INTRODUCTION

Plea Bargaining is defined under Blacks Law Dictionary as “A negotiated agreement

between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a
lesser offence or to one of multiple charges in exchange for some concession by the
prosecutor, usually a more lenient sentence or a dismissal of the negotiated charges”. Hence
plea bargaining is when a defendant pleads guilty for a crime and try to negotiate for lesser
charges or sentence. This process is initiated by the defendant and is voluntary with the
consent of both the parties involved. The concept of Plea Bargaining has always been in
discussion since 1970s. The development of concept of Plea Bargaining can be traced even
ancient India in Manu Smriti which states that concept of lesser punishment or pardon if
pleaded guilty. Although, initially in the 18th century the judge use to dominate the trial and
the lawyers had limited role to play and hence the justice delivery was fast and hence there
was no need to concept like plea bargaining. But with time the Judicial system changed and
factor like backlog of cases, overcrowding, to maintain peace & order and to have better
redressal mechanism created need to introduce the concept of Plea Bargaining. In the 142nd
Law Commission in India for the first time lad down certain guideline for the plea bargaining
which are as follows:
1. The offender himself can only invoke the Scheme.
2. Only competent authority will be a ‘plea judge’ in the cases.
3. The application for plea bargaining should be made knowingly and voluntarily.
4. Case been charged having maximum imprisonment for 7 years or less are only
qualified for plea bargaining. (incorporated under section 265A of Code of Criminal
Procedure, 1873.)
5. Courts have power to impose fine with imprisonment if felt necessary.

Followed by the 142nd law commission, law commission 154th report suggested certain
amendments to the process of plea bargaining that were – a written application should be
given by the accused to the court & the court should take suo moto action to ascertain the
willingness of the accused. The court can reject the application if did not find it fit. The order
of plea bargaining should be confidential and should be given to accused only if he is wiling
or desire so. The Mlimath Committee also made a major contribution in developing the
concept of plea bargaining as a result of which criminal Amendment bill 2003 was
introduced. As a result the concept of Plea Bargaining finally incorporated under the Indian
Criminal Law under chapter 29 of Cr. PC in 2005. Even if Indian model is derived from the
American Model but still there are significant difference between the two.

THE CONCEPT OF PLEA BARGAINING UNDER INDIAN LAW :

The concept of Plea Bargaining was formally introduced via an amendment of 2005 under the
head of chapter XXIA from section 265A to 265L of Criminal Procedure Code, 1973. But the
idea of Plea Bargaining was first brought in light via 154 th law commission report for the
reason of providing speedy Justice. Later, based on the recommendation made by Malimath
Committee finally in 2006 amendments were made in IPC 1860, Indian Evidence Ac, 1892
and Code of Criminal Procedure, 1973.
In India there are two type of plea bargaining:
1. Sentence bargaining: the accused plead guilty and demands for lesser imprisonment
or lighter sentence.
2. Change bargaining: under this accused plead guilty in return of getting lighter
charge. The difference B/w the sentence and charge bargaining s that sentence
bargaining is done at the stage to pronouncement of sentence and the charge
bargaining is done at the stage of framing of charges.

A question arose that is Plea Bargaining violative of Article 21 of the Indian Constitution?
Hence, Hon’ble Justice P.N. Bhagwati in the case of Thippaswami v. State of Karnataka
observed that: “it would be violative of Article 21 of the Constitution of India to induce or
lead an accused into pleading guilty on the promise that he would be given only a lighter
punishment and in appeal revision, to enhance the sentence”.
In the case of State of Gujarat v. Natwar Harchanji Thakor, 2005 Hon’ble court for the
first time highlighted the main object of the Plea bargaining that it provides easy, expeditious
and cheap Justice or resolution patterns. Also, it is an effective remedy for dealing with the
pendency & delay in disposal of cases. Hence, plea bargaining is really gives a new
dimension in criminal administration of justice.
In the case of Vijay Moses Das v CBI, in this case the CBI find no objection for the plea
Bargaining but the court rejected the plea of Plea Bargaining as the defendant did not filed a
affidavit for the same u/s 265B. As a result the plea bargaining was rejected by the court.
Also, in the judgment of Sakharam Banderkar, the CBI opposed the plea of Plea Bargaining
on the ground that it can’t be done in serious offences. The court also did not allowed the
plea.
The concept of plea Bargain also faced some challenges in India while its development that
can be traced in the case of Jeetu v. State of Chhatisgarh (2013), in this case it was held
that : if the accused person do mere acceptance of guilt it did not qualifies him to get lesser
punishment. Also it is against the concept of fair trial as the defendant does not get fair
chance to defend himself.
In the case of Rahul Kumpawat v. UOI, the trial court denied the plea of Plea Bargaining,
which was subsequently challenge in the HC of Rajasthan and the contention from the side of
appellant was that the basic spirit of Section 265A of Cr.PC is to ensure speedy Justice and to
minimise the time of criminal trial. Hence this order of the trial court has abused the very
essence of this section. The Hon’ble High Court of Rajasthan also agreed to the contention
and hence allowed the application of Plea Bargaining.

PLEA BARGAINING IN UNITED STATE OF AMERICA:

In America the concept of plea bargaining was first introduced by the case of Santebello v.
New York (1971). After this case there was no bond on the cases of plea bargaining. In USA
now the 90% of the criminal cases are resolved through the Plea Bargaining. Although, the 6 th
Amendment of US constitution itself do not recognize the concept of plea bargaining. In
America plea bargaining is also called and plea of nolo contendere i.e. a person is not willing
to contest his case. In this the person accused made an implied confession in front of the court
and it is like a agreement b/w the person accused and the government not consider the guilt of
such person later. Rule 11(c) Federal Rules of Criminal Procedure & Standards of the ABA
states that it must be voluntary. Tough there are different types of agreement in plea
bargaining cases that are binding and non-binding agreement. For entering into the plea
bargaining agreement the defendant need to understand following conditions:
1. The nature of the charge for which the plea is filed.
2. What could be the maximum penalty for the offence.
3. What is the mandatory minimum penalty provided by the law.
4. It should be voluntary and the defendant should have right to not plead guilty.
5. Also, by pleading guilty he waives his the right to trial.

But later the turning point in the jurisprudence came in play in the case of Lott v. United
State, the court held that accepting the application of nolo contendere doesn’t establish the
guilt of the accused. As per Rule 11(f) Federal Rules of Criminal Procedure & Standards of
the ABA states that the Judge should determine that there should be facts sufficient to support
the guilt of the accused if not then the plea cannot be allowed. In the case of North Corolina
v. Alford, it was held by the US Supreme Court that the factual basis condition for approval
of plea bargaining is not binding under the constitution of US but it should be observed
whenever possible. Once the application for plea bargaining is submitted it results into waiver
of constitutional right.
Under the United State there are four type of bargaining:
1. Charge bargaining.
2. Sentence bargaining
3. Fact bargaining
4. Expressed bargaining

Even being in trend in America the concept of Plea Bargaining face certain issues like it is
choosing between two evils. But, in the case of Brady v. United State it was held by the court
that solely because of the reason that this agreement of plea barraging is done because of fear
of greater punishment of evil it cannot be held illegitimate or unfair.

COMPARATIVE ANALYSIS OF INDIA & USA

The concept of Plea Bargaining in Indian is inspired and derived from the trend in US and it
is also true to certain extent, however, there still exists some differences between the two
countries that are as follow:
1. In India there is a classification made based on which category of cases are eligible to
decide through the plea bargaining i.e. only the case having imprisonment for 7 years
or less. But in the United State of America there is no such classification and all type
of criminal cases can be tried through Plea Bargaining. Hence, in US it doesn’t
depend on the factor that which type of offence accused is charged of.
2. In India for negotiation in cases of plea bargaining the defendant has to file an
affidavit and then the process move forward by the court. Where else in the United
State this negotiation happen only between the defendant and prosecution. This
strategy followed in India itself minimise the very purpose of plea bargaining
3. In India court decide the application is admissible and whether the case is fit for plea
bargaining or not. But can also review that the punishment given in plea bargaining is
satisfactory and if found unfair court can set aside it. Where as this is not the same in
United States.
Hence it can be seen that the concept of plea barraging in the USA and India is
essentially he sane but still have some difference as well.