GITAM SCHOOL OF LAW

GITAM DEEMED TO UNIVERSITY

2021-2022
ADR IN CRIMINALS CASES
ALTERNATIVE DISPUTE RESOLUTION

NAME: CHAKKARA SATHVIKA

ROLL NO: 121933101008
YEAR OF STUDY: BA.LLB(hons)third year
Sixth semester
TOPIC: ADR IN CRIMINAL CASES
LECTURER: Mr.VARDHAMAN PANWAR

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INDEX

PAGE NUMBER CONTEXT

01 Cover page
02 Index and Abbreviations
03 Declaration
04 Acknowledgement
05 Abstract and introduction
06 Plea bargaining and its aspects
07 Sections under CRPC
08 Perspective of domestic courts
09 Conclusion and bibliography

ABBREVIATIONS
AIR: all Indian reports
ADR: alternative dispute resolution
SCR: supreme court reports
Art : articles
HC: high court
SCC: supreme court cases

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DECLARATION

I therefore consider the role of doing project work topic “ADR IN CRIMINAL CASES”
submitted to GITAM SCHOOL OF LAW, GITAM UNIVERSITY, Vishakhapatnam, is a
legitimate project. Undertaken by me under the direction of Mr.VARDHAMAN PANWAR
Assistant professor of GITAM school of law In contrast, I hereby declare that Research in
this project has not been published or will be submitted anywhere.

Date: 05-03-2022 ch.sathvika

Vishakhapatnam 121933101008

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ACKNOWLEDGEMENT
I would like to express my special thanks to my ADR law sir, assistant professor Mr
Vardhaman panwar of GITAM SCHOOL OF LAW for providing me with the necessary
guidance and encouragement to complete my thesis. I also want to extend my appreciation
for the assistance given to the head Dr. Anita Rao and my GITAM SCHOOL OF LAW.

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ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL CASES

Abstract:
Many cases are pending in Indian courts. Suits have rapidly increased, and Alternative
Dispute Resolution has risen to prominence in almost every civilized society. Negotiation,
mediation, arbitration, collaborative law, and conciliation are common forms of ADR. The
fundamentals of plea bargaining and alternative dispute resolution were covered in the first
section of this article. The use of ADR in criminal trials in India has been highlighted in order
to provide a better understanding of the overall concept of plea bargaining and its analysis in
India. In addition, various judicial decisions have been cited to understand the judiciary's
stance on the concept of plea bargaining in criminal trials in India. Section 89 of the Code of
Civil Procedure authorizes civil courts to refer a matter to Lok Adalats for alternative dispute
resolution methods such as conciliation, arbitration, mediation, and judicial settlement. This
article discusses criminal cases involving ADR.

INTRODUCTION:
Section 89 of the Code of Civil Procedure permits civil courts to submit an issue to other
conflict resolution techniques such as conciliation, arbitration, mediation, and judicial
settlement through Lok Adalats. However, unlike civil conflicts, the scenario in the criminal
environment alters.ADR in the criminal context indicates a trend towards restorative' justice,
which regards crime as a violation of one person's right by another, and justice in the criminal
context should focus on mending the victim's pain. ADR in the criminal context includes the
concept of compensation in the transitional justice context, which may not be a component of
civil mediation. Reparation refers to an act on the part of an offender to do something
beneficial on behalf of the victim and society, which may include compensation, community
service, and so on, and is only a component of the court settlement in the civil context. In
criminal instances, ADR entails a final settlement to be pronounced in court under diverse
jurisprudence, however in civil issues, the same is secret and merely a matter between the
parties. The Indian criminal justice system, on the other hand, was not open to the idea of
including the option of mediation, as evidenced by the landmark case of Afcons
Infrastructure and Ors. v. Cherian Varkey Construction and Ors1, which held that criminal
cases should not be decided through alternative dispute resolution methods.

1 [2010 (8) SCC 24]

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WHAT IS ADR?
Alternative Dispute Resolution (ADR) is a method of resolving disagreements other than via
litigation. An unbiased third party settles the dispute utilising processes such as arbitration,
negotiation, mediation, and conciliation. The disagreement is resolved without the
intervention of the Court. India has a lengthy history of employing ADR methods. For
example, the Panchayat System has been in existence for almost 2,500 years and is still
frequently employed for conflict settlement. Furthermore, arbitrators and mediators are
frequently attorneys. Instead of employing a lawyer for each party in an ADR case, some
parties agree to engage a single lawyer to function as an unbiased third party to lead the
settlement and guarantee that all solution suggestions are lawful.

ADR IN CRIMINAL CASES

Alternative Dispute Resolution, or ADR, has shown to be a successful alternative to the
conventional court's settlement system in civil matters. While the rest of the courts must
follow the standard and long procedure, there are provisions for summary trial1 and quick
trial that help to dispose of a limited number of cases. Alternative Dispute Resolution (ADR)
in criminal proceedings can be conducted in two ways:
1. Plea negotiation
And
2. Compounding of offences

PLEA BARGAINING:
Plea bargaining is an agreement reached between the prosecution and the defence in a
criminal case. Where the accused changes his plea from not guilty to guilty in exchange for
an offer from the prosecutor when the Judges notify the accused that if he pleads guilty, his
penalty can be reduced. The notion of Plea Bargaining sparked intense public controversy in
India. The Supreme Court decided in the case of State of Uttar Pradesh vs. Chandrika2 that it
is settled law that based on plea bargaining, the court cannot dispose of the criminal matter
but must consider on its merits. If the accused admits guilt, a suitable penalty must be
imposed. Furthermore, the court ruled that just pleading guilty should not constitute grounds
for sentence reduction. However, the government eventually agreed and inserted Sections
265A–265L to the 1973 Code of Criminal Procedure. These statutes govern the applicability,
method, and other aspects of a plea deal.
2 1999 Supp(4) SCR 239

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ASPECTS OF PLEA BARGAINING:

a) Charge bargaining: It allows the accused to plead guilty and negotiate with the
prosecution to decrease the number of charges that may have been made against him,
as the prosecution may charge the defendant with the highest charge applicable. For
example, a fee reduction, a stay or withdrawal of additional charges, and so on.
b) Sentence bargaining: It occurs when an accused or defendant is informed in advance
of his or her sentencing if he or she enters a guilty plea. It may enable the prosecutor
to get a conviction on the most serious accusation while ensuring the prisoner of a
suitable punishment. For example, a prosecutor's agreement not to oppose a
sentencing suggestion made by defence counsel, or a prosecutor's agreement not to
pursue a harsher penalty.
c) Fact bargaining: A commitment may exist for not 'volunteering' facts damaging to
the accused at the sentencing hearing or not mentioning a context of the offence that
the court may view as an aggravating element.

2) Compounding offences:
Compounding criminal offences is permitted with or without the authorization of the court.
Under the Code of Criminal Procedure of 1960, it is permissible to combine minor offences.
Minor offences such as saying comments with the purpose to offend someone's religious
sensibilities, causing harm on provocation, unlawful incarceration and forced labour, and so
on are punished by up to a year in jail and/or a fine. Some offences may be compoundable by
the injured party with the approval of the court under section 345(2) of the code. Rioting
(section 147), voluntarily causing serious harm (section 325), unjustly detaining a person in
secret (section 346), criminal breach of trust (section 406), as well as sections 148, 324, 335,
336,343, 347, 348, 354, 356, 379, 381, 411, 417, 421, 428, 429,482, 483, 493, 494, 511.

SECTIONS UNDER CRPC THAT INCLUDE ADR:

● Section 265-C (Guidelines for Mutually Agreeable Resolution) establishes the
procedural rules that the court must follow when reaching a mutually satisfactory
resolution. The court serves notice to the interested public prosecutor, the

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investigating officer of the case, the victim of the case, and the accused to attend a
meeting to work out an acceptable resolution of the case in a case initiated on a police
report. The Court only serves notice to the accused and the victim in a complaint case.
● Section 265-D (Report of mutually satisfactory disposition) establishes the procedure
for preparing and submitting a report of mutually agreeable disposition. While doing
so, two scenarios may emerge, both of which are addressed in the provision itself:
● If the court has a meeting under section 265-C, the court makes a report of the
satisfactory disposition, if any, which must be signed by the presiding officer of the
Courts and all other people present.
● If no resolution has been reached, the court will continue the accused's trial; under the
requirements of the CrPC, 265-B has been filed in such a case, after recording the
observations of failure of the resolution.

THE INDIAN JUDICIARY'S POINT OF VIEW

The Indian Courts' perspective on this idea has developed through time, as seen by the
numerous judicial rulings. In the case of Murlidhar Meghraj Loya v. State of Maharashtra3,
for example, the Supreme Court expressed reservations about plea bargaining, claiming that
the concept allowed the perpetrator to "trade out," an arrangement that benefited everyone
except the victim and society, calling into question the standard of justice and the rights of
the parties involved. In a similar vein, the court in Kachhia Patel Shantilal Koderlal vs. the
State of Gujarat and Anr declared the mechanism unconstitutional and illegitimate, claiming
that it would foster collusion and poison the clean judicial system. As a result of such
utterances, the Courts' disapproval of this approach became quite clear. The Gujarat High
Court recognised the approach as a replacement for litigation much later in the State of
Gujarat v. Natwar Harchandji Thakor4. "The very object of law is to provide easy, cheap, and
expedient justice by resolving disputes, including the trial of criminal cases, and considering
the current realistic profile of pendency and delay in disposal in the administration of law and
justice, fundamental reforms are unavoidable," the court reasoned. There should be no static
in the environment. As a result, it can be argued that it is a true measure and remedy that will
give a new dimension to the field of judicial reforms."

PERSPECTIVE OF DOMESTIC COURTS:

3 1976 AIR 1929, 1977 SCR (1) 1

42005 CriLJ 2957, (2005) 1 GLR 709

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Following the incorporation of plea bargaining into Indian criminal law, the courts also
recognised the notion of alternative dispute settlement procedures, as evidenced by the
following decisions:
The Supreme Court ruled and recognised in Gian Singh v. the State of Punjab5 that the
outside court settlement was in the exercise of a statutory power of the High Court under
Section 482 of the Cr. PC. The Supreme Court also stated that "criminal cases with an
overwhelmingly and predominantly civil flavour, such as those of commercial, financial,
mercantile, civil, partnership, or such like transactions, or offences arising out of matrimony
relating to dowry, etc., or family disputes where the wrong is essentially private or personal
in nature and the parties have resolved their entire dispute," In K. Srinivas Rao v. D.A.
Deepa6, the Supreme Court held that a complaint filed under Section 498A of the Penal Code,
1860, though a non-compoundable offence, could be resolved outside of court and suggested
that the same be referred to Mediation centres in appropriate cases if the parties are willing
and if it appears to the criminal court that there exist elements of the settlement, thus
acknowledging the need for ADR methods in criminal matters.

The risk of decriminalising violence through the use of an ADR procedure in criminal
cases:
The law occasionally lessens the sentence of the culprit via plea bargaining, which may
contribute to the decriminalisation of violence35. Many nations have raised the penalties for a
repeat criminal, although the offender may profit from plea bargaining. It may provide a
chance to resolve via the village 'Salish,' which is already overburdened with part is and
choices, as well as local politics, which seldom ensures justice for the disadvantaged people.
Many compoundable criminal offences are dealt with by quasi-formal institutions such as
village court and municipal dispute resolution board, which are made up of local government
entities such as ward commissioners, Union Parishad chairman, and union Parishad members.
Each party can select two representatives from a five-member panel; parties can also
challenge and appeal to an Assistant Judge Court with proper authority if they are dissatisfied
with the rulings of village courts or conflict resolution boards. As a result, rather than
compounded by the parties outside of court, these quasi-formal courts may be encouraged to
lessen the strain on formal courts.

5 1962 AIR 219, 1962 SCR (3) 515

6 2013 AIR 423

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CONCLUSION:
Plea bargaining has been identified as an urgent requirement. In this case, it is acceptable to
say that "Law is not a panacea." It cannot solve all issues, but it may certainly lessen their
severity.' Plea bargaining in India seeks to remedy this, and despite its flaws, it can help to
expedite the settlement of cases in the Courts. It gives the Indian Criminal Justice System
efficiency and legitimacy, and it has the ability to transform the face of criminal proceedings
in India. It has the potential to aid in judicial reform and successfully increase access to
justice. After all, it is a comprehensive strategy to ensure justice.

BIBLIOGRAPHY:
LANDMARK JUDGEMENTS(by universal publications)
www.indiankanoon.com
www.latestlaws.com
www.jstor.com
www.researchgate.net
www.lawcutor.com

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