1. The arrears of criminal cases awaiting trial are assuming menacing proportions.
Grievances have been vented in public that the disposal of criminal trials in the courts takes
considerable time and that in many cases trials do not commence for as long a period as three
to four years after the accused was remitted to judicial custody. Large number of persons
accused of criminal offences have not been able to secure bail for one reason or the other and
have to languish in jails as undertrial prisoners for years. It is also a matter of common
knowledge that majority of the cases ultimately end in acquittal. The accused have to undergo
mental torture and also have to spend considerable amount by way of legal expenses and the
public exchequer has to bear the resultant economic burden. During the course of detention as
undertrial prisoners the accused persons are exposed to the influence of hardcore criminals.
Quite apart from this the accused have to remain in a state of uncertainty and are unable to
settle down in life for a number of years awaiting the completion of trial. Huge arrears of
criminal cases are a common feature in almost all the criminal courts. It is in this background
the Law Commission felt that some remedial legislative measures to reduce the delays in the
disposal of criminal trials and appeals and also to alleviate the suffering of undertrial prisoners.
The Law Commission in its 142nd Report on Concessional Treatment of Offenders who on
their own initiative choose to plead guilty without any bargaining (1991) considered the
question of introduction of the concept of concessional treatment for those who choose to plead
guilty by way of plea-bargaining.
2. The justification for introducing, plea-bargaining cannot be expressed any better than
what the Twelfth Law Commission in its 142nd Report had already done as below:
(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 compassion
and consideration should be treated on par with an accused who claims to be tried at
considerable time-cost and money-cost to the community.
(2) It is desirable to infuse life in the reformative provisions embodied in section 360 of the
Criminal Procedure Code and in the Probation of Offenders Act which remain
practically unutilized as of now.
(3) It will help the accused who have to remain as undertrial prisoners awaiting the trial as
also other accused on whom the sword of Damocles of an impending trial remains
hanging for years to obtain speedy trial with attendant benefits such as-
(a) end of uncertainty.
(b) saving in litigation-cost.
(c) saving in anxiety-cost.
(d) being able to know his or her fate and to start of fresh life without fear of having to
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undergo a possible prison sentence at a future date disrupting his life or career.
(e) saving avoidable visits to lawyer’s office and to court on every date or adjournment.
(4) It will, without detriment to public interest, reduce the back-breaking burden of the court
cases which have already assumed menacing proportions.
(5) It will reduce congestion in jails.
(6) In the USA nearly 75% of the total convictions are secured as a result of plea-bargaining.
(7) Under the present system 75% to 90% of the criminal cases if not more, result in
acquittals.
3. The concept of plea bargaining has not been recognized so far by the criminal
jurisprudence of India. However, plea bargaining is considered to be one of the alternatives to
deal with the huge arrears of criminal cases. Plea-bargaining in its most traditional and general
sense refers to pre-trial negotiations between the accused usually conducted by the counsel and
the prosecution during which the accused agrees to plead guilty in exchange for certain
concessions by the prosecutor. It has two facets. One is “charge bargaining” which refers to a
promise by the prosecutor to reduce or dismiss some of the charges brought against the accused
in exchange for guilty plea. The second one is “sentence bargaining” which refers to a promise
by the prosecutor to recommend a specific sentence or to refrain from making any sentence
recommendation in exchange for a guilty plea.
4. The practice of plea bargaining in USA dates back to a century or more. The Prosecuting
Agency has a leading role in this process in that it has the discretion to reduce or dismiss some
of the charges against the accused and also to make recommendations to the Court about the
sentences in exchange for a guilty plea. The Supreme Court of USA in Brady v. United States
[297 US 742-25 L.Ed. 2d 747] and Santobello v. New York [404 US 257 (1971); Hutto v. Ross
[50 L.Ed. 2d 876]; Chaffin v. Stynchcombe [412 US 17 (1973)]; Blackledge v. Allison [52
L.Ed. 2d 136]; Weatherford v. Bursey [429 US 545 (1977)] upheld the constitutional validity
and the significant role the concept of the plea bargaining plays in the disposal of criminal
cases. It has approved this practice mainly on the premise that the accused who are convicted
on the basis of negotiated pleas of guilt would ordinarily have been convicted had they been
subjected to trial processes. One of the main arguments advanced in favour of plea bargaining
is that it helps the disposal of accumulated cases and will expedite delivery of criminal justice.
5. The Supreme Court of India has examined the concept of plea bargaining in Murlidhar
Meghraj Loya v. State of Maharashtra [AIR 1976 SC 1929] and Kasambhai v. State of
Gujarat [AIR 1980 SC 854]. The Court did not approve of the procedure of plea bargaining
on the basis of informal inducement. In Kasambhai’s case the Court squarely observed that
conviction based on the plea of guilty entered by the accused as a result of plea bargaining
could not be sustained and that it was opposed to public policy to convict the accused by
inducing him to confess to a plea of guilty “on allurement being held out to him that if he enters
a plea of guilty he will be let off very lightly”.
6. The Law Commission in its 142nd Report, having considered the concept as is being
practiced in other countries, recommended that the scheme for concessional treatment to
offenders who plead guilty on their own volition in lieu of a promise to reduce the charge, to
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drop some of the charges or getting lesser punishment be statutorily introduced by adding a
Chapter in the Code of Criminal Procedure. In making such a recommendation, however, the
Law Commission considered the views in favour of the concept as well as against it.
7. We have examined the cases decided in USA as well as by the Supreme Court of India
in respect of this concept and the 142nd Report of the Law Commission. [Law Commission, One
Hundred Forty Second Report, Chapter IX, paras 9.1-9.40 pp 24-34 (1991)] We are of the view that
plea bargaining can be made an essential component of administration of criminal justice
provided it is properly administered. For that purpose, certain guidelines and procedure have
to be incorporated in the Code of Criminal Procedure.
8. Having given our earnest consideration, we recommend that this concept may be made
applicable as an experimental measure, to offences which are liable for punishment with
imprisonment of less than seven years and/or fine including the offences covered by section
320 of the Criminal Procedure Code. Plea bargaining can also be in respect of the nature and
gravity of offences and the quantum of punishment.
9. However, plea bargaining should not be available to habitual offenders, those who are
accused of socio-economic offences of a grave nature and offences against women and
children.
9.1, The process of plea bargaining shall be set in motion after issue of process and when
the accused appears, either on a written application by the accused to the Court or suo motu by
the Court to ascertain the willingness of the accused. On ascertainment of the willingness of
the accused, the Court shall require him to make an application accordingly.
9.2. On the date so fixed for the hearing the court shall ascertain from the accused whether
the application was made by him voluntarily without any inducement or pressure from any
quarters, particularly from Public Prosecutors or Police. The Court shall ensure that neither the
public prosecutor nor police is present at the time of making the preliminary examination of
the accused.
9.3 Once the Court is satisfied about the voluntary nature of the application, the Court
shall fix a date for hearing the public prosecutor and the aggrieved party and the accused
applicant for final hearing and passing of final order. If the Court finds that the application has
been made under duress or pressure, or that the applicant after realizing the consequences is
not prepared to proceed with the application, the Court may reject the application.
9.4 Such an application may be rejected either at the initia1 stage or after hearing the
public prosecutor and the aggrieved party. If the Court finds that, having regard to the gravity
of the offence or any other circumstances which may be brought to its notice by the public
prosecutor or the aggrieved party, the case is not a fit one for exercise of its powers of pleabargaining, the Court may reject the application supported by reasons therefor.
9.5 The order passed by the Court on the application of the accused applicant shall be
confidential and will be given only to the accused if he so desires. The making of such
application by the accused shall not create any prejudice against the accused at the ensuing
trial.
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9.6 We are of the view that such a plea bargaining can be availed of by the accused in the
categories of offences mentioned above before the Court at any stage after the charge sheet is
filed by the investigating agency in police cases and in respect of private complaints at any
stage after the cognizance is taken. An order passed by the court on such a plea shall be final
and no appeal shall lie against such an order passed by the Court accepting the plea.
9.7 In cases where the provisions of Probation of Offenders Act, 1958 and/or section 360
of Cr. P.C. are applicable to an accused applicant, he would be entitled to make an application
that he is desirous of pleading guilty along with a prayer for availing of the benefit under the
legislative provisions referred to above. In such cases, the Court after hearing the public
prosecutor and the aggrieved party, may pass appropriate order conferring the benefit of those
legislative provisions. The Court may be empowered to dispense with the necessity of calling
a report from the probation officer in appropriate cases. The provision regarding confidentiality
of the making of application and the consequence of rejection outlined in paragraph 9.5 will
be applicable if the application is rejected by the Court.
9.8 If an accused enters a plea of guilty in respect of an offence for which minimum
sentence is provided for the Court may instead of rejecting the application in limine, after
hearing the public prosecutor and the aggrieved party accept the plea of guilty and pass an
order of conviction and sentence to the tune of one/half of the minimum sentence provided.
9.9 The Court shall on such a plea of guilty being taken explain to the accused that it may
record a conviction for such an offence and it may after hearing the accused proceed to hear
the Public Prosecutor or the aggrieved person as the case may be:
(i) impose a suspended sentence and release him on probation;
(ii) order him to pay compensation to the aggrieved party; or
(iii) impose a sentence which commensurate with the plea bargaining, or
(iv) convict him for an offence of lesser gravity than that for which the accused has been
charged if permissible in the facts and circumstances of the case.
10. We recommend that a separate Chapter XXIA on Plea Bargaining be incorporated in the
Code of Criminal Procedure on the lines indicated above.
