CHAPTER -VII

CONCLUSION AND SUGGESTIONS

7.1 Conclusion
The primary responsibility of the State is to maintain law and order so that
citizens can enjoy peace and security. The State discharges the obligation to protect life
and liberty of the citizens by taking suitable preventive and punitive measures by
following fair trial and if found guilty to punish him. The system followed in India for
dispensation of criminal justice is the adversarial system of common law. Over the years
taking advantage of several lacunae in the present system of justice delivery, large
numbers of criminals are escaping convictions. Even though the speedy justice is the goal
of the Indian Constitution, the Indian judiciary is facing a major problem that is delay in
justice. An ever increasing number of litigations have overburdened the courts from all
corners. It has affected Indian criminal justice which has resulted in delayed justice.
Delay during investigation, lack of public cooperation, delays during trial, absence of a
system of day to day hearing is all the reasons for delay in criminal justice in India.
To administer the rule of law and to ensure speedy justice certain necessary steps
need to be taken by the State. When a system fails to deliver justice, generally it looks
towards the merits of other legal systems. The need for finding alternative methods to
provide justice arises due to the working of the present system of administration of justice
which is crumbling under the weight of pending cases. Many concepts and processes
have been imbibed from legal systems of the other countries, with the aim of speedy
disposal of cases. Plea bargaining is one amongst those processes borrowed from
American legal system to achieve the goal of speedy justice in which accused plead
guilty in return for the promise of lesser sentence. In America, from the last 150 years it
is a most successful process, where in more than 90 percent of criminal cases are solved
by adopting plea bargaining method rather than by jury trial.
Throughout the American history the law has afforded increasing dignity to
persons accused of crime. The history of plea negotiation however is a history of
mounting pressure for self- incrimination. During the last decade of 19th Century,
American felony courts use to conduct half a dozen trial in a day and Old Bailey Jury had
 277

been able to resolve more than ten cases in a day, but it contrasts dramatically with eight
days that on average felony Jury trial required in Los Angeles in 1968. The rapid trials of
the past plainly lacked safeguards that we consider essential today.1
Today the situation is reversed. Methods of proof are far more formal, more
expensive and more time consuming than in ancient American justice delivery system
and elaboration of safeguards for the trial process has produced enormous pressure for
plea bargaining. As a consequence, accusatory system has become more dependent on
proving guilt from the accused’s own mouth than any European “inquisitorial” system.
The growing complexity of the trial process along with urbanization, increased crime
rates, expansion of the substantive criminal law, are the factors that contributed to the
development of today’s regime of plea bargaining. At the initial stage guilty pleas were
discouraged and litigation was thought “the safest test of justice”.
The view advanced by the American Supreme Court 150 years ago that “a man
may not barter way his life or freedom or his substantial rights” is disparaged by the same
Supreme Court today. Today as many as 90% of all criminal cases are disposed of
through guilty plea and most of these are a result of plea bargaining between the
prosecution and the defence, in which former makes charge or sentence concessions in
exchange for a plea of guilt. In America, the plea bargaining and the access to effective
legal counsel have become truly intertwined with respect to ensuring a fair trial. The
United States of America has focused upon fairness in plea bargaining by considering
whether accused had adequate legal advice, when they considered accepting the plea
bargaining. In addition to this, if the accused rejected the plea offer on the basis of
ineffective legal counsel, then the accused may have recourse to have their case reopened
and the plea reoffered to them.
Plea bargaining is unregulated in the United Kingdom. There is a general distaste
towards plea bargaining practices as it erodes the principles of an adversarial trial which
has as its focus of the attainment of justice. However serious fraud offences are subject to
the regulation of legislation, partly to do with the fact that the bargain involves large

1
Supra Chapter II
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amounts of money. The dislike also arises as plea bargaining degrades the rights of
accused as well as affording the possibility of stricter and harsher sentences evasion.2
In civil law States plea bargaining is extremely difficult as they are following
Inquisitorial method in court proceedings. Germany is implementing the concept of plea
bargaining in the form of ‘informal negotiations” which center on the exchange of a
confession for a sentence concession. In Italy the mechanism of plea bargaining has been
inserted in the form of “abbreviated trials”. The introduction of this form of negotiated
justice in Italy required harmonization with the Constitutional principles of criminal law
and procedure to identify the truth.
The idea of solving criminal matters by adopting alternative method is not new to
India. In fact it was practiced as a passion of justice in India. Indian epics, Shastras,
Koutilyas Arthashastras literature and even in Quranic verses the practice of plea
bargaining was mentioned in the form of self-purification by reducing or removing the
effects of sin of committing offence, by serving the society and by expiation measures.3
In modern India, criminal jurisprudence did not recognize the concept of plea
bargaining as such. However section 206(1) and section 206(3) of the Code of Criminal
Procedure, 1973 and section 208 of the Motor Vehicles Act 1988 do enable the accused
to plead guilty for petty offences and to pay fines where upon case is closed, but in such
case there is no plea bargaining between prosecution and the accused. The Indian
Supreme Court, therefore had strong reservations about plea bargaining since according
to procedure by which a person is convicted on plea bargaining made as a result of
inducement was considered to be violative of Article 21 of the Constitution. Prior to 2005
neither the Code of Criminal Procedure nor any other law authorized plea bargaining and
if there had been a legal provision authorizing the procedure the objection would not have
been made.
But it was Gujarat High Court that recognized the utility of this method. The
Court reasoned the change by stating that the very object of the law is to provide speedy
justice by resolution of disputes, including trial of criminal cases and considering the
present realistic profile of pendency and delay in disposal of cases fundamental reforms

2
Supra Chapter II
3
Supra Chapter II
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are inevitable. There should not be anything static. It is really a measure and plea
bargaining will add a new dimension in the realm of judicial reforms. 4
To reduce the delay in disposal of crores of criminal cases in the county the 154th
Report of the Law Commission first recommended the introduction of plea bargaining as
an alternative method to deal with huge arrears of criminal cases. This recommendation
finally found support in the Malimath Committee Report on Reforms of Criminal Justice
in the year 2003. The system of plea bargaining was introduced as a result of criminal
law reforms introduced in the Criminal Law (Amendment) Act 2005 which came in to
effect from July 5 2006, in the form of Chapter XXI-A to the criminal procedure having
Section 265-A to 265-L, so as to provide for raising the plea of plea bargaining to certain
types of criminal cases.
As the overloading of courts with piling up of criminal cases is threatening the
foundations of the system, the plea bargaining may be accepted as one of the required
measures for speeding up case load disposition. Concept of Plea Bargaining should be
encouraged and the accused should be encouraged to avail the remedy of plea bargaining
to settle the pending cases. For the successful implementation of plea bargaining and to
achieve its objectives, the role of judiciary and the lawyer is very important. The
members of the bar should encourage the accused to opt for the plea bargaining rather
than to treat the plea bargaining a threat to their profession. With the changing world
scenario, where all the countries are shifting to Alternative Dispute Resolution
mechanism from the traditional litigation process which is lengthy as well as complex,
the plea bargaining may be one of the best recourse as an alternative mechanism to meet
the challenges of disposal of pending cases. Plea bargaining involves constitutionality of
providing accused to plead guilty with incentives. The plea of guilt represents the
accused’s decision not to contest the State's case against him and results in loss of many
Constitutional rights. Despite its negative impact upon Constitutional right, it can be
tolerated if it is structured and construed in a proper manner.5
Although plea bargaining is an antinomy of due process, yet a system of plea
bargaining that can answer the requirement of due process is not logically inconceivable.

4
Supra Chapter II
5
Supra Chapter III
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Where the verdict and sentence is based on merit, where the accused is represented by a
competent counsel it will succeed. The idea of plea bargaining cannot be objected, if it is
allowed to be adopted by subordinate courts only in cases which are trivial in nature. The
judicial time there by saved may be used for expeditiously disposing of other cases with
full trial.6
Plea bargaining as a procedure to reduce the burden of the court is followed in
more than 120 countries in different forms in which the prosecution asks the accused to
plead guilty voluntarily. In return the prosecution assures the accused of getting the
magnitude of the sentence reduced. In United States of America where it is more
successfully implemented to reduce the case loads has become most influential legal
system and a model for other legal systems both in common law and civil law
jurisdictions.
American plea bargaining assumes an adversarial conception of criminal
procedure and thus, if faithfully translated and fully accepted by civil law jurisdictions
which are following inquisitorial method of criminal procedure to ascertain the truth and
to finalize the case, could advance the American conception of criminal procedure in
inquisitorial jurisdictions. After the cold war period, depending on the region and
jurisdiction, a significant number of civil law countries introduced adversarial reforms
into their inquisitorial criminal procedures, which go both in the direction of the dispute
model and the direction of the coordinate model.7
Numbers of jurisdictions have also altered the relative roles of the prosecution and
defence during trial. Italy has introduced direct and cross-examination into its trial
proceedings and has allowed both the prosecution and defence to call witnesses. Italy has
also structured its trials by dividing them into a case for the prosecution and a case for the
defence as in the United States of America’s adversarial system. Civil law countries have
also begun to eliminate or soften the role of compulsory prosecution, another
characteristic feature of the inquisitorial system including Italy and Germany have
introduced consensual mechanisms inspired by plea bargaining process of America.

6
Supra Chapter III
7
Supra Chapter IV
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Both in respect of model of the dispute and the coordinate model , the recent
reforms in both common law and civil law jurisdictions including India seems to confirm
the version of the Americanisation process in the criminal procedure of the various legal
systems. Legal ideas have been circulated amongst many jurisdictions and many systems
have adopted suitable ideas and transplanted into their procedural framework to regulate
the criminal cases. To fill the gap between the theory and practice, the globalisation has
helped many legal systems in accepting legal ideas and institutions. Like medical and
botanical transplant which requires original body or environment, the transformed legal
ideas will get a successful result if the receiving environment or the receiving legal
system adopts it carefully by amending its own procedural rules. German and Italian
reformers tried to import an adversarial trial by introducing the principle that evidence
produced at trial has to be requested by the parties before its production can be ordered
by the judge.
The transference of legal rules, ideas and practices will produce a deep
transformation not only in the transferred practice itself but also in the whole legal system
of the receiving country. Plea bargaining acts as a Trojan hours that can potentially bring,
concealed within it, the logic of the adversarial system to the inquisitorial one. If it
happens, then the Americanisation thesis would be valid even in its strong version
because inquisitorial systems that translate plea bargaining would gradually become
“Americanised” by adopting an adversarial conception of criminal procedure.8
German example shows that, it has not Americanised German criminal procedure
as it has retained its informal agreement feature of the criminal trial. Due to legal
translation, the practice of plea bargaining is at cross roads between its traditional
inquisitorial model of criminal procedure and a model that is neither inquisitorial nor
adversarial. Compared to the German style of process of plea bargaining, Italian plea
bargaining, has been much more faithful to the American model. Even in Italy the 1989
reforms have put Italy also at cross-roads between the adversarial and Inquisitorial
systems. 9

8
Supra Chapter IV
9
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It has been illustrated, particularly in the case of the United States of America, that plea
bargaining and the access to effective legal counsel have become truly intertwined with
respect to ensuring a fair trial. The United States of America has focused upon fairness in
plea bargaining by considering whether the accused had adequate legal advice when they
considered accepting the plea bargain. The utmost concern of the United Kingdom and its
European counterparts is ensuring that the procedural elements are fair. The role of the
lawyer to the plea bargaining process is a concept which is becoming more important in
Europe.
The United Kingdom has developed a plea bargaining model whereby accused
persons are encouraged to plead guilty at an earlier stage of the proceedings and in return
the accused will receive up to one third reduction of their sentence. There is a general
disapproval of parties meeting with the judge in chambers to discuss the case as it erodes
the transparency as well as public nature of the trial. It is inappropriate for a judge to give
the impression to the accused that the submission of a plea results in a certain sentence.
The United Kingdom does allow for the judge to make an indication of sentence using
the sentencing guidelines. In this respect, the United Kingdom has less opportunity than
the United States of America for formal plea bargaining regulation because of the lack of
certainty over the overall awarded sentence in a particular situation. The United States of
America’s sentencing guidelines allow for more room for arguing for a sentence
reduction.10
The United States of America has the most developed system of plea bargaining.
It was originally intended as a mechanism to be used when an individual, who has
overwhelming evidence of guilt against them, to plead guilty and to be afforded the
opportunity to “bargain” something out of the situation. The practice in the United States
of America has become so far removed from this original position that many critics now
argue that the practice is employed rather as a deterrent to deny people their right to a fair
trial. This is done by imposing upon them a harsher penalty then the one received under
the terms of the plea. The prevalent myth that those who are innocent do not plead guilty
has been challenged. The innocent do plead guilty because they do not want to face jail
time so they would rather admit guilt then risk being sent down. Ineffective assistance of

10
Supra Chapter IV
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counsel cases has led the American Supreme Court to decide that the Sixth Amendment
assures both the right to legal counsel as well as the right to a jury trial. The American
Supreme Court has now extended the right to effective legal assistance to the pre-trial
phase including the plea bargaining process. In addition to this, if the accused rejected the
plea offer on the basis of ineffective legal counsel then the accused may have recourse to
have their case reopened and the plea reoffered to them.11
The European development of plea bargaining has developed in a multifaceted
way which is highly dependent upon the studied countries. The countries selected for the
study have developed legal systems which all have introduced a version of plea
bargaining so as to make their systems more efficient. These countries require that the
accused must, to some extent, admit guilt, confess or waive their right to a trial in order
to receive the benefit of the plea. This practice does raise questions about the sanctity of
the presumption of innocence as well as the fact that once one admits guilt to a crime
should it be possible for that individual to later upon appeal and revoke their admission
of guilt on the premises that it was achieved through coercion of the plea bargain? This is
a question that the American Supreme Court Judges are currently grappling with. The
other issue is that plea bargaining makes a mockery of a system where it is intended to
deliver justice but how can it be justice when it can be traded and given away in order to
produce a result.12
There are undeniable benefits of plea bargaining, it reduces costs, brings cases to
a speedy conclusion, reduces the backlog of cases and helps to bring those guilty of
crimes to justice. In all the countries studied, the drive for adopting plea bargaining was
the increase in efficiency and effectiveness of the Judiciary. Despite these benefits, the
elephant in the room still remains. What happens to those who are innocent of the
crime(s) with which they are charged? We trust in a system which protects the innocent
and punishes the guilty. The criminal justice system is reliant upon people having faith in
the system that is why it is essential for trials to be transparent and public. People need to
know what happens in courts. When the innocent are punished for exercising their

11
Supra Chapter IV
12
Supra Chapter IV
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fundamental right to a trial it does beg the question of whom does the criminal justice
system serve?
All the countries studied have the practice of plea bargaining as an integrated part
of the criminal procedure systems in different forms. Some benefits of plea bargaining
include the expedition of the trial; an increase in court efficiency and it also reduces the
number of prison sentences. These benefits do not outweigh the drawbacks. The
fundamental problem with plea bargaining is the impact it has on the right to a fair trial.
Plea bargaining strongly impacts upon the presumption of innocence and the equality of
arms. The presumption of innocence is built upon the belief that it is better that ten guilty
people go free than having one innocent wrongfully convicted.
The practice of plea bargaining is here to stay and there is no indication that any
of the countries studied have plans to reduce its use within their systems. All of the
countries investigated have stated that the reason for the use of plea bargaining is to
ensure a more expedient and efficient criminal justice system. It is also evident from the
cases analysed that plea bargaining is not exempt from abuse. It can often be manipulated
to serve the interests of the criminal. Alternatively, the prosecutor can use it as a tool to
intimidate, and coerce the accused into giving them the desired result. 13
For the successful implementation of plea bargaining process and to ensure the
utmost protection of the rights of the accused there is a need to keep a record of all of the
negotiations between the prosecutor and accused. This is a record which will ensure that
the terms of the agreement are not deviated from without the express agreement of both
of the parties. These pre-trial negotiations must be accessible and a copy given to the
court so that the judge can also ascertain whether both sides have willingly entered into
the bargain. This requirement for the recording of plea bargains will only be effective if
there are no procedural irregularities which form barriers to its realisation. This will
require reforms in the legal culture of the practice of plea bargaining. In the United States
of America, the American Bar Association encouraged the registration of plea bargains
so as to ensure ineffective assistance of counsel claims were avoided. This move for
registration was motivated purely from the position that the courts wanted to reduce the
amount of unnecessary time spent on ineffective assistance of counsel claims.

13
Supra Chapter IV
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Additionally, the registration was more of an act of awareness rising amongst the
judiciary and legal profession than act for protecting the fundamental rights of the
accused. Similarly, the example of the United Kingdom shows that there is indeed a
statutory requirement to write the plea down by the defence according to Section
143(2)of the Criminal Justice Act 2003. The Prosecution also has an obligation to write
and prepare a statement concerning the plea and sentence to be provided to the court in
order to assist them in the sentencing of the accused. Again the provisions in the United
Kingdom pertain more to administrative ease rather than the safeguarding of the
procedural rights of the accused.14
In the case of Italy there is also a system of reporting plea bargains which is
conducted by the defence in situations where the prosecutor must justify their reason to
reject anaccused’s request for a party agreed sentence. This is then sent to the judge for
their consideration in the matter. The situation in Italy is the closest to providing a means
of checks and balances to protect the accused from the arbitrary dismissal by the
prosecutor of a good plea bargain just because they do not like it.
Section 273(1)(a) of the German Criminal Procedure requires the fact that all
negotiations before the trial are recorded. All of the above methods for documenting the
plea bargain are on paper correct and should be effective, however, the problem lies in
the fact that the motivation is not necessarily the protection of fundamental rights and
safeguards.15
The attitude of “take it or leave it” plea bargains creates a tension of coercion.
Too often the cases analysed were littered with instances of the accused being detained in
deliberately stressful conditions; not being informed of the plea bargain on offer; lack of
understanding of the other viable alternative options available to them or because of the
lack of sentencing guidelines a real uncertainty as to the maximum imposable sentence.
The prosecutor should not be allowed to threaten the accused with charges which are
unsupported by prima facie evidence. The fact that the prosecutor is and will always be in
a more superior position is not disputed. What is disputed is the unfettered control of this
power.

14
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15
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In several of the jurisdictions discussed, the accused, as part of accepting the plea
bargain, was required to revoke their right to appeal. This practice removes the possibility
of judicial supervision of the fairness of the plea bargain. The requirement of waiving the
right to appeal is also in part to do with the presumption of innocence. Once the accused
has pleaded guilty in relation to the charges against them it becomes very difficult for
them then to perform the psychological gymnastics required to ignore the fact that they
are appealing against their admission of guilt. Irrespective of this awkward positioning
the right to appeal should not be used as a bartering chip. The significance of the right to
appeal should not be underestimated. This works to reinforce the importance of
safeguards being set in place so as to chart the process of the plea bargain from its
inception to its acceptance.16
There is also a further dimension to plea bargaining that is it concerns the
situation when the accused agrees to enter into a plea bargain with the prosecution
concerning the sentence but does not want to plead guilty to the charges. In these
circumstances it becomes even more important that the safeguards for the accused ensure
that basis for the charges against the accused are well founded.
It is necessary to re-evaluate the current mechanisms in place which allow the
accused to waive their right to appeal. The presumption of innocence is being eroded on a
wave of judicial efficiency and reforms, the central component for justice, needs strong
implementation to save it from the brink of extinction.
In International field, atrocities in the form of genocide or crimes against
humanity have taken place throughout human society. Because of race, color, religion or
ethnicity the world has for centuries experienced war, war crimes and acts of brutality
that violated the customs and conventions of war and the conscience of humanity. With
virtually none of the perpetrators brought to justice except few by criminal sanctions. The
Nuremberg and Tokyo trials were established to fix accountability for International
crimes,17 but a violent and bloody fifty years have passed before the international
community mustered the political will to establish the two ad- hoc International Criminal
Tribunals to prosecute those responsible for the atrocities in the former Yugoslovia and

16
Supra Chapter IV
17
There is a hope that legacy of Nuremberg would be the institutionalization of a judicial response to
atrocities committed by anyone , anywhere around the globe.
 287

Rwanda. And finally world leaders succeeded in an attempt to establish a permanent

International Criminal Court to punish the perpetrators and offenders of International
crimes.18
After the establishment of these Courts the international community has not
provided constant support and failed to assist the Courts in obtaining custody over
accused and even failed to find the Courts to run its business. However as their case loads
expanded and they came under pressure to expedite cases pursuant to the completion
strategy imposed by the United Nation, plea bargaining was seen as an indispensable tool
to achieve this goal. Even though rejected at the initial point but later on accepted the
idea to achieve the broader goals of International Criminal Justice which includes putting
an end to culture of impunity, contributing to the restoration and maintenance of
international peace and security, strengthening human rights law, promoting
reconciliation in the region where international crimes have been committed, providing
accurate historical record of atrocities to ascertain the truth, and giving voice to the
victims.19
Plea bargaining proved to be essential in order to encourage accused to provide
evidence in other cases. Cooperation of the lower level offenders with the prosecution
has been crucial for obtaining insider information regarding higher-ranking perpetrators.
Two ad-hoc Tribunals, Yugoslavian Tribunal and Rwandan Tribunal, the Special Court
for Sierra Leon, the ad hoc Human Rights Court for East Timor and the recently created
International Criminal Court all make specific provisions for plea bargaining. Like Rule
62of the Yugoslavian Tribunal, each of the guilty plea Statutes adopted by these courts
have to focus on the rights of the accused and sufficient information to the accused
regarding consequences with a plea of guilty process in the line of Rule 11 of the United
States framework to assess the validity of an accused’s plea of guilty.20
The International Criminal Court should utilize plea bargaining with criminal
leaders prior to trial to remove criminal leaders who flame hostilities from their positions
of power. By removing criminal leaders the International Criminal Court can serve its
mission by preventing future crimes emanating from that conflict and bringing restorative

18
Supra Chapter V
19
Supra Chapter V
20
Supra Chapter V
 288

justice to victims of mass atrocities. The mandate of the International Criminal Court
calls for both restorative and retributive Justice. The focus in retributive justice should be
to strike back at the accused through proper penalty and discouraging similar conduct
within the community and utilising proceedings to enable victims to return to life as it
was before a crime in restorative justice and the focus is on reconciliation between the
victim and the accused and restitution for injuries which the victim has suffered.21
Plea bargaining can support these main goals of international criminal justice if
used carefully. It is vital for the International Criminal Court when developing a practice
of plea bargaining to restrict sentence discounts due to plea agreements under strict
safeguards. If it is used excessively and disposed of too many trials because of plea
bargaining would alienate both victims and States already opposing the court.
Plea Bargaining is undoubtedly a disputed concept. Few people have welcomed it
while others have abandoned it. The concept has been introduced India in the form of
Chapter XXI-A of the Criminal Procedure Code 1973, a decade ago as a prescription to
the problem of overcrowded jails, burdened courts and abnormal delays. The prosecutor
is relieved of the long process of proof, technicalities and long arguments, the court sights
relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case
less and the accused is happy that he is free early in the day to pursue his old profession.
It cannot be denied that the practice may result in faster disposal of cases, because
delayed trials are problematic in many aspects, the system may see appealing.
In India, the legislatures have adopted a very successful method from the most
powerful country in the world, however they have failed to see that the facilities and
functional safeguards present in the American Criminal Justice System which prevents
their judicial system from any kind of injustice. American success cannot be looked at in
isolation of its origin, a supporting American culture, highly educated litigants and
radically different counsel and judges also played a vital role.22
Thus there is no reason to believe that the practice will achieve the same scale and
magnitude of success in India that it has in United States of America. As most of the
litigants are poor and not educated, they may not anticipate the corrupt practices of the

21
Supra Chapter V
22
Supra Chapter VI
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officers. The concept of plea bargaining introduced in India ten years ago has been slow
to catch on, largely because of lack of awareness amongst under trial prisoners and
officers of the court. The concept is more a mechanism of convenience and mutual
benefit than an issue of morality, legality or constitutionality. There is an inevitable need
for a radical change in criminal justice mechanism. They have limited the applicability to
a large extent and also restricted the scope of plea bargaining. When a concept is being
implemented into a legal system it should be done in a manner, foreseeing the hindrances
that may be faced at the experimental stage. The twelve provisions as such don’t show
any tendency of reducing case load. If citizens are to be encouraged to use the alternative
remedy of plea bargaining then there is an urgency to bring in clarity and predictability in
the provisions.23
The criminal justice system seems to have become a commercial transaction, with
the State agreeing to reduce the sentence of the accused, if the accused agrees to plead
guilty and save the State the trouble of conducting a trial. Further, the sentences imposed
by plea bargaining are not even remotely adequate to rehabilitate a person. Further, the
current model of plea bargaining in India which allows plea bargaining only in cases
where the punishment prescribed for the crime committed is less than seven years, or
where the crime is not against women or children etc., the Law Commission of India has
made it very clear that eventually plea bargaining will cover all the offences under the
Indian Penal Code. In that case, one must be ready to face a situation where a person
accused of several counts of armed robbery will be allowed to go free after serving a
minor sentence for the crime of theft. This would be a time when plea bargaining would
be seen as something inevitable, which can be avoided if measures are taken in time.
Thus, plea bargaining as given in Criminal Procedure Code 1973, with no judicial
scrutiny is taking our adversarial system towards a concessionary one. If the concept of
plea bargaining is allowed to function it should be allowed with judicial scrutiny. This is
because as plea bargaining becomes more pervasive in the criminal justice system public
will lose faith in that system because it allows criminals to receive bargains. However,
even if it is not completely banned then the level of judicial scrutiny must be raised
tremendously.

23
Supra Chapter VI
 290

In Chapter XXI-A of the Criminal Procedural Code1973,'Plea Bargaining' process

has been inserted, where in, one does not find mention of any bargaining at any stage for
anything. Plea bargaining in its literal sense implies exchanging or bartering a 'plea' for
something. Obviously the plea is a 'plea of guilty' of the offence(s) charged with. If an
accused is expected to tender a plea of guilty voluntarily waiving or foregoing his
fundamental right of trial it should be conceded that he would also expect something in
exchange. There are three means of such exchange: fact bargaining, charge bargaining or
sentence bargaining. The fact and charge bargaining in fact are precursor of sentence
bargaining. Such bargaining can only be done with the prosecution because victim has
nothing to give to the accused in exchange as a criminal case is between the accused and
the State (prosecution).
Chapter XXI-A of the Criminal Procedural Code 1973, provides for a mutually
satisfactory disposition between the accused and the victim. Impliedly, on arriving at
such a mutually satisfactory disposition the accused may expect concessional treatment
like invoking the Probation of Offenders Act or no imprisonment or at least reduced
sentence. In fact there is no assurance of even that.
Section 265B provides the procedure for setting the machinery in motion. The
accused is supposed to initiate the process by filing an application showing his desire for
invoking the provision of plea bargaining. His application has to be voluntary. He has
only to briefly state the case and the offence and also that he understands the gravity of
his offence and normal penal provisions relating thereto. He is not required to plead
guilty or to undertake to plead guilty to the charge(s) or the fact(s). He is also not
required to plead for mercy in so many words. No format for such an application is
prescribed. Further, the court is required to ascertain before proceeding further, that the
application has been filed voluntarily without inducement, coercion or pressure. The
application is not a plea form or plea of guilty.
Section 265 B (4) (a) clearly states that the disposition may include giving to the
victim by the accused the compensation and other expenses during the case. There is no
mention as to what the accused can expect in exchange for voluntarily sticking his neck
out. Section 265 C then speaks of the disposition which is the crux of the provision,
which provides that, in a case instituted on the basis of police report, the police
 291

(investigating) officer, the accused and the victim shall participate in the meeting to work
out a mutually satisfactory disposition. Similarly, in a case instituted otherwise than on a
police report, accused and the victim/complainant shall participate in the meeting. It has
not been spelt out as to what shall be the terms or scope and ambit of the disposition. A
report has to be made by the court on such disposition under section 265D. Apparently
the disposition is not a plea agreement.
A plain reading of the section 265E (a) indicates, however, that the disposition
means only compensation to the victim/complainant. It also appears that the court is
bound by this disposition as is evident from the wording: "the court shall award the
compensation to the victim in accordance with the disposition under section 265D and
hear the parties on the quantum of punishment."
A conjoint reading of sections 265B (4) (a), 265 E (a) and 265 E (c) and (d)
makes it clear that if an accused prefers to invoke the provision for plea bargaining, he
will have to agree to a compensation and then hope (but be not sure or assured) that the
court may award a lesser sentence. If the disposition really means working out only
compensation to the victim any discussion about reduction of charge(s) or sentence, the
question arises what is there for the accused? Why should he invoke the provision or
participate in such a deliberation at all? If even after agreeing to a compensation he is
awarded the punishment as per the Statute without any concession, the accused cannot do
anything and is virtually duped because there will not be any appeal. Of course section
265E(c) and (d) speak of less than minimum (or one-fourth of the maximum)
punishment, but it is at the discretion of the court. It may or may not grant the concession
as provided.
Frankly, this is not an incentive for an accused to come forward for this aspect
plea bargaining. What is more, there is no provision for withdrawing an application. It
means that an application once preferred cannot be withdrawn. Moreover, an appeal is
barred except by way of invoking the writ jurisdiction (section 265G); but the grounds for
maintaining such petition is not stated. It is not clear whether the writ petition can be
maintained on the ground that the application was a result of improper legal advice, or
inducement or coercion by the victim/public prosecutor, or quantum of the sentence. In
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absence of any sentencing guidelines the quantum (which is under absolute discretion of
the trial court) cannot possibly be successfully achieved.
Even if it is assumed that, although not written, the disposition covers punishment
or charge also, the court shall consider the disposition only to the extent of compensation.
Award of punishment shall apparently depend on the submissions and pleading of the
parties and facts and circumstances of the case as in any other sentencing hearing. It is
pertinent to recall the "Statement of Objects and Reasons" proposing the Bill. It was
specifically stated that Plea bargaining :
“means pre-trial negotiations between accused and prosecution during which the
accused agrees to plead guilty in exchange for certain concessions by the
prosecutor”.

If that is so, it is surprising why it has not been clearly provided for. The
ambiguity surrounding the "mutually satisfactory disposition" is mysterious. It could very
well be provided that pre-trial negotiation shall be held between the police officer
investigating the case, public prosecutor and complainant to work out a mutually
satisfactory disposition including compensation to the victim and concession in
sentencing to the accused for pleading guilty; and it would have been in consonance with
the statement of objects and reasons. Obviously it was intended, by providing for
mutually satisfactory disposition, to provide for charge and sentence bargaining.
It is also interesting to note that the Law Commission, in para 9.9(iii) of its 154th
report had recommended imposition of sentence commensurate with the plea bargaining.
It is desirable to quote the relevant Para which runs as follows:
The Court shall on such a plea of guilty being taken, explain to the accused
that it may record a conviction for such an offence and it may after hearing the
accused proceed to hear the Public Prosecutor or the aggrieved person as the case
may be:
i) impose a suspended sentence and release him on probation,
ii) order him to pay compensation to the aggrieved party, or
iii) impose a sentence, which is commensurate with the plea bargaining
iv) convict him for an offence of lesser gravity than that for which the
accused has been charged if permissible in the facts and circumstances
of the case.
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Obviously the Law Commission intended to introduce the concept of plea

bargaining as existing in other countries with no strings attached. A conjoint reading of
the two reports 142nd and 154lh also reveals the change of attitude and thought process
within the Law Commission during the period from a categorical 'no plea bargaining' to a
'formal plea bargaining'. A consideration of the two reports and the provision finally
enacted also shows that the eagerness to give combined effect to the two reports and at
the same time avoid objections and apprehensions as far as possible, has resulted in an
enactment which leaves much to be desired. It appears that in fact the 142nd Report only
has been given effect to but with a name taken from the 154th Report. This view is
strengthened by the fact of amendment in section 357 of the Criminal Procedure
Code1973, by inserting section 357-A regarding victim compensation as recommended
by the 142nd Report.
It is feared that unless these issues are addressed properly, apprehensions will
persist in the minds of the first time offenders, and the provision does not apply to
habitual offenders anyway. It is feared that the provision may not be workable in its
present shape. Nevertheless, a positive beginning having been made, the advantages
would outweigh the demerits. Plea bargaining would greatly improve the current
disturbing criminal jurisprudential system. Of course the Superior Courts shall have to
straighten out the curves by interpreting the provision. The Parliament also may have to
amend the provision to make it workable.
However, it is still a beginning. Many roadblocks would have to be faced and
crossed. The public at large will have to be taken along and in confidence in this crusade.
The Bar and the Bench equally need to be educated and enlightened. The Law schools
shall have to bear greater responsibility in preparing the future members of the Bar and
the Bench. A massive awareness drive will have to be launched at every stage and level:
at the law schools, Bar Associations, Judicial Officers' training Institutes and the jails.
Only then it can be hoped that the declared goals of the provision shall be achieved and
the first time offenders do not turn into habitual ones.
From the above analysis, hypotheses No.1 to No.4 drawn by the researcher for
this study are hereby established and proved to be true and correct. It is suggested that the
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process of plea bargaining should be strengthened by incorporating the following

suggestions.

7.2 Suggestions

The following suggestions are proposed based on the study:

Plea bargaining as an alternative mechanism can become a valuable tool for

expediting the justice delivery system and reducing the pendency of cases in various
criminal courts if it incorporates the following suggestions in Chapter XXI-A of the
Criminal Procedure Code 1973.

1) A provision has to be inserted making it mandatory for the Court while issuing the
summons to inform the accused about the concept of plea bargaining.
2) A provision has to be inserted to set up a Committee to consider the cases referred
from the Court to deal with the process of plea bargaining, so that, the disposition
arrived at, would be made in more voluntary environment and if the Committee
opines that, a satisfactory disposition cannot be worked out, it should send the plea
bargaining case back to the Court.
3) A provision should be inserted for, the hearing of plea bargaining in the open court
and the Court should weigh the financial and social conditions of the victim as well
as the accused before permitting a settlement.
4) Section 265-A (1) should be widened so that the classification for the benefit of
plea bargaining should not be merely based on the number of years of punishment
for a particular offence but it should also consider the severity of the crime
5) Section 265- A (2) should be amended to give clarity about the offences which
come under socio-economic offences. This can act as a safeguard against using this
power arbitrarily.
6) Under section 265-B, when the Court is rejecting a plea bargaining application, the
order must be kept confidential to prevent prejudice to the accused.
7) Under section 265-B, there is no provision for the withdrawal of an application of
plea bargaining. Once the application is made, it will become mandatory for the
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accused to go with the process. To avoid such situation, amendment has to be made,
by inserting a provision for the withdrawal of application of plea bargaining.
8) In section 265-C, a time frame should be stipulated for working out a mutually
satisfactory disposition.
9) In the second proviso of Section 265-C (a), a provision should be inserted, to allow
the victim to participate through a lawyer so that the victims would be competent
enough to look after his interest and to inspect the proceedings in such case.
10) To promote transparency, a provision should be inserted for the court to record the
final plea bargaining disposition arrived under section 265-C.
11) In the disposition made under Section 265- D, the Court should be given a basic
level of discretion to revise the amount so that the compensation amount would be
reasonable.
12) A provision should be inserted to make the jail superintendents duty bound to
conduct awareness programs in prisons informing the under trial prisoners about
plea bargaining.

It is submitted that, a faithful implementation of the above suggestions will help in a

better way towards strengthening the process of plea bargaining as an effective alternative
mode of solving criminal cases.

*****