All about plea bargaining – iPleaders

This article is written by Sahil Arora. The article talks about the situation in which the accused enters into a bargain with the victim for compensation in return for minimising the sentence. The defendant pleads guilty to a lesser offence or (in the case of multiple offences) to one or more of the offences charged in exchange for more lenient sentencing, recommendations, a specific sentence, or a dismissal of other charges. 

It has been published by Rachit Garg.

The newly appointed Law Minister of India, Arjun Ram Meghwal, informed the Rajya Sabha that the number of cases pending in Indian courts has crossed the mark of 5 crore. These cases are pending in the Supreme Court of India, 25 high courts and subordinate courts. There could be numerous reasons for the pendency of these cases, such as lack of infrastructure, procedural delays, inadequate legal aid, vacations and holidays, an insufficient number of judges, a delay in the appointment of judges, and a lot more. No matter what the major reason for this is, but at the end, it is the parties to the case that have to suffer. The victim has to wait for years to get justice, and unfortunately, sometimes they are not alive during the time they get justice. On the other hand, the accused also has to face criticism from society along with the harsh behaviour of the officials, even if he is innocent until he is declared so by the court. So to deal with all these problems, the lawmakers of India added a special chapter in the Code of Criminal Procedure (CrPC), 1973, under the heading of ‘plea bargaining’. It is not a new concept; already, there are around 90 countries in whose legal systems there is a provision for this concept.

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By breaking this term into two parts, we can more easily understand the meaning of the term plea bargaining. In the context of this concept, the word ‘plea’ means “request” and the word ‘bargaining’ means “negotiation”. So, in simple terms, it means a process under which a person who is charged with a criminal offence negotiates with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence. It is based on the principle of ‘Nolo Contendere’, literally meaning ‘I do not wish to contend’.

This explanation contains in itself various elements, like, firstly, that this concept can only be used in the case of a criminal offence. In civil cases, the victim cannot make use of this tool. Secondly, the accused or defendant in this concept negotiates with the prosecutor. Thirdly, here both parties make an agreement where the defendant promises that he will plead his guilt in front of the court, and in return, the prosecutor makes some concessions in his punishment and lessens his punishment to some extent. One thing that is to be noted is that in all this process, there is no active role for the judge. He only has a supervisory role to play.

According to the Black’s Law Dictionary, plea bargaining is “an agreement set up between the plaintiff and the defendant to come to a resolution about a case without ever taking it to trial.

The concept of plea bargaining is contained in Chapter XXI-A of the CrPC under Sections 265A-265L. This part was added by the Criminal Law (Amendment) Act of 2005. These provisions provide the procedure for filing the application of plea bargaining, and along with it, they also put limitations or exceptions where this concept cannot be used.

Exceptions to plea bargaining

  1. Offences that are punishable with death, imprisonment of life, a term exceeding 7 years of imprisonment,
  2. Offences against women (like stalking or rape),
  3. Offences against children under the age of 14
  4. Offences that affect the socio-economic condition of a country (like food adulteration or money laundering)
  5. Apart from this, where the court finds that a person has been convicted under the same offence previously or that he (accused) has involuntarily filed the application under this concept, the court can proceed further in accordance with the law from the stage where such an application has been filed.

Examples of plea bargaining

Reduction of charges

In some cases, a defendant may decide to plead guilty to a charge that is less severe than the original accusation in order to receive a more lenient punishment. For instance, someone who has been charged with aggravated assault might choose to plead guilty to simple assault in exchange for a reduced sentence.

Dismissal of charges

A defendant may choose to plead guilty to a lesser offence or accept a reduced sentence in return for the dismissal of certain charges. For instance, someone accused of multiple counts of theft might plead guilty to only one count and have the remaining charges dismissed as part of a negotiated agreement for a shorter sentence.

Recommendation for a specific sentence

If the defendant pleads guilty, the prosecution has the discretion to suggest a specific sentence. For instance, in a case involving embezzlement charges, the defendant may opt to plead guilty and, as a result, be granted probation on the condition of making complete restitution.

Plea bargaining has a very long and varied history across the world. Its origin can be traced back from the time of Rome to present-day America, and it is now spreading across numerous developed and developing countries’ legal systems.

Ancient origins

Ancient Rome

The practice of plea bargaining was referred to as “in iure cessio” under ancient Rome. In this system, the defendant had the option to avoid a formal trial by confessing his guilt and willingly submitting himself to the punishment. As a result, the defendant often received reduced penalties or avoided harsher punishments, such as death.

Ancient Athens

In ancient Athens, a similar practice known as “sycophancy” prevailed. Defendants had the opportunity to negotiate with the accused person in order to bypass or avoid the formal legal proceedings by either admitting their wrongdoing or providing restitution. This informal process aimed to settle disputes without burdening the legal system.

Germanic Law

During medieval times in Europe, Germanic law systems introduced the elements of plea bargaining. Defendants had the opportunity to reach agreements with victims or authorities to compensate for the crimes they committed, which often resulted in reduced sentences or fines. These agreements played a very crucial role in maintaining social order in society.

Islamic Law

Islamic legal traditions also included aspects of negotiated settlements, particularly in cases involving financial compensation or restitution. The focus was on achieving justice and making amends, rather than solely punitive measures.

Medieval Europe

Throughout the medieval era in Europe, spanning approximately from the 5th century to the 15th century, the legal systems displayed significant diversity. Sometimes they lacked the centralised structures that are prevalent in modern times. Although plea bargaining did not exist as a formalised process at that time, informal negotiations and settlements were customary in nature in various forms. A few of them are described below:


One popular and widely employed technique was known as “compurgation” or “ordeal by compurgation.” According to this system, the defendant would solemnly declare their innocence, and with the assistance of a few oath-helpers who would act as witnesses, they would testify about the good reputation of the defendant. If a satisfactory number of oath-helpers were obtained, the defendant would be then discharged or acquitted of the charges. This procedure involved negotiations between the accused individuals and their supporters so as to evade severe penalties.


Another concept that was widely accepted in the medieval Europe was “wergild,” or “blood money.” The term is referred to as the sum of money that victims or their families would receive as compensation from the liable or guilty party, the perpetrator or wrongdoer, or their relatives. This compensation purpose is to prevent any escalation of conflicts or legal actions, and instead of focusing on facilitating negotiated settlements as a means to resolve disputes.

Trial by combat

In certain specific situations, the individuals had the opportunity to resolve their conflicts by engaging in combat. This approach enabled the accused person to battle their accuser as a way to establish their innocence. Despite the inherent risks, it still provided an opportunity for the accused to avoid harsher penalties.

Involvement of church

The medieval legal system often had strong connections and ties to the church with ecclesiastical courts, which are also known as court Christian or court spiritual and also played a crucial role in their time. The church promoted reconciliation and forgiveness, and in some situations, it also urged mediated settlements as a means to seek self-punishment and avoid grave spiritual consequences.

The aforementioned practices should not be seen as formalised plea bargaining systems but rather as ‘informal means’ for individuals to negotiate or resolve conflicts. These early negotiation and settlement methods laid the foundation for the establishment and development of more organised plea bargaining systems in the following centuries.

United States

Plea bargaining, as we know it today, has a significant history and impact on the U.S. legal system. Mentioned below is a comprehensive analysis of its evolution:

Early use

The concept of plea bargaining can be traced back to the 19th century in the United States. During that time, an excessive number of cases overburdened the courts, and trials were frequently lengthy and expensive. As a result, informal discussions or negotiations between the defendants and prosecutors began taking place during this period.

Rise in the 20th century

The concept of plea bargaining gained popularity in the coming years, which can be attributed, in one way, to the increase in the number of cases resulting from criminal activities during the ‘prohibition era’. Prosecutors started utilising plea bargains as a technique to ensure convictions and, at the same time, reduce the uncertainties associated with the trial outcomes. And on the other hand, the growing percentage of reduced charges in exchange for guilty pleas shows that the prosecutors may have found it proper to offer greater concessions in return for guilty pleas.


In the 20th century, plea bargaining went through the process of formalization. Pioneering legal scholars acknowledged its indispensability to the criminal justice system, leading to its wider adoption by the courts. A milestone was reached in 1970 in the landmark case of Brady v. United States, where the Supreme Court of the U.S. upheld the constitutionality of plea bargaining.

Role of sentencing guidelines

The implementation of sentencing guidelines in the late 20th century significantly influenced the practice of plea bargaining. Defendants who chose to go for a trial and who were convicted eventually faced a greater likelihood of receiving harsh sentences. Consequently, this provision provided them with a strong incentive to engage in plea negotiations with the opposing victim party.

Controversy and critique

Despite being widely used, plea bargaining has faced significant criticism. There are people who believe that it can result in unfair outcomes, as individuals who are accused may feel pressured to agree to the agreements even when they are not guilty. Furthermore, some individuals also express apprehensions regarding the lack of transparency and the potential for coercion during the negotiation process.

Present situation

Currently, plea bargaining holds an important position within the criminal justice system of the United States. Nowadays, the majority of the criminal cases are resolved through plea bargaining rather than going through the traditional process of trial. If the government possesses a strong case, it may extend a plea deal to the defendant as an option to bypass the trial. This helps in enhancing the efficiency of the legal process as well as the legal system, reducing court congestion, and regulating costs. 

Plea bargaining in the United States has a compelling history, growing from informal negotiations to a well-established system that currently serves as a fundamental aspect of the American criminal justice system. On one hand, supporters are highlighting its efficiency, and on the other hand, critics are expressing concerns about its impact on justice and fairness; thus, this practice continues to generate significant debate even after it is popularised throughout the nation.


Historical context in India

India has a rich legal history covering the ancient and medieval eras, characterized by a wealth of legal practices. These periods saw the widespread usage of methods such as arbitration and mediation, which were widely employed for resolving disputes, bypassing the need for lengthy court trials, and so on. Under British colonial rule, India’s legal system went through substantial transformations by adopting components of British common law. However, the formal practice of plea bargaining, as observed in modern times, was not present in the colonial legal system. Although there have been historical instances that can be labelled as plea bargains, the modern concept only emerged in the 19th century, having traces in American Judiciary.

India did not feel the need for plea bargaining due to the presence of the jury system until the 1960s, when legal representation was permitted.

Then, in the year 1991, the 142nd report of the Law Commission of India was released, which mooted the idea of ‘concessional treatment’ of those who plead guilty on their own volition but was careful to underscore that it would not involve any plea bargaining or “haggling” with the prosecution. It made its recommendation based on the efficacy of the American model. The report further stated that such a practice is consistent with both the Constitution and the Fairness Principles. It further addressed coherent contentions and further conducted a survey, which established that the majority of the legal community was in favour of such practice.

The Law Commission, in its subsequent reports as well, underscored the need for such a practice. In its 154th report in 1996, it called for having a remedial measure for the timely disposal of trials for the betterment of under-trial prisoners.

Then in 2001, in its 177th report, the need for the concept of plea bargaining was reiterated. And in 2003, the Justice Malimath Committee suggested reforms to the criminal justice system and endorsed various recommendations of the Law Commission with regard to plea bargaining.

The question of plea bargaining’s legitimacy and constitutionality was then settled in case State of Gujarat v. Natwar Harchandji Thakor, (2005), the court recognised the value of plea bargaining and that each “plea of guilt”, which is considered to be part of the process of a criminal trial, should not be assessed factually but rather evaluated on a case-by-case basis. 

Introduction of plea bargaining in India

In an attempt to streamline the judicial system and reduce the burden on India’s overloaded courts, the implementation of plea bargaining was officially introduced. Its main objective is to provide an opportunity for the accused individuals to willingly admit their guilt in exchange for a reduced charge or sentence. Initially, plea bargaining exclusively applied to certain types of offences, particularly those carrying shorter sentences, such as minor misdemeanours, but as time goes on, its ambit goes on expanding.

Implementation and challenges

Despite being introduced into Indian legislation, the execution of plea bargaining has encountered hurdles time and again. Factors such as cultural influences, socio-economic circumstances, and a lack of knowledge among the accused individuals have all played a role in hindering its acceptance. The effectiveness of plea bargaining relies on the discretion of the prosecutors and the judges, as well as the willingness of both parties to engage in a negotiation.

Present-day situation

Currently, plea bargaining remains an integral part of India’s criminal justice system, primarily utilised for speeding up trials and alleviating the court’s caseload in cases which are related to minor offences. Its impact on case resolution has been diverse, resulting in some instances being swiftly and efficiently resolved through this mechanism.

There are numerous forms of plea bargaining, and each of its forms has its nuances, which can be employed depending on the circumstances of each case. A few of them are as follows:

Charge bargaining

This is the form of bargaining in which the defendant agrees to plead guilty to the offence in exchange for a lesser serious charge than the one initially filed by the prosecution, in which there were much more serious charges. This kind of bargaining is permissible in cases where the maximum punishment is imprisonment for seven years or less.

Sentence bargaining

In this form of bargaining, the defendant or the accused agrees to plead guilty to the offence on the original charges filed by the prosecution in expectation of receiving a lesser sentence than they might receive if convicted at the trial.

Fact bargaining

This form of bargaining is generally not favoured by the courts, as it is considered to be against the criminal justice system. It involves an agreement between the defendant and the prosecution where they both agree on specific facts or evidence that will be presented or omitted at the trial. This way, only a particular set of facts is presented to the court. This could affect the strength of the case, and there are chances that a more favourable outcome would come in favour of the defendant.

Count bargaining

In this form, the defendant pleads guilty to only some charges filed by the prosecution, while others are dropped. This is mainly prevalent when someone is facing many charges and thus agrees to admit only a few of them to avoid more serious consequences.

Alford plea

Under this plea, the defendant maintains his innocence but also admits that the prosecution has enough evidence that is likely to secure his conviction. This way, the defendant makes a plea deal without explicitly admitting his guilt. Thus, the defendant here is able to maintain his innocence in the eyes of the court.

No contest plea

This is a form of plea where the defendant neither admits his guilt nor denies it. This plea is treated as a guilty plea for sentencing purposes, but it can also protect the defendant, to some extent, from civil liability because they have not admitted their fault.

These are some types of plea bargaining that offer defendants and prosecutors flexibility in negotiating the outcomes based on the strength of the case, the defendant’s willingness to accept its responsibility, etc.

As mentioned above, under the CrPC, there is a special chapter that was added in 2005 to introduce the concept of plea bargaining in the Indian legal system. In total, there are 12 provisions that explain and cover the whole process of plea bargaining, which are discussed in detail below:

Application of the Chapter

Section 265-A explains when the concept of plea bargaining would come into picture. According to this section, plea bargaining can be made where a report under Section 173 of the CrPC is made or a magistrate has taken cognizance of an offence. After examining the complaint under Section 200 of the CrPC, he issues the process under Section 204 of the CrPC for the offences that are punishable with less than seven years of imprisonment. But this plea cannot be taken in the case of offences that affect the socio-economic condition of the nation or that are committed against a woman or a child under 14 years of age. And the Central Government shall establish the crime under the current applicable legislation that will impact the socio-economic status of the country. 

Application for plea bargaining

Section 265-B says that the person who wants to avail of this plea has to file an application in court in which the trial for such an offence is pending. In the application, the defendant has to tell his case in brief, and along with the application, an affidavit has to be attached in which he has to swear that he is filing this application willfully and after understanding all the consequences of taking this plea. Also, the defendant has to mention that he has not been previously convicted by a court in a case in which he had been charged with that same offence.

After receiving the application, the court will issue notice to the complainant or to the public prosecutor, as the case may be, and the accused has to appear on the date fixed for the case. After this, when everyone appears for the case, the court shall record the statement of the accused in front of a camera where the other party is not present to satisfy itself that the accused has filed the application voluntarily. Once the court is satisfied that the accused has filed the plea voluntarily, it can ask the party to go for a mutually satisfactory disposition where the victim is compensated by the accused, and then a date is fixed for the next hearing. But if the court thinks that the application was not filed voluntarily or that the accused has been previously charged for the same offence, it shall proceed further in accordance with the procedure of the Code of Criminal Procedure from the stage where such an application was filed.

Guidelines for mutually satisfactory disposition (MSD)

As per Section 265-C, where the court is satisfied that the application of plea bargaining was filed voluntarily under a case instituted on a police report or otherwise than on a police report, the court shall issue notice to the parties and, where required, to the public prosecutor and police officer to participate in the meeting and do a MSD. Throughout this process, the court has the duty to ensure that the parties in the meeting are working voluntarily. The court is under the duty to ensure that the parties are voluntarily participating in the whole process, and if the accused or the victim wants, they can participate in the meeting along with their pleader.

Report of the mutually satisfactory disposition (MSD) to be submitted before the court

Then as per Section 265-D, where the MSD worked out successfully, the court has to prepare a report of such a disposition, which will be signed by all the persons present in that disposition along with the presiding officer of the court. But if the MSD didn’t work out, the court has to record its observations and then proceed further with the case in accordance with the provisions of the CrPC from the stage where the application of plea was filed.

Disposal of the case

When there is a satisfactory disposition of the case under the previous section, the court shall under Section 265-E proceed by awarding compensation to the victim as per the disposition arrived at and, at the same time, hear the parties on necessary things like the quantum of the punishment. Then, if the accused falls under the purview of Section 360 of the CrPC or under the Probation of Offenders Act, 1958, or any other law, he may be released on probation to provide for the benefit of any such law. Then the court will see that if there is any clause for the minimum punishment for that offence, then the court will sentence the accused to half of the minimum punishment for that offence. And in certain cases, the sentence is made one-fourth of the punishment provided or extendable, as the case may be, for that offence.

Judgement of the court

In regard to the terms of the previous section, the court as per Section 265-F has to deliver its judgement in the open court, and the same shall be signed by the presiding officer of the court.

Finality of the judgement

The judgement provided by the court will be considered final as per Section 265-G. And no appeal can lie in any court against such a judgement except the Special Leave Petition (SLP) under Article 136 of the Indian Constitution or the writ petition under Article 226 and Article 227 of the Constitution.

Power of the court in plea bargaining

In accordance with Section 265-H, the court shall possess all the powers that are necessary for fulfilling its responsibilities under this chapter, including those related to granting bail, conducting trials for offences, and handling other matters related to the case resolution as prescribed by this Code of CrPC.

Period of detention undergone by the accused to be set off against the sentence of imprisonment

As per Section 265-I, the role of Section 428 of the CrPC shall apply in this case, and the time period of detention already undergone by the accused shall be set off against the sentence of imprisonment imposed. This will work in the same manner as it applies in respect of imprisonment under other provisions of this Code.


As per Section 265-J, the provisions stated in this Chapter shall remain valid regardless of any conflicting provisions found in other sections of this Code, and no interpretation of the provisions in this Chapter shall be limited by any of the aforementioned conflicting provisions. And for the purpose of this Chapter, the term “public prosecutor” shall have the same meaning assigned to it under clause (u) of Section 2 and shall also include an assistant public prosecutor designated under Section 25 of the CrPC.

Statements of the accused not to be used

In accordance with Section 265-K, the statements or facts that were stated by the accused in the application filed by him regarding plea bargaining shall not be used for any other purpose except for the purpose of this chapter. 

Non-application of the chapter

As per Section 265-L, nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Benefits to the defendant

  • A major reason why a person prefers to accept his guilt under the plea bargaining concept is that he believes that by accepting the charges and making a plea, he will be given some relief in the punishment, and there could be some chance that he will, even if given punishment, not be given the maximum that is prescribed for that offence. And even if the sentence is not reduced, he may get punishment for some less severe charges.
  • This is no hidden fact that even after numerous reforms in the judicial system, a common man still has to face many troubles. So instead of getting crushed in the system and facing stress and anxiety, a person prefers to quickly finish the trial by accepting his guilt and making a plea bargain along with it.
  • By making the plea, a guilty person no doubt still has to face some punishment, but that is comparatively less than what he would often have to face. And this brings the possibility of maintaining his family ties and fulfilling his obligations towards his family.
  • Because of the quick completion of the trial, the news regarding facing the trial by the defendant will not widely circulate in the society, and thus the person has to face less stigma from the society. This is often used to avoid publicity and getting embarrassed.
  • Another benefit a defendant finds is that either he chooses to go with a complete trial or shortens the trial by accepting his guilt. He has to pay the necessary expenses involved in the case and devote the time to complete the court proceedings; thus, he prefers to choose the latter option and get some relief this way.

Benefits to the attorney

  • The prosecutors (victim side attorney appointed by the state) as well as the defence attorney, by making the defendant agree to plead guilty, reduce their caseload and save their time in preparing for the upcoming matters. This way, they could focus on other more severe offence cases pending with them as well as get some time for themselves.
  • The prosecutor’s conviction rate is also improved if the defendant agrees to accept his guilt.
  • The resources of the attorney’s, which otherwise would be involved in completing the trial, are also saved and can be devoted to other cases to dispose of them more quickly and efficiently.

Benefits to the judges

  • The trial gets shortened by accepting the charges, which saves the time of the judges as such cases are quickly disposed of.
  • Through quick disposal of the cases through plea bargaining, the caseload of the courts is also reduced. This makes the per judge case pendency ratio less, which would improve their efficiency as they could focus on other severe offence cases with adequate time.
  • Instead of putting the resources for investigating the matter, managing and organising documents, etc., the court can divert such resources into other serious offence cases whose trial is needed to be completed more urgently.
  • By accepting the guilt and making a plea of bargaining the sentence or charge, the defendant closes his doors to making the order change or reversed in the appeal stage. He cannot, in an ordinary manner, go to a higher court to set aside his punishment because he himself accepts his guilt. Although he has other remedies to deal with this issue, because of the limited scope for appeal, the higher judges will have to deal with a comparatively smaller number of cases, which will come from the subordinate courts.
  • The judge, along with the attorney, shares the responsibility of determining the guilt as well as the sentence that can be imposed on the defendant once he makes a plea of bargaining his sentence by accepting his guilt.

Benefits to the victim

  • If the attorney’s are successful in making the defendant ready to accept his guilt either through the plea bargaining process, which could lessen his sentence, the victim will be relieved of the anxiety about whether he will get justice or not, as the defendant in such a case will be declared guilty with certainty if other circumstances also align with it.
  • The victim had to undergo mental stress, trauma, and anxiety during the court proceedings, but if the defendant chooses the path of plea bargaining, the victim will also get some relief from all this stress. Sometimes people prefer their mental peace more than getting the accused punished for the wrong done by him.

Benefits to other classes of persons

  • The work burden of the police officials also gets reduced, as otherwise they would be involved in all such court proceedings and wouldn’t get enough time to maintain law and order on the ground level.
  • The time a guilty or accused person spends in jail puts an additional burden on the jail authorities. Thus, spending less time in jail will also be beneficial for jail staff and management.
  • Along with it, the more time a person spends in jail, the higher are the chances that he will indulge in such wrong-minded people, and once he gets out, he will get involved in a bigger crime. Thus, releasing the person at an appropriate time is sometimes beneficial. 
  • Believing in the reformation of the offenders, they are sent to rehabilitation centres, which are run by the state or centre, and to make them run, the money of the taxpayers is used. Thus, by accepting the guilt and making a plea to lessen his sentence, a person acknowledges his mistake and wants a chance to improve himself. This in itself is a reformation, and thus fewer people will be needed to be sent to the rehab centres.
  • By making a plea of bargaining, the accused no doubt accepts his guilt, and he even gets punished for his wrong, but many times it is seen that the accused often escapes to get a reasonable punishment, which results in no much improvement in his behaviour. Also, plea bargaining can result in the accused person avoiding accountability for their actions, as they are able to plead guilty to a lesser charge without having to go through a trial. This is a form of leniency that may not be justified in some instances. 
  • In most cases, the victim is a common person who does not know his rights, and if he doesn’t get a good attorney who could give him better advice, the decisions he makes will affect him as well as society in the long term. So it is always advisable to go for a good advocate. The guilty person may, after coming out without facing a proper sentence, try again to attack the victim.
  • By pleading a sentence, the process of an ordinary trial need not be complied with. This results in quickly completing the trial, but the downside of this is that the constitutional right of the victim to get a complete trial is affected. This depends on the will of the person as to whether he is satisfied with the decision of the court in which plea bargaining was made or he wants more strict punishment for the offender by going through a complete process, which will be difficult for the defendant to comply with.
  • By accepting guilt even under plea bargaining, the defendant will be considered to have a criminal record, which could be problematic for him in the future. Moreover, he also has to pay the required costs until the trial is completed.
  • By pleading guilty to a lesser charge, the accused person is giving up their right to a fair trial. This can be problematic if the accused is innocent and is pressured into pleading guilty to avoid the risk of a harsher sentence at trial.
  • In cases of plea bargaining, the judge has a major role in finalising whether the accused plea is to be entertained or not. There are various factors that determine it, such as the nature and gravity of the offence, the role of the accused in the commission of the crime, the needs of the victim, and the public interest.
  • There are chances that the accused is made to choose the route of plea bargaining by misrepresenting its benefit, and because there are fewer chances for the victim to appeal in such cases, the victim has to face punishment even if he is innocent in reality.
  • The clean record of a person who is made to face a sentence in one or another case gets tarnished, because of which the person might lose his job or find difficulty looking for a new job. During that time, the person is also unable to fulfil his domestic obligations. 
  • The victim, in the hope of having the accused punished to the maximum possible extent for his wrong, feels cheated by the attorney, who tries to make him understand the concept of plea bargaining. A common man, in his emotions, doesn’t understand the workings of the system much and just wants to grill the wrongdoer for his wrong. But unfortunately, this is not how the system works.
  • Some critics also claim that this concept of plea bargaining violates Article 20(3) of the Indian Constitution, which prohibits self-incrimination.

Re: Policy Strategy for Grant of Bail (2022)

The Supreme Court of India, in this recent judgement, has laid down various guidelines for the disposal of the cases, introducing concepts like plea bargaining, compounding of offences, and the application of the Probation of Offenders Act, 1958.

Murlidhar Meghraj Loya v. State of Maharashtra (1976)

While this particular case does not directly address plea bargaining as a formal legal procedure, it does indirectly highlight certain facets of negotiation and expectations of leniency that can be linked to plea bargaining. Notably, this marked the first case in which the Supreme Court of India acknowledged the concept of plea bargaining. The court recognised that although the concept of plea bargaining is absent from the Code of Criminal Procedure, it stressed its potential usefulness in appropriate situations for the efficient and expeditious disposal of criminal cases.

Kasambhai Ardul Rehmanbhai v. State of Gujarat (1980)

The Apex Court ruled in this particular case that plea bargaining is contrary to public policy. Furthermore, it expressed dissatisfaction with the magistrate’s decision to accept the plea bargaining of the accused.

State of Uttar Pradesh v. Chandrika (2000)

In this case, the Apex Court disparaged the concept of plea bargaining and held this practice as unconstitutional and illegal. The court determined that the primary objective of this concept was to accelerate the resolution of cases and relieve the strain on the judicial system, emphasising that it should not be utilised as a means to allow the guilty to avoid punishment.

Plea bargaining has a vital role as well as a valuable tool in the Indian criminal justice system. It serves as a means of negotiation between the prosecution and the accused, allowing for the possibility of a mutually beneficial agreement that presents an alternative resolution to criminal cases, promotes efficiency in the courts, and preserves judicial resources. Plea bargaining can help expedite the legal process and provide a fair and efficient resolution to criminal matters. However, it is also essential for the judges also to exercise their discretion judiciously and wisely when approving plea bargains, taking note of the gravity and seriousness of the offence, the interests and needs of the victim, and the impact on the administration of justice. Taking these factors into consideration, the judges can ensure that plea bargaining contributes to the fair and efficient resolution of criminal cases while maintaining the integrity of the legal system. Thus, just like every coin has two sides, this tool of plea bargaining also has two sides, positive and negative. The outcome will depend totally on which side is able to prove its points more strongly in front of the court. Thus, this tool is to be used judiciously with careful caution, keeping in mind the interests of the public.

Is there any difference between plea bargaining and confession?

While plea bargaining and confession both involve the admission of guilt by the accused, the main distinction resides in the context and procedure. Plea bargaining is a negotiated settlement, whereas in confession there is an unambiguous acknowledgement of responsibility without any potential for negotiation or willingness to compromise or make concessions. Additionally, a confession can be used as evidence against the accused in court, while a plea agreement achieved through plea bargaining before implementation necessitates approval from the court.

What differentiates plea bargaining from probation and parole?

Plea bargaining is a pre-trial negotiation process, whereas probation is an alternative to incarceration for convicted offenders, and parole is the supervised release of prisoners before their full sentence is served. Each serves a different purpose within the criminal justice system.

Is plea bargaining actually the correct tool for every person?

Despite the numerous advantages that plea bargaining offers, determining whether it is the right decision for every case can be a challenging and complex task. By consulting and taking guidance from a skilled legal expert or professional, one can gain valuable insight into the likelihood of winning during a trial and evaluate the potential consequences of a judgement against oneself.

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