AMITY LAW SCHOOL, AMITY UNIVERSITY, NOIDA, UTTAR PRADESH

CRIMINAL PROCEDURE CODE

PROJECT TOPIC: PLEA BARGAINING

SUBMITTED TO: MS SONAKSHI VARSHNEY

Introduction:

One crucial function of the state has always been safeguarding law and order and ensuring. This
role remained unchanged even as the form evolved from a fascist state to a welfare state.
Residents pay taxes to the state and administrators annually to ensure the proper functioning of
the state's three organs. Prolonged pre-trial investigations and case backlogs that entail
unnecessary disruptions and, as a result, justice would undermine the credibility and
trustworthiness of the Court, which is the foundation of a legal system. With the addition of
sections 265A-256 L to the Code of Criminal Procedure, 1973 by the Criminal Law (Amendment)
Act of 20051, the legislature has formally recognized and activated plea bargaining in the Indian
Legal system to reduce the challenge of case backlog in the Indian Courts and also to reduce the
misery of under trial prisoners. The adoption of plea bargaining would aid in the transformation of
our criminal justice system.

Concept of Plea Bargaining in India:

In the United States, the convicted possesses three choices for pleas: guilty, not guilty, or nolo
contendere. With a nolo contendere plea, the defendant responds to the accusations in the
allegation by refusing to contest their guilt. 2The defendant who pleads nolo contendere demands
a decision implementing similar fines or punishment which would be imposed if they had pled
guilty. The critical distinction is that a nolo contendere plea cannot ultimately be applied to show
misconduct in a civil suit for monetary damages, but a guilty plea may.   A plea bargain is a legal
agreement between the prosecution and the accused to settle a criminal allegation. But, unlike
most contracts, it is not enforceable unless a judge approves it.3

1
The author is a student of National University of Advanced Legal studies, Kochi.1 This chapter has come to force w.e.f.
5-7-2006 vide notification No.S.O.990 (E), dt.3-7-2000.
2
Wanna make a deal? The introduction of plea bargaining in India by Sulabh Rewari and Tanya Aggarwal (2006) 2 SCC
(Cri) J-12
3
West's Encyclopedia of American Law
The Theory of Nolo Contendere influenced the Indian notion of plea bargaining. The legislature
adopted it in response to multiple law commission recommendations. This idea has been thought
about and implemented in such a way that considers the social and economic situations prevalent
in our nation. Plea bargaining is classified into three types: I) charge bargaining, ii) sentence
bargaining, and iii) fact bargaining. Charge bargaining is arranging the dismissal of specific
accusations in a multiple-charge case or compromising for a less severe charge. In sentence
bargaining, the accused can plead guilty and agree to a lesser punishment. Finally, fact bargaining
is a deal in which some facts are accepted in exchange for an agreement not to admit a few other
facts.4

Context of Indian Courts regarding Plea Bargaining 

Before the 2005 amendment, the Indian judiciary was resistant to implementing this notion and,
on multiple instances, denied implementing the concept of plea bargaining. However, the Law
Commission of India set up numerous proposals. This became clear because, although such
suggestions were given, the courts persisted in issuing rulings detrimental to plea bargaining. 5 The
Hon'ble Court first regarded the concept of plea bargaining in Madanlal Ramachander Daga v.
State of Maharashtra6, where it stated:

"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 accused's guilt."

With the Amendment, plea bargaining gained widespread acceptance in Indian courts because the
Court had little option. Still, The courts have ruled that offenders who accept their guilt and repent
should be forcibly repatriated when it comes to punishment.

4
Plea Bargaining : A Revelation by Dr Abraham P. Meachinkara 2010 (4) klt jrl
5
Supra n 15
6
AIR 1968 SC 1267
Reasons for the Implementation of Plea Bargaining

In its 142nd report, the Law Commission of India presented a framework for plea bargaining in
India. The commission stated in its report that in several cases, the duration spent behind bars by
the accused before the commencement of trial is greater than the maximum prison sentence that
may be granted to them if they are observed guilty, 7there is an absence of statistical data
pertaining under trial prisoners, etc., resulting in a denial of justice. Several studies emphasized the
importance of implementing an enhanced version of the plan 8. Nevertheless, there are worries
about implementing plea bargaining in India, namely concerns about illiteracy, prosecution
pressure on innocent people, rising crime rates, and criminals escaping owing to punishment. 9

Critical Evaluation of Chapter XXI-A:

Plea bargaining is regulated under Chapter XXI-A of the 1973 Code of Criminal Procedure. This
Chapter is divided into 12 sections, beginning with Section 265A and ending with Section 265 L. S.
It specifies that this remedy is only accessible when the sentence is less than seven years of  jail.
The section eliminates infractions where the punishment of death, imprisonment for life, or
imprisonment for a term exceeding seven years is provided by the law currently in force, as well as
offences impacting economic situations and felonies engaged against a woman or child under the
age of fourteen.

Subsection (2) of Section 265 A authorizes the Central Government to recognize and notify those
violations under the legislation currently in effect that impacts the country's socioeconomic state
(1). This clause fails to achieve the fundamental goal of establishing the concept of plea bargaining.
The primary reasons for adopting plea bargaining were always the pile of pending cases that
postponed justice. This provision only pertains to offences with a maximum penalty of seven years

7
Rudul Shah v. State of Bihar AIR 1981 SC 928
8
The subject of the 142nd Report of the Law Commission of India was on the concessional treatment for offenders
who on their own initiative plead guilty without bargaining. See http://lawcommissionofindia.nic.in/101-
169/Report142.pdf

9
See http://lawcommissionofindia.nic.in/reports/Annexure%20III%20of%20177th%20report.pdf
in prison. Several statutes address socioeconomic violations, ranging from the Dowry Prohibition
Act of 1961 to the Protection of Women from Domestic Violence Act of 2005. 10

Since plea bargaining isn't permitted under many statutes, the Amendment's primary goal of
decreasing caseload is defeated. Another issue of criticism lies in the fact that legislation requires a
prison term for certain offences. The Supreme Court ruled that neither the trial court nor the High
Court has the authority to diverge from the law's mandatory minimum penalty period. The
application of plea bargaining is also severely limited in this case because a person who has
committed an offence for which the sentence is less than seven years would be unable to utilize
the concept of plea bargaining if the minimum penalty is imposed by law.

Furthermore, this sub-section (2) of section 265A allows the government to determine whether
acts are socioeconomic offences. The Chapter contains no regulations articulating the rationale for
categorizing acts as socioeconomic offences. This might lead to a breach of Article 14 of the Indian
Constitution if the charged individual believes the categorization is arbitrary and discriminatory.

S. 265 B authorizes the convicted to apply for plea bargaining in the Court where the issue is now
pending. The application must always be supported by an authorized affidavit signed by the
suspect indicating that he has freely opted the plea bargaining in his case after realizing the kind
and amount of punishment imposed as per law for the conduct and that a Court didn't ever
condemn him in a case in which he was accused with the same offence. The Court then grants a
summons to the Public Prosecutor or the complainant in the case, and the convicted is interviewed
privately. If the Court determines the appeal is voluntary, it will order a mutually agreeable
resolution. If the Court believes differently, the proceeding will advance from when the plea-
bargaining application was filed.

In most situations, the courts can decide whether an application is voluntary according to the
information and context of each instance. Furthermore, the clause prevents an individual
previously charged with a similar crime from requesting plea bargaining. Again, authorities

10
Supra n 10
neglected to assess the gravity of something like the conduct and limited the possibility of plea
bargaining. In the long term, an individual may seek plea bargaining to avoid a more severe
offence. However, the mutually agreed settlement might not always work throughout, culminating
in his imprisonment. Therefore this clause attempts to consider this while prohibiting anyone
punished for a comparable offence from using plea bargaining.

When a court issues a decision under Section 265 F, Section 265 G indicates that the decision is
final and that no appeal can be filed against it. Nevertheless, these judgements can be challenged
in the High Court under Articles 226 and 227 of the Constitution by submitting a Writ Petition and
in the Supreme Court according to Article 136, contained in the Constitution, by filing a Special
Leave Petition. Under S. 265H, the Court shall have all the authorities conferred regarding bail, the
trial of offences, and other things about the disposition of a case to carry out its responsibilities
under this Chapter.

Recommendations

Even though the Amendment attempted to address the issue of under-trial inmates by requiring
the Court to allow the suspect the benefit of the Probation of Offenders Act wherever possible,
then, Section 12 of the abovementioned Act states that perhaps the criminal shouldn't be
disgraced. Sections 265 and 428 apply to the punishment imposed because of plea bargaining.
Nonetheless, there is an overall scarcity of understanding amongst indictable offence convicts.
Measures should be included in a chapter requiring probationary officials and jail superintendents
to undertake forums in prisons informing under-trial inmates of the benefit to which they are
entitled.

If a trial has not yet begun, the under-trial convict must be released within a specified time frame.
Police, prosecution, and the courts, not the under-trial convicts, should just be made responsible
for delays in their respective realms. An alternative recourse should be available to the convicted in
situations at the appeal based on the 2005 Amendment above. There ought to be greater
clarification on the offences classified as socioeconomic offences. The government should provide
rules on how an offence could be categorized as a socioeconomic offence. This can serve as a
deterrent to utilizing this power arbitrarily.

The section's application must be expanded, and classification for plea bargaining should
encompass more than just the years of penalty for a specific offence.

Conclusion

Our lawmakers had cautiously approached the insertion of Chapter XXI-A of the Code. They have
severely reduced the application and the breadth of plea bargaining. It should be acknowledged
that when a notion is integrated into the judicial process, it needs to be executed in a way  that
anticipates the difficulties that may arise during the duration of the study. The regulations
themselves do not affect reducing caseload. If individuals are to be urged to take advantage of the
alternative remedy of plea bargaining, the laws must be made more transparent and predictable.

To function as a successful and effective alternative remedy, it is believed that there should be a
balance between the widespread utilization of this remedy and the opportunities that plea
bargaining provides. But, due to the exceedingly careful approach in limiting its scope, we can’t
enjoy plea bargaining to the level that it should be appreciated. The Amendment is undeniably a
serious attempt to address the difficulties raised, but it can only be comprehended if the
constraints are relaxed further.