CENTRAL UNIVERSITY OF SOUTH BIHAR,

GAYA

“Plea Bargaining in India and USA:

A Comparative study”

A project work in the paper “Criminology and Criminal Justice

Administration” Under the Master of Laws (LL.M) Programme

Submitted to Submitted by
Dr. Pawan Kumar Mishra, DHEERAJ KUMAR

Associate Professor, LL.M. (Master of Laws)

School of Law &Governance, Semester: First (2018-2019)

Central University of South Bihar, Roll No: CUSB1813131005

Gaya

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 INDEX
Sl. No. CONTENTS Page No.

I Index 01
II Acknowledgment 02
III Research Problem 03
IV Research Hypothesis 04
V Research Methodology 05
VI Table of Cases 06
01 CHAPTER I: INTRODUCTION 07-09
Introduction 07-08
Historical Background 09-12
02 CHAPTER II: PLEA BARGAINING 13-24
Meaning and Concept 13
Types of Plea Bargaining 14
Object of Introducing plea Bargaining 15
An Appraisal of Plea Bargaining 16-17
Disadvantages of Plea Bargaining 17-19
Judicial Approach 20-24
03 CHAPTER III: COMPARATIVE STUDY 25-34
Plea Bargaining in India 25
Salient features 26
Provisions in India 27-28
Procedure in India 29-30
Plea Bargaining in USA 31-32
Procedure in USA 32-34

04 CHAPTER IV: CONCLUSIVE REMARKS 35-39

05 BIBLIOGRAPHY

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 ACKNOWLEDGEMENT

Acknowledgement strictly speaking may not be complete expression of one's gratitude

towards the acknowledged persons. However, it is one of the medium to express the
sentiments and records, one's grateful indebtedness towards those who have guided and
helped the researcher.
I acknowledge my deepest gratitude to my supervisor Dr. Pawan Kumar Mishra, Associate
Professor, School of Law and Governance, Central University of South Bihar, Gaya, who
despite his manifold academic as well as administrative activities spared his precious time
and allowed full freedom for my thoughts to flourish. He always helped me with his intellect
as well as material resources available to him; in case of non-availability of material with him
he indicated the sources from where I can get it. He always managed to take out time from
her busy schedule to guide me in my work. Without his guidance, it would have been very
difficult to complete this work.
At last, I express my thanks to the Library Staff of the Central University of South Bihar,
Gaya for permitting to use the library and their active cooperation and guidance in respect of
this work. I am also thankful to my friends and classmates of Master of Law (LL.M) of this
University Programme for their kind support.
Last but not least, I thank the almighty for his divine grace and whose footprints I saw, every
time I look back.

Date: ...../…./2018 Dheeraj Kumar

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 RESEARCH PROBLEMS

In course of the research in pursuance of this project work the researcher would be dealing
with and the discussion will be revolving around the following research questions:

1. What is the meaning and concept of Plea Bargaining and when plea bargaining may
take place? Where lies the origin and the Historical background of Plea bargaining?
2. What are the objectives behind the introduction of plea bargaining? How and when
the concept of plea bargaining introduced in the Indian criminal justice system?
3. What are the advantages and drawbacks of Plea bargaining?
4. What Laws or Rules of procedure are there regarding Plea bargaining in India and
USA? What are the similarities or the differences in laws or procedure with respect to
Plea bargaining in India and USA?
5. How the Criminal justice delivery system is responding to Plea bargaining cases?

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 RESEARCH HYPOTHESIS

These days there is on-going debate and discussion on the judicial pendency, speedy trial of
under trials offenders, and mechanism for reducing the huge pendency of cases in India. One
of the mechanisms therefor provided by amending the code of criminal procedure in 2005,
and inserting the provisions relating to plea bargaining. Thus the discussion becomes
inevitable. Therefore this project work examines plea bargaining process and argues that
significant benefits flow from formalisation, in the form of statutory recognition and control.
It identifies and analyses the different approaches of the states concerning plea bargaining
and their justifications driving the formalisation of plea bargaining. It also aims to highlight
the adversarial legal culture, the actions of counsel and the judiciary and the pre-trial process.
It focuses on pre-trial hearings; facilitate a direct and engaged discussion of the policy
implications. The intention of this project work is to stimulate debate about the scope of plea
bargaining in India and its comparative study. The thesis object is to analyse whether the
Indian criminal jurisprudence is adaptable to the concept of plea bargaining as the other states
are so. During this analysis, concrete observations regarding the facts of plea bargaining
being voluntary and role of the court and the prosecution are made. This thesis also aims to
highlight the pros and cons of the Indian environment qua the concept and the successful
environment of the concept in different states. This thesis responds to a significant gap in the
literature and in legal policy, and offers a vital contribution to criminology with a detailed
analysis of a highly under-examined area in the international context. Importantly, while this
thesis examines plea bargaining in the comparative context, increasing movements towards
court‟s efficiency and transparency across common law systems, American system and the
Indian system are dealt with. Furthermore, this thesis will inform broader discussions about
plea bargaining, prosecutorial discretion, conflicts in adversarial traditions and efficiency-
driven reform in a global context.

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 RESEARCH METHODOLOGY

As per the title of the project i.e. “Plea Bargaining in India and USA: A comparative study”
it appears that this project work is a comparative study of criminal justice system of India and
USA while dealing with the cases of Plea bargaining. Therefore the project work compare
and analyses the legal provisions, judicial approaches and reasons for introducing plea
bargaining, as well a the present scenario and working style of criminal justice system of both
the countries. Thus the methodology adopted for completion of project work is Doctrinal
Method, whereby Laws, rules, principles governing the administration of plea bargaining, and
judicial decisions on plea bargaining have been briefly studied, compared, analysed and
examined in order to point out the deficiency (if any), suggest necessary changes to be made
in order to make the criminal justice administration of plea bargaining efficient and effective.

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 TABLE OF CASES

Babu Singh vs. State of Uttar Pradesh (1978) 1 SCC 579

Borden kircher vs. Hayes 434 US 357 1978
Boykin v. Alabama 395, US 238 (1969)
Brady vs. United States 397 U.S.742 (1970)
Ganeshmal Jashraj vs. Government of Gujarat (1980) 1 SCC 363 :AIR 1980 SC 264:
Hussainara Khatoon & Others (I) vs. Home Secretary, State of Bihar (1980) 1 SCC 81
Jeetu @ Jitendera vs. State of Chhattisgarh 2013(1) R.C.R.(Criminal) 524
Kirpal Singh vs. State of Haryana (1999) Cri.L.J. 5031
Madanlal Ram Chandra Daga vs. State of Maharashtra AIR 1968 SC 1267 at P.1270
Mc. Mann vs. Richardson, 397 U.S 759 (1970)
Murlidhar Meghraj Loya vs. State of Maharashtra (1976) 3 SCC 684; AIR 1976 SC 1929
Parker vs .North Carolina, 397 U.S. 790 (1970 )
People Vs Griffin 60 Cal 2d 182 [32 Cal. Rptr 24, 383 p. 2d 432]
State of Gujarat vs. Natwar Harchandji Thakur 2005 CriLJ 2957
State of U.P. vs. Nasruddin (2000) CrLJ 4996
State of U.P. v. Chandrika (2000) CrLJ 38493
Thippaswamy vs. State of Karnataka (1983) 1 SCC 194: AIR 1983 SC 747
United States Vs. Jackson 390 U.S. 570(1968)

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 CHAPTER I
INTRODUCTION

A society is best known by the laws by which it is governed. In order to know the past and
present of societal laws, the path and procedure by which its laws have been enacted are
necessary to know. Laws obviously, are made by the law makers. It is the foresightedness of
the law makers that advanced countries like America, Canada, England, Australia, etc. have
incorporated such laws in their jurisprudence while the under advanced countries have still
not even legalized them. Plea Bargaining is one of such concept of criminal jurisprudence.
Plea Bargaining has got statutory recognition in developed countries. India has also legislated
on this concept 08 years ago.
It would be better to initiate the discussion with the famous quote of Indian Jurist and leading
lawyer Nani Palkhivala, “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”.1
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.
The Indian Criminal Justice system has been burdened by huge pendency of criminal cases
and the rising population of under trials in Indian jails. The slow, cumbersome and expensive
trial procedure naturally leads to an inordinate delay in disposing of the criminal cases. To
1
. Nani A Palkhivala, We the nation…lost decade (UBS Publications, 1994 ) p 215

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face the abovementioned challenges the criminal procedure code was amended in 2005 to
incorporate Plea-Bargaining as an alternative dispute resolution mechanism in India.

India„s „efficiency‟ in crime investigation, prosecution and trial process is under a shadow of
doubt and crisis of credibility because more than seventy per cent accused are acquitted.
When it is difficult or impossible to secure evidence to establish crime through able
investigation, what are the alternatives to send the criminals to jails? One restricted answer
will be „plea bargaining‟ where confessions will be bargained from criminal under judicial
supervision which might result in speedy trial and sentencing. This project work intends to
examine the utility of plea bargaining.

In the chapter one, through the discussion the topic would be introduced by pointing out its
historical background and how it evolved?, what is its significance or importance?, How its
requirement or necessity of criminal justice delivery system is fulfilled?, the process of its
incorporating into the criminal law, its development its existence and adaptation to the
present requirement in criminal justice administration.

In the second chapter discussion would be concentrated as to what does the plea bargaining
mean? How many types of plea bargaining are there in the criminal justice system of the
given countries? What are the objects and reasons for introducing the plea bargaining? What
are the advantages and disadvantages of plea bargaining? What are the features and
drawbacks of plea bargaining? How the plea bargaining is approached by the judiciary and
what attitudes it bears towards plea bargaining?

In the third Chapter the discussion involves the comparison of the criminal justice system
administering plea bargaining in India and USA. The analysis of the provisions and
procedure for entering into the bargaining in India and USA may highlight the points of
similarities and points of differences existing in the aforesaid two countries.

In the fourth chapter the whole project work would be concluded by making observations in
view of the aforesaid discussions. The present status in Indian criminal justice system with
regard to use of plea bargaining. The concluding remarks would include observations and
view-points of various eminent legal luminaries and authorities and observations of the courts
and my own concluding observations pointing out drawbacks or lacunas, if any in the
criminal justice system in order to full efficient use of plea bargaining, factors responsible for
less use or misuse of plea bargaining and other points connected therewith and incidental

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thereto. Conclusively it seems that the objects and reasons for the introduction of Concept of
plea bargaining and provision related thereto, while being incorporated into the Criminal
procedure code of India seems not to have been completely fructified till now and a lot is
required to be done on the part of criminal justice system.

Objectives of the Study: This project work tends to know whether the law of Plea
Bargaining will survive in Indian socio-legal set up. To review how far it will be able to
achieve its object in Indian Criminal justice system. To know, whether introduction of Plea
Bargaining provide justice to the party or coerce him to accept the charges. To analyse
whether Plea Bargaining affects the administration of justice adversely i.e. if accused is
innocent or the prosecution has meagre chances of convicting the accused; in such situation
Plea Bargaining will be harmful for justice. To know whether by introducing Plea Bargaining
Courts would be relieved from overburden of cases or it will lead to another huge blog of
cases of misuse of Plea Bargaining by use of coercion of fraud. To conclude whether the
Courts would be able to provide justice to the parties when its powers and discretion has been
codified and thus limited to the extent or the position was better before the Amendment Act.
To have a comparative study of the criminal justice delivery system of India and America, in
dealing with plea bargaining cases.

Historical Background

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 being practiced. 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.

When the American Supreme Court first dealt directly with bargained pleas in 1970, in the
now-famous Brady Trilogy2 it had developed a substantial body of doctrine in apparently

2
. Brady vs. United States, 397 U.S.742 (1970); Mc Mann vs. Richardson, 397 U.S 759 (1970);
Parker vs .North Carolina, 397 U.S. 790 (1970)

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analogous areas which did not compel any particular conclusion about the constitutionality of
plea bargaining. Nevertheless, it did provide a framework for analysis and suggested the
questions that would be relevant to decision. In Brady vs. United States3 and its companion
cases, however, the Court denied the relevance not merely of some but of all prior doctrine.
Having determined that plea bargaining was a topic sui generis, unconnected with any prior
constitutional experience, the Court then announced its conclusion that plea bargaining was
constitutional and disposed of the cases before it. Although, the Court agreed that guilty pleas
were invalid if not "voluntary," its treatment of voluntariness cut that concept loose from its
moorings in the law. The opinions are analytically in coherent. They clearly legitimacy of
plea bargaining. However, they do not provide any adequate explanation for jettisoning the
prior law on voluntariness, nor do they present anything explicit to replace the jettisoned
concept.

Till the midst of 20th Century, most of the courts and scholars, all over the World, tended to
ignore the importance of plea bargaining, and when discussions of the practice occurred, it
usually was critical. A strong criticism against it was that plea bargaining is a lazy form of
prosecution that resulted in undue leniency for offenders. However in later part, the
significance of plea bargaining has improved to a larger extent and it became integral part of
the criminal justice system. Law on plea bargaining has strong variations in Common Law
Countries and European Continent. Guilty pleas have been regarded as a sufficient basis for
conviction from the earliest days of the common law. In treating a guilty plea as conclusive,
Common Law Nations depart from the law of most nations on the European Continent. In
serious cases, these nations do not treat any form of confession as an adequate basis for
dispensing with the trial; even if trials are likely to be simpler and to focus 36 mostly on
sentencing issues when accused do not contest their guilt.

A study indicates, compared to the long Anglo-American history of guilty pleas, the history
of plea bargaining has only a recent origin. The criminal justice system long has been
rewarded some forms of co-operation by the accused, notably, co-operation in procuring the
conviction of other alleged offenders committed serious crimes and offences. Only occasional
instances of plea bargaining have been reported prior to the nineteenth century and recorded
in the judicial history of the West and East. For example, scholars who have studied
eighteenth-century crimes and prosecutions in the Old Bailey in London report no instances

3
. 379 US 742 1970.

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of plea bargaining. Ordinarily, the judges of the Old Bailey urged the accused who offered to
plead guilty to reconsider it, and face the trial.
History narrates that although plea bargaining in felony cases before the nineteenth century
was rare, non-trial dispositions in minor misdemeanour cases may have been the subject of
express or implicit bargains. Such Courts could permit a plea, which allowed an accused to
submit to conviction and pay a fine without admitting guilt. Judges, however, did not allow
such pleas in serious cases, and in the early nineteenth century in America, guilty pleas
typically accounted for a minority of felony convictions. When occasional cases of plea
bargaining began to appear in reported decisions in the second half of the century, appellate
judges voiced strong disapproval of the practice. Despite this disapproval, plea bargaining
became routine in many places before the end of the century. Plea bargaining is common in
England, Canada, and most of the other nations of the British Commonwealth. Earlier
Germany was a "land without plea bargaining". The formal plea of guilty was well-known in
judicial proceedings in Germany, but prosecutors and judges did not promise or negotiate for
in-court confessions. Subsequently, as trials in Germany and elsewhere became longer and
more adversarial, as complex prosecutions for white-collar crime came before the courts in
greater numbers, and as caseloads increased, German prosecutors offered concessions to the
accused not to contest their guilt. Italy, in fact, formally instituted a system of plea bargaining
by statute. Plea bargaining remain less frequent in Continental Europe than in England and
America. In Germany, now it is claimed that some kind of bargaining takes place in roughly
twenty to thirty per cent of all cases. In United States of America, plea bargaining has a vital
role in disposal of criminal cases as it is popular than Jury Trials, while settling the cases of
criminal nature. In 1967, in the midst of high criticism of laziness of prosecutors, however,
both the American Bar Association and the President's Commission on Law Enforcement and
Administration of Justice approved the concept of plea bargaining. The American courts and
most of the Jurist have tended to approve plea negotiation, at least in broad outline. However
in 1973 report of the National Advisory Commission on Criminal Justice Standards and
Goals, recommended the abolition of all forms of plea bargaining. Among the 38 historical
developments there are many other factors which gave major contributions in the growth of
plea bargaining. Some of those factors are the increasing complexity of the trial process,
which may have led to the greater use of non-trial procedures both for economic reasons and
because officials sought to avoid the technicalities of trial, expansion of the substantive
criminal law, particularly the enactment of liquor-prohibition statutes, increasing crime rates;

11
larger case loads, the frequent political corruption of urban criminal courts, at and after the
turn of the twentieth century; the greater use of professionals in the administration of criminal
justice, by police, prosecutors, and defence lawyers and the increasing statutory powers of
state controlled prosecutors.
In India, plea bargaining was firstly recommended in the 154th Report of the Law
Commission of India and subsequently in the 177th Report, there were concerns regarding
this growing delay latch in the judicial system, a committee comprising the former Chief
Justice of Kerala & Karnataka High Court, Justice V. S. Malimath was requested to prepare a
report on the reformation measures and in this report the system of plea bargaining was
suggested as an efficient remedy. Thereafter, numerous proposals were made to introduce
plea bargaining in the Criminal Procedure Code, but all of them failed, and they were
reintroduced with slight moderations through the Criminal Law (Amendment) Bill, 2005, and
thereon we have this system recognized in our criminal justice system which has also sparked
off a controversy in the legal community. The provisions regarding the plea bargaining has
been incorporated in chapter XXIA (Sections 265A to 265L).

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 CHAPTER II
PLEA BARGAINING
MEANING AND DEFINITION

A „plea bargain‟ is a practice whereby the accused forgoes his right to plead not guilty and
demand a full trial and instead uses a right to bargain for a benefit. In other words, plea
bargaining means the accused‟s plea of guilty has been bargained for and some consideration
has been received for it.

The Black's Law Dictionary defines the term 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 prosecutor4,usually a
more lenient sentence or a dismissal of the other charges is also termed as plea agreement, or
a negotiated plea."

According to the Advanced Law Lexicon, plea bargain is a negotiated agreement between a
prosecutor and a criminal defendant whereby the defendant pleads guilty toa 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 other charges. It is also termed as plea agreement or
negotiated plea.

According to Oxford Dictionary, Plea Bargaining is an arrangement between prosecution

and defendant whereby the defendant pleads guilty to a lesser charge in exchange for a more
lenient sentence or an arrangement to drop other charges.

According to the Wikipedia Encyclopaedia, a plea bargain (also plea agreement, plea deal
or copping plea) is an agreement in a criminal case in which a prosecutor and a defendant
arrange to settle the case against the defendant. The defendant agrees to plead guilty or not
contest in exchange for some agreement from the prosecutor as to the punishment. A plea
bargain can also include the prosecutor for some agreement from the prosecutor as to the
punishment. A plea bargain can also include the prosecutor agreeing to charge a lesser crime
(also called reducing the charges) and dismissing some of the charges against the defendant,
in most cases, a plea bargain is used to reduce jail sentence time or fitness associated to the
crime being charged with.

4
. “Plea and Charge Bargaining Research Summary” prepared by Lindsy Devers (w.w.w.Csrincorporated.com)

13
TYPES OF PLEA BARGAINING

Charge Bargain: when the prosecution allows a defendant to plead guilty to a lesser charge
or to only some of the charges framed against him. Prosecution generally has vast discretion
in charges and therefore they have the option to charge the defendant with the highest charges
that are applicable. „Charge Bargain‟ gives the accused an opportunity to negotiate with the
prosecution and reduce the number of charges that may be framed against him. In which the
accused agrees to plead guilty in exchange of a promise to be charged with a less severe
offence.
Sentence Bargain: It happens when an accused or defendant is told in advance what his
sentence will be if he pleads guilty. A sentence bargain may allow a prosecutor to obtain a
conviction in the most serious charge, while assuring the defendant of an acceptable sentence.
It 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.
Prosecution Plea Bargaining: Plea bargaining is sometimes used to describe discussions
between the prosecution and an accused‟s legal advisers concerning the charges upon which
an accused will be presented for trial and including indications that the accused is prepared to
plead guilty to certain offences. This may be described as prosecutorial plea bargaining.
Judicial Plea Bargaining: Plea bargaining also covers discussions in which the trial Judge
takes part. In such an arrangement counsel for the accused and the prosecution attend the
judge in his private chambers and discuss an arrangement whereby, upon the judge indicating
the probable sentence, the accused through his counsel indicates that he will plead guilty.
This may be described as judicial plea bargaining.

Further two kinds of plea bargaining also endorsed in International criminal jurisprudence are
Express and Implicit plea bargaining.
Express bargaining: when an accused or his lawyer negotiates directly with a prosecutor or
a trial judge concerning the benefits that may follow the entry of a plea of guilty.

Implicit bargaining: In implicit bargaining, the trial judges especially, establish a pattern of
treating accused who plead guilty more leniently than those who exercise the right to trial,
and the accused therefore come to expect that the entry of guilty pleas will be rewarded.

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Objects and reasons for introducing Plea bargaining

The primary object of „plea bargaining‟ is to reduce the risk of undesirable orders for either
side. Because Criminal trial can take days, weeks, months and some years while guilty pleas
can be arranged in minutes.

The Supreme Court was reluctant to introduce the concept of Plea Bargaining in India. But
The Gujarat High Court in State of State Of Gujarat vs, Natwar Harchandji Thakor5
appreciated this procedure and observed 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. It can thus be said that
plea bargaining is really a measure and redress and it shall add a new dimension in the realm
of judicial reforms.”

The Supreme Court suggested in 2004 that above every 40,000 people there should be one
judicial authority and this parameter is far beyond acceptability till date. The population is
multiplying but the numbers of courts are static, all this adds to the misery of the judicial
system. Therefore the system of plea bargaining was required in our system since guilty
pleas can be disposed of in minutes, but disputed pleas require a lot of examination and trial
procedure, etc. which consumes a lot of time. The reasons cited for the introduction of plea
bargaining is for the tremendous overcrowding of jails, high rates of acquittal, torture to
accused awaiting trial, etc. can be traced back to factor, i.e. delay in the trial process. The
reason behind delay in trials is the delays of the investigation as well as the overburdened
judiciary.

The Law Commission in its 142nd6 and 154th7 report highlighted the problems faced by
criminal justice system. After studying the other criminal justice systems, they made out a
case for introducing plea bargaining in India. As it is an alternative to the right to fair trial
that they wanted the scheme to be introduced on an experimental basis over a limited number
of offences. It is not inapplicable to grievous offences particularly against women, children
and affecting the socio-economic fabric of the country.8

5
. State of State Of Gujarat vs. Natwar Harchandji Thakor 2005 CriLJ 2957
6
. See http://lawcommissionofindia.nic.in/101-169/report142.pdf
7
. See http://lawcommissionofindia.nic.in/101-169/Report154Vol2.pdf
8
. See http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf

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An Appraisal of the Concept of Plea Bargaining
Plea-bargaining has become successful United States, Canada, Australia and some other
countries meaning thereby, its characteristics overrides is weaknesses to appraise the same.
The following may be discussed:-
(i)Management of Caseloads:-one of the key arguments in favour of plea bargaining is that
it helps courts and prosecutors manage caseloads. The concept would help states like Orissa
as it would curb the mounting of pending cases in lower courts. Currently there were over
then lakh cases pending in lower courts of the State whereas about one lakh cases were
pending disposal in State High Court alone.
(ii)Speedy disposal of criminal cases:-Plea bargaining concept is a modern alternative
dispute resolution system that would ensure speedy disposal of criminal cases and thereby
lessen the burden of pending cases of Courts.”
(iii)Saving of Time and Money:-Another benefit of the system of plea bargaining is that it
saves time and money. Union Minister of the State for Law and Justice, K. Venkatpathy
opined that plea bargaining would save time and money of the Courts and there would be
speedy disposal of cases Jothan Oberman points out in his frontline interview, “..... a plea
bargain certainly is a good thing for someone who is guilty, someone who has factually done
that which he or she is charged with doing, who is confronted with over-whelming evidence,
and where the State is inclined to make some kind of offer because they would not want to
put the victim, or the families of the victim, or put the State, to the cost of proving the case at
trial.”
(iv)Reduction in uncertainty as to the outcome of the trial:-pleading guilty instead of
going to trial reduces uncertainty as to the outcome of a trial, in trying a case before a judge
or judges, the defendant cannot predict what ultimately will happen. Outlining the merits of
plea bargaining, the acting A.K. Ganguly J. of the Orissa High Court said that it would help
both the accused and the victim to reduce litigation and anxiety costs. He added that there
would be an end to the uncertainness of fate of the case. The accused and the complainant can
avoid the unavoidable visit to the lawyer and court.
(v)Active participation of the accused:-Privileged accused is the soul of chapter XXI-A of
the Code of Criminal Procedure. Without the participation of the accused this remedy/or
practical use of this law is impossible. Plea bargains are also perceived as offering the
accused a freedom of choice. It allows criminals who accept responsibility for their actions to
receive consideration for their remorse and not causing limited resources to be expended in

16
further investigating and litigating their case. In other words, it lets the justice system skip the
making them feel sorry for what they have done' and get straight to the 'accepted punishment.
(vi) Helpful in the event of lack of evidence:-in still other cases, prosecutors may be certain
of the guilt of the defendant in a matter, but the admissible or available evidence might not be
enough to convince a jury of the defendant's guilt. This could be the result of a witness or
victim dying prior to trial or certain evidence being lost or ruled inadmissible. In those
situations it can be of benefit to both the prosecutor and the defendant to arrange a plea
bargain. The defendant avoids the chance that he or she could be found guilty of more serious
charges or given a heavier punishment.

Critical Evaluation of the Concept of Plea Bargaining

According to the Asian Human Rights Commission "while the purpose of the new provision
is ostensibly to reduce the long waits for trials endured by most accused, the introduction of
plea bargaining is similar to treating the symptoms of an illness rather than the actual
ailment."

(i)Violation of the principles of criminal jurisprudence: Firstly, it is feared that plea

bargaining may violate principles of criminal jurisprudence and deprive the accused of
assured constitutional safeguards.

(ii)Failure to provide for an independent judicial authority: The failure to provide for an
independent judicial authority for receiving and evaluating plea bargaining applications is a
glaring error. A judge or magistrate may be biased against the accused, as in the event of the
application being rejected. They may well oversee the trial knowing that the accused was
previously prepared to plead guilty. This is clearly unfair to the accused.21

(iii)Risk of prejudice against the accused: The failure to make confidential any order
passed by the court rejecting an application could also create prejudice against the accused.

(iv)Problem of coercion: Another problem is coercion. The requirement of the plea being in
a written format and accompanied by an affidavit allows scope for coercion by the police and
the prosecution leading to the innocent pleading guilty.

17
(v)Risk of public cynicism and distrust: The Court‟s examination of the accused in camera
as opposed to open court may lead to public cynicism and distrust for the plea bargaining
system.

(vi)Risk of Innocent pleading guilty: In India today an accused person may face the
prospect of years in jail as an under trial there is a significant risk that innocent people will
plead guilty under a plea bargaining scheme. Stephen Schulhofer offers this general critique
of the system: “The major problem with plea bargaining is that it forces the party into a
situation where the defendants, even if they have strong defences, and even if they are
innocent, in fact face enormous pressure to play odds and to accept a plea. And the more
likely they are to be innocent and stronger their defences are, the bigger discount and the
bigger benefits the prosecutor will offer them. Eventually at some point it becomes so
tempting that it might be irresistible”. “So the results are that the system as a whole does not
do what is counted on it to do, which is to sort out the guilty people from the innocent people.
It does not do that because the guilty people and the innocent people are all faced with the
same pressure to plead guilty.

(vii) Probability of increase in the number of cases: Plea bargaining will not solve the
delays in India's courts and instead is likely to dramatically increase the number of cases
where innocent persons find themselves imprisoned and with criminal records. With the
introduction of plea bargaining, these persons will be getting pushed from one dark place to
the next.

(viii)Chances of abuse by prosecutors: Critics claim that the plea bargain system can
encourage prosecutors to overcharge at the start of the case which leads to caseload pressures
or unusually severe penalties.

(ix) In favour of the high handed and the rich: The outcome of plea bargaining may
depend strongly on the negotiating skills and personal demeanour of the defence lawyer,
which puts persons who can offer good lawyers at an advantage,. Thus it will give force to
people who are high handed and that will badly affect people who are poor, unsupported,
meek and feeble.

(x)Problem of adequate legal representation for under privileged unsolved: Moreover

such a system still does not solve the problem of acquiring adequate legal representation for

18
those who are underprivileged. Thus, for the rich, plea bargaining will merely make crime
affordable and will be anything but a deterrent.

(xi) Easy escape of criminals: Criminals may escape with impunity and escape due
punishment. The incidence of crime might increase due to criminals being let off.23

(xii)Victimization of the poor: In the existing situation where the acquittal rate is as high as
90% to 95% it is the poor who will be the victims of the concept and come forward to make
confessions and suffer the consequent conviction.

(xiii)Risk of increase in human right abuse by state officials: The plea bargaining
provision may also have dramatic side effects in cases involving state officers accused of
human rights abuse. An Indian police officer accused of torturing a person in his custody may
instead only be tried for other offences under the Indian Penal Code for which the
punishments as well within the limit prescribed for punishment under the new law on
bargaining. This means that the new law may allow tortures to escape with even lighter
penalties, despite the fact that their offences fall into the gravest categories under
international law.

19
JUDICIAL APPROACH IN INDIA
Whenever a new legal principle first clam or s for recognition, it may be enough that the
Court recognised the principle-clear elucidation of its contours can wait for another day. The
history of the Court is replete with instances of new, valuable and productive legal doctrine
first announced in obscure and even in coherent opinions.
In India, the concept of Plea bargaining is not an alien one but still the practical utility of this
concept is unknown to the Court. The Courts at lower level i.e. The Judicial Magistrates and
the Metropolitan Magistrate are not keenly interested to follow this concept for many reasons
though the same being legal and constitutionally valid can be a good instrument to lessen the
burden of cases in Courts.
After the Amendment Act, 2005 and insertion of Chapter XXI-A in the Cr.P.C the Courts
have taken positive note of the concept.
Earlier, the Courts were reluctant to adopt this method in criminal cases which has already
been discussed but now the Courts are free to adopt it as an instrument to handle the cases in
a faster move. On the basis of this amendment in the Criminal Procedure Code, the judicial
approach can better be read by dividing the time into pre 2005 and post 2005 eras which shall
be now discussed in detail.

Pre 2005 CR.P.C. Amendment Era

Earlier, the Courts were reluctant to adopt this method in criminal cases but now the Courts
are free to adopt it as an instrument to handle the cases in a faster move. After the
Amendment Act, 2005 and insertion of Chapter XXI-A in the Cr.P.C the Courts have taken
positive note of the concept.
In Madanlal Ram Chandra Daga Vs. State of Maharashtra9, wherein the Court held:-
“In our opinion, 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. But the Court
should never be a party to a bargain by which money is recovered for the complainant
through their agency. We do not approve of the action adopted by the High Court”.
Again the question of plea bargain was considered by this Court in Murlidhar Meghraj Loya
V. State of Maharashtra10 and disapproved by following succinct observation: “To begin

9
. Madanlal Ram Chandra Daga Vs. State of Maharashtra AIR 1968 SC 1267 at P.1270
10
. Murlidhar Meghraj Loya V. State of Maharashtra (1976) 3 SCC 684; AIR 1976 SC 1929; 1976 Cr.l.LJ 1527
para 13

20
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. Many economic offenders resort to practices the Americans call „plea
bargaining, plea negotiation, trading out‟ and compromise in criminal cases‟ and the trial
magistrate drowned by a docket burden nods assent to the sub rasa ante-room settlement. The
businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a
prison cell,‟ trades out‟ of the situation, the bargain being a plea of guilt coupled with a
promise of „no jail‟. These advance arrangements please everyone except the distant victim,
the silent society. The prosecutor is relieved of the long process of proof, legal technicalities
and long arguments, punctuated by revisional excursion to higher Courts, the Court sighs
relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case
less and the accused is happy that even if legalistic battles might have held out some
astrological hope of abstract acquittal in the expensive hierarchy of the justice-system he is
free early in the day to pursue his old profession. It is idle to speculate on the virtue of
negotiated settlements of criminal cases, as obtains in the United States but in our
jurisdiction, especially in the area of dangerous economic crimes and food offences this
practice intrudes on society‟s interests by opposing society‟s decision expressed through
predetermined legislative fixation of minimum sentences and by subtly subverting the
mandate of the law. The jurists across the Atlantic partly condemn the bad odour of
purchased pleas of guilty and partly justify it philosophically as a sentence concession to a
defendant who has by his plea „aided in ensuring the prompt and certain application of
correctional measures to him"
In Babu Singh v. State of Uttar Pradesh11 the Supreme Court remarked that
“Indian justice system even in grave cases, suffers from slow motion syndrome which is
lethal to fair trial whatever the ultimate decision. Speedy justice is a component of social
justice since the community, as a whole, is concerned in the criminal being condignly and
finally punished within a reasonable time and the innocent being absolved from the
inordinate ordeal of criminal proceedings.”
In Hussainara Khatoon & Others (I) vs. Home Secretary, State of Bihar 12 with reference to
the under-trial persons, it was observed that no procedure which does not ensure a reasonably
quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21.
There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably
11
. Babu Singh v. State of Uttar Pradesh (1978) 1 SCC 579
12
. Hussainara Khatoon & Others (I) vs. Home Secretary, State of Bihar (1980) 1 SCC 81

21
expeditious trail, is an integral and essential part of the fundamental right to life and liberty
enshrined in Article21.

In Ganeshmal Jashraj vs. Government of Gujarat13, and Thippaswamy vs. State of

Karnataka14, the Court set-aside the order passed by the High Court enhancing the sentence
and remanded the matter to the judicial Magistrate for trial of the accused in accordance with
the law, as conviction and sentence were based on admission of guilt as a result of plea
bargaining. The High Court had enhanced the sentence for the offence punishable under
section 16(1) (a) (i) of the Prevention of Food adulteration Act, 1954 by holding that it was
patently in breach of the requirement of the said Section, which provided for a minimum
sentence of imprisonment for three months (now six months). This Court set aside that order
by holding that there can be no doubt that when there is an admission of guilty made by the
accused as a result of plea bargaining or otherwise, the evaluation of the evidence by the
Court is likely to become a little superficial and perfunctory and the Court may be disposed to
refer to the evidence not critically with a view to assessing its credibility but mechanically as
a matter of formality in support of the admission of guilty. The entire approach of the Court
to assessment of the evidence would be likely to be different when there is an admission of
guilty by the accused. Similarly,

In Thippaswamy vs. State of Karnataka15, Court observed that it would be violative of Art. 21
of the Constitution to induce or lead an accused to plead guilty under a promise or assurance
that he would be let off lightly and then in appeal or revision, to enhance the sentence. In
such cases, the Court of appeal or revision should set aside the conviction and sentence of the
accused and remanded the case of the trial Court so that he accused can, if he go wishes,
defend himself against the charge and if he is found guilty, proper sentence can be passed
against him.

In Kirpal Singh vs. State of Haryana16 in a case involving sections 392 and 397 I.P.C. where
minimum punishment of seven years of rigorous imprisonment by the law has been provided.
It was held by the Apex court that concept of plea bargaining can't be adopted to circumvent
the minimum punishment prescribed by law. Neither the High court nor the trial court has the
jurisdiction to by-pass the minimum limit of sentence prescribed by law on the pretext that a

13
. Ganeshmal Jashraj vs. Government of Gujarat (1980) 1 SCC 363 :AIR 1980 SC 264: (1980) Cri LJ 208
14
. Thippaswamy vs. State of Karnataka (1983) 1 SCC 194: AIR 1983 SC 747: (1983) Cri LJ 1271
15
. Supra.
16
. Kirpal Singh vs. State of Haryana (1999) Cri.L.J. 5031

22
pre-bargain was clinched by the accused on the assumption that court would award him
punishment even less than minimum prescribed by law and let him off lightly. This procedure
was held to be unfair, unjust and unreasonable and hence violative of Article 21 of the
Constitution of India.

In Kachhia Patel Shantilal Koderlal vs. State of Gujarat17 the Supreme court ruled that the
practice of plea bargaining is unconstitutional, illegal and would tend to encourage
corruption, collusion and pollute the justice system because it might induce an innocent
accused to plead guilty and to suffer a lighter and in consequential punishment instead of
going through a long and arduous criminal trial which is not only expensive and time
consuming but also uncertain and unpredictable in its result. The judge may also be deflected
from the path of justice and may convict the innocent by accepting the plea of guilty or let off
a guilty accused with a lighter sentence.

Similar observations were made by the Apex Court in State of U.P. vs. Nasruddin18 in a case
under section 304 95 I.P.C. where plea bargaining on the question of sentence was held to be
not permissible under the law.

In State of U.P. v. Chandrika19 the court discussed the constitutionality of Plea Bargaining in
light of Article 21 of the Constitution of India and observed that the concept of plea
bargaining is not recognized and is against public policy under our criminal justice system.
Section 320 Cr.P.C. provides for compounding of certain offences with the permission of the
Court and certain others even without permission of the Court. Except the above, the concept
of negotiated settlement in criminal cases is not permissible. This method of short circuiting
the hearing and deciding the criminal appeals or cases involving serious offences requires no
encouragement. Neither the State nor the public prosecutor nor even the Judge can bargain
that evidence would not be led or appreciated in consideration of getting flee bite sentence by
pleading guilty.

17
. Kachhia Patel Shantilal Koderlal vs. State of Gujarat 2000(1) Crimes 53 (SC)
18
. State of U.P. vs. Nasruddin (2000) CrLJ 4996
19
. State of U.P. v. Chandrika (2000) CrLJ 38493

23
Post 2005 Cr.P.C. Amendment Era

The Gujarat High Court appreciated this procedure and observed in State of State Of Gujarat vs
Natwar Harchandji Thakor20 5 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."
After the Criminal Law Amendment Act 2005, although the law has permitted to follow Plea
Bargain, but still the practise is in its infancy and needs a lot to be made a regular practice.
Recently, in Jeetu @ Jitendera vs. State of Chhattisgarh21 the observation of the Apex Court
in case Thippaswamy vs. State of Karnataka22 was taken into account. The court also referred
to Madanlal Ramchandra Daga v. State of Maharashtra23, Murlidhar Meghraj Loya vs. State
of Maharashtra24, Ganeshmal Jashraj vs. Govt. of Gujarat, and Thippaswamy (supra), a two-
Judge Bench ruled thus:-

"It is settled law that on the basis of plea bargaining the court cannot dispose of the criminal
cases. The Court has to decide it on merits. If the accused confesses his guilt, an appropriate
sentence is required to be imposed. Further, the approach of the court in appeal or revisions
should be to find out whether the accused is guilty or not on the basis of the evidence on
record. If he is guilty, an appropriate sentence is required to be imposed or maintained. If the
appellant or his counsel submits that he is not challenging the order of conviction, as there is
sufficient evidence to connect the accused with the crime, then also the court's conscience
must be satisfied before passing the final order that the said concession is based on the
evidence on record. In such cases, sentence commensurating with the crime committed by the
accused is required to be imposed. Mere acceptance or admission of the guilt should not be a
ground for reduction of sentence. Nor can the accused bargain with the court that as he is
pleading guilty the sentence be reduced."

20
. 2005 Cri.L.J 2957
21
. Jeetu @ Jitendera vs. State of Chhattisgarh 2013(1) R.C.R.(Criminal) 524
22
. 1983(2) R.C.R.(Criminal) 99
23
. Supra 1983(2) R.C.R.(Criminal) 99
24
. Supra107

24
 CHAPTER III
COMPARATIVE STUDY
PLEA BARGAINING IN INDIA

Enthused by the success of plea bargaining in the United States, India has made several
attempts to introduce a similar formula. To reduce the delay in disposing of criminal cases,
the 154th Report of the Law Commission, first recommend the introduction of 'plea
bargaining' as an alternative method to deal with huge arrears of criminal cases. This
recommendation of the Law Commission finally found support in Malimath Committee
Report. The Committee on Criminal Justice Reforms, headed by former Chief Justice of
Karnataka and Kerala High Courts and former member of the National Human Rights
Commission of India, V.S. Malimath (“Malimath Committee”) submitted its report to the
Government of India's Ministry of Home Affairs in March 2003 in which a recommendation
to introduce a system of plea bargaining into the criminal justice system of India to facilitate
the earlier resolution of criminal cases and reduce the burden on the courts (Recommendation
106) was made. The Malimath Committee on Criminal Justice Reform also reiterated their
stand by advocating in favour of Plea-Bargaining and agreed that the scheme can be
introduced in a truncated manner.
A formal proposal for incorporating plea bargaining into the Indian criminal justice system
was put forth in 2003 through the Criminal Law (Amendment) Bill 2005, which was passed
by the Rajya Sabha on December 13, 2005 and by the Lok Sabha on December 22, 2005.
Eventually it was incorporated in the Criminal Procedure Code as Chapter XXI A containing
Sections (265A to 265L) by the Criminal Law (Amendment) Act of 2005.
In India, the system of plea bargaining is in its experimental stage. The system was
introduced as a result of criminal law reforms introduced in the Criminal Law (Amendment)
Act, 2005 (Act 2 of 2006). Section 4 of the Amendment Act introduced Chapter XXIA to the
Code having sections 265 A to 265 L. Though the Act was passed on 11th January, 2006, the
provisions were notified and came into effect from 5th July, 2006 only.

25
Salient Features of Plea Bargaining Under the Code of Criminal Procedure, 1993

Nomenclature “plea bargaining” is not defined in the amendment but meaning is expressed
from the nomenclature itself, that is, someone is going to earn something on his own
statement. Its salient features under Chapter XXI-A of the Code of Criminal Procedure are:

 Plea bargaining is applicable only in respect of those offences for which punishment
of imprisonment is up to a period of seven years.
 It does not apply where such offences affects the socio-economic condition of the
country or has been committed against a woman or a child below the age of fourteen
years.
 The application for plea bargaining should be filed by the accused voluntarily.
 A person accused of an offence may file an application for plea bargaining in the
Court in whom such offence is pending for trial.
 The complainant and the accused are given time to work out a mutually satisfactory
disposition of the case, which may include giving to the victim by the accused,
compensation and other expenses incurred during the case.
 Where a satisfactory disposition of the case has been worked out, the Court should
dispose of the case by sentencing the accused 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 purpose other than for plea bargaining.
 The judgment delivered by the Court in the case of plea bargaining shall be final and
no appeal shall lie in any court against such judgment (except Special Leave Petition
under Article 136 and writ petition under Articles 226 and 227 of the Constitution).

26
Provisions in India

Plea Bargaining in the Code Criminal Procedure, 1973

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.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. According to 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. In practice this is done by administering a properly structured questionnaire to
the accused in camera.
The questionnaire administered to the accused informs him that he has a right to fair trial.
That by resorting to plea bargaining he will forego his right to trial, right to confront the
complainant, right to bring witnesses in support of his defence and right to be convicted only
by proof reasonable doubt.
That the judgment delivered by the plea-bargaining judge in terms of the mutually
satisfactory disposition shall be final and no appeal (except the special leave petition under
Article 136,and writ petition under Articles 226 and 227 of the constitution shall lie in any
court against such judgment.
Once the judicial officer is satisfied about voluntariness he will provide time for working out
a mutually satisfactory disposition of the case which should have a provision for
compensating the victim.
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 case. Secondly the judicial officer
is made responsible to ensure voluntariness throughout the meeting. Once the meeting is over
265 D talks of filing a report regarding the outcome of the meeting irrespective of whether it
is a success or failure. 265 E gives directions for the final disposition of the case in the event

27
of a successful disposition being worked out. The judicial officers are mandated to do
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 the Probation of Offenders Act, 1958.
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.265 I allows for setting off the period of detention undergone by the
accused against the sentence of imprisonment imposed under this procedure.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.265 L is makes this procedure inapplicable to Juveniles or Children.
In addition to this codified procedure some High Courts have come out with detailed
guidelines as to how Plea Bargaining should be administered in their criminal courts. Like the
Delhi District Courts website has listed practice guidelines for the magistrates of various
criminal courts in Delhi.25It envisages a separate plea bargaining magistrate for disposing of
the application. Though the application is made before a magistrate where the trial is pending,
He forwards it to a separate magistrate designated as a plea bargaining magistrate for that
case. This mechanism is created to curtail the possibility of any bias in the mind of the trial
magistrate in the event of the plea bargaining application failing to lead to a successful
mutually satisfactory disposition.

25
. http://delhidistrictcourts.nic.in/plea/guidelines.html(Last Visited on 16th Octuber,2014)

28
Procedure in India

In the United States, the accused has three options with respect to pleas; guilty, not guilty or
plea of nolo contendere. In plea of nolo contendere, the defendant answers the charges made
in the indictment by declining to dispute or admit the fact of his or her guilt. The defendant
who pleads nolo contendere submits for a judgment fixing a fine or sentences the same as if
he or she had pleaded guilty. The difference is that a plea of nolo contendere cannot later be
used to prove wrongdoing in a civil suit for monetary damages, but a plea of guilty can.
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 conditions prevailing in our country. There are three types of plea
bargaining; i) charge bargaining; ii) sentence bargaining; and iii) Fact bargaining. Negotiating
for dropping some charges in a case of multiple charge or settling for a less grave charge is
called charge bargaining. Where the accused has an option of admitting guilt and settling for
a lesser punishment it is sentence bargaining. Lastly, negotiation which involves an
admission to certain facts in return for an agreement not to introduce certain other facts is fact
bargaining.
To reduce the delay in disposing criminal cases, the 154th Report of the Law Commission
first recommended the introduction of plea bargaining as an alternative method to deal with
huge arrears of criminal cases. This recommendation of the Law Committee finally found a
support in Malimath Committee Report. A committee, headed by the former Chief Justice of
the Karnataka and Kerala High Courts, Justice V.S. Malimath to come up with some
suggestions to tackle the ever-growing number of criminal cases was formed. In its report, the
Malimath Committee recommended that a system of plea bargaining be introduced in the
Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to
reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed
out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law
(Amendment) Bill, 2003 was introduced in the parliament. The statement of objects and
reasons, inter alia, mentions that, the disposal of criminal trials in the courts takes
considerable time and that in many cases trial do not commence for as long as 3 to 5 years
after the accused was remitted to judicial custody though not recognized by the criminal
jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal
cases'. The bill attracted enormous public debate. Critics said it is not recognized and against

29
public policy under our criminal justice system. The Supreme Court has also time and again
blasted the concept of plea bargaining saying that negotiation in criminal cases is not
permissible. In State of Uttar Pradesh vs. Chandrika 26, the Apex Court held that it is settled
law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court
has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required
to be implemented. The court further held in the same case that, mere acceptance or
admission of the guilt should not be a ground for reduction of sentence. Nor can the accused
bargain with the court that as he is pleading guilty the sentence be reduced. Despite this huge
hue and cry, the government found it acceptable and finally section 265-A TO 265-L are
added in the Code of Criminal Procedure so as to provide for raising the plea bargaining in
certain types of criminal cases. While commenting on this aspect, the Division Bench of the
Gujarat High Court observed in State of Gujarat vs. Natwar Harchanji Thakor27 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 it is really a
measure and redress and it shall add a new dimension in the realm of judicial reforms.
Plea bargaining is undoubtedly, a disputed concept. Few people have welcomed it while
others have abandoned it. It is true that plea bargaining speeds up caseload disposition. The
criminal courts are too over-burdened to allow each and every case to go on trial. In such
situation, system is left with no other choice but to adopt this technique.

26. State of Uttar Pradesh vs. Chandrika 2000 Cr.L.J. 384

27
. State of Gujarat vs. Natwar Harchanji Thakor (2005) Cr. L.J. 2957

30
PLEA BARGAINING IN USA

It would be wrong to assume that the concept of „plea bargaining‟ found favour of courts only
in the recent past. In fact, it is used in the American Judiciary in the 19th century itself. The
Bill of Rights makes no mention of the practice when establishing the fair trial principle in
the sixth amendment but the constitutionality of plea bargaining had constantly been upheld
there. In the year 1969, James pleaded guilty to assassinating Martin Luther King Jr. to avoid
execution sentence. He finally got an imprisonment of 99 years.
Plea bargaining, perused with the aim of reducing caseload is something that has been
immensely successful in the United States of America, so much so that it has now become the
norm rather than the exception. It is a significant part of the criminal justice system; the vast
majority of criminal cases in the United States are settled by plea bargain rather than by a
jury trial. The majority of individuals accused of crime give up their constitutional rights and
plead guilty. Every minute a criminal case is disposed of in an American Court by way of
guilty plea or Nolo Contendere Plea. Plea bargains are subject to the approval of the Court,
and different states and jurisdictions have different rules. The Federal Sentencing Guidelines
are followed in federal cases and have been created to ensure a standard of uniformity in all
cases decided in the federal courts.
In a landmark judgment Bordenkircher vs. Hayes28 the US Supreme Court held that the
constitutional rationale for plea bargaining is that no element of punishment or retaliation so
long as the accused is free to accept or reject the prosecution offence.
In Santbello vs. New York29 the United States Supreme Court formally accepted that plea
bargaining was essential for the administration of justice and when properly managed, was to
be encouraged. Under Federal Law, as of January 27, 2007, the maximum a plea bargains can
reduce hail sentences and fines are 50%.
Plea Bargaining has emerged as one of the most popular procedures in the criminal justice
system of U.S.A. 10 for disposing of criminal cases without a formal trial. It accounts for
ninety per cent of all criminal convictions in the United States.30 In 1970 the American
Supreme Court accepted the constitutionality of plea bargaining in Brady v. United
States31and also encouraged its use in another celebrated case.32 Further Federal Sentencing

28
. Bordenkircher vs. Hayes 434 US. 357 1978
29
. Santbello vs. New York 104 U.S. 257 1971
30
. Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev. 50, 50 (1968)
31
. Brady v. United States 397 U.S. 742 (1970)
32
. Santobello vs. 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).

31
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.33

Procedure in United States

Plea bargaining has over the year emerged as a prominent feature of the American Criminal
Justice System where over 90% criminal cases are settled by plea bargain rather than by a
jury trial. Thus, less than ten per cent of criminal cases go to trial. The United States
experiments show that plea bargaining helps the disposal of the accumulated cases and
expedite delivery of justice.

The concept of Plea Bargaining was not favoured in colonial America. In fact, Courts
actively discouraged defendants from pleading guilty. As population increased and Courts
became overcrowded, trial in every case became lengthier and impossible. Thus, the need
was felt for such a strategy which could result in speedy disposal. Thereafter, in the 19th
century, Courts gradually started accepting guilty pleas and by the 20th Century, the vast
majority of criminal cases started being resolved with plea bargaining.

Presently, plea Bargaining is expressly authorized in statutes and in Court rules of the United
States. The Federal Rules of Criminal Procedure, and in specific, Rule 11(e) recognise and
codifies the concept of plea agreements. However, because of United States Sentencing
Guideline (USSG) provisions, the leeway permitted is very restrictive. Under Rule 11(e) a
prosecutor and defendant may enter into an agreement whereby the defendant plead guilty
and the prosecutor offers either to move the dismissal of a charge or charges, or recommend
to the Court a particular sentence or agree not to oppose the defendant‟s request for a
particular sentence, or agree that a specific sentence is the appropriate disposition of the case.
A prosecutor can agree to take any or all of these actions in a plea agreement. Under Rule 11

33
. Like the States of New Orleans, California, Michigan, and Oakland Country are some of the many states
who have banned plea bargaining in their jurisdiction. See Is a Ban on Plea Bargaining an Ethical Abuse of
Discretion? A Bronx County, New York Case Study, 64 Fordham L. Rev.987 (1995),also available at:
http://ir.lawnet.fordham.edu/flr/vol64/iss3/14

32
(e), Plea Bargaining must take place before trial unless the parties show good cause for the
delay.

Simply put, it is contractual agreement between the prosecution and the defendant concerning
the disposition of a criminal charge. Unlike most contractual agreements, it is not enforceable
until a judge approves it. However, the judge does not participate in its discussion.
Prosecution has been granted full discretion to offer a plea bargain to the defendant but has
no authority to force Court to accept a plea agreement entered into by the parties. It may only
recommend to the Court for the acceptance of a plea arrangement. Thereafter, a judge
authorizes plea bargain and will take proofs to ensure that the following three components are
satisfied and will then accept the recommendation of the prosecution:

(1) A knowing waiver of rights;

(2) A voluntary waiver; and

(3) A factual basis to support the charges to which the defendant is pleading guilty.

Generally a judge will authorize a Plea Bargain if the defendant makes a knowing and
voluntary waiver of his or her right to a trial, the defendant understands the charges, the
defendant under stands the maximum sentence he or she would receive after pleading guilty,
and the defendant make a voluntary confession, in Court, to the alleged crime,. Even if a
defendant agrees to plead guilty, a judge may decline to accept the guilty plea and plea
agreement if the charge or charges have no factual basis.

When a Court accepts a plea agreement, the guilty plea operates as a conviction, and the
defendant cannot be retried on the same offence. If the defendant breaches plea agreement,
the prosecution may re-prosecute the defendant. If the government breaches a plea
agreement, the defendant may seek to withdraw the guilty plea, ask the Court to enforce the
agreement, or ask the Court for a favourable modification in the sentence. When a prosecutor
or defendant revokes a plea agreement, the statements made during the bargaining period are
not admissible against the defendant in subsequent trial. This rule is designed to foster free
and open negotiations. Thus, it is a set of exchange relationships in which the prosecutor, the
defence attorney, the defendant and sometimes the judge participate all have specific goals,
all try to use the situation to their own advantage, and all are likely to see the exchange as a
success.

33
Aside from legal considerations as to the knowing or voluntary nature of a plea, there are
other restrictions or prohibitions on the opportunity to plea bargain. In federal practice, U.S.
attorneys may not make plea agreements which prejudice civil or tax liability without the
express agreement of all affected divisions or agencies. Moreover, no attorney for the
government may seek out, or threaten to seek, the death of penalty solely forth purpose of
obtaining a more desirable negotiating passion for a plea arrangement. Attorneys are also
instructed not to consent to “Alford pleas” except in the most unusual circumstances and only
with the recommendation of Assistant Attorneys General in the subject matter at issue. In any
case where a defendant has tendered a plea of guilty but denies that he or she committed the
offense, the attorney for the government should make an offer or proof of all facts known to
the government to support the conclusion that he defendant is in fact guilty. Similarly, U.S.
Attorney is instructed to require an explicit stipulation for all facts of a defendant‟s fraud
against United States when agreeing to plea bargain.

There have been numerous court decisions, at the highest levels, that discuss the rule on plea
bargains. In People vs. Griffin34,7 Judge VanVoor observed that the practice of accepting
plea to lesser crimes is generally intended as a compromise in situations where conviction is
uncertain of the crime charges. In United States vs. Jackson35 the Court questioned the
validity of the plea bargaining process if it burdened a defendant‟s right to a jury trial. Issue
in that case was a statute that imposed the death penalty only after a jury trial. Accordingly,
to avoid the death penalty, defendants were waiving trials and eagerly pleading guilty to
lesser charges two years later, the court actually defended plea bargaining in Brady vs. United
States36 pointing out that the process actually benefited both sides of the adversary system.
The Court noted that earlier opinion in Jackson merely required that guilty pleas be intelligent
and voluntary. Further, in Boykin vs. Alabama37 the U.S. Supreme Court ruled that defendants
must state that the plea was made voluntarily before a judge may accept the plea. Judges have
created standard forms with questions for the defendants to affirm in open Court before the
plea is accepted. Trial judges also must learn whether the defendant understands the
consequences of pleading guilty and ensure that the plea is not obtained through pressure or
coercion.

34
. People Vs. Griffin 60 Cal 2d 182 [32 Cal. Rptr 24, 383 p. 2d 432]
35
. United States Vs. Jackson 390 U.S. 570(1968)
36
. Brady Vs. United States 379, U.S. 742 (1970)
37
. Boykin v. Alabama 395, US 238 (1969)

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 CHAPTER IV
CONCLUSIVE REMARKS
Anomalies in the Indian Law

1. The expression "Socio-Economic offence affecting the society" has not been precisely
defined. It would lead to unnecessary long drawn legal debate and confusion until the Apex
Court finally interprets the scope and connotation of the above expression.
2. The rights and role of complainant in the proceedings for final disposition have not been
properly clarified in law. The intention of the law is to give right of audience to complainant
only in respect of just compensation. The complainant has no right to prevent Court from
recording the plea of guilt and to impose the sentence as prescribed. In the case of
disagreement in the matter of compensation the verdict of the court would be final. The
complainant can invoke the remedy of writ only when the compensation awarded is
disproportionate and inadequate. The textual law is vague and likely to be misinterpreted by
the complainant that he can scuttle the right of accused to avail the benefit of "plea
bargaining" if he is not agreeable to the compensation proposed.
3. When there are several accused, some admit guilt under "plea bargaining" and others who
contest the case are acquitted on merits, the persons convicted on plea bargaining seem to be
discriminated in law in public perception.
4. The elaborate precautionary steps set down in law for the Court to make in-camera
enquiry, notice to prosecutor and victim consultations for final disposition spread over in
different hearing dates invariably result in delayed disposal. The very object of expeditious
disposal to cut short the docket explosion gets defeated. On the other hand, the quick
summary enquiry of the accused and the victim in the open court and immediate decision
would be a desirable and ideal procedure.
5. Section 320 Cr.P.C. provides for compounding of offences by the accused and the
complainant without intervention of the Court. The large number of cases coming within the
scope of “plea bargaining” is being settled under Section 320 Cr.P.C.
6. The benefit of Section 4 of the Probation of Offenders Act, 1958 applies to all offenders
punishable with the sentence of life imprisonment or death. The benefit of the Act would
apply to all the offenders and offences which are subject matter of plea bargaining. Therefore
question of imposing 1/4 sentence may not arise if the provisions of section 4 of the Act are
effectively implemented. Apart in majority of cases the victims and material witnesses turn

35
hostile resulting in acquittal. If accused can pay compensation and suffer half the sentence he
would rather pay the money outside the Court and secure acquittal by getting the witnesses
hostile to avoid imprisonment.

Suggestions

After studying the concept of plea-bargaining in India and its comparative study, the
researcher has been able to point out some suggestions on the law of plea bargaining. Some
of them may be enumerated as follows:

1. In order to implement plea bargaining successfully, first thing which is required is to

spread awareness of this provision among the stakeholders in the criminal justice system.

2. The accused has done not that he has this right. Therefore, summons to an accused in all
cases to which plea bargaining is attracted must contain this information that he is entitled to
take the benefit of this system. For that the statutory format of summons may be alerted.

3. The awareness programme should be held in jail among trial prisoners who can come
within the purview of Chapter XXI-A of the Code. If this is done, this will help decongest the
overpopulated jails all over the country.

4. There is a greater chance of success in the plea bargaining programme, if it is first

implemented in cases of persons who are already in custody and in respect of those offences
which carry a maximum sentence of up to three years.

5. In order to successfully carry out this awareness programme, the Probation Officers,
Welfare Officers of the jail and the Superintendent of Jails must be involved to conduct the
programme among the under trial prisoners so that they may get “the informed knowledge” to
take the benefit of the system.

6. For achieving the aforesaid goal, the State Legal Services Authority, District Legal
Services Authority and Taluk Legal Services Authority must carry on an integrated
programme in collaboration with Prison Administration, so that the under trial prisoners
know about these provisions and doubts in their mind may be dispelled. Between the under
trial prisoner and an accused that is on bail, the under trial prisoner is likely to accept plea
bargaining more readily than the person who is on bail.

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7. A provision may be made in Chapter XXIA of the Code making it mandatory for the Court
to inform the accused who appears in connection with trial of an offence, to which Chapter
XXIA applies, that it is open to the accused to take the advantage of plea bargaining.
Somewhat similar provision has been made, obviously in a different context, in Order
XXXIIA, Rule 3 of the Civil Procedure Code.

8. Once an application for plea bargaining is filed by an accused, he has no chance of

withdrawing the same. If it fails, the matter reverts back to regular trial and the accused does
not suffer any prejudice for whatever he has stated in his application. Therefore, a Judge must
have a changed mind set to see that such application does not fail. He should also develop
negotiating skills.

9. Training of judicial officers at State Judicial Academy level and also at the level of
National Judicial Academy, Bhopal on this subject is essential. This would certainly improve
their dexterity and capability to achieve the desired results. Moreover, positive change of
attitude and concern will be the result of intensive training to the judicial officers.

10. Chapter XXIA of the Code is a self-contained provision so far as our country is
concerned. Judicial offices must have clear understanding of their role under the various
provisions contained in Chapter XXIA. Unless they master the statutory provisions and
understand the object behind it, they may not be able to implement plea bargaining
effectively.

11. Legal Services Authorities have to perform a major role in the propagation of this
concept. They must conduct seminars creating awareness among the lawyers about the
problems of backlog and the relevance of plea bargaining as an alternative.

12. Lawyers have a vital role to play in view of their participation in the negotiation process.
For this, the Legal Services Authorities with the help of various Bar Associations may
conduct classes for lawyers and legal Aid Counsel. Services of judges and jurists can be
sought for creating awareness.

13. Every prosecutor in the country must master the provisions of Chapter XXIA of the Code
relating to plea bargaining. Intensive training at the instance of the State Legal Services
Authorities for prosecutors is highly essential. Services of eminent judges and jurists can be

37
utilized. Along with the prosecutors, investigating officers and officers working in
correctional agencies also should be sensitized on the importance of these provisions.

14. Public prosecutors can co-ordinate investigating agencies, probation officers; so that the
entire class of officers working in various departments of Government can be educated. Each
prosecutor can develop a strategy to effectuate the plea bargaining process with the help of
the State Legal Services Authorities. Trainings/Seminars can be conducted to disseminate
knowledge on this aspect.

15. Adequate safeguards must be put in place to protect the innocent and punish the guilty, as
pervasive bargaining without transparency and specific guidelines will perpetuate the image
that justice is for sale and will inevitably lead to public cynicism.

16. It must fundamentally be considered whether any form of plea bargaining could possibly
assist in the administration of justice in the context of the presumption that the accused is
innocent.

17. The deciding authority must be independent from the trial Court and instead of the public
prosecutor retaining most of the power; the deciding authority must be given a greater role in
the process. If the deciding authority is the sole arbiter, the risk of coercion into pleading
guilty and of underhand dealings can be dominated substantially. Therefore, not only will the
victims' needs be addressed but also the susceptibility of the system being misused by the
public prosecutor, the police and even the affluent will be considerably reduced.

18. The accused must be represented by the competent and efficient counsel.

19. The hearing must take place in the open court. Even Bentham observed, "Publicity is the
very soul of justice. It keeps the judge himself, while trying, under trial. Under the auspice of
publicity, the cause in the court of law and the appeal to the court of public opinion, are going
on at the same time........ It is through publicity alone that justice becomes the mother of
security."

20. The judge overseeing the implementation of the scheme must be impartial and in no way
involved in the bargaining.

21. The judge must be satisfied that the accused is pleading guilty knowingly and voluntarily.

22. The judge must retain a broad discretion as to whether to accept or reject the plea bargain.

38
If all these measures are complied with and the government agencies work fairly and justly, it
would not be out of place to say that the concept of plea bargaining will not only work in
India but it will bring tremendous changes in the criminal jurisprudence. However, the real
fate of the law is yet to see the light of the day and it is hoped that plea bargaining will be a
big success.

Conclusion

As regards the origin of the concept of the plea bargaining, it has been borrowed from the
USA, though the concept existed from the ancient times but in USA it was in concept form
and was in practice since long years.

Having discussed the meaning and concept of plea bargaining, its types, features, advantages,
drawbacks, reason for introducing, the provisions and Procedures in India and USA, has also
been pointed out anomalies in the Indian law and made some suggestions, it may be observed
that in India plea bargaining apply only to certain categories of offences, it does not apply to
the socio-economic offences, offences related to women and children and other serious or
heinous offences for which the prescribed punishment is below seven years of imprisonment.

Despite the provisions in this regard being incorporated in the Indian law, as per the
Objections raised and views of the law commission in relation thereto expressed as:
Country‟s social conditions do not justify the introduction of the concept; Even illiterate
persons are capable of realizing the consequences; Pressures from prosecuting agencies may
result in convictions of the innocents; The poor will be the ultimate victims of the concept;
The rate of acquittals in our criminal trials is very high; Counsel representing the accused
would be unwilling to advise confession invoking scheme; Plea bargaining may increase the
incidence of crime-Criminality may slip through the net with impunity; No social benefits
accrue. In view of the objections raised, recommendations made, provisions existing, and
socio-economic condition prevailing in the country, plea bargaining seems to have still not
achieved its objectives and in near future it requires due considerations of Legal fraternity
including judges and lawyers, particularly the defence lawyers who shows the path of justice
to the accused and moreover legal awareness in this regard is also necessary for its effective
implementation in the administration of criminal justice.

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 BIBLIOGRAPHY

Primary Sources:

1. Ratan Lal & Dhiraj Lal, Law of Criminal Procedure, (Lexis Nexis, 22nd edn., 2017)

2. K.N.C. Pillai, R.V. Kelkar’s, Outline of Criminal Procedure, (EBC, 6th edn., 2015)

3. V.N. Pranjape, Criminal Procedure Code, (CLA, Ald., 7th edn., 2013)

4. V.N. Pranjape, Criminology and Penology, (CLA, Ald., 7th edn., 2013)
5. S.M.A. Quadri, Ahmed Siddique’s Criminology and Penology, (EBC, edn., 2016)
6. Rosie Athulya Joseph, Plea Bargaining: a means to an end, Manupatra online journal

Secondary Sources:
1. Universal‟s The Code of Criminal Procedure, 1973 (ULP, New Delhi, 2016)
2. Law Commission of India, One hundred and Forty Second Report,
3. Law Commission of India, one hundred and fifty fourth Report,
4. Malimath Committee Report of Committee on Reforms of Criminal Justice System
2003
Websites:
1. http://lawcommissionofindia.nic.in
2. http://epgp.inflibnet.ac.in
3. http://legalserviceindia.com

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