Plea Bargaining An Analysis in Respect of the Indian Legal System

lawzmag.comIt is truly said that justice delayed is justice denied. Indian judiciary is though fair, impartial and powerful and due to these features it has won the confidence of people. But the major problem is the delay in dispensation of justice which often puts a question mark on the credibility of the judicial system. Nani palkhiwala, the famous Indian jurist has also said that “the biggest problem in administration of justice is delay in deciding the cases, he also quoted that law may or may not be ass but in India it is a snail and our cases proceed at a pace which is regarded as slow in community of snails”. Due to its time consuming process it becomes burden on litigants and it results in losing faith in the judicial system.

So due to delay in courts and to reduce the burden of courts, the concept of plea bargaining was introduced in Indian judicial system in 2005 through the criminal law amendment act 2005 by inserting chapter 21A. It is mentioned in section 265 A to 265 –L in criminal procedure code 1973. “Plea bargaining is a system where defendant and prosecutor works out a mutual satisfactory disposition of case subject to courts approval. It usually involves defendant pleading guilty to lesser offence as to one or some of the courts of a multi count indictment in return for a lighter sentence than that possible for graver charge”. So basicaly it is kind of pre- trial negotiations where the defendant through his counsel between him and prosecutionpleads guilty in exchange for a lesser penalty This article tries to examine utility of plea bargaining and its relevance in Indian judicial system.This plea bargaining provides advantage not only to defendant but the prosecutor also as they could seek plea bargaining to save time of courts so that court could concentrate on high priority cases. Plea bargaining can be of two types charge bargain and sentence bargain the former gives accused opportunity to negotiate with the prosecutor so that by this number of charges against him could be reduced whereas in latter accused with consent of prosecutor and victim bargain for a lesser sentence than prescribed for that particular offence.


Prior to the amendment of 2005 plea bargaining was not recognized in Indian law as it was not mentioned in any statutes so no importance was given to it. Reference was however made to sections 206(1) and 206 (3) of code of criminal procedure 1973 and section 208 of motor vehicles’ act 1988. These provisions enabled accused to plead guilty for petty offences and to pay smaller amount of fines but there was no bargaining between prosecution and defendant.

Concept of plea bargaining was prevailing in United States and it gained its prominence in United States. It was in the case of assassination of Martin Luther king, the accused James Earl Ray pleaded guilty to avoid execution of death sentence and he got 99 years of imprisonment. In U.S. in a criminal trial accused have three options that is a) guilty, b) not guilty and c) plea of nolo contender which means I don’t wish to contend . So it is said that every minute a criminal case is disposed in America based on guilty plea bargaining or nolo   contender plea. Apart from U.S European countries have also recognized the concept of plea bargaining and also countries like  England and Wales, Australia plea bargaining is allowed.

Being taken from US legal system it was always said that the approach in India and U.S are different their socio economic conditions are different. It faced criticism on basis that it will lead to downfall of faith by giving lesser punishment to rich class

The law of commission of India in its 142nd and 154th report laid emphasis on introduction of plea bargaining system 142nd pointed out the success of plea bargaining in U.S and it should be made an important component in administration of criminal justice. The 154th report of law commission talked about alternative methods to handle huge arrears of criminal cases. The recommendation of law commission founded its support in form of Malimath Committee which was formed under chairmanship of Justice Dr. Malimath and the committee also favored introduction of plea bargaining system in India to reduce burden of courts.

ANALYSIS OF PLEA BARGNING IN CODE OF CRIMINAL PROCEDURE 1973 Section 265 A to 265L of criminal procedure code 1973 talks about plea bargaining and its procedures.

Plea bargaining is applicable only to those offences for which punishment of imprisonment is up to seven years and it does not apply to offences which affects socio economic condition of the country or has been committed against a women or a child below 14 years. Thus there cannot be plea bargaining for offences such as –

•Dowry prohibition act 1961,

•Commission of Sati prevention act 1987

•The indecent representation of women (prohibition) act 1986

•The immoral traffic prevention act 1956

•Protection of women from domestic violence act 2005

•Provision of fruit product order 1955( issued under essential commodities act 1955)

Apart from these acts in Army act 1950, Cinematograph act 1952, The Navy Act 1957 and The Air force act 1950, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 plea bargaining is not allowed. The application of plea bargaining is to be voluntarily filed by accused and in the court in which such offence is pending for trial. The accused and prosecutor are given time so that they could work out a mutual disposition of the case which may involve providing compensation to the victim and other legal expenses. After that if there is satisfactory disposition of case court shall dispose the case by sentencing accused to one fourth of the punishment provided for that particular offence. The most important point reflected in statute here is that statements or facts stated by accused in an application for plea bargaining shall not be used for any other purpose and judgment delivered by court here shall be final and no appeal shall lie in any court against such judgment.

With the system of plea bargaining, it will solve less serious and petty offences and court could focus on major serious offence so that there is faster dispensation of justice. Plea bargaining can help in reducing backlogs in Indian judicial system


Indian legal system initially did not recognized plea bargaining concept and termed it as unconstitutional which can be seen in series of cases. Supreme court also said that use of plea bargaining implies waiver fundamental right mentioned in article 21 and right to trial. Supreme court also said that it is wrong for them to enter into bargain and plea bargaining is unfair, unjust and violative of article 21 .In case of State of Uttar Pradesh v Chandrika apex court held that it is settled law that on basis of plea bargaining court cannot dispose the criminal cases. Court also said that merits alone to be considered for conviction and sentencing even accused confesses guilt it is constitutional obligation of court to award appropriate sentence. But after some time there was change in thinking of Judiciary which was reflected in case of State of Gujrat v.Natwar Harchanji Thakor where Gujrat High emphasized an alternative measure of redressal to deal with huge arrears of criminal cases. Court said object of law is to provide easy, cheap and expeditious justice by resolution of disputes including trial of criminal cases and to take into consideration present position for administration of justice. Court also mentioned that anything should not be static. So by this Court somehow laid emphasis on mechanism which reduces it burden and save the time of litigants and from this particular case concept of Plea Bargaining was indirectly reflected.


It would be correct to say that plea barging has changed face of criminal justice system. However earlier Indian courts hesitated for plea bargaining and they even called it immoral, unjust, unfair and unconstitutional. But this concept of Plea Bargaining is mechanism of providing convenience to the litigants who are facing delays in getting justice. This concept of plea bargaining should not only be judged on basis of legality, morality and constitutio nality as we know that in spite of having free, fair and strong judicial system we are facing delays in administration of justice. Plea bargaining was always a disputed concept some advocated it some pointed out loopholes in it. Being taken from US legal system it was always said that the approach in India and U.S are different their socio economic conditions are different. Apart from that opponents of this concept says that this concept has soft corner towards accused and unfair  with innocent also it could promote corruption while making compensation to victim. It was also face criticism on basis that it will lead to downfall of faith in judicial system by giving lesser punishment to rich class.

So there are the major drawbacks and loopholes in this system but its need of today. Over three crore cases are pending in Indian courts. With the system of plea bargaining, it will solve less serious and petty offences and court could focus on major serious offence so that there is faster dispensation of justice. Plea bargaining can help in reducing backlogs in Indian judicial system. A radical criminal change measure should be adopted to make the legal system more effective and transparent.

Ritwiz Harshvardhan

4 thoughts on “Plea Bargaining An Analysis in Respect of the Indian Legal System”

  1. sangeta says:


  2. garima says:

    nice article

  3. wassim says:

    well written

  4. fagun says:

    very good

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