Plea Bargaining in India

The Indian judiciary is very well known for its unbiased nature, delivery of justice, and independent status in the country. Our forefathers have always given justice a dominant position. In spite of all the written provisions in the largest Constitution of the world, there has been a huge backlog of cases in the country. This backlog of cases has led to the subsequent delay in judgements and has shaken the trust and confidence held by the general public on the judicial system. A speedy trial should be thought to be the essence of criminal justice in the legal systems.

A new concept of Plea Bargaining has emerged in the Indian Criminal justice system. “Plea” means an appeal, request or statement on behalf of the defendants and the other word “bargaining” means settlement or deal. Hence, plea bargaining refers to a promise between the prosecution and the accused where both parties decide to settle and the accused agrees to accept the offence and is awarded the lowest penalty for the said offence. Plea bargaining usually happens before a criminal trial but can also happen before the judgement.

The concept came into existence when the Chief Justice of Karnataka and Kerala High Court Justice V.S. Malimath came with a report on how to manage and tackle the growing criminal cases. The report recommended that a system of bargaining should be adopted by the criminal justice system so as to tackle the increasing cases and to dispose of the cases at the earliest. The committee also referred to the plea bargaining system in the United States to strengthen the recommendation.

Further, in the case of State of Uttar Pradesh v Chandrika[1], the Hon’ble Apex Court held that it is a well-established law that the concept of Plea Bargaining cannot be used for the fast disposal of criminal cases in India. The court has to decide the merits of the concept. If an accused person confesses the guilt, an appropriate sentence should be given. The Hon’ble court in the same cases also held that the reduction of sentence of the accused cannot be only on the fact that the accused has accepted his/ her guilt. The court instead of dismissing the concept accepted and implemented the concept of plea bargaining under the Criminal Procedure Code, 1973.       

The Code of Criminal Procedure, 1973 mentions plea bargaining in Chapter XXI-A and also provides new methods and models of a bargain. Section 265A to 265L provide a detailed method of solving the criminal case without a trial. The system and procedure of plea bargaining include a pre-trial negotiation between the prosecutor and the accused as already mentioned. It is said to be a kind of compromise between the parties.

There are three kinds of plea bargaining: Charge Bargaining, Sentence Bargaining, and Fact Bargaining. Charge Bargaining involves pleading by the defendants to reduce their charges. Sentence Bargaining provides the accused with an assurance of lighter or alternative sentence in return of pleading guilty. In this type of bargaining, the prosecutor is usually against reducing the charges because of the fear of media and its reaction. The last type of bargaining is fact bargaining where the accused himself/herself accepts stipulated facts so that the prosecutor does not have to prove it anymore.

Sub-section (2) of Section 265A of the Criminal Procedure Code, 1973 provides power to the Central government to apply the provisions of plea bargaining on the socio-economic offences in the country. Another restriction is that for the offence of plea bargaining, the punishment for the offence should be less than seven years. It has excluded the offences for which the punishment is life imprisonment or death sentence or more than seven years. Socio-economic offences can range from the jurisdictions under the Dowry Prohibition Act, 1961 to the Protection of Women from Domestic Violence Act, 2015, which is a recent one. There are very few crimes that are not that grave in nature, which can be solved with the help of plea bargaining such as theft, misappropriation of assets, defamation, forgery, etc.  

Although the concept was accepted by the Indian justice system, it was also opposed in many judgements. In the case of Kachhia Patel Shantilal Koderlal v State of Gujarat and Anr[2], the Hon’ble Supreme Court strongly criticized the practice of plea bargain. The court observed that this practice is unconstitutional and illegal. Further, it also encourages the practice of corruption and also pollutes the whole legal system. Further, in the other case of Kripal Singh v State of Haryana[3], the trial court observed that not even high court has no right or jurisdiction to give any provision such as plea bargaining[4]. Many judges also had a misapprehension of misuse and misconduct. The judgements disapproved of the practice of plea bargaining and stated that criminal cases cannot be disposed of only on the basis of plea bargaining. Accused, in the Indian legal system, cannot bargain for a lesser sentence just because of accepted guilt.

The Ahmedabad High Court has also distinguished between two important concepts ‘plea of guilty’ and ‘plea bargaining.’ The court looked at the fact that both the concepts are often mixed up. The courts cannot ignore the concept of plea bargaining but the courts also cannot ignore the fact that the number of ‘plea of guilty’ cases is also increasing. The fact that ‘plea bargaining’ and ‘plea of guilty’ are not the same and the courts cannot have the same discretionary powers should be taken into account. It should be understood that every ‘plea of guilty’ in a statutory provision in the criminal matters cannot be said to be a part of plea bargaining ipso facto.[5]

The first case of plea bargaining was reported on March 2, 2007. In this case, the plea was rejected. There was a grade-I employee in the Reserve Bank of India, named Mr. Sakharam Bandekar. He did the offence of money laundering of around Rs. 1.48 crores using fictitious names from the year 1993 to 1997. The charges were framed on him on March 2, 2007. The accused made the application of plea bargaining and tried to take the benefit of the new amendment in the criminal procedure code. He tried to use this on the basis of his old age. But the CBI disallowed the plea because the accused committed serious crimes. The authorities also cited that corruption is like cancer and will exploit the whole system. Hence, the court was convinced by the arguments of the CBI and dismissed the appeal of the accused.[6] Further, in the case of Ranbir Singh v State, the petitioner appealed for plea bargaining in the offence under Section 304A of the Indian Penal Code. The accused has to undergo the imprisonment of six months and a penalty of Rs 5000 and additional imprisonment of one month and Rs 5000 as compensation. The Delhi High Court reduced the sentence to four months under Section 304A of the Penal Code and reduced it to one week under Section 279 of the code.

The cases that are stated above show the failure of the provision of plea bargaining in the Indian Criminal Justice system. The statistics have shown that an estimated of over 22 lakh cases are in awaiting trial stage in districts of Gujarat. These cases are related to plea bargaining.

As a coin has two sides, the provision of plea bargaining also has both pros and cons. The advantages of the provision are:

  • Less time consuming: The provision can help in cutting off the delay in cases and the backlog of cases. This will definitely help in disposing of the criminal cases easily and at a faster pace. This will also end the problems faced by the witnesses as well as the accused. Criminal cases need a lot of money and time to be invested.
  • Compensation to victims: In criminal cases, the victim is not benefitted in terms of money. But in the case of plea bargaining, the accused might offer to pay some money to the victim, and hence, the victim can be benefitted.
  • Accused benefitted: Plea bargaining can benefit the accused because he/she has to undergo a minimal period of sentence under the given offence. Even if the period does not show a drastic decrease, the accused will just have to stay in custody or prison for one-fourth of the prescribed time.

The disadvantages of the provision are:

  • Unfair: Due to plea bargaining, the system might become soft and lenient for the accused and all him to get rid of the punishment and the immoral activity that he did. It is another way to decriminalize the wrong done partially.
  • Conviction of innocents: the process might lead to an increase in the number of innocent convicts in the prison. The accused might pay the innocent people to stay in prison for the minimum and decreased time period.

The concept of plea bargaining is more of a concept of convenience rather than legality, morality, or constitutionality. The Indian Parliament should understand that there is an urgent need to amend and make required changes in the criminal justice system of India.

[1] 2000 Cr.L.J 384 (386)

[2]. 1980 CriLJ553

[3] (1999) 5 SCC 649

[4] Kasambhai v. State of Gujarat, AIR 1980 SC 854

[5] State of Gujarat v Natwar Harchandji Thakor, (decided on 22 February, 2005), 2005 CriLJ 2957, (Ahmadabad High Court) para 68


Tanya Saraswat from Narsee Monjee Institute of Management Studies 

She is a B.B.A. LLB student and the President of the ADR club of her college. She is a member of many arbitration organisations and loves to research and read.

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