arrested him on October 24, 1997, and
released on bail in November. The Court of Special CBI judge A R Joshi had
framed charges on March 2, 200725. The accused made an application for Plea
Bargaining on the ground of old age, ie., 58 years and tried to take the benefit of
just passed amendment to criminal law providing for this new process. The CBI
opposed plea bargaining attempt saying; "The accused is facing serious charges
and plea bargaining should not be allowed in such casesCorruption is a
serious disease like cancer. It is so severe that it maligns the quality of the
country, leading to disastrous consequences. Plea bargaining may please
everyone except the distant victims and the silent society.'' Agreeing with the
CBIs reasoning the court rejected Bandekar's application. Still the lawyers came
to know that a procedure where concessions can be gained for confessions is
now available as an alternative to languishing in courts and jails26.

Vijay Moses Das v CBI 30 , The second reported case from Uttarakhand was
successful. A person who was accused of supplying substandard material to
ONGC and that too at a wrong Port causing immense losses to ONGC sought
the plea bargaining. The CBI investigated and initiated prosecution under
sections 420, 468 and 471 of IPC. Accused proposed to plea bargaining and the
ONGC (Victim) and CBI (Prosecution) had no objection to such request, but
trial court rejected on the ground that Affidavit under section 265B was not
filed by accused and compensation was not fixed. Justice Prafulla Pant of

30
Crl. Misc. Application (C-482) No. 1037 of 2006

21
Uttarakh and High Court, hearing the Criminal Miscellaneous Application
directed the trial court to accept the plea bargaining application.

Case in Mumbai: A magistrate's court on 25th may, 2011 accepted a plea

bargain application and convicted four foreign nationals who were accused of
stealing diamonds worth Rs 6.6 crore at an international jewellery show 2010,
to 21 months rigorous imprisonment. The maximum punishment in such cases
is usually seven years. The foreigners, three Mexicans and one Venezuelan,
were convicted by the 37th Esplanade court, after they had pleaded guilty to
their offence and sought a plea bargain under the provisions of the Criminal
Procedure Code. Panaji case: Bombay High Court at Goa on 13th July, 2011
held that it was mandatory for a court to follow the procedure prescribed while
deciding accuseds petition for plea bargaining. The High Court set aside an
order passed against a foreigners application for plea bargaining, by a judicial
magistrate first class court in a case of overstaying. Mr. Okeke Nwabueze
Nnabuike31, a Nigerian national, has challenged the order passed by the JMFC
court, rejecting his application for PB.

Plea bargaining in 304A cases and sentencing: In Ranbir Singh v State28,

the Petitioner challenged sentencing accused to imprisonment for six months
besides penalty of Rs.5000 under Section 304A IPC and in default to undergo
an additional imprisonment for one month and also the sentence to pay the fine
of Rs. 5,000/- under Section 279 IPC and in default of payment of fine to
undergo Simple Imprisonment for one additional month in a case where the
Petitioner had entered into plea bargaining. The Trial Court has power to direct
the sentence for imprisonment of 1/4th of the sentence provided if an accused
enters into plea bargaining however, while awarding the sentence of 1/4th of the
sentence provided the learned Trial Court is bound to look into the mitigating
circumstances. None of the mitigating circumstances were considered while
awarding the maximum punishment. Petitioner is the only bread earner and has
two minor children and old parents to support. Despite being poor the Petitioner
gave an amount to the satisfaction of the victims. He has also placed on record
the affidavit of the legal heirs of the deceased to state that the parties have
entered into a settlement and no dispute remains between them. The prosecution
on the other hand contended that the offences under Section 304A IPC of killing
by rash and negligent driving are on the rise and stern action was needed for
deterrent effect. Even Section 265E Cr. P.C. permitted the Court to award a

31
LAWS(BOM)-2011-7-232

22
sentence to 1/4th of the punishment provided even on the mutually satisfactory
deposition being arrived at between the parties. Moreover the judgment by the
trial court is final and no appeal lies against it as prescribed under Section 265G
of the Code.

2012 case of Bombay High Court: In Guerrero Lugo Elvia Grissel v. The
State Of Maharashtra32 on 4 January, 2012, the Bombay High Court Bench:
A.M. Khanwilkar, Rajesh G. Ketkar reviewed the procedure prescribed for plea
bargaining and upheld the opinion of the trial Court that the Court has no
discretion to award sentence other than one-fourth of the punishment provided
for or extendable, as the case may be, for the offence in question in cases
covered by clause (d) of Section 265-E of the Code. On this finding, the final
order passed by the Magistrate of awarding sentence of 21 months to the
petitioners is unassailable. High Court was considering a pure question of law
as to the interpretation of Section 265-E of the Code of Criminal Procedure,
1973.

David Headley Case: Pakistani-American David Headley 49, LeT operative,

charged with conspiracy in the Mumbai terror attacks, has pleaded guilty before
a US court to bargain for a lighter sentence to avoid capital punishment. He was
arrested by FBI in October 2009. David Headley has moved the plea bargain at
a court in Chicago. He was facing six counts of conspiracy involving bombing
public places, murdering and maiming persons in India and providing material
support to foreign terrorist plots and LeT; and six counts of aiding and abetting
the murder of US citizens in India30.

Conclusion

To conclude, Plea Bargaining is undoubtedly, a disputed concept few people

have welcomed it while others have abandoned it. It is true that Plea Bargaining
speeds up caseload disposition, but it does that in an unconstitutional manner.
But perhaps we have no other choice but to adopt this technique. The criminal
court are too over burdened to allow each and every case to go on trial. Only
time will tell if the introduction of this concept is justified or not. Even the
Supreme Court has upheld that delay of one year in the commencement of trial
is bad enough; how much worse could it be when the delay is as long as three or
five or seven to ten years or more. Speedy trial is the essence of criminal justice
and there is no doubt that delays in trial itself constitutes denial of justice.
32
2012 CriLJ 1136

23
Initially, the concept of plea- bargaining was criticized by a group of society
including legal experts and intellectuals by stating that it will demoralize the
public confidence in criminal justice system and also lead to lesser penalties to
rich class, conviction of innocent people and therefore, it has become disputed
concept now. Today, it is used by all great countries like USA, Europe, Canada
and some authorities stated that the prevalent conditions in India are very
different from US, even then to meet out the huge backlog of cases in India and
ultimately it will have to be done with the consent of both the parties i.e.
accused and prosecution, then what undermines? Therefore, India cannot
abstain itself for this law. This practice has been accepted by Indian Judiciary. It
can reduce the heavy backlog of cases in Indian courts; as it requires today and
we hope that overburdened criminal courts will soon get a relief with it and rate
of disposing will become rapid. According to the statistics of Delhi till
17/01/2011, out of 8630 total cases, only 4129 cases have settled and there is no
statistic which show that in how many cases plea-bargaining was demanded but
even then only 309 were declared in which it was rejected . It shows the heavy
backlog under Indian Courts and application of plea- bargaining.

When the process is complete and the quantum of punishment and possibility of
the probation is finished, we can say that the victims are not the forgotten actor
rather they have become a key player in the criminal justice system.

According to the view of a Judge of Delhi High Court over three crore cases
are pending in Indian courts. Plea-bargaining will solve cases involving petty
offences and the courts will concentrate on more serious offences. Indian jails
have capacity of 2.56 lakh prisoners but there are more than five lakh prisoners
behind bars. The State governments spend more than rupee 55 per day on each
prisoner and annual expenditure comes up to Rs 361 crore. This huge amount is
spending by our Indian government to maintain these prisoners just because of
delayed criminal justice system. Plea- bargaining will help in reducing backlog
under Indian Judiciary and number of prisoners in jails also although the
Constitutional obligation to provide speedy trial is also being fulfilled.

24
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