RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA, PUNJAB

The Project Submitted in Fulfilment of B.A.L.L.B. (Hons.), Eighth

Semester

TOPIC:
Plea Bargaining: An instrument of Speedy Justice

Submitted to: Submitted by:

Dr. Ivneet Walia Priyansh Sharan
Roll no. 15021
Group – 2
B.A.L.L.B (Hons.) 4th Year
 Contents: -

Introduction: -................................................................................................................3

Plea Bargaining..............................................................................................................5
Definition:..................................................................................................................5
History of Plea Bargaining:........................................................................................6
Types of Plea Bargaining...........................................................................................6

Plea Bargaining in India.................................................................................................8

Salient Features:.........................................................................................................9
Procedure of Plea Bargaining...................................................................................11

Plea Bargaining in other countries...............................................................................13

USA:.........................................................................................................................13
UK:...........................................................................................................................14
France.......................................................................................................................15

Advantages and Disadvantages of Plea Bargaining:...................................................16

Conclusion:..................................................................................................................19

References: -................................................................................................................20

2
 Introduction: -

The plea bargain (also plea agreement or plea deal) is any agreement in a criminal
case between the prosecutor and defendant whereby the defendant agrees to plead
guilty or nolo contendere to a particular charge in return for some concession from
the prosecutor. This may mean that the defendant will plead guilty to a less serious
charge, or to one of the several charges, in return for the dismissal of other charges; or
it may mean that the defendant will plead guilty to the original criminal charge in
return for a more lenient sentence.1

A plea bargain allows both parties to avoid a lengthy criminal trial and may allow
criminal defendants to avoid the risk of conviction at trial on a more serious charge.
For example, in the U.S. legal system, a criminal defendant charged with a felony
theft charge, the conviction of which would require imprisonment in state prison, may
be offered the opportunity to plead guilty to a misdemeanour theft charge, which may
not carry a custodial sentence.

In cases such as an automobile collision when there is a potential for civil liability
against the defendant, the defendant may agree to plead no contest or "guilty with a
civil reservation", which essentially is a guilty plea without admitting civil liability.

A new chapter, that is Chapter XXI1 on Plea Bargaining has been introduced in the
Criminal Procedure Code. It was introduced through the Criminal Law (Amendment)
Act, 2005, which was passed by the Parliament in its winter session.

Plea bargaining can present a dilemma to defence attorneys, in that they must choose
between vigorously seeking a good deal for their present client, or maintaining a good
relationship with the prosecutor for the sake of helping future clients. However,
defence attorneys are required by the ethics of the bar to defend the present client's
interests over the interests of others. Violation of this rule may result in disciplinary
sanctions being imposed against the defence attorney by the appropriate state's bar
association.2

1
Garner, Bryan A., ed. (2000). Black's law dictionary (7th ed.). St. Paul, Minn.: West Group. p. 1173.
ISBN 978-0-314-24077-4
2
Luna, Erik (Fall 2007). "Bargaining in the Shadow of the Law-The Relationship between Plea
Bargaining and Criminal Code Structure". Marquette Law Review (91): 263–294

3
In charge bargaining, defendants plead guilty to a less serious crime than the original
charge. In count bargaining, they plead guilty to a subset of multiple original charges.
In sentence bargaining, they plead guilty agreeing in advance what sentence will be
given; however, this sentence can still be denied by the judge. In fact, bargaining,
defendants plead guilty but the prosecutor agrees to stipulate (i.e., to affirm or
concede) certain facts that will affect how the defendant is punished under the
sentencing guidelines.3

As a society we have high expectations for our courts, and when they are not met, as
inevitably they will not be, we are disappointed. No doubt disappointment serves as
an important stimulus for change, but it can also lead to exaggeration and
misdiagnosis. An exaggerated sense of urgency can easily lead to misunderstanding
and superficial analysis, lacking in perspective and context. In the concern with the
practice of plea bargaining, something of this distortion has taken place.

Statistics as regards the criminal justice system in India reveals that thousands of
undertrial prisoners are languishing in prisons throughout India. As per the National
Crime Records Bureau in 2011, the number of inmates housed in jails was almost
50,000 more than their capacity. It was estimated that 65.1% of all inmates were
undertrials and of these 0.6% had been detained in jail for more than five years at the
end of 2011.4

Thus the courts have resulted in the informal system of pre-trial bargaining and
settlement in some western countries, especially in United States. The system is
commonly known as “plea bargaining”. A suspect may be advised to admit part or all
the crime charged in return for a specified punishment or rather than await trial with
the possibility of either acquittal or a more serious punishment. Plea bargaining as
most criminal justice reformers believe, is more suitable, flexible and better fitted to
the needs to the society, as it might be helpful in recurring admissions in cases where
it might be difficult to prove the charge laid against the accused.5

3
Bawden, Tom (28 November 2000). "Analysis: the Natwest Three plea bargain". The Times.
4
http://ncrb.nic.in/
5
Justice Pasayat A., “Plea Bargaining,” 5 Nyaya Deep, National Legal Services Authority, vol. VIII,
(2007) 5 Police,

4
 Plea Bargaining

Definition:

There is no perfect or simple definition of plea bargaining. As the term implies, plea
bargaining involves an active negotiation process whereby an offender is allowed
confess his guilt in court (if he so desires) in exchange of a lighter punishment that
would have been given for such an offence.

Black’s Law Dictionary defines it as:

“The process whereby the accused and the prosecutor in criminal case work out a
mutually satisfactory disposition of the case Subject to the Court approval. It usually
involves the accused pleading guilty to a lesser offence or to only one or some of the
courts of a multi-count indictment in return for a lighter than that possible for the
graver charge.”6

From the point of view of the accused, it means that he trades conviction and a lesser
sentence, for a long, expensive and tortuous process of undergoing trial where he may
be convicted. In practice, it represents not so much of “mutual satisfaction” as
perhaps “mutual acknowledgement” of the strengths or weaknesses of both the
charges and the defenses, against a backdrop of crowded criminal courts and court
case dockets. Thus, it involves an active negotiation process by which the accused
offers to exchange a plea of guilty, thereby waiving his right to trial, for some
concessions in charges or for a sentence reduction.7

There are three types of pleas:

not guilty, guilty, nolo contendere8

6
8th edition, 1190 (2004)
7
Rao K. S. & Panaji M., “Alternative Dispute Resolution in Criminal Jurisprudence,” 263 Cr. L J Sept.
(2009)
8
Criminal Procedure: An Analysis of Constitutional Cases and Concepts, 407-408 (1987)

5
If an accused refuse to plead, the court enters a plea of not guilty. Plea bargaining
refers to pre-trial negotiations between the defendant, usually conducted by the
counsel and the prosecution, during which the defendant agrees to plead guilty in
exchange for certain concessions by the prosecutor.

History of Plea Bargaining:

The practice of “Plea-bargaining” in America goes back a century or more. One study
found it, for example, in Alameda County, California, in about the 1880s. Judges in
the County even talked about the way they gave credit for guilty pleas.

“Plea-bargaining” was not as pervasive as it is now. Not even close to it, but it was by
no means rare. Extent of prevalence—Entering a guilty plea is greatly prevalent in
many American States.

In 1839, in New York State, one out of every four criminal cases ended with a guilty
plea. By the middle of the century, one out of three felony defendants pleaded guilty.
In 1920s guilty pleas accounted for 88 out of 100 convictions in New York City, 85
out of 100 in Chicago, 70 out of 100 in Dallas and 79 out of 100 in Des Moines,
Iowa. It has kept its dominance ever since. In short, one can trace a steady and
marked decline in number of trials by jury in America from the early 19th century
on.9

Types of Plea Bargaining

Plea bargaining can mainly be classified into three types:

Charge Bargaining

This is common and widely known form of plea. It involves a negotiation of the
specific charges (counts) or crimes that the defendants will face at trial. Usually, in
return for a plea of ‘guilty’ to a lesser charge, a prosecutor will dismiss the higher or
other charge(s) counts.

9
Ibid

6
Sentence Bargaining

Sentence bargaining involves the agreement to a plea of guilty (for the sated charge
rather than a reduced charge) in return for a lighter sentence. It sources the
prosecution the necessity of going through trial and proving its case. It provides the
defendant with an opportunity for a lighter sentence.

Fact Bargaining

The least used negotiation involves an admission to certain facts (“stipulating” to the
truth and existence of provable facts, thereby eliminating the need for the prosecutor
to have to prove them) in return for an agreement not to introduce certain other facts
into evidence.10

10
Rai S, Law relating to Plea bargaining, 47 Orient Publishing Company, New Delhi, Allahabad, Ist
ed. (2007)

7
 Plea Bargaining in India

Plea bargaining in the Indian criminal procedure is different in its purpose and detail.
Desire to reduce the pendency of criminal cases prompted the Indian law makers to
give plea bargaining a try. Compensation to victim of crime by the accused is the
extraordinary feature of plea bargaining in India.

It is expected that 50 thousands out of 28.3 millions criminal cases pending trial
would be disposed of through the process of plea bargaining. Unlike in American
system, plea bargaining cannot be resorted to settle all types of crimes in India. Only
sentence bargaining is allowed as per the provisions of plea bargaining in the Indian
Code of Criminal Procedure.11

The 154th Report of the Law commission first recommendation the introduction of
Plea Bargaining as an alternative method to deal with huge arrears of criminal cases.
This recommendation of the Law Committee finally found a support in “Malimath
Committee Report”.

The NDA government had formed a committee, headed by the former Chief Justice
of the Karnataka and Kerala High Court, Justice V.S. Malimathto come up with some
suggestions to tackle the ever growing number of criminal cases. In its Report, the
Malimath Committee recommended that a system of Plea Bargaining be introduced in
the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases
and to reduce the burden of the courts. To strengthen its case, the Malimath
Committee also pointed out the success of Plea Bargaining system in U.S.A.

The government found it acceptable and finally Section 265A – 265L, have added in
the Code of Criminal Procedure so as to provide for raising the Plea Bargaining in
certain types of criminal cases.12

11
Dervan, Lucian E.; Edkins, Vanessa A. (2013). "The Innocent Defendant's Dilemma: An Innovative
Empirical Study of Plea Bargaining's Innocence Problem". J. Crim. Law Criminol. 103 (1): 1
12
Jha V. K. , ”To plea or not to plea : should plea bargaining be adopted in India,” 32 Indian Bar
Review, vol. 28 (1) 2001

8
In India, the concept of Plea Bargaining was not recognized by courts and it was
considered to be against the public policy.

In Murlidhar Meghraj Loya v. State of Maharashtra; the court held that-

“It is idle to speculate on the virtue of negotiated settlements of criminal cases, as

obtains in the United States but in our jurisdiction, 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.”

In this case, the Supreme Court observed that a streamlined procedure should be
devised if the state was to administer justice by having recourse to plea bargaining.13

In Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat; the court held that-

“the practice of Plea Bargaining was unconstitutional, illegal and would tend to
encourage corruption, collusion and pollute the pure fount of justice.”14

In Uttar Pradesh v. Chandrika, the court held that-

“it is settled law that on the basis of plea bargaining Court cannot dispose of the
criminal cases. 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 sentence be reduced.”15

Keeping in view the huge arrears and inordinate delays in disposal of criminal cases
and on the recommendations of the Malimath Committee, chapter XXI-A of Plea
Bargaining was added to the Code of Criminal Procedure.

Salient Features:

The Criminal Law (Amendment) Act, 2005, which was passed in the winter session
of the Parliament, has introduced plea bargaining in India, embodied in the Chapter
XXIA of Code of Criminal Procedure. A notification has been issued which gives
effect to the new provision, which has come into effect since 5th July, 2006.16

13
AIR 1976 SC 1929
14
(1980) 3 SCC 120
15
AIR 2000 SC 164
16
Majumdar A., “Plea bargaining- Guilty. But of a lesser Offence,”
http://news.indlaw.com/uk/focusdetails.asp?ID=77

9
The salient features of the provisions are

1. The plea bargaining is applicable only in the respect of those offences for which
punishment of imprisonment is upto seven years;17

2. It does not apply where offences that affect the socio-economic condition of the
country or has been committed against a woman or a child blow the age of 14 years;18

3. The application for plea bargaining should be filed by the accused voluntarily;19

4. A person accused of an offence may file an application for plea bargaining in the
court in which such offence is pending for trial;20

5. Once the court is convinced that the accused is participating in the plea bargain
voluntarily, it will allow time to both parties to reach mutually satisfactory
disposition, which may include giving to the victim by the accused, compensation and
other expenses incurred during the case;21

6. Where a satisfactory disposition of the case has been worked out, the Court shall
dispose of the case by sentencing the accused to one-fourth of the punishment
provided or extendable, as the case may be for such offence;22

7. The statement or facts stated by an accused in an application for plea bargaining

shall not be used for any other purpose other than for plea bargaining;

8. The judgment delivered by the Court in the case of plea bargaining shall be final
and no separate appeal shall lie in any court against such judgment (except the special
leave petition under article 132 and writ petition under articles 226 and 227 of the
Constitution).

If the accused is a first time offender, the court will have the option of releasing
him/her on probation. Alternatively, the court may grant half the minimum
punishment for the particular offence.23

Procedure of Plea Bargaining

17
Sec - 265A, CrPC
18
Ibid
19
S. 265-B, 4 (a)
20
Ibid
21
S. 265-E (a)
22
S. 265-E (d)
23
S. 265-E (b)

10
Application stage
1. If an accused wish to plead guilty voluntarily under the aforementioned provisions,
he may move an application to the concerned court with the details of his case
supported by an affidavit declaring that:
a) he is presenting the application voluntarily and
b) he understands the nature of sentence and
c) he has also to declare that he is not a previous convict for the same offence.
2. On receipt of application and affidavit from the accused, the trial court shall issue
the notice to public prosecutor or the complainant, as the case may be, and to the
accused to appear on the date fixed for the case.
3. The court shall examine the accused in camera and satisfy himself that the accused
has given his application voluntarily and he is eligible for presenting such application.
4. If the court finds that the accused has not given his application voluntarily or he has
been convicted earlier for the same offence then the application shall be rejected and
the case shall be sent back for regular trial.
Guidelines for Mutually Satisfactory Disposition
S. 265(C) of the Code of Criminal Procedure provides following procedures for
the mutually satisfactory disposition under section 265(B)(4)(a) :-
(i) In a case instituted on a Police Report:
The court shall issue notice to the Public Prosecutor, investigating officer, the accused
and the victim of the case to participate in the meeting to work out a satisfactory
disposition. Pleader of the accused may be allowed to participate in such a meeting.

(ii) In a case instituted otherwise than a Police Report:

The notice shall be issued to the accused and the victim of the case to participate in
the meeting to work out the satisfactory disposition of the case. Pleader of the accused
or the victim may also be permitted to participate in the meeting on the desire of the
victim or the accused.
In both the above cases the court shall ensure that the disposition is worked out
voluntarily.
Bargaining/negotiation stage
• When the court finds that:
 the accused has not been convicted earlier for the same offence and
 he is above 18 years of age and
 he understands the nature of offence and the proposed sentence,

11
• Then the court shall provide time to the public prosecutor or the complainant/victim,
as the case may be, and the accused to work out a mutually satisfactory disposition of
the case which may include giving to the victim by the accused the compensation and
other expenses and fix the date of further hearing of the case.
• For purposes of negotiation and preparing a report, the aid and help of advocate may
be taken.
Examination & report
• After receiving such report, the court shall prepare its own report and take the
signature of all the members who have taken part in such negotiation.
• If no such disposition is worked out, the court shall record such observation and
proceed further from the stage the application was filed in such case.
Judgement
Where the satisfactory disposition of the case has been worked out:
(i) The court shall award the compensation to the victim in accordance with the
disposition and after hearing of the parties on the quantum of punishment, release the
accused on probation of good conduct or after admonition U/s. 360 Cr.P.C. or deal
with the accused under the Probation of Offenders Act, 1958,
(ii) The court may sentence the accused to half of such minimum punishment
provided under the law for the offence committed by the accused, or
(iii) If minimum sentence is not provided under the Act, the court may sentence the
accused to one fourth of the punishment provided or extendable, as the case may be,
for such offence.

Plea Bargaining in other countries

USA:

It would be wrong to assume that the concept of plea bargaining found favour of
courts only in the recent past. In fact, it is used in the American Judiciary in the 19th
century itself.

12
The Bills 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. It is significant part of the criminal justice system in the
United States where 90% criminal cases are settled by plea bargaining rather than by
a jury trial. Thus less than 10% of the criminal cases go to trial.24

The system of plea bargaining in the federal system was officially recognized with the
passage of the 1974 amendments to Federal Rules of Criminal Procedure.

The rules require that a defendant’s guilty plea be made knowingly, intelligently and
voluntarily.25 These requirements are made because a guilty plea constitutes a waiver
of a defendant’s important Fifth Amendment and Sixth Amendment rights. The court
must find that a guilty plea satisfies the requirements of Rule 11.

In a landmark judgment Bordenkircher v. Hayes, 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 offer.26

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 the tort disputes between private parties also.

In Santobello v. New York, the United States Supreme Court formally accepted that
plea bargaining was essential for the administration of justice and when properly
managed, was to be encouraged. Under Federal Law, as of January 27, 2007, the
maximum a plea bargains can reduce jail sentences and fines are 50%.27

UK:

In England and Wales, the practice of judicial plea-bargaining is governed by the

principles laid down by the court of Appeal in Turner.28

24
Jha V. K. , ”To plea or not to plea : should plea bargaining be adopted in India,” 32 Indian Bar
Review, vol. 28 (1) 2001
25
Federal Rules of Criminal Procedure, Rule 11(e)
26
434 US 357 (1978)
27
404 US 260 (1971)
28
(1970) 54 Cr App R 352

13
The court held that there should be freedom of access between counsel and the Judge
but that any discussion must be between Judge and both counsel. The defendant’s
solicitor 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.

The guidelines by the Sentencing Council require that the discount it gives to the
sentence are determined by the timing of the plea and no other factors. The guidelines
state that the earlier the guilty plea is entered, the greater the discount to the sentence.

The maximum discount permitted is one third, for a plea entered at the earliest stage.
There is no minimum discount; a guilty plea entered on the first proper day of the trial
would be expected provide a discount of one tenth. The discount can sometimes
involve changing the type of punishment, such as substituting a prison sentence for
community service.29

Plea bargaining is extremely difficult in jurisdictions based on the civil law. This is
because unlike common law systems, civil law systems have no concept of plea—if
the defendant confesses; a confession is entered into evidence, but the prosecution is
not absolved of the duty to present a full case.

A court may decide that a defendant is innocent even though they presented a full
confession. Also, unlike common law systems, prosecutors in civil law countries may
have limited or no power to drop or reduce charges after a case has been filed, and in
some countries their power to drop or reduce charges before a case has been filed is
limited, making plea bargaining impossible.

However, some countries have introduced Plea Bargaining in their systems:

France

The introduction of a limited form of plea bargaining (comparution sur

reconnaissance préalable de culpabilité or CRPC, often summarized as plaider
coupable) in 2004 was highly controversial in France. In this system, the public
prosecutor could propose to suspects of relatively minor crimes a penalty not
exceeding one year in prison; the deal, if accepted, had to be accepted by a judge.

29
"Reduction in Sentence for a Guilty Plea". Sentencing Council. 1 June 2017. Archived (PDF) from
the original on 8 May 2018

14
Opponents, usually lawyers and leftist political parties, argued that plea bargaining
would greatly infringe on the rights of defense, the long-standing constitutional right
of presumption of innocence, the rights of suspects in police custody, and the right to
a fair trial.

For instance, Robert Badinter argued that plea bargaining would give too much power
to the public prosecutor and would encourage defendants to accept a sentence only to
avoid the risk of a bigger sentence in a trial, even if they did not really deserve it.

Only a minority of criminal cases are settled by that method: in 2009, 77,500 out of
the 673,700 or 11.5% of the decisions by the correctional courts.30

Advantages and Disadvantages of Plea Bargaining:

Advantages:
 Speedy justice

The Indian judiciary at present is overburdened and underfunded. There are number
of cases in the Courts at the moment which will perhaps take years to reach a
decision. Resorting to plea bargaining would provide a relatively quick, efficient
method of handling large caseload.

 Low cost

30
"Les chiffres-clés de la Justice" (PDF). Ministére de la Justice. October 2016. Archived (PDF) from
the original on 19 October 2017.

15
A large amount of money along with the time is spent on preparing for the arguments
in the Court only to find that other party is seeking extension of date of hearing.
Thereby, the money spent in preparation will become a waste. On the other hand, plea
bargaining would help to eliminate this problem.

 Adequate allocation of resources

Another justification of plea bargaining is that it allows for the most efficient
allocation of resources. "The bargain is recognized explicitly as a transaction in which
unrelated objectives of the defendant and the State are served. The defendant wants to
minimize his punishment, wholly without regard to its possible benefit to society or
himself.31

 Alternative Dispute Resolution

A second view treats plea bargaining, not primarily as a sentencing device, but as a
form of dispute resolution. Some plea bargaining advocates maintain that it is
desirable to afford the accused and the State the option of compromising factual and
legal disputes.

 Easy release from Jail

An accused who is held in custody and does not qualify for release on his own
recognizance or who either does not have the right to bail or cannot afford bail may
get out of jail immediately following the judge’s acceptance of a plea. Depending on
the offence, the accused may get out altogether, on probation, with or without some
community service obligations.

 Quick disposal of cases

A trial is usually requires a much longer wait and causes much more stress than
taking a plea bargain.

Disadvantages:

Critics of plea bargaining, refuse to acknowledge its inevitability and instead argue its
many disadvantages. A central argument against plea bargaining is that it is
detrimental to the innocent defendant.

31
De S., “Plea Bargaining: A New Path in Criminal Justice System,” 171 Cr.LJ (2011)

16
It is argued that plea bargaining not only under mines the public image of the criminal
justice system but also subverts many of its values and erodes the values of
presumption of innocence and the right to trial.

The quick disposition of cases through plea bargaining may conserve judicial
resources but the problem is that it allows guilty defendants to obtain unwarranted
reductions in sentences by threatening an overworked system with requiring a time-
consuming and pointless trial.

 Unjust Sentencing

This practice turns the accused's fate on a single tactical decision, which they say, is
irrelevant to desert, deterrence, or any other proper objective of criminal proceedings.
Some critics maintain that plea bargaining results in unwarranted leniency for
offenders and that it promotes arsenical view of the legal process.

 Legal issues

Critics stress that plea bargaining circumvents the standards of proof and due process
imposed in trials. The defendant is encouraged to waive hi constitutional right to trial
in lieu of receiving a harsher sentence at trial.

The defendant also waives his privilege against self-incrimination and the right to
confront adverse witnesses. These breeds contempt and resentment instead of remorse
and resolve-on the part of the defendant and undermines the justice system's
credibility and legitimacy in the eyes of the public.

 Scope of disparity in sentencing

Plea bargaining also results in leniency of sentencing. Critics argue that plea
bargaining not only results in less severe sentences but also greater sentencing
disparity, which tends to undermine the entire criminal system.

Critics insist that plea bargaining and the resulting leniency allows the criminal to
escape full punishment. A plea of guilt based on plea bargaining, as it would be
opposed to public policy, if an accused were to be convicted by inducing him to plead
guilty, by holding out a light sentence as an allurement.32

32
Justice Sikri A.K. & Ms. Arora S., “ Plea Bargaining- A New Form of ADR in Criminal Cases,” 22
Punjabi University Law Journal, vol 1, (2007)

17
 Conclusion:

Plea bargaining is undoubtedly, has become a critique in the minds of jurists. Few
people have welcomed it while others have abandoned it. It is true that plea
bargaining speeds up caseload disposition, but it does that in an unconstitutional
manner. But perhaps we have no other choice but to adopt this technique.

The criminal courts are too overburdened to allow each and every case to go on trial.
Only time will tell that the introduction of this new concept is justified or not.

Thus presently this concept of plea bargaining has not found place in the heart of
judges because there are hardly few cases where this concept of plea bargaining has

18
been taken but one way or other higher courts have not given proper attention in this
regard.

The reasons that are cited for the introduction of plea-bargaining include the
tremendous overcrowding of jails, high rates of acquittal, torture undergone by
prisoners awaiting trial, etc. can all be traced back to one major factor, and that is
delay in the trial process.

Since one reason for overburdened dockets in the United States was the nature of jury
trials, the experience of some jurisdictions suggested that shortening the trial period
could solve the problem. In India, the reason behind delay in trials can be traced to
the operation of the investigative agencies as well as the judiciary.

Expanding the list of compoundable offences is not a wise option and what is
actually needed is not a substitute for trial but an overhaul of the system, in terms of
structure, composition as well as work culture to ensure reasonably swift trials. If then
the trial procedure itself proves to be too long drawn out and unmanageable, then one
may think of launching an alternative to trial.

Therefore, reformation of the existing system may be a more prudent approach rather
than introducing a parallel arrangement (as recommended by the Law Commission)
or supplementing the present arrangement (as suggested by the Act).

19
 References: -

 Garner, Bryan A., ed. (2000). Black's law dictionary (7th ed.). St. Paul, Minn.:
West Group. p. 1173. ISBN 978-0-314-24077-4

 De S., “Plea Bargaining: A New Path in Criminal Justice System,” 171 Cr.LJ
(2011)

 The Criminal Law (Amendment) Act, 2005

 Dervan, Lucian E.; Edkins, Vanessa A. (2013). "The Innocent Defendant's

Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence
Problem". J. Crim. Law Criminol. 103 (1): 1.

 "Reduction in Sentence for a Guilty Plea", Sentencing Council. 1 June 2017.

 Bharucha C.J.: Speech Delivered in Kerala organized by the Bar Council of India
and Bar Council of Kerala Published in India Bar Review Vol XX VII (4) 2001

 Palkhivala Nani A., We the nation- lost decades 215- 216. UBS Publishers
Distributors (1994).

 Justice Sikri A.K. & Ms. Arora S., “Plea Bargaining- A New Form of ADR in
Criminal Cases,” 22 Punjabi University Law Journal, vol 1, (2007).

 Dr. Nagpal V. & Singh K.P., “Plea Bargaining in India: A Critique,” 14 Panjab
University Law Review, vol 1, (2007)

 Guidoroizzi D.D., “Should We Really “Ban” Plea Bargaining? : The Core

Concerns of Plea Bargaining Critics” 47 Emory L.J. (1998)

20