Dr.

Ram Manohar Lohiya National Law University, Lucknow

2018-19

Drafting, Pleading and Conveyance

An Analysis of Plea Bargaining Scheme in India

Pradyumna Poddar
| Enrolment No. 160101105 | Semester – VI)

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 Acknowledgements

I would like to take this opportunity to express my sincerest gratitude to Ms. Shakuntala
Sangam, whose contribution in stimulating suggestions and encouragement helped me in
setting the course of the proposed research. Her expert guidance, noble mentorship and
persistent help made it possible for me to complete the research project within the stipulated
time frame.

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Contents –

I. Introduction 4
II. Critical Analysis of the Plea Bargaining Scheme 5
a. Sentencing Discretion 5
b. Setting Aside an “Unconscionable Bargain” 7
c. Requirements of a Free Trial 8
III. Conclusion 8

Bibliography 10

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 I. Introduction

Plea bargaining was viewed conservatively by the Indian courts prior to 2005.1 The principle
justification for this conservative approach was that a crime is a wrong committed against the
society at large2 and a system, such as plea bargaining, which allows the accused to “bargain”
away his guilt should not be allowed. Earlier, the courts in India permitted leniency to be shown
in the form of lighter sentences being given depending on the facts of each case, however,
outrightly rejected the court being a party to a bargain.3 On the other hand, there also existed a
lobby for the introduction of plea bargaining in India to reduce the backlog of pending criminal
cases.4

Despite of the differences in opinion, plea bargaining, which was broadly understood as a
system of pre-trial negotiations where the accused pleads guilty in return for concessional
treatment from the prosecution, was ushered in by virtue of the Criminal Law (Amendment)
Act, 2005. This amendment act had added Chapter XXI A to the Criminal Procedure Code,
1973 (“Code”). This Chapter XXI A of the Code applies to an accused, who is charged for an
offence (excluding those for which the punishment is death or imprisonment for life or
imprisonment for a period exceeding seven years and which is not a socio-economic offence
and/or offence against a woman or child under the age of fourteen years)5 to file an application
for plea bargaining in the court where the trial is pending. The application for plea bargaining
has to contain a brief description of the case relating to which the application is filed including
the offence to which the case is related. The application has to be accompanied by an affidavit
sworn by the accused stating that he has filed the same voluntarily, after understanding the
nature and extent of punishment provided under law for the offence, the plea bargaining in his
case and that he has not previously been convicted by a court in a case in which he has been
charged with the same offence.6

1
Thippaswamy v. State of Karnataka, AIR 1983 SC 747; State of Uttar Pradesh v. Chandrika, AIR 1999 SC
164; Kachhia Patel Shantilal Koderlal v. State of Gujarat; AIR 1980 SC 854; Murlidhar Meghraj Loya v. State
of Maharashtra, AIR 1976 SC 1929.
2
RV Kelkar’s Criminal Procedure 425 (K N C Pillai ed., 4th edn, Eastern Book Company, Lucknow, 2005).
3
Madanlal Ram Chandra Daga v. State of Maharashtra, AIR 1968 SC 1267.
4
142nd Law Commission Report 26 (Concessional Treatment for Offenders who on their own initiative choose
to plead guilty without any bargaining), Government of India, Ministry of Law, 1991; 154th Law Commission
Report 33 (The Code of Criminal Procedure 1973), Government of India, Ministry of Law, 1996 and Malimath
Committee Report 168 (Reforms of Criminal Justice System), Government of India, Ministry of Home Affairs,
2003.
5
Section 265A of the Code.
6
Section 265B of the Code.

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On receiving the application, the court will examine the accused in camera.7 If the court is
satisfied that the accused has filed the application voluntarily, then the victim, the accused, the
investigating officer and the public prosecutor are given time to work out a “mutually
satisfactory disposition of the case”.8 Under Section 265E of the Code, the court shall award
compensation to the victim as mutually decided between the parties. However, as regards the
quantum of punishment, the court must only hear the parties and the court retains the final say
on sentencing. This Section 265E of the Code provides guidelines to the court, however these
guidelines are broad and not binding on the court. Furthermore, Section 265G of the Code
provides that the decision of the court will be final and the only redressal to the accused is by
way of a Special Leave Petition under Article 136 or a writ petition under Article 226 and 227
of the Constitution of India, 1950 (“Indian Constitution”).

II. Critical Analysis of the Plea Bargaining Scheme

The introduction of Chapter XXI A into the Code is certainly a step in the right direction. The
Code allows for the plea bargain to be triggered at the initiative of the accused, which is
materially different from the practice in other jurisdictions like USA, where an application is
made by the public prosecutor and the accused after negotiations between them are over.9
Furthermore, the Indian scheme allows the victim to play an active role in the negotiations
along with his pleader (if the victim so desires)10 and may even veto the compromise
agreement. However, there are several lacunae in the present law which are discussed below,
these defeat the purpose with which the scheme of plea bargaining was introduced in the Code.

a. Sentencing Discretion

Section 265E of the Code lays down a procedure whereby the court exercises control over the
process of plea bargaining. Hence, the nomenclature of “mutually satisfactory disposition” is
a misnomer to a certain extent, as the court is only bound to award the compensation to the
victim as per the agreement reached between the parties.11 As regards the sentencing, the
discretion rests solely with the court. The Court has the discretion to sentence the accused to
half of the minimum punishment prescribed under law (if so provided). If no minimum
punishment is prescribed under law, then the judicial officer may sentence the accused to half

7
Section 265B of the Code.
8
Section 265C of the Code.
9
Sonam Kathuria, “The Bargain Has Been Struck: A Case for Plea Bargaining in India”,
(http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-279FA2B9AF8A.pdf)
10
Section 265C of the Code.
11
Section 265E (a) of the Code.

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the punishment prescribed under law.12 It may be argued that even under ordinary criminal
procedure, discretion is available to the court with respect to sentencing, and judicial
fluctuation in punishment does not per se violate the right to equality guaranteed under the
Indian Constitution.13

While the presence of a judicial officer, ensures “no risk of underhand dealings or for coercion
or improper inducement by the prosecution”,14 plea bargaining requires a different approach
with respect to sentencing discretion with the court. This is primarily for two reasons; firstly,
the central theme of the plea bargaining system is the mutuality of benefit to the parties
concerned;15 and secondly, because there is no provision for an ordinary appeal against the
decision of the court under the plea bargaining arrangement.16

For instance, in the American system the accused would approach the court in a situation where
the prosecution is agreeable to concessional treatment, as well as the “extent” of such treatment.
In other words, when one invokes the plea bargaining procedure before the court, one is assured
of the extent of the concession he is likely to secure in the event of the application being allowed
by the court.17 Unless there is a reasonable chance of securing some advantage, no accused
would avail of this scheme. In India however, such “haggling-haggling”18 between the accused
and the prosecutor is considered unacceptable and hence “some other formula requires to be
evolved in order to make the scheme reasonably attractive or workable.”19

Therefore, under this scheme in India, it is theoretically possible that the court may give
different sentences for two persons accused of the same offence or in a graver situation, provide
no concessionary treatment at all. The decisions of the courts have provided little clarity on
account of the various High Courts having taken different stands with respect to sentencing
discretion under Section 265E of the Code. The Hon’ble High Court of Delhi20 in 2011 held
that Section 265(c) and (d) of the Code provide for the maximum sentence which can be
awarded by the court and the court must consider the mitigating circumstances. The Hon’ble
High Court of Bombay21 in 2012 however held, that the term “may” under Section 265(c) and

12
Section 265E (b), (c) and (d) of the Code.
13
Inderjeet v. State of Uttar Pradesh, AIR 1979 SC 1867.
14
142nd Report, Page 35 (Please refer to foot note 4).
15
Malimath Report, Page 187 (Please refer to foot note 4).
16
Section 265G of the Code.
17
142nd Report, Page 33 (Please refer to foot note 4).
18
142nd Report, Page 28 (Please refer to foot note 4).
19
142nd Report, Page 35 (Please refer to foot note 4).
20
Ranbir Singh v. State, Crl M C 1705/2011.
21
Guerrero Lugo Elvia Grissely v. The State of Maharashtra, 2012 Bom CR (Cri) 328.

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(d) of the Code should be read as “shall”, thereby, leaving no discretion to the court in awarding
sentences under the Code. The court held that any other interpretation would be “…destructive
to the legislative intent…In our view, if the provision was to be interpreted to have invested
discretion in the Court to decide on the quantum of the sentence, it would introduce an
environment of uncertainty in awarding sentence. That may shake public confidence and would
be counter-productive.” A ruling from the Hon’ble Supreme Court of India on this topic would
authoritatively decide the correct interpretation of Section 265(c) and (d) of the Code.

In the absence of a ruling from the Hon’ble Supreme Court of India and/or guidelines similar
to the Sentencing Reform Act, 1984 of USA, such unfettered discretion with the court at the
cost of uniformity may be discriminatory and work against the objective of the plea bargaining
scheme.

b. Setting Aside an “Unconscionable Bargain”

What constitutes a “mutually satisfactory disposition of the case” or how it may be arrived at
is left ambiguous by Section 265D of the Code and in the absence of any form of guidelines,
provides leeway to a settlement which may be skewed unfavourably against the accused.22 The
current provisions ignore the possibility of a power imbalance between the prosecution and the
accused.23 Especially in India, given the delays in the judicial system,24 where accused persons
face the risk of spending several years as an under-trial, many may be induced to plead guilty
despite their innocence or to agree to an “unconscionable bargain”.25

Under the present scheme, the court does not have to entertain an application if it is ascertained
at the very outset that the accused did not file it voluntarily.26 However, the plea bargaining
scheme has no provision for the court to reject the settlement arrived at by the parties.
Typically, in an adversarial set-up, if the opposing parties reach a settlement, then the deciding
authority should not be allowed to disturb it.27 However, in a scenario where there may be
serious inadequacies in the capabilities of the accused and/or a risk of prosecutorial coercion,
a reasonable level of discretion on the part of the deciding authority is needed. Such failure to

22
S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India”, 2 SCC (Cri) J-12 (2006).
23
P Darbyshire, “The Mischief of Plea Bargaining and Sentencing Rewards”, 11 Criminal Law Journal 901
(2000).
24
154th Report, Page 33 (Please refer to foot note 4).
25
R Stone, The Modern Law of Contract 346 (6th edn, London, Cavendish Publishing Ltd, 2005).
26
Section 265B of the Code.
27
S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India” (2006) 2 SCC (Cri) J-12.

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provide the court with a broad discretion to reject the compromise agreement will inevitably
lead to injustice.

c. Requirements of Free Trial

The Code once again, takes into account some aspects of free and fair trial while misses out
others. For instance, the Code makes it mandatory for the judgment to be pronounced in open
court.28 There is also provision in favour of the accused which stipulates that the statement or
facts stated by an accused in the plea bargaining application cannot be used for any other
purpose.29

The two principal impediments in the process of fair trial are firstly, the absence of an
independent judicial authority to receive and assess the pleas. Impartiality of the judicial
authority is an essential condition of a fair trial,30 which is sought to be ensured through several
provisions31 of the Code. Section 265 of the Code however does not ensure the impartiality of
the competent authority. The judicial authority admitting the plea under the scheme may at a
later point try the accused under the ordinary criminal procedure, in case the claim of the
accused fails to be admitted under the plea bargaining scheme. The Law Commission of India32
also expressed concern about the fairness of the trial in the absence of an independent judicial
authority and recommended the position of “plea judges”, who would not try ordinary cases,
to admit pleas under the plea bargaining scheme. Secondly, in case a mutually satisfactory
disposition has not been reached, Section 265D of the Code requires the court to make an
observation regarding the same. There is however in this process, a failure to make confidential,
any order passed by the court rejecting an application which may potentially create prejudice
against the accused.

III. Conclusion

It is not only efficacious but also necessary, given the backlog of cases in the Indian Courts,
that the plea bargaining be implemented effectively. However, the present provisions as they
stand are too broad and need fine tuning to a large extent. This “half way house” can probably
be attributed to the fact that the system of plea bargaining in India is still in the nascent stages.
Several important safeguards are conspicuous by their absence in India. Ironically, the

28
Section 265E of the Code.
29
Section 265K of the Code.
30
Union of India v. G S Bajwa, (2003) 9 SCC 630; Zahira Sheikh v. State of Gujrat, (2006) 3 SCC 374.
31
Sections 191, 352, 407 of the Code.
32
142nd Report, Page 24 (Please refer to foot note 4).

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provisions introduced in the Code do no incorporate all the recommendations of the two Law
Commissions and the Malimath Committee Report, which had more safeguards than the
present system. It is possible that the poor usage of the plea bargaining scheme since its
introduction in India could be on account of these lacunae in the law. In order to make the plea
bargaining system in India truly effective, sentence bargaining has to be introduced in the form
of sentencing guidelines, like those present in USA. A ruling from the Hon’ble Supreme Court
settling the issue of the discretion available with the court under the scheme will provide much
needed clarity.

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Bibliography

 142nd Law Commission Report 26 (Concessional Treatment for Offenders who on

their own initiative choose to plead guilty without any bargaining), Government of
India, Ministry of Law, 1991.
 154th Law Commission Report 33 (The Code of Criminal Procedure 1973),
Government of India, Ministry of Law, 1996.
 Malimath Committee Report 168 (Reforms of Criminal Justice System), Government
of India, Ministry of Home Affairs, 2003.
 P Darbyshire, “The Mischief of Plea Bargaining and Sentencing Rewards”, 11 Criminal
Law Journal 901 (2000).
 R Stone, The Modern Law of Contract 346 (6th edn, London, Cavendish Publishing
Ltd, 2005).
 R V Kelkar’s Criminal Procedure 425 (K N C Pillai ed., 4th edn, Eastern Book
Company, Lucknow, 2005).
 S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India”, 2 SCC (Cri)
J-12 (2006).
 S Rewari and T Aggarwal, “The Introduction of Plea Bargaining in India” (2006) 2
SCC (Cri) J-12.
 Sonam Kathuria, “The Bargain Has Been Struck: A Case for Plea Bargaining in India”,
(http://www.manupatra.co.in/newsline/articles/Upload/3BEB7B04-1EE3-48EB-8716-
279FA2B9AF8A.pdf).
 The Code of Criminal Procedure, 1973.

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