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All about the Concept of Plea Bargaining in India

What is Plea Bargaining?

It refers to a person charged with a criminal offence (accused) negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence. The concept of plea-bargaining is an alternative remedy to the long and tortuous process of trial in courts which has been introduced to ensure speedy disposal of cases and to reduce congestion in prisons.

It primarily involves pretrial negotiations between the accused and the prosecutor. It may involve bargaining on the charge or in the quantum of sentence.

History of Plea bargaining

It would be wrong to assume that the concept of Plea Bargaining found favor of courts only in the recent past. 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 the Plea Bargaining had constantly been upheld there.

In the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King, Jr. to avoid an execution sentence. He finally got imprisonment of 99 years. More than 90 percent of the criminal cases in America are never tried. The majorities of the individuals who are accused of a crime give up their constitutional rights and plead guilty. Every minute, a criminal case is disposed of in an American Court by way of a guilty plea or Nolo Contendera Plea.


In a landmark judgment Bordenkircher Vs Hayes, the United State 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 prosecutions offer’’. The Apex Court however upheld the life imprisonment of the accused because he rejects the ‘Plea Guilty” offer of 5 years imprisonment.

The Supreme Court in the same case however in a different context observed that it is always for the interest of the party under duress to choose the lesser of the two evils. The courts have employed similar reasoning in tort disputes between private parties also.

In countries such as England and Wales, Victoria, Australia, “Plea Bargaining” is allowed only to the extent that the prosecutors and defense can agree that the defendant will plead to some charges and the prosecutor shall drop the reminder.

Plea bargaining in India

The Law Commission of India - 142nd, 154th, and 177th reports.

142nd Report - Abnormal delays in the disposal of criminal trials and appeals

154th Report - First recommended the introduction of ‘plea- bargaining’

177th Report - In 2001 also sought to incorporate the concept of plea-bargaining

These recommendations of the Law Commissions finally found support in Malimath Committee Report. The NDA government formed a committee, headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V. S. Malimath. The Malimath Committee recommended that a system of plea-bargaining be introduced in the Indian Criminal Justice System.

The Criminal Law (Amendment) Bill, 2003. However, those provisions failed to come through and were reintroduced with slight changes through the Criminal Law (Amendment) Bill, 2005. Finally incorporated into the Code of Criminal Procedure, 1973 as Chapter XXI-A, Section 265 A to 265 L through the Section 4 of Criminal Law (Amendment) Act, 2005, which came into effect from July 5, 2006.

Silent Features of Plea bargaining

Following are the silent features of Plea Bargaining;

  1. It is applicable in respect of those offences for which punishment is up to 7 years.

  2. It does not apply to cases where offence is committed against a woman or a child below the age of 14 years.

  3. When the court passes an order in the case of plea bargaining no appeal shall lie to any court against that order.

  4. It reduces the charge.

  5. It drops multiple counts and presses only one charge.

  6. It makes recommendations to the courts about punishment or sentence.

Provisions in India

Plead Guilty: There has always been a provision in the Code of Criminal Procedure (CrPC) for an accused to plead ‘guilty’ instead of claiming the right to a full trial, but it is not the same as plea bargaining.

Plea Bargaining: Plea bargaining was introduced in 2006 as part of a set of amendments to the CrPC as Chapter XXI-A, containing Sections 265A to 265L.

Cases for which plea bargaining is allowed are limited:

  • Only someone who has been charged for an offence that does not attract the death sentence, life sentence, or a prison term above seven years can make use of the scheme under Chapter XXI-A. It is also applicable to private complaints of which a criminal court has taken cognizance.

  • Other categories of cases that cannot be disposed of through plea bargaining are those that involve offences affecting the “socio-economic conditions” of the country or committed against a woman or a child below the age of 14.

Procedures in India

The plea bargaining process can be initiated only by the accused. This provision is different from the one in other countries like the USA where the prosecutor plays a key role in bargaining with the suspected offender. The accused will have to apply to the court for invoking the benefit of bargaining.

Thereafter, the court may permit the prosecutor, the investigating officer, and the victim (if any) to hold a meeting for a “satisfactory disposition of the case”. Once mutual satisfaction is reached, the court formalizes the arrangement by way of a report signed by all the parties and the presiding officer. The accused may be sentenced to a prison term that is half the minimum period fixed for the offence. If there is no minimum term prescribed, the sentence should run up to one-fourth of the maximum sentence stipulated in the law. The outcome may also involve payment of compensation and other expenses to the victim by the accused.

Types of Plea bargaining

This can be further classified into multiple charges and unique charges.

  1. Multiple charges- Some charges are dropped in return for a plea guilty to one of them.

  1. Unique charge- A serious charge is dropped in exchange for a plea of guilty to a less serious charge.

  • Fact Bargaining: In fact bargaining, a prosecutor agrees not to contest an accused version of the facts or agrees not to reveal aggravating factual circumstances to the court. There is an agreement for a selective presentation of facts in return for a plea of guilty.

  • Specific Fact Bargaining: In this type of bargaining there is an acceptance of sanction without pleading guilty which is known as the nolo contendere pleas. Another category of pleas in this category is known as the Alford pleas where there is acceptance of sanction but the defendant asserts innocence.

  • Sentence Bargaining: It happens when an accused or defendant is told in advance what his sentence will be if he pleads guilty. Sentence bargaining is applicable to the judicial system in India.

Advantages of Plea bargaining

These are the advantages of Plea Bargaining:

  • Back logging in courts will be reduced and justice can be delivered quickly and efficiently.

  • Bargaining helps the defendant by deciding the case earlier avoids uncertainties in a trial.

  • The Judge exerts supervisory control.

  • The Act ensures that such an opportunity will not be available to habitual offenders.

  • The Act does not provide for an ordinary appeal from the judgment in such a case is a step towards expediting the disposal of cases.

  • Plea-bargaining has surged because there are more crimes and there are more petty offences that now are criminalized (offenses such as failing to pay a bus fare, being an unlicensed vendor, petty burglary, shoplifting, etc.). Since going to trial is more costly and time-consuming, plea-bargains are a practical solution for the criminal justice system.

  • Avoids costly trials, eliminates appeals, saves victims from the trauma of a trial, and relieves the prosecutor of the burden of proof beyond a reasonable doubt.

Drawbacks of Plea bargaining

Some of the major drawbacks of the concept of Plea Bargaining as is recognized in India are as under;

  • Threat to right to a fair trial.

  • Involving the Police in the Plea Bargaining process would invite coercion.

  • By involving the court in the Plea Bargaining process the court impartially is impugned.

  • Involving the victim in the Plea Bargaining process would invite corruption.

  • If the plead guilty application of the accused is rejected then the accused would face great hardship to prove himself innocent.

Judicial pronouncements of Plea bargaining

The Supreme Court of India has examined the concept of plea-bargaining in the case of Kasambhai v. the State of Gujarat and Murlidhar Meghraj Loyat v. State of Maharashtra (AIR 1976 SC 19291976 Cri LJ 1527).

In Kasambhai’s case, the Supreme Court resisted a plea of guilt based on plea-bargaining, as it would be opposed to public policy if an accused were to be convicted by inducing him to plead guilty.

In the case of Murlidhar Meghraj Loyat v. the State of Maharashtra, the Supreme Court observed as under: “In civil cases, we find compromises encouraged as a more satisfactory method of settling disputes between individuals than an actual trial. However, if the dispute finds itself in the field of criminal law, “Law Enforcement” repudiates the idea of compromise as immoral. The State can never compromise. It must enforce the law. Therefore open methods of compromise are impossible.”

The Supreme Court has also time and again blasted the concept of plea-bargaining saying that negotiation in criminal cases is not permissible.

More recently in the State of Uttar Pradesh V. Chandrika, The Apex Court held that it is a settled law that based on the plea-bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses their guilt, an 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 is reduced.

Way forward

To ensure fair justice, Plea Bargaining must encompass the following minimum requirements namely,

1) The hearing must take place in court.

2) The court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.

3) Any court order rejecting a Plea Bargaining application must be kept confidential to prevent prejudice to the accused.


To conclude, 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, but it does that in an unconstitutional manner. But perhaps we have no other choice but to adopt this technique. The criminal courts are too overburdened to allow each and every case to go on trial. Only time will tell if the introduction of this concept is justified or not.

By Mahesh Kumar

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