Amit Meena Report
Amit Meena Report
INTRODUCTION
1.1 Introduction
A plea bargain allows both parties to avoid a lengthy criminal trial and may
allow criminal defendants to avoid the risk of conviction at trial on a more serious charge.
For example, in the legal system of the United States, a criminal defendant charged with
a felony theft charge, the conviction of which would require imprisonment in state prison,
may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may
liability against the defendant, the defendant may agree to plead "no contest" or "guilty
with a civil reservation", which essentially is a guilty plea without admitting civil liability.
must choose between vigorously seeking a good deal for their present client, or maintaining
a good relationship with the prosecutor for the sake of helping future clients. However, in
the case of the USA for example, defense attorneys are required by the ethics of the bar to
defend the present client's interests over the interests of others. Violation of this rule may
result in disciplinary sanctions being imposed against the defense attorney by the appropri-
the original charge that was filed against them. In count bargaining, they plead guilty to a
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subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in
advance what sentence will be given; however, this sentence can still be denied by the
judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (i.e.,
to affirm or concede) certain facts that will affect how the defendant is punished under
during the 1970s, but has since spread throughout the world.
From the point of view of the accused, it means that he trades conviction
and a lesser sentence, for a long, expensive and tortuous process of undergoing trial where
haps “mutual acknowledgment” of the strengths or weaknesses of both the charges and the
defense s, against a backdrop of crowded criminal courts and court case dockets. Thus, it
involves an active negotiation process by which the accused offers to exchange a plea of
guilty, thereby waiving his right to trial, for some concessions in charges or for a sentence
reduction. A plea bargain is an agreement reached in a criminal case to finally settle it. In
a case instituted on a police report, the parties to the agreement are the accused, the inves-
tigating officer, the prosecutor and the victim. All of them must agree to settle the criminal
case in which the accused pleads guilty to the offence for which a trial is pending. In any
other case, the parties to the agreement are the accused and the victim. They must agree to
settle the criminal case in which the accused pleads guilty to the offence for which a trial
is pending. The agreement to settle a case must be under the guidance and supervision of
the Court.
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Plea bargaining, in law, the practice of negotiating an agreement between
the prosecution and the defense whereby the defendant pleads guilty to a lesser offense or
(in the case of multiple offenses) to one or more of the offenses charged in exchange for
charges. Supporters of plea bargaining claim that it speeds court proceedings and guaran-
tees a conviction, whereas opponents believe that it prevents justice from being served. The
great majority of criminal cases in the United States involve some form of plea bargaining.
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceed-
ings, whereby the prosecutor provides a concession to the defendant in exchange for
a plea of guilt or nolo contendere. This may mean that the defendant will plead guilty to a
less serious charge, or to one of the several charges, in return for the dismissal of other
charges; or it may mean that the defendant will plead guilty to the original criminal charge
Plea bargains are not always easy to recognize. Negotiations that result in
formal agreements are termed “explicit plea bargains.” However, some plea bargains are
called “implicit plea bargains” because they involve no guarantee of leniency. Explicit bar-
Plea bargaining is a pretrial negotiation between the accused and the prose-
cution where the accused agrees to plead guilty in exchange for certain concessions by the
prosecution. It is a bargain where a defendant pleads guilty to a lesser charge and the pros-
ecutors in return drop more serious charges. It is not available for all types of crime e.g. a
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person cannot claim plea bargaining after committing heinous crimes or for the crimes
(at time, also the judge) which settles a criminal case, usually in exchange for a more lenient
punishment. Typically, the defendant will plead guilty to a lesser crime or for a fewer
charges than originally charged, in exchange for a more lenient punishment than the de-
fendant would get if convicted at trial. It is seen as a win-win for all the parties as the
prosecution has a certain conviction on the record, the defendant is provided a more lenient
sentence than the risk of a higher one at trial and the judge is freed to move to other cases
Plea Bargaining can conclude a criminal case without a trial. When it is suc-
cessful, Plea Bargaining results in a plea agreement between the prosecutor and defendant.
In this agreement, the defendant agrees to plead guilty without a trial, and, in return the
to the court. Plea Bargaining is expressly authorized in statutes and in court rules.
The path of plea bargaining's rise was in great part a function of the powers and interests
of individual courtroom actors. Although criminal defendants play a distinct part in this
story, the most important actors prove to be prosecutors and judges. In the early decades of
the nineteenth century, plea bargaining was the work of prosecutors, who found natural
incentives in the quick and easy victories it gave them. But because judges and not prose-
cutors held most of the sentencing power and therefore most of the plea-bargaining power
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could spread no further than those few cases in which prosecutors happened to hold the
It is true too, in view of threats such as long terms in prison, there is a strong
possibility that the innocent may plead guilty. It may well be a rational calculation, given
the penalty of going to trial, for there is clearly such a penalty. The prosecutor typically
induces a plea by offering a “carrot,” the lesser charge, and at the same time a gigantic
“stick.” It is not simply that he may well tack on additional charges enabling mandatory or
even consecutive punishments, should the defendant go to trial. He also can threaten that
counts for which the defendant was acquitted, so long as the defendant is convicted of
something. No other common law country in the world enables the prosecutor to seek a
sentence based on criminal conduct never charged, never subject to adversary process,
never vetted by a grand jury or a jury, or worse, charges for which the defendant was ac-
quitted.
in trial by itself constitutes denial of justice. Pendency for long periods operates as an en-
gine of oppression. In order to reduce the delay in disposing of criminal cases the Law
deal with huge arrears of criminal cases. Its introduction in Criminal Procedure code was
Committee also. In statements of objects and reasons of the Act it is mentioned that disposal
of criminal trials don’t commence for as long as 3 to 5 years. In a given situation, plea
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bargaining seems to be the only panacea left to bail out from this situation. The Act was
This has certainly changed the face of the Indian Criminal Justice System.
Some of the salient features of ‘Plea Bargaining’ are that it is applicable in respect of those
offences for which punishment is up to a period of 7 years. Moreover it does not apply to
cases where the offence committed is a socio-economic offence or where the offence is
committed is committed against a woman or a child below the age of 14 years.5Plea bar-
gaining is a concept in which a prosecutor and an accused settle a criminal case among
themselves through bargain. In this case the accused agrees to plead guilty in exchange of
some concession. This concession includes reducing the original charge, dismissing the
charges etc. In fact a plea bargain allows the parties to settle the pending charge and the
parties agree on the outcome. Thus, plea bargaining, in its most traditional and general
sense, refers to pretrial negotiations between the defendant, usually conducted by the coun-
sel and prosecution, during which the defendant agrees to plead guilty in exchange for cer-
whereby the accused and the prosecutor in criminal cases work out a mutually satisfactory
disposition.
This is not a new concept but it existed even in 19th century. In the United
States, plea-bargaining is significant part of the criminal justice system. In American Crim-
inal Justice System, plea bargaining is rule rather than exception. Majority of criminal cases
are settled by plea-bargaining rather than by a trial by jury. According to an estimate ninety
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five percent criminal cases never go to trial because of the bargaining struck between the
prosecution and the attorney of the accused well before the trial commences. But it is a
subject to the approval of the court. The rules pertaining to Plea-bargaining in all states of
US are different. Therefore, more than 90% of the cases are settled through Pleabargaining
in US. It has become a prominent feature of American Judiciary that the disposing rate of
cases is very rapid therefore, backlog is under control. Prosecutor initiates about the plea-
bargaining proceedings.
it helps in speedy disposal of accumulated cases and will expedite delivery of criminal
Brady v. United States (1970). But the court warned that it would have “serious doubts” if
the “encouragement of guilty pleas by offers of leniency substantially increased the likeli-
hood that defendants, advised by competent counsel, would falsely condemn them-
guilty, including wellknown examples such as Brian Banks. In 2002, at the age of 17, Mr.
Banks was wrongly accused of rape yet chose a plea bargain with a maximum sentence of
seven years in prison. If he rejected the offer and lost at trial, he faced 40 years to life in
prison. He took the deal and falsely confessed. In 2012, after definitive evidence of his
A million dollar question which comes to our mind is, how prevalent is the
phenomenon of innocent people pleading guilty? The few criminologists who have thus far
investigated the phenomenon estimate that the overall rate for convicted felons as a whole
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is between 2 percent and 8 percent. The size of that range suggests the imperfection of the
data; but let us supposes that it is even lower, say, no more than 1 percent. When you recall
that, of the 2.2 million Americans in prison, over 2 million are there because of plea bar-
gains, we are then talking about an estimated 20,000 persons, or more, who are in prison
for crimes to which they pleaded guilty but did not in fact commit.
Similarly there are few cases such as Aaron Swartz, the twenty-six-year-old
Internet prodigy accused of wire fraud and violations of the Computer Fraud and Abuse
Act, who committed suicide after being offered a choice between a plea of guilty with a
six-month sentence or a trial in which he risked a seven-year sentence under the guidelines
if found guilty. Then there is the case of Kevin Ring, a lobbyist for Jack Abramoff, who
was convicted at trial. Abramoff, the conceded ringleader, pled guilty and got four years.
Offered a deal with no prison time if he cooperated, Ring refused, taking the case to trial.
After a trial finding him guilty, the prosecutor urged a seventeen-to-twenty-two-year sen-
tence, which the sentencing judge acknowledged could well have a “chilling effect” on the
On the other side of the coin, in India such data is not available and the
position is also very different from US. As it came in the amendment Act of 2005 in Code
of Criminal Procedure9, there are not much cases regarding it but even though, position
under Indian Judiciary is very clear. There were huge debates on this point before it was
inserted in the Cr.P.C. till 2005, it was not accepted by the Indian Judiciary. Every time it
was opposed by court of law by saying that it is not recognized under Indian law. The
concept is not widely recognized as it came recently and because there are cases, in which
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it was not applied properly. The initiation of plea-bargaining has to be by accused which is
different from US Law. Our law provides for number of negotiations between the accused
and the prosecutor or with the court itself which is a major difference from US. Unlike in
US, where plea-bargaining is for all sort of offences but in India, it is not for socio economic
offences or the offences against women and children. Court has to take great care at the
bargain with the prosecution for a lesser punishment. In simple words, Plea Bargaining is
an agreement (contract) between the accused and the prosecution regarding disposition of
the criminal charge leveled by the prosecution against the accused. In layman’s language,
it is bargaining done by the accused of a serious and severe offence, with the authority for
cause of delay of case. The law may or may not be an ass, but in India, it is certainly a snail
and our cases proceed at a pace which would be regarded as unduly slow in the community
of snails. Justice has to be blind but I see no reason why it should be lame. Here it just
hobbles along, barely able to work. India’s efficiency ‘in crime investigation, prosecution
and trial process is under a shadow of doubt and crisis of credibility because more than
seventy per cent accused are acquitted. When it is difficult or impossible to secure evidence
to establish crime through able investigation, what are the alternatives to send the criminals
to jails? One limited answer is plea bargaining where confessions will be bargained from
criminal under judicial supervision which might result in speedy trial and sentencing. This
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article intends to examine the utility of plea bargaining. In India the conviction rate is grad-
ually falling which indicates an abysmal state of law and order or lack of it.
Bureau reflect the inefficient functioning of system. In 2011, the violent crimes were 2.56
lakhs while in only 84.5 per cent of these crimes marched to the stage of charge sheeting
rates for different kinds of crimes in the country is: a) for crimes against women 26.9 per
cent, b) Economic Crimes 28.6 per cent, c) Crimes against SCs 31.8%, d) Property Crimes:
34.5 % as per the NCRB Records. The Union Minister told Rajyasabha in December 2011,
that around 3.2 crore cases were pending in high courts and subordinate courts across the
country while 56,383 cases were pending in the Supreme Court. It also said 74% of the
total 3.2 crore cases were less than five years old. Similarly, 20,334 out of 56,383 pending
cases in the apex court were less than one year old. There are more than 72 lakh criminal
cases such as murder, rape and riots are pending in different courts across the country with
without much trouble for the state. The plea bargaining is somewhat an answer. It is also
called: plea agreement, plea deal or copping a plea, which is an agreement between the
prosecutor and defendant whereby the defendant agrees to plead guilty to a particular
charge in return for some concession from the prosecutor. It is a Pre-Trial procedure
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whereby a bargain or deal is struck between the accused of an offence and the prosecution
with the active participation of the trial judge. It can further be explained as:
1. Withdrawal of one or more charges against an accused in return for a plea of guilty,
2. Reduction of a charge from a more serious charge to a lesser charge in return for
a plea of guilty.
between the defendant and the prosecutor. The prosecutor typically agrees to a reduced
prison sentence in return for the defendant’s waiver of his constitutional right against self-
incrimination and his right to trial. The dictionary meaning of Plea Bargaining is “the pro-
cess whereby the accused and the prosecutor in a criminal case work out a mutually satis-
factory disposition of the case, subject to approval of the court. It usually involves the de-
fendant’s pleading guilty to a lesser offence or to only one or some of the counts of multi-
count indictment in return for a lighter sentence than that possible for the graver charge.”
ing. Simply put, a plea bargain is a contractual agreement between the prosecution and the
judge approves it.” Under this technique, the criminal cases are resolved through a “plea
bargain”, usually well before the case reaches trial. In a plea bargain, the defendant agrees
to plead guilty, usually to a lesser charge than one for which the defendant could stand trial,
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in exchange for a more lenient sentence, and/or so that certain related charges are dis-
missed. For both the government and the defendant, the decision to enter into (or not enter
into) a plea bargain may be based on the seriousness of the alleged crime, the strength of
the evidence in the case, and the prospects of a guilty verdict at trial. Plea bargains are
generally encouraged by the court system, and have become something of a necessity due
to overburdened criminal court calendars and overcrowded jails in the country like United
State of America. According to Justice M.Y. Eqbal, in plea bargaining also we have to
follow the Manu’s dictum i.e., to inflict just punishment on those who act unjustly by means
solved through plea- bargaining. As a whole the guilty plea or no contest plea is the quid
pro quo for the concession and there is no other reason. A plea bargain (also plea agreement,
plea deal or copping a plea) is an agreement in a criminal case in which a prosecutor and a
The defendant agrees to plead guilty or no contest and in some cases to also
provide testimony against another person in exchange for some agreement from the prose-
A plea bargain can also include the prosecutor agreeing to charge a lesser
crime or reducing the charges or dismissing some of the charges against the defendant. In
most cases, a plea bargain is used to reduce the number of cases and their aggregate impact
on the criminal justice system as the number of cases which can be actually tried by a court
system is a fraction of the number of cases filed. Plea Bargaining can be of three types: -
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Charge Bargaining
the specific charges or crimes that the defendant will face at trial. Usually, in return for a
plea of guilty to a lesser charge, a prosecutor will dismiss the higher or other charge(s). For
example, subject to the approval court, .in return for dismissing charges for first-degree
Sentence Bargaining
It saves the prosecution the necessity of going through trial and proving its case. It provides
the defendant with an opportunity for a lighter sentence. For example, it may be used to
reduced period of the sentence or amount of the fine associated with the crime being
Fact Bargaining
This is the least used form of plea bargaining. It involves the agreement to
a plea of guilty and in return the Prosecutor agrees not to reveal any aggravating factual
circumstances to the court because that would lead to a mandatory minimum sentence or
wherein they plead guilty to a subset of multiple original charges, and fact bargaining where
the defendants plead guilty pursuant to an agreement in which the prosecutor stipulates to
certain facts that will affect how the defendant is punished under the sentence guidelines.
Coercive plea bargaining has been criticized as it infringes an individual‘s rights under
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Article 8 of the European Convention on Human Rights. Another argument against plea
bargaining is that it may not actually reduce the costs of administering justice. Eg. if there
is only a 25% chance of conviction and punishing for 10 years imprisonment, defendant
may make a plea agreement for one year imprisonment and if plea bargaining is unavaila-
ble, the prosecutor might drop the case completely6 .Plea bargaining should consist of two
legal innovation that would eventually grow to become by the early 20th century this coun-
try’s primary method of criminal conviction. But despite plea bargaining’s long history at
the centre of American criminal justice, a set of coherent rules governing its use has never
emerged. Indeed, for much of its history, plea bargaining remained a largely unregulated
of the administration of justice “or, more recently, recognized that “it is the criminal justice
system “courts have generally taken a hands-off approach in regulating its use, leaving
much discretion with prosecutors and defense attorneys in shaping plea bargaining pro-
cesses and outcomes. This reticence is in part due to the approach that courts have taken to
analogize plea bargains to contracts in private law describing them as the same as “any
other bargained-for exchange” between autonomous actors who proceed from a “mutuality
of advantage even though prosecutor and defendant have inherently unequal levels of
power, particularly when the accused is being held in jail pretrial. Placing substantive limits
on bargaining tactics, according to this line of thought, could potentially cast a chilling
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effect that might foreclose plea negotiations altogether. In only a few cases have courts
attempted to define plea bargaining’s contours or set its outer bounds. Moreover, the few
statutes and procedural rules governing plea bargaining processes exert minimal control
over the direction and process of how plea bargains are made and are largely silent regard-
However, in recent years, courts have begun to fill the gaps in procedural
Statistics as regards the criminal justice system in India are startling in 2001;
the number of inmates housed in Indian jails was almost 1, 00,000 more than their capacity.
It was estimated that 70.5% of all inmates were under trials and of these 0.6% had been
detained in jail for more than 5 years at the end of 2001.” The reasons that are cited for the
acquittal, torture undergone by prisoners awaiting trial, etc. can all be traced back to one
major factor, and that is delay in the trial process. Since one reason for overburdened dock-
ets in the United States was the nature of jury trials, the experience of some jurisdictions
suggested that shortening the trial period could solve the problem.
In India, the reason behind delay in trials can be traced to the operation of
the investigative agencies as well as the judiciary. Expanding the list of compoundable
offences is not a wise option and what is actually needed is not a substitute for trial but an
overhaul of the system, in terms of structure, composition as well as work culture to ensure
reasonably swift trials. If then the trial procedure itself proves to be too long drawn out and
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unmanageable, then one may think of launching an alternative to trial. Therefore refor-
mation of the existing system may be a more prudent approach rather than introducing a
parallel arrangement (as recommended by the Law Commission) or supplementing the pre-
sent arrangement (as suggested by the Act). Therefore, plea bargaining has been introduced
delays. It cannot be denied that the practice may result in faster disposal of cases; because
delayed trials are problematic in many aspects, the proposal may seem appealing.
2. It does not apply where such offence affects the socioeconomic condition of the
country or has been committed against a woman or a child below the age of 14
years.
4. An accused must file an application for Plea-bargaining in the court in which such
5. The accused and prosecution both are given time to work out a mutually satisfactory
disposition of the case, which may include giving compensation to the victim by
the accused and other legal expenses incurred during pendency of the case.
6. Where a satisfactory disposition of the case has been worked out, the Court shall
dispose of the case by sentencing the accused to one-fourth of the punishment pro-
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7. The statement or facts stated by an accused in an application for plea-bargaining
shall not be used for any other purpose other than for plea-bargaining.
8. The judgment delivered by the Court in the case of plea-bargaining shall be final
in the application for plea-bargaining should not be used for any other purpose ex-
In the next chapter – 2 we will study about the historical background of the
plea bargaining.
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CHAPTER - 2
The roots of plea bargaining may be seen long back in United State of Amer-
ica. It was a prosecutorial tool used only episodically before the 19th century. In America,
Fisher says, “it can be traced almost to the very emergence of public prosecution although
not exclusive to the U.S., developed earlier and more broadly here than most places.’’ But
because judges, not prosecutors, controlled most sentencing, plea bargaining was limited
to those rare cases in which prosecutors could unilaterally dictate a defendant’s sentence.
“Not until the crush of civil litigation brought on by the explosion of per-
sonal-injury cases in the industrial era did judges begin to appreciate the workload relief
plea bargaining promised.’’ In other words, plea bargaining is arguably another outgrowth
of late-19th-century industrialization.
countries especially in the United State of America. Most of the criminal cases in America
are settled through plea bargaining. The Federal Rules of Criminal Procedure recognize
The Supreme Court of United State has also approved this practice. During
19th Century even in America this was not so popular and practiced in the rarest cases. But
with the rapid growth in the population as well as increase in the court trials the courts
became overcrowded and by the end of twentieth century’s it became almost impossible
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for the trial in every criminal case. This made vast majority of criminal cases resolved with
guilty pleas. Presently, since plea bargaining is expressly authorized in statutes and ap-
proved by the courts in America, it is conducted in almost every criminal case and roughly
Ninety percent of the cases are converted into plea agreements, except in the
Federal offences providing mandatory sentences and subject to United State Sentencing
Guide Lines(USSG). According to Justice M.Y. Eqbal, in fact Plea Bargaining has over the
years emerged as a prominent system of American Criminal Justice System. It has been
immensely successful in USA and with the passage of time plea bargaining has become the
Non acceptance of this concept and even ban on the application of plea
agreements may also be witness in so many countries of the world. According to Justice
A.K. Sikri, “statutes codifying many federal Offences expressly prohibit the application of
plea agreements.” Plea bargaining was introduced in Pakistan in 1999.9 Under this, the
accused accepts his guilt and offer to return the proceeds of corruption as determined by
the investigators.
If the plea is accepted by the court, the accused stands convicted, but will
not be sentenced. However, the accused will be disqualified from taking part in election,
holding public office, obtaining any bank loan and is dismissed from service if he is a gov-
ernment official. It is also used in England, Wales and Australia but to the limited extent
of allowing the accused to plead guilty to some charges in return, for which the prosecutor
will drop the remaining charges. But there is no bargaining over penalty and penalty is to
be decided by the court. Irrespective of the facts that plea bargain has been criticized by the
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jurists as violation of fundamental rights such as right to trial, self- incrimination, double
jeopardy and so on; gradually and slowly it is being adopted by the legislatures of series of
The evolution of plea bargaining into a force that affects over 95 percent of
defendants in the American criminal justice system took place mainly in the nineteenth and
twentieth centuries.While the right to plead guilty dates back to English common law tra-
ditions, a new phenomenon began to appear in America shortly after the Civil War. It was
during this period that state courts began witnessing an influx of appellate cases dealing
with apparent “bargains” between defendants and prosecutors. With resounding frequency,
these early experiments with bargained justice were rejected by the judiciary as demon-
Despite these early defeats for plea bargaining, the idea of bargained justice
did not die. On the contrary, though infrequent by today’s standards, plea bargaining con-
tinued to exist in the local and district court systems. By the turn of the century, plea bar-
gaining was on the rise, but not because it served mutually beneficial considerations of
Plea bargaining began to thrive in the early twentieth century because judges
and prosecutors began accepting bribes from defendants in return for “plea agreements”
that guaranteed reduced sentences. According to Professor Albert Alschuler, the gap be-
tween these judicial denunciations of plea bargaining [in the late nineteenth century and the
practices of many urban courts at the turn of the century and thereafter was apparently
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practice of plea bargaining.” While corruption introduced plea bargaining to the broader
legal community, it was the rise in criminal cases before and during Prohibition that spurred
Between the early twentieth century and 1925, the number of cases in the
federal system resulting in pleas of guilty rose sharply from 50 to 90 percent. In return for
were often permitted to plead guilty to lesser charges or given lighter sentences. As Prohi-
bition was extinguished, the United States continued its drive to create new criminal laws,
a phenomenon that only added to the courts’ growing case loads and the pressure to con-
tinue to use bargaining to move cases through the system. By 1967, the American Bar As-
sociation (ABA) was proclaiming the benefits of plea bargaining, even though it had not,
as of yet, been specifically approved by the Supreme Court. The ABA stated:
1. High proportion of pleas of guilty and nalo contendere does benefit the system.
Such pleas tend to limit the trial process to deciding real disputes and, consequently,
to reduce the need for funds and personnel. If the number of judges, courtrooms,
court personnel and counsel for prosecution and defense were to be increased sub-
stantially, the funds necessary for such increases might be diverted from elsewhere
in the criminal justice process. Moreover, the limited use of the trial process for
those cases in which the defendant has grounds for contesting the matter of guilty
By the time the Supreme Court agreed that plea bargaining was an available
form of justice in 1970, plea bargaining’s rise to dominance was already complete. The
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Brady decision was delivered in the shadows of a force that led 90 percent of criminal
defendants in the 1960s to waive their right to trial and confess their guilt in court.
that plea bargaining became a dominant force as a result of prosecutors gaining increasing
power and control in an ever more complex criminal justice system. As prosecutors’ powers
to both operate within and manipulate the system grew, their ability to create incentives for
defendants to plead guilty also escalated. The key element of this machine, of course, is
prosecutorial discretion and the ability to select from various criminal statutes with signif-
power to control the criminal justice system and offer defendants deals increased through-
out the 1900s.82 For example, as the number of criminal statutes grew during the early
twentieth century, prosecutors had more choices when charging defendants and more dis-
Guidelines in the last decade of the twentieth century, a tool that greatly increased prose-
cutors’ control of the system and increased their ability to force defendants into plea agree-
ments. Before the advent of modern sentencing guidelines, both prosecutor and judge held
some power to bargain without the other’s cooperation. Today, sentencing guidelines have
recast whole chunks of the criminal code in the mold of the old Massachusetts liquor laws.
By assigning a fixed and narrow penalty range to almost every definable offense,
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sentencing guidelines often empower prosecutors to dictate a defendant’s sentence by ma-
nipulating the charges. Guidelines have unsettled the old balance of bargaining power
among prosecutor, judge, and defendant by ensuring that the prosecutor, who always had
the strongest interest in plea bargaining, now has almost unilateral power to deal.
prosecutors’ control of charging decisions and their influence over sentencing are key ele-
ments that contributed to the system’s dominance. Prosecutors have been successful in us-
ing their increased powers to create incentives that attract defendants to plead guilty by
structuring plea agreements where the sentence a defendant receives in return for pleading
guilty is far lower than the sentence he or she risks with a loss at trial. In a 1981 article on
plea bargaining, Professor Albert Alschuler wrote of this “sentencing differential” and
stated, criminal defendants today plead guilty in overwhelming numbers primarily because
they perceive that this action is likely to lead to more lenient treatment than would follow
conviction at trial.
ies was an examination by David Brereton and Jonathan Casper that analysed robbery and
burglary defendants in three California jurisdictions. The results were striking and illus-
trated that defendants who exercised their constitutional right to a trial received signifi-
cantly higher sentences than those who worked with prosecutors to reach an agreement.
Plea bargaining’s rise to dominance during the nineteenth and twentieth cen-
turies resulted from prosecutors gaining increased power over the criminal justice system
and, through such power, the ability to offer increasingly significant incentives to those
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willing to confess their guilt in court. Today, sentencing differentials have reached new
heights and, as a result, the incentives for defendants to plead guilty are greater than at any
previous point in the history of our criminal justice system. It should be no surprise, there-
fore, that every year more than 95 percent of defendants accept the government’s offers of
leniency and plead guilty rather than risk the consequences of failure at trial.
Initially it was not recognized under Indian Law, therefore, not much im-
portance was given to it as it was not in statutes. Reference may, however, be made to
Section 206(1) and 206(3) of the Code of Criminal Procedure and Section 208(1) of the
Motor Vehicles Act, 1988. These provisions enable the accused to plead guilty for petty
offences or less grave offences and whereupon the case is closed. Later on, on the basis of
US, our Law Commission recommended the application of plea- bargaining in India. They
also justified the reasons for the same. The Supreme Court of USA in Brady v. United
States10 and Santobello v. New York11 upheld the constitutional validity and the signifi-
cant role of the concept of plea- bargaining plays in disposal of criminal cases12.
Law Commission of India in its 142nd and 154th report suggested the con-
cept of Plea-bargaining in India. They observed that this tool will be alternative to be ex-
plored to deal with huge arrears of criminal cases. Malimath Committee was also substan-
tially in agreement with the views and recommendation of the Law Commission. Accord-
ing to them it will help in procuring speedy trial with benefits such as end of uncertainty,
saving of cost of litigation, avoiding prolonged trial and legal expensed of the parties. They
recommended where the offences are not of a serious character and the effect is mainly on
the victim and not on the society, it is desirable to encourage settlement without trial.
24
2.2 Reasons For Introducing This Concept in India
4. Saving legal expenses of both the parties i.e. accused and state.
6. Under present system, 75% to 90% of the criminal cases results in acquittal, in this
7. It is not fair to keep the accused with hard-core criminals because if the accused is
innocent then he will accept his guilt and, in this situation, it is not reasonable.
ground of the plea bargaining system and the reason that why it in India.
In the next chapter- 3 we will see a depth and detailed analysis about the
25
CHAPTER – 3
The concept of Plea Bargaining was alien to the Indian judicial system till
5th July, 2006 that is the date from which Criminal Law (Amendment) Act, 2005 came into
operation. Prior to this it was considered to be against the public policy even by the Su-
preme Court of India. At the same time Law Commission of India had been advocating the
introduction of the provisions as to plea bargaining in the criminal justice system for a long
considered the question of introduction of concept of concessional treatment for those who
chose to plead guilty by way of plea bargaining. As a result, Criminal Law (Amendment)
Act, 2005 passed by the Indian Parliament incorporated into Code of Criminal Procedure,
1973 as Chapter XXIA and Concept of Plea Bargaining was thereby introduced to Indian
The Act provides that the plea bargaining is applicable only in respect of the
does not affect the socio-economic condition of the country or has not been committed
against a woman or child below the age of 14 years. It lays down procedure to enable an
accused to file an application for plea bargaining in the court where the trial is pending. On
receipt of such application court must examine the accused in camera so as to ascertain
whether the application has been filed voluntarily. The Court then issues a notice to public
26
disposition of the case. Where the satisfactory disposition of the case is worked out the
court shall prepare a report to that effect and the report shall be signed by the all participated
in the meeting. If no satisfactory disposition of the case could be worked out, the court shall
start the proceeding from the stage application was given for plea
bargaining. In case the settlement is reached, the court can award compen-
sation on the basis of settlement to the victim and then hear the parties on the issue of
punishment. While disposing of the case so settled the court may release the accuse on
probation, if minimum sentence is provided for the offence committed, the accused may be
sentenced to half of such minimum punishment, otherwise, the accused may be sentenced
to one- fourth of the punishment provided or extendable for such offence. The accused may
also avail the benefit of setting off the period of detention undergone by the accused against
Court shall be final and no appeal shall lie in any court against such judgment except special
leave petition under article 136 or writ petition under article 226 and 227 of the constitution.
Finally, the statements or facts stated by the accused in the application for plea bargaining
shall not be used for any other purpose except for the purpose of this chapter.
law Contendere. The doctrine has been under consideration by India for introduction and
employment in the Criminal Justice System. Indian Criminal Justice System has been inef-
fective in providing speedy and economical justice. Because Courts are flooded with astro-
nomical arrears, the trial life span is inordinately long and the expenditure is very high.
Subsequently majority of cases are arising from criminal jurisdiction and the rate of
27
conviction is very low. The fact that courts resources would have to be significantly in-
creased to provide a trial for every charge has been cited as both justification and reason
remove the risks and uncertainties involved in a trial, thus introducing flexibility into a
It would also enable the court to avoid dealing with cases that involve no
real dispute and try only those where there is a real basis for dispute. Victims would be
spared the ordeal of giving evidence in court, which could be a distressing experience de-
pending on the nature of the case. Recently the Government of India has accepted the Doc-
trine of Nolo Contendere or Plea Bargaining, on the Recommendations of the Law Com-
mission. Doctrine of Nolo Contendere has been considered in a manner according to social
and economical conditions prevailing in the country. Appropriate amendment has been in-
corporated in the Criminal Procedure Code, 1973. The new concept of Plea Bargaining will
be fruitful in resolving pending criminal cases and under trial in jails for years.
Plea bargaining has been inserted through Chapter XXI A in the Criminal
Procedure Code. It provides for pre - trail negotiations between the defense and the prose-
cution during which an accused might plead guilty in exchange for certain concessions by
the prosecution.
victims has been emphasised and demands are made for providing actual, effective and
sufficient justice to them. In recent years many provisions have been added to the Criminal
Procedure Code (hereinafter CrPC) in order enable victims of crime to raise their
28
grievances at appropriate forum, and further in justice imparting their sufferings should be
taken care and accordingly decisions should be given. One of them is plea bargaining. In
India the concept of plea bargaining has been accepted and included in the CrPC but it is
not completely transplanted from other legal systems, like the American one, but adopted
with some modifications. Provisions relating to plea bargaining in Indian criminal justice
system are provided in Chapter XXI-A of CrPC which was added by Criminal Law
many provisions have been added in the CrPCedure Code by some recent criminal law
amendments. Previously, usually allegations were made that criminal justice system is fa-
vourable to the accused and in criminal procedures attempts are made to protect the interest
of accused with complete neglect of victim and his problems. Restorative justice talks about
justice to victim who is actually suffered of the criminal acts. Responsibility has been im-
posed on the state for compensating victims, for proper treatment of physical and psycho-
Cases amount of fine are determined according to the need of medical ex-
penses to cover the full amount the victim had to spend. An appeal against the court‟s
decision may be brought before the Supreme Court. Criminal justice now is emphasising
the effective justice to victim and it is considered as one of the important objectives. In
National Human Rights Commission v. State of Gujarat1 Supreme Court observed: “It
needs to be emphasised that the rights of the accused have to be protected. At the same time
the rights of the victim have to be protected and the rights of the victim cannot be
29
marginalised. Accused persons are entitled to a fair trial where their guilt or innocence can
be determined. But from the victims’ perception the perpetrator of a crime should be pun-
Indian Criminal Justice System it has never be considered as appropriate measure to tackle
crime challenge. Plea bargaining is considered as challenging our whole concepts of crim-
inal justice system. For the first time in India by Criminal Law (Amendment) Act 2005
Law Commission in its 142nd report in 1991, 154th report in 1996 and 177th
report in 2001 recommended for inclusion of measure of plea bargaining in CrOC. Law
thereby, as a measure to provide speedy justice to victim. Law Commission in 142nd Re-
port observed: “The need for introducing the scheme has become compulsive in a situation
where trial of a criminal case culminating in an acquittal can take as many as 33 years in a
relatively petty case (involving alleged misappropriation of Rs. 12000, Rs. 4000 and Rs.
2000) and result in expenditure of as much as a crore of rupees to the State exchequer, with
Indian Express, where the Courts in a city like Bombay in 1988 recorded 124 rape cases
but could dispose of only one and in first six months in 1989 recorded 67 cases but could
There is more than ample justification for introducing the scheme in as much as:
30
1. It is not just and fair that an accused who feels contrite and wants to make amends
or an accused who is honest and candid enough to plead guilty in the hope that the
community will enable him to pay the penalty for the crime with a degree of com-
passion and consideration should be treated on par with an accused who claims to
of the CrPC and in the Probation of Offenders Act which remain practically unu-
tilised as of now.
3. It will help the accused who have to remain as under-trial prisoner awaiting the trial
as also other accused on whom the sword of Damocles of an impending trial re-
mains hanging for years to obtain speedy trial with attendant benefits such as (a)
end of uncertainty, (b)saving the litigation cost, (c)saving the anxiety-cost, (d) being
able to know his or her fate and to start a fresh life without fear of having to undergo
a possible prison sentence at a future date disrupting his life or career, (e)s aving
4. It will, without detriment to public interest, reduce the back-breaking burden of the
United States
United States; the vast majority (roughly 90%) of criminal cases in the United States are
31
settled by plea bargain rather than by a jury trial. Plea bargains are subject to the approval
of the court, and different states and jurisdictions have different rules. The Federal Sen-
tencing Guidelines are followed in federal cases and have been created to ensure a standard
of uniformity in all cases decided in the federal courts. A two- or three-level offense level
reduction is usually available for those who accept responsibility by not holding the prose-
cution to the burden of proving its case; this usually amounts to a complete sentence reduc-
The Federal Rules of Criminal Procedure provide for two main types of plea
agreements. An 11(c)(1)(B) agreement does not bind the court; the prosecutor's recommen-
dation is merely advisory, and the defendant cannot withdraw their plea if the court decides
to impose a sentence other than what was stipulated in the agreement. An 11(c)(1)(C) agree-
ment, however, binds the court once the court accepts the agreement. When such an agree-
ment is proposed, the court can reject it if it disagrees with the proposed sentence, in which
Plea bargains are so common in the Superior Courts of California (the gen-
eral trial courts) that the Judicial Council of California has published an optional seven-
page form (containing all mandatory advisements required by federal and state law) to help
prosecutors and defense attorneys reduce such bargains into written plea agreements.
Certain aspects of the American justice system serve to promote plea bar-
gaining. For example, the adversarial nature of the U.S. criminal justice system puts judges
in a passive role, in which they have no independent access to information with which to
assess the strength of the case against the defendant. The prosecutor and defense may thus
32
control the outcome of a case through plea bargaining. The court must approve a plea bar-
tion as well as the inability of crime victims to mount a private prosecution and their limited
ability to influence plea agreements. Defendants who are held in custodywho either do not
have the right to bail or cannot afford bail, or who do not qualify for release on their own
recognizance may get out of jail immediately following the judge's acceptance of a plea.
Generally, once a plea bargain is made and accepted by the courts, the mat-
ter is final and cannot be appealed. However, a defendant may withdraw his plea for certain
legal reasons, and a defendant may agree to a "conditional" plea bargain, whereby they
plead guilty and accept a sentence, but reserve the right to appeal a specific matter (such as
violation of a constitutional right). If the defendant does not win on appeal the agreement
is carried out; if the defendant is successful on appeal the bargain is terminated. The de-
fendant in Doggett v. United States made such a bargain, reserving the right to appeal solely
on the grounds that he was not given a speedy trial as required by the United States Con-
stitution; Doggett's claim was upheld by the United States Supreme Court and he was freed.
The Plea Bargaining experienced a sharp rise in the 1920s in America as the
criminal trials in United States provide to be most expensive and time consuming in the
world. Criminal trial in the United State of those days was an elaborate exercise and com-
objections, complex jury instructions, motion for exclusion, etc. Plea Bargaining emerged
as an effective mechanism to avoid the complex process of a criminal trial and soon it
33
gained popularity. The practice of Plea Bargaining was approved by the Supreme Court of
the United States mainly on the assumption that the persons who are convicted on the basis
of Plea Bargaining would ordinarily be convicted, if they had chosen to stand trial.
The plea won the approval of Supreme Court of United States and its en-
case.8Chief Justice Burger Explained there that the Plea Bargaining is to be encouraged
because; If every criminal charge were subjected to a full-scale trial, the states and the
Federal Government would need to multiply by many times the number of judges the Court
facilities.
Canada
In Canada, the courts always have the final say with regard to sentencing.
Nevertheless, plea bargaining has become an accepted part of the criminal justice system
although judges and Crown attorneys are often reluctant to refer to it as such. In most Ca-
nadian criminal proceedings, the Crown has the ability to recommend a lighter sentence
than it would seek following a guilty verdict in exchange for a guilty plea.
Like other common law jurisdictions, the Crown can also agree to withdraw
some charges against the defendant in exchange for a guilty plea. This has become standard
procedure for certain offences such as impaired driving. In the case of hybrid offences, the
ment prior to the defendant making his or her plea. If the Crown elects to proceed summar-
ily and the defendant then pleads not guilty, the Crown cannot change its election.
34
Therefore, the Crown is not in a position to offer to proceed summarily in exchange for a
guilty plea.
and could impose harsher (or more lenient) penalties. Therefore, the Crown and the defense
will often make a joint submission with respect to sentencing. While a joint submission can
entail both the Crown and defense recommending exactly the same disposition of a case,
this is not common except in cases that are sufficiently minor that the Crown is willing to
recommend a discharge. In more serious cases, a joint submission normally call for a sen-
tence within relatively narrow range, with the Crown arguing for a sentence at the upper
end of the range and the defense arguing for a sentence at the lower end, so as to maintain
Judges are not bound to impose a sentence within the range of a joint sub-
mission, and a judge's disregard for a joint submission is not in itself grounds for the sen-
that judge would compromise the ability of the Crown to offer meaningful incentives for
defendants to plead guilty. Defense lawyers would become reluctant to enter into joint sub-
missions if they were thought to be of little value with a particular judge, which would thus
result in otherwise avoidable trials. For these reasons, Canadian judges will normally im-
Following a Supreme Court of Canada ruling that imposes strict time limits
on the resolution of criminal cases (eighteen months for cases in provincial court and thirty
months for cases in Superior Court), several provinces have initiated and intensified
35
measures intended to maximize the number of minor criminal cases resolved by a plea
bargain.
concerning the final disposition of a criminal case may also arise even after a sentence has
been passed. This is because in Canada the Crown has (by common law standards) a very
broad right to appeal acquittals, and also a right to appeal for harsher sentences except in
cases where the sentence imposed was maximum allowed. Therefore, in Canada, after sen-
tencing the defense sometimes has an incentive to try to persuade the Crown to not appeal
a case, in exchange for the defense also declining to appeal. While, strictly speaking, this
Plea bargaining is permitted in the legal system of England and Wales. The
guidelines by the Sentencing Council require that the discount it gives to the sentence be
determined by the timing of the plea and no other factors. The guidelines state that the
earlier the guilty plea is entered, the greater the discount to the sentence. The maximum
discount permitted is one third, for a plea entered at the earliest stage. There is no minimum
discount; a guilty plea entered on the first proper day of the trial would be expected to
provide a discount of one tenth. The discount can sometimes involve changing the type of
that the prosecutors and the defense can agree that the defendant will plead guilty to some
charges and the prosecutor will drop the remainder. However, although this is not
36
conducting a plea bargain, in cases before the Crown Court, the defense can request an
indication from the judge of the likely maximum sentence that would be imposed should
In the case of hybrid offences in England and Wales, the decision whether
to deal with a case in Magistrates' Court or Crown Court is not made by magistrates until
after a plea has been entered. A defendant is thus unable to plead guilty in exchange for
having a case dealt with in Magistrates' Court (which has lesser sentencing powers).
Pakistan
this plea bargain is that the accused applies for it, accepting guilt, and offers to return the
ment by the Chairman National Accountability Bureau, the request is presented before the
court, which decides whether it should be accepted or not. If the request for plea bargain is
accepted by the court, the accused stands convicted but neither is sentenced if in trial nor
undergoes any sentence previously pronounced by a lower court if in appeal. The accused
is disqualified to take part in elections, hold any public office, or obtain a loan from any
In other cases, formal plea bargains in Pakistan are limited, but the prosecu-
tor has the authority to drop a case or a charge in a case and, in practice, often does so, in
return for a defendant pleading guilty on some lesser charge. No bargaining takes place
37
Other Common Law Jurisdiction
state of Victoria, plea bargaining is practiced only to the extent that the prosecution and the
defense can agree that the defendant will plead guilty to some charges or to reduced charges
in exchange for the prosecutor withdrawing the remaining or more serious charges. In New
South Wales, a 10-25% discount on the sentence is customarily given in exchange for an
early guilty plea, but this concession is expected to be granted by the judge as a way of
recognizing the utilitarian value of an early guilty plea to the justice system - it is never
negotiated with a prosecutor. The courts in these jurisdictions have made it plain that they
will always decide what the appropriate penalty is to be. No bargaining takes place between
This is because, unlike common law systems, civil law systems have no concept of pleaif
the defendant confesses; a confession is entered into evidence, but the prosecution is not
absolved of the duty to present a full case. A court may decide that a defendant is innocent
even though they presented a full confession. Also, unlike common law systems, prosecu-
tors in civil law countries may have limited or no power to drop or reduce charges after a
case has been filed, and in some countries their power to drop or reduce charges before a
case has been filed is limited, making plea bargaining impossible. Since the 1980s, many
civil law nations have adapted their systems to allow for plea bargaining
38
Central African Republic
In the Central African Republic, witchcraft carries heavy penalties but those
China
Committee of the National People's Congress in 2016. For defendants that face jail terms
of three years or fewer, agrees to plead guilty voluntarily and agree with prosecutors' crime
Denmark
deal in the United States was admissible in a Danish criminal trial (297/2008 H), the Su-
preme Court of Denmark unanimously ruled that plea bargains are prima facie not legal
under Danish law,[44] but that the witnesses in the particular case would be allowed to
testify regardless (with the caveat that the lower court consider the possibility that the tes-
timony was untrue or at least influenced by the benefits of the plea bargain).
The Supreme Court did, however, point out that Danish law contains mech-
anisms similar to plea bargains, such as § 82, nr. 10 of the Danish Penal Code which states
that a sentence may be reduced if the perpetrator of a crime provides information that helps
solve a crime perpetrated by others, or 23 as of the Danish Competition Law which states
that someone can apply to avoid being fined or prosecuted for participating in a cartel if
they provide information about the cartel that the authorities did not know at the time.
39
If a defendant admits to having committed a crime, the prosecution does not
have to file charges against them, and the case can be heard as a so-called "admission case"
under 831 of the Law on the Administration of Justice provided that: the confession is sup-
ported by other pieces of evidence (meaning that a confession is not enough to convict
someone on its own); both the defendant and the prosecutor consent to it; the court does
not have any objections; 68, 69, 70 and 73 of the penal code do not apply to the case.
Italy
has a technical name of penalty application under request of the parts. In fact, the bargaining
is not about the charges, but about the penalty applied in sentence, reduced up to one third.
When the defendant deems that the punishment that would, concretely, be
handed down is less than a five-year imprisonment (or that it would just be a fine), the
defendant may request to plea bargain with the prosecutor. The defendant is rewarded with
a reduction on the sentence and has other advantages (such as that the defendant does not
pay the fees on the proceeding). The defendant must accept the penalty for the charges
(even if the plea-bargained sentence has some particular matters in further compensation
The defendant, in the request, could argue with the penalty and aggravating
and extenuating circumstancing with the prosecutor, that can accept or refuse. The request
40
The plea bargaining could be granted if the penalty that could be concretely
applied is, after the reduction of one third, inferior to five-year imprisonment (so called pat-
teggiamento allargato, wide bargaining); When the penalty applied, after the reduction of
one third, is inferior of two years imprisonment or is only a fine (so called "patteggiamento
ristretto" limited bargaining), the defendant can have other advantages, like sentence sus-
pended and the effacement of the crime if in five year of the sentence, the defendant does
penalty according to the article 163 and following of the Italian penal code, the defendant
could subordinate the request to the grant of the suspension; if the judge rejects the suspen-
sion, the bargaining is refused. When both the prosecutor and the defendant have come to
an agreement, the proposal is submitted to the judge, who can refuse or accept the plea
bargaining.
According to Italian law, a bargain does not need a guilty plea (in Italy there
is no plea declaration); for this reason, a bargaining sentence is only an acceptance of the
penalty in exchange with the stop of investigation and trial and has no binding cogency in
other trials, especially in civil trials in which parts argue of the same facts at the effects of
civil liability and in other criminal trials in which are processed the accomplices of the
41
3.4 Benefits of Plea Bargaining
and defense attorneys cooperate and work together toward their individual and collec-
tive goals.
The primary benefit of plea bargaining for both the prosecution and the de-
fense is that there is no risk of complete loss at trial. In cases in which evidence for or
against a defendant is questionable, bargains may represent a feasible way for the attorneys
to minimize their potential losses by settling on a mutually acceptable outcome. Plea bar-
gaining can also be a way for the courts to preserve scarce resources for the cases that need
them most.
Prosecutors benefit from plea bargains because the deals allow them to im-
prove their conviction rates. Some prosecutors also use plea bargains as a way to encourage
Plea bargains allow prosecutors to avoid trials, which are shunned because
they are time-consuming, labour-intensive, and costly but carry no guarantee of success.
Through the rational use of plea bargaining, prosecutors can ensure some penalty for of-
every case (because that would incur public ire), they can bargain away routine cases or
those characterized by weak evidence or other difficulties, saving their time and resources
42
Plea bargaining allows defense attorneys to increase their efficiency and
profits, because they can invest less time on plea-bargained cases. Disposing of cases effi-
and private attorneys can make more money by bargaining than by going to trial. When
prosecutors issue charges that are arguably unmerited, defense attorneys can use negotia-
tion to achieve charge reductions. Defense attorneys may threaten to file many pretrial mo-
Judges also benefit from plea bargaining. The practice allows judges to pre-
side over efficient trials, to minimize the risk of rulings being overturned on appeal, and to
avoid the necessity of making rulings during trial. Most important to some judges, however,
is that plea bargains remove the burden of determining guilt, and the practice allows them
to share the responsibility for sentencing with the attorneys who fashioned the bargain.
Although plea bargains must be approved by judges before whom they are brought, judges
rarely refuse approval unless they feel that the defendant is legally innocent or has been
coerced into pleading guilty or unless the bargain calls for a penalty that the judge believes
Defendants, of course, also benefit from plea bargains, because they can
limit the severity of the sanctions they face and add certainty to an otherwise unpredictable
process. Some defendants plead guilty to avoid the stigma of trial, because trials are open
to the public and may be reported in the media. Guilty defendants sometimes use the threat
of trial to persuade prosecutors to reduce the severity of penalties they face. Some
43
defendants, both guilty and innocent, may accept bargains that seem beneficial to them,
especially if they have been detained before trial and if accepting the bargain would mean
Sometimes even victims prefer plea bargains to trials. Plea bargains allow
victims to avoid testifying in court, which may be frightening or upsetting, especially for
victims of violent crimes. Some victims also appreciate the certainty provided by plea bar-
gains; they need not worry about the emotional trauma of dealing with the acquittal of
Plea bargaining has been defended as a voluntary exchange that leaves both
parties better off, in that defendants have many procedural and substantive rights, including
a right to trial and to appeal a guilty verdict. By pleading guilty, defendants waive those
rights in exchange for a commitment from the prosecutor, such as a reduced charge or more
favourable sentence. For a defendant who believes that conviction is almost certain, a dis-
count to the sentence is more useful than an unlikely chance of acquittal. The prosecutor
secures a conviction while avoiding the need to commit time and resources to trial prepa-
ration and a possible trial. Plea bargaining similarly helps preserve money and resources
for the court in which the prosecution occurs. It also means that victims and witnesses do
not have to testify at the trial, which in some cases may be traumatic.
will help in cutting short the delay, backlogs of cases and speedy disposal of criminal cases,
saving the courts time, which can be used for hearing the serious criminal cases, putting a
certain end to uncertain life of a criminal case from the point of view of giving relief to
44
victims and witnesses of crime, saving a lot of time, money and energy of the accused and
the state, reducing the congestion in prisons, raising the number of convictions from its
present low to a fair level to create some sort of credibility to the system, not to facilitate
making of criminals by allowing innocents or unproven accused to live with the company
of hard core criminals during the trial and after conviction through making guilty plea.
could get the compensation. They need not get implicated or involved either as witness or
seeker of compensation or justice any longer than required for acceptance of plea bargain-
ing. Whether they get money or not their time might be saved.
get concession of considering the period of undergone in custody as suffering the sentence
under section 428 of CrPC. He will be relieved of extended trial i.e, appeals consuming
unending time. Accused is also benefited even when plea bargaining fails as his admission
cannot be used for any other purpose. Ultimate benefit for him is that his time and money
are saved.
Unfair: The system will be too soft for the accused and allow them unfair
tion of crime to some extent and hence not a fair deal. It creates a feeling that Justice is no
longer blind, but has one eye open to the right offer. Prosecutors and police, foreseeing a
45
bargaining process, will overcharge the defendant, much as a trade union might ask for an
impossibly high salary. It is inherently unfair, assuming you have two defendants who have
engaged in the same conduct essentially similar circumstances, to treat one more harshly
Contempt for system: It may create contempt for the system within a class
of society who frequently come before the courts. A shortcut aimed at quickly reducing the
number of under-trial prisoners and increasing the number of convictions, with or without
justice. While countless numbers of poor languishing in the country's prisons while await-
in number of innocent convicts in prison. Innocent accused may be paid by the actual per-
petrators of crime in return to their guilty plea with assured reduction in penalty. Thus
illegal plea bargaining between real culprits and apparent accused might get legalized with
rich criminals corrupting police officials ending up in mockery of justice system. When
damages, accused may not find it as useful and plea bargaining may not operate as incentive
at all.
the process.
Derailment of Trial: Once the guilty plea comes forward and recorded on
the file and in the mind of the judge, the trial will be surely derailed. The court may not
46
strictly adhere to or depart from the requirement of proof of beyond reasonable doubt and
The subject of the 142nd Report of the Law Commission of India (1991)
and the subsequent conclusions and recommendations were motivated by the abnormal de-
lays in the disposal of criminal trials and appeals. In this context the system of plea-bar-
gaining in the United States drew attention to itself and the Law Commission outlined a
scheme of plea-bargaining for India. The Commission noted that because no improvement
had been made in the situation and there was little scope for streamlining the system, the
report stated that the practice was not inconsistent either with the Constitution or the fair-
ness principle and was, on the whole, worthy of emulation with appropriate safeguards.
The Commission conducted a survey to ascertain whether the legal community was in sup-
port of plea-bargaining and also to gather opinions on the applicability of the practice if the
earlier response was in the affirmative. Of those surveyed, a high percentage was in favour
of the introduction of the scheme; additionally, most were in favour of introducing the con-
cept only to specified offences. The report concluded that an improved version of the
scheme suitable to the law and legal ethos of India should be considered with seriousness
The report also attempted to address some reservations that were expressed
as regards the introduction of plea-bargaining. The scheme would not be successful in India
47
due to illiteracy, which is comparatively much higher than in the United States and thus
people would not adequately understand the consequences of pleading guilty. The Com-
mission was of the opinion that because the contention fails to distinguish between literacy
and common sense, it does not hold ground. Further, the proposed scheme accounts for this
objection by providing for judicial officers to be plea judges, who would explain to the
Prosecution pressures may cause innocent people to yield and forego their
right to trial. The Commission opined that such concerns could be dispelled if the judicial
officer explained the implications of the scheme and was satisfied that the application was
made by the accused of his own volition and not as a result of coercion or duress.
In the existing situation where the acquittal rate is as high as 90% to 95%, it
is the poor who will be the victims of the concept and come forward to make confessions
and suffer the consequent conviction. The Commission stated that the argument that the
scheme may not succeed was merely a matter of opinion and was not good enough a reason
to oppose the scheme. Also, in the trade-off between languishing in jail as an under trial
prisoner and suffering imprisonment for a lesser or similar period, the latter would be the
rational choice as long periods in jail brought about economic and social ruin.
The incidence of crime might increase due to criminals being let-off easily.
The Commission regarded this concern as unfounded as the authority considering the ac-
ceptance or otherwise of the request for concessional treatment would weigh all pros and
cons and look into the nature of the offence and exercise its discretion in granting or reject-
48
Criminals may escape with impunity and escape due punishment. The Com-
mission stated that the scheme provides for concessional treatment and not for any punish-
sources would be saved and that the rehabilitation process of the offender would be initiated
early. The Commission concluded that the scheme for concessional treatment in respect of
those offenders, who on their own volition invoked the scheme, which incorporated appro-
The Commission envisaged that in due time, the scheme would encompass
all offences, but proposed that initially the scheme should be extended only to offences that
provide for imprisonment for a period of less than seven years. The extension of the scheme
would then be considered after a scrutiny of the results and in the light of public opinion.
The Commission also suggested further subdivision for a more effective and phased appli-
cation.
In its 154th Report, the Law Commission (1996) reiterated the need for re-
medial legislative measures to reduce the delays in the disposal of criminal trials and ap-
peals and also to alleviate the suffering of under trial prisoners. The 177th Report of the
Law Commission, 2001 also sought to incorporate the concept of plea-bargaining. The Re-
port of the Committee on Reforms of the Criminal Justice System, 2003 stated that the
experience of the United States was an evidence of plea-bargaining being a means for the
disposal of accumulated cases and expediting the delivery of criminal justice; the Commit-
tee thus affirmed the recommendations of the Law Commission of India in its 142ndth
49
Reports. and the 154th Report of the Law Commission points out that an order accepting
the plea passed by the competent authority on such a plea shall be final and no appeal shall
is provided for the offence, the competent authority may, after following the aforemen-
tioned procedure, accept the plea of guilty and record an order of conviction and impose a
sentence to the tune of half of the minimum term of jail provided by the statute for the
offence concerned. A statutory provision empowering the competent authority would have
to be made so that the provision prescribing the minimum sentence is not violated. The
competent authority shall have the power to record a conviction for an offence of lesser
gravity than that for which the offender has been charged in the charge-sheet or if the facts
The Law Commission was of the opinion that bargaining with the prosecu-
tor which provides the offender with an attraction to avail of the scheme is hazardous in the
Indian context, and that a just, fair, proper and acceptable scheme would be that the com-
petent authority can impose such punishment as may seem appropriate as regards the facts
and circumstances of the case subject to a limit of one-half of the maximum term provided
The scheme also bars habitual offenders, that is, persons convicted for an
offence under the same provision from invoking the scheme. There is, therefore, no merit
in the apprehension that those who secure concessional treatment may indulge in the same
activity again in the hope of being let off lightly once more. Persons charged with offences
50
against women and children are also excluded from the purview of the scheme. The scheme
allows for no negotiation between the accused and the State or the prosecutor or with the
court itself, which is a fundamental difference the scheme maintains from the practice, as
it exists in the United States. The scheme does not mention any provision or procedure for
withdrawal of pleas. These include subsequent withdrawal of the nature of stating that the
plea was not taken voluntarily. The scheme however maintains a difference between the
courts examining the case on merits and a totally separate institution i.e. the competent
authority for the purposes of the plea bargaining proceedings. It is important to note that
this separation ensures that the right to fair trial is not eroded.
the accused over the application made by him voluntarily and knowingly which has the
effect of eliminating the possibility of the prosecuting agency obtaining the plea through
tive punishment, it needs to be noted that in the American system, an offender would ap-
proach the court in a situation where the prosecution is agreeable to a concessional treat-
ment as well as the extent of the same. Thus, in the United States, the offender is assured
as to the extent of the concession that is likely to be secured in the event of the court agree-
In India, the offender would be facing an unknown hazard, and may prompt
him to avoid availing of the scheme. However, this is qualified to the extent that the com-
petent authority, upon acceptance of the plea of guilty, is more or less limited in terms of
the sentence that can be awarded and the accused can be assured as to a substantial level of
51
leniency on most occasions. Such a situation creates an undue level of pressure on the ac-
cused to plead guilty so as to avail of the scheme. The trade-off for an innocent accused
with a strong case against him amounts to a choice between the expected difference be-
tween sentence at trial and sentence subsequent to availing of the scheme which would
become an increasingly safe prediction in time; and the risk of continuing with the trial and
This situation will result in the innocent pleading guilty unless the equilib-
rium situation is corrected by reducing the difference between sentences at trial and sen-
tences awarded by the competent authority. The unpredictability of the trial is also a factor
that should also be taken into account. The innocent will plead guilty due to the feeling of
hopelessness at attempting to rebut the evidence of the police, the severity of the sentence
anticipated, and the weariness of the case dragging on and the attractiveness of the existent
scheme.
prisoner who is convinced in his own mind that he is in prison because he is the victim of
a mindless, undirected, and corrupt system of justice and in this manner the very basis of a
criminal justice system will be undermined. Understandably, the entire scheme owes its
existence to the severe pressure on the resources of the court. However, the scheme fails to
make the distinction between efficiency at the level of inception and the same being the
motivation for guilty pleas from the accused. The motivation for leniency is acknowledge-
ment of error and a desire to reform, not the conservation of resources. The failure to take
52
Also, accused will inevitably assume some level of leniency in an implicit
manner. In a natural state that is, in the absence of plea bargaining, 50% to 75% of accused
plead guilty. Increase in case pressure may affect plea-bargaining but it would be fallacious
to assume that plea-bargaining is caused by caseload. This is however, the reason for intro-
ducing the scheme under the 142nd Report of the Law Commission. In fact, prosecutors
hand-in-hand with the imposition of mandatory sentencing, which implies that prosecutors
Thus, it may be inferred that even the scheme proposed by the Law Com-
mission of India may not be advantageous. At this juncture, it may be helpful to examine
compounding of offences under Section 320 of the Code of Criminal Procedure, 1973. The
issue is whether expanding the list of compoundable offences will be an effective solution
for the problem of overcrowded courts and whether this can then serve as an alternative to
compromise between the accused and the victim does not ideally serve to absolve the ac-
as compoundable offences while some others are compoundable with the permission of the
court. Compounding of offences has the effect of an acquittal and there is no admission of
guilt envisaged in the process. The extension of the list of compoundable offences seems
to be inconsistent with the logic underlying the same, which is that the offence is essentially
a private one. Also, the compounding of offences has the effect of an acquittal, which
53
certainly cannot be maintained for serious offences. The scope for consideration being in-
volved in the transaction is prima facie against public policy especially for more serious
offences and the same would operate to the detriment of the financially weaker classes.
The compounding of offences does not require the admission of guilt, which
cused. It is on this basis that the argument for extending compoundable offences so as to
allow courts to function expeditiously is misplaced, as the scope of any such expansion will
The 154th report of the Law Commission (1996) recommended that plea
the 12th Law Commission Report (1991) the conception of idea behind incorporating the
idea of plea bargaining was mentioned wherein it was stated that there needs to be some
remedial legislative measures to reduce the delays in the disposal of criminal trials and
appeals and also to alleviate the sufferings of under trial prisoners awaiting the commence-
ment of trials.
The NDA government formed a committee, headed by the former Chief Jus-
tice of the Karnataka and Kerala High Courts, where Justice V.S.Malimath came up with
some suggestions to tackle the ever-growing number of criminal cases. In its report, the
Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to
54
Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was intro-
duced in the parliament. The statement of objects and reasons, inter alia, mentions that, the
disposal of criminal trials in the courts takes considerable time and that in many cases trial
do not commence for as long as 3 to 5 years after the accused was remitted to judicial
The bill attracted enormous public debate. Critics say that it should not be
recognized as it would go against the public policy under our criminal justice system. The
Supreme Court has also time and again reiterated the concept of plea bargaining saying that
6. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Pro-
7. Provisions of Fruit Products Order, 1955 (issued under the Essential Commodities
Act, 1955).
8. Provisions of Meat Food Products Order, 1973 (issued under the Essential Com-
55
9. Offences with respect to animals that find place in Schedule I and Part II of the
12. Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of
16. Offences specified in Sections 59 to 81 and 83 of the Delhi Metro Railway (Oper-
2. Accused is previous convict for the same kind of offence for which person is ac-
56
5. Offence comes in category of serious crime. Generally, such offences are identified
In the next chapter -4 we will see the various judicial judgement that are
57
CHAPTER – 4
JUDICIAL TRENDS
4.1 Kasam bhai Abdul Rehman bhai Sheik etc. v. State of Gujarat and another: 1980
High Court in suo motu revision against an order passed by the Judicial Magistrate, First
Class, Balasinor convicting the appellant of the offence under s. 16(1)(a)(i) read with s.7 of
the Prevention of Food Adulteration Act, 1954 and sentencing him to suffer simple impris-
onment till the rising of the Court and to pay a fine of Rs. 125/- or in default to undergo
simple imprisonment for- a further period of 30 days. The appellant was prosecuted in the
Court of the learned Magistrate for an offence of adulteration of turmeric powder punisha-
ble under s. 16(1)(a)(1) read with s. 7 of the Prevention of Food Adulteration Act, 1954.
It appears from the record that after some evidence was led on behalf of the
prosecution, plea bargaining took place between the prosecution, the defense and the
learned Magistrate and on the basis of an understanding arrived at between these three par-
ties, the appellant pleaded guilty and the learned Magistrate accepting this plea of guilty,
recorded a finding of conviction against the appellant and let off the appellant with a nom-
inal sentence of imprisonment till the rising of the Court and a small fine. It is, of course
true that there is no specific evidence to show that the plea for guilty was entered by the
appellant as a result of plea bargaining, but two circumstances, viz., (1) that the appellant
pleaded guilty, even though the sample was treated as cancelled by the public Analyst on
58
account of its being broken and leaking and there was no evidence of the report of the
public Analyst showing the sample as adulterated and (2) that the judgment of the learned
that the plea of guilty was entered by the appellant in consequence of an assurance held out
by the prosecution and acquiesced in by the learned Magistrate that he would be let off with
a very light sentence. It is highly regrettable that the prosecution as well as the learned
Magistrate should have been a party to any such plea bargaining in a prosecution for adul-
teration involving the health and well-being of the community. Unfortunately, in our coun-
try adulteration has assumed alarming proportions and it is absolutely essential to wipe it
out ruthlessly and completely by bringing to book offenders responsible for adulteration
The investigating agencies must intensify their efforts and catch hold of
those who for some private economic gain are prepared to jeopardize the health of the com-
munity and indulge in mass murder and when such persons are arraigned before the Court
and found guilty a really deterrent and punitive sentence must be imposed upon them. If it
away with a light sentence, the anti-adulteration law will cease to have any meaning and
Moreover, we find that here the learned Magistrate had got a cyclostyled
form of judgment in which merely blanks were filled in by him and this is the clearest
possible evidence that he was in the habit of encouraging plea bargaining and letting off
the accused lightly if there was a plea of guilty, so that he may get quick disposal without
59
any effort. This was a highly reprehensible practice and we are glad to note that the High
The Magistrate trying an accused for a serious offence like adulteration must
apply his mind to the evidence recorded before him and, on the facts as they emerge from
the evidence, decide whether the accused is guilty or not. It must always be remembered
by every judicial officer that administration of justice is a sacred task and according to our
hoary Indian tradition, it partakes of the divine function and it is with the greatest sence of
responsibility and anxiety that the judicial officer must discharge his judicial function, par-
The course followed by the learned Magistrate in the present case clearly
showed that there was no application of mind by him to the case laid on behalf of the pros-
ecution and he was a consenting party to the appellant being persuaded to enter the plea of
guilty and, acting mechanically on the plea of guilty as extracted from the appellant, he
appeased his insensitive conscience by recording a finding conviction against the appellant
and let him off with a mere sentence of imprisonment till the rising of the Court and a
nominal fine.
The High Court on its attention being drawn to the Order passed by the
learned Magistrate initiated suo motu proceeding in revision by issuing notice to the appel-
lant to show cause why the sentence imposed on him should not be enhanced. The appellant
appeared in answer to the notice and challenged the conviction recorded against him, but
the High Court did not go into the circumstances in which the plea of guilty was entered by
the appellant and relying on the plea of guilty proceeded on the basis that the appellant was
60
rightly convicted and since the offence said to be established against the appellant, was
with respect to an article of 'primary food' punishable under s. 16(1)(a) (i) of the Prevention
of Food Adulteration Act, 1954, the High Court held that the appellant was liable to be
sentenced to imprisonment for a minimum term of 3 months and a fine of not less than Rs.
500. The High Court accordingly enhanced the sentenced imposed on the appellant to 3
months' simple imprisonment and a fine of Rs. 500 or in default, further simple imprison-
ment for 30 days. This order made by the High Court is challenged in the present appeal
Now, it does not appear from the record whether the entire prosecution evi-
dence was completed before the learned Magistrate before the plea of guilty was entered
on behalf of the appellant, but one thing is clear that the finding conviction recorded by the
learned Magistrate against the appellant was not based on the evidence led on behalf of the
prosecution. The conviction of the appellant based solely on the plea of guilty entered by
him and this confession of guilt was the result of plea of bargaining between the prosecu-
It is obvious that such conviction based on the plea of guilty entered by the
confess to a plea of guilty on an allurement being held out to him that if he enters a plea of
guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable,
unfair and unjust and would be violative of the new activist dimension of Art. 21 of the
Constitution unfolded in Maneka Gandhi's case. It would have the effect of polluting the
61
pure fount of justice, because it might induce an innocent accused to plead guilty to suffer
a light and inconsequential punishment rather than go through a long and ardous criminal
trial which, having regard to our combers and unsatisfactory system of administration of
justice, is not only long drawn out and ruinous in terms of time and money, but also uncer-
tain and unpredictable in its result and the judge also might be likely to be defected from
the path of duty to do justice and he might either convict an innocent accused by accepting
the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the pro-
cess of law and frustrating the social objective and purpose of the anti-adulteration statute.
This practice would also tend to encourage corruption and collusion and as
a direct consequence, contribute to the lowering of the standard of justice. There is no doubt
in our mind that the conviction of an accused based on a plea of guilty entered by him as a
result of plea-bargaining with the prosecution and the Magistrate must be held to be uncon-
stitutional and illegal. The High Court should have therefore, set aside the conviction of the
appellants and sent the case back to the learned Magistrate for trial in accordance with law,
ignoring the plea of guilty entered by the appellant. The High Court was clearly in error in
We accordingly allow the appeal, set aside the judgments of the High Court
as also the Order of conviction and sentence recorded against the appellant by the learned
Magistrate and remand the case to the learned Magistrate so that he may proceed with the
case from the stage at which the appellant confessed to a plea of guilty. The learned trial
Magistrate will ignore the plea of guilty entered by the appellant and proceed further with
the case after giving an opportunity to the prosecution to lead such additional evidence as
62
it thinks fit and then allowing the appellant to enter upon his defense and lead such evidence
in defense as he thinks proper and then dispose of the case in accordance with law. The
appellant will continue on the same bail on which he has been released by this Court by its
The facts giving arise to this appeal by special leave are almost identical
with those of Criminal Appeal No. 93 of 1980 save and except that the appellant is different
and for the same reasons as are given by us in our Judgment disposing of Criminal Appeal
No. 93 of 1980, we allow the present appeal, set aside the judgment of the High Court as
also the Order of Conviction and sentence recorded against the appellant by the learned
Magistrate and remand the case to the learned Magistrate so that he may proceed with the
case from the stage at which the appellant confessed to a plea of guilty. The learned trial
Magistrate will ignore the plea of guilty entered by the appellant and proceed further with
the case after giving an opportunity to the prosecution to lead such additional evidence as
it thinks fit and then allowing the appellant to enter upon his defense and lead such evidence
in defense as he thinks proper and then dispose of the case in accordance with law. The
appellant will continue on the same bail on which he has been released by this Court by its
These appeals by special leave are filed by the State of U.P. against the
judgment and order dated 28 November, 1997 passed by the High Court of Judicature at
Allahabad in Criminal Appeal Nos. 2747-48 of 1980 whereby the High Court accepted the
plea bargain and maintained the conviction of the respondent under Section 304 part
63
I, I.P.C. but altered the sentence to the period of imprisonment already undergone (without
stating actual period of imprisonment undergone by the respondent) plus a fine of Rs. 5000
The respondent along with two others was charged under Section 302 read
with Sections 307 and 34 I.P.C. for committing the murder of one Shyamadeo in Sessions
Case No. 233 of 1980. The Sessions Judge, Ballia by his judgment and order dated
28.11.1980 convicted the respondent under Section 304 I.P.C. and sentenced him to un-
dergo eight years R.I. Aggrieved by the said order, respondent preferred an appeal before
the High Court and at the time of hearing opted not to challenge the findings of conviction
recorded by the trial Court with a view to bargain on the question of sentence.
Learned Single Judge, (Malaviya, J.) accepted the bargain and allowed the
appeal by observing inter alia that as the incident had taken place long back and since the
appellant had been in jail for some time both as undertrial prisoner and as a convict, it was
desirable to substitute his remaining period of jail sentence as awarded by the trial court
and altered the sentence as stated above. The State has challenged that judgment and order
by filing these appeals. It is apparent that the order passed by the High Court is, on the face
It appears that the learned Judge has overlooked the settled law or is unaware
that concept of `plea bargaining' is not recognised and is against public policy under our
criminal justice system. Section 320 Cr. P.C. provides for compounding of certain offences
with the permission of the Court and certain others even without permission of the Court.
Except the above, the concept of negotiated settlement in criminal cases is not permissible.
64
This method of short circuiting the hearing and deciding the criminal appeals or cases in-
volving serious offences requires no encouragement. Neither the State nor the public pros-
ecutor nor even the Judge can bargain that evidence would not be led or appreciated in
For this purpose, we would first refer to the decision in Madanlal Ram Chan-
dra Daga etc. v. State of Maharashtra, [1968] 3 SCR 34 (Page No. 39), wherein this Court
held :-
"In our opinion, it is very wrong for a court to enter into a bargain of this
character. Offences 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. But the court should never be a party to a bargain by which money is recovered
for the complainant through their agency. We do not approve of the action adopted by the
High Court.."
"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 understand-
ing of light sentence in lieu of nolo contenders stance. Many economic offenders resort to
practices the Americans call `plea bargaining', `plea negotiation', `trading out' and `com-
promise in criminal cases' and the trial magistrate drowned by a docket burden nods assent
ignominy of tenancy of a prison cell, `trades out' of the situation, the bargain being a plea
of guilt, coupled with a promise of `no jail'. These advance arrangements please everyone
65
except the distant victim, the silent society. The prosecutor is relieved of the long process
higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and
persons, is avoided by one case less and the accused is happy that even if legalistic battles
might have held out some astrological hope of abstract acquittal in the expensive hierarchy
of the justice-system he is free early in the day to pursue his old profession.
cases, as obtains in the United States but in our jurisdiction, especially in the area of dan-
gerous economic crimes and food offences, this practice intrudes on society's interest by
mum sentences and by subtly subverting the mandate of the law. The jurists across the
Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justify it phil-
osophically as a sentence concession tO a defendant who has by his plea `aided in ensuring
This Court strongly disapproved the practice of plea bargain in Kachhia Pa-
tel Shantilal Koderlal v.State of Gujarat and another, [1980] 3 SCC 120. The Court held
that practice of plea bargaining is unconstitutional, illegal and would tend to encourage
corruption, collusion and pollute the pure fount of justice. In that case accused was con-
victed under Section 16(f )(a)(i) read with Section 7 of the Prevention of Food Adulteration
Act, 1954 by the Magistrate on the basis of plea bargaining which took place between pros-
ecution, the defense and the learned Magistrate and accused was let-off with a nominal
66
The High Court on its attention being drawn towards the order passed by
the learned Magistrate initiated suo motu proceeding in the revision by issuing notice to the
accused to show cause why the sentence imposed on him should not be enhanced. The High
Court enhanced the sentence and sentenced the accused to imprisonment for a term of three
months and a fine of Rs. 500. That order was challenged before this Court. The Court held
that the conviction of the accused was based solely on the plea of guilty entered by the
appellant as a result of plea bargaining between the prosecution, the defense and the learned
Magistrate.
dispose of the criminal cases. The Court has to decide it on merits. If accused confesses his
guilt, appropriate sentence is required to be imposed. Further, the approach of the Court in
appeal or revisions should be to find out whether the accused is guilty or not on the basis
maintained. If the appellant or his counsel submits that he is not challenging the order of
conviction, as there is sufficient evidence to connect the accused with the crime, then also
the Court's conscious must be satisfied before passing final order that the said concession
is based on the evidence on record. In such cases, sentence commensuration with the crime
guilt should not be a ground for reduction of sentence. Nor can the accused bargain with
67
4.3 State of Gujarat vs Natwar Harchandji Thakor: 2005 CriLJ 2957, (2005) 1 GLR
709
We make it clear that the grievance and voice raised by the learned single
any way intended to be diluted. But the 'plea bargaining' and the raising of "plea of guilty",
both things should not have been treated, as the same and common. There it appears to be
mixed up. Nobody can dispute that "plea bargaining" is not permissible, but at the same
time, it cannot be overlooked that raising of "plea of guilty", at the appropriate stage, pro-
vided in the statutory procedure for the accused and to show the special and adequate rea-
sons for the discretionary exercise of powers by the trial Court in awarding sentences can-
ter of proof. Every "plea of guilty", which is a part of statutory process in criminal trial,
factual profile of each accused in criminal trial before reaching a specific conclusion of it
being only a "plea bargaining" and not a plea of guilty simpliciter. It must be based upon
facts and proof not on fanciful or surmises without necessary factual supporting profile for
that.
any jurisdictions in our country. Therefore, it is illegal. The Hon'ble Apex Court has time
and again raised clear and consistent voice, in host of the judicial pronouncements, and also
has come down heavily, against the trick and play of the "plea bargaining". Therefore, so
68
far so "plea bargaining" is held not only illegal and unconstitutional but also intending to
encourage the complain, collusion and pollution of the poor punt of justice. Therefore, the
observation by the learned single Judge in those cases against the "plea bargaining" and
the course of observance of the mandatory procedure prescribed in Code and particularly
in Sections 228(2), 240(2), 252 and also in Section 253 for the trial of case by the Magis-
trates, when plea of guilty is recorded as per the procedure prescribed cannot be said to be
a "plea bargaining".
In a criminal trial there must be justifiable material on record and any as-
sumption, presumption or surmise having no nexus with the factual profile of a given case
of an each accused cannot be sustained. It is matter of proof like any other proof of fact, as
less than minimum sentence awarded though may be in the light of "special and adequate
reasons" peculiar to the each accused and in the factual and contextual profile of a given
cases, is only "plea bargaining". It has to be proved and shown to the satisfaction of the
Court. It cannot be straightaway deduced. In the said case before the learned single Judge,
there may be supporting and justifiable material to hold it as "plea-bargain". But each and
"plea bargaining" is not recognised, so far and is not permissible. Whether "plea of guilty"
69
is "plea bargaining" or not, will be a matter of fact to be examined in each case, from the
factual matrix of the case and totality of the context and entire profile. It cannot be con-
tended that every "plea of guilty" is always plea bargaining in case of each case and each
accused. It cannot be also assumed without supporting facts and attending circumstances.
the satisfaction of the Court, then it cannot be allowed and sustained, being not legal and
permissible; in those cases based on facts and proof thereof. Thus, it is a matter of proof
4.4 The State of Gujarat vs Chelabhai Bhanabhai Prajapati: 1974 33 STC 147 Guj
bricks for sale. The opponent was not registered under the Bombay Sales Tax Act, 1963
(sic). Assessment proceedings were started against the opponent in 1964. The opponent
was assessed for the period from 11th April, 1958, to 31st December, 1959, and 1st January,
1960, to 4th May, 1961, as an unregistered dealer. He was also assessed for the subsequent
periods from 5th May, 1961, to 31st March, 1963, and 1st April, 1963, to 24th October,
1965, as a registered dealer. It appears that the assessment order for the period form 1st
January, 1960, to 4th May, 1961, was passed by the Sales Tax Officer on 30th September,
1964, holding that the opponent was liable from 1st January, 1960.
Tax who fixed his liability from 1st April, 1960. The Assistant Commissioner passed his
order on 27th August, 1965. In view of this order of the Assistant Commissioner of Sales
Tax, the Sales Tax Officer passed a fresh assessment order for the period from 1st April,
70
1960, to 4th May, 1960, on 15th January, 1966. In the meantime, on 27th July, 1965, the
Sales Tax Officer, Enforcement Branch, visited the place of business of the opponent and
seized account books, katcha rojmel, loose copies of bills, etc. The Sales Tax Officer, En-
forcement Branch, after seizure of the material wrote a letter to the Assistant Commissioner
who in his turn wrote a letter to the Deputy Commissioner, bringing to his notice the fact
about the new materials seized at the time of his visit. It was thereafter on 27th December,
1966, that the Deputy Commissioner took up the matter in suo motu revision and issued
notice to the opponent, asking him to show cause why the order of the Assistant Commis-
The opponent appeared and contended, inter alia, that the Deputy Commis-
sioner was not entitled to exercise revisional jurisdiction under section 57 of the Bombay
Sales Tax Act, 1959. This contention did not find favour with the Deputy Commissioner,
who ultimately revised the order of the Assistant Commissioner by his order of 15th July,
1969, and fixed the liability of the opponent from 1st January, 1960, and, consequently,
made certain additions to the turnover of sales as well as of purchases. The opponent, there-
fore, took the matter in appeal before the Gujarat Sales Tax Tribunal.
herein that the revising authority had no jurisdiction to initiate the revision proceedings on
the materials which did not form part of the record in existence before the taxing authority.
This contention found favour with the Tribunal and, therefore revision application of the
opponent was allowed and the order passed by the Deputy Commissioner on 15th July,
71
1969, in revision was set aside. At the instance of the State, the following question has been
"Whether, on the facts and in the circumstances of the case, the Deputy
Commissioner of Sales Tax, for the purpose of ascertaining whether there was any illegality
or impropriety in the order passed by the Assistant Commissioner of Sales Tax or any ir-
regularity in the proceeding adopted by him, and then assuming revisional jurisdiction un-
der section 57 of the Bombay Sales Tax Act, 1959, could take into consideration only the
record of the proceeding before the Assistant Commissioner or could also take into consid-
eration other material which the Sales Tax Officer, Enforcement Branch, had seized on
27th July, 1965, and which did not form part of the record of the proceeding before the
In the case before us, it has been found by the Tribunal that the Deputy
Commissioner initiated revision proceedings after he received a letter from the Assistant
Commissioner, forwarding the report of the Sales Tax Officer, Enforcement Branch, who
had seized the account books, etc., of the opponent-company, after the Appellate Commis-
sioner passed an order in appeal, reversing the order of the Sales Tax Officer and holding
the opponent to be liable from 1st April, 1960. The Tribunal was, therefore, right when it
opined that the Deputy Commissioner has, for purposes of initiating revisional proceedings,
relied on the materials which were not part of the matter before the taxing authority.
The Deputy Commissioner, in other words, did not restrict himself to the
record of the proceedings before invoking revisional powers. In that view of the matter,
therefore, the Tribunal was right when it held the ratio of K. M. Cheria, Abdulla and Co.'s
72
case ([1965] 16 S.T.C. 875 (S.C.)), that the revising authority did not only call for the record
of the order or the proceedings and did not, for purposes of scrutinising or ascertaining the
legality or propriety of the order or regularity of the proceedings, consider the record alone.
The Tribunal was, therefore, justified in holding that the Deputy Commissioner had acted
beyond his jurisdiction in initiating revisional proceedings on certain materials which were
On behalf of the revenue, it was urged that assuming that the Commissioner
could not have looked into the materials as disclosed from the seizure of the account books,
etc., by the Sales Tax Officer, Enforcement Branch, he has none the less power to order an
enquiry in which such materials can be legally considered. In our opinion, this further ques-
tion does not arise, as rightly held by the Tribunal that the Deputy Commissioner was not
within his powers under section 57 of the Act to initiate proceedings on materials which
were not part of the record of the assessment. In that view of the matter, therefore, the
further question does not arise and it does not require to be answered. We, therefore, answer
that question as under: "On the facts and in the circumstances of the case, the Deputy Com-
missioner, for initiating suo motu revision under section 57 of the Bombay Sales Tax Act,
1959, could take into consideration only the record of the proceeding before the Assistant
Commissioner and could not consider the material which did not form part of the said rec-
ord."
73
4.5 State of Gujarat vs Ishwar bhai Harkha bhai Patel: (1994) 2 GLR 1047, (1995)
against the impugned judgment and order of sentence dated 21.8.1991, rendered in Crimi-
nal Case No. 838 of 1991, by Shri N. C. Chaudhari, the learned J. M. F. C., Idar, wherein
the respondent – Ishwar bhai Harkha bhai Patel, who came to be tried for the alleged officer
punishable under Section 21(1)(i)(iv)(c) read with Section 92 of the Factories Act, 1948,
on his pleading guilty came to be convicted for the same and sentenced to pay fine of Rs.
ited "Shri Sardar Patel Regional Oil Seeds Growers' Co-op. Union Ltd. " at Idar on
30.4.1991, it came to his notice that on 22.4.1991 at 9.05 hours, a serious accident had
taken place wherein one Manoj Maganbhai Katara, an employee working in the said factory
sustained injury as a result of which his left hand was cut-off right from elbow, as it got
entangled in the conveyer belt of the machine. On the basis of this fact, the Factory Inspec-
tor file a complaint on 26.6.1991 against the respondent before the learned Magistrate, Idar
On the summons being served upon the respondent, he appeared before the
21.8.1991, the respondent submitted a purshis Exh. 5 stating therein (i) that the alleged
offence against him was his first offence, (ii) that he will not repeat the same in future, and
(iii) that the lenient view be taken in the matter of sentence. Immediately thereafter, on the
74
very day, this plea of guilty by the accused came to be recorded wherein he pleaded guilty
and prayed for the mercy. The learned Magistrate accepting the said plea, convicted the
respondent for the aforesaid alleged offences and sentenced to pay fine of Rs. 2,000/-, as
stated above in para 1 of this judgment, giving rise to the present appeal for the enhance-
ment of sentence.
of sentence submitted that the same on face of it was quite illegal and unjust being contrary
to the statutory minimum sentence of fine of Rs. 5000/- as provided in Section 92 of the
Act. Mr. Shah making good the above submissions has invited attention of this Court to the
said Section 92 of the Act, in particular the proviso the said Section which reads as under :
Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is
any contravention of any of the provisions of this Act or of the any rules made thereunder
or of any order in writing given thereunder, the occupier and manager of the factory shall
each be guilty of an offence and punishable with imprisonment for a term which may extend
to (two years) or with fine which may extend to (one lakh rupees) or with both, and if the
contravention is continued after conviction, with a further fine which may extend to (one
any rule made thereunder or under Section 87 has resulted in an accident causing death or
serious bodily injury, the fine shall not be less than (twenty five thousand rupees) in the
75
case of accident causing death, and (five thousand rupees) in the case of an accident causing
Mr. Shah further submitted that the proviso to the aforesaid section makes
it amply clear that in case of accident-causing serious bodily injury, the accused was liable
to be punished at least with a fine not less than Rs. 5,000/-. On the basis of these submis-
sions, Mr. Shah finally urged that since the impugned order of sentences is ex-facie illegal,
this appeal for the enhancement of sentence deserves to be allowed, and accordingly, the
impugned order of the fine shall have to be modified by sentencing the respondent to pay
the submissions made by Mr. Parikh that this was a case of 'plea-bargaining'. The reasons
for holding so are three fold - firstly, because the learned Magistrate in para-2 of his judg-
ment has specifically stated that (i) the accused has pleaded guilty quite voluntarily, (ii) for
that, he has passed a written purshis duly signed by him, (iii) that before recording the plea
of guilty, neither any inducement nor threat has been administered to the accused and (iv)
since the said plea of guilty was absolutely voluntary, the same has been accepted. Sec-
ondly, this is a case wherein in the complaint itself, it has been clearly stated that for the
alleged offence under Section 21(1)(iv)(c) of the Act, the sentence provided in proviso of
fine of Rs. 5,000/-. Thirdly, in the instant case, the respondent was represented by his
learned Advocate Mr. K. M. Parmar and in that view of the matter, ordinarily, (i) it indeed
cannot be believed that he was unaware of the legal consequences that may ensue when
knowing full well he pleaded guilty, viz., that he will be visited with minimum sentence of
76
fine of Rs. 5000/- even if he pleads guilty and (ii) that the learned member of the bar be-
longing to the noble profession would not be that much unethical to stoop so low as to be
a party to the 'plea-bargaining' which is nothing less than fraud on law and justice. In fact,
it is really unfortunate and shocking too that in the present case, the learned Magistrate has
neither cared to peruse the complaint wherein, as stated above, it has been expressly men-
tioned that the minimum sentence provided for the alleged offence was fine not less than
Rs. 5,000/-; not the relevant provisions of Section 92 of the Act; not perhaps it appears that
he was even conscious of the underlying the beneficial piece of legislation, viz.
The Factories Act, 1948. Under the circumstances, such gross defiance of
the Legislative mandate itself cannot be said to be a simple violation of law, and that too
not by the owner or the occupier of the factory, but by the learned Magistrate himself, who
is ordinarily expected to uphold the dignity and honour of the object underling the law on
the one hand and the cause of justice for weaker section like the working class on the other.
Such gross defiance of law, prima facie is serious dereliction of duty and unbecoming on
the part of any learned Magistrate, and therefore, the same is required to be taken very
serious note of, to sternly deal with it in the overall interest of administration of justice.
In fact not to do so, perhaps, may embolden such erring learned Magistrates
to discharge their duty carelessly and thereby seriously undermine the basic structure of the
'Rule of Law' where none other but the learned Magistrate himself is found to be violating
the law; by not violating some stray provisions but altogether eradicating the very object
underlying the Act. May be, that these sort of observations of the Court appear to be little
caustic and inconvenient for the concerned learned Magistrate to bear, but it is seen to be
77
believed that it echoes the extend of hurt and damage caused to the judicial conscience and
his duties in matter of upholding the honour and enforcing the spirit of law. Rather, every
Court is supposed to know that "justice" is not a matter of personal property and charity
but it has a nexus with the public interest, and it has got to be administered accordingly. In
fact, to take such malignant attitude and mal-practice of 'plea-bargaining' by some of the
This Court, as a matter of fact, has come across hundreds of such cases
wherein such defiance of labour laws by some of the learned Magistrates have become an
order of the day! It is under such compelling circumstances only, that to arrest the alarming
unconcerned attitude of the learned Magistrates in effectively attending the Labour justice,
that this Court is constrained to make point-blank observations on pages of this judgment.
Accordingly, it is indeed high time to take little stricter view of the matter, against the erring
learned Magistrates, which this Court desires to do in the following two ways:
1. in the first instance, by sending observations made by this Court in such type of
cases to the concerned District and Session Judges by requesting them to hold in-
quiry and call for explanation from the delinquents and thereafter submit their report
78
2. Not only that but in each and every case of 'plea-bargaining' where the learned Mag-
istrate inflicts sentence less than the minimum prescribed, then in that case, in the
first instance, he shall forward a copy of the impugned judgment and order to the
concerned District and Session Judge, and in the second instance, to the High Court.
On receipt of such judgment and order, if the learned District Judge finds that the
sentence inflicted upon the respondent is less than the minimum it shall be his duty
to hold inquiry against such erring Magistrate, and thereafter, pass appropriate or-
ders after hearing him. Similarly, office of the High Court, on receipt of such orders,
shall place the matter before the concerned Court taking up such matter in appeal
for admission.
Thus, the aforesaid first direction will take care of maintaining discipline
and brining the subordinate Magistrate within the legal bounds on the administrative side
and the second direction will correct the impugned judgment and order on the judicial side.
Of course, this does not mean that the aggrieved complainant should not file appeal for
enhancement of the sentence. generally, it is only when some grievance is made by the
aggrieved complainant before the High Court, that despite the fact that statute has provided
minimum sentence, the learned Magistrate has awarded less than that, and in those cases
only, the High Court enhances the sentence or remands the cases on the ground of 'plea-
This sort of incidental and once a while remanding by the High Court ap-
pears to be nothing more than treating the case merely symptomically rather than treating
the real and root cause of the disease itself. Taking into consideration the fact that the
79
disease of 'plea-bargaining' and getting away with the lighter sentence despite number of
judgments on the elementary point of law has become a growing chronic disease it is re-
quired to be treated intensively and deep-rootedly so that it can be effectively dealt with
Moreover, one can quite understand sometimes some honest error made in
appreciation of the evidence and/or in interpreting any provisions of law but it is indeed
difficult to understand as to how the learned Magistrate can ever ignore the express mandate
of law prescribing the minimum sentence to be awarded in some cases! Lord Denning in a
decision rendered in case of Seaford Court Estates Ltd. v. Asher, reported in 1949 (2) All
ER 155 has observed that "when a defect appears, a judge cannot simply fold his hands and
blame the draftsman. He must sit to work on the constructive task of finding the intention
of the Parliament and then he must supplement the written words so as to give 'force and
A Judge should ask himself the question how if the makers of the Act had
themselves come across this truck in the texture of it, they would have straightened it out?
He must then do as they would have done. A Judge must not alter the material of which the
Act is woven, but he can and should iron out the creases"! No doubt there is no case of
blaming the draftsman in this case, yet at the same time with a definite view to give "force
and life" to the intention of the Legislature, this Court in absolute interest of the working
class and public at large would like to give direction to all the learned Magistrates to for-
ward a copy of impugned judgments and orders wherein the sentence of fine is inflicted
less than minimum prescribed in the relevant statutes in the first instance to the concerned
80
District and Sessions Judge, and in the second instance to the High Court, as discussed
of this judgment to the learned District and Sessions Judge to at once hold inquiry into the
matter and call for explanation from the concerned Magistrate as to why and under what
circumstances despite the minimum sentence prescribed under Section 92 of the Act, he
imposed less than the minimum and forward his report along with his observations to the
In view of the aforesaid discussion, since the impugned order of fine of Rs.
2,000/- is ex-facie illegal, being less than the statutory minimum of Rs. 5,000/- prescribed
under Section 92, this Court is under obligation to enhance the same to the tune of Rs.
In the result, this appeal is allowed. The impugned order of sentence passed
against the respondent by the trial Court is accordingly modified. The sentence of fine is
enhanced from Rs. 2,000/- to Rs. 5,000/-, and accordingly, the respondent is directed to
pay balance amount of Rs. 3,000/- (Rupees three thousand) on or before 10th November,
4.6 State of Gujarat vs Tha. Somaji Jamaji: 1994 CriLJ 3458, (1995) 1 GLR 548
These three appeals for the enhancement of sentence by the State of Gujarat
are directed against the impugned judgment and order dated 20-1-1993, passed by Mr. K.K.
Vaisya, the learned J.M.F.C., Kadi; rendered in three different criminal cases being num-
bers 1026/92, 1027/92 and 1400/92, wherein respondent Tha. Somaji Jamaji, who came to
81
be tried for the alleged offences punishable under Section 66(1)(b) of the Bombay Prohibi-
tion Act, 1949 (for shorts Act) on his pleading guilty, was convicted for the same and sen-
tenced till rising of the court and to pay fine of Rs. 20/ - in each case, and in default, to
viz. 7-2-1992 at 23-50 hours, 5-3-1992 at 11-45 hours, and 19-5-1992 at 13-45 hours, was
found in possession of illicit liquor of the quantity - 2 litres, 16 litres and 2 litres respec-
tively in the public place at Nadi. Thereafter, when challaned before the court, he pleaded
guilty and the learned Magistrate accepting the same, convicted and sentenced him as stated
above in para-1 of this judgment giving rise to the present three appeals for enhancement
of the sentence. Incidentally, it may also be stated that the plea of guilty of the respondent
came to be recorded on the very day i.e. 20-1-1993 immediately followed by the aforesaid
at the very outset that the same are not only unduly lenient and manifestly unjust, but the
same are in total disregard to the specific provisions contained in Section 66 of the Act and
Now, the very bare reading of the aforesaid Section 66(1)(b) along with the
proviso appended thereto clearly demonstrates as to how and up to what extent the im-
pugned orders of sentence are illegal and perverse and suffers from the patent vice of the
'plea-bargaining'! From the impugned Judgment and orders, it also appears that the learned
Magistrate before passing the same has not cared to read the provisions of Section 66(1)(b)
82
of the Act along with the proviso appended thereto. Under such circumstances, mechani-
cally accepting the plea of guilt without the respondent-accused given to understand that
he is liable to the minimum punishment of three months and/or still further sentence as
prescribed Under Section 66(1)(b) of the Act, despite his pleading guilty and to record the
order of conviction and sentence is ex facie illegal as it is nothing less than 'plea-bargaining'
prima facie haunted by the disposal mania!! Such an illegal practice of 'plea-bargaining' is
repeatedly deprecated by this Court and the Supreme Court in very many Judgments, which
are by this time reported and copies of some of this Court's decisions are circulated and yet
for the reasons best known to the learned Magistrate, the same is not heeded to at all and
the illegal practice of 'plea-bargaining' appears to be just going on unabated quite fear-
2. Causes undue hardships to the accused to face the second round of trial,
3. Works quite a great prejudice to the prosecution, as it affects the availability of the
prosecution witnesses at the relevant time and the problem of memory which causes
to them,
4. Demonstrates total disregard of the decisions of this Court on the elementary prin-
ciples of law,
6. To top all these, badly shakes the faith of the people in the administration of justice.
Only those learned Magistrates would pass such illegal and perverse orders
who are either unaware of the relevant provisions of law or who deliberately wants to
83
overstep to defy the same! Viewing this from any of the two angles, prima facie, this is
total dereliction of judicial duty and, therefore, quite unbecoming on the part of the con-
cerned learned Magistrate. This accordingly calls for a serious view to be taken to find its
due place, in the confidential report of defaulting learned Magistrate, else there is no way
to check and control the arbitrary exercise of their powers, defeating day-in and day-out
the promise of 'just and fair trial' -- both to the accused as well as the State.
The learned APP Mr. S.R. Divetia has brought one more fatal infirmity to
the notice of this Court viz., that 'the plea of guilty' in all these cases came to be recorded
by the learned Magistrate in absence of the learned APP in charge of the matter on the very
same day. This also is quite unjust, unfair and accordingly illegal. No order can ever be
passed against the prosecution at the back of the learned APP without offering him an op-
portunity to hear him. In fact, had indeed the learned APP in charge of the case been given
an opportunity, he would have definitely persuaded the learned Magistrate not to take un-
duly lenient view of the matter, which is quite contrary to the statutory mandate.
In view of the aforesaid discussion, there is indeed no doubt that all these
cases are the cases of illicit 'plea-bargaining' and in that view of the matter, the same are
whether at the admission stage, without issuing notice to the respondent-accused cases un-
der these appeals can be straightway remanded? Speaking ordinarily, of course, such ap-
peals when they are merely at the admission stage, in the first instance, notices are required
84
to be issued to the respondent-accused, and only after service of the same, any order can be
Now to this general ordinary practice, there indeed can be an exception. Ac-
cordingly, when the facts are glaring enough demonstrating 'plea-bargaining' and the per-
versity of the learned Magistrate beyond any manner of doubt, it cannot be disputes that
In this view of the matter, when the remand is the only foregone, inescapable
and irreversible conclusion, which even after the issuance of notice to otherwise cannot be
prevented, the mechanical issuance of notice unnecessarily adds to the workload of already
over-burdened Court, waiting precious public time and delaying the justice.
Even if the notices are issued and the respondent appears and he opposes
the remanding of the matter, by no stretch of imagination such an objection can never be
sustained. Further, the matter does not rest here for the simple reason that in any appeal for
the enhancement of sentence, once the Court reaches the conclusion that the impugned
order of sentence suffers from patent vice of the 'plea-bargaining' and is accordingly per-
verse, the same amount to total disregard of the 'legal procedure' resulting into denial of
fair and just trial both to the accused as well as the prosecution.
to the roots vitiating the entire trial. This situation reduces the proceedings to square one
and relegates the accused to his original position where he was at the commencement of
the trial. Viewed from this angle, in case of 'plea-bargaining' the accused has indeed no
right to be heard on the point disputing the Court's discretion to remand the case. Strictly
85
speaking, the patent illegal procedure adopted by the learned Magistrate of recording 'plea-
bargaining' is the matter between this Court and the Court of the learned Magistrate, more
Thus, there is neither any legal nor moral justification for the respondent to
claim hearing of such matter at the admission stage and the Court would be prefectly justi-
Taking into consideration the fact that. the impugned Judgment and orders
are prima facie perverse, an attempt also to undermine and subvert the legislative honour
and the particular provisions under the Prohibition Act, the same is ex facie un-judicious
and in that view of the matter, unbecomingness on the part of the learned Magistrate, the
directed to be kept in the confidential file of the learned Magistrate maintained by the
learned District and Sessions Judge, Mehsana. Further, a copy of this Judgment be imme-
diately forwarded to Hon'ble Mr. Justice C.V. Jani, the learned Judge of this court in charge
of the unit.
In the result, all these appeals are partly allowed. The impugned orders of
conviction and sentence passed by the trial court are hereby ordered to be quashed and set
aside. The cases remanded to the trial court to be decided on merits according to law. Hav-
ing regard to the fact that these cases are of the year 1992, the learned Magistrate is directed
86
4.7 State Of Punjab vs Harbans Lal: 1983 CriLJ 13
These three appeals, being Criminal Appeals Nos. 304-SB, 333-SB and 334-
SB of 1980, have been filed at the instance of the State of Punjab seeking enhancement of
sentence. These are against three separate judgments and orders of Shri Gurdev Singh, Sub-
Divisional Judicial Magistrate, Ist Class, Moga. Since a common question of law has been
raised therein, it could be convenient to dispose them of by a common judgment. Yet their
In Criminal Appeal No. 304-SB of 1980, respondent Harbans Lal was being
prosecuted for offence under Section 337, Indian Penal Code, before the said Magistrate.
The allegations against him were that on 24-11-1977 he had driven his bus No. PUF-5360
rashly and negligently so as to cause hurt to two persons namely, Sukhdev Singh and Atma
Singh; to the latter by striking against his tractor. Some formal prosecution evidence had
been led at the trial. On 16-1-1980, when further prosecution evidence was to be led, the
respondent made an application admitting the allegations of the prosecution. The learned
Sub-Divisional Judicial Magistrate was satisfied that the confessional statement of the ac-
cused was voluntary and without any pressure. He, therefore, convicted him for the offence
under Section 337, Indian Penal Code. On the question of sentence, he found that the ac-
cused-respondent was a first offender and was about 45 years of age. In view of the cir-
cumstances of the case and the confessional statement of the accused-respondent, he took
a lenient view and ordered the respondent to be released on probation under Section 360 of
Code of Criminal Procedure, 1973 (hereinafter called as the new Code) on a bond operative
for a term. The respondent was also required to pay Rs. 400/- as costs under Section 5(2) of
the Probation of Offenders Act payable equally to both the injured persons.
87
In Criminal Appeal No. 333-SB of 1980, Surjit Singh had been charged to
face trial under Section 25 of the Arms Act before the same Sub-Divisional Judicial Mag-
istrate. Initially he pleaded not guilty to the charge but on 15-1-1980, the date fixed for
The learned Magistrate convicted the accused-respondent on being satisfied that the con-
fessional statement was voluntary. Finding that the respondent was less than 21 years of
age and a first offender as also that he had confessed his guilt, he took a lenient view and
ordered the accused-respondent to be released on probation under Section 360 of the new
Code on a bond as envisaged therein. At the same time he required the respondent to Pay
Rs. 100/- as costs under Section 5(1)(b) of the Probation of Offenders Act.
In Criminal Appeal No. 334-SB of 1980, Surjit Singh was being tried under
Section 61(1)(a) of the Punjab Excise Act, 1914, before the same Sub-Divisional Judicial
the new Code admitting the allegations of the prosecution to be correct and prayed for
mercy. He was thus convicted of the charge. The learned Magistrate taking into account
that the accused was less than 21 years of age and was a first offender and had also made a
confessional statement, he ordered his release on probation under Section 360 of the new
costs to the State under Section 5(1)(b) of the Probation of Offenders Act.
post-cards having been sent to them. On that score, the doubt which has crept in my mind
with regard to the respondent being common in Criminal Appeals Nos. 333-SB and 334-
88
SB of 1980, cannot be removed. In both cases, the learned trial Magistrate has treated the
both these appeals tally, but for the view I am going to take, I need not delve on this any
ultaneously though in part, the provisions of the new Code and those of the Probation of
Offenders Act. Learned Counsel for the State contends that in District Faridkot, within
which jurisdiction Moga falls, the Probation of Offenders Act 1958 had been made appli-
cable. On that score, he contends, Section 19 thereof completely effaced Section 360 of the
new Code. He further contends that the respondents could not have been dealt with under
that section at all and hence the respondents deserve to be sentenced substantively.
I may mention that a similar appeal on behalf of the State of Punjab against
one Rup Singh (Criminal Appeal No. 303-SB of 1980) in which the same question of law
had been raised, was decided by me on July 30, 1982. Incidently, the judgment and order
under appeal in that case had also been passed by Shri Gurdev Singh, the same Sub-Divi-
sional Judicial Magistrate, Moga. The judgment bore the date of 15th January, 1980. I did
not deal with the legal question in that appeal, for I had rested the judgment mainly on
merits, and also on the finding that there was a plea-bargaining between the respondent and
the Court, and had held that it was within the discretion of the learned Magistrate to take
into account the factors enumerated and release the respondent on probation. On the ques-
89
Concededly the Court was empowered to grant probation under Section 4 of
the Probation of Offenders Act. And if the record has to be straightened, lest there should
be any illegality, let the bond executed by the respondent seemingly be treated as one un-
der Section 4 of the Probation of Offenders Act. The period, in any case, has expired and
there can be no fruitful outcome of that aspects. Since the question of law has persistently
There are some distinctive features found in the beneficial provisions of the
Code and the Probation of Offenders Act (hereinafter referred to as the Act). Under Section
562 of the old Code, the Court had power to release certain convicted offenders on good
conduct instead of sentencing them to punishment. That provision was of universal appli-
cation, inclusive of the State of Punjab. Later the Act was brought on the statute book. It
could only come into force in a State if the State Government chose to apply it. for consid-
the official gazette could appoint a date on which the provisions of the Act would be appli-
cable to a particular area, Or to different parts of the State, and different dates could be
appointed for different parts of the State for its applicability. The moment the Act ap-
Subject to the provisions of Section 18, Section 562 of the Code shall cease
to apply to the State or parts thereof in which this Act is brought into force.
The universal application of Section 562 of the old Code, thus ceased. The
old Code has now been replaced by the new Code and the analogous provision therein
is Section 360 providing for release of offenders on probation of good conduct or after
90
admonishing. The new provision now has to be read in Section 19 of the Act in place
It is undisputable that Moga, where these trials took place, was initially a
part of Farozepore District to which the Act was applied with effect from 1-6-1967. Simi-
larly, Faridkot was a part of Bhatinda District to which the Act applied with effect from 1-
5-1966. On reorganisation, Faridkot became district by itself and Moga became its part.
The applicability of the Act was not at all affected. Thus, it goes without saying that the
provisions of Act applied to trials at Moga and not Section 360 of the Criminal Procedure
Code.
makes it incumbent upon a Court, if it does not want to deal with a case of an accused
person either under Section 360 of the Code of Criminal Procedure or under the provisions
of the Probation of Offenders Act (1958), to record special reasons in the judgment for not
having done so. There was no analogous provision in the Old Code. The spirit of the Leg-
islation now is that the twin beneficial provisions should alternatively be available to every
Court be it whether in the form of Section 360 of the New Code or in the form of the
1. The Act is operative in specified areas, but the Code is of universal application in
the country. Where the Act is applicable, the provisions of Section 360 of the Code
91
2. Specific areas are chosen by the State government to the applicability of the Act
having regard to the social economic and political conditions of its population as
also their character, moral fibre, law awareness, educational facilities, employment
opportunities, developmental conditions, mobility and such like factors, the list be-
ing not exhaustive. These and other considerations noticably weigh with the State
Government when it brings an area under the provisions of the Act, for it tends to
3. Under Section 360 of the Coda, release on probation is dependant on there being on
previous conviction against the offender. There is no such bar under the Act; for
4. The case of release after due admonition of the offender is at a different footing
both under Section 360 of the Code and Section 3 of the Act where previous con-
viction of the offender is a bar to release him after due admonition. The explanation-
to Section 3 of the Act circumscribes that for the purpose of that section, previous
conviction of the person shall include any previous order made under Section 3 or
5. The conviction or convictions for which the offenders are released on probation of
good conduct under the Act does not attract any disqualification. Section 12 of the
in any other law, a person found guilty of an offence and dealt with under the pro-
to a conviction of an offender under such law. The only exception to the rule is
when a person after release under Section 4 is subsequently sentenced for the
92
original offence, in that case the dormant conviction comes to activity and Section
12 of the Act is not applicable, On the other hand order of release on probation of
good conduct under Section 360, Code of Criminal Procedure does not remove the
12 of the Act in the Code. Section 5 of the Act authorises the Court to require a
6. That compensation is payable for loss or injury caused to any person by the com-
mission of the offence, as also costs of the proceedings may be assessed and im-
posed. These ancillary orders are part and pracel of the framework of probation
under the Act. On the other hand on releasing a person under Section 360 of the
Code of Criminal Procedure the Court cannot ask the offender to pay the expenses
properly incurred for the prosecution or to pay any compensation for any loss or
7. The misunderstanding in that regard has been settled by the Supreme Court
in Girdhari Lal v. State of Punjab AIR 1932 SC 1229 (2): 1982 Cri LJ 1742 (D).
These orders can only be passed if the Court imposes a substantive sentence of fine.
In the absence thereof orders as envisaged under Section 357 cannot be passed. In
other words when Section 360 of the Code has been applied, Section 357 would be
thereof. Under the latter subsection the Court when imposing a sentence, of which
fine does not find a part, can pass an order requiring the accused person to pay
compensation of such amount to the person who has suffered any loss or injury by
reason of his act for which he has been so sentenced. Under Section 6 of the Act,
93
the Court is restricted from sentencing any person to imprisonment who is less than
21 years of age, found guilty of having committed an offence punishable with im-
prisonment (but not with imprisonment for life). It can only do so if having regard
to the circumstances of the case including the nature of the of-fence and character
of the offender, it would not be desirable to deal with him under Section 3 or Sec-
tion 4 of the Act. And if the Court passes any sentence of imprisonment on the
8. For releasing of an offender it need not send for the report of the Probation Officer,
but when it tentatively holds a view that he should not be so released then Sub-
section (2) of Section 6 of the Act makes it incumbent upon the Court to call a report
from the Probation Officer and consider it. Besides that the Court can have other
information available to it relating to the character, and physical and mental condi-
insert additional conditions under Section 8 of the Act. On the other hand the power
under Section 360 of the Code does not per se make it obligatory on the Court to
release an offender under 21 years of age. But Sections 360 and 361 of the Code
put the operation of release at the discretion of the Court and in case it is adverse to
the offender the court has only to supply special reasons for it.
10. The Court under the Act has the benefit of the aid of the Probation Officers opera-
tive in the field. Section 14 of the Act provides the duties of the Probation Officers,
and one of them is to supervise the probationers and the persons placed under their
94
No such facility is available to the Court under Section 360 of the Code of Criminal
Procedure. The reason is obvious; for where the Act is operative the brood of Pro-
bation Officers are available, to carry out the purposes of the Act, to advise the
Court and to assist the offenders. To confer such facility on a particular area, the
State Government has to apply its mind objectively, having regard to the peculiar
nature of the defined area to be brought under the Act. On the other hand the
Having drawn such distinction between the spheres of the aforesaid two pro-
visions, it is of utmost importance that the trial Magistrates functioning in their respective
areas be well on guard for the applicability of the provisions applicable for their areas and
not the other. They have to bear in mind the distinction so that where the provisions of the
Act are applicable the employment of Section 360 of the New Code be not made. In cases
which the legislature, who gave birth both to the Act and the Code, wanted to obviate. Yet
the legislature in its wisdom has obliged the Court under Section 361 of the New Code to
apply one or the other beneficial provisions; be it Section 360 of the New Code or the
provisions of the Act. It is only by providing special reasons that their applicability can be
withheld by the Court. The comparative elevation of the provisions of the Act are further
noticed in Sub-section (10) of Section 360 of the New Code which makes it clear that noth-
ing in the said section shall affact the provisions of the Probation of Offenders Act, 1958,
Those provisions have a paramountcy of their own in the respective areas where they are
applicable.
95
Now in dealing with the case on merits, it is plain from the record and the
tenor of the judgment and orders under appeal that there were plea-bargaining between
each respondent and the Court. In this situation, the learned Magistrate exercised the dis-
cretion while taking into account all those factors and released the respondents on proba-
tion.
For, the view I have taken on the legal question, the bond which was got
executed by each respondent under Section 360 of the New Code was illegal and uncalled
for. All the same, the period of bond executed by each respondent has expired. I would in
these cases as well, just to straighten the record, order that the respective bonds executed
by the respondents deemingly be treated as those under Section 4 of the Act. These are not
such cases in which I would impose substantive sentences on the respondents, as prayed
for. Orders of costs are legal and proper. The repetitive mode of plea-bargaining adopted
For the foregoing reasons, these appeals on the legal issue are technically
4.8 State Of Gujarat vs Thakorlal Keshavlal Rana And Anr.: (1991) 1 GLR 71
Who does not know that the practice of "plea bargaining" under clever cam-
ouflage of "plead guily" is nothing but an outrageous affront to the sense and cause of
justice? In fact, it is matter of record that somewhere in the year 1973, on coming to the
knowledge of this Court that in large number of food adulteration cases, the accused on
pleading guilty, were let off with ridiculously low sentences till rising of the Court and
some nominal fine, that the then learned Chief Justice was constrained to issue suo motu
96
notices to all concerned accused calling upon them to show cause as to why their sentences
should not be enhanced. Thereafter also the said condemened unfortunate practice quite
surprisingly and shockingly persists in complete defiance of the provisions of the statute
itself and observations made by the higher Courts in their reported judgments. Rather ex-
perience whispers in ears that such "plea bargaining" practies have become recurring fea-
ture particularly in certain types of Criminal Cases where the same is okayed without any
sense of judicial restraint and accountability by some Courts taking it as if that beyond the
statutory appellate or revisional jurisdiction of the High Court namely either of quashing
and setting aside or modifying the impugned order of sentence, the same had no power to
upon the conscience of this Court to make some indepth plain speaking about the same with
a view to see that the judicial system at level of the trial Court is spared and freed from the
said chronic disease of the "plea bargaining", if that can be done. The heart-burn reflections
made hereinabove is also the subject-matter of the appeal at hand, which raises three im-
portant questions viz. (i) whether the trial Court has any jurisdiction to award ligher sen-
tence once it is found that the statute has fixed the inflexible minimum sentence for partic-
ular offences? (ii) whether the order of "sentenced till rising of the Court" and some fine
etc. in response to the accused pleading guilty and praying for mercy more especially in
cases where the statute has prescribed the minimum sentence per se amounts to "plea-bar-
gaining"? and (iii) further what indeed ought to be the duty of the trial Court in cases where
the accused who is alleged to have committed an offence for which the statute has
97
prescribed the minimum sentence and he at once pleads guilty and prays for mercy--both
Before this Court undertakes discussion to answer the questions raised here-
inabove, let us first of all appreciate the facts, circumstances and law governing the case
leading upto the filing of this appeal for enhancement of the sentence.
To start with this appeal for enhancement of sentence is directed against the
judgment and order dated 26th July, 1983, rendered in Criminal Case No. 793 of 1983
passed by the learned J.M.F.C. Savli, wherein two respondent-accused viz. (i) Thakorlal
Keshavlal Rana and (ii) Mafatalal Keshavlal Rana both of whom on pleading guilty to the
charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act,
1954 (for short the said Act), came to be convicted for the same and each of them were
sentenced till rising of the Court and to pay a fine of Rs. 100/-and Rs. 600/- and in default
Briefly speaking on 27th May, 1983, the Food Inspector Mr. K.A. Patel vis-
ited "Shital Cold-drink House" belonging to the respondent-accused at Savli and in pres-
ence of the Panchas took sample of the ice-cream for analysis. The said sample was there-
after forwarded to the public analyst. Baroda, which on being analysed, was found to be
not conforming to the standard and provisions laid under the Prevention of Food Adultera-
tion Rules, 1955. On the basis of these facts, after obtaining the necessary sanction, the
Food Inspector filed a complaint dated 8th May, 1983 before the trial Court against the
respondent-accused for the alleged offences under Sections 7 and 16 of the said Act.
98
There is a considerable force in the submissions made by Mr. Doctor and
hence the same deserves to be accepted in to. Turning first to the affidavit in question filed
by the accused, the same on face of it, in unmistakable terms raises a finger or accusation
the Food Inspector alleging that but for his insistence and inducement to plead guilty, they
would not have agreed to plead guilty before the trial Court. Though this indeed is a very
serious allegation, it is difficult at this stage to straighway either to accept or reject the
same. Ordinarily, under such circumstances, it is always advisable to wait for some affida-
vit-in-reply from a person against whom the allegations are made and in this case, Food
Inspector, so as to afford him an opportunity to meet with the same. However, in facts of
this case, it appears to this Court that irrespective of the truthfulness or otherwise of the
said allegations, fact remains: (i) that the accused had been alleged to have committed se-
rious offence of the food adulteration; (ii) that on the very first day of their appearance
before the trial Court "plead-guilty" came to recorded on the basis of written purshis passed
on by the accused; (iii) that immediately thereafter despite the inflexible minimum punish-
ment prescribed under the said Act, the accused came to be lightly let off with an impris-
onment till rising of the Court and nominal fine of Rs. 100/-, as if scoffing against the said
legislative provisions.
These circumstances are eloquent and strong enough to need any further
proof to support the submissions of Mr. Doctor that this was nothing but the case of "plea
bargaining". What pains this Court most is the utter disregard shown by the trial Court in
defusing legislative mandate which aimed at protecting the public health from anti-social
food adulteration activities is highly reprehensible and simply unthinkable. Any way, in
99
view of the fact that Mr. Doctor has gained a point of plea bargaining in his favour, it must
be held that the impugned order of sentence is illegal and unconstitutional and deserves to
judiciary which ought always to be trusted for deciding the quantum of punishment in each
individual case because no two individual cases are alike, has been denuded or stripped off
its powers and the legislature interposed itself by saying that such and such shall be the
punishment irrespective of any facts of any individual given case. A very lengthy discus-
sion took place at the Bar while hearing these applications, and the learned Advocate were
invited to develop a proposition on this line, namely, whether where the legislature provides
for a specific punishment, leaving nothing to the direction of the Court, the Court has at all
No case law, not proposition from the text books investing such power in
the Court has been brought to the notice of this Court, except attempting their utmost to
show that the offender under the Prevention of Food Adulteration Act is also entitled to the
benefits of the Probation of Offenders Act. That is neither here nor there. The question
which looms large before the Court is whether the Court can avoid giving effect to the
consequence. Looking to the scheme enacted in Section 16 after the amendment, unless
adulteration is shown to be of the type as stated in the proviso and the case is therefore
shown to have been covered by the proviso, there is no discretion in the Court but to give
minimum punishment and cannot envisage any exceptional case, and even if there be one,
100
the legislature does not recognise it. Either a man is convicted, and given minimum pun-
It is not unknown these day that ordinarily whenever any accused person
finds himself inextricably caught up in a case and feels further helplessly sure of himself
that no amount of efforts can possibly wriggle him out of the clutches of law and a noose
of irrefutable evidence that surrounds his neck, he mellows down and with a view to make
best of the bargain out of the worst of the predicament deceptively humbles down to the
feat of the Court pleading guilty with crocodile tears of repentance in his eyes begging
mercy for the sentence. Thus, the possibility of such pleas by accused being bogus, decep-
tive and fraud on the Court and statute, cannot be ruled out. Every Court is expected to
guard itself against such clever moves of the accused. The mischief scheme and the game
of the accused is pleading guilty is worth understanding. What happens is, a clever accused
deliberately, trickily pleads guilty and takes chance to get away with the benefit of a sen-
tence which is lighter than the minimum prescribed. When such order comes to be chal-
lenged by way of appeal or for the enhancement of sentence, once again the very accused
very conveniently comes out with a right or wrong defence of plea bargaining by tendering
an affidavit keeping once again the Court of law at distance from passing a particular sen-
Now once the defence of plea bargaining is successfully taken, the higher
Court is bound to remand the case. Thus when the case is so remand, at a belated stage of
fresh trial, often the prosecution evidence, is found to have lost its some edge, freshness
and vitality possibly impairing its success at the end of the trial, whereby the accused
101
ultimately stands to gain. In fact, such type of accused are capable of taking entire law and
justice machinery for joy-ride frustrating the prosecution case and defeating the ends of
justice. It is this picture which must be present and alive to the mind of every Court, the
Public Prosecutor or any other complainant in charge of the case when accused pleads
guilty and prays for mercy more particularly in cases of inflexible minimum sentence fixed
Nothing could be more distressing for this Court than to notice alarming and
disappointing features just discussed above, perhaps even more distressing is a situation
where the law implementing and enforcing agencies like executive and judiciary are re-
quired to be impressed as regards their duties to the law of the land and people for whom it
is made. It is no secret that unless respect for law and accountability arising therefrom
becomes an ingrained and inviolable culture of the Court and the executive, there is no
hope whatsoever for any peaceful, harmonious and progressive civilized human existence.
In the result, this appeal for enchancement of sentence succeeds partly and
is allowed to the said extent. The impugned judgment and order of conviction and sentence
passed by the trial Court is quashed and set aside. Fine paid, if any; is directed to be re-
funded. The case is remanded to the trial Court for a fresh trial with a direction to dispose
4.9 Thippaswamy vs State Of Karnataka: AIR 1983 SC 747, 1983 CriLJ 1271, 1982
We are of the view that this is a case in which plea-bargaining seems to have
taken place, because on the appellant pleading guilty to the charge, the learned Magistrate
102
imposed upon him only a sentence of fine of Rs. 1,000/- even though the offence of which
he was convicted was one under Section 304-A of the Penal Code. The High Court, in ap-
peal by the State, acting upon the plea of guilty, maintained the sentence of fine and addi-
tionally imposed a substantive sentence of rigorous imprisonment for a period of one year.
It is obvious that by reason of plea-bargaining the appellant pleaded guilty and did not avail
of the opportunity to defend himself against the charge, which is a course he would cer-
tainly not have followed if he had known that he would not be let off with a mere sentence
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
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. The Court of appeal or revision should,
in such a case, set aside the conviction and sentence of the accused and remand the case to
the trial Court so that the accused can, if he so wishes, defend himself against the charge
We would therefore allow the appeal, set aside the order of conviction and
sentence passed against the appellant and remand the case to the Court of the Judicial Mag-
istrate Ist Class, Chittradurg so that the appellant may be tried in accordance with law and
if he wishes to defend himself, he should have proper and adequate opportunity to do so.
103
While passing this order, we may make it clear that we should not be taken to have ex-
pressed any opinion on the merits of the case against the appellant. If the appellant is found
guilty as a result of the trial, the Judicial Magistrate may impose a proper sentence upon
him and if on the other hand, he is found not guilty, he may be acquitted.
Before parting with this case, we may point out that Mr. Veerappa, learned
advocate, appearing on behalf of the respondent wanted to file an affidavit in reply to the
special leave petition but we thought it unnecessary to grant any further time to the re-
spondent to file such affidavit because we are disposing of the appeal on a pure question of
law which does not depend on the facts of the case. Since we are remanding the case to the
Court of the Judicial Magistrate, we direct that the bail already granted to the appellant by
us will continue for a further period us will continue for a further period of two weeks, in
order to enable the appellant to apply for bail before the Judicial Magistrate and then it will
be for the Judicial Magistrate to decide whether to grant bail and on what terms.
The three important questions that surface for consideration in this acquittal
appeal are - Firstly, "whether it is open to the trial Court to straightway accept the 'plea-of-
guilty' and immediately thereupon record the order of conviction and sentence without is-
suing notice to the learned P.P. and for that purpose [when not represented by the learned
P.P.] to the learned Advocate for the complainant to enable him to make submission either
Few relevant facts leading to above three questions : According to the pros-
ecution, when Shri A.V. Padhya, Supply Inspector, Mehsana on 11-11-1986 inspected the
104
Fair Price Shop of the respondent-Kantilal Ambalal Patel, situated at Market Yard, Plot
No. 116, Kukarwada [Taluka Vijapur], he came across certain irregularities and contraven-
tions; in particular Clause'16 of the Gujarat Essential Articles [Licensing, Control & Stock
Declaration] Order, 1981 [for short "the Order"] framed under the Essential Commodities
Act, 1955 [hereinafter referred to as "the Act"] pertaining to not displaying the facts about
the Opening-Stock and Price of the edible oil, and working hours at the conspicuous place
of his business premises. On the basis of these allegations, the Civil Supply Inspector filed
a complaint Exh. 1, dated 28-10-1987 against the respondent in the Court of learned Special
1987, whereupon a bailable warrant in sum of Rs. 5,000/- was issued. Thereafter, it appears
that for whatever reasons, the case could not be taken up till 10-9-1991 [for about four
years, when ultimately the respondent appearing' before the Court pleaded guilty and
prayed for mercy in the matter of sentence on the ground that the offence alleged against
him was merely 'technical' and that there was no evidence of charging customers more than
the fixed rate. The learned trial Judge accepting the same convicted and sentenced him for
the alleged offence punishable under Sections 3 and 7 of the Act, and sentenced him till
rising of the Court and to pay fine of Rs. 100/- and in default, to undergo further S.I. for 15
days. It is under these circumstances that the State has been constrained to file the present
provided in Section 7(1)(a)(ii) is mat of imprisonment for a period not less than 3 months
but which may extend to 7 years, and shall also be liable to fine. In this view of the matter,
105
not only the impugned order of sentence is unduly lenient and grossly inadequate but the
same being contrary to the statutory minimum prescribed under the Act is also patently
illegal. As a matter of fact, having regard to the facts and circumstances of the case, it
appears that this is more or less a case of 'plea-bargaining' and in that view of the matter,
in the light of decisions of this Court rendered in cases of [i] State of Gujarat v. Thakorelal
N. Rana and Anr. reported in [1991 (1)] XXXII (1) GLR 71, and [ii] State v. Rajesh Med-
ical Stores reported in [1993 (2)] XXXIV (2) GLR 1094, this case shall have to be re-
manded to the trial Court for de-now trial. However, the matter does not simply rest here
as something more is required to be stated to clarify the three important aspects having
direct bearing on the procedural and sentencing process in the important matters of such a
nature which have been raised by way of three questions at the top of this judgment.
case, in the first place, it appears that the trial Court has committed one more illegality in
disposing of this case on the very day of the accused appearing before it and pleading guilty,
without caring to issue the notice to the learned P.P., enabling him to make submissions on
the point either of the acceptance of the said plea and/or that of sentence to be passed. Of
course, as submitted by the learned P.P. it is quite true that the Criminal Procedure Code,
1973 nowhere lays down any direction to the trial Courts that whenever accused pleads
guilty it should stand-over the matter for sometime to enable the learned P.P. to make his
submission for the same, but at the sometime, it is equally true that how to exercise the
common sense while exercising the judicial discretion can never be a subject-matter of any
legal provision.
106
Thus, whether the plea should be accepted or not is a matter undoubtedly
within the sole discretion of the trial Court, yet at the same time, the judicial pragmatism
warrants that whenever the accused pleads guilty, it should not hasten and hush-up the
matter by immediately accepting the same and imposing some trivial sentence, without
even issuing notice to the learned P.P. with a view to avail him an opportunity if he has
anything to say either against acceptance of plea of guilty and/or against the imposition of
sentence. The reason is if such an opportunity is to given the learned P.P., what ought we
know that he may, on his making suitable inquiry be in a position to point out that the
accused pleading guilty is a person who was previously convicted for the same and/or such
other offence and in that view of the matter, in the first instance, he may persuade the Court
not to accept the said 'plea of guilty' and in the second instance, may point out that the
offence alleged against the accused was liable to be punished with at least the minimum
sentence. Accordingly, if the learned P.P. is successful enough to persuade the Court that
the 'plea of guilty' should not be accepted, the matter stands rested there and there only but
as against that despite the objection of the learned P.P., if the Court is inclined to' accept
the plea in question then in those cases where the statutory minimum punishment is pre-
scribed, the Court may be saved from inadvertently imposing less than the minimum.
Further, none of us can ever be oblivious to me fact that ordinarily when any
person commits offence, he does not commit the same for the purpose of ultimately making
clean-breast before the Court, when detected. Rather, in very nature of things, none is or-
dinarily that honest, truthful and sincere to admit his guilt which may ultimately land him
in Jail. In fact, it is only when accused find himself in an uncomfortable tight-corner, inex-
tricably clutched and thereby unable to come out of the same that he, only with an ingenious
107
devices of throwing dust in the eyes of Court or when he is so induced to plead guilty by
way of 'plea-bargaining' that he pleads guilty in order to get away with the lighter sentence.
Bearing in mind this sort of patent and obvious accused psychology and the resultant mo-
dus-operandi, if the learned P.P. is given the much needed opportunity of hearing him be-
fore accepting the so-called plea of guilty as well as passing of the order of sentence, the
patent illegality as the one which has taken place in the instant case which usually creeps
in, in all such matters, the same could be safely avoided! Thus, a little exercise of judicial
pragmatism on the part of the trial Court at the time of recording plea of guilty could save
not only the parties but the Court as well from the inconveniences and the wastage of pre-
cious public time and money resulting out of the multiplicity of proceedings! In this view
The learned Magistrate/Judge shall not act upon it at once by accepting the
same and dispose of the case by inflicting lighter sentence. Such a hasty disposal is not only
illegal, being unfair to the prosecution, but the same very much eclipses the image of the
administration of Justice. Therefore, in such cases, it is the duty of every Court to issue
notice to the learned P.P. and in case the complainant is not represented by the learned P.P.
but by the private learned Advocate then in that case, to that concerned learned Advocate,
and after hearing him fully whether the plea of guilty should be accepted or not, and if he
reaches the conclusion that such a plea is required to be accepted, then after hearing him
what should be the proper quantum of sentence [if the minimum sentence is not prescribed],
108
On perusal of aforesaid Clause 16 of the Order, it is very clear that the State
Government in its wisdom has rightly casted obligation on every dealer or producer of the
essential commodities to disclose at the conspicuous place of his business premises, the
daily opening stock of the essential articles, price of the same and working hours in Gujarati
language so as to easily accessible for consultation by the customers. For this, there is in-
deed a definite object underlying Clause 16, viz., on the one hand to protect the customers
from being induced with the false oral statement made by the dealer that the stock in ques-
tion is not available and on the other hand to prevent him from being monetarily fleeced
and robbed by arbitrarily charging exhorbitant prices. These days, often we come across
wide-spread complaints mat many a times, the licence-holders [Fair Price Shops] in order
to black-market the essential commodities, conveniently say that no stock was available
with them. Now under such circumstances, by virtue of Clause 16 when they are required
to display either the daily opening stock of the essential commodities or if the stock is not
would make impossible for them to mislead the customers approaching them by saying that
the dealer or producer to display the opening stock of the essential commodities is to protect
the interest of customers from being denied their rightful regular quota on the one hand and
on the other hand to prevent the licence-holders to dispose of the stock of essential com-
modities illegally in any other manner. Similar is the object of imposing a duty upon the
dealer or producer to mention the "Price" at the conspicuous place. It is rightly (sic) left at
the whims and caprice of such licence-holders to charge any (sic) as they like. It is only the
109
'Price' fixed by the Government which he (sic) entitled to charge. This can be done only
and only if there is a board (sic) the notice about the 'Price' whereby the customer is not
kept in (sic), to be taken by surprise and made to pay any price demanded of them! By (sic)
type of checks, the dealer/producers in a way would be prevented from charging more than
Similarly, even the display of working hours at the conspicuous part of the
business premises is equally important for the simple reason that the same is not merely for
(he convenience of the customers but the same may as well prevent them from disposing
of essential commodities in any illegal manner during the working hours. In substance, the
aforesaid duties casted upon every producer/dealer of the essential commodities under
Clause 16 of the Order is meant for public good of saving the people from being cheated
and defrauded.
in the society, which has always resulted into black-marketing and the worst sufferer is the
middle-class, poor people and the daily-wage earners. It is for the protection of these com-
parative economically weaker sections of the Society that the Fair Price Shops are opened
and it is once again only for this reason that in order to prevent such persons from being
dupped by scheming dealers/producers, in the first place, the Legislature came out
with Special Act, viz Essential Commodities Act, 1955 and thereafter in the second place,
to further effectively implement the spirit of me same, the State of Gujarat came out with
the framing of Orders under Gujarat Essential Articles [Licensing, Control & Stock
110
Declaration] Order, 1981. These are the Orders which have been framed to protect the pub-
lic interest from being sabotaged by some scheming and unscrupulous black-marketers.
In fact, the Legislature was constrained to enact the Special Act by way
of Essential Commodities Act, 1955 for the obvious object "to check the inflationary trend
and control price of essential articles so as to ensure equitable distribution of essential com-
modities. It was enacted in the interest of general public for control of production, supply
and distribution of trade and commerce in commodities which are specified in the Act to
be the essential commodities." Viewing the matter from this angle, and indeed there is no
other way to view the same except the one from, it is really unfortunate and astounding to
find that the learned trial Judge has accepted the alleged offence as a 'technical offence' for
awarding ridiculously low sentence, without understanding the gravity and seriousness of
the provisions, as discussed above. In fact, there appears to be clear distinction between
The term 'offence' has been defined under Section 2(n) of the Criminal Pro-
cedure Code, 1973, which means "any act or omission made punishable by any law for the
time-being in force and includes any act in respect of which a complaint may be made
under Section 20 of the Cattle Trespass Act, 1871 [one of 1871]." Now, in the light of the
said definition of 'offence', let us try to appreciate and understand what is the meaning of
the word 'technical offence'. Now, undoubtedly if the literal and face value meaning of the
term 'offence' as defined under Section 2(n) of the Act is to be accepted then the facts al-
leged in the present case clearly constitutes an 'offence', more particularly when the term
111
In this view of the matter, once the offence is proved and/or accused pleads
guilty, he is required to be convicted for the same. Still however Courts doing justice while
imposing sentence are not supposed to act mechanically and award the sentence, as it has
yet one more important duty to be performed, viz., what would be the proper order of sen-
tence in cases where statute has not prescribed the minimum sentence?! To make clear the
concept, one or two examples as to what can be the probable meaning of the term 'technical
offence, we may endeavour to broadly point out the meaning of the same by giving one or
two probable illustrations. For example, when the employer of any industrial unit is re-
quired to deposit Provident Fund Contribution on or before the stipulated date and that by
the time the said amount could be forwarded and/or accepted, either because the office
hours were over or the concerned clerk either at the end of the treasury or in the industry
itself was, either sick or could not attend his work, and the said amount came to be deposited
on the very next working day of the office, then in that case, it would not be possible to say
that no offence has taken place, as apparently there is a clear infraction of the legal provi-
sions, but yet at the same time, taking into consideration the bona fides of the accused.
unavoidable situation. Under the circumstances, the Court would be quite hesitant to take
stringent view of the matter while awarding the sentence on the ground that the facts alleged
constitutes only a 'technical offence' and may inflict lighter sentence [if permissible, that
is, where no statutory minimum sentence is prescribed]. Similarly, in a given case, when a
person having a regular driving-licence when asked by the cop to produce the same and is
unable to produce it either because he had lost or forgotten to carry with him or had given
to his agent for renewal, then in that case literally it can be said that he has committed an
112
offence of driving his vehicle without licence, and therefore, to that extent has committed
an offence. But at the same time, looking to the aforesaid circumstances, the offence alleged
can reasonably be toned down and termed as a 'technical offence' for the purpose of taking
lighter view of the matter while awarding the sentence. These two are just broad and general
illustrations wherein the alleged offence can be termed as a 'technical offence' to take lighter
view of the matter, if and only if the statutory minimum is not prescribed. Thus, "technical
offence" is the one which is literally an offence, giving an appearance of the offence, yet at
the same time, if we look at, the fact, and circumstances of the case would prima facie
appear to be an offence having not that spark or spirit to persuade the Court to take stricter
view of the matter. It is more or less in nature of a shadow, rather than the substance.
The impugned judgment and order is hereby quashed and set aside. The matter is remanded
on or before 30th August, 1994. Both the learned Advocates have assured this Court that
the parties before the trial Court will assist the trial Court in disposing of the matter within
the aforesaid stipulated time-period. The learned A.P.P. is directed to contact the original
complainant and inform the concerned learned P.P. to see that the case is attended to and
Summary – Here in the chapter – 4 we have studied out the various Indian
In the next chapter – 5 we will study the various legal provisions that are
113
CHAPTER – 5
LEGAL PROVISIONS
Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals
with the concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment)
2. Where the offenses don’t affect the socio-economic condition of the country;
3. When the offenses are not committed against a woman or a child below 14 are
excluded
The 154th Report of the Law Commission was first to recommend the ‘plea bar-
method which should be introduced to deal with huge arrears of criminal cases in Indian
courts.
Then under the NDA government, a committee was constituted which was headed
by the former Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath
The Malimath Committee recommended for the plea bargaining system in India.
The committee said that it would facilitate the expedite disposal of criminal cases and re-
duce the burden of the courts. Moreover, the Malimath Committee pointed out the success
of plea bargaining system in the USA to show the importance of Plea Bargaining.
114
Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was intro-
duced in the parliament and finally it became an enforceable Indian law from enforceable
from July 5, 2006. It sought to amend the Indian Penal Code 1860 (IPC), the Code of Crim-
inal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1892 to improve upon the exist-
ing Criminal Justice System in the country, which is inundate with a plethora of criminal
cases and overabundant delay in their disposal on the one hand and very low rate of con-
The Criminal Law (Amendment) Bill, 2003 focused on following key issues
2. Plea-bargaining
3. Compounding the offense under Section 498A, IPC (Husband or relative of hus-
Finally, it introduced Chapter XXIA Section 265A to 265L and brought the
concept of plea bargaining in India. The following are provisions which it added:-
1. The report has been forwarded by the officer in charge of the police station under
section 173 alleging therein that an offence appears to have been committed by him
other than an offence for which the punishment of death or of imprisonment for life
115
or of imprisonment for a term exceeding seven years has been provided under the
for a term exceeding seven years, has been provided under the law for the time
being in force, and after examining complainant and witnesses under section 200,
issued the process under section 204, but does not apply where such offence affects
For the purposes of sub-section (1), the Central Government shall, by noti-
fication, determine the offences under the law for the time being in force which shall be the
The application under sub-section (1) shall contain a brief description of the
case relating to which the application is filed including the offence to which the case relates
and shall be accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred, after understanding the nature and extent of punishment provided
under the law for the offence, the plea bargaining in his case and that he has not previously
been convicted by a Court in a case in which he had been charged with the same offence.
116
After receiving the application under sub-section (1), the Court shall issue
notice to the Public Prosecutor or the complainant of the case, as the case may be, and to
When the Public Prosecutor or the complainant of the case, as the case may
be, and the accused appear on the date fixed under sub-section (3), the Court shall examine
the accused in camera, where the other party in the case shall not be present, to satisfy itself
that the accused has filed the application voluntarily and where-
1. the Court is satisfied that the application has been filed by the accused voluntarily,
it shall provide time to the Public Prosecutor or the complainant of the case, as the
case may be, and the accused to work out a mutually satisfactory disposition of the
case which may include giving to the victim by the accused the compensation and
other expenses during the case and thereafter fix the date for further hearing of the
case;
2. the Court finds that the application has been filed involuntarily by the accused or he
has previously been convicted by a Court in a case in which he had been charged
with the same offence, it shall proceed further in accordance with the provisions of
this Code from the stage such application has been filed under sub section (1).
In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of
section 265B, the Court shall follow the following procedure, namely: -
1. In a case instituted on a police report, the Court shall issue notice to the Public
Prosecutor, the police officer who has investigated the case, the accused and the
117
victim of the case to participate in the meeting to work out a satisfactory disposition
of the case: Provided that throughout such process of working out a satisfactory
disposition of the case, it shall be the duty of the Court to ensure that the entire
vided further that the accused may, if he so desires, participate in such meeting with
2. In a case instituted otherwise than on police report, the Court shall issue notice to
the accused and the victim of the case to participate in a meeting to work out a
satisfactory disposition of the case: Provided that it shall be the duty of the Court to
Provided further that if the victim of the case or the accused, as the case may be, so
desires, he may participate in such meeting with his pleader engaged in the case.
This provision talks about the preparation of the report of mutually satisfac-
tory disposition and submission of the same. Two situations may arise here namely:-
been worked out, the report of such disposition is to be prepared by the court. It
shall be signed by the presiding officer of the Courts and all other persons who
2. If no such disposition has been worked out, the Court shall record such observa-
tion and proceed further in accordance with the provisions of this Code from the
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stage the application under sub-section (1) of section 265-B has been filed in
such case.
Where a satisfactory disposition of the case has been worked out under section 265D, the
1. The Court shall award the compensation to the victim in accordance with the dis-
position under section 265D and hear the parties on the quantum of the punishment,
section 360 or for dealing with the accused under the provisions of the Probation of
Offenders Act, 1958 (20 of 1958) or any other law for the time being in force and
follow the procedure specified in the succeeding clauses for imposing the punish-
2. After hearing the parties under clause (a), if the Court is of the view that section 360
or the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other
law for the time being in force are attracted in the case of the accused, it may release
the accused on probation or provide the benefit of any such law, as the case may be;
3. After hearing the parties under clause (b), if the Court finds that minimum punish-
ment has been provided under the law for the offence committed by the accused, it
4. In case after hearing the parties under clause (b), the Court finds that the offence
committed by the accused is not covered under clause (b) or clause (c), then, it may
119
Section 265-F (Judgment of the Court)
tory disposition.
Says that no appeal shall be against such judgment but Special Leave Peti-
tion (Article 136) or writ petition (under Article 226 or 227) can be filed.
Talks about the powers of the court in plea bargaining. These powers include
powers in respect of bail, the trial of offenses and other matters relating to the disposal of
Section 265-I (Period of detention undergone by the accused to be set off against the
sentence of imprisonment)
Says that Section 428 of CrPC is applicable for setting off the period of
detention undergone by the accused against the sentence of imprisonment imposed under
this chapter.
265-J (Savings)
Talks about the provisions of the chapter which shall have effect notwith-
standing anything inconsistent therewith contained in any other provisions of the Code and
nothing in such other provisions shall be construed to contain the meaning of any provision
of chapter XXI-A
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Section 265-K (Statement of the accused to be used)
under section 265-B shall not be used for any other purpose except for the purpose as men-
Makes it clear that this chapter will not be applicable in case of any juvenile
or child as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children)
Act, 2000.
Summary – Here in the chapter – 5 we studied the legal provision and pro-
In the next chapter – 6 we will conclude the conclusion of the whole research
and will also put some suggestions regarding the plea bargaining.
121
CHAPTER – 6
accused where the latter agrees to plead guilty to the offences charged in consideration of
XXI A of the Criminal Procedure Code, 1973. It’s an alternative dispute resolution mech-
anism introduced solely to deal with the twin problems of huge pendency of criminal cases
and resultant under trials. Though the Indian Supreme court was initially hostile to this
scheme it gradually accepted its role in bringing efficiency to the criminal justice system.
The Law Commission of India also advocated its use to solve the many
challenges facing the system. The scheme was finally incorporated from the criminal jus-
tice system of U.S.A with some marked differences in the year 2005. The detailed proce-
dure for the Scheme is contained in Sections 265 A to 265 L of the Criminal Procedure
Code, 1973 where the judicial officer plays the central role and only sentence bargaining is
allowed. Great emphasis is paid to the voluntary participation of the accused and even the
victim’s participation and compensation is facilitated through the process of working out a
In America unlike the Indian jurisdiction the office of Prosecution plays the
central role and charge bargaining is allowed. It’s applicable to a wide range of offences in
122
contrast to India where only a truncated version has been adopted. As one of the objectives
of introducing the procedure has been the reduction of under trials in jail the provisions for
admonition and probation find a prominent place in the sentencing guidelines for the
scheme.
The scheme has its merits as it allows the accused to choose an option which
is quick and efficient as compared to the formal trial which is lengthy and expensive. But
its biggest demerit lies in the fact that the accused has to forego many rights associated with
The scheme covers this lacuna by making the judicial officer accountable
for ensuring voluntary participation by the accused. Though the scheme is in the Cr.P.C
since 2005 its impact cannot be assessed due to lack of studies on this area. But as a matter
of urgency if the criminal justice system desires to inspire confidence in the common man
and sustain itself then this procedure has to be used on a wider scale.
ience and mutual benefit than an issue of morality, legality or constitutionality. There is an
inevitable need for a radical change in criminal justice mechanism. It may be a welcome
change but only when there is possibility of swift and inexpensive resolution of cases. If
the sole purpose of criminal justice system is to rehabilitate criminals into society, by mak-
ing them undergo specified sentences in prison, then plea bargaining looses most of its
charm.
stakeholders of crime‘and criminal justice system. Putting this process under judicial
123
scrutiny opens up the possibility of fair dealings in these bargaining. In the present atmos-
However, to make use of the available process and to secure the gains from
these reforms, the plea-bargaining process could be successfully used, for which the police,
judiciary and the bar need to understand it in first place, and try to adopt. Defending Advo-
cates should encourage the litigant to opt for the plea bargaining rather than to treat the plea
It is obvious that the capacity building of police and judges should be the
high priority and a pre-requisite for experimenting the plea bargaining. It can be given a
chance of survival. From the experience in US it can be said that the plea bargaining re-
the foundations of the system, the plea bargaining may be accepted as one of the required
measures for speeding up caseload disposition. After giving a rigorous trial to this mecha-
nism, there should be a thorough study of its working, its impact on crime rate, conviction
comed it while others have abandoned it. It is true that Plea Bargaining speeds up caseload
disposition, but it does that in an unconstitutional manner. But perhaps we have no other
choice but to adopt this technique. The criminal court are too over burdened to allow each
124
The concept of plea bargaining is not entirely new in India. Indian has al-
ready recognized it when it got its constitution in 1950. Article 20(3) of Indian constitution
prohibits self-incrimination. People accuse plea bargaining of violatory of the said article.
But with the passage of time the considering the encumbrance on the courts, the Indian
court has felt the need of Plea bargaining in Indian legal system.
grow so is our legal system. Everything has advantages and disadvantages and both have
to be analyzed in order reach a sound conclusion. Rejecting something only on the basis of
its disadvantages would not be justified in any case. The concept of plea bargaining is
evolving in India and it is not appropriate to expect it to be perfect. It can only be improved
the form of Chapter XXI-A of Code of Criminal Procedure, 1973 in one hand and on the
other hand three champions that is Indian judiciary, a section of lawyers and Indian mind-
set. Objections have been raised from a section of lawyers stating that with the implemen-
tation of plea bargaining the deterrent effect of the law will leave way for the elite class of
the society. The rich may get away very easily by paying any amount of compensation and
There have been a strong mandate of Indian judiciary against the concept of
plea bargaining as is evident from all the cases discussed above of course decided prior to
5th July, 2006 that is the date from which Criminal Law (Amendment) Act, 2005 came into
force. Not only this but mind set of the Indians where Judges are considered at the top of
125
the hierarchy of the justice delivery system and are kept at the place which is next to God.
So any concept like plea bargaining where amount of sentence is reduced or compensation
is paid and that too with the approval of court is very difficult to be accepted. In fact, these
are the core reasons which made the task of adaptation very difficult for plea bargaining in
India.
The aim of criminal justice is not only deterrent but is combination of pre-
vention, expiation, retribution and of course reformation. Taking all these into considera-
tion and also the exceptions of Chapter XXI-A of Code of Criminal Procedure, 1973, in-
troducing plea bargaining i.e. application only in respect of the offences for which punish-
ment of imprisonment is up to a period of seven years, offence does not affect the socio-
economic condition of the country or has not been committed against a woman or child
below the age of 14 years, one can appreciate with open heart the provisions of plea bar-
gaining in India.
More over this concessional treatment to the offenders who on their own
volition plead guilty has been introduced on the strong recommendations of Law Commis-
sion of India and Justice Malimath Committee Report. The Law Commission of India said,
“We have examined the cases decided in USA as well as by the Indian Supreme Court and
the 142nd Report (1991). We are of the view that plea bargaining can be made an essential
that purpose, certain guidelines and procedure has to have to be incorporated in the Code
of Criminal Procedure.”
126
The inclusion of Chapter XXI-A of the Code has been introduced rather
cautiously by our law makers. They have limited the applicability to a large extent and also
restricted the scope of plea bargaining. It should be understood that when a concept is being
implemented into a legal system, it should be done in a manner, foreseeing the hindrances
that may be faced at the experimental stage. The provisions as such don’t show any ten-
gaining then there is an urgency to bring in more clarity and predictability in the provisions.
It is agreed that there should be a balance between a rampant use of this remedy and the
possibilities that plea bargaining offers in order for it to be an effective and efficient alter-
native remedy. But, we are unable to appreciate plea bargaining to the extent it deserves to
be appreciated because of the extremely cautious approach in restricting its scope. It cannot
be denied that the Amendment is a sincere attempt at resolving the stated issues but it can
of ADR and has been in practice since vedic period. It has been present in our country in
the form of ‘PANCH-NIRNAYA’, which means decision of elder men of the locality in
which parties to dispute reside or by the members of Panchayat whereas the origin of the
The requirement is to open the wrapper of potato chips and show to the In-
dians that the chips in beautiful pack before you are made of the same potatoes which you
have been cultivating in your fields since time immemorial. So keeping into our mind, the
127
peculiar social fabric and economic condition of our country if we implement the provisions
of plea bargaining with letter and spirit, we will be able to maintain balance between effi-
ciency and speed on the one hand and justice and dignity of court on the other hand. No
doubt every technique has it pros and cons but seeing the success of plea bargaining in USA
where more than ninety percent cases are being settle through this technique, we may con-
clude that all the limitation of plea bargaining may be overcome by proper education ,
providing justice to victim of crime. Plea bargaining is prescribed to compensate victim for
loss caused to him due to crime commission; it is based on consideration that monetary
amount may help in restitution of victim. Traditionally, in Indian society emphasis is given
for retribution and deterrence for victim satisfaction whether it is individual victim or so-
ciety at large, and further, for protection of society by tackling crime, criminal and crimi-
nality.
satisfactory disposition which is a kind of agreement arrived between criminal and victim
of crime and in return criminal becoming liable for reduced punishment is considered in
Indian society completely different concept in Indian criminal justice system and Indian
Crime problem day by becoming more and more serious even the existence
effectively and for this purpose need is to reform the criminal or deter the criminal from
128
crime commission. Whenever any act is declared as crime, certainly act may be serious
otherwise it would have not been declared as a crime but declared as a civil wrong. Only
due to certain reasons for some crimes, procedure applicable may have been changed,
thereby, it should not be taken as crime is only against individual, but it should be taken
that the crime is always serious, only due to some rational reasons different procedure may
have been provided. Differentiation that particular crime is against the individual and par-
ticular crime is against society, may not be appropriate way of application of criminal jus-
tice.
Whenever any act is declared as crime always it should be taken that act is
dangerous one and only because of it act may have been declared as crime. Crime problem
measures. It may reform the criminal or create deterrence and thereby reform the criminal
and he may not commit crime. Such actions against criminal may cause and strengthen
social solidarity, increase assurance in victim that he is protected against crime and crimi-
nals, thereby, save the individuals and ultimately members of society from fear of victimi-
flict effective sentence after detailed analysis. But in plea bargaining neither consideration
is given for deterrence creation nor for reformation of accused. Whole criminal justice con-
siders reformation and deterrence of criminal and potential criminals as main objectives;
and further, criminal justice ultimately focus on protection of victim and society; these are
129
ultimate objectives of criminal justice system. Plea bargaining is not based on aforesaid
Code permitting compounding9 and for some other offences complainant is permitted to
withdraw the case10. Effect of inclusion of provisions of plea bargaining is extension and
widening of compoundable offence for covering those offences also which have tradition-
ally been considered more serious. Plea bargaining is claimed for having victim centric and
victim restorative focus but detailed analysis shows that plea bargaining actually provide
but on plea bargaining even minimum sentence is reduced and half of minimum sentence
is inflicted.
Bargaining between the accused and the victim in which ultimately there is
that there is selling of crime; one person committed crime and now on payment of money,
he becomes lesser liable, another person suffered injury due to crime commission but now
by taking of money, he is selling his injuries. This whole procedure of plea bargaining
appears to legalise the crime commission. Proposal for plea bargain is given by accused;
whenever accused may find in the case that evidences available against him in the case are
direct, sufficient and substantial as it appears that ultimately he may be convicted and sen-
tenced, he may give such offer and on successful plea bargain, accused may become liable
for much lesser punishment only on expending some money giving it as compensation to
130
the victim. No doubt two checks are created and thereby tried to check such loopholes and
drawbacks, firstly, offer has to be accepted by victim, when he is not interested in reducing
liability of accused by taking compensation then he may refuse and in such case criminal
will have effective liability for crime as prescribed by substantive law, and secondly, court
has final say in the case, whole proceeding takes place in supervision of court, it is respon-
sibility of court to see whether plea bargaining is voluntary, and ultimately, disposition
prepared by party becomes absolute only on passing order by court in accordance with
disposition prepared by prosecution, victim and accused in case based on police report and
The victim is the person for whose protection criminal law originated and
has continued existence. Criminal justice has ultimate objective to protect life, property and
liberty of individuals and ultimately to protect the whole society. Every measure prescribed
in criminal justice should have focus for justice to individual victim and ultimately justice
to society at large, thereby, there is continuous need for reviewing of measures used for
justice imparting.
Even the Supreme Court has upheld that delay of one year in the commence-
ment of trial is bad enough. How much worse could it be when the delay is as long as three
or five or seven to ten years or more? Initially, the concept of plea- bargaining was criticized
by a group of society including legal experts and intellectuals by stating that it will demor-
alize the public confidence in criminal justice system and also lead to lesser penalties to
rich class, conviction of innocent people and therefore, it has become disputed concept
now. It is argued that the plea-bargaining concept no doubt undermines the public’s
131
confidence in the criminal justice system and as result of this it will lead to the conviction
of innocent, inconsistent penalties form similar crimes and lighter penalties for the rich27.
Today, it is used by all great countries like USA, Europe, Canada and some
authorities stated that the prevalent conditions in India are very different from US, even
then to meet out the huge backlog of cases in India and ultimately it will have to be done
with the consent of both the parties i.e. accused and prosecution, then what undermines?
Therefore, India cannot abstain itself for this law. This practice has been accepted by Indian
Judiciary. It can reduce the heavy backlog of cases in Indian courts, as it requires today and
we hope that overburdened criminal courts will soon get a relief with it and rate of disposing
will become rapid. According to the statistics of Delhi till 17/01/2011, out of 8630 total
cases, only 4129 cases have settled and there is no statistic which show that in how many
cases plea-bargaining was demanded but even then only 309 were declared in which it was
rejected. It shows the heavy backlog under Indian Courts and application of pleabargain-
ing28.
When the process is complete and the quantum of punishment and possibil-
ity of the probation is finished, we can say that the victims are not the forgotten actor rather
they have become a key player in the criminal justice system. According to the view of a
Judge of Delhi High Court over three crore cases are pending in Indian courts. Plea-bar-
gaining will solve cases involving petty offences and the courts will concentrate on more
serious offences. Indian jails have capacity of 2.56 lakh prisoners but there are more than
five lakh prisoners behind bars. The State governments spend more than rupee 55 per day
on each prisoner and annual expenditure comes up to Rs 361 crore. This huge amount is
132
spending by our Indian government to maintain these prisoners just because of delayed
criminal justice system. Plea- bargaining will help in reducing backlog under Indian Judi-
ciary and number of prisoners in jails also although the Constitutional obligation to provide
few courts or judicial officers are welcoming it and others have abandoned it. Perhaps we
in India have no other choice but to adopt this concept because of numerous abovemen-
tioned reasons. We are of the opinion that only time will tell if this concept will have fruitful
6.2 Suggestions
1. Even though the amendment has tried to address the problems of under trial prison-
ers by mandating the court to give accused the benefit of Probation of Offenders
Act where so ever it is permissible. Then Section 12 of the said Act provides that it
shall not cast any stigma on the offender. Sec 265 I also Section 428 applicable to
the sentence awarded on plea bargaining. But there is lack of awareness amongst
under trial prisoners. Provisions should be incorporated in the chapter making the
probation officers and jail superintendents duty bound to conduct sessions in pris-
ons informing the under trial prisoners of such a benefit which can be availed by
them.
2. A specified time should be laid down within which if a trial hasn’t commenced the
under trial prisoner should be let free. Police, prosecution, and judiciary should be
133
made accountable for delays in their respective spheres, not the under trial prison-
ers.
3. The accused in cases that are at appeal stage prior to the 2005 Amendment should
be allowed to avail this alternative remedy. There should be more clarity on the
should be classified as socio economic offence. This can act as a safeguard against
5. The applicability of the section should be widened and classification for the benefit
of plea bargaining should not be merely based on the number of years of punishment
for a particular offence but it should also consider the severity of the crime.
6. A parallel system should be set to consider cases dealing with plea bargaining. Only
if the forum feels that a satisfactory disposition cannot be worked out it should send
the case back to the court which should proceed from the stage where such applica-
7. A time frame should be stipulated for working out a mutually satisfactory disposi-
tion.
134
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