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Plea Bargaining: The Future?

Justice delayed is justice denied: A true and harsh reality which still haunts Indian judiciary. There is a backlog of cases in Indian courts, and it is not a new problem it merged way back and thus the lawmakers to curb the same, though of introducing an alternate dispute resolution in criminal law and then they came with idea of plea bargaining. Plea bargaining is a negotiation between prosecution and accused during the pre-trial period. Exchange of certain concessions may be given if the accused pleads guilty. In other words, it is a negotiated agreement between the criminal defendants and the prosecutor in which the defendant agrees to be placed "guilty" or "no contest" to some crimes, along with possible conditions, such as attending anger management classes in the reduction of severity of charges.

The concept of plea bargaining originated in the US and now almost 75% of cases there are solved through it and thus there is not much hurdle on the judiciary in terms of cases. The Supreme Court of the US upheld the validity of plea bargaining in the case of Brady v. United States (897 U.S 742).

In India, many law commission reports suggested introduction of plea bargaining like 142nd report of 1990 or 154th report of 1996. Finally on recommendation of Malimath Committee on "criminal justice system" in 2002-03, the legislators introduced new chapter XXI A in CrPC, 1973 by amendment in 2005. It can into force from 5th July 2006. There are three type of plea bargaining in law namely charge bargaining, sentence bargaining and fact bargaining. In India concept of sentence bargaining followed whereas in US it is charge bargaining.

Provisions of Chapter XXI A:

In cases instituted on police report or complaint where offences are not punishable with death or life imprisonment or imprisonment exceeding 6 months, this chapter applies. Many socio-economic offenses as notified by the Central government are in the ambit of this chapter. The application is presented by accused during trial being pending, stating offense to which case relates and an affidavit that he voluntarily preferred the application understanding nature of the punishment which could be provided and that he is not previously convicted in the same offense by the court. Court fixes date for public prosecutor or complainant to appear, where in-camera examination takes place. Then court orders for mutually satisfactory disposition by parties, pleaders, and victims. Then the report is submitted to the court being signed by members who participated in a deposition with the presiding officer. As per the result of the report, court either orders to start pending trial where it stopped or orders for release of accused on the ground of good behavior under section 360 CrPC. No appeal against an order under this Chapter shall lie to any court except under SLP in Article 136 of Constitution to SC or Article 226 or 227 to HC.

Judiciary of plea bargaining:

The earliest cases in which the concept of plea bargaining was considered by the Hon’ble Court was Madanlal Ramachander Daga v. State of Maharashtra (AIR 1968 SC 1267) in which it observed: “In our opinion, it is very wrong for a court to enter into a bargain of this character. Offenses should be tried and punished according to the guilt of the accused. If the Court thinks that leniency can be shown on the facts of the case it may impose a lighter sentence.”

In State of U.P v. Chandrika (AIR 2001 SC 164) The Hon’ble Apex Court observed: “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 sentence be reduced.”


Plea Bargaining is a good concept to reduce the number of cases with courts, but it can be misused by those in power or on whims of those prosecutors who do not wish to do their duty properly. Thus legislators in India have given this a strict interpretation with the help of the judiciary so that it cannot be misused. This concept has not helped a lot in reducing cases in courts and thus there is a need to think of something different like appointment of more number of judges so that more cases are solved and secondly speedy disposal of cases in need of an hour.


Swati Tolambia is currently studying law from the School of Law, Mody University of science and technology Laxmangarh, Sikar (Raj.) As Swati writes this, she is interning with us.

You can contact them:https://www.linkedin.com/in/swati-tolambia-bb22401aa

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