Mehrul Arora


According to the Black’s Law Dictionary, plea bargaining means ‘an agreement set up between the plaintiff and the defendant to come to a resolution about a case, without ever taking it to trial.’ In today’s legal scenario, plea bargaining means when the plaintiff and the defendant negotiate amongst themselves and form a consensus or an agreement wherein the defendant agrees to plead guilty for an offence which has a lenient sentence or punishment, before the trial of the accused starts.


The concept of plea bargaining finds its roots in the American Criminal Justice System as in the United States, 75% of the total convictions are a result of plea bargaining and the Supreme Court of United States in the case of Brady v. United States[1] has upheld the constitutional validity of the same. In a landmark judgement of Bordenkircher V. Hayes[2], the US Supreme Court held that the constitutional rationale for plea bargaining is that there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

In the 141st, Law Commission Report of India, 1991, it was observed that injustice was caused in the administration of the criminal justice system because of dismissal of case due to default appearance and it was in the 142nd Law Commission Report of India, 1991, that the notion of plea bargaining as a reformative step was discussed in the context of Indian criminal justice system as there was a need to develop a method of speedy trial in order to provide justice to all, that too within a reasonable period of time and also to restore the confidence of people in the criminal justice system which was also discussed in the previous Law Commission Reports of India. Furthermore, in the 154th Law Commission Report of India,1996, it was suggested that the concept of plea bargaining should be given an experimental test in case of imprisonment of less than seven years and those under Section 329 of the Indian Penal Code, 1860. The justification for introducing the scheme was that it is not just and fair that an accused who wants to change or an accused who is honest and candid enough to plead guilty should be treated at par with an accused who claims to be tried at considerable time-cost and money-cost to the community.[3]

Plea Bargaining under the Code of Criminal Procedure 

In the case of Muralidhar Megh Raj v. State of Maharashtra[4] the Supreme Court had expressed its objection against the concept of plea bargaining and had observed that, “to begin with we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance.” In the case of Kasambhai Ardul Rehmanbhai v. State of Gujarat & Anr[5] the Supreme Court had expressed its apprehension that such a provision is likely to be abused.

Further in the case of State of Uttar Pradesh V. Chandrika[6] the Apex Court had held that it is a settled law that on the basis of plea bargaining the 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. It was further held that neither a mere acceptance or admission of the guilt should be a ground for reduction of sentence nor can the accused bargain with the court that as he is pleading guilty, sentence should be reduced. Similar judgements was also given in the case of Ganeshmal Jashraj v. Govt. of Gujarat [7].

But even after such judgements by the Supreme Court, the concept of plea bargaining was added to the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) through the Criminal Law (Amendment) Act, 2005 in the form of Chapter XXIA (containing sections 256A to 265L) ins. by Act 2 of 2006 and according to Section 265J of the Cr.P.C., a non obstante clause under this Chapter, which states that, the provisions of Chapter XXIA shall have effect notwithstanding anything inconsistent contained in any other provision of the Cr.P.C.

Plea bargaining draws its inspiration from Doctrine of Nolo Contendere which, according to the Black’s Law Dictionary means, ‘plea of guilt in the hope that a less severe punishment will be given.’ Further, plea bargaining involves three areas of negotiation which are as follows-

  • Charge Bargaining which means negotiation between the prosecutor and respondent for specific charges of crime for which the respondent has to face trial. This is the most widely used or common form of plea.
  • Sentence Bargaining which involves negotiation between the prosecutor and respondent wherein the respondent agrees to plead guilty for a lighter sentence.
  • Fact Bargaining is the least used method of negotiation which involves admission of certain facts so that some other facts are not introduced as an evidence in the court of law.
Procedure for Plea Bargaining

As per the provisions of Cr.P.C., Section 256A, Chapter XXIA is applicable on those accused whose reports has been forwarded by the officer who is in charge of the police station under Section 173, which alleges that an offence has been committed by the accused or a Magistrate who has taken cognizance of an offence on complaint after examining the complainant and the witnesses under Section 200, the process of which is issued under Section 204 of the Cr.P.C. The exception to this Section is that it does not include those offences which are punishable with death or imprisonment for life or imprisonment for a term exceeding seven years. But in the case of Kripal v. State of Haryana[8] the Supreme Court has held that neither the trail court nor the high court has the jurisdiction to bypass the minimum sentence prescribed by law.

Further, if an offence affects the socio-economic condition of the country or has been committed against a woman, or a child below fourteen years of age, then this Chapter is not applicable on the above-mentioned offences and for this purpose, the Central Government, by S.O. 1042(E), dated 11th July, 2006, has issued a notification in order to determine those offences which affect the socio-economic condition of the country, which includes the Dowry Prohibition Act, 1961; The Commission of Sati Prevention Act, 1987; The Immoral Traffic (Prevention) Act, 1956; Offences listed in Section 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000; The Army Act, 1950; The Explosives Act, 1884 etc. But this Chapter as per Section 265L of the Cr.P.C., shall not be applicable on any juvenile or child as defined in clause (k) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (50 of 2000).

According to Section 265B a person who has been accused of an offence may file an application of plea bargaining which shall contain a brief description of the case and the offence for which the person is accused of, in the Court in which such an offence is pending for trial and these statement of facts shall not be used for any other purpose except for the purpose of this Chapter as provided in Section 265K of Cr.P.C. An affidavit which is sworn by the accused should also be attached to the said application. After receiving the application, the Court shall fix a date and ask the Prosecutor or the complainant and the accused to appear on that date in order to satisfy itself that the accused has filed the application voluntarily. If the Court is satisfied that the application has been filed voluntarily, it shall provide time to both the parties of the case to work out a mutually satisfactory disposition of the case, the guidelines for which has been provided under Section 265C of the Cr.P.C., and such disposition may also include giving compensation to the victim by the accused.

Further, if a mutual satisfactory disposition of the case has been worked out, then, the presiding officer of the court shall prepare a report of such a disposition as mentioned in Section 265D of the Cr.P.C., which shall be signed by the presiding officer himself and all the parties who had participated in the meeting for the disposition of the case.

On the contrary, if the Court finds that the application by the accused has not been filed voluntarily i.e., involuntarily, or that the accused has been previously convicted for the same offence, then the Court shall proceed further in accordance to the provisions of the Cr.P.C. from that stage in which such an application was filed.

According to Section 265E of the Cr.P.C., the Court shall move forward towards disposal of the case (all the powers for such a disposal has been vested in the Court as per Section 265H), whose satisfactory disposition has been worked out by both the parties of the case, by awarding compensation to the victims and by hearing the parties regarding the quantum of punishment which, if the Court finds that minimum punishment has been provided under the law, then in that case it may sentence the accused to half of such minimum punishment or if the Court finds that the offence committed by the accused is not covered under the provisions of this section then it may sentence the accused to one-fourth of the punishment provided or extendable for the offence committed by the accused. Further, the provisions of Section 265-I also provide that the provisions of Section 428 of the Cr.P.C. shall also be applicable for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter.

The Court may release the accused on probation of good conduct or after issuing a warning under Section 360 of the Cr.P.C., if after hearing the parties, the court is of the view that the case of the accused attracts the provision of Section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Court may provide the benefit of any such law.

Further Section 265F states that the Court shall deliver its judgement as per the terms provided in Section 265E in an Open Court which shall be signed by the presiding officer and once the judgement is delivered under Section 265G, it shall be final and no appeal shall lie in any Court against such judgement except special leave petition under Article 136 and writ petition under Article 226 and 227 of the Constitution of India.

  • It helps in the reduction of cases pertaining to criminal matter.
  • Justice V. R. Krishna Iyer in the case of Babu Singh v. State of U.P.[9] remarked that, “speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceeding.” And thus, plea bargaining ensures speedy trial.
  • As plea bargaining is a reformative theory, the first step taken by the accused to confess his guilt, acts as the first step taken by the accused towards reformation and rehabilitation.
  • It saves the money of both the parties as well as the time and energy of the courts.
  • It is a threat to right to fair trial.
  • According to Section 265B of the Cr.P.C., the application filled by the accused should be voluntary, but taking into consideration the practical scenario, any person who is accused of an offence will avail the provision of plea bargaining as it provides a concession on the duration of the punishment. Thus, this provision of the of no utility.
  • In certain cases, the prosecutor might use coercion to make a person, accused of an offence, file an application of plea bargaining.
  • The scope of plea bargaining in the Indian criminal justice system is very narrow as it is not applicable on persons accused of an offence which is punishable with death, imprisonment for life, or imprisonment exceeding seven years.

The basic idea behind the introduction of the concept of plea bargaining was to reduce the backlog prevailing in the Courts by providing a speedy trial and justice to the victim within a rational period of time, but because this Chapter provides an arbitrary power to the Central Government to determine the various offences for which the provision of plea bargaining shall not be available, the very essence behind the introduction of this concept to the Indian criminal justice system is lost. The scope of plea bargaining is further reduced because this provision is only applicable on those persons who are accused of an offence which has a punishment of death, life imprisonment, or imprisonment exceeding seven years.

The onus to decide whether the application filed by the accused is voluntary or involuntary is left upon the Courts to decide on the basis of the facts of the case which again, is a time- consuming process and would ultimately result in the delay of justice, thus, further weakening the objective behind the introduction of the concept of plea bargaining.

In certain cases, the concept of plea bargaining may also result in the violation of Article 21 of the Constitution as it happened in the case of Thippaswamy v. State of Karnataka[10] in which the three – Judge Bench if the Court observed that, “it would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. Of course when we say this, we do not for a moment wish to suggest that the Court of appeal or revision should not interfere where a disproportionately low sentence is imposed on the accused as a result of plea-bargaining.But in such a case, it would not be reasonable, fair just to act on the plea of guilty for the purpose of enhancing the sentence.”

[1] 397 U.S. 742 (1970).

[2] 434 U.S. 357 (1978).

[3] Devina Gupta, ― “Plea Bargaining… A Unique Remedy to Reduce Backlog in Courts”, 116 CrLJ 67 (March


[4] AIR 1976 SC 1929.

[5] AIR 1980 854.

[6] 2000 Cr.L.J. 384(386): AIR 2000 SC 164.

[7] AIR 1980 SC 264.

[8] 1999 Crl. L.J. 503 1 (SC).

[9] AIR 1978 SC 527.

[10] AIR 1983 SC 747: 1983 CriLJ 1271: (1983) 1 SCC 194.

About the author: Mehrul is a third-year law student, pursuing her B.A.LL.B. (Hons.) from Law College Dehradun, Uttaranchal University

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