APPLICABILITY OF ADR IN CRIMINAL CASES

Project submitted to:

Ms. Adya Pandey

(Faculty of Alternate Dispute Resolution)

Project submitted by:

Niharika Pittala

Semester VI, Roll No. 90

Section B

15.02.2017

HIDAYATULLAH NATIONAL LAW UNVERSITY

RAIPUR, C.G
 ii

Declaration

I hereby declare that the project work entitled Applicability of ADR in criminal cases
submitted to HNLU, Raipur, is record of an original work done by me under the able
guidance of Faculty Member, HNLU, and Raipur.

Niharika Pittala

Roll no- 90

Sec -B
Semester VI
 iii

Acknowledgements

I feel highly elated to work on the topic Applicability of ADR in criminal cases. I express
my deepest regard and gratitude for our Faculty of Alternative Dispute Resolution consistent
supervision, constant inspiration and invaluable guidance have been of immense help in
understanding and carrying out the importance of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Niharika Pittala

Roll No. - 90

Section - B

Semester VI
 iv

Contents

Declaration.....ii

Acknowledgments......iii

Introduction.......1

Objectives .2

Scope..2

Research Methodology 2

Relevancy of A.D.R..3

Applicability of A.D.R. In criminal cases...5

Legislative intents.....6

Plea bargaining.9

Criticism....15

Conclusion & suggestions.16

References..17
 1

Introduction

Quality of justice suffers not only when an innocent person is punished or a guilty person is
exonerated, but when there is enormous delay in deciding the criminal cases.1

A plea bargain is an agreement between the prosecutor, the defendants attorney and the
defendant. In return for the defendant entering a plea of guilty to a criminal charge, the
prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the
prosecutor to obtain guilty pleas in cases that might otherwise go to trial.

Judiciary is the most important organ where people have faith. It is known for its impartiality
and independence in deciding the disputes. The Indian judiciary is, now days, regarded as the
unsuccessful organ of the Indian Government system. Heavy back-log of cases in the courts
and inevitable delay in dispensing the justice has been to such an extent that it is shaking public
trust and confidence in the legal system and it is tending to erode the quality of social justice
and hampering the socio-economic development of the country.2

Speedy trial is the essence of criminal justice and there can be no doubt that delay in trial by
itself constitutes denial of justice.3 The theory of justice delayed is justice denied can be
applied after seeing the Indian context. The lengthy trial procedure takes years or sometimes
decade to adjudge the proceeding. The factors which really are the reason for such delays:

1. Increasing number of litigation,

2. Courts overburdened with cases.
3. Number of judges in the Supreme Court, High Courts and subordinate Courts.

1
Government of India, ministry of home affairs, Report of the committee on reforms of criminal justice
system, vol.1, March 2000.
2
A.K.Sikri Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA DEEP,
Vol.__,2006,p.39-60
3
Hussainara Khatun v. State of Bihar, AIR 1979 SC 1360.
 2

Objectives

To understand the scope of A.D.R in criminal cases

To analyse legislative intent on the subject

To study plea bargaining

Scope
It covers relevancy of A.D.R, applicability of A.D.R. in criminal cases by examining legislative
intents, concept of plea bargaining and its criticism, conclusion & suggestions.

Research Methodology
This project report is based on descriptive Research Methodology. Secondary and Electronic
resources have been largely used to gather information and data about the topic.
Books and other reference as guided by Faculty have been primarily helpful in giving this
project a firm structure. Websites, dictionaries and articles have also been referred. Footnotes
have been provided wherever needed, either to acknowledge the source or to point to a
particular provision of law.
This project report is based on descriptive Research Methodology. Secondary and Electronic
resources have been largely used to gather information and data about the topic.
Books and other reference as guided by Faculty have been primarily helpful in giving this
project a firm structure. Websites and articles have also been referred. Footnotes have been
provided wherever needed.
 3

RELEVANCY OF A.D.R

By Oct. - 3, 2001 there were 2.03 crore backlog pending cases in District Court and High Court.
More than 80% cases were from seven states- Uttar Pradesh, Gujarat, Bihar, Karnataka,
Madhya Pradesh, West Bengal and Maharashtra. There were 35, 57,637 case spending in
different High Court of the country. Five lakh of them are more than ten years old. Even the
Supreme Court has 21,995 cases pending therein.

The Law Commission of India in its 120th Report (1987) 4 observed that late disposal of
backlog cases is because of low judge per capita ratio in the country. The Indian judges are
roughly 10.5 judges per million whereas the figure is more than four times in Australia, U.K.,
U.S.A. and Canada. There was also a suggestion for increase in the number of judicial officers.

Because of overburdening of Courts with cases, there is gross neglect towards the status of
under trials. Flooding of cases led to increase in number of convicts and over population of
prisoners. Although there is a capacity of 2.56 lakh prisoners but there is more than 5 lakh
prisoners which are behind the prison.

The State govts spends more Rupee 55 per day on each prisoner and annual expenditure comes
upto Rs 361 crore. If we could have adopted different method (speedy trial) then the situation
would have been totally different. The State Government would be able to reduce the number
of under trials in the jails and also the huge expenditure could have been checked.5

Fundamental Right to Speedy Trial

The Supreme Court, on various occasions, in its judgments, made it clear that speedy trial is of
essence to criminal justice and there can be no doubt that the delay in trial, by itself, constitutes
denial of justice6 In yet another case the Supreme Court states:There can be no doubt that
speedy trial, and by speedy trial we mean a reasonably expeditious trial, is an integral and
essential part of fundamental right to life and liberty enshrined in article 217

4
Law Commission of India, 12oth Report on Manpower Planning in Judiciary: A Blue print , July 1987, pp. 2-
3.
5
P.K.Singh Plea Bargaining, CBI , Bulletin, June- Dec. 2008, p. 14.
6
Hussainara Khatoon v. State of Bihar AIR 1979 SC1360
7
Maneka Gandhi v. Union of India AIR 1978 SC 597
 4

Constitutional Obligation

The preamble of the Constitution, enjoins the state to secure social, economic and political
justice to all its citizens, making the constitutional mandate for speedy justice inescapable. This
Directive Principle of State Policy directs the state to strive for reducing inequalities amongst
groups of people in different areas [art 38 (1)]. This is elaborated by specifically adding that:

The State shall secure that the operation of the legal system promotes justice. to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities (art 39A).

While interpreting this provision the Supreme Court held that:

Social justice would include legal justice which means that the system of administration of
justice must provide a cheap, expeditious and effective instrument for realization of justice for
all sections of the people irrespective of their social or economic position or their financial
resources.8

Need for a Fair Judge-Population Ratio

The Law Commission of India has repeatedly recommended an increase in the judge-
population ratio. However, the same has not been accepted by the Government. The 120th Law
Commission Report stated:

If legislative representation can be worked out, as pointed out earlier, on the basis of population
and if other services of the state bureaucracy, police, etc., can also be similarly planned, there
is no reason at all for the non-extension of this principle to the judicial services. It must also be
frankly stated that while population may be a demographic unit, it is also a democratic unit. In
other words, we are talking of citizens with democratic rights including the right to access to
justice which is the duty of the State to provide.

The 120th Law Commission Report, while recommending the five-fold increase in judicial
strength, at all levels of the Indian judiciary, from 10.5 to 50 judges per million of population,

8
L Babu Ram v. Raghunathji Maharaj and ors AIR 1976 SC 1734.
 5

also pointed out how Indias judge- population ratio stands in poor contrast when compared
with several other countries. However the government is still to take any action on the same.

Fast Track Court Scheme

Under the Fast Track Court Scheme, a sum of Rs 502.90 crores was sanctioned as upgradation
grant for judicial administration for five years till 2005. At present, there are 1.8 lakh under-
trials in jails,6 on whose maintenance the Government was spending about Rs 361 crores a year
at the rate of Rs 55 per person, per day, in prison. About two crore cases were expected to be
disposed by 2005. If successfully implemented it would entail substantial saving in jail
expenditure, besides addressing a serious human rights problem.

APPLICABILITY OF A.D.R. IN CRIMINAL CASES

These statistics reflect the ubiquity of plea bargaining i.e Relevancy of A.D.R. Plea bargaining
involves the prosecutor trading a reduction in the seriousness of the charges or the length of
the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced
charges. Both sides usually have good reasons for settlement. In a case in which the evidence
of guilt is overwhelming, the prosecution can avoid the expense and delay of a trial by offering
modest concessions to the defendant. When the evidence is less clear-cut the government can
avoid the risk of an acquittal by agreeing to a plea to a reduced charge. Because the substantive
criminal law authorizes a wide range of charges and sentences for typical criminal conduct,
and because the procedural law allows prosecutors wide discretion in selecting charges, the
prosecution can almost always give the defence a substantial incentive to plead guilty.

Even the famous jurist Nani Palkhivala has said, 9 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.

It is the policy and purpose of law to have speedy justice for which efforts are required to be
made to come to the expectation of the society of ensuring speedy untrained and unpolluted

9
Nani A. Palkhivala, We the nation lost decade (1994), UBS Publications, p. 215.
 6

justice10. The problem of delay and backlog of cases is rather more acute in criminal cases as
compared to civil cases.11 The Criminal Law (Amendment) Act 2005 has been introduced in
order to eradicate challenges in criminal cases.

Indias population is day by day increasing. This increase in population leads to increase in
number of detrimental acts. This increase in number of detrimental acts has led to the creation
of many new policies. These policies in its practice requires more number of litigation. As a
result, courts are overburdened with cases. It is the temptation that has led the legislature to
incorporate the concept of Plea Bargaining in India and hopefully the result will be satisfying
in many aspects12.

LEGISLATIVE INTENTS

Right to Speedy Trial

There is a judicially recognized right to speedy trial as part of art 21 of the Constitution.
However, because of inordinate delays, the right to speedy trial is not made available to the
citizens making the trial procedure lengthy.

Constitutional Obligation

The preamble of the Constitution, enjoins the state to secure social, economic and political
justice to all its citizens, making the constitutional mandate for speedy justice inescapable. This
Directive Principle of State Policy directs the state to strive for reducing inequalities amongst
groups of people in different areas [art 38 (1)]. This is elaborated by specifically adding that:

The State shall secure that the operation of the legal system promotes justice. to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities (art 39A).

While interpreting this provision the Supreme Court held that:

Social justice would include legal justice which means that the system of administration of
justice must provide a cheap,expeditious and effective instrument for realization of justice for

10
Anil Rai v. Satte of Bihar, AIR 2000 SC 3173.
11
Supra 2.
12
Supra 2.
 7

all sections of the people irrespective of their social or economic position or their financial
resources.

Criminal Case Management Systems

In order to ensure fair, speedy and inexpensive justice, the Supreme Court has suggested a
model Case Flow Management System in which a judge or an officer of the court would be
required to set a time-table and monitor a particular case from its initiation to its disposal.

A bench comprising YK Sabharwal, DM Dharmadhikari and Tarun Chatterjee JJ, while

suggesting changes in CPC to incorporate recommendations by Justice Jagannadha Rao
Committee, pointed out that a study by the Committee had revealed that case management
system had yielded exceedingly good results in other countries.

In a judgment delivered on 3 August 200513, the bench further directed high courts to examine
the elaborate model Case Flow Management Rules framed by the Committee, headed by
former apex court judge and Law Commission Chairman M Jagannadha Rao J, and consider
adopting it with or without modifications within a period of four months.

Though the court had upheld the constitutional validity of the amendments earlier, it had
appointed the Committee to frame modalities for the implementation of the provisions inserted
by the amendments. The judgment, delivered after the court considered the report, records the
suggestions made by the Committee.

The Supreme Court not only wanted to put cases on the fast track, it wanted them to be graded
as sprint, middle-distance and long-distance according to priority.14 Each category was to have
its own deadline.

Under the plan, which has yet to be passed into law by the Parliament, Track I cases are to
comprise of crimes punishable with death. So do cases of rape, other sexual offences and dowry
deaths. The endeavour is to complete the Track I cases within a period of nine months.

13
Supreme Court of India suggested introduction of case management systems in a recent judgment on 3 August
2005.
14
Reported in The Hindu, 4 August 2005; Telegraph, 4 August 2005, Kolkata, p 1.
 8

Other criminal cases where the accused have been denied bail and kept in jail custody are to be
Track II cases and are to be decided within a year. The 12 month deadline is to apply to Track
III cases, which relate to mass cheating, economic offences, and illicit liquor tragedy and food
adulteration. Terrorism-related cases under special laws like (the now revoked) Prevention of
Terrorism Act, as well as drugs and corruption cases, are to be on Track IV, with a 15-month
deadline. All other criminal cases will be on Track V and must be disposed off in 15 months.
The Supreme Court has suggested that not only trial courts but each high court, too, classify
criminal appeals pending before it into different tracks on the same lines.

In most cases of prisoners where the accused are illiterate or poorly educated and lack the
means to hire a lawyer the Supreme Court judgment has suggested that they be allowed the
services of amicus curiae or state legal aid counsel.

As for writ petitions before high courts, those of habeas corpus must have highest priority. The
Supreme Court has ruled that high courts should issue notice at the first hearing of such writs
and make them returnable within 48 hours. Which means the government or the police must
respond within 48 hours of the notice being issued. Other writ petitions are to be classified into
three categories: fast-track (deadline: six months) normal-track (not more than a year) and
slow-track. The last group 0 petitions, subject to pendency of other cases in the court, should
ordinance, be disposed of within a period of two years.

In civil cases, the court of appeal should consider if there is a possibi1. Of a settlement, between
the parties, at the first hearing, and the court concerned can, if it feels there is a possibility,
make a reference mediation or conciliation, for a settlement.

To administer the rule of law and justice, certain necessary steps need to be taken by the state.
In case of civil matters there are alternate options available such as alternate dispute resolution
mechanisms, thus there is a procedure by which pendency of cases can be tackled. However
such a facility is not available in administration of criminal justice. There is a need to evolve
an alternative approach of resolving criminal cases in a constructive manner. Although, there
are very few alternatives to prosecution in a criminal trial, however, the pre-trial processes of
investigation and prosecution can be rationalised, and alternatives founds to prolonged trial
procedures. Compounding of offences of less serious nature and plea bargaining are some areas,
which can help to speed up the trial and increase the conviction rate.
 9

Compounding of offences: Need to Reframe Section 320 Cr PC

Section 320 of Criminal Procedure Code (Cr PC) provides for compounding of offences. Part
one gives a list of offences which can be compounded without the consent of the court, while
the second part provides for compounding of serious offences with the courts permission.
Some examples of compoundable offences are causing hurt, wrongful restraint, criminal
trespass, adultery, enticing defamation, criminal intimidation and act caused by making a
person believe that he will be an object of divine displeasure.

The second part deals with relatively serious offences that can be compounded with the courts
permission. Section 381 talks about theft by clerk or servant of property in possession of master,
where the value of the stolen property does not exceed Rs 250. As per s 320(2) the courts
permission has to be obtained to compound the offence. There are various other provisions in
the IPC that require that permission by the court be taken to compound the offence. There is a
need to widen the scope of compounding offences with provision of details for procedure,
principles and safeguards to reduce the burden of prosecution and the trauma of trial.

If an offence falls beyond the scope of compounding, and where the trial is necessitated the
accused must get a favourable and fair opportunity to voluntarily plead guilty but with certain
safeguards.

PLEA BARGAINING: THE NEED

CONCEPT

Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet become the
subject of collateral review. Prosecutors refuse to file charges or dismiss charges in a large
number of cases. In the cases prosecutors choose to pursue, the majority end not in trial by jury
but by a plea of guilty or a successful motion to dismiss. Statistics vary across jurisdictions,
but it would not be uncommon for half of all arrests to result either in no charges or in charges
that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas,
and for the remaining cases to be tried. The government typically wins a significant but not
overwhelming majority of criminal trials; a 70 percent conviction rate at trial would not be
unusual. The concept of plea-bargaining in our criminal justice system has been taken from
 10

U.S. Legal System. A concept that has been imported from the west for the speedy trial. The
Parliament introduced Chapter XXI A in CrPc 15which talks about its procedure and application.

The characteristics of the concept are:

A person accused of an offence may file an application for plea-bargaining in the court in which
such offence is pending for trial.16The application for plea-bargaining should be filed by the
accused voluntarily.17 The proceedings are held in camera. Time is given to the accused and
the complainant for mutually satisfactory disposition of cases including expenses,
compensation etc. The secrecy of the matter is maintained as to ensure that the statement made
by the accused during plea-bargaining shall be voluntary. The concept includes women and
children below 14 years. Crimes with punishment of more than 7 years or the punishments
which are non-compoundable under section 320, CrPC have been excluded from purview of
plea-bargaining.

KINDS OF PLEA-BARGAINING

The kinds of bargaining are as follows:

1. Charge bargaining
2. Fact bargaining
3. Sentence bargaining.

1. Charge bargaining: It is the defendant who has to come to plead guilty for reduction
of charges. It occurs when defendant pleads guilty to necessarily included offences.18
For this element, the prosecutor may offer to amend the charges to a lesser offense that
carries a lesser penalty. An individual charged with burglary, a felony, may be offered
a chance to plead guilty to criminal trespass, which is a misdemeanour. Alternatively,
in return for a plea to a specific charge such as driving under the influence, other charges
arising out of the same event, perhaps driving on a suspended license, might be dropped.

15
Reported in Telegraph, 4 August 2005, Kolkata.
16
Criminal Law (Amendment Act, 2005 ), inserted by Act 2 of 2008, Section-4, w.e.f.- 5.7.08.
17
Section- 265 A (1)(a) of CrPC, 1973.
18
Section- 265 B (4) of CrPC, 1973.
 11

Charge bargains can be used to avoid mandatory minimum penalties if a charge is changed to
one that does not have the same minimums, but the facts fit the alternate charge. The authority
to alter charges is within the complete discretion of the prosecutor.

2. Sentence bargaining: In this instance, the prosecutor agrees to make a specific

recommendation to the judge of a sentence in return for a guilty plea. Most charges carry a
wide range of sentence possibilities. Given the range of possible outcomes, many defendants
prefer the certainty of a specific sentence rather than the uncertainty of a sentence following a
guilty verdict when the sentence is entirely at the discretion of the judge. Generally, sentence
bargains must be approved by the trial judge.

3. Fact bargaining It involves negotiations and admissions of certain facts stipulating to the
truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove
them.19 This is a little used possibility and often happens in minor cases that may expose a
defendant to civil liability to a crime victim. Fact bargaining involves an stipulation to certain
facts or the introduction to certain evidence, thereby eliminating the need for the prosecutor to
have to prove them, in return for an agreement not to introduce certain other facts into evidence.
The defendant may then technically maintain a plea of not guilty, though it is understood he
will be found guilty.

A guilty plea is an admission that may be used against a defendant in another court proceeding
as to liability for specific acts. A finding of guilty after a trial is not such an admission. This
process achieves a conviction for the prosecution without a full trial, and avoids a court
admission for the defendant. In some jurisdictions this same result is achieved by a plea of no
contest.

Elements of a valid Plea- agreement:

The accused is provided with many constitutional rights up until his guilty plea is entered.
For an agreement to be valid, the following elements must be present:
-A voluntary waiver of constitutional rights.
-A knowing waiver of these rights.
-A factual basis for the charges to which the defendant is pleading.

19
Daviv Levinson, Encyclopedia of crime and punishment (2003), vol.3, p.1147.
 12

ORIGIN

It has the origin in U.S. and before the 1920s, plea-bargaining was scarcely acknowledged to
exist in the society.20 It was described as unfair and inaccurate (466 F 2d 735) and even if its
constitutionality has been challenged in Harvard Law Review (1387).21

Later on rule-18 of Bar Association approved standards relating to guilty plea (1968) and
recommended for plea of guilty for the accused. The validity of plea bargaining have been
upheld saying that it extends benefit to the accused that in turn, extends the benefits to the
accused.22 In Santa Bello v. New York,23 the court said that it is essential for the administration
of justice and when properly managed, was to be encouraged. The court should not act as a
facilitator of the bargain.24

In 1976, even Justice Potter Steward has stated that the heart and soul of Plea Bargaining is in
the benefit to all concerned in a criminal case.25

At present in USA, the plea bargaining is widely prevalent; it has become a major part in
criminal justice system, it plays the significant role in the disposal of criminal cases. It can be
rebutted in many ways but, the agreements attracts three important issues.

1. The importance of Plea Bargaining to the competence of the system.

2. How the practice affect the liability of the accused.

The extent to which Plea Bargaining represents the proper role of the courts and the
criminal justice as a whole.

GROWTH OF PLEA BARGAINING IN INDIA: JUDICIAL REVIEW

Here, a crime is a way against the society and state. And the negotiation between the wrongdoer
and the aggrieved party or with the state was held unconstitutional and illegal terming, it to be
against the public policy26Article 21 has been put for in support of the accused as he would not

20
Supra 7.
21
Baldevbhai P. Patel, plea-bargaining travesty of justice or necessary evil, Gujarat Law Herald, 2007 (1),
p. 16 to 21.
22
Supra -4.
23
Brady v. US, 397 U.S. 742 (1970).
24
404 US 257(1971).
25
Supra 7.
26
Blackledge v. Allison, 431 US 63 ( 1977).
 13

be getting fair and reasonable opportunity to defend the case. In number of cases27the Supreme
Court has set aside High Court and remanded the matter to the Judicial Magistrate for trial of
the accused in accordance with law as it comes to the conclusion that the conviction and
sentence were based on a coerced admission of guilt as a result of Plea bargaining. But after
the amendment in CrPC in 2005, there is a change in the criminal justice. The time has come
to take it as norm rather than exception in Criminal Justice system.

The justice has to be provided in the reasonable time but the backlog of cases has been really
questioning the faith of judiciary which people have in it. Judges are second to God, efforts
should be made to strengthen this belief. Plea bargaining is such a process through which
criminal justice system can be improved. It has more pros than cons and the legislature has
applied in India as in such a manner that minimum misuse can be done. The crime in our
country has been really increasing and it is adding up as the day passes. Without the use of
plea-bargaining the already over-crowded prisons would be even worse.28

EFFECT OF PLEA BARGAINING

In lieu to remove the backlog cases, the individual and the collective goal in regard to plea-
bargaining can only be achieved when judges, public prosecutors, accused, investigating
officers and the victims co-operate and work together.

It leads to minimum risks of undesirable results for either parties; avoid the uncertainty of the
trial. The reason for plea-bargaining by either side may be several and are as follows:

1. Plea Bargaining In respect to victims:

Although the crime is against the state and the society but it is ultimately the victim which need
to be satisfied. This plea-bargaining has come up as a victim oriented reform in the criminal
justice system. Perhaps, it is the first time that the recommendation and suggestion of law
commission in CrPC has been implemented for taking care of the interest of the victim. 29 It
provides greater respect and consideration towards the victim and their rights. 30 There is a

27
Kachhia Patel Shantilal Koderlal v. State of Gujrat and Another ( 1980) 3 SCC 121; UOI v. V. Jasbhai and
Another 1981 (8) ELT 902 (MP), State of Gujarat v. Union Bhikhu Prajapati 1992 Cri LJ 626.
28
Ganeshmal Jashraj v. Govt. of Gujarat, 1980 Cri LJ 208: AIR 1980 Sc 264, Trippaswamy v. State of
Karnataka, AIR 1983 SC 747.
29
Supra 2.
30
Supra 2.
 14

scheme for compulsory compensation; and also satisfactory disposition of the case. The plea
bargaining also mandates for giving compensation to the victims of the crime. 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.31 The right of the victims are better upheld; and they do not have
to satisfy himself with the court decision. They can bargain over the courts decision.

The victim does not have to produce evidence in the Court and thus led to reduction in anxiety
to the victims and the unpleasantness of hearing all details of crime analyse in length in public.
32
For those who do give evidence the process is often stressful33. Due to Plea bargaining the
victim may even avoid the stress and publicity of trial; and even the courts time is saved.

2. Plea bargaining In respect to Accused:

The accused are the most benefited person of Plea Bargaining when they confess about the
crime. They can even save the Attorneys fee if they are represented by the Private Counsel.
The time consumed in Plea Bargaining is always less as compared to take the case in trial. The
other benefits are34:

1. Getting Out of Jail.

2. Resolving the Matter Quickly.

Having Fewer or less serious offences on Ones record

1. Avoiding hassles of finding a good lawyer for preparing for trial.

2. Avoiding Publicity.
3. Plea Bargaining in respect to Judges and Prosecutors:

Many judges and Prosecutors get powerful incentive because of crowded calendars and
overburdening of Prisons. Plea Bargaining help court and prosecutors to manage caseloads.

31
Ibid at 26.
32
Attorneys Paul Bergman & Sara J. Berman- Barett, The criminal law handbook: Know your rights, survive
the system, (1997) Berkkeley : nolo press.
33
Ashworth & Redmayne, The Criminal Process ed. 3rd, p. 283.
34
J.Morgan and L.Zedner, Child victims: crime, impact, and criminal justice, 1992.
 15

CAUSES OF CONCERNED IN PLEA BARGAINING

After seeing the above situation the model of Plea Bargaining need to have involvement of
three important benefits35 :

1. Increasing the predictability of Plea Bargaining,

2. Enhancing the accuracy and fairness of the Plea.
3. Introducing more openness and transparency in the Plea Negotiations.

CRITICISM

Advocates or attorneys, basically the criminal lawyers, are opposing the plea-bargaining
process. As this process is an alternative to the litigation, the prosecutor or the defendant may
avoid to engage an attorney. So, the criminal lawyers are not in favour of this process. But, the
question arises, whether this process should engage the litigating attorneys? Attorneys know
the court process, the prosecutors and most importantly, how the law works. When an attorney
reviews your case, he or she may find potential legal issues that can result in evidence being
excluded or your case being dismissed. If your case goes to jury trial, an attorney will know
how to prepare for trial and what needs to be proved. The burden in a criminal case is always
on the government to prove your guilt beyond a reasonable doubt. Your attorney does not have
to put on any evidence, however he or she does need to cross-examine the governments
witnesses. Cross-examination is a skill, and good cross-examination is very effective.

Although the legislature has adopted the concept of Plea Bargaining with certain reservation
and cautions. The criticism of this Plea Bargaining are basically of two types: Firstly, the
defendants loose up their constitutional rights eg. Right to trial, Right to appeal as guaranteed
by CrPC, right to fair procedure (as it should be just, fair and reasonable, right to equality.
Secondly, it effect on sentencing policy as it point out that societys interest in appropriate
punishment for crime is reduced by Plea Bargaining36.Its also being criticised by saying that
there is reduction in deterrence as criminal spend less time in jail. It can be rebutted by saying
that long processing times are not only costlier in jail time and psychological wear tear, but
also tend to remove the probability of conviction .

35
Supra note 12.
Stetan, J Kapsch, Plea Bargaining, The guide to American Law: Everyones legal Encyclopedia,
36

Minneapolis, MN; West, 1998.

 16

CONCLUSION & SUGGESTIONS

The general public tends to regard plea bargaining as too lenient. The defense bar and others
of like mind think it too coercive. George Fisher

Whether plea bargaining is an effective method of delivering justice has been a hot burning
topic which needs to be handled with proper care and caution. In the modern field of criminal
jurisprudence, which is still in its infant stage, it is very well needs to be answered as to how is
it going to act as a tool for providing justice?

To save from miscarriage of justice, following safeguards must be followed by all the player
of the process.37

Judicial independence and impartiality

Complete and timely disclosure of prosecution case
Complete record of disposition and discussions to be maintained to promote
consistency and transparency
To be ensured that the views of victim and investigating agency are solicited and also
to ensure their understanding of the agreement
Plea must be voluntarily and there must be awareness of circumstances and likely
consequences.

Due to unloading of backlog cases, the jails will not be over-packed. The constitutional
obligation to provide speedy trial is also being fulfilled; reduction in the number of under trial
prisoners. Due to plea-bargaining, the faith of the people in criminal justice system can be
regained and crime rate can also be decreased. The plea-bargaining can also reduce the serious
congestion in the courts. By the words of Earn Warren, It is the spirit and not the form of law
that keeps the justice alive. So, the proceeding must be fair and reasonable to have best results.

Jenia Iontcheva Turner, judicial Participation in Plea Negotiation: A Comparative View:Winter 2006, The
37

American Journal of Comparative law, Vol. 55(1), p.199.

 17

References

Criminal Law (Amendment Act, 2005 ), inserted by Act 2 of 2008, Section-4, w.e.f.-
5.7.08.
Baldevbhai P. Patel, plea-bargaining travesty of justice or necessary evil, Gujarat
Law Herald, 2007 (1), p. 16 to 21.
Code of Criminal Procedure, 1973
Malimath Committee Report
Mrs Patil Deepa Praveen, Analysis of Plea Bargaining in India Cr.L.J. Jan. 2010 atp18
Unnithan, N. Prabha. Crime And Justice In India. 1st ed. New Delhi: SAGE
Publications, 2013. Print.
Pratiyogita Darpan,Jun 2009