Plea Bargaining: A Comparative Analysis: Seminar Paper

SEMINAR PAPER
PLEA BARGAINING: A COMPARATIVE ANALYSIS
UNDER THE SUPERVISION OF
MR. RENJITH THOMAS
ASISSTANT PROFESSOR
NLU, JODHPUR
SUBMITTED BY:
Abhijeet Singh
ROLL NO-1264
Semester X
(WINTER SEMESTER: JANUARY 2020 -MAY 2020)
NATIONAL LAW UNIVERSITY, JODHPUR

DECLARATION
I, Abhieet Singh hereby declare that the Seminar Paper work entitled “Plea Bargaining: A
Comparative Analysis” is a record of Individual research carried out by me under the
supervision of Mr. Renjith Thomas, Faculty of Law, NLU Jodhpur. This has not been
submitted for the award of any diploma, degree or similar title to this or to any other
university.
Dated: April 22, 2020
Abhijeet Singh
Semester X
1264
National Law University,
Jodhpur(Rajasthan)
2
ACKNOWLEDGEMENT
I would take this opportunity to extend regards to all those who helped me in completing this seminar
paper without whom help, support and contribution it would not have been possible to complete my
seminar paper. I would like to thank my Mentor and Supervisor Mr. Renjith Thomas, Assistant
Professor, faculty of law whose continuous support gave me the detailed knowledge and ability to
work upon this.
I would also extend my gratitude towards Dean, Faculty of Law, Vice Chancellor for giving me an
opportunity to work on this seminar paper.
Also, I want to thank IT staff as well as library staff for providing us the constant support, in one or
the other way and lastly, I want to thank my friends and batch-mates for providing me the much-
needed aid.
Dated : April 22, 2020
Abhijeet Singh
Semester X
1264
National Law University,
Jodhpur, (Rajasthan)
3
CERTIFICATE
This is to certify that Abhijeet Singh is a student of Semester X, National Law University
Jodhpur and has worked under my supervision and guidance for the work entitled “Plea
Bargaining: A Comparative Analysis”. This Seminar work is submitted in fulfillment of the
BB.A. LLB degree. This work is comprehensively complete and sufficient to the standards of
academic requirements.
Dated: April 22, 2020
Mr. Renjith Thomas
Research supervisor
National law University, Jodhpur
4
I. TABLE OF CONTENTS
I. TABLE OF CONTENTS..............................................................................................................5
II. INTRODUCTION........................................................................................................................7
III. FORMS OF PLEA BARGAIN..................................................................................................8
A. CHARGE BARGAIN:-............................................................................................................8
B. SENTENCE BARGAIN:-.........................................................................................................9
C. JUDICIAL PLEA BARGAINING:-...........................................................................................9
IV. PLEA BARGAIN: UNITED STATES OF AMERICA AND JUDICIAL RESPONSE....................10
A. PROCEDURE INVOLVED IN PLEA BARGAINING IN UNITED STATES :.............................10
V. EVOLUTION OF PLEA BARGAINIG IN UNITED KINGDOM..................................................14
A. POSITION OF LAW..............................................................................................................14
B. JUDICIAL RESPONSE..........................................................................................................16
VI. POSITION OF LAW IN CANADA..........................................................................................17
A. INTRODUCTION..................................................................................................................17
B. RESOLUTION DISCUSSION IN TRIAL.................................................................................18
A. CANADIAN JUDICIARY ON PLEA BARGAINING................................................................19
VII. PLEA BARGAINING IN INDIA.............................................................................................23
B. VARIOUS LAW COMMISSION REPORTS FOR THE NEED OF INCORPORATING PLEA

BARGAINING..............................................................................................................................24
A. 154TH REPORT OF THE LAW COMMISSION..................................................................24
B. 177TH REPORT OF THE LAW COMMISSION..................................................................24
C. THE REPORT OF THE COMMITTEE ON THE REFORM OF CRIMINAL JUSTICE SYSTEM,
2000 MALIMATH...................................................................................................................25
C. JUDICIAL PRONOUNCEMENTS ON PLEA BARGAINING....................................................25
VIII. COMPARATIVE ANALYSIS..................................................................................................30

5
A. PLEA BARGAINING AMERICAN MODEL VS INDIAN MODEL...........................................30
B. UNITED STATES..................................................................................................................31
C. CRITICAL ANALYSIS OF PLEA BARGAINING IN UK........................................................33
D. CRITICAL ANALYSIS OF RESOLUTION BARGAIN IN CANADA..........................................35
IX. CONCLUSION-SUGGESTIONS................................................................................................36
X. BIBLIOGRAPHY......................................................................................................................37
A. LAW COMMISSION REPORTS............................................................................................37
B. STATUTES...........................................................................................................................37
C. CASES.................................................................................................................................38
D. REPORTS AND JOURNAL ARTICLES..................................................................................39
6
I. INTRODUCTION
The delay in conducting a trial of a criminal case by the criminal courts are increasing day by
day and it has come to a state where the disposal of criminal trials take much time and in many
cases trial procedure does not commence for so many years after the accused was being sent to a
judicial custody. The criminal justice system in India provides that there are many under trial
prisoners who are forced to remain in prisons throughout our country. According to the National
Crime Records Bureau in the year 2011, the number of persons in jails was almost 50,000 more
than its capacity and most of them were under trials and some were detained in jail for more than
five to six years.1 There is a very famous quote by one of the most excellent lawyer in India Nani
Palkhivala (late) that “….the law may or may not be an ass, but in India it is certainly a snail and
our cases proceed at a pace which would be regarded as unduly slow in a community of snails".
Justice should not only to be done but undoubtedly it should be seen to be done and it is ensured
by speedy justice or timely judgement. Right to speedy trial has been guaranteed by Indian
Constitution as a fundamental right under article 21 but it remains only in paper as in practical
Indian Judiciary is very slow in delivering justice. In India the situation is not good with regard
to criminal justice system. According to the statistics relating to crime 2016 released by National
Crime Record Bureau3, cases in which Trials has been completed were 12.74 lakhs in which only
5.96 lakh cases ended in conviction while 6.78 lakhs cases ended in discharge or acquittal.
Conviction rate is even below 50%. There are more than 3.4 crore cases pending in India’s courts
and according to the Ministry, the Apex court had 62,537 pending cases at the end of 2016 while
in High court, pending cases went up to 40.15 lakhs at the end of 2016 which was less than the
pendency in 2014 but the situation in subordinate courts, which is considered as the backbone of
the country’s justice system, has become worst as the pending cases went up to 2.74 crore at the
end of 2016.2This problem of backlog of cases has been recognized by legislature and it
introduced the concept of “Plea Bargaining” by way of Criminal Law (Amendment) Act, 2005 to
solve the problem of backlogging of case and lower rate of convictions in Indian Court.3
1
NCRB Journal, National Crime Records Bureau New Delhi, Vol-1 (No.1) l October 2018
http://205.147.98.190/ncrb/sites/default/files/NCRB_Journal_October_2018.pdf
2
142nd Law Commission of India Report, “Concessional Treatment for Offenders who on their own initiatve choose
to plead guilty without any Bargaining”, 1991, available at http://lawcommissionofindia.nic.in/101-
169/Report142.pdf,
7
The courts have introduced an informal system of pretrial bargaining and settlement and it was
followed in United States and now this system is generally called as plea bargaining. 4 In this
system, the suspect or the accused may admit either part or whole of the crime charged against
him and can claim lesser punishment instead of waiting for the trial to complete. The main
objects of plea bargaining is to avoid unnecessary expenses, unpredictable trials and harassment
and it also reduces the flow of criminal cases and helps in saving time. 5 Another object of this
system is that it reduces the pendency of the suit by resorting the case for alternate settlement
instead of trial under the supervision of the judiciary to ensure fairness. This practice is prevalent
the United States, England, and Australia. The concept of plea bargaining has gained very high
popularity in the US but it is used only in a restricted sense in the other two countries. This
papers has 3 main objectives: 1. To analyse and study the position of law in various jurisdictions
namely US, UK and Canada as was emphasized by 142 nd Law Commission Report, 2. To trace
the judicial trends in these jurisdictions, 3. To compare and critically evaluate the positions of
law in such jurisdiction so as to see the loopholes and cull out effective measures which could be
incorporated in Indian Jurisdiction.
II. FORMS OF PLEA BARGAIN
There are different processes adopted within Criminal justice system all over the world to
achieve resolution of disputes without following the complete trail with the aim to reduce the
burden of parties of the case where it also supposes to fulfill aspiration of both accused and
victims where Plea Bargaining has been used mostly within Criminal Justice System in most
parts of the world.
In fact guilty pleas actually account for an vast amount of criminal convictions in developed
countries like USA, U,K, Canada where typically it consists of:
3
PTI, “Pending cases go down in Supreme Court, High Courts; but see upward swing in lower courts”, The Indian
Express, October 1, 2017 available at http://indianexpress.com/article/india/pending-cases-go-down-in-supreme-
court-high-courts-but-see-upward-swing- in-lower-courts-4869471/,
4
Plea Bargaining, Black’s Law Dictionary, 8th edition, 1190 (2004).
5
169/Report142.pdf,
8
A. CHARGE BARGAIN:-
In this type of plea bargaining, the bargain happens when the arraignment enables a litigant to
confess to a lesser allegation or to just a portion of the charges surrounded against him.
Arraignment by and large has tremendous caution in charges and along these lines they have the
choice to accuse the respondent of the most astounding charges that are relevant. Charge Bargain
offers the denounced a chance to consult with the indictment and reduce the quantity of charges
that might be against him.
B. SENTENCE BARGAIN:-
It happens when a blamed or litigant is told ahead of time what his sentence will be on the off
chance that he confesses. A sentence deal may enable an investigator to get a conviction in the
most genuine allegation, while guaranteeing the respondent of an adequate sentence. (iii)
Prosecution Plea Bargaining:- Plea dealing is in some cases used to depict talks between the
indictment and an accused’s lawful counsels concerning the charges whereupon a blamed will be
displayed for preliminary and including signs that the denounced is set up to concede to specific
offenses. This might be portrayed as prosecutorial supplication haggling.
C. JUDICIAL PLEA BARGAINING:-
The term request dealing likewise covers talks in which the preliminary Judge partakes. In such a
course of action counsel for the denounced and the arraignment go to the judge in his private
chambers and talk about a game plan whereby, upon the judge demonstrating the plausible
sentence, the charged through his direction shows that he will confess. This might be portrayed
as legal supplication haggling.
The concept of plea bargaining was not there in criminal law since its commencement.
Considering this situation Indian Legal scholars and Jurists incorporated this concept in Indian
Criminal Law after various law commissions’ report. As the term it suggests that it is an
agreement between accused and the prosecutor. Many countries have accepted this concept in
9
their Criminal Justice System (CJS). In India, even after 12 years of implementation, the system
of plea bargaining is, it seems and is, still in its experiment and developmental stage.6
III. PLEA BARGAIN: UNITED STATES OF AMERICA AND JUDICIAL RESPONSE
Plea bargaining has over the year emerged as a prominent feature of the American Criminal
Justice System where over 90% criminal cases are settled by plea bargain rather than by a jury
trial. Thus, less than ten percent of criminal cases go to trial. The United States experiments
shows that plea bargaining helps the disposal of the accumulated cases and expedites delivery
of justice.
The concept of Plea Bargaining was not favoured in colonial America. In fact, Courts actively
discouraged defendants from pleading guilty. As population increased and Courts became
overcrowded, trial in every case became lengthier and impossible. Thus, the need was felt for
such a strategy which could result in speedy disposal. Thereafter, in the 19th century, Courts
gradually started accepting guilty pleas and by the 20th Century, the vast majority of criminal
cases started being resolved with plea bargaining.
A. PROCEDURE INVOLVED IN PLEA BARGAINING IN UNITED STATES :
Presently, plea Bargaining is expressly authorized in statutes and in Court rules of the United
States. The Federal Rules of Criminal Procedure, and in specific, Rule 11(e) recognize and
codifies the concept of plea agreements. However, because of United States Sentencing
Guideline (USSG) provisions, the leeway permitted is very restrictive. Under Rule 11(e) a
prosecutor and defendant may enter into an agreement whereby the defendant plead guilty and
the prosecutor offers either to move the dismissal of a charge or charges, or recommend to the
Court a particular sentence or agree not to oppose the defendant‟s request for a
particular sentence, or agree that a specific sentence is the appropriate disposition of the case.
A prosecutor can agree to take any or all of these actions in a plea agreement. Under Rule 11
(e), Plea Bargaining must take place before trial unless the parties show good cause for the
delay.
6
MalimathCommitteeReportMarch 2003
(http://mha.nic.in/sites/upload_files/mha/files/pdf/criminal_justice_system.pdf
10
Simply put, it is contractual agreement between the prosecution and the defendant concerning
the disposition of a criminal charge. Unlike most contractual agreements, it is not enforceable
until a judge approves it. However, the judge does not participate in its discussion. Prosecution
has been granted full discretion to offer a plea bargain to the defendant but has no authority to
force Court to accept a plea agreement entered into by the parties. It may only recommend to
the Court for the acceptance of a plea arrangement. Thereafter, a judge authorizes plea bargain
and will take proofs to ensure that the following three components are satisfied and will then
accept the recommendation of the prosecution:
(1) A knowing waiver of rights;

(2) A voluntary waiver; and
(3) A factual basis to support the charges to which the defendant is pleading guilty.
Generally a judge will authorize a Plea Bargain if the defendant makes a knowing and
voluntary waiver of his or her right to a trial, the defendant understands the charges, the
defendant under stands the maximum sentence he or she would receive after pleading guilty,
and the defendant make a voluntary confession, in Court, to the alleged crime,. Even if a
defendant agrees to plead guilty, a judge maydecline to accept the guilty plea and plea
agreement if the charge or charges have no factual basis.
When a Court accepts a plea agreement, the guilty plea operates as a conviction, and the
defendant can not be retried on the same offence. If the defendant breaches plea agreement, the
prosecution may re-prosecute the defendant. If the government breaches a plea agreement, the
defendant may seek to withdraw the guilty plea, ask the Court to enforce the agreement, or ask
the Court for a favorable modification in the sentence. When a prosecutor or defendant revokes
a plea agreement, the statements made during the bargaining period are not admissible against
the defendant in subsequent trial. This rule is designed to foster free and open negotiations.
Thus, it is a set of exchange relationships in which the prosecutor, the defense attorney, the
defendant and sometimes the judge participate All have specific goals, all try to use the
situation to their own advantage, and all are likely to see the exchange as a success.
Aside from legal considerations as to the knowing or voluntary nature of a plea, there are other
restrictions or prohibitions on the opportunity to plea bargain. In federal practice, U.S.
11
attorneys may not make plea agreements which prejudice civil or tax liability without the
express agreement of all affected divisions or agencies. Moreover, no attorney for the
government may seek out, or threaten to seek, the death of penalty solely forth purpose of
obtaining a more desirable negotiating passion for a plea arrangement. Attorneys are also
instructed not to consent to “Alford pleas” except in the most unusual circumstances and only
with the recommendation of Assistant Attorneys General in the subject matter at issue. In any
case where a defendant has tendered a plea of guilty but denies that he or she committed the
offense, the attorney for the government should make an offer or proof of all facts known to
the government to support the conclusion that he defendant is in fact guilty. Similarly, U.S.
Attorney are instructed to require an explicit stipulation for all facts of a defendant‟s fraud
against United States when agreeing to plea bargain.
D. JUDICIAL PRONOUNCEMENTS IN PLEA BARGAINING IN THE UNITED STATES:
A. HUDSON VS. UNITED STATES7

In this celebrated judgment, it has been held that in the absence of statute to the contrary, the
Court cannot accept a plea of Nolo Contendere for capital offence. In some Courts, this plea is
not accepted where imprisonment is mandatory on conviction of the offence charged. Such plea
has been accepted in prosecutions for crimes against the persons, against the property, against the
public peace, public decency or good morals, public justice and in prosecutions for other
offences and statutory violations
B. PEOPLE VS. GRIFFIN

There have been numerous court decisions, at the highest levels, that discuss the rule on plea
bargains. In People Vs. Griffin,8 Judhe Van Voorhis observed that the practice of accepting
plea to lesser crimes is generally intended as a compromise in situations where conviction is
uncertain of the crime charges.
C. UNITED STATES VS. JACKSON

In United States vs. Jackson9 the Court questioned the validity of the plea bargaining process
if it burdened a defendant’s right to a jury trial. Issue in that case was a statute that imposed
the death penalty only after a jury trial. Accordingly, to avoid the death penalty, defendants
7
363 U.S.807.
8
Cal 2d 182 [32 Cal. Rptr 24, 383 p. 2d 432
9
390 U.S. 570 (1968)
12
were waiving trials and eagerly pleading guilty to lesser actually defended plea bargaining in
Brady vs. United States,10 pointing out that the process actually benefited both sides of the
adversary system. The Court noted that earlier opinion in Jackson merely required that guilty
pleas be intelligent and voluntary.
D.BOYKIN V. ALABAMA
In Boykin v. Alabama,11 the U.S. Supreme Court ruled that defendants must state that the plea
was made voluntarily before a judge may accept the plea. Judges have created standard forms
with questions for the defendants to affirm in open Court before the plea is accepted. Trial
judges also must learn whether the defendant understands the consequences of pleading guilty
and ensure that the plea is not obtained through pressure or coercion.
In the United States, the accused has three options with respect to pleas; guilty, not guilty or
plea of nolo contendere. In plea of nolo contendere, the defendant answers the charges made in
the indictment by declining to dispute or admit the fact of his or her guilt. The defendant who
pleads nolo contendere submits for a judgment fixing a fine or sentences the same as if he or
she had pleaded guilty. The difference is that a plea of nolo contendere cannot later be used to
prove wrongdoing in a civil suit for monetary damages, but a plea of guilty can.
E. BORDENKIRCHER V. HAYES
In a landmark judgment Bordenkircher v. Hayes,12 the US 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 prosecution offence. The Apex Court,
however, upheld the life imprisonment of the accused because he rejected the “Plea Guilty”
offer of five 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.
F. SANTBELLO V. NEW YORK

In Santbello v. New York13 the United States Supreme Court formally accepted that plea
bargaining was essential for the administration of justice and when properly managed, was to
10
395 US 238 (1969).
11
379 U.S. 742 (1970)
12
434 US. 357 1978.
13
104 U.S. 257 1971
13
be encouraged. Under Federal Law, as of January 27, 2007, the maximum a plea bargains can
reduce hail sentences and fines are 50%.
In countries such as England and Wales, Victoria, Australia, plea bargaining is allowed only to
extent that the prosecutors and the defense can agree that the defendant will plead to some
charges and the prosecutor shall drop the remainder. The European countries are also slowly
legitimizing the concept of plea bargaining through the Scandinavian countries maintain
prohibition against the practice
IV. EVOLUTION OF PLEA BARGAINIG IN UNITED KINGDOM
The U.K. plea bargaining rules and practise were set out in the rules of the Turner case. 14 This
case established stringent rules stating that it was unacceptable that,
“The judge should . . . never indicate the sentence which he is minded to impose. A statement
that on a plea of guilty he would impose one sentence, but that on a conviction following a plea
of not guilty he would impose a severer sentence is one which should never be made. This could
be taken to be undue pressure on the accused, thus depriving him of that complete freedom of
choice which is essential.”
The court held that there should be freedom of access between counsel and judge but that any
discretion must be between judge and both counsel. The defendant’s solicitors can be present if
he chooses. The judge should never indicate the sentence he is minded to impose or that he
would impose one sentence on a verdict of guilty and one sentence on a plea of guilty.
Plea bargaining including charge bargaining is not prevalent in UK as much USA. Plea
bargaining as a concept is still developing in England. That is because the factors which act as
incentive for the parties to enter into plea negotiation in America are not present in U.K.
Moreover, the English Courts have strongly opposed the use of plea negotiation as an alternative
method for disposal of criminal cases, in many cases.
A. POSITION OF LAW
14
(1970) 54 CR App R 352
14
Plea bargaining including charge bargaining is not prevalent in UK as much USA. Plea
bargaining as a concept is still developing in England. That is because the factors which act as
incentive for the parties to enter into plea negotiation in America are not present in U.K.
Moreover, the English Courts have strongly opposed the use of plea negotiation as an alternative
method for disposal of criminal cases, in many cases. 15 One of the primary reason for non-
acceptance of plea bargaining in England is due to the amount of discretion the trial judges retain
over sentencing. Unlike U.S most of the offences in U.K (except murder) do not have fixed
sentences.16 Therefore, the sentencing policy in U.K is much more flexible than its American
Counterpart. Such a system of Sentencing has two major consequences:
(1) Since the sentencing policy is flexible and the judges have enormous amount of discretion
therefore the pressure to reduce the harshness of the law by using alternative methods is much
lesser.
(2)Since it’s the trial judge who has the ultimate discretion of sentencing, therefore it is difficult
for the prosecution to make any promise to the defendant regarding concession of sentence.17
Another reason why there is difference between America and England regarding plea bargaining
is due to difference in role of prosecutors. In United states it the prosecutor who is the master of
plea bargaining agreement. It is the prosecutor’s decision whether to proceed with the option of
plea negotiation, and it is him who decide whether to offer charge bargaining or sentence
bargaining to the defendant. However, on the other hand, in England, professional prosecutors
generally do not conduct criminal prosecution. It is the barrister who conducts the prosecution in
criminal cases, he can appear for both the prosecution and the defence.18
Unlike prosecutors in America, the barristers in U.K do not have unsupervised power to drop
charges. Moreover, is it considered unethical in England if the prosecution gives any
recommendation for sentencing. Hence, the use of plea negotiation in England as an informal
way of disposing cases is limited because of the availability of the power to the trial judge to use
his discretion over the trial, as well as the sentencing and prosecution. Simultaneously, pressures
15
John L. Heberling, Conviction Without Trial, Anglo American Law review (1973)
16
Plea Bargaining in England Author(s): Philip A. Thomas Source: The Journal of Criminal Law and Criminology
(1973-), Vol. 69, No. 2 (Summer, 1978), pp. 170-178
17
Atkinson, [1978] 2 All E.R. 460, 462.
18
John Baldwin and Michael McConville, Plea Bargaining and Plea Negotiation in England, 13 (2), 287, 307, Law
& Society Review, (1979), available at, http://www.jstor.org/stable/3053255
15
within and imposed upon the court may be alleviated by the clandestine opportunities provided
to the judiciary and counsel to speed the trial to an early conclusion.
The U.K. model of plea bargaining has the defence and the prosecution entering into discussions
over the type of sentence that the defendant ought to receive if he or she pleads guilty to a lesser
offence. The discussions are, in part, led by the strength of the prosecution case and the quality
of the evidence at their disposal. Prosecutors, currently do not have much power and influence in
the sentencing process.’
E. JUDICIAL RESPONSE
In the case of R v Goodyear19 the Deputy Lord Chief Justice stated that a judge should not be
invited to give an indication of what would be, or would appear to be a ’plea bargain’, stating
that: ’[h]e should not be asked or become involved in discussions linking the acceptability to the
prosecution of a plea or basis of a plea, and the sentence which may be imposed. He is not
conducting nor involving himself in any plea bargain. It might be attractive to think that R. v.
Cain,20 the most recent reported case concerning judicial interference in the pleading decision, is
an unusual decision on the judicial control of the state in judicial proceedings. Statistical
information regarding the magistrates courts, where over 90% of all criminal trials are heard,
indicates a high incidence of guilty pleas. The researcher also found that 80% of defendants in
the London magistrates courts pleaded guilty.21 Two categories of judicial plea bargaining are
considered. The first is express or overt plea bargaining and the second is implied or covert
judicial plea bargaining. Express involvement of the judiciary in this process was unequivocally
prohibited by the former Lord Chief Justice, Lord Parker, in the leading case of R. v. Turner22
“The judge should ... never indicate the sentence which he is minded to impose. A statement that,
on a plea of guilty, he would impose one sentence but that, on a conviction following a plea of
not guilty, he would impose a severer sentence is one which should never be made.”23
According to traditional theory, the client who is passive, obeys instructions and trusts the
profession without criticism, with few questions or requests for information is preferable to the
19
2005] EWCA Crim 888.
20
R. v. Cain, The Times (London), Feb. 23, 1976, at 11 (Widgery, L.CJ.).
21
Zander, Unrepresented Defendants in Magistrates' Courts, 2017 CRIM. L. REV. 632, 639
22
All E.R. 281. See also R. v. Forde, [1923] 2 K.B. 403
23
R. v. Heyes, [1950] 34 Crim. App. Page 161, 162
16
client who is critical, questioning and anxious to participate fully. Given that lawyer domination
operates, and is encouraged by means including case law, it is crucial that if discussions take
place between counsel and the judge that they be done covertly. A publicized dialogue might,
apart from possibly running foul of R. v. Turner, produce an apparent issue of conflict in the
mind of the client, thereby jeopardizing his relationship with the barrister, and making the client
less susceptible to the "independent" advice of his counsel.24 The first element which fosters
covert bargaining is the traditional relationship between the barrister and his lay client as spelled
out by Lord Parker in R. v. Turner: counsel "must be completely free to do what is his duty,
namely, to give the accused the best advice he can, and if need be, advice in strong terms."25
Although formally and publicly it is the client who is seen to make the decisions, the decision-
making process is subject to the personal and private relationship of counsel and the accused.
This follows a traditional pattern of dominance where client's interests are considered best served
through the exercise of predominant control by the lawyer, and problem-solving and indeed
effective decision-making is delegated to the professional. a Client participation in evaluating
and coming to decisions is minimized.26
V. POSITION OF LAW IN CANADA
A. INTRODUCTION
The practice of what has come to be known as plea bargaining has been the subject of
considerable debate over the last few decades. In Canada, the discussion has centered on the
exact nature of the practice and on the term by which it should be known. In 1975, the Law
Reform Commission of Canada defined Plea bargaining as any agreement by the accused to
plead guilty in return for the promise of some benefit. But over the years, considerable objections
grew against designating the practice in any way that implied that justice could be purchased at
the bargaining. Consequently, there was a movement away from the use of the term plea
bargaining and toward more neutral expressions such as-“Plea Discussions”, ― “Resolution
24
Tollett v. Henderson, 411 U.S. 258, 265 (1973).
25
D G Gifford, Meaningful reform of plea bargaining: The control of Prosecutorial Discretion, 1983, U.ILL,
L.REV.37, 90-95).
26
Why Judges and Prosecutors Engage in Plea Bargaining by Sara J Berman,
http://www.nolo.com/legalencyclopedia/whyjudgesprosecutors-engage-plea-bargaining.html
17
Discussions”, ―Plea Negotiations and ― “Plea Agreements.”27 It has been defined as- "any
agreement by the accused to plead guilty in return for the promise of some benefit".28
The use of such expressions marked in evolution in the practice itself, since they implicitly
acknowledged it to be much more wide ranging than simple bargaining and to involve the
consideration of issue beyond merely that of an accused pleading guilty in exchange for a
reduced penalty
In Canada, the discussion has centered on the exact nature of the practice and on the term by
which it should be known.29 But over the years, considerable objections grew against designating
the practice in any way that implied that justice could be purchased at the bargaining table.
Consequently, there was a movement away from the use of the term "plea bargaining" and
toward more neutral expressions such as "plea discussions", "resolution discussions", "plea
negotiations" and "plea agreements". The use of such expressions marked an evolution in the
practice itself, since they implicitly acknowledged it to be much more wide-ranging than simple
bargaining and to involve the consideration of issues beyond merely that of an accused pleading
guilty in exchange for a reduced penalty. For the purposes of this paper, we will mainly use the
expression "resolution discussions" because its very vagueness reflects in our view the diversity
of the practices it covers. It is, however, generally interchangeable with any of the other terms
just mentioned.
F. RESOLUTION DISCUSSION IN TRIAL
Resolution discussions embrace several practices, including charge discussions, procedural

discussions, sentence discussions, agreements as to the facts of the offence and the narrowing of
issues in order to expedite the trial. Although they may sometimes involve a judge, these private
discussions occur primarily between the prosecutor and the accused and his lawyer.
27
Law Reform Commission of Canada, Criminal Procedure : Control of the Process (Working Paper No. 15),
Ottawa, Information Canada, 1975, page 45
28
Law Reform Commission of Canada, Criminal Procedure : Control of the Process (Working Paper No. 15),
Ottawa, Information Canada, 1975, page 45.
29
Ontario Ministry of the Attorney General, Report of the Attorney General’s Advisory Committee on Charge
Screening, Disclosure, and Resolution Discussions (generally referred to as the "Martin Report", since the
committee in question was chaired by Mr. G. Arthur Martin), 1993, page 275.
18
When an accused decides to plead guilty, the prosecutor should advise the sentencing court of
the facts that could have been proven if the matter had gone to trial. For the court to accept a plea
of guilty, the facts alleged by the prosecutor must be accepted by the accused as being
substantially accurate, and they must be sufficient in law to constitute an offence. Discussions
regarding the facts may include the use of an agreed statement of facts and an agreement by the
prosecutor not to include embarrassing facts that are of little or no significance to the charge.
Discussions may also take place in criminal cases that actually proceed to trial in order to narrow
the issues that will be litigated.30 In Canada, the evidentiary burden rests entirely on the
prosecutor to prove a criminal charge beyond a reasonable doubt. There is no obligation on the
accused to demonstrate his innocence. As a result, criminal trials can be long and heavy.
Resolution discussions may, therefore, include concessions by the defence of certain legal issues
in order to reduce the onus on the prosecutor. These may include the defence's concession of
noncontentious issues such as the jurisdiction of the court, the identity of the perpetrator of the
crime or the voluntary character of a statement made by the accused to the authorities. 31 In
limited cases, the defence may be legally required to prove an assertion, such as in an application
to exclude evidence.32 In these cases, the prosecutor may also make concessions that are legally
sound in order to reduce the burden on the accused during a trial. Finally, discussions may
involve identifying witnesses whose evidence may not be necessary, so that they are not
needlessly requested to appear. All this to say that the concept of resolution discussions is a
rather loose one. A definition that seems to capture the scope of the notion is that proposed by
the Director of Public Prosecutions of the province of Saskatchewan : A proceeding whereby
competent and informed counsel openly discuss the evidence in a criminal prosecution with a
view to achieving a disposition which will result in the reasonable advancement of the
administration of justice.33
A. CANADIAN JUDICIARY ON PLEA BARGAINING
30
Section 655 of the Criminal Code provides that "where an accused is on trial for an indictable offence, he or his
counsel may admit any fact alleged against him for the purpose of dispensing with proof thereof."
31
In Canada, the burden rests on the prosecutor to prove the voluntary nature of a statement made by an accused
beyond a reasonable doubt before it will be admitted into evidence at trial.
32
Section 8 of the Charter of Rights and Freedoms states : "Everyone has the right to be secure against unreasonable
search or seizure."
33
D.W. Perras, "Plea Negotiations", The Criminal Law Quarterly, volume 22, 1979-1980, pages 58-73, at pages 58-
59,
19
The role of the judge during a pre-trial conference is to remain fair and impartial. It is
inappropriate for a judge to become involved in plea bargaining, in the sense of bartering to
determine the ultimate sentence, or in pressuring any counsel to change his position. 34 The
purpose of this principle is to ensure that the resolution discussions that take place at the pretrial
conference are wide-ranging, informal and without prejudice to the parties, and to preserve
judicial impartiality in the courtroom.35 So far honoring the agreement is concerned there is a
general obligation on prosecutors to honour resolution agreements. These agreements are
analogous to undertakings and must be strictly and scrupulously carried out. 36 In addition to
being ethically imperative, the honouring of resolution agreements is a practical necessity. These
agreements dispose of the majority of the contentious issues that arise during criminal
prosecutions. Accordingly, if they are not binding and therefore cannot be relied upon, then the
corresponding benefits that resolution discussions can produce are rendered unattainable. It is
extremely rare for a prosecutor to attempt to repudiate a resolution agreement. Moreover, the
court will not allow a prosecutor on appeal to repudiate the position taken at trial 37 except for the
gravest possible reasons, such as the sentence imposed was illegal, the prosecutor at trial was
misled or it can be shown that the public interest in the orderly administration of justice is
outweighed by the gravity of the crime and the gross insufficiency of the sentence.38
In Edwards v. The Queen,39 it was held that the prosecutor may agree to dispense with the
accused’s requirement to establish his reasonable expectation of privacy in a case where it is
absolutely clear that the accused did have such an expectation when the state conducted a search
or seizure, such as the search of the accused’s dwelling house.
34
PLEA BARGAINING Milica Potrebic Piccinato, Department of Justice, Canada,
https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ilp-pji/pb-rpc/pb-rpc.pdf
35
Ontario Ministry of the Attorney General, Report of the Attorney General’s Advisory Committee on Charge
Screening, Disclosure, and Resolution Discussions, 1993, at 365.
36
Regina v. Agozzino, Decision of the Ontario Court of Appeal, [1970] Canadian Criminal Cases, volume 1, pages
380-382, at page 381 ; Regina v. Brown, Decision of the Ontario Court of Appeal, [1972] Canadian Criminal Cases,
Second Series, pages 227-228, at page 228.
37
Section 625.3 of the Criminal Code.
38
Attorney General of Canada v. Roy, Decision of Quebec Queen’s Bench, [1972] Criminal Reports New Series,
volume 18, pages 89-93 at page 93 ; also cited in Federal Prosecution Service Deskbook, "Proceedings at Trial and
on Appeal", Chapter 20, pages V-20-1 to V-20-11, at page V-20-11, and Law Reform Commission of Canada, Plea
Discussions and Agreements (Working Paper 60) (Ottawa :1989), at 30.
39
(Edwards v. The Queen, Decision of the Supreme Court of Canada, [1996] Canadian Criminal Cases, Third
Series, volume 104, pages 136-160.
20
Stinchcombe v. The Queen, Decision of the Supreme Court of Canada,40 it was held that In cases
where the accused is not represented by counsel, the prosecutor is obligated to arrange to have
the accused informed of the right to disclosure and that disclosure is available, and to determine
how disclosure can best be provided to the accused.
In the Supreme Court of Canada’s decision of Lavallee v. The Queen,41, the accused shot her
husband in the back of the head as he left the room. Evidence at trial established that the accused
had been repeatedly physically abused by her husband and that he told the accused that he was
going to kill her. The accused wife successfully raised the defence of self-defence and was
acquitted. The Court held that expert testimony regarding the "battered-wife syndrome" was
admissible and relevant and necessary in respect of the issues of the accused’s mental state and
elements of the defence of self-defence.
The harsher sanctions associated with a conviction after trial may provide a prosecutor with
significant power to bring an accused to plead guilty. As a result, there is a real concern that
people will plead guilty to crimes they did not commit, or for which they have a defence, in order
to avoid the risk of a substantially harsher punishment after trial. A troubling example of this
result is to be found in the correlation between arguably wrongful guilty pleas and mandatory
minimum sentences in cases of murder.42
In 1997, a judge reviewed cases involving the convictions of women who were imprisoned for
spousal homicide in circumstances that raised the possibility of invoking self-defence or the
"battered woman" defence.43 In her report, the judge acknowledged the pressure placed on
women to plead guilty to manslaughter to avoid a mandatory life sentence for murder despite an
available defence : I have seen, over the course of my Review, cases where the accused person
faced irresistible forces to plead guilty even though there was evidence that she acted in self
defence. In some cases, this evidence was very strong. These irresistible forces are the product of
the Criminal Code’s mandatory minimum sentences for murder. A woman facing a murder
40
Stinchcombe v. The Queen, Decision of the Supreme Court of Canada, [1992] Canadian Criminal Cases, Third
Series, volume 68, pages 1-18.
41
Lavallee v. The Queen, Decision of the Supreme Court of Canada, [1990] Canadian Criminal Cases, Third Series,
volume 55, pages 97-133
42
Dianne L. Martin, "Mandatory Minimum Sentences : Law and Policy", Osgoode Hall Law Journal, volume 39,
2001, pages 513-527, at paragraphs 8 and 23.
43
Lavallee v. The Queen, Decision of the Supreme Court of Canada, [1990] Canadian Criminal Cases, Third Series,
volume 55, pages 97-133
21
charge risks imposition of a mandatory sentence of life imprisonment with parole eligibility after
between 10 and 25 years. By contrast, a woman who pleads guilty to manslaughter will generally
receive a sentence between three and eight years with eligibility for full parole after serving one-
third of her sentence. This would obviously be a difficult choice for any person accused of
second-degree murder to make. However, there may be additional factors that exert even more
pressure on a woman to plead guilty, including the fact that she may have a young family to care
for (...).44
One final and extremely important case, though highly exceptional, is Perkins & Pigeau V. The
Queen45 In this case, the Quebec Court of Appeals addressed a plea agreement that involved a
promise by the plaintiff to the defendant for an offense that was less serious and different from
the offense for which he had been originally charged. The court rejected such an agreement,
stating: “Either the accused was guilty and must face the mandatory sentence impose by law or
he was innocent and must be acquitted. A plea to a lesser offense may be accepted if the Crown
doubts its ability to prove a charge, but that was not the case here since the Crown attorney
admitted having enough evidence to establish importing. This case, however, is the exception
rather than the rule. Amid the furor surrounding the Due Process Revolution of the 1960‘s,
comparatively little attention has focused on the plight of the ninety-five percent of all criminal
defendants who never enjoy a full adversary proceeding in which rights are asserted and full due
process is provided. In the courts, a guilty plea stemming from a plea bargain results in almost
certain conviction and offers the defendant only the slimmest hope for later asserting the rights
deemed waived by his plea. In the classroom, discussion of the practice is normally relegated to
a chapter towards the end of the text. Among lawyers, plea bargaining remains a topic for
guarded conversation.’46
44
The Honourable Justice Lynn Ratushny, Self Defence Review : Final Report submitted to the Minister of Justice
of Canada and to the Solicitor General of Canada, Ottawa, 11 July 1997. Available at
http://canada.justice.gc.ca/en/dept/pub/sdr/rtush.html
45
Perkins & Pigeau V. The Queen (1976). 72, QB 1972 Cr. Reports New Series, Vol. 18, p. 93.
46
1976) 35 CRNS 222 (QCA)
22
VI. PLEA BARGAINING IN INDIA
Introduction When the American Supreme Court first dealt directly with bargained pleas in 1970,
in the now-famous Brady Trilogy47 it had developed a substantial body of doctrine in apparently
analogous areas which did not compel any particular conclusion about the constitutionality of
plea bargaining. Nevertheless, it did provide a framework for analysis and suggested the
questions that would be relevant to decision. In Brady v. United States 48 and its companion cases,
however, the Court denied the relevance not merely of some but of all prior doctrine.
Having determined that plea bargaining was a topic sui generis, unconnected with any prior
constitutional experience, the Court then announced its conclusion that plea bargaining was
constitutional and disposed of the cases before it. Although, the Court agreed that guilty pleas
were invalid if not "voluntary," its treatment of voluntariness cut that concept loose from its
moorings in the law. The opinions are analytically incoherent. They clearly affirm the legitimacy
of plea bargaining. However, they do not provide any adequate explanation for jettisoning the
prior law on voluntariness, nor do they present anything explicit to replace the jettisoned
concept.
Whenever a new legal principle first clamors for recognition, it may be enough that the Court
recognize the principle-clear elucidation of its contours can wait for another day. The history of
the Court is replete with instances of new, valuable and productive legal doctrine first announced
in obscure and even incoherent opinions.49
In India, the concept of Plea bargaining is not an alien one but still the practical utility of this
concept is unknown to the Court.
The Courts at lower level i.e. The Judicial Magistrates and the Metropolitan Magistrate are not
keenly interested to follow this concept for many reasons though the same being legal and
constitutionally valid can be a good instrument to lessen the burden of cases in Courts. After the
47
Brady v. United States, 397 U.S. 742 (1970) McMann v. Richardson, 397 U.S. 759 (1970); Parker v. North
Carolina, 397 U.S. 790 (1970)
48
Brady v. United States, 397 U.S. 742 (1970) McMann v. Richardson, 397 U.S. 759 (1970); Parker v. North
Carolina, 397 U.S. 790 (1970)
49
169/Report142.pdf,
23
Amendment Act, 2005 and insertion of Chapter XXI-A in the Cr.P.C 50 the Courts have taken
positive note of the concept. Earlier, the Courts were reluctant to adopt this method in criminal
cases which has already been discussed but now the Courts are free to adopt it as an instrument
to handle the cases in a faster move. On the basis of this amendment in the Criminal Procedure
Code, the judicial approach can better be read by dividing the time into pre 2005 and post 2005
eras which shall be now discussed in detail.
G. VARIOUS LAW COMMISSION REPORTS FOR THE NEED OF INCORPORATING PLEA

BARGAINING
The Law Commission in its 142nd report in 1991, 154th report in 1996 and 177th report in
2001 along with report and the Malimath Committee on Reforms of Criminal Justice System
(2001- 03), recommended incorporating plea bargaining, citing examples of the concepts
success in jurisdictions such as the United States of America, Canada, United kingdom etc,51
A. 154TH REPORT OF THE LAW COMMISSION

Enthused by the success of plea bargaining in the United States, India has made several
attempts to introduce a similar formula. To reduce the delay in disposing of criminal cases, the
154th Report of the Law Commission, first recommend the introduction of 'plea bargaining' as
an alternative method to deal with huge arrears of criminal cases. This recommendation of the
Law Commission finally found support in Malimath Committee Report.52
G. 177TH REPORT OF THE LAW COMMISSION

It was observed that the said facility should not be available to habitual offenders and to those
who are accused of socio-economic offences of a grave nature and those accused of offences
against women and children. The 154th report recommended dealing with huge arrears of
criminal cases. This recommendation of the 154th Law Commission Report was supported and
reiterated by the Law Commission in its 177th Report. It was also recommended that plea
bargaining can also be in respect of nature and gravity of the offences and the quantum of
punishment.53
50
Chapter XX-A, Code of Criminal Procedure. 1973.
51
169/Report142.pdf,
52
154th Law Commission of India Report, “The Code of CriminalProcedure”,
1973, at http://lawcommissionofindia.nic.in/101-169/Report154Vol1.pdf,
53
Law Commission in its 177th Report,
24
H. THE REPORT OF THE COMMITTEE ON THE REFORM OF CRIMINAL JUSTICE SYSTEM, 2000
MALIMATH
Under the Chairmanship of Justice (Dr) Malimath stated that the experience of United States
was an evidence of plea bargaining being a means for the disposal of accumulated cases and
expediting the delivery of criminal justice. In its report, the Malimath Committee recommended
that a system of plea-bargaining be introduced into the criminal justice system of India to
facilitate the earlier resolution of criminal cases and reduce the burden on the courts.54
The Committee on Criminal Justice Reforms, headed by former Chief Justice of Karnataka and
Kerala High Courts and former member of the National Human Rights Commission of India,
V.S. Malimath (“Malimath Committee”) 55 submitted its report to the Government of India's
Ministry of Home Affairs in March 2003 in which a recommendation to introduce a system of
plea bargaining into the criminal justice system of India to facilitate the earlier resolution of
criminal cases and reduce the burden on the courts was made.
A formal proposal for incorporating plea bargaining into the Indian criminal justice system was
put forth in 2003 through the Criminal Law (Amendment) Bill 2005. The statement of objects
and reasons, inter alia, mentions that the disposal of criminal trials in Courts takes considerable
time and that in many cases trials do not commence for as long as three to five years after the
accused was remitted to judicial custody. Though not recognised by the criminal jurisprudence,
it is seen as an alternative method to deal with the huge arrears of criminal cases. The Bill
attracted enormous public debate. Critics said it is not recognized and against public policy
under our criminal justice system. The Supreme Court has also time and again blasted the
concept of plea bargaining that negotiation in criminal cases is not permissible.56
H. JUDICIAL PRONOUNCEMENTS ON PLEA BARGAINING
In a case before Mumbai Session Court, Sakha Ram Bandekar was accused of siphoning of Rs.
1.48 crores from the RBI by issuing vouchers against fictitious names from 1993 to 1997 and
transferring the money to his personal account. He was arrested by the CBI on 24 October
1997 and was released on bail in November the same year. Charges were framed on March 2,
54
http://www.hrdc.net/sahrdc/hrfeatures/HRF88.htm
55
The Report of the Committee on the reform of criminal justice system, 2000 Malimath.
56
Objects and Reasons, Criminal Law (Amendment) Act, 2005.
25
2007. The accused moved an application of plea bargaining before the court and stated that he
is 58 years old. The court directed the prosecution to file its reply. CBI opposed the application
by stating that “the accused is facing serious charges and plea bargaining should not be
allowed in such cases”. Based on these submissions, the court rejected his application. 36
In Vijay Moses Das v. CBI,57 it was alleged that sub-standard items were supplied by the
petitioner and that too in wrong port. ONGC got the matter investigated through CBI. Charges
were framed against the accused. Offences alleged to have been committed by the petitioners
are punishable under Section 420, 468 and 471. All the three offences are punishable with
maximum imprisonment for a period of seven years. Application for plea bargaining was
moved before the trial court. CBI and ONGC has no objections against an application. Trial
Court rejected the application as an affidavit under section 265B was not filed along with an
application. The Hon’ble High Court of Uttarakhand directed the trial court to accept the ‘plea
bargaining’ sought by the accused as he is not the previous convict and has filed an affidavit
before this court.
In Ranbir Singh v. State,58 on 5th August, 2000 the deceased Inder Singh along with his wife
Smt. Geeta boarded the bus under DTC operation being driven by the Petitioner. When Inder
Singh started deboarding from the front door of bus, the petitioner suddenly drove the bus
resulting him falling down from the bus on the road. The Petitioner moved an application for
plea bargaining. During the proceedings mutually satisfactory disposition was arrived at by
paying compensation to the wife and daughter of the deceased in addition to the compensation
of Rs. 8 lakhs awarded by the learned MACT. After mutually satisfactory disposition, the trial
court awarded maximum punishment to the petitioner. The petitioner presented an application
under article 223 before Hon’ble High Court against the judgement of the trial court. The High
Court held that the trial court failed to consider the mitigating factors after awarding maximum
punishment. The trial court was duty bound to consider the mitigating factors. The petitioner is
the first time offender and he has compensated the victims to their satisfaction. Therefore the
court held that the petitioner would have undergone sentence of imprisonment for a period of
four months for offence punishable under Section 304A IPC and a fine of Rs. 1,000/- for
offence punishable under Section 279 IPC.
57
Vijay Moses Das v. CBI, 2010 SCC OnLine Utt 369; (2010) 69 ACC 448
58
Ranbir Singh v. State, Crl. M.C. 1705/2011
26
In Guerrero Lugo Elvia Grissel v. State of Maharashtra,59 the accused (foreigner) were
arrested on charge of theft of diamond worth crores of rupees from a jewellery shop in an
international exhibition during August 2010. He moved an application for plea bargaining
before the court. The court examined the application and satisfied that it is moved voluntarily.
Both the complainant and accused agreed in mutually satisfactory disposition that accused has
to pay Rs. 55 lakhs to complainant as compensation and Rs. 5 lakhs to the court as expenses
incurred during the case by the state. The state agrees to the disposition. The offence
committed by an accused is punishable for 7 years so the court may sentence the accused to
one-fourth of the provided punishment under section 265E (d). Bombay High Court confirmed
the conviction of 21 months and justified the scheme of plea bargaining. Pakistani-American
David Coleman Headley, being a member of Lashkar-e-Toiba’s (LeT), charged with 26/11
Mumbai terror plot and conspiring to target a Danish newspaper. He pleaded guilty to all 12
charges before the US court to bargain for lighter punishment than the maximum death
penalty. In light of Headley's past cooperation and expected future cooperation, the Attorney
General of the United States has authorised the United States Attorney in Chicago not to seek
the death penalty against Headley.60
After the 2005 amenments various judgemnts were given regarding the applicability of plea
bargaining. In State of Uttar Pradesh v. Chandrika,61 the Apex Court held that it is settled law
that on the basis of plea bargaining Court cannot dispose of the criminal cases. The Court has to
decide it on merits. If the accused confess his guilt, 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 the sentence. Nor can the accused bargain with the
Court that as he is pleading guilty the sentence be reduced. Despite this huge hue and cry, the
government found it acceptable and finally section 265 -A to 265-L were added in the Criminal
Procedure Code, 1973 so as to provide for rising the plea bargaining in certain types of criminal
cases. The provisions were thus fully incorporated into the Code of Criminal Procedure, 1973
as Chapter XXI-A through the Criminal Law (Amendment) Act, 2005.
59
Guerrero Lugo Elvia Grissel v. State of Maharashtra, 2012 SCC OnLine Bom 6; (2012) 2 Mah LJ 369
60
“David Headley pleads guilty to all 12 charges, escapes extradition, death”, March 19, 2010, available at
https://www.ndtv.com/indianews/david-headley-pleads-guilty-to-all-12-charges-escapes-extradition-death-413116
61
State of Uttar Pradesh v. Chandrika, 2000 CrLJ 384.
27
In Thippaswamy V. State of Karnataka,62 Court observed that it would be violative of Art. 21
of the Constitution to induce or lead an accused to plead guilty under a promise or assurance
that he would be let off lightly and then in appeal or revision, to enhance the sentence. In such
cases, the Court of appeal or revision should set aside the conviction and sentence of the
accused and. remanded the case of the trial Court so that he accused can, if he go wishes,
defend himself against the charge and if he is found guilty, proper sentence can be passed
against him.
In Murlidhar Meghraj Loya V. State of Maharashtra 63 the question of Plea Bargaining was
considered and disapproved by observing that many economic offenders resort to practices the
Americans call „plea bargaining, plea negotiation, trading out “and compromise in criminal
cases” and the trial magistrate drowned by a docket burden nods assent to the sub rasa ante-
room settlement. The businessman culprit, confronted by a sure prospect of the agony and
ignominy of tenancy of a prison cell, “trades out” of the situation, the bargain being a plea of
guilt coupled with a promise of no jail‟.
In State of Uttar Pradesh v. Chandrika ,64 the Apex Court held that it is settled law that on the
basis of plea bargaining court cannot dispose of the criminal cases. The court has to decide it on
merits. If the accused confesses its guilt, 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 be reduced. Despite this huge hue and cry, the government found
it acceptable and finally section 265-A TO 265-L are added in the Code of Criminal Procedure
so as to provide for raising the plea bargaining in certain types of criminal cases. While
commenting on this aspect, the Division Bench of the Gujarat High Court observed in State of
also held that, the very object of law is to provide easy, cheap and expeditious justice by
resolution of disputes, including the trial of criminal cases and considering the present realistic
profile of the pendency and delay in disposal in the administration of law and justice,
fundamental reforms are inevitable as it was held that
62
Thippaswamy V. State of Karnataka, 1983 U SCC 194.
63
Murlidhar Meghraj Loya V. State of Maharashtra, 1976 (3) SCC 684
64
State of Uttar Pradesh v. Chandrika 2000 Cr.L.J. 384
28
“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. The
criminal courts are too over burdened to allow each and every case to go on trial. In such
situation, system is left with no other choice but to adopt this technique.”65
These advance arrangements please everyone except the distant victim, the silent society. The
prosecutor is relieved of the long process of proof, legal technicalities and long arguments,
punctuated by revisional excursion to higher Courts, the Court sighs relief that its ordeal,
surrounded by a crowd of papers and persons, is avoided by one case less and the accused is
happy that even if legalistic battles might have held out some astrological hope of abstract
acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his
old profession.66 It is idle to speculate on the virtue of negotiated settlements of criminal cases,
as obtains in the United States but in India, especially in the area of dangerous economic crimes
and food offences this practice intrudes on society’s interests by opposing society‟ s decision
expressed through predetermined legislative fixation of minimum sentences and by subtly
subverting the mandate of the law. The jurists across the Atlantic partly condemn the bad odor
of purchased pleas of guilty and partly justify it philosophically as a sentence concession to a
defendant who has by his plea aided in ensuring the prompt and certain application of
correctional measures to him.67
In Kasambhai Rehmanbhai Sheikh etc. v. State of Gujarat,68 it was observed that conviction
based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be
sustained. It was observed in this case that the accused was convicted under S 16(1)(a) (i) read
with section7 of the Prevention of Food Adulteration Act, 1954 by the Magistrate on the basis
of plea bargaining which to place between prosecution, the defence and the Magistrate and
accused was let-off with a nominal sentence of imprisonment till rising of the Court and a small
fine. The High Court on its attention being drawn towards the order passed by the learned
Magistrate initiated suo moto proceeding in the revision by issuing notice to the accused to
show cause why the sentence imposed should not on him.
65
Id.
66
Id.
67
Id.
68
Kasambhai Rehmanbhai Sheikh etc. v. State of Gujarat,AIR 1980 PLR 549.
29
-Victimization of the poor:- In the existing situation where the acquittal rate is as high as 90%
to 95% it is the poor who will be the victims of the concept and come forward to make
confessions and suffer the consequent conviction.
-Risk of increase in human right abuse by state officials:- The plea bargaining provision may
also have dramatic side effects in cases involving state officers accused of human rights abuse.
An Indian police officer accused of torturing a person in his custody may instead only be tried
for other offences under the Indian Penal Code for which the punishments as well within the
limit prescribed for punishment under the new law on bargaining. This means that the new law
may allow tortures to escape with even lighter penalties, despite the fact that their offences fall
into the gravest categories under international law.
Even the Supreme Court in Kasambhai Abdul Rehmabhi Sheik v. State of Gujrat 69 observed
that the conviction of the appellant was based solely on the plea of guilty entered by him and
his confession of guilt was the result of plea bargaining between the prosecution, the defense
and the learned Magistrate.
-Derailment of Trial: Once the guilty plea comes forward and recorded on the file and in the
mind of the judge, the trial will be surely derailed. The court may not strictly adhere to or depart
from the requirement of proof of beyond reasonable doubt and might lead to conviction of
innocent.
VII. COMPARATIVE ANALYSIS
A. PLEA BARGAINING AMERICAN MODEL VS INDIAN MODEL
Since have adopted plea bargaining from Unite states comparison would be helpful in accessing
both the countries progress .Plea Bargaining was upheld as constitutional in United States in the
case of Brady v. United States. Plea bargaining is heavily entrenched in the American criminal
administration. There are three kinds of pleadings that are accepted by the US courts: the accused
can plead guilty, not guilty or nolo contendere. Plea bargaining is based on the plea of nolo
contendere which, is a quasi-confession. It is not an inherent right afforded to the accused, but
once given by the court it cannot be conditional or retracted in any manner. Essentially, in
69
Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat; (1980) 3. SCC 120
30
relation to punishment, it carries the same implications as a guilty plea, but subsequently, it is not
admissible to establish guilt in the subsequent cases.
The Indian version of pleas bargaining leans heavily on the American provisions. However, there
are a few significant differences between the Indian and the American scheme of plea
bargaining: I. Firstly, in U.S.A, there is no restriction or limitation on the kind of offences for
which plea bargaining can be sought. Plea bargaining may be applied for even in offences that
carry a sentence of death penalty or life imprisonment. Further, Indian law implies that the
victim has an active say in the bargaining proceedings, and may refuse or veto an unsatisfactory
resolution. These differences are significant in the sense that they help the Indian model avoid
certain pitfalls that plea bargaining is identified with.
II. Secondly, in America, an application for plea bargaining is filed only after negotiations
between the accused and the prosecutor is over. However in India, the onus is on the defendant
to file an application for plea bargaining. This is a safeguard for the accused and helps in
preventing cases of coercion and underhand dealings.
III. Further, there is a provision for the court to ascertain the voluntariness of the application.
This too is an important safeguard, taking into account the socio-economic groups that are an
intrinsic part of Indian society. It means that the judge can reject a plea bargaining application if
he is of the view that there is prima facie no case against the accused, or if he feels that that the
accused is getting away with a punishment that is less than what should be due, to the extent that
it defeats the purpose of criminal justice or a disparity in the socio-economic status is being
exploited to arrive at the bargain.
I. UNITED STATES
It would be wrong to assume that the concept of plea bargaining found favor of courts only in
the recent past. In fact, 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 plea bargaining had constantly been upheld there.
In the year 1969, James pleaded guilty to assassinating Martin Luther King Jr. to avoid
31
execution sentence. He finally got an imprisonment of 99 years. 70 Plea bargaining, perused
with the aim of reducing caseload is something that has been immensely successful in the
United States of America, so much so that it has now become the norm rather than the
exception. It is a significant part of the criminal justice system; the vast majority of criminal
cases in the United States are settled by plea bargain rather than by a jury trial. 71 The majority
of individuals accused of crime give up their constitutional rights and plead guilty. Every
minute a criminal case is disposed off in an American Court by way of guilty plea or Nolo
Contendere Plea. Plea bargains are subject to the approval of the Court, and different states
and jurisdictions have different rules. The Federal Sentencing Guidelines are followed in
federal cases and have been created to ensure a standard of uniformity in all cases decided in
the federal courts.
The process of plea bargaining in the United States is guided by three sources of law: (1) the
United States Constitution;(2) statues; (3) judicial pronouncements found in case law.
While plea bargaining on the federal and state level is commonly governed by statue, the focus
of the following discussion will be some of the more important and general principles as found
in case law before the enactment of Rule 11(e) of the Federal Rules of Criminal Procedure and
case law discussing the performance and breach of plea agreements.72
Prior to the enactment of Rule 11(e) the focus on plea bargaining revolved around the
voluntaries of the guilty plea. The general criteria required for a guilty plea obtained through
plea bargaining was that the guilty plea must not have been ―induced by promises or threats
which deprived [the plea] of a voluntary act. A plea will not be considered voluntary if it was
induced by threats or coercion, was based on unfulfilled or improper promises, or if the
defendant was mentally incompetent.73 In addition, the entry of the plea must be
knowledgeable. A court will invalidate the plea itself if it determines that the defendant does
not have a full understanding of the plea and of its consequences. American courts will also
70
673 U.S. 257 1969. William Bradford Huie, “He Slew the Dreamer: My Search for the Truth About James Earl
Ray and the Murder of Martin Luther King, Jr (Revised ed.)”, 1997 available at Montgomery: Black Belt Press,
ISBN 13: 978-1- 57966-005-5, Ray pleads guilty to King assassination, March 10 available at
https://www.history.com/this-day-in-history/ray-pleads-guilty-to-king- assassination,
71
H. H. A. Cooper, Plea-Bargaining: A Comparative Analysis, 5 " New York University Journal of International
Law and Politics, 427 (1972)
72
Id.
73
Id.
32
invalidate a plea if it finds that the prosecutor obtained the plea by threatening the defendant
with prosecution, if the defendant refuses to provide information or testify without first
promising to grant some sort of immunity to the defendant. Approximately 90% of all criminal
cases are resolved through plea bargaining in the United States.
Issues involving the performance and breach of plea agreements have also been addressed by
courts of the United States. These issues have typically been analyzed using traditional
contract principles. In general, the United States Supreme Court has stated that ―when a plea
rests in any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled. Therefore, it
could be inferred that if the prosecutor withdraws his plea before the defendant enters a guilty
plea or before the defendant will ordinarily have no resource, unless perhaps the defendant has
waived a constitutional right, or has provided substantial cooperation by providing
information.
A promise made by a prosecutor must also be kept by a subsequent prosecutor who is assigned
the case. However, a prosecutor is not bound by a promise which is not accepted by and which
does not cause the defendant to rely to his detriment on it.
The typical remedy for a defendant in the event the prosecutor has breached the agreement, is
specific performance. Thus, if the prosecutor breaches his promise to withdraw certain
charges, the defendant may have the agreement judicially enforced and have the charges
withdrawn.
The prosecutor is permitted to breach his promise in certain limited instances. Most common is
where the prosecutor learns that the defendant has defrauded the prosecutor, or because the
defendant has committed another crime after the prosecutor has made the promise. In contrast,
the prosecutor may not breach his promise: (1) because he has had a change of heart; (2)
because another prosecutor in the office disagrees with the promise; (3) in the absence of
fraud, because of a unilateral mistake or a mutual mistake; or (4) in light of the discovery of
new evidence/ facts concerning the seriousness of the defendant‘s offence.
J. CRITICAL ANALYSIS OF PLEA BARGAINING IN UK
33
The administration of criminal justice in England and Wales is a highly complex affair which
is under increasing pressure from growing crime rates and inadequate budgetary resources for
the police, courts, social services and prisons to keep pace. In such an environment it is a
natural economic quest for short cuts that leads to plea bargaining. Nevertheless this would be
considered no justification for such a formal development. 74 Criminal justice is expected to be
a social lesson and through the ceremonies of law enforcement society's values are affirmed
and made visible to all. The model developed in this article incorporates a visible judicial
stance of non-intervention in the defendant's decision to plead, thereby responding to the
public expectation of the judicial role. 75 This could take to be undue pressure on the accused,
thus depriving him of that complete freedom of choice which is essential. 76 This judgment in
reality restricted the application of plea bargaining and suggested for some change from
different quarter. A Crown Court study conducted for Royal Commission on Criminal Justice
found that over 85% of prosecution and defense barristers and 67% of the judges thought that
the Turner rules should be reformed to permit more realistic discussions of plea and sentence. 77
The Royal Commission itself recommended that Judges should be able to indicate to defense
counsel the highest sentence they would impose in response to guilty plea at the point at which
the discussion was taking place.78
However, one can say that the success of plea bargaining can be ensured by incorporating
charge bargaining in Code of Civil Procedure. That is because, the absence of charge
bargaining acts as a detriment for the defendants. As discussed earlier, entering into sentence
negotiation is risky for the defendant, given the high number of acquittals in India. However, if
charge bargaining could be incorporated in Cr.P.C, then the scenario could change. That is
because, charge bargaining is more acceptable for the defendant than sentence bargaining.
There are several reasons behind that.
Firstly, because pleading guilty to a lesser charge can subject the defendant to a lesser sentence
rather than a sentence bargaining itself. For example: if defendant (D) is charged for both theft
74
Plea Bargaining in England Author(s): Philip A. Thomas Source: The Journal of Criminal Law and Criminology
(1973-), Vol. 69, No. 2 (Summer, 1978), pp. 170-178
75
Id at page 176.
76
Stephanos Bibas, Plea Bargaining outside the Shadow of Trial 117 HARVARD LAW REVIEW 2471 (2004).
77
Zander and Henderson, Crown Court Study, prepared for Royal Commission on Criminal Justice, London 1993,
quoted in SumanRai, Law Relating to Plea Bargaining, Orient Publishing Company (2007), at58
78
Report of the Royal Commission on Criminal Justice Cmd 2336 (London, 1993).
34
and trespass and he agrees to plead guilty to a charge of trespass, if the charge of theft against
him is dropped, then he will only be punished for trespass. However, if the defendant agrees to
plead guilty for both charges, it might happen that the sentence which is reduced is still more
than the sentence had he been only charged for trespass.79
Secondly, in many cases it happens that the prosecutor has charged the defendant for a more
serious offence, than the actual offence committed by him. In that situation, pleading guilty to
the offences which the defendant has not committed in the first place and then going for a
sentence negotiation is always detrimental for the defendant.
K. CRITICAL ANALYSIS OF RESOLUTION BARGAIN IN CANADA
In contrast to the United States, there are very few cases in which Canadian Courts have
expressed a view as to the merits or priority of prosecutorial plea bargaining or have hinted at
plea bargaining in any way. In fact the most noteworthy and significant cases concerning plea
bargaining did not take place until after 1970.80 In addition, there are even fewer guidelines
governing plea bargaining. The approach applied by the Canadian criminal justice system is
cautious. The Canadian courts have not provided a clear stamp of approval to plea bargaining.81
As a preliminary matter, judges in the Canadian criminal justice system, who are responsible for
determining the appropriate sentence to be imposed on a defendant, can under no circumstance
intimate to a defendant the sentence he will impose if the defendant agrees with the prosecutor to
plead guilty nor if the defendant decides to plead not guilty and is convicted. 82 The reason courts
prohibit participation by the judge in the plea bargaining process is to provide the defendant
complete freedom of choice to plead guilty or not guilty. Thus, it is clear that Canadian courts
addressing plea bargaining are primarily concerned with avoiding guilty pleas by defendants who
are innocent yet consider pleading guilty because of their uncertainty regarding the ultimate
disposition.
79
A Comparative Analysis of Plea Bargaining and the Subsequent Tensions with an Effective and Fair Legal
Defence Samantha Joy Cheesman, University of Szeged Faculty of Law and Political Science, 2014
80
Critical Analysis of Plea Bargaining in Canada, Canadian Criminal Justice System, P 177-199, 1982, Craig L
Boydell and Ingrid Arnet Connidis, eds. --NCJ-108176
81
Id.
82
Id. at page 186.
35
VIII. CONCLUSION-SUGGESTIONS
The core of plea bargaining criticism is that there seems to be some-thing in it for everyone -
defendant, prosecutor, defense counsel, courts, jail and prison administrators - except the victim,
society.83 Nonetheless, in recent times, plea bargaining has brought revolutionary changes in the
modern criminal justice system through the world. It has reduced a considerable load of pending
cases on trial courts. But as pointed out in this paper this concept is either new to some countries
or has inherent loopholes which need to be rectified. However, the judicial and legislative
approach as prevalent in US needs to be incorporated in Indian Legal System.
First of all, a full proof system is need of the hour in which innocents and poor do not become
prey. Trying courts can play a significant role in making this system more suitable to such class
of defendants. If the role of the court is made mandatory in every step starting from permission
via voluntary consent to the confirmation of punishment by plea bargaining, then up to some
extent the defendant may feel secure himself.
Any kind of coercion by investigating agencies or prosecution on the defendant should be

properly and actually probed into. And for this, a mechanism within the statute of plea
bargaining is to be made. The custody of defendant should not be given to police as a general
rule unless there is a true requirement of it.
The pros and cons of plea bargaining should be made to understand to defendants in their
language. The victim should be taken care of properly. If not the veto power, but at least the say
of victim must carry a fair amount of value while deciding the case by plea bargaining.84
The objections of the victim should be entertained by the court. 85 If the victim wants the case to
be decided by the fair trial citing gravity of crime and injury suffered by him, the court should
look into the substance put forward by the victim in support of his request. The victim should be
permitted to have a lawyer of his choice other than public prosecutor to put his point of view
specifically. In order to reduce a load of pending cases the alternative dispute resolution other
than plea bargaining should also be developed. Compounding of offence, Local and small courts
83
Plea Bargaining—In Indian Context, J.K. Mathur, Journal of the Indian Law Institute, Vol. 34, No. 3 (July-
September 1992), pp. 429- 442
84
Sarah N. Welling, Victim participation in Plea bargains,65 Wash. U.L.Q.301(1987),
http://openscholarship.wustl.edu/law_lawreview/vol65/iss2/2
85
Victim inputs in plea bargaining, US Department of Justice Nov 2002.
36
competent to solve the dispute through arbitration and mutual agreement should also be
encouraged. The court should strictly monitor that no such offence which is strictly and
expressly precluded by the act be allowed to be decided by plea bargaining. Even if both the
parties to a dispute are agreed to plea bargaining, it should not be permitted for heinous crimes.
After the success of plea bargaining in the USA, many nations tried this practice in their criminal
justice system either this way or that way. Though it is a very good mechanism to speed up the
justice system, it is not leak proof. Corruption, vested interest of police, prosecution, defendants
etc play a major role in plea bargaining. Different kind of force and compulsion are employed on
the defendant to convince him for plea bargaining. Similarly, habitual offenders take this system
for granted. The plea bargaining concept is very nice in the book but it is different when
implemented on the ground. It gives benefit to large numbers of defendants and also saves
money of exchequer but every person is not happy and satisfied with this concept. We need to
find the loopholes and leakage and fixing of them must be started at grass root level.
IX. BIBLIOGRAPHY
A. LAW COMMISSION REPORTS
I. 142nd Law Commission Report
II. 154th Law Commission Report
III. 177th Law Commission Report
L. STATUTES
I. Constitution of India
II. United States Constitution
III. Criminal Code of America 1806
IV. Indian Penal code 1860
V. Criminal Procedure Code, 1973
37
VI. Canada Public Prosecution Act, 1994
VII. Criminal Law (Amendment) Act, 2005.
M. CASES
 Hudson Vs. United States, 363 U.S.807

 People Vs. Griffin, Cal 2d 182 [32 Cal. Rptr 24, 383 p. 2d 432
 United States Vs. Jackson, 390 U.S. 570 (1968)
 Boykin v. Alabama, 395 US 238 (1969).
 Bordenkircher v. Hayes434 US. 357 1978.
 Santbello v. New York 434 US. 357 1978.
 R. v. Cain, Feb. 23, 1976, at 11 (Widgery, L.CJ.).
 R. v. Forde, [1923] 2 K.B. 403
 R. v. Heyes, [1950] 34 Crim. App. Page 161, 162
 Tollett v. Henderson, 411 U.S. 258, 265 (1973).
 Regina v. Agozzino, Decision of the Ontario Court of Appeal, [1970] Canadian Criminal
Cases, volume 1, pages 380-382, at page 381 ;
 Regina v. Brown, Decision of the Ontario Court of Appeal, [1972] Canadian Criminal
Cases, Second Series, pages 227-228, at page 228.
 Edwards v. The Queen, Decision of the Supreme Court of Canada, [1996] Canadian
Criminal Cases, Third Series, volume 104, pages 136-160.
 Stinchcombe v. The Queen, Decision of the Supreme Court of Canada, [1992] Canadian
Criminal Cases, Third Series, volume 68, pages 1-18.
 Lavallee v. The Queen, Decision of the Supreme Court of Canada, [1990] Canadian
Criminal Cases, Third Series, volume 55, pages 97-133
 Perkins & Pigeau V. The Queen (1976). 72, QB 1972 Cr. Reports New Series, Vol. 18, p.
93.
 Brady v. United States, 397 U.S. 742 (1970)
 McMann v. Richardson, 397 U.S. 759 (1970);
 Parker v. North Carolina, 397 U.S. 790 (1970)
38
 Vijay Moses Das v. CBI, 2010 SCC OnLine Utt 369; (2010) 69 ACC 448
 Ranbir Singh v. State, Crl. M.C. 1705/2011
 Guerrero Lugo Elvia Grissel v. State of Maharashtra, 2012 SCC OnLine Bom 6; (2012) 2
Mah LJ 369
 State of Uttar Pradesh v. Chandrika, 2000 CrLJ 384.
 Thippaswamy V. State of Karnataka, 1983 U SCC 194.
 Murlidhar Meghraj Loya V. State of Maharashtra, 1976 (3) SCC 684
 State of Uttar Pradesh v. Chandrika 2000 Cr.L.J. 384
 Kasambhai Rehmanbhai Sheikh etc. v. State of Gujarat,AIR 1980 PLR 549.
 Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat; (1980) 3. SCC 120
N. REPORTS AND JOURNAL ARTICLES
 NCRB Journal, National Crime Records Bureau New Delhi, Vol-1 (No.1) l October 2018
http://205.147.98.190/ncrb/sites/default/files/NCRB_Journal_October_2018.pdf
 “Concessional Treatment for Offenders who on their own initiatve choose to plead guilty
without any Bargaining”, 1991, available at http://lawcommissionofindia.nic.in/101-
169/Report142.pdf,
 PTI, “Pending cases go down in Supreme Court, High Courts; but see upward swing in
lower courts”, The Indian Express, October 1, 2017 available at
http://indianexpress.com/article/india/pending-cases-go-down-in-supreme-court-high-
courts-but-see-upward-swing- in-lower-courts-4869471/,
 Plea Bargaining, Black’s Law Dictionary, 8th edition, 1190 (2004).
 William Bradford Huie, “He Slew the Dreamer: My Search for the Truth About James
Earl Ray and the Murder of Martin Luther King, Jr (Revised ed.)”, 1997 available at
Montgomery: Black Belt Press, ISBN 13: 978-1- 57966-005-5, Ray pleads guilty to King
assassination, March 10 available at https://www.history.com/this-day-in-history/ray-
pleads-guilty-to-king- assassination,
 H. H. A. Cooper, Plea-Bargaining: A Comparative Analysis, 5 " New York University
Journal of International Law and Politics, 427 (1972)
 Plea Bargaining in England Author(s): Philip A. Thomas Source: The Journal of Criminal
39
Law and Criminology (1973-), Vol. 69, No. 2 (Summer, 1978), pp. 170-178
 Stephanos Bibas, Plea Bargaining outside the Shadow of Trial 117 HARVARD LAW
REVIEW 2471 (2004).
 Zander and Henderson, Crown Court Study, prepared for Royal Commission on Criminal
Justice, London 1993, quoted in SumanRai, Law Relating to Plea Bargaining, Orient
Publishing Company (2007), at58
 Report of the Royal Commission on Criminal Justice Cmd 2336 (London, 1993).
 A Comparative Analysis of Plea Bargaining and the Subsequent Tensions with an
Effective and Fair Legal Defence Samantha Joy Cheesman, University of Szeged Faculty
of Law and Political Science, 2014
 Critical Analysis of Plea Bargaining in Canada, Canadian Criminal Justice System, P
177-199, 1982, Craig L Boydell and Ingrid Arnet Connidis, eds. --NCJ-108176
 Plea Bargaining—In Indian Context, J.K. Mathur, Journal of the Indian Law Institute,
Vol. 34, No. 3 (July-September 1992), pp. 429- 442
 Sarah N. Welling, Victim participation in Plea bargains,65 Wash. U.L.Q.301(1987),
http://openscholarship.wustl.edu/law_lawreview/vol65/iss2/2
 Victim inputs in plea bargaining, US Department of Justice Nov 2002.
 David Headley pleads guilty to all 12 charges, escapes extradition, death”, March 19,
2010, available at https://www.ndtv.com/indianews/david-headley-pleads-guilty-to-all-
12-charges-escapes-extradition-death-413116
 John L. Heberling, Conviction Without Trial, Anglo American Law review (1973)
 Plea Bargaining in England Author(s): Philip A. Thomas Source: The Journal of Criminal
Law and Criminology (1973-), Vol. 69, No. 2 (Summer, 1978), pp. 170-178
 John Baldwin and Michael McConville, Plea Bargaining and Plea Negotiation in
England, 13 (2), 287, 307, Law & Society Review, (1979), available at,
http://www.jstor.org/stable/3053255
 D G Gifford, Meaningful reform of plea bargaining: The control of Prosecutorial
Discretion, 1983, U.ILL, L.REV.37, 90-95).
 Why Judges and Prosecutors Engage in Plea Bargaining by Sara J Berman,
http://www.nolo.com/legalencyclopedia/whyjudgesprosecutors-engage-plea-
40
bargaining.html
 Law Reform Commission of Canada, Criminal Procedure : Control of the Process
(Working Paper No. 15), Ottawa, Information Canada, 1975, page 45.
 Ontario Ministry of the Attorney General, Report of the Attorney General’s Advisory
Committee on Charge Screening, Disclosure, and Resolution Discussions (generally
referred to as the "Martin Report", since the committee in question was chaired by Mr. G.
Arthur Martin), 1993, page 275.
 D.W. Perras, "Plea Negotiations", The Criminal Law Quarterly, volume 22, 1979-1980,
pages 58-73, at pages 58-59,
 PLEA BARGAINING Milica Potrebic Piccinato, Department of Justice, Canada,
https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ilp-pji/pb-rpc/pb-rpc.pdf
 Ontario Ministry of the Attorney General, Report of the Attorney General’s Advisory
Committee on Charge Screening, Disclosure, and Resolution Discussions, 1993, at 365.
 The Honourable Justice Lynn Ratushny, Self Defence Review : Final Report submitted to
the Minister of Justice of Canada and to the Solicitor General of Canada, Ottawa, 11 July
1997. Available at http://canada.justice.gc.ca/en/dept/pub/sdr/rtush.html
 Attorney General of Canada v. Roy, Decision of Quebec Queen’s Bench, [1972]
Criminal Reports New Series, volume 18, pages 89-93 at page 93 ;
 Federal Prosecution Service Deskbook, "Proceedings at Trial and on Appeal", Chapter
20, pages V-20-1 to V-20-11, at page V-20-11, and Law Reform Commission of Canada,
Plea Discussions and Agreements (Working Paper 60) (Ottawa :1989), at 30.
 Dianne L. Martin, "Mandatory Minimum Sentences : Law and Policy", Osgoode Hall
Law Journal, volume 39, 2001, pages 513-527, at paragraphs 8 and 23.
 Zander, Unrepresented Defendants in Magistrates' Courts, 2017 CRIM. L. REV. 632, 639
41

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SEMINAR PAPER

PLEA BARGAINING: A COMPARATIVE ANALYSIS

UNDER THE SUPERVISION OF

MR. RENJITH THOMAS

(WINTER SEMESTER: JANUARY 2020 -MAY 2020)

NATIONAL LAW UNIVERSITY, JODHPUR

Dated: April 22, 2020

National Law University,

Dated : April 22, 2020

National Law University,

Dated: April 22, 2020

Mr. Renjith Thomas

National law University, Jodhpur

III. FORMS OF PLEA BARGAIN..................................................................................................8

C. JUDICIAL PLEA BARGAINING:-...........................................................................................9

IV. PLEA BARGAIN: UNITED STATES OF AMERICA AND JUDICIAL RESPONSE....................10

A. PROCEDURE INVOLVED IN PLEA BARGAINING IN UNITED STATES :.............................10

V. EVOLUTION OF PLEA BARGAINIG IN UNITED KINGDOM..................................................14

VI. POSITION OF LAW IN CANADA..........................................................................................17

B. RESOLUTION DISCUSSION IN TRIAL.................................................................................18

A. CANADIAN JUDICIARY ON PLEA BARGAINING................................................................19

VII. PLEA BARGAINING IN INDIA.............................................................................................23

B. VARIOUS LAW COMMISSION REPORTS FOR THE NEED OF INCORPORATING PLEA

A. 154TH REPORT OF THE LAW COMMISSION..................................................................24

B. 177TH REPORT OF THE LAW COMMISSION..................................................................24

C. THE REPORT OF THE COMMITTEE ON THE REFORM OF CRIMINAL JUSTICE SYSTEM,

C. JUDICIAL PRONOUNCEMENTS ON PLEA BARGAINING....................................................25

VIII. COMPARATIVE ANALYSIS..................................................................................................30

C. CRITICAL ANALYSIS OF PLEA BARGAINING IN UK........................................................33

D. CRITICAL ANALYSIS OF RESOLUTION BARGAIN IN CANADA..........................................35

A. LAW COMMISSION REPORTS............................................................................................37

D. REPORTS AND JOURNAL ARTICLES..................................................................................39

II. FORMS OF PLEA BARGAIN

C. JUDICIAL PLEA BARGAINING:-

III. PLEA BARGAIN: UNITED STATES OF AMERICA AND JUDICIAL RESPONSE

A. PROCEDURE INVOLVED IN PLEA BARGAINING IN UNITED STATES :

(1) A knowing waiver of rights;

D. JUDICIAL PRONOUNCEMENTS IN PLEA BARGAINING IN THE UNITED STATES:

A. HUDSON VS. UNITED STATES7

B. PEOPLE VS. GRIFFIN

C. UNITED STATES VS. JACKSON

F. SANTBELLO V. NEW YORK

IV. EVOLUTION OF PLEA BARGAINIG IN UNITED KINGDOM

V. POSITION OF LAW IN CANADA

F. RESOLUTION DISCUSSION IN TRIAL

Resolution discussions embrace several practices, including charge discussions, procedural

A. CANADIAN JUDICIARY ON PLEA BARGAINING

G. VARIOUS LAW COMMISSION REPORTS FOR THE NEED OF INCORPORATING PLEA

A. 154TH REPORT OF THE LAW COMMISSION

G. 177TH REPORT OF THE LAW COMMISSION

H. JUDICIAL PRONOUNCEMENTS ON PLEA BARGAINING

VII. COMPARATIVE ANALYSIS

A. PLEA BARGAINING AMERICAN MODEL VS INDIAN MODEL

J. CRITICAL ANALYSIS OF PLEA BARGAINING IN UK

K. CRITICAL ANALYSIS OF RESOLUTION BARGAIN IN CANADA

Any kind of coercion by investigating agencies or prosecution on the defendant should be

A. LAW COMMISSION REPORTS

I. 142nd Law Commission Report

II. 154th Law Commission Report

III. 177th Law Commission Report

II. United States Constitution

III. Criminal Code of America 1806

IV. Indian Penal code 1860