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Summary
MAHARASHTRA NATIONAL LAW UNIVERSITY AURANGABAD

ADR in Criminal Cases

SUBMITTED TO

Ms. Sakshi Gupta

Asst. Professor of Law
SUBMITTED BY
SIPUN SANGRAM SAHOO
Roll no: :2018/BA LLB/15
SEMESTER-VII, B.A.LL. B(Hons)

1
 RESEARCH METHODOLOGY

This project report is based on Descriptive Research Methodology. Secondary and Electronic
resources have been largely used to gather information and data about the topic. Books websites,
dictionaries and articles have been referred in this project.

INDEX

SR. NO TITLE PAGE NO.

1 INTRODUCTION 3

2 ADR IN CRIMINAL CASES 3

3 NEED FOR ADR IN CRIMINAL TRIAL 4

4 PLEA BARGAINING 5

5 THE STAND OF INDIAN JUDICIARY 7

6 LIMITATION OF ADR IN CRIMINAL JUSTICE 8

7 DRAWBACKS OF PLEA BARGAINING 9

8 CONCLUSION 10

9 BIBLIOGRAPHY 11

2
 INTRODUCTION

ADR is Alternative Dispute Resolution, as the name suggests it is an alternative method where the
dispute is resolved, outside the court. In the process of ADR, the parties resolve the dispute
cordially without any judicial intervention. ADR procedures have a long history in India. The
Panchayat System, for example, is nearly 2,500 years old and is still regularly used to resolve
conflicts. There are types of ADR: Arbitration, Conciliation, Mediation & Negotiation. The
legislation has enacted The Arbitration and Conciliation Act, 1996 which mentions the procedure
and rules as to how arbitration and conciliation are to be done, which is to be considered as
arbitration, and as so on. ADR is mentioned in both CPC and CrPC. In criminal proceedings, ADR,
sometimes known as Plea Bargaining, is an option. We will learn what plea bargaining is and how
ADR is utilized in criminal cases in this research paper.

ADR in Criminal Cases

ADR is a worldwide used concept that is used in civil as well as criminal matters. ADR in criminal
matters signifies a change toward ‘restorative’ justice which views the crime as the violation of
one person’s right by another and justice in the criminal context should focus on repairing the
victim’s harm. ADR in the criminal aspect contains an idea of reparation in the transitional justice
aspect, which might not be a component of civil mediation. Reparation refers to an act on the part
of an offender to do something positive on behalf of the victim and the society, which may involve
compensation, community services, etc., whereby it is just a part of the judicial settlement in the
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civil context. ADR in criminal cases involves the final settlement to be pronounced in the court in
various jurisprudences, whereas in civil matters, the same is confidential and simply a matter
between the parties.
The Indian judiciary was not open to the concept of alternative dispute resolution in criminal cases.
1
It was stated in the case of Afcons Infrastructure and Ors. v. Cherian Varkey Construction and
6
Ors1, in which it was held that in most of the cases references to ADR process are must but it also
mentioned the excluded category which is not to be referred for ADR Process and the list included

1
Civil Appeal No.6000 of 2010

3
criminal cases and hence “criminal cases shall not be decided via alternate dispute resolution
methods”.

NEED FOR ADR IN CRIMINAL TRIAL

The judiciary is known as the most important organ in which people place their trust. The purpose
of the judiciary is to resolve all types of conflicts and to provide justice to the innocent by punishing
offenders in an impartial and independent manner. Traditional procedures are time consuming,
resulting in delays in justice due to pending litigation, and expensive, making it unattainable for
many people, resulting in injustice to innocent people.
The Supreme Court of India is currently dealing with 59,867 criminal cases. The situation
is significantly worse in the subordinate judicial system, with 44.75 lakh cases outstanding before
India's different High Courts, 13.1 lakh of which are criminal cases, and 3.14 crore cases pending
before district and subordinate courts. Overcrowding of convicts and a growth in the number of
prisoners result from an increase in the number of cases.
Famous jurist Nani Palkhivala has said, “The greatest drawback of the administration of
justice in India today is because of delay of cases……………. The law may or may not be an ass,
but in India, it is certainly a snail and our cases proceed at a pace which would be regarded as
unduly slow in the community of snails. Justice has to be blind but I see no reason why it should
be lame. Here it just hobbles along, barely able to work.”2
Speedy trial is an essence of criminal justice, but it is getting trotted in the Indian Judicial
system. As a result of the worrying state of the Indian judicial system, an alternative dispute
resolution mechanism is urgently needed, particularly to decide criminal matters. The preference
for ADR stems from the fact that it is less expensive than traditional litigation, requires less time,
and maintains secrecy.
The goal of ADR is not to penalize the offender, but rather to help them repent for their
actions, work to repair the harm they have caused, and reintegrate into society. The paradigm, for
example, is a response to the traditional justice model, which the victim-offender mediation
contributes to and implements. Revenge is not the appropriate response to all atrocities
perpetrated against victims. It does not compensate victims for their losses, nor does it provide

2
Nani A Palkhivala, ―We the nation…lost decade (1994) UBS Publications, p 215

4
answers to concerns, alleviate worries, provide closure, or aid in the understanding of a
catastrophe. For all of the victims, the fact that the perpetrator has been punished by the state
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does not mean that their losses have been restored, they have suffered it does not answer their
questions, release their distresses and help them understand their tragedy or heal their injuries.

The method of ADR in criminal matters has been criticized for obfuscating the importance
of lawsuits and judicial processes. It is believed to privatize disputes at the expense of public
interest and justice, particularly in criminal situations, because crimes are against society as a
whole.
The danger of coercion in the plea negotiating process has been highlighted by the
judiciary, as well as the necessity to guarantee that the decision to enter into a plea deal is made
voluntarily by the accused. There is a claim that because many accused people choose a plea deal
than a trial, this approach leads to shoddy investigation procedures.

PLEA BARGAINING
What is Plea Bargaining and how does it relate to Alternative Dispute Resolution. Plea Barraging
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is a common term for a pre-trial negotiation between the accused and the prosecution in which the
accused agrees to plead guilty in exchange for specific concessions from the prosecution. This
concept was taken from the United States of America. The concept of Plea Bargaining was
suggested in the 142th Law Commission Report. Section 265A to 265L of CrPC talks about Plea
Bargaining. These sections were added to CrPC in the Criminal law amendment act in the year
2005. But the concept of Plea Bargaining is only applicable to offences where the punishment is
1
not death or life imprisonment or imprisonment for a term exceeding seven years or wherein the
offence does not affect the socio-economic condition of the country and also where the offence is
not committed against a woman or a child below 14 years of age.
After the inclusion of Plea Bargaining in CrPC there was seen a high rise in the use of ADR
in criminal matters by the Indian Judicial System. It is mostly beneficial to the poor who are
accused of DV Act, MV Act and other petty offences. As ADR is time and cost-efficient
underprivileged class of people can choose plea bargaining and amicably resolve the issue.
After the addition of Plea Bargaining in the CrPC, there was seen a high rise in the use of
ADR in criminal matters by the Indian Judicial System. It is mostly advantageous to the poor who

5
have been charged with violating the DV Act, MV Act, or other petty offences. Because ADR
saves time and money, poor people can choose plea bargaining and reach an amicable resolution.
Plea bargain can be viewed as an expression of accepting responsibility for one's crime in order to
improve one's social behavior. It spares the victim from the psychological distress that would
otherwise occur during a protracted criminal trial, ultimately enhancing the victim's position
through compromise. It provides certainty of conviction by preventing major offenders from
escaping punishment.

Types Of Bargaining3:
Charge Bargaining: In exchange for guilty acceptance, the prosecution and defendant make a
deal or pledge to deduct part of the charges levied against the defendant. When the accused
admits to committing the wrong, charge bargaining may be possible with the prosecution's
agreement, but it is entirely dependent on the prosecution's will. It is up to the prosecution to
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accept or reject it. The defendant will face a specific charge after charge negotiating.

Sentence Bargaining: It is a promise by the prosecutor to recommend a certain sentence or

10
bargained punishment to the court following acceptance of guilt, or it can be done directly with
5
the trial judge. For this objective, the accused must be advised about the anticipated penalty if he
does not admit his guilt, but if he does, the prosecutor wants a lesser or more favorable sentence
than what he was demanding earlier in the hopes of demonstrating some sort of innocence or
saving the court's time.

Fact Bargaining: It involves negotiations and admissions of specific facts that stipulate the
veracity and existence of verifiable facts without requiring the prosecutor to prove them. This is
a rarely used option that frequently arises in minor circumstances where a criminal may be held
civilly liable to a crime victim. In fact bargaining, the prosecutor agrees to some facts or the
admission of specific evidence in exchange for an agreement not to introduce certain other facts
into evidence, obviating the necessity for the prosecutor to establish them. Although the
defendant may theoretically retain a not guilty plea, it is expected that he will be found guilty.

3
https://legalservices.maharashtra.gov.in/Site/Upload/Pdf/plea-bargaining.pdf

6
Mediation in Criminal Cases: Mediation is assumed as a very beneficial method since it allows
for better and more effective communication between the parties while also assisting in the
maintenance, improvement, and restoration of their relationship. In contrast to the courtroom,
mediation might result in a win-win situation for the parties. There is a win-loss situation, as well
as a final outcome. It leads to a quick, efficient, and cost-effective resolution of the issue, as well
as a mutually beneficial settlement. There are a number of ADR practices in the criminal justice
4
system that is not traditional criminal justice practices, such as victim/offender mediation, family
group conferencing, victim-offender panels, victim assistance programs, community crime
prevention programs, sentencing circles, ex-offender assistance, community service, and plea-
bargaining school programs. In India, this mechanism is operating as a wonderful exchequer, as
it is performing exceptionally well. Across the country, millions of cases had been resolved
through Lok Adalat.

2
THE STAND OF THE INDIAN JUDICIARY

The opinion of the Indian Courts on this concept has evolved over time which can be seen in the
various judicial decisions by the courts.
In the case of Murlidhar Meghraj Loya v. State of Maharashtra4, the Supreme Court expressed
2
reservations about plea bargaining, claiming that it 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 case of Kachhia Patel Shantilal
Koderlal vs. State of Gujarat and Anr5, the court declared the process unconstitutional and
illegitimate, claiming that it would encourage collusion and corrupt the pristine justice system. As
a result of such utterances, the Courts' disapproval of this approach became quite clear.

The Supreme Court in K. Srinivas Rao v. D.A. Deepa 6held that, despite being a non-
compoundable offence, a complaint filed under Section 498A of the Penal Code, 1860, could be
resolved outside of court and suggested that, in appropriate cases, the complaint should first be

4
1976 AIR 1929, 1977 SCR (1) 1
5
Special Leave Petition (crl.) 3774 of 1999
6
CIVIL APPEAL NO. 1794 OF 2013

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 1
referred to Mediation centers if the parties are willing and it appears to the criminal court that there
are elements of the settlement, thus recognizing the need for ADR methods in the criminal matters
as well.
1
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In Parbatbhai Bhimsinhabhai Karmur v. the State of Gujarat, Justice. D.Y.
Chandrachud, speaking on behalf of the three judges bench, upheld the principle of the Gian Kaur
judgment and held that the mediation or outside court settlement shall be done only in private
matters, like those of commercial, financial, mercantile, partnership or similar transactions with
an essentially civil flavour may in appropriate situations and not in those matters, which have a
serious impact on the society, heinous and serious crimes like those of murder, dacoity and rape.
2
It was in, State of Gujarat v. Natwar Harchandji Thakor8, where the Gujarat High Court
acknowledged the method as a substitute for litigation. The court’s reasoning was, “the very object
of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the
trial of criminal cases and considering the present realistic profile of the pendency and delay in
disposal in the administration of law and justice, fundamental reforms are inevitable. There should
not be anything static. It can thus be said that it is really a measure and redressal and it shall add
a new dimension in the realm of judicial reforms.”
The Supreme Court has also condemned the introduction of plea bargaining in State of
Uttar Pradesh v. Chandrika9, The Apex Court held that, "It is settled law that on the basis of plea-
bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the
accused confesses its guilt, appropriate sentence is required to be implemented... Mere acceptance
or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused
bargain with the court that as he is pleading guilty the sentence be reduced." The Supreme Court
has observed that this practice intrudes society's interests by opposing pre-determined legislative
fixation of minimum sentences. It has been pointed out that allowing plea bargaining in India
would amount to subtly subverting the mandate of law.

LIMITATIONS OF ADR IN CRIMINAL JUSTICE

The following are the limitations of application of ADR in Criminal Jurisprudential System

7
CRIMINAL APPEAL NO.1723 OF 2017
8
2005 CriLJ 2957, (2005) 1 GLR 709
9
Appeal (crl.) 1131-32 of 1999

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faced in India:
 “Alternative Dispute Resolutions can only be used in petty criminal offences and not
on serious offences.
 Existence of dispute is one of the prerequisites of ADR. But in certain criminal cases
like rash and negligent driving, drunken driving etc. resulting in injuries or even death
of the pedestrians, there may not be any dispute between the criminal and victim, and
such difficulties limit the scope of ADR in Criminal trial.
 Arbitration decisions are final. There are very few exceptions where the decision
arbitration can be appealed, with fraud being an obvious exception. Additionally,
certain states do not enforce decisions of arbitrators that have unfair penalty. The
scope of arbitration is limited to specific disputes because some clauses are broad,
others are narrowly. If we take the case of any court then the decisions of a court,
usually, can be appealed to an appellate court for a variety of legal grounds and for
numerous alleged procedural errors”.

DRAWBACKS OF PLEA BARGAINING

While we scrutinize the merits of plea bargaining, we must remain objective in accepting the
3
consequences. Plea bargaining is nothing more than a ruse to hide the government's shortcomings
in dealing with each and every case that comes before it. It implicitly demonstrates the
3
ineffectiveness of traditional procedural laws. The prosecutor must consult the police for matters
of evidence and other factors (just as the court relies on the chargesheet filed by the police), and
in a country like India, the term "police" conjures up images of corruption, coercion, threats, and
other forms of violence against the accused or victim. All politicians, anti-social groups, and the
wealthy ruling class can acquire control of the negotiations through the use of the police. Plea
bargaining's scope isn't secure in terms of privacy; it needs to be controlled, and police intrusion
must be reduced to a fair amount. It is also recognized that this system offers a wide range of
benefits for the wealthy, as they will be able to influence prosecutors, victims, and police officers
throughout the negotiation process, and will control the poor, who are unaware of our culture.
There are a number of other issues with this concept. The plea-bargaining procedure, in theory,
reduces criminal justice administration to a barter system, where the haggling is between legal

9
punishment and profits for the wrongdoer. Second, even innocent defendants would succumb to
erroneous agreements and convictions in order to avoid the ordeal of a lengthy and costly trial.
Third, cases in which the accused might eventually be acquitted would be reclassified as
unjustified convictions. Such defendants may develop a negative view about the legal system.
Finally, plea-bargaining may be viewed as a violation of the values embodied in Article 21 of the
Constitution, which states that no person's liberty shall be deprived except in accordance with legal
procedures. The biggest criticism in the United States has come from human rights groups who
claim that plea bargaining violates the accused's human rights. Furthermore, involving police
3
investigators in the plea-bargaining process would open the door to coercion and corruption. If the
accused's guilty plea submission is refused, the accused will have a difficult time proving his
innocence before the same trial court.

CONCLUSION

Plea bargaining is unquestionably a disputed concept. Few people have embraced it, while others
have turned their backs on it. Plea bargaining does help to expedite case resolution, but it does it
in an unconstitutional manner. But it's possible that we won't have a choice but to use this method.
The criminal courts are overwhelmed and unable to hear each and every case. Finally, this shift is
neither good nor evil in and of itself. Rather, the question is whether, given a variety of options for
decreasing the massive backlog of cases in Indian courts, including plea bargaining will allow
choices to be made in a way that successfully advances the criminal justice system's core goals.
1
The Indian Criminal Jurisprudence has progressed from not recognizing the concept of
Alternative Dispute Resolution in criminal matters to incorporating the concept of plea bargaining
into the CrPC and establishing guidelines to recognize the mutually agreed settlement by the
parties to a dispute in cases that are not of a serious nature and have no societal impact. Alternative
Dispute Resolution (ADR) is an exception to typical court procedures that should be used more
frequently and completely. As a result, such out-of-court agreements are critical for reducing the
courts' excessive workload, and they should also become the 'new normal.'
Plea bargaining allows the court to spend less time on the case. It also aids the parties in
reaching an agreement. The legislation is sometimes written in such a way that the penalties are
severe despite the fact that the offences are minor. Plea bargaining avoids these issues and

10
assures the proper administration of justice. Furthermore, there are a few crimes that occur
frequently in everyday life, such as dowry torture, adulteration of food goods, and so on. The
court cannot handle all of the issues. As a result, the notion of plea-bargaining serves as an
Alternative Dispute Resolution in criminal law, ensuring that the people are treated fairly.

BIBLIOGRAPHY

 THE CODE OF CRIMINAL PROCEDURE, 1973

 THE ARBITRATION AND CONCILIATION ACT, 1996
 https://blog.ipleaders.in/alternate-dispute-resolution-criminal-jurisprudence/
 https://www.ijlsi.com/wp-content/uploads/Importance-of-ADR-in-Criminal-Justice.pdf
 https://www.legalbites.in/adr-in-the-indian-criminal-justice-system/
 https://lawcutor.com/2020/10/03/the-role-of-alternative-dispute-resolution-in-criminal-
trials-in-india/

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This project report is based on Descriptive Research Methodology. Secondary and ...
Hidayatullah National Law University, Raipur on 2022-03-24

restorative’ justice which views the crime as the violation ofone person
blog.ipleaders.in

Pleabargaining's
Tamil Nadu National Law University on 2021-05-14

it. Plea bargaining does help to expedite

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There are a number of other

Tamil Nadu National Law University on 2021-05-14

Supreme Courthas observed that this practice intrudes society's interests by oppo...
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