This document discusses plea bargaining in India. It provides background on plea bargaining, including how it emerged to help reduce court backlogs and expedite case resolutions. It describes different types of plea bargains, such as charge bargaining, fact bargaining, and sentence bargaining. The document also discusses some Supreme Court cases related to plea bargaining and notes some benefits and drawbacks of the practice in India. Overall, it provides a comprehensive overview of plea bargaining in the Indian legal system.

1. PRESENTED BY :
G.SOWJANYA
5TH SEMESTER
MATS LAW SCHOOL

2. PLEA - BARGAINING
 Plea-Bargaining’ can be defined as pre-trial negotiations between the
accused and the prosecution during which the accused agrees to plead
guilty in exchange for certain concessions by the prosecution.
 The concept of plea-bargaining is an alternative remedy to the long and
tortuous process of trial in courts which has been introduced to ensure
speedy disposal of cases and to reduce congestion in prisons.
 It is also known as pre-trial settlement, plea discussions, plea
negotiations, resolution discussion, mutually satisfactory disposition
etc.

3.  Plea-bargaining emerged and has gained acceptance in the legal
community only in recent decades. One of the earliest indications of
plea-bargaining was a 1485 English statute, which authorized
prosecutions for unlawful hunting before the justice of the peace.
 The statute provided that if a defendant confessed his crime then he
was convicted of a summary offence, but if the defendant denied his
guilt, he was prosecuted as a felon.
 However, many of the courts disapproved of the practice of plea-
bargaining because of its infringement on the defendant's rights. The
dominance of plea-bargaining was not actually realized until the 1920s,
when a number of states and cities conducted surveys of their criminal
justice system.
 Following the 1920s, the issue of plea-bargaining did not re-emerge
until the 1960s. The re-emergence of plea-bargaining was due to the
'crime wave' of the 1960s produced by the World War II and the
increase in drug usage and other cases of victimless crime.

4.  Charge Bargaining : This can be further classified into multiple charge
and unique charge. Multiple charges - Some charges are dropped in
return for a plea guilty to one of them.
 Unique charge - A serious charge is dropped in exchange for a plea of
guilty to a less serious charge.
 Fact Bargaining : In fact bargaining, a prosecutor agrees not to contest
an accused version of the facts or agrees not to reveal aggravating
factual circumstances to the court. There is an agreement for a selective
presentation of facts in return for a plea of guilty.
 Specific Fact Bargaining: In this type of bargaining there is an
acceptance of sanction without pleading guilty which is known as the
nolo contendere pleas. Another category of pleas in this category is
known as the Alford pleas where there is acceptance of sanction but the
defendant asserts innocence.
 Sentence Bargaining : It happens when an accused or defendant is told
in advance what his sentence will be if he pleads guilty. Sentence
bargaining — is applicable to the judicial system in India.

5.  Back logging in courts will be reduced and justice can be delivered quickly and
efficiently.
 Bargaining helps the defendant by deciding the case earlier avoids
uncertainties in trial. The Judge exerts supervisory control.
 The Act ensures that such an opportunity will not be available to habitual
offenders. The Act does not provide for an ordinary appeal from the judgment
in such a case is a step towards expediting the disposal of cases.
 Plea-bargaining has surged because there are more crimes and there are more
petty offences which now are criminalized (offenses such as failing to pay a bus
fare, being an unlicensed vendor, petty burglary, shoplifting, etc.).
 Since going to trial is more costly and time consuming, plea-bargains are a
practical solution for the criminal justice system.
 Avoids costly trials, eliminates appeals, saves victims from the trauma of trial
and relieves the prosecutor of burden of proof beyond reasonable doubt.

6. Some of the major drawbacks of the concept of plea-bargaining as are recognized
in India:
 Against the basic principles of criminal justice systems Plea-bargaining violates
not only the procedure prescribed by law, but also the constitutional rights.
Detrimental to the innocent defendant.
 Involving the police in plea-bargaining process would invite coercion.
Involving the victim in plea-bargaining process would invite corruption.
 The accused may go escape with less punishment. There is an apprehension
that the wrong doer may agree to wrong compromise to escape the prolonged
and expensive trial.
 Plea-bargain may depend strongly on the negotiating skills. They encourage
guilty pleas in weak cases, but discourage the same in stronger cases.
 If the plead guilty application of the accused is rejected then the accused would
face great hardship to prove himself innocent.
 It takes away the right to appeal. The remedy under Articles 226 and 227 of the
Constitution can be made use of; it is unclear whether the victim of the offence
can utilize this remedy.

7.  Offences, which is punishable to death, life imprisonment
or of imprisonment more than 7 years.
 Offences which affects the socio- economic conditions (like
offences under Food Adulteration Act etc) of the country .
 Section 265L Cr.P.C, bars the provisions of plea-bargaining
to any Juvenile or Child as defined under Juvenile Justice
(Care and Protection of Children) Act, 2000.
 Crimes committed against a woman or a child below the
age of 14 years.
 Habitual offenders.

8.  Section 265A of Chapter XXIA of the Criminal Procedure Code
deals with applicability of the Plea bargaining.
 Benefit of Plea-bargaining can be extended in two
circumstances.
 One is, if a report is forwarded by a Station House Officer of a
Police Station after the completion of investigation to the
Magistrate.
 The other is, if the Magistrate has taken cognizance of an offence
on a complaint under S. 190 (1) followed by examination of a
complainant and witness under S. 200 or S. 202 and issuance of
process under Section 204. Thus, it means, after commencement
of proceedings upon a private complaint under S. 190 (1) of the
Code.
 Plea-bargaining can take effect only when the consent of all three
parties, that is, victim, prosecutor, and judge has been obtained.

9. MALIMATH COMMITTEE
 The Law Commission of India - 142 nd , 154 th and 177 th reports. 142 nd Report
- Abnormal delays in the disposal of criminal trials and appeals 154 th Report –
 First recommended the introduction of ‘plea- bargaining’ 177th Report - In
2001 also sought to incorporate the concept of plea-bargaining
 These recommendations of the Law Commissions finally found a support in
Malimath Committee Report.
 The NDA government formed a committee, headed by the former Chief Justice
of the Karnataka and Kerala High Courts, Justice V. S. Malimath. The Malimath
Committee recommended that a system of plea-bargaining be introduced in
the Indian Criminal Justice System.
 The Criminal Law (Amendment) Bill, 2003. However, those provisions failed to
come through and were reintroduced with slight changes through the Criminal
Law (Amendment) Bill, 2005.
 Finally incorporated into the Code of Criminal Procedure, 1973 as Chapter XXI-
A, Section 265 A to 265 L through the Section 4 of Criminal Law (Amendment)
Act, 2005, which came into effect from July 5, 2006.

10.  File an application any time before the commencement of the trial.
 Filed by the accused in the court where the trial is pending.
 Accompanied by an affidavit stating that the accused has & quot; voluntarily &
quot; opted for plea-bargaining and that he had not previously been convicted
on the same charge.
 The court, examines the accused in camera to ascertain whether the
application has been filed voluntarily.
 Issuance of notice to the Public Prosecutor or the complainant. negotiation of
such a mutually acceptable settlement is left to the free will of the prosecution
(including the victim) and the accused.
 If a settlement is reached, the court can award compensation based on it to the
victim and then hear the parties on the issue of punishment.
 The court may release the accused on probation if the law allows for it; if a
minimum sentence is provided for the offence committed, the accused may be
sentenced to half of such minimum punishment; if the offence committed
does not fall within the scope of the above, then the accused may be sentenced
to one-fourth of the punishment provided or extendable for such offence.

11.  In the case of Murlidhar Meghraj Loyat v. State of Maharashtra , the Supreme
Court observed as under: “In civil cases we find compromises actually
encouraged as a more satisfactory method of settling disputes between
individuals than an actual trial. However, if the dispute finds itself in the field
of criminal law, " Law Enforcement & quot; repudiates the idea of
compromise as immoral. The & quot; State& quot; can never compromise. It
must enforce the law. & quot; Therefore open methods of compromise are
impossible.”
 Sakharam Bandekar’s case –
For the first time in Mumbai, an application for plea-bargaining was made
before a sessions court when a former Reserve Bank of India clerk—accused in
a cheating case—sought a lesser punishment in return for confessing to his
crime. The court directed the prosecution to file its reply. The CBI, while
opposing the application, said, & quot; The accused is facing serious charges
and plea-bargaining should not be allowed in such cases. & quot; It continued,
& quot; Corruption is a serious disease like cancer. It is so severe that it maligns
the quality of the country, leading to disastrous consequences. Plea-bargaining
may please everyone except the distant victims and the silent society. & quot;
Based on these submissions, the court rejected Bandekar's application.
Although Bandekar's plea was not accepted, the case is an indicator to an
emerging legal trend.

12.  ADR is a term used to define a set of approaches and
techniques aimed at resolving disputes in a non-
confrontational way. In a civil law context, ADR represents
any number of techniques and processes utilized by parties in
dispute that allow for agreements and settlement outside of
the litigation process.

13.  Support for the development of guiding principles and values.
 Commonly identified values included confidentiality; party self-
determination; neutrality; balancing power; ensuring fairness of process;
achieving settlement and maintaining the reputation of the resolution
facilitator.
 Pervaded by faith in a rational approach to problem solving generally.
This rational approach must be flexible enough however, to factor into
the resolution process, vast dimensions of human psychology and the
entire spectrum of human emotions that can be engaged by civil law
disputes. (It goes without saying that this is no easy task).
 ADR requires the facilitation of a third party neutral. These include
arbitrators, mediators and negotiators.

14.  Most formal in nature.
 Arbitrations within a civil law context are generally
designed to be binding.
 The single most important distinction between
arbitration and mediation therefore is that the decision
of the arbitrator, unless otherwise agreed, will be
binding and the decision may be entered on the court
record.
 More generally an arbitrator is invested with the
authority to impose a resolution to a dispute.

15.  Leaves the decision making power in the hands of the disputants.
 Process is directed more by the needs and interests of the disputants
themselves than by the decisions of a third party arbitrator.
 Mediation is voluntary; nothing happens without the parties' consent
(except for mandatory mediation in some legal contexts).
 The parties retain a high degree of control. The mediator does not make
a decision, but rather works with the parties to assist them in finding a
solution to the dispute that is satisfactory to them.
 Mediation does not determine right or wrong. (Is this inconsistent with
the pursuit of justice?)
 In Canada Mediation has been entrenched in statutory provisions
 In the Educational front, law schools and graduate programs have
introduced courses in mediation and alternative dispute resolution .

16.  Conciliation is a less formal form of arbitration. This process does not require
an existence of any prior agreement. Any party can request the other party to
appoint a conciliator. One conciliator is preferred but two or three are also
allowed. In case of multiple conciliators, all must act jointly. If a party rejects an
offer to conciliate, there can be no conciliation.
 Parties may submit statements to the conciliator describing the general nature
of the dispute and the points at issue. Each party sends a copy of the statement
to the other. The conciliator may request further details, may ask to meet the
parties, or communicate with the parties orally or in writing. Parties may even
submit suggestions for the settlement of the dispute to the conciliator.
 When it appears to the conciliator that elements of settlement exist, he may
draw up the terms of settlement and send it to the parties for their acceptance.
If both the parties sign the settlement document, it shall be final and binding
on both.

17.  Negotiation requires parties to bargain without
outside assistance, exchanging compromises to reach a
solution. In this approach parties can begin bargaining
discussions at the beginning of a dispute without the
presence of legal representation.
 Like mediation, settlement discussions within a
negotiation context are controlled entirely by the
parties
 For negotiation to succeed, it requires the complete
cooperation of the parties. If participants lack the
necessary motivation to resolve the conflict through
compromise, settlement will be difficult if not
impossible

18.  It roughly means "People's court". India has had a long history of
resolving disputes through the mediation of village elders. The system
of Lok Adalats is an improvement on that and is based on Gandhian
principles. This is a non-adversarial system, where by mock courts
(called Lok Adalats) are held by the State Authority, District Authority,
Supreme Court Legal Services Committee, High Court Legal Services
Committee, or Taluk Legal Services Committee, periodically for
exercising such jurisdiction as they thinks fit. These are usually
presided by retired judge, social activists, or members of legal
profession. It does not have jurisdiction on matters related to non-
compoundable offences.
 There is no court fee and no rigid procedural requirement (i.e. no need
to follow process given by Civil Procedure Code or Evidence Act), which
makes the process very fast. Parties can directly interact with the judge,
which is not possible in regular courts.

19.  The system of dispensing justice in India has come
under great stress for several reasons mainly because
of the huge pendency of cases in courts. In India, the
number of cases filed in the courts has shown a
tremendous increase in recent years resulting in
pendency and delays underlining the need for
alternative dispute resolution methods. It is in this
context that a Resolution was adopted by the Chief
Ministers and the Chief Justices of States in a
conference held in New Delhi on 4th December 1993
under the chairmanship of the then Prime Minister
and presided over by the Chief Justice of India.

20.  Aim and purpose of both are same and we can say that the plea
bargaining is one of the form of ADR which is having very broad sense
in itself.
 The Law Commission of India in its 120th Report(1987) observed that
late disposal of backlog cases is because of low judge per capita ratio in
the country. The Indian judges are roughly 10.5 judges per million
whereas the figure is more than four times in Australia, U.K., U.S.A.
and Canada. There was also a suggestion for increase in the number of
judicial officers.
 Because of overburdening of Courts with cases, there is gross neglect
towards the status of under trials. Flooding of cases led to increase in
number of convicts and over population of prisoners. Although there is
a capacity of 2.56 lakh prisoners but there is more than 5 lakh prisoners
which are behind the prison.

21.  The State govts. spends more Rupee 55 per day on each
prisoner and annual expenditure comes upto Rs 361
crore. If we could have adopted different method
(speedy trial) then the situation would have been
totally different. The State Government would be able
to reduce the number of under trials in the jails and
also the huge expenditure could have been checked.

22.  The preamble of the Constitution, enjoins the state to secure social, economic
and political justice to all its citizens, making the constitutional mandate for
speedy justice inescapable. This Directive Principle of State Policy directs the
state to strive for reducing inequalities amongst groups of people in different
areas [art 38 (1)]. This is elaborated by specifically adding that:
 The State shall secure that the operation of the legal system promotes justice.,
to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities (art 39A).
 While interpreting this provision the Supreme Court held that:
social justice would include ‘legal justice’ which means that the system of
administration of justice must provide a cheap, expeditious and effective
instrument for realization of justice for all sections of the people irrespective of
their social or economic position or their financial resources.

23.  Both having the different process for seeking the justice but
at the end the purpose and aim of the both ADR and plea
bargaining is same to overcome with the cases which is
pending and give justice to the people in less expensive
manner.
 Due to unloading of backlog cases, the jails will not be
over-packed. The constitutional obligation to provide
speedy trial is also being fulfilled; reduction in the number
of under trial prisoners. Due to plea-bargaining, the faith
of the people in criminal justice system can be regained
and crime rate can also be decreased. The plea-bargaining
can also reduce the serious congestion in the courts.

24. THANK YOU