TABLE OF CONTENTS

Introduction ................................................................................................................................ 2

Research Methodology .............................................................................................................. 3

Objectives .................................................................................................................................. 3

Plea Bargaining: Historical Purview and Origins ...................................................................... 3

Criminal Procedure Code and the extent of Plea Bargaining .................................................... 5

Kinds of Plea Bargaining ........................................................................................................... 7

Judicial pronouncements and the evolution of Plea Bargaining ................................................ 7

Applicability of Plea Bargaining ............................................................................................... 8

Advantages of Plea Bargaining .................................................................................................. 9

Disadvantages of Plea Bargaining ........................................................................................... 10

Conclusion ............................................................................................................................... 11

BIBLIOGRAPHY
INTRODUCTION

A plea bargaining is an agreement between the defendant and the prosecutor, it acts as
a tool to reduce the burden on the judicial system and reduce the pending cases with efficacy.
Plea bargaining can be done at the request of the defendant before the commencement of trial
before the court, the proposal of intent is shown by the accused, however it remains a discretion
of the prosecutor if they want to proceed with the bargaining.
In an adversarial system like India justice delivery is not swift and rapid, often taking
decades for the courts to come up with the verdicts by keeping all the parameters of the case in
account. This ensures fairness and provides for a conclusive end to a matter in dispute but often
results in being virtually ineffective for the parties as time and money are of essence for most
of the parties involved, which is extensively impacted in the long running legal battles.
Thus, plea bargaining emerged as a way of settlement which strives to bridge the gap
between rapid and conclusive justice, in plea bargaining the accused or the defendant
unconditionally accepts the charges against the charges against him or her, in turn the
prosecutor avoiding the stringent punishments mentioned for the offence provides lighter
sentences or adds an element of parole which is unconventional and restricted for the courts to
do, as they are bound by the applicable statutes and law of the land.
The Code of Criminal Procedure, 1973 vide its amendment in 2006 introduced Chapter XXIA,
containing section 265A-L, in order to deal with plea bargaining, the connotation of plea
bargaining is often wide so as to provide flexibility to the parties in order to gain an outcome
from such procedure, the defendant while exercising the provision the former provisions is
presumed to be guilty, hence there exists an implied pleading of guilt unilaterally but in case
of the victim, no such presumptions have been made, which in case a plea bargaining fails, can
and will not become a tool of complacence or relief for the defendant.1
Plea bargaining also helps accused in anticipating possible consequences, on the
contrary trial has an element of unsurety attached with it.2 The concept of plea bargaining helps
in significantly reducing the number of pending cases avoiding unwanted expenditures and
hassle to the parties involved, hence it is safe to assume that plea bargaining has become an
important element in the success of the legal system which can be resorted to as per the gravity
of the offence committed as well as enabling the satisfaction of the victim, however this concept
has become a dilemmatic concern for the prosecutors and the defense attorneys, for which, they

1
20 AGARWAL H.O., INTERNATIONAL LAW AND HUMAN RIGHTS 81 (20th ed., Central Law Publications) (2014).
2
BENTHAM J., RATIONAL OF JUDICIAL EVIDENCE 27-28 (1st ed 1927).

2
must choose what is best for their clients securing a fair deal for the victim, so as to protect
their interest and guaranteeing them appropriate, if not equal remedy.3

RESEARCH METHODOLOGY

The method of research implemented by the researcher for this project is the quantitative,
secondary and descriptive method. The texts and excerpts taken and used for the project include
articles, research papers and opinions taken from multiple websites and online journals.

OBJECTIVES

❖ To Understand the Concept of Plea Bargaining, its significance and Evolution.

❖ Whether Plea Bargaining has enhanced the reach of law and strengthened the confidence
of the judicial system among the common population?
❖ Whether Plea Bargaining has evolved as a mode of ADR rather than an assistive tool?
❖ To figure out fallacies and suggest remedy for the development of the concept of Plea
Bargaining.

PLEA BARGAINING: HISTORICAL PURVIEW AND ORIGINS

The existence of a proper legal system is not new to the mankind, ever since a proper
legal system run by its provisions has been introduced and accepted by every nation and
civilization across the globe, one things has remain at pinnacle of the objective that is fair and
equitable justice delivery to the individuals deprived of their rights. The legal machinery aims
to ensure that every decision pronounced by it, the relief granted must always be proportional
to the damage caused to the victim. The judiciary in order to maintain high standards and
morals considers nuanced details of the dispute before it passes any order, decree or judgement,
which comes with delay in the judicial pronouncement. This often defies restoration of justice
for many victims, as observed by Lord Hewart CJ in the landmark judgement of R. v. Sussex
Justices, ex parte McCarthy4 “Justice should not only be done, but should manifestly and
undoubtedly be seen to be done”.
However, advent of adversarial justice delivery system like India the former quote has
only remained as philosophy failing to actualize in the day to day practice, this caused a major
problem among litigants which threatened loss of confidence in the minds of the common
population. It is no wonder that a justice system, howsoever effective and precise it is, remains

3
HART H.L.A.., THE CONCEPT OF LAW 32 (Oxford Clarendon Press 1961).
4
(1924) KB 256.

3
effective till the time people under its jurisdiction entrusts it, the legal visionaries observed
such irreparable threats and the concept of Plea Bargaining was born.5
Plea Bargaining does bear with itself historic support, the social scientists and legal
luminaries who justify the practice have time and again given the account of history, where the
general concepts of Plea Bargaining through bureaucratic interactions support their claim of its
historical existence, on the same lines when plea bargaining is justified before the courts’, it
comes with considerable history from the past acting as precedents.6 Often, Plea Bargaining is
considered an “economic necessity” which reduces the burden on the court in delivering
judgements reducing the financial burden on the public exchequer as a accused will have
bargained his sentence, which will be far less than the laid down provisions of law.
This was first seen in the United States, where a grand jury in California began by
quoting “with respect to plea bargaining, this has been the part of the judicial system ever
since man was made to account for crimes against society”7. In an opinion Judge Charles Clark
for the en banc United States Court of Appeals proclaimed, “Plea Bargains have accompanied
the whole history of this nations’ criminal jurisprudence”. Also, the author of an empirical
study of plea bargaining, Donald J. Newman concluded, “Plea Agreements are not new; in all
probability such bargaining have gone on as long as the criminal courts…, it wouldn’t surprise
many knowledgeable court observers to learn that Cain had pleaded to a lesser charge after
having murdered Abel”8.
In India the need for such a system was felt in the 1960s’ after the abolition of the jury
system as it allowed legal representation, tracing its origin to its American counterpart judges
started encouraging confessions using the tool of bargaining. Plea bargaining is not a traditional
Indian concept, it is the result of evolution of Indian Criminal Justice System solely meant to
reduce the number of pendency across the nation.9
The 154th Law Commission report was constituted to look into the feasibility of the
concept, conclusively the commission recommended it as a viable alternative to effectively
reduce the number of pending cases in the nation.10
Under the NDA government that time, Former Chief Justice of the Karnataka and
Kerala High Courts, Justice V. Malimath was bestowed with the responsibility to suggest

5
FULLER H., CRIMINAL JUSTICE IN VIRGINIA 81 (US 1931).
6
M.HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES AND DEFENSE ATTORNEYS 57
(2nd ed 1978).
7
Ratliff, Plea Bargaining Even and Effective, 21 VNC L.J. 2, 8 (1974).
8
D. NEWMAN, CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIALS 3 (2nd ed. 1966).
9
Id. at 1.
10
JAIN M.P. & JAIN S.N., PRINCIPLES OF ADMINISTRATIVE LAW 350 (6th ed., LexisNexis 2013).

4
reform helping in reducing the number of pending criminal cases in the country, the committee
after examining multiple options came to a conclusion that the concept of Plea Bargaining is
the most viable option in order to reduce the burden on the criminal courts.11 The committee
also contrasted and compared the model to that of the American one and found out that after
the concept of Plea Bargaining was adopted in the United States, stark reduction in the number
of criminal cases as high as ninety percent in instances were achieved without increasing the
capacity of the courts or the strength of judges.
Based on the Malimath Committee’s exponential submission, a draft bill known as
Criminal Law (Amendment) Bill, 2003 was put forth before the houses of parliament,
conclusive becoming an enforceable Indian Law from 5th July ,2006.12
From the above-mentioned notions and excerpts time and again presented and pleaded
before the courts, it becomes coherent that the concept of plea bargaining finds its legitimacy
in the eyes of law and does not stand opposed to the traditional legal justice delivery system
but helps in enhancing its efficacy.13

CRIMINAL PROCEDURE CODE AND THE EXTENT OF PLEA BARGAINING

Section 265A- 265L, Chapter XXIA of the Criminal Procedure Code,1973 enshrines
the concept of Plea Bargaining, the chapter was added in the statute after the Criminal Law
(Amendment) Act, 2005.14 It allows for plea bargaining but the extent and the circumstances
under which the provisions can be attracted have been defined in the statutes, Plea Bargaining
is allowed in the cases:
1. Where the maximum punishment of imprisonment is prescribed as 7 years under the
law, i.e. for example, the accused for murder cannot plead to exercise such reforms.
2. In case where the offences have not been committed against women or children below
14 years of age, which is an exception no matter if the prescribed sentence is below 7
years or not.15
3. When it is not against the public policy or deprive the nation’s social and economic
condition.

11
Ibid.
12
KAPOOR S.K., INTERNATIONAL LAW AND HUMAN RIGHTS 213 (18th ed., Central Law Agency 2011).
13
JAIN M.P., INDIAN CONSTITUTIONAL LAW 752 (7th ed., LexisNexis 2014).
14
RAI SUMAN, LAW RELATING TO PLEA BARGAINING 35-47 (2nd ed., Orient Publishing Company 2014).
15
Ibid.

5
 The Criminal Law (Amendment) Bill, 200316 also focused on reforming the criminal
justice system which after the recommendation of Justice Malimath Committee sought to
amend Indian Penal Code, 1860, Code of Criminal Procedure, 1973 as well as the Indian
Evidence Act, 1892 to provide all-round improvement in the existing criminal justice
system, the most important and the unordinary was the plea bargaining17, brief details of
the procedures added are as follows:
1. Section 265-A defines the scope and applicability of plea bargaining available to the
accused, which excludes murders and any other offences exceeding 7 years of
imprisonment, sub clause (2) of the provision also empowers the code to notify the
offence to the central government.
2. Section 265-B deals with the procedure of application which specifically says that the
application is only limited to the trials which are pending and doesn’t extend to the
concluded trials; hence the law acquires prospective nature and is not retrospective.
Mere application does not guarantee the success of plea bargaining but it acts as a
proposal that an accused accepting his guilt impliedly prays to the court to issue notice
to the victim or his prosecutor to consider such application, any reservations can further
be made by the defense counsel, subject to which both parties are summoned by the
court and are encouraged upon a fixed date and time appointed by the court shall settle
the issue by the way of plea bargaining18, however there is no compulsion on the
prosecutor to accept a proposal, if its hampers or doesn’t satisfy the prosecutor or its
client.19
3. Section 265-C & Section 265-D lays down guidelines and report for mutual satisfactory
disposition keeping in account of all the reservations put forth by the prosecutor, in case
a settlement is arrived at then the court records and disposes the case in accordance with
Section 265-E of the statute.
4. Section 265-F to Section 265-K deals with the inherent power of the courts to assure
the finality of judgement (Section 265-F & Section 265-G), General power of the court
in case of plea bargaining (Section 265-H), setting off the bargained sentence from the

16
VERMA J.K., PLEA BARGAINING- CONCEPT AND POTENTIAL 45-47 (1st ed., All India Reporter 2011).
17
Id. at 13.
18
Ahmed Dr. Mohammad, Reception of Plea Bargaining in the Indian Justice Dispensation System, 3 CULR 12
(2008).
19
Das Hrudayaballava, Introduction of the Concept of Plea Bargaining in Criminal Administration of Justice, 5
CLJ 28, 28-29 (1990).

6
 term that the accused is serving or has served in the past (Section 265-I), the court also
records the statement of the accused (Section 265-K).
5. Section 265-J provides for an exclusion proviso in which it states that the provision of
Chapter XXIA, if inconsistent with any other part of the code shall not be equated with
Chapter XXIA, which provides the chapter to act in independence and not to be taken
as defining other parts of the code.
6. Finally, Section 265-L talks about the Non-applicability of the chapter, which excludes
child20 related matter to be excluded from this chapter.

KINDS OF PLEA BARGAINING

Plea Bargaining is a unitary concept but with the practice in law, there are certain
classifications in which difference can be made, these can then further be classified in three
parts namely:
1. Bargaining for Sentence (Sentence Bargaining);
2. Bargaining against Charge (Charge Bargaining);
3. Fact Bargaining.21
The main motive of the sentence bargaining is to get a reduced sentence, the
accused or the defendant agrees to not contest the trial and accept his guilt for a lighter
sentence. Charge Bargaining is the most common form of plea bargaining in order to
get a lesser charge in return of the acceptance of guilt. for example, dropping the charge
of murder in return of man slaughter, lastly fact bargaining although not illegal is a
condemned practice as it tends to require the defendant to stick to a limited amount of
facts, which can hinder evidence to be introduced before the court.22
The three kinds of plea bargaining are not mentioned or defined anywhere in
the code and are the result of judicial procedure evolvement so as to classify and narrow
down the matter avoiding complicated clutter which can cause further delay to reach
agreement between the parties.23

JUDICIAL PRONOUNCEMENTS AND THE EVOLUTION OF PLEA BARGAINING

20
Id. at 18.
21
Feeley Melcom M., Prospective on Plea Bargaining, 13 LSR 28, 28-29 (1979).
22
Id. at 13.
23
Ibid.

7
 In the landmark case of Murlidhar Meghraj Loya v. State of Maharashtra24, The
Hon’ble Supreme court rejected the concept of Plea Bargaining so as to be against the morality
of law, the Apex court justified its stance by saying that if such concepts of bargaining will be
introduced in the legal sphere, then it would become a trade and not remain exclusive, in the
view of the court mixing two things in one doesn’t yield a result but ends up in creating
confusion which can cause further ambiguity.25
In the case of Kasambhai v. State of Gujrat26, The Supreme court said that the practice
of Plea Bargaining is against the adversarial principles of Indian Legal System, hence is against
the public policy. The court further found plea bargaining to be illegal and ultra vires to the
constitution of India, potentially increasing corruption and act as a get out of jail free card for
the accused.
In the case of The State of Gujarat v. Natwar Harchandji Thakor27, the court was of the view
that the concept of plea bargaining is not a straitjacketed concept which can be uniformly
applied to all the cases, but it is to be decided on case to case basis that after applying the
concept if there is no harm to the victim and it leads to the expeditious resolution of dispute
between the parties, then in those cases plea bargaining proves to be beneficial, both for the
parties and the courts.28

APPLICABILITY OF PLEA BARGAINING

Plea Bargaining has found its existence in the Indian criminal justice system29;
however, it is limited to a limited sphere of law and does not cover the complete criminal
provisions and statutes, laws in which Plea Bargaining are applicable are:
1. The Drugs and Cosmetics Act, 1940;
2. The Representation of People Act, 1951;
3. The Negotiable Instrument Act, 1881;
4. The Prevention of Corruption Act, 1988;
5. The Arms Act, 1959;
6. The Essential Commodities Act, 1955;
7. The Electricity Act, 2003.

24
A.I.R. 1976 S.C. 1929 (India).
25
Gibson E., Time Spent on Awaiting Trial, 166 NLJ 21, 21-25 (1966).
26
(1980) A.I.R. 854 (India).
27
(2005) 1 G.L.R. 709 (India).
28
Gupta Devina, Plea Bargaining…A Unique Remedy to Reduce Backlog in Indian Courts, 13 CLJ 25, 25-27
(2010).
29
Ibid.

8
 Laws where Plea Bargaining is not applicable are:
1. Section(s) 115, 119, 302, 304, 304-B, 305, 307, 498, 498-A of The Indian Penal Code,
1860;
2. The Explosives Act, 1884;
3. The Immoral Traffic (Prevention) Act, 1956;
4. The Dowry Prohibition Act, 1961.
DIFFERENCE BETWEEN THE CONCEPT OF PLEA BARGAINING BETWEEN INDIA AND USA

Indian Model USA Model

Indian Law gives a huge importance to the In USA there is no restriction on the extent
statement and thoughts of the victim, the of plea bargaining, although the victims’ role
victim may refuse or veto the process at any is of essence but mutual discussions between
time without any explanations, also offences the accused and prosecutor decides the terms
for plea bargaining are limited. of Plea Bargaining
Not applicable to offence of Murder or Every criminal offence can be put forth for
offences attracting more than 7 years of plea bargaining including Murder.
imprisonment.
The accused has the right to file an A prior discussion must be done between the
application for plea bargaining. accused and the prosecutor before filing of
application can be done.
The court acts as a regulator and may The courts aren’t entitled to interfere in the
comment on the voluntariness of the proceedings.
procedure.

ADVANTAGES OF PLEA BARGAINING

The most prominent feature of Plea Bargaining for which this concept was inculcated
in the Indian Criminal Justice System is to manage caseloads and reduce the pendency of cases.
Plea Bargaining reduces the workload on prosecutors enabling them to prepare their best for
gravest and serious cases, also it gives an opportunity to the offender to come clean before the
court by voluntarily accepting the guilt, without having an expensive and nerve wrecking
trial.30

30
RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE 543-555 (16th ed., Wadhwa & Company 2006).

9
 Plea bargaining also helps the accused who have been lodged in jails and confinement
from a long stretch if time as the pending trial disables them from getting out of the jail. A
shorter rehabilitation time for the accused is anticipated as the sentence awarded is by mutual
consent and consideration which avoids further deadlock in law in forms of appeal against the
decision.31
Also, Plea bargaining nowadays is not only a sentence awarding mechanism but has
evolved as a dispute resolution mechanism over the course of time having more involvement
of the parties in coming to a conclusion. In an overburdened legal system like India, it becomes
imperative and a privilege in certain cases, if a trial is granted which is seen a victory in the
eyes of many victims and sufferers, plea bargaining provides satisfaction to such people
resulting in a moral victory consolidating their trust in the judicial mechanism.32

DISADVANTAGES OF PLEA BARGAINING

Plea Bargaining is a tool which has been beneficial for the development and evolution
of the traditional legal system, but as there exists flip side to a coin, plea bargaining comes with
oddities and irregularities which needs to be further scrutinized. These include mainly that the
prosecutor becomes a controlling entity in the process and puts an unconscionable pressure
onto the defendant in coming to a conclusion.33
Although, the application by the defendant is voluntary but it might get plagued by
coercion from the prosecutors’ end. In cases where the accused is seemingly innocent, but the
evidence isn’t conclusive to the extent where the accused can be acquitted of the charges, Plea
Bargain becomes a last resort for the defendant.34
If a defendant accepts a sentence as a result of settlement in exchange of admission of
guilt, it becomes unappealable for the defendant even though new evidence is discovered at a
later stage.
Plea Bargaining has been considered more of a ‘commodification of justice’ which has
appalled many judges as it commercializes the aim of justice delivery and becomes trading
grounds for the offences committed.35
For a defendant who possess the affluence of wealth and political overreach, private
counsels pressurize the victim with limited resources to accept the terms of settlement in a

31
Id. at 1.
32
Karnataka Judicial Academy, Study Material, (2006).
33
Alschuler, An Exchange of Concessions, 142 NLJ 42, 42-45 (1992).
34
Id. at 13.
35
Sharma Girija Shankar, Justice without Trial: A Study of the Concept of Plea Bargaining, 12 IBR 1, 1-5 (1994).

10
much lighter sentence as compared to the offence committed, as the victim tries to save the
monetary cost involved for the trial to reach conclusion.36

CONCLUSION

Plea Bargaining has often termed a boon acting as a shot of adrenaline to the ailing
judicial structure plagued with pendency of cases, however plea bargaining has become an
integral part in criminal justice delivery system in India. Any matter which comes before the
court often involves some element of compromises expected from the parties involved in order
to facilitate the case, avoiding long lasting standoff resulting in a deadlock. Judiciary in India
has largely remained hostile to the concept of plea bargaining, despite of condemnation plea
bargaining has shown proven results in concluding cases which lacked merits to be decided by
the courts.
Plea bargaining assures conviction, even if the crime is of more or a lesser charge, it
avoids substantial decrease in cost for the prosecutor, enabling them to put the matter to rest as
conclusive, the negotiation clause can also contain the waiver of appeal as a precondition when
the sentence is bargained.
Historically, it has been seen that often prosecution seeming to have strong case lose
the long-lasting legal battle as was seen in the O.J Simpson trial, which leaves the victim
devastated both mentally and financially losing their faith in the established system.
Thus, it is conclusive in the mind of author that the concept of plea bargaining if not
free from anomalies and fallacies must not be condemned in practice, the courts should treat
the concept as evolving principle of law and shall try to accommodate it, wherever possible.
Plea Bargaining has evolved as one of the tools of Alternative Dispute Resolution
(ADR), infrastructure and feasibility of which can be further explored and enhanced making it
a foolproof tool of sentencing accused for the lighter criminal charges reducing the burden on
the judges in the criminal justice system.

36
Ibid.

11
BIBLIOGRAPHY

Books
• Agarwal H.O., International Law and Human Rights, 20th ed., (Allahabad: Central Law
Publications, 2014).
• Bentham J., Rational of Judicial Evidence, (London. 1927).
• Fuller H., Criminal Justice in Virginia, 81 (1931).
• Hart H.L.A., The Concept of Law (Oxford Clarendon Press, 1961).
• Jain M.P and Jain S.N., Principles of Administrative Law, 6th ed., ( New Delhi:
LexisNexis, 2013).
• Jain M.P., Indian Constitutional Law, 7th ed., (New Delhi: Lexis Nexus, 2014).
• Kapoor S.K., International Law and Human Rights, 18th ed., (Allahabad : Central Law
Agency, 2011).
• Karnataka Judicial Academy, Study Material, (2006).
• Ratanlal and Dhirajlal, The Code of Criminal Procedure, 16th ed., (Nagpur: Wadhwa
and Company, 2014).
• Verma J. K., Plea Bargaining - Concept and Potential, 1st ed., (Nagpur: All India
Reporter, 2011).

Articles

• Alschuler, “ An exchange of concessions,” 142, NLJ (1992).

• Das, Hrudayaballava, “Introduction of the Concept of Plea Bargaining in Criminal
Administration of Justice” Criminal Law Journal, (1990).
• Feeley, Melcom M, “Prospective on Plea Bargaining”, 13 Law and Society Review
(1979).
• Gupta, Devina, “Plea Bargaining…A Unique Remedy to Reduce Backlog in Indian
Courts” Criminal. Law Journal, (2010).
• Sharma, Girija Shankar, “Justice without Trial: A Study of the Concept of Plea
Bargaining” V. 21 (1) Indian Bar Review, (1994).

12