Introduction

The primary objective of having a criminal justice system is to maintain peace and order in the
society and provide for a redress mechanism when a citizen’ rights are violated. Therefore the
system criminalizes various actions which violate or infringe the rights guaranteed to an
individual in a civilized society. But the unequal power equation between the accused and the
State mandates a procedure which is fair to the accused and protects his rights at every step.
This endeavour to make the procedure fair enough to inspire confidence in the accused and the
society has given so many rights to the accused that the resultant procedure is slow,
cumbersome and expensive. All this leads to a huge pendency of cases in various criminal
courts of India and a large population of under trials in Indian jails. The solution lies in looking
for alternative dispute resolution mechanisms for disposing off a criminal case. Plea Bargaining
is one of the many such alternatives available which settle a criminal dispute without putting
up the accused for a formal trial.

Plea Bargaining is as old concept as the human history. In India it is a new concept and is at
the stage of infancy but in other countries it is practised. Plea bargaining is something more
stringent than the provision provided in Criminal Procedure Code and is less stringent than the
court is required to compound the cases. When a case is filed against an accused in the court
of law, the accused can go to the court and say that he admits his guilt. This has further
implications in different cases and in different circumstances. The court may allow him to plead
so and reduce his sentence or frame a charge for an offence less serious than they actually
committed offence or may allow him to go only by paying some fine. It all depends upon the
facts and circumstances of each case and the antecedents of the accused.1

1
http://shodhganga.inflibnet.ac.in/bitstream/10603/38650/6/06_chapter%20%201.pdf last accessed on 23rd
May 2018
 Definition of Plea- bargaining

According to encyclopaedia Britannica that the Plea bargaining, in law, the practice of
negotiating an agreement between the prosecution and the defence whereby the defendant
pleads guilty to a lesser offense or (in the case of multiple offenses) to one or more of the
offenses charged in exchange for more lenient sentencing, recommendations, a specific
sentence, or a dismissal of other charges. Supporters of plea bargaining claim that it speeds
court proceedings and guarantees a conviction, whereas opponents believe that it prevents
justice from being served. The great majority of criminal cases in the United States involve
some form of plea bargaining.2

Plea bargains are not always easy to recognize. Negotiations that result in formal agreements
are termed “explicit plea bargains.” However, some plea bargains are called “implicit plea
bargains” because they involve no guarantee of leniency. Explicit bargains are the more
important of the two.

According to BLACK’S LAW DICTIONARY3

Plea-bargaining - Plea bargaining has been defined as ‘a negotiated agreement between a

prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or
to one of multiple charges in exchange for some concession by the prosecutor, usually a more
lenient sentence or a dismissal of the negotiated charges

Charge bargain - Charge Bargaining in which the accused agrees to plead guilty in exchange
of a promise to be charged with a less severe offence. For instance if he is involved in
housebreaking where he also hurts somebody he is only charged with the offence of house
breaking and damaging the property and not with grievous hurt which involves a bigger
sentence.

Sentence Bargaining - Sentence Bargaining which involves a promise of a lesser sentence in

comparison to the one provided for by the penal code. For instance if he is charged with theft
and it involves a maximum three year sentence it will be reduced to half or reduced
substantially. This is the most popular form of Plea bargaining and is codified in the current
regime applicable to India. In addition to the abovementioned

2
https://www.britannica.com/topic/plea-bargaining Last accessed on 23 May 2018
3
Garner A. Bryan BLACK’S LAW DICTIONARY (Tenth Edition page no 1339)
According to Oxford Dictionary, the word ‘Plea’ means appeal, prayer, request or formal
statement by or on behalf of defendant and the word ‘Bargain’ means negotiation, settlement,
deal, covenant, barter or pact. Hence, the word meaning of plea bargaining may be an appeal
or formal statement by the defendant for negotiated settlement with the prosecution for the
offence charged against him4

As per Chief Justice of Supreme Court of United States, Warren Burger in Santobello v. New
York5

“Plea bargaining is an essential component of the administration of justice, properly

administered, it is to be encouraged…..it leads to prompt and largely final disposition of most
criminal cases.”

Robert E. Scott and William J. Stuntz defines Plea Bargaining as a contractual agreement
between the prosecutor and the defendant concerning the disposition of a criminal charge.
However, unlike most contractual agreements; it is not enforceable until a judge approves it 6

Origin of plea-bargaining

The practice of “Plea-bargaining” in America goes back a century or more. One study found
it, for example, in Alameda County, California, in about the 1880s. Judges in the County even
talked about the way they gave credit for guilty pleas. “Plea-bargaining” was not as pervasive
as it is now…. Not even close to it…., but it was by no means rare. Extent of prevalence—
entering a guilty plea is greatly prevalent in many American States. In 1839, in New York
State, one out of every four criminal cases ended with a guilty plea. By the middle of the
century, one out of three felony defendants pleaded guilty. In 1920s guilty pleas accounted for
88 out of 100 convictions in New York City, 85 out of 100 in Chicago, 70 out of 100 in Dallas
and 79 out of 100 in Des Moines, Iowa. It has kept its dominance ever since. In short, one can
trace a steady and marked decline in number of trials by jury in America from the early 19th
century on.

4
Singh B. P.,” Plea Bargaining Under Indian Criminal Law,” 118 Cri. L J, May (2009)
5
404 US 260 (1971)
6
Scott R. E. and Stuntz W. J., “Plea Bargaining as Contract,” 1912, The Yale Law Journal, Vol. 101, June
(1992)
 Plea Bargaining in United States of America

Plea Bargaining has emerged as one of the most popular procedures in the criminal justice
system of U.S.A.7 for disposing of criminal cases without a formal trial. It accounts for ninety
percent of all criminal convictions in the United States8. In 1970 the American Supreme Court
accepted the constitutionality of plea bargaining in Brady v. United States9 and also
encouraged its use in another celebrated case.10 Further Federal Sentencing Guidelines creates
various levels of reduction in offences in case the defendant agrees to accept the responsibility
of his actions thereby easing the burden of proving the case on the prosecution. Rule 11 of The
Federal Rules of Criminal Procedure gives the legislative framework for administering plea
bargaining in America. We come across various academic writings which appreciate its utility
and also its wide use by the practitioners. But at the same time it is also being banned in various
jurisdictions across America.11

Concept of plea- bargaining in India

The Indian concept of plea bargaining is inspired from the doctrine of Nolo contendere. It has
been incorporated by the legislature after several law commission recommendations. This
doctrine has been considered and implemented in a manner that takes into account the social
and economic condition prevailing in our country. There are three types of plea bargaining: 1)
charge bargaining 2) sentence bargaining 3) fact bargaining. Negotiating for dropping some
charge in case of multiple charge settling for less grave charge called charge bargaining. Where
the accused has an option of admitting guilt and setting for lesser punishment it is sentence
bargaining. Lastly, negotiation which involves and admission to certain facts in return for
agreement not to introduce certain other fact is a fact bargaining.

7
http://www.Law.concell.edu/rules/framp/rule_11 Last accessed on 25May 2018
8
Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 50 (1968)
9
397 U.S. 742 (1970)
10
Santobello v. New York, 404 U.S. 257, 260 (1971) (noting that plea bargaining is essential because it allows
the states and the federal government to save resources by avoiding full-scale trials)
11
http://ir.lawnet.fordham.edu/flr/vol64/iss3/18 last accessed 25 May 2018
 Needs for Plea Bargaining in India

The law commission of India in its 142nd Report recommended introduction of the concept
“concessional treatment for those who chooses to plead guilty without any bargaining” under
the authority of law informed with adequate safeguards. The suo-motu exercise to make such
recommendation was prompted, quote the commission

“By problem arising on account of abnormal delay in the disposal of criminal trials and
appeals, and by the explosion of the number of under-trial prisoner languishing in jail for very
much years”

Reason for introducing this concept

The researcher has try to find out reason from the statistical data. The nation crime Record
Bureau, Government of India is the repository of crime records in the country. It published data
in its annual report titled “Crimes in India”. From the published data pertaining to cases under
Indian Penal Code for the period 1981 to 2009; it emerge that12

1. The annual number of case for trail increased from 21,11,791 in 1981 to 81,30,053 in
2009. out of these, trail could be completed only in 5,04,718 case in 1981 and in
11,72,081 case in 2009
2. Number of case pending trail increased from 14,84,483 in 1981 to 69,57,972 in 2009.
Thus in last 28 year the pendency of case has grown by over 5 times
3. while trial in 23.9% of case were completed in 1981, the figure came down to 13.632%
in 2009; similarly, the percentage of case pending trail increased from 70.3% in 1981
to 85.58% in 2009
4. Out of the trail completed, the case ending in acquittal or discharge was 8.9% in 1990,
rose to 10.0% in 1997, settled at 8.3% in 2006 and then came down to 7.34% in 2009.
on the other hand, 8.5% case put to trial ended in convection in 1990 but the figure
gradually came down to 5.26% in 2009

12
Dr J.K Verma Plea bargaining concept and potential (All India reporter, Nagpur 1st edition 225)
These are shown graphically

1. Increasing in number of case

Fig. IPC Cases for Trail and Disposal thereof by Courts

2. Delay in completion of trail

Establishes that pendency of case awaiting trial in increasing every year. It shows trend of
completion and pendency of trail in percentage. It seen that that gap is increasing year after
year, albeit slowly, but consistently

It is necessary to assess the delay in commencement of a trail and the time taken in its
completion through appeal in high court and Supreme Court.

Fig. Percentage of Trail completed and Pending

 3. Pendency of Trail

Fig. Number of cases pending Trail

4. Overcrowding in jails

The prison statistics from 2004 to 2008 some interesting information as to occupancy in the
country rates in prison in the country

Fig. Acquittals and convictions in completed trail

Indian judiciary approach towards plea bargaining

The Indian judiciary has been reluctant in applying this prior to the 2005 amendment and has
on various occasions rejected the concept of plea bargaining even after several
recommendations of the Law Commission of India. This was evident since the courts continued
giving decisions unfavourable to plea bargaining even after such recommendations. The
earliest cases in which the concept of plea bargaining was considered by the Hon’ble Court
was Madanlal Ramachander Daga v. State of Maharashtra13 in which it observed:

“Hon’ble court is of opinion that, it is very wrong for a court to enter into a bargain of this
character Offences should be tried and punished according to the guilt of the accused. If the
Court thinks that leniency can be shown on the facts of the case it may impose a lighter
sentence”

In Muralidhar Megh Raj v. State of Maharashtra14 the Apex Court continued to disapprove
the concept or plea bargaining when the appellants pleaded guilty to the charge where-upon
the trial Magistrate, sentenced them each to a piffling fine. Court observed:

“To begin with, 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.”

The Supreme Court was reluctant to introduce the concept of Plea Bargaining in India for a
long time as it involves the accused bargaining away his constitutionally guaranteed right to
fair trial in exchange for some leniency in punishment.15 But The Gujarat High Court
appreciated this procedure and observed in State of Gujarat vs Natwar Harchandji Thakor16
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. There should not be anything static. It can thus be said that plea bargaining is
really a measure and redressal and it shall add a new dimension in the realm of judicial
reforms."

13
AIR 1968 SC 1267
14
AIR 1976 SC 1929
15
Murlidhar Meghraj Loya vs State Of Maharashtra 1976 AIR 1929; Kachhia Patel Shantilal Koderlal v. State of
Gujarat and Anr 1980CriLJ553;Kasambhai v. State of Gujarat, AIR 1980 SC 854 ; State of Uttar Pradesh v.
Chandrika, AIR 1999 SC 164
16
2005 CriLJ 2957
The Law Commission in its 142nd17 and 154th18 report highlighted the problems faced by the
criminal justice system of the country. After studying numerous foreign criminal justice
systems they made out a case for introducing plea bargaining in India. As it is an alternative to
the constitutionally guaranteed right to fair trial they wanted the scheme to be introduced on an
experimental basis over a limited number of offences. It was to be made inapplicable to
grievous offences particularly against

Plea Bargaining in Criminal Procedure Code, 197319

As mentioned above Chapter XXI A of the Criminal Procedure Code provides the legislative
framework of Plea-Bargaining in India contained in Sections 265A to 265L

1. Section 265A allows only an accused charged with an offence punishable with less
than seven years to apply for plea bargaining. Further if the offence charged is against
women and children or classified as a socio economic offence the application is not
allowed
2. Section 265 B the application has to be filed in the court where the offence is pending
for trial. Apart from containing a brief description of the offence charged it should be
accompanied by an affidavit from the accused that he is opting for this procedure
voluntarily and he has no previous conviction for the same offence. In addition to the
affidavit the procedure directs the judicial officer to call the accused in person and
confirm that the application has been filed voluntarily.
3. Section 265 C further gives guidelines for working out the mutually satisfactory
disposition. Firstly all the stakeholders in the case namely the prosecution, accused,
defence lawyer, accused and the victim are to be given notice for participating in the
meeting for working out the mutually satisfactory disposition. This is significant as the
victim is given the right to participate and be part of a process meant to dispose of the

17
http://lawcommissionofindia.nic.in/101-169/report142.pdf Last accessed on 26 May 2018
18
http://lawcommissionofindia.nic.in/101-169/Report154Vol2.pdf Last accessed 26May 2018
19
Section 265 of criminal procedure code 1973
 case. Secondly the judicial officer is made responsible to ensure voluntariness
throughout the meeting
4. Once the meeting is over Section 265 D talks of filing a report regarding the outcome
of the meeting irrespective of whether it is a success or failure.
5. Section 265 E gives directions for the final disposition of the case in the event of a
successful disposition being worked out. The judicial officer is mandated to do the
sentencing in terms of this provision which has an inbuilt relaxation in sentencing as a
consideration of the accused’ guilty plea. This implies that opting for this procedure
guarantees leniency in the sentencing as a matter of right. For instance If an offence has
minimum punishment the Court may give half of it and where no minimum sentence
has been provided it may give one fourth of the punishment provided. It also directs
him to make use of the provisions dealing with admonition under Section 360 of the
Criminal Procedure Code and probation under the provisions of Probation of Offenders
Act, 1958.
6. Section 265 G makes it clear that the judgment delivered by the Plea Bargaining Judge
is final and the only appeal shall lie by a special leave petition under Article 136 and
writ petition under Articles 226 and 227 of the Constitution
7. Section 265 I allows for setting off the period of detention undergone by the accused
against the sentence of imprisonment imposed under this procedure
8. Section 265 K assures the accused that the statements or facts stated by the accused in
an application for Plea Bargaining filed under 265 B shall not be used for any other
purpose than for this procedure.
9. Section 265 L is makes this procedure inapplicable to Juveniles or Children.

Comparing the administration of Plea Bargaining in India and U.S.A

The office of Prosecution commands immense relevance in America so it is directly allowed
to negotiate an agreement with the accused. The judicial approval is sought once the agreement
has been negotiated. In contrast the judicial officer plays the central role for administering plea
bargaining in India. Further it’s a business-like approach which guides negotiations in America
thereby mandating the prosecutor to share all relevant information concerning the case with the
accused. This is important as it facilitates the bargaining on equal terms. Further the American
prosecutor asks the accused to plead guilty to certain or all the charges framed against him. In
consideration of this he would recommend reduction of charges or a short or lenient sentence
to the judge. But in India such charge bargaining is not permissible. Even if the accused pleads
guilty he cannot bargain for reduction in charges. Irrespective of his plea the judicial officer is
mandated to do sentencing within the guidelines provided by the legislature.

In contrast the American system allows the plea agreement to mention the quantum of sentence
in exchange of which a guilty plea has been agreed to. Further the American system allows
plea bargaining for all the offences except few making its applicability wide in scope. India
only allows the accused to seek plea bargaining for a limited number of offences. Though there
are significant differences in the administration of plea bargaining in India as compared with
U.S.A but still some similarities do exist. Both jurisdictions stress the voluntariness of the
accused as a pre-condition for applying the procedure in disposing off a criminal case. Also
both permit the withdrawal of the guilty plea up to a particular stage in case the accused wants
to exercise his right to fair trial. Further both jurisdictions ban the use of any statement of the
accused given during plea bargaining in any other proceeding

Reason for failure of plea-bargaining in India

The practices of plea bargaining has become has become firmly entrenched in both state and
federal court in United States of America. At least 90% of criminal case in the United States
are decided on the basic of guilty pleas, most of which outcome of plea are bargaining. Plea
bargaining in the United States of America is governed and regulated by Rule 11[(a) to (h)] of
the federal rule criminal procedure. the court have a duty to disclose the consequences of a
guilty plea with the accused in open court and ensure that the accused has entered a guilty plea
voluntarily and with a full understanding of consequences of such agreement.20

On the other hand in India plea bargaining is inserted in criminal procedure code in 2005, but
still this concept is not very much successful. The researcher has found various reason for
failure of plea bargaining. The researcher has gone through the various data, case law and a
comparative study of plea barraging between U.S.A and India. By analysing the report the
researcher has fond reason which are as below:

1. weight of pendency

20
Dr verma J.K Plea bargaining concept and potential (All India reporter, Nagpur 1st edition 156)
The present system of administration of justice, which is clubbing under the weight of pending
case. It is estimated that the number of case pending all over the country in all categories of
court, is a staggering 2.5 crore. Out of these 36 lakh cases are pending in high court alone,
virtually clogging the justice system. Former chief justice of India. Adarsh Sen Anand, has
observed, that there are just 13,000 judicial officer, who cannot cope up with the current load
of case choking the whole system.

It is pertinent to note that posts of judges of various high court are very often, these constitute
20% of the total number of high courts judges in the country. If these post are not filled
immediately more case will undecided.

2. state fighting the citizen

Interestingly the government is biggest litigant in the country. According to a rough estimate,
around 70% of all case either agitated by the state or appealed by it. The state fight case against
citizen at the cost of citizen

3. Adjournment

Unnecessarily adjournment also extend the life of litigation. The process of adjournment, on
faveolus ground, is one of the major reason increases in delay. While there is a very good
understanding between the court and advocate, the same does not exist between the client and
the courts. In the process, the interest of litigants suffers, judiciary fails to render justice do the
aggrieved. There is a need to evolve a set of guideline for granting adjournment, and framework
for the settlement of dispute should also be designed

4. Other reason

Jurist have suggested a reduction in the number of holiday of courts, and increases in the
working day of the courts. At present the court working for 210 to 230 days every year, with a
fully long summer vacation. If courts works for longer hour and days, litigation can bought and
control
 Statistics of Plea Bargaining in India

There is a dearth of authentic studies to study how the scheme is being in administered in
various criminal courts across the country. We lack studies studying the experience of different
stakeholders in dealing with this procedure. We get data only regarding the pendency of plea
bargaining applications in case it gets listed in the websites of some district courts. According
to statistics available for Delhi till 30/07/2013 out of 14442 total cases filed for plea bargaining
only 7884 have been settled.21 Though the applications seeking plea- bargaining are regularly
filed and listed for hearing a lot needs to be done to make the procedure more popular. If used
with more frequency there is no doubt that it can substantially reduce the problem of pendency
in Indian criminal courts.

On similar lines few instances of case reporting can be located for plea bargaining. In 2007 The
Times of India had reported one of the first cases of plea bargaining in India. A Reserve Bank
of India clerk charged with corruption charges had applied for plea bargaining to reduce his
sentence.22As it was a corruption charge the court refused to entertain its application.

In other significant case23 Uttrakhand High Court in March 2010 allowed the concept of plea
bargaining. Here the charges were under section 420, 468 and 471 of IPC and the accused had
supplied some substandard material to the ONGC who got the investigation done through CBI
by lodging a criminal case against the accused. The trial court rejected the application as the
required. Affidavit was not filed and no compensation had been fixed. As the C.B.I and ONGC
had not opposed the application. The Uttrakhand High court directed the trial court to accept
the plea bargaining application

21
http://delhidistrictcourts.nic.in/plea/stats.html last accessed on 26 May 2018 (But this website only gives
statistics till 2013 and is not updated.)
22
http://timesofindia.indiatimes.com/city/mumbai/First-plea-bargaining-case-in last accessed on 25 May 2018
23
Vijay Moses Das Vs. CBI (Criminal Misc. Application 1037/2006)
 Conclusion & suggestion

A Criminal Justice System, which is crippling under its own weight, experimentation is the
only hope through which the confidence of the masses can be restored in the system. Plea
bargaining should be viewed as one such experiment designed to reduced tendency of under
trial cases. The outcome of the experiment would depend on the honesty of the Criminal Justice
System in implementing the policy.

The researcher has gone through the various data, graph, case law and a comparative study of
plea bargaining between Indian and U.S.A certain reason are found for the failure of plea
bargaining in India the reasons are as follows:

 society is not completely civilised

 lack of truthiness
 the rate convections very low
 lack of awareness in the society

These are various reason for failure of plea bargaining or we can say that the concept op plea
bargaining is not followed up to the expectation but among lots of other reason which is
responsible in the failure of the concept of plea bargaining.

The offender knows that the final decision of the case will take time and it will come after a
long journey of proceeding so, the offender never wants to accept his guilt and never want face
the door of jail.

Researcher has thinks that sate is also responsible for failing of plea bargaining in India. During
whole discussion some question arise such as is it possible to increases outlet of case by
increasing efficiency?

By improving quality of judges and judiciary efficiency can be increased that helps in disposal
of more and more case. Chief Justic Lahoti said:

Now it is clear that inlet (of water store) cannot be totally stopped. Can we at least increases
either speed of outlet or increase the number of outlet? Yes, we can increases the outlet

The researcher has suggested that as, now there should be a collective effort from all
functionaries of the system namely the magistrate, defence lawyer, public prosecutor and the
police to popularise this scheme amongst the accused and the victim. It has to be implemented
with more success in its current form to consider its applicability for a wide range of offences.