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Pendency of cases is one the greatest obstruction in the process of administration of justice. It is common to all the Criminal/Civil Law justice systems around the globe. Summary trials, ADR Techniques(including arbitration, conciliation, mediation, negotiation) etc. are few judicial devices to further the cause of effective and speedy administration of justice and overcome and mitigate the problem of pendency of cases. One such device is 'Plea Bargaining'.

Plea bargaining refers to a pre-trial negotiation between the accused person and the prosecution, whereby the accused person agrees to plead guilty in exchange for certain concessions by the prosecution. In simple terms, it is an agreement in criminal law proceedings whereby leniency is shown in prosecution of an offence in exchange for a plea of guilt or 'nolo contendere'. It is a bargain whereby a defendant pleads guilty and responsible to a less serious charge, or to one or more of the several charges, in return for the dismissal of other charges, or the defendant pleads guilty and responsible to the original criminal charge in return for a lesser sentence.It allows both parties to avoid a lengthy criminal trial and allows criminal defendants to avoid the risk of conviction at trial on a more serious and in return the prosecution gets the conviction without going through the tussle of proving the charges beyond reasonable doubt, which might lead to absolute acquittal too in some cases.

Types of Plea Bargaining

There are mainly four types of plea bargaining, which are as follows -

1. Charge Bargain - The accused person pleads to a criminal offence which is less critical than the original charge. For example, pleading guilty to a charge of 'trespass' when charged with 'burglary'.

2. Count Bargain - The accused person pleads to one or more of the original charges, and in return rest of the charges are dropped. For example, pleading guilty to a charge of attack only when charged with robbery and simple attack.

3. Sentence Bargain - The accused person takes a guilty or 'no contest' plea for all of the charges leveled against the accused, and in return the prosecution recommends to the judge to not sentence to jail time or very less period.

4. Fact Bargain - The defendant pleads guilty in respect of such facts which, though fulfill the ingredients of that offence but, lead to a lesser punishment than prescribed for that offence, had it been committed in the circumstance alleged by the prosecution. In return, the prosecution allows the omission of those facts. For example, pleading guilty for possessing 100 grams of psychotropic substance, when charged with possession of 1 kg of that substance and the sentencing policy for that offence is such that punishment varies with the quantity.

History of Plea Bargaining in India

The concept of Plea-Bargaining is not indigenous to the Indian Criminal Justice System and is rather an American phenomenon, which came to prominence in 1970's and thereafter spread throughout the world. As early as 1976, the Supreme Court in Murlidhar Megh Raj Loya v. State of Maharashtra(1976)[1][2] criticized the concept of plea-bargaining and held it to be against societal interest. The apex court again in Kasambhai v. State of Gujarat2 observed that plea bargaining is against public policy and held it to be a reprehensible practice. The twelfth Law

Commission(1991) in 142nd report[3] considered the question of plea bargaining, in respect of concessional treatment for those who chose to plead guilty by way of plea-bargaining. The fourteenth Law Commission(1996) again in 154th report[4] advocated very strongly, for the inclusion of plea-bargaining as an alternative method to deal with the huge arrears of criminal cases awaiting trial. Justice Malimath committee[5] also favored the inclusion of plea bargaining as an alternative to expedite the disposal of criminal cases and reduce the burden of the courts. By the Criminal Law Amendment Act of 20056, Chapter XXIA[ Sections 265A to 265L] was introduced which incorporated the concept of plea bargaining.

Salient Features of Plea Bargaining (In India)

Plea bargaining has been dealt within section 265A to 265L Crpc. Some of the salient features of plea bargaining as envisaged in these sections are as follows -

a. Plea bargaining is applicable for the offences not punishable with death or imprisonment for life or imprisonment for a term exceeding seven years.[265A]

b. It is not applicable in cases where the offence is alleged to be committed against a woman or a child below fourteen years of age or an offence affecting the Socio-Economic condition of the country.[265A]

c. When a judgment is passed under Chapter XXIA after mutually satisfactory disposition, such a judgment is final and no appeal lies against such a judgment. Though a special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution are maintainable against such a judgment.

A division bench of Gujarat High court observed in State of Gujarat v. Natwar Harchanji Thakur7(2005) that the very object of law on plea bargaining is to provide for cheap, easy and expeditious justice by resolution of disputes including the trial of criminal cases.

Drawbacks of Plea Bargaining in India

1. Involvement of Police - The involvement of police in plea bargaining in India attracts criticism, as it is likely to aggravate the situation of custodial torture by the police.

2. Corruption - The role of victims in the process of plea bargaining might lead to involvement of some corrupt practices which are highly detrimental to the overall societal interest.

3. No Independent Judicial authority - The provisions do not allow for independent judicial authority to actively supervise the plea bargaining proceedings. Thus it is devoid of the justness, which could be achieved only after evaluation by an independent judicial authority.


Plea bargaining, undoubtedly, undermines the public confidence in criminal justice system but, other practical disabilities such as lack of infrastructure, low judge-population ratio lead to overburdening of judiciary and pendency of cases, which necessitates the need of devices such as plea-bargaining as essential tool in the process of effective and speedy administration of justice. Some people relate plea bargaining to the incompetence of traditional procedural laws and view it as a mere cover up for inadequacies of the government in dealing with each and every case that comes before it. Therefore, to ensure a fair justice system and to retain the public's confidence in the criminal justice system, the law must encompass some few requirements so that justice is not only done, but it seems to be done too.

[7] 2005 Cr.L.J. 2957


This article is written by Chetan Juneja of Campus Law Centre, Faculty of Law, University of Delhi.

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