Plea Bargaining Under Criminal Procedure Code, 1973

Plea Bargaining Under Criminal Procedure Code, 1973

The concept of Plea Bargaining in India has been evolved due to ineffective criminal justice system and delays in the criminal cases. In India, the pendency of cases is of grave concern and it is of primary importance to the criminal justice system. As it is well said that “Justice delayed is justice denied” and this is the major drawback of our administration of justice. For instance, in Upahar cinefire case, the justice has been delivered after 18 years and also in Bhopal Gas Tragedy Case, the main culprit has never been incarcerated.

Although, Justice is desired by every person on the earth and everyone is entitled to get justice, but all these things remain in the paper or statute books only. All these incidents show that it is the dire need to be get reformed.

The reform can be seen in the form of plea bargaining. It had been emerged in the United States and came to India in 2006. This has been added as a new Chapter known as Chapter XXI A through Amendment Act of 2005. It gives relief not only to the accused behind the bars but also proved as a time and cost efficient remedial for judicial system to dispose off criminal cases quickly.

Meaning of Plea Bargaining-

It is a practice whereby the accused has right to plead not guilty and demands a full trial and instead uses a right to bargain for a benefit.

Oxford dictionary- Plea Bargaining is composed of two words; Plea and Bargaining. Plea means appeal, prayer, request or formal statement while Bargaining means negotiation, settlement or deal. Etymologically, it means an appeal formal settlement by the defendant for the negotiation of settlement with the prosecution for the offence charged against him.

Black’s Law Dictionary- It means a negotiated agreement between prosecutor and defendant whereby the defendant pleads guilty to a lesser offence or to one of multiple charges in exchange for some concession by the prosecutor.

Nature of Plea Bargaining-

  1. Involving an active negotiation process.
  2. It is in derogation from the concept that a judge can only decide a sentence after hearing in an open Court.
  3. Inspired from the Doctrine of Nolo Contendre and an alternate remedy to the long and tortuous trials of the Court.
  4. Ensuring speedy disposal of the cases.
  5. Gives final judgement.
  6. Not available for socio-economic offences and also related to offence committed against women and children below 14 years.
  7. Not available for habitual offenders.

Essentials of Plea Bargaining-

  1. It should be voluntarily given.
  2. Statement of facts given by the accused should not be used for any other purpose except for the plea bargaining.
  3. It is a contractual agreement regarding disposition of criminal charge.

Types of Plea Bargaining –

  1. Charge Bargaining- Involves a negotiation of the specific charges or crimes.
  2. Facts Bargaining- Involving an admission to certain facts thereby eliminating the need for the prosecutor to have to prove them become nonetheless.
  3. Count Bargaining- Requires the defendant to plead guilty to a subset of multiple original charges.

Objects of Plea Bargaining-

  1. Reduces the arrears of pending criminal cases, which could not been decided due to technicalities and the cumbersome process of trials.
  2. Decreasing the number of under trial prisoners.
  3. To cut delays in the disposal of criminal cases.

The Concept of Plea Bargaining in India

A formal proposal for incorporating it in the Indian Criminal Justice System was put forth in 2003 through the Criminal Law (Amendment) Bill, 2003. However, the provisions of this failed to come through and were introduced again in the Criminal Law (Amendment) Bill, 2005. It was finally incorporated into the Criminal Procedure Code, 1973 as chapter XXI A, through Criminal Law (Amendment) Act, 2005.

The Act does not give any recognition to any existing law related to Plea Bargaining. In Hussainara Khatoon Vs. Home Secy. State of Bihar,[i]  the judgement was given in the reference to the under trial prisoners and held that there is no procedure for trial of such persons, it would be unreasonable, unjust and it would fall foul to Article 21.

It enables the accused to file an application of Plea Bargaining in the Court where such trial is pending under section 256 B (1).  The court after receiving such application must examine the accused in camera and application must contain brief description of the offence and it must be voluntarily given, accused should ready to accept the nature and extent of the punishment. There must be an affidavit sworn that the consent has been voluntarily given and not been previously convicted by any Court with the same offence under section 256 B (2).

The court must then issue notice to the Public prosecutor, complainant and accused to appear on the fixed date. If court satisfies with the fact that the consent has been voluntarily given then it will issue notice to them for negotiation to work out for mutual satisfactory disposition of the case. If settlement is reached, then the court may award compensation based on it to the victim by the accused and court may allow release on probation.

After mutual satisfactory disposition, and meeting between the prosecutor and the accused, a report would be prepared of the same and the same is to be signed by the presiding officer along with all the persons present in the meeting. Hereinafter, the court may dispose the case and may award compensation, hear the parties on the quantum of punishment, releasing the accused on the probation or after admonition under section 360, CrPC, 1973. The court may also allow half of the minimum punishment and one fourth of the punishment too.

There are four positive aspects of this concept-

  1. The offences in which mutual satisfactory agreement can be reached are limited in number.
  2. It also does not exclude judges completely from the process and exerts a supervision control.
  3. This opportunity is not available to habitual offenders.
  4. It does not provide an ordinary appeal.

Justification in favour of Plea Bargaining-

  1. It helps the court to manage its loads of works and hence results in reduction of backlog of cases.
  2. Relieves the Magistrate, the burden to prepare a detailed judgement.
  3. Obligates the right to speedy trial.
  4. Offers advantage to the public prosecutor by relieving them off the burden of examining the fragile witness.
  5. Acknowledgement of guilt is the first step towards rehabilitation.

Drawbacks of Plea Bargaining-

  1. Involvement of police makes it coercive.
  2. Involvement of court makes its impartiality impugned.
  3. Innocents were unnecessarily punished in these speedy dispositions of cases.
  4. Involving victims in the process, invites corruption.
  5. The main criticism in the US has emanate from human rights activist on the ground that plea bargaining impairs the human rights of the accused.


In a nutshell, this concept is like a panacea remedy to all the problems faced by the prisoners because it  include the presumption of innocence, proof of guilt beyond reasonable doubt, protection against self incrimination and one more thing right to free trial. The very object of the law is to provide easy, cheap and expeditious justice by resolving the disputes. Thus, this concept is considered as a new realm of judicial reform and it helps in reducing the plethora of judgements being pending in the courts.

[i] (1980)1 SCC 81.

Author: Prity Kumari,
Central University of South Bihar, 2nd year

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