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Plea Bargaining

Updated: Jan 8, 2022

Written by: Adrija Ghose

Plea Bargaining is an effective and faster way of getting justice to the prosecution. It strives to improve upon the inundate existing Criminal Justice System having a superfluity of criminal cases on one hand and on the other hand an abundance of delays in their disposal. Further having a low rate of conviction in cases on serious crimes.

Plea Bargaining is an effective mechanism whereby there can be a faster disposal of cases in an effective manner so that justice can be served duly without delays.[1]

It is a negotiation which takes place pre-trial between the accused and the prosecution. In which the accused agrees to plead guilty for the offence he has been charged with against the prosecution/ victim in exchange for some specific concessions made by the prosecution. It is a bargain between the accused and the prosecution whereby the accused defendant pleads guilty for a lesser charge on offence he has committed against the victim in exchange of the prosecutor dropping the more serious charges against him. [2]

Plea bargaining is popularly practiced in the western countries such as the United States of America.It is still a relatively new concept in India yet not common or used as often as it is used in the United States. It was not until 2006 did the concept of Plea Bargaining exist in the Indian Criminal Justice System. With the 142nd Law Commission’s Report Recommendation was this introduced. The 142nd Law Commissions Report mooted for the idea of concessional treatment given to those accused’s who plead guilty upon their own volition but being careful that it did not involve any plea bargaining or “ haggling” with the prosecution. Hence, it was introduced as an amendment to the Code of Criminal Procedure in 2006.[3]

Before this concept came into being in India ifan offence was compoundable under section 320[4] of theCode of Criminal Procedure, 1973 (Hereinafter referred to as the CrPC, 1973) both parties could come to a settlement outside court if the offence was compoundable. On the other hand, if the offence was a non-compoundable one the accused would have to face the full punishment.

Normally in a full trial only one party enriches from the judgement, if the accused is convicted the prosecution side is happy but the defence side is unhappy. Here what happens is that both sides are happy with the mutual decision come to by both parties. It is a negotiation that takes place pre-trial, when the accused admits to having committed the offence and pleads guilty in exchange of getting some concessions when it comes to his punishment.

Plea Bargaining isprovided under chapter XXI(A)[5] of the Criminal Procedure Code of 1973, section265-A CrPC says that plea bargaining cannot take place in offences where a) the punishment of the offence is more than a term of 7 years b) offence is a socio-economic offence c) where the victim is a woman or a child. Hence, plea bargaining can only take place when the offence is not a socio-economic offence or one involving a woman or a child as a victim or punishment for committing the offence is more than 7 years. The Criminal Procedure Code gives the power to the Central Government to notify by specifying such offences.

In this case a person who has been accused under section 323[6]of the Indian Penal Code, 1860 (Hereinafter referred to as the IPC) for committing Grievous Hurt can file for a plea bargain under section 265B CrPC since it does not fall under any of these criterionsmentioned under section 265A CrPC. Since, the punishment for grievous hurt can extend up to imprisonment of 1 year which is less than 7 years under section 265 A CrPC nor is it a socio-economic offence.

The procedure for the application for Plea Bargaining is mentioned under section 265B CrPC. Which specifies that the accused must file a written statement about the details of the case that he is being prosecuted under including the offence that the case relates to (voluntarily causing hurt under section 321 IPC in continuation of the example) along with an affidavit stating that he has voluntarily applied for plea bargaining and he has not been coerced or is not under undue influence.

Thereafter, the examination of the accused will take place in- camera in front of the court without the other party being present to ensure that he has voluntarily applied for it without coercion or undue influence. After which the court will issue a notice to both parties to appear in a disposition in a complainant case before the court.

After this under section 265- C CrPC a mutually satisfactory disposition will take place where the victim and the accused will both participate with a court appointed officer to presiding over.Where both the parties will come to a final understanding under section 265 -C CrPC about the terms and condition of settlement which is acceptable by both parties. A report is made on the mutually satisfactory disposition under section 265 – D CrPC in which the terms are clearly written down and signed by both parties and the presiding officer appointed by the court. Then this mutual satisfactory disposition isthenlaid down before the court under section 265- E CrPC who will hear the parties on the settlement that they have reached. Then decide if the quantum of punishment is fair and if it satisfies the court and is fair, it will be binding upon the parties.

Then settlement ranges from giving compensation to the victim or the accused is released on probation or the accused is given a lesser imprisonment to either half or quarter of the original punishment. In this case the accused can give the victim compensation, his sentence of 1 year can be reduced to 6 months or 3 months depending on what is agreed.

There after a judgement is pronounced by the court under section 265-F on the term of mutually satisfactory disposition reached upon by the parties after it has been checked by the court as to being fair and just.

Section 265- G CrPC specifies that no appeal can be applied for by the parties any further after this and it cannot be challenged unless on the grounds of legality or the accused had been coerced, thereby making the judgement full, final and binding on both parties.

Though if no satisfactory disposition has been reachedby the parties in the meeting under section 265-C CrPC. Section 256-D CrPC specifies that the court will then record such observation and proceed with the case from the stage where the application under section 265-B had been made.

Section 265- L CrPC specifies that this chapter on Plea Bargaining will not be applicable to cases involving a child or a juvenile defined under section 2(k)[7] of the Juvenile Justice (Care and Protection of Children) Act of 2000.

Even though this concept is relatively not such a new concept it has not been as widely used. It has often been argued that it is discriminatory and violative of Article 20(3) of the Constitution of India which prohibits self-incrimination. Though on the positive side it helps in the faster, efficient and effective disposal of cases which reduces the judicial case burden. With the evolving times hopefully it will be more acceptable and widely used instead of being rejected as discriminatory and violative.[8]


[1] [2] What is Plea Bargaining and how does it work by K. Venkatramanan – The Hindu Express- July 2020 [3] Supra at 1 [4]Code of Criminal Procedure, 1973 [5]Code of Criminal Procedure, 1973 [6]Indian Penal Code, 1860 [7]Juvenile Justice (Care and Protection of Children) Act of 2000. [8] The Concept of Plea Bargaining under Indian Laws by Lokesh Vyas, May 2018.

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