Introduction

Discourage litigation, Persuade your neighbours to compromise whenever you can .

As a peacemaker the lawyer has superior opportunity of being a good man.

Abrahim Lincoln

The famous jurist Nani Palkhivala has said "the greatest drawback of the administration of
justice in India today is because of delay of cases.The law may or may not be an ass, but in
India, it is certainly a snail and our cases proceed at a pace which would be regarded as
unduly slow in the community of snails. Justice has to be blind but I see no reason why it
should be lame. Here it just hobbles along, barely able to work."

The arrears of criminal courts awaiting trial are assuming menacing proportions. Grievances
have been vented in public that the disposal of criminal trials in the courts take considerable
time and that in many cases trials do not commence for as long as a period of three or four
years after the accused was remitted to judicial custody. 1 Statistics as regards the criminal
justice system in India reveals that thousands of undertrial prisoners are languishing in
prisons throughout India. As per the National Crime Records Bureau in 2011, the number of
inmates housed in jails was almost 50,000 more than their capacity. It was estimated that
65.1% of all inmates were undertrials and of these 0.6% had been detained in jail for more
than five years at the end of 2011.2 Large number of persons accused of criminal offences
have not been able to secure bail for one reason of the other resulted to become languish in
jails as under trial prisoners for years. It is also a matter of common knowledge that the
majority of cases ultimately end in acquittal. The accused have to undergo mental torture and
also have to spend considerable amount by way of legal expenses and the public exchequers
has to bear the resultant economic burden. During the course of detention as under-trial
prisoners the accused persons are exposed to the influence of hard-core criminals. Quite apart
from this, the accused have to remain in a state of uncertainty and unable to settle down in
life for a number of years awaiting the completion of trial. Thus the courts have resulted in
the informal system of pre-trial bargaining and settlement in some western countries,
especially in United States.

1
154th Report, Law Commission of India, The Code of Criminal Procedure,1973
2
Retrieved from on October 7th, 2017.
The system is commonly known as plea bargaining. A suspect may be advised to admit
part or all the crime charged in return for a specified punishment or rather than await trial
with the possibility of either acquittal or a more serious punishment. Plea bargaining as most
criminal justice reformers believe, is more suitable, flexible and better fitted to the needs to
the society, as it might be helpful in recurring admissions in cases where it might be difficult
to prove the charge laid against the accused. The idea of plea bargaining or mutually
satisfactory disposition is to avoid expenses, unpredictable trials and the potential for
harassment in all the small and medium crimes. It reduces the flow of criminal cases in the
system and save the time, resources and energy of the system managers 3 to deal with serious
crimes, which threaten the national security and may cause large-scale damage to life and
property. It is a device to ensure the victims to receive acceptable justice in reasonable time
without risking the prospects of hostile witnesses, inordinate delay and unaffordable costs. It
reduces the arrears and pendency in the system by diverting to large number of crimes for
alternative settlement without trial under control of Court to ensure fairness in the process. 4
This practice is prevalent in western countries, particularly the United States, England, and
Australia. In the U.S., plea bargaining has gained very high popularity, whereas it is used
only in a restricted sense in the other two countries.5

On the recommendations of Malimath Committee,6 Code of Criminal Procedure has been

recently amended by adding Chapter XXIA, consisting of 12 sections (sec 265-A to 265 L).
The Central Government has notified the socio-economic condition of the country, which
have been kept out of the purview of the plea bargaining. Not only will it expedite the
disposal of cases, it may also result in adequate compensation for the victim of crime, since
he along with prosecutor will be in a position to bargain with the accused. In the present
chapter an attempt has been made to discuss the emerging concept of plea bargaining in
criminal justice system and its and the role of lawyers in this new mechanism in the light of
decided case laws along with the study of Law Commission of India.

Concept of Plea Bargaining

The Concept- What is plea-bargaining? In its most traditional and general sense, plea
bargaining refers to pre-trail negotiations between the defendant, usually conducted by the

3
Justice Pasayat A., Plea Bargaining, 5 Nyaya Deep, National Legal Services Authority, vol. VIII, (2007) 5
Police, prosecutors and Judges.
4
Rao K. S. & Panaji M., Alternative Dispute Resolution in Criminal Jurisprudence, 263 Cr. L J Sept. (2009)
5
Thomas K. T., Plea Bargain- a fillip to Criminal Courts
6
Supra 1.
counsel and the prosecution, during which the defendant agrees to plead guilty in exchange
for certain concessions by the prosecutor. Plea-bargaining falls into two distinct categories
depending upon the type of prosecutorial concession that is granted. The first category is
charge bargaining which refers to a promise by the prosecutor to reduce or dismiss some of
the charges brought against the defendant in exchange for a guilty plea. The second category,
sentence bargaining refers to a promise by the prosecutor to recommend a specific sentence
or to refrain from making any sentence recommendation in exchange for a guilty plea. Both
methods affect the dispositional phase of the criminal proceedings by reducing defendants
ultimate sentence.7

Definition of Plea Bargaining

There is no perfect or simple definition of plea bargaining. As the term implies, plea
bargaining involves an active negotiation process whereby an offender is allowed confess his
guilt in court (if he so desires) in exchange of a lighter punishment that would have been
given for such an offence. Plea bargaining usually occurs prior to trial but may occur any
time before a judgment is rendered Blacks Law Dictionary8defines it as: The process
whereby the accused and the prosecutor in criminal case work out a mutually satisfactory
disposition of the case Subject to the Court approval. It usually involves the accused pleading
guilty to a lesser offence or to only one or some of the courts of a multi-count indictment in
return for a lighter than that possible for the graver charge. From the point of view of the
accused, it means that he trades conviction and a lesser sentence, for a long, expensive and
tortuous process of undergoing trial where he may be convicted. In practice, it represents not
so much of mutual satisfaction as perhaps mutual acknowledgement of the strengths or
weaknesses of both the charges and the defenses, against a backdrop of crowded criminal
courts and court case dockets. Thus, it involves an active negotiation process by which the
accused offers to exchange a plea of guilty, thereby waiving his right to trial, for some
concessions in charges or for a sentence reduction. A plea bargaining is an agreement reached
in a criminal case to finally settle it. In a case instituted on a police report, the parties to the
agreement are the accused, the investigating officer, the prosecutor and the victim. All of
them must agree to settle the criminal case in which the accused pleads guilty to the offence
for which a trial is pending. In any other case, the parties to the agreement are the accused
and the victim. They must agree to settle the criminal case in which the accused pleads guilty

7
Nimmo W.F. at http://www.billnimmo.com/pleabargains/html.
8
8th edition, 1190 (2004).
to the offence for which a trial is pending. The agreement to settle a case must be under the
guidance and the supervision of the Court. There are three types of pleas: not guilty, guilty,
nolo contendere. If an accused refuses to plead, the court enters a plea of not guilty. Plea
bargaining refers to pre-trial negotiations between the defendant, usually conducted by the
counsel and the prosecution, during which the defendant agrees to plead guilty in exchange
for certain concessions by the prosecutor.9 It has also been defined as the defendants
agreement to plead guilty to a criminal charge with the reasonable expectation of receiving
some consideration from the state.10Plea bargaining is, thus, a bargain of the accused with
the prosecuting agency in the matter of punishment on condition that he would waive his
right to be defended or to defend himself or to contest at the trial. In exchange for a plea of
guilty, the accused would receive leniency in sentencing.

CONCEPT OF PLEA BARGAINING IN INDIA

The recommendation of the 154th Law Commission report was that plea bargaining should
be incorporated in the Indian criminal justice system (as a separate chapter in the Code of
criminal Procedure-Chapter XXI-A), for offences, which are liable to be punished with
imprisonment of less than seven years and/or fine vis--vis nature and gravity of offence and
quantum of punishment. It should not be available for grave offence- those against women
11
and children, and socio-economic offences. 92 Plea bargaining will initiate after the
accused makes an application to the court (he court may suo moto make an offer for plea
bargaining, which is the accused accepts, he has to make an application), and preliminary
examination by the court (in the absence of the public prosecutor or the police) to ascertain
the voluntariness of the accused. The court shall also examine the prosecutor and the
aggrieved party, and at any point, if it is convinced that the accused has agreed to plea
bargain, under duress, or without realizing the consequences, it will reject the application.12

SALIENT FEATURES OF PLEA BARGAINING

9
142nd Report of Law Commission of India
10
Saltzburg S.A., American Criminal Procedure: Cases and Commentary,750 2nd ed. (1984);
11
12
The Criminal Law (Amendment) Act, 2005, which was passed in the winter session of the
Parliament, has introduced plea bargaining in India, embodied in the Chapter XXIA of Code
of Criminal Procedure. A notification has been issued which gives effect to the new
provision, which has come into effect since 5th July, 2006.13 The salient features of the
provisions are

The plea bargaining is applicable only in the respect of those offences for which
punishment of imprisonment is upto seven years;14
It does not apply where offences that affect the socio-economic condition of the
country or has been committed against a woman or a child blow the age of 14 years;15
The application for plea bargaining should be filed by the accused voluntarily; 16
A person accused of an offence may file an application for plea bargaining in the
court in which such offence is pending for trial;102
Once the court is convinced that the accused is participating in the plea bargain
voluntarily, it will allow time to both parties to reach mutually satisfactory
disposition,103 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;
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;17
The judgment delivered by the Court in the case of plea bargaining shall be final and
no separate appeal shall lie in any court against such judgment (except the special
leave petition under article 136 and writ petition under articles 226 and 227 of the
Constitution).18

13
Majumdar A., Plea bargaining- Guilty. But of a lesser Offence,
http://news.indlaw.com/uk/focusdetails.asp?ID=77
14
15
16
17
18
 If the accused is a first time offender, the court will have the option of releasing
him/her on probation. Alternatively, the court may grant half the minimum
punishment for the particular offence.19

Some critics say the backlogs on Indian courts, and the prolonged trials in India are due to
systemic failures, and lack of infrastructure and funds. Instead of addressing the root of the
problems, the government has chosen a shortcut solution by way of introducing plea
bargaining. Several defense lawyers are anguished as they suspect it will eat into their
volume of work.

Role of Lawyer in Pendency of Cases

Judiciary does not mean only judicial officers. It includes bar also. Our judicial
system has its roots in British legal system where lawyers play an important role in
administration of justice. Actually it is the counsel for either party who draws the
attention of the court towards a specific provision of law or interpretation of law
which goes in favour of her or his party and the counsel for opposite party tells
something different and the judicial officer listens to the arguments of the learned
counsels and goes through the record in order to do justice. A good argument
always helps the judge interpret law in the interest of justice. Suffice to say that
without the co-operation of the bar good judgments could not be possible. More
over we should not forget that bar is the mother of very great number of judges.
Undoubtedly legal profession is a very pious profession and it is a very
strong pillar of our judicial system but there are very few lawyers who do not leave
a stone unturned to tarnish the image of their profession. As our society is passing
through its transition phase, every institution is facing the deterioration of ethics.
The legal profession, which is considered the profession of learned, calm and self-
controlled people, is now a days going in the hands of such persons who adopt this
pious profession just to make a quick buck and nothing else. They can do anything
to achieve this goal. Gone are the days when lawyers told their clients very clearly
that their case was weak. Now some of them assure their clients that the judgment
will be in their favour by hook or crook.
In its 131st report The Role of Legal Profession in Administration of Justice
the Law Commission of India says
It is unquestioned that in any unorganized profession, there are
bound to be some persons who are unaware to maintain the high standard
of profession. In some cases evidence reveals a sordid state of affairs in
lawyer-client relationship. This itself can not be sufficient to condemn the
profession as a whole but this aspect can not be ignored also. It is here the
question of accountability of the profession to their litigants and system

19
 comes to fore. The leaders of the bar must show a deliberate concern with
the fate of the poor and the indigent by volunteering to take up their cases in
court of law.
Therefore, the first step that is required to be taken is not to
encourage litigation but to reduce litigation. The role of the legal profession
is to reduce disputes and only in the last resort the matter should be
permitted to go to court.

Coclusion

Our Constitution provides many fundamental rights to citizens. The judgments of

Honble Supreme Court and Honble High Courts have also paved the path of real
freedom: but we should not forget that a big section of our society is illiterate and
does not understand law. When these people face some legal problem they go to a
lawyer. Now it is the duty of lawyers to reduce disputes and only in the last resort
the matter should be permitted to go to court but I am sorry to say that this role is
not being played by few lawyers. They are deviating from ethical values. They do
not understand the importance of their duty. They are busy making fast back. They
invoke the laws in order to encourage the litigation. Really it is not a hopeful
scenario.
Lawyers have played a leading role in every field of life and they should
also try their best to reduce the burden of huge pendency of cases without worrying
about their income because frivolous suits die their own death without any result
and thus they whittle away the image of this profession. On the other hand, if a
lawyer gives her or his client a good advice it pays to her or him in the form of
good clientage. I know that this is difficult to understand because very few people
have farsightedness. Furthermore there is a risk to lose the client as in this age of
internet everyone wants quick results. Nevertheless it has been experienced that
even if a client runs away after getting your realistic advice he comes back soon as
a disappointed one and now he becomes your best advertiser. Thus honesty is the
best policy