Understanding Plea Bargaining in India: Provisions Under the Criminal Procedure Code

Plea bargaining is a legal mechanism that allows an accused person to plead guilty to a lesser charge in exchange for a more lenient sentence or other concessions. In India, this concept is governed by Chapter XXI-A of the Criminal Procedure Code (CrPC), introduced through the Criminal Law (Amendment) Act of 2005. This blog post delves into the provisions of plea bargaining as outlined in the CrPC and its implications.

Key Provisions of Plea Bargaining

1. Legal Framework :

   - Sections 265A to 265L: These sections outline the procedures and guidelines for plea bargaining in India. They establish the framework within which plea agreements can be negotiated and finalized.

Print Page

Important changes brought about by Bharatiya Nagarik Suraksha Sanhita, 2023{Part 1}

1)   Leniency in plea bargaining

The code is also making some other humane changes to show leniency to first-time offenders in less serious offences and simultaneously address the issue of rising population of under-trial prisoners. For instance, in Section 293 of BNSS corresponding to Section 265E of CrPC relating to disposal of case in plea bargaining procedure, punishments have been significantly reduced for first-time offenders. Now they can be punished to 1/4th and 1/6th of minimum punishment as compared to 1/2 and 1/4th punishment respectively under Sections 293(c) and 293(d) of BNSS.

2) Legal aid in trial or appeal

The new law also seeks to increase the ambit for provision of legal aid. Section 304(1) of CrPC earlier provided for legal aid “in a trial before the Court of Session”. However, the revised section 341(1) of BNSS has replaced this with “in a trial or appeal before a Court” which significantly increases the ambit of the same. 

Print Page

Notes on plea bargaining

 Plea bargaining is a legal process where the accused and the prosecution negotiate and reach a mutually acceptable agreement, usually resulting in a guilty plea in exchange for certain concessions or benefits. It allows for the resolution of criminal cases without going through a full trial.

In India, the concept of plea bargaining was introduced through the Criminal Law (Amendment) Act, 2006. The provisions for plea bargaining are primarily governed by Chapter XXI-A{21A} of the Code of Criminal Procedure, 1973,S 265-A to S 265-L of CRPC.

Print Page

Study material on plea bargaining

[Chapter XXI-A

PLEA BARGAINING

265-A. Application of the chapter.—(1) This chapter shall apply in respect of an accused against whom—

(a) 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 or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment 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 the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

Print Page

Whether court can take recourse to plea bargaining in Cheque dishonour case?

  Thus going by the overall scheme in the provisions

contained in the Cr.P.C more particularly in Chapter XXIA and in the

light of the backdrop of the constitutional guarantees, the provisions

contained in Sec.265G would even override any other provisions of the

Code, inconsistent with the former. Therefore, the complainant cannot

contend that the accused should necessarily prove miscarriage of justice

or should establish factually that he has suffered failure of justice or

miscarriage of justice over the judgment impugned of the trial court in

the plea bargaining process so long as the accused can plead and

  establish that there has been flagrant violations of the mandatory

provisions contained in Chapter XXIA of the Cr.P.C. In the light of these

aspects, this Court has no hesitation to hold that the contentions raised

by the learned counsel for R-2 challenging the correctness of the view

taken by the learned single Judge of this Court in Joseph v. State of Kerala

reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported

in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in

2016 (1) KLT 117 are bereft of any merit and the said arguments of the

complainant are overruled. That apart, this Court would fully concur

with the views, reasonings and conclusions arrived at by the learned

Single Judge [B.Kemal Pasha (J)] in the aforecited judgments. This Court

in the decision in Joseph P.J v. State of Kerala & anr. reported in 2015 (5)

KHC 586 has held in para 6 as follows:

                     "6. Consequently, an offence under S.138 of the NI Act is not covered by
            S.265E Clauses (a) to (c). This is not an offence wherein minimum sentence has been
            prescribed. In such case, in the case of plea bargaining, the Court below ought to have
            complied with the provisions of S.265E(d) CrPC, and the Court below ought to have
            imposed one fourth of the sentence that can be imposed. The offence under S.138 of
            the NI Act is punishable with imprisonment with a term which may extend to 2 years,
            or with fine, which may extend to twice the amount of cheque. Even in the case of
            fine, the Court below could have imposed only half the amount ordered as fine in the
            present case. In the matter of sentence, the Court below ought to have considered the
            substantive sentence of imprisonment as well as the fine which could be imposed. In
            that case the Court below ought to have imposed substantive sentence of
            imprisonment for six months also."

                                   


            23.      In view of the said position, this Court would opine that it

may not be appropriate for the trial court to take recourse to the plea

bargaining process under Chapter XXIA of the Cr.P.C in relation to the

complaints for offence punishable under Sec.138 of the N.I.Act. 

            24.      The aforementioned provisions in Chapter XXIA of the

Cr.P.C are the procedures engrafted by the Parliament, which are to be

observed before the accused is found guilty and sentenced in such plea

bargaining process. If such mandatory procedures are violated, then it

will amount to denial of the procedural safeguards, which are inbuilt as

due process in Article 21 of the Constitution of India and the corollary

of such failure to observe those procedures would amount to

deprivation of the personal rights of an accused on account of his

conviction. Article 21 of the Constitution of India has guaranteed that

no person shall be deprived of his personal liberty except according to

the procedure established by law and case laws of the Supreme Court

are in legion as in Maneka Gandhi v. Union of India, reported in (1978) 1

SCC 248, wherein it has been held that the right to life and personal

liberty cannot be denied to anyone except, in accordance with the

procedure established by law, which is just, fair and reasonable. So

needless to say, any violation of such mandatory provisions in Chapter

XXIA of the Cr.P.C would amount to denial of constitutional right to life

and personal liberty of an accused.

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                  MR. JUSTICE ALEXANDER THOMAS
                    OP(Crl.).No. 6 of 2016 (Q)
                       P.J.JOSEPH,
                    Vs
                 STATE OF KERALA,
                    
               Dated this the 6th day of July, 2017.

Print Page

Whether a person can be denied public employment on account of conviction in minor offence?

In a growing democracy, where the systems are failing and the weak
and the downtrodden are hardly given the opportunity to sharpen their
intellect thereby diminishing the ability of their consciousness to act as a
mirror to their acts and actions, it is high time that the executive brings into
place a policy where summary/ordinary conviction should not be treated as a
conviction for entry or retention in government service.
33. Till then, it would be the duty of the Court to interpret the law by
harmonizing human sufferings and human wants, delinquencies and criminal
tendencies; conscious of the fact that passengers on Spaceship Earth are the
rich and the poor, the needy and the well-off, the hungry and the well-fed,
the educated and the uneducated. The need of the hour is to understand that
criminals are not born and are not irredeemable brutes. Crime may be a
disease but not the criminal, who are a kind of psychic patients and to
understand, that anti-social maladies are mostly the result of social
imbalances. It must be remembered that on the one hand, social stresses, for
various reasons, explosively mount in the real world’s hard environs and the
harsh remedy of heartless incarceration and ouster from society deepens the
criminality. The swing of the pendulum to the humanist side requires
respect for the worth of personhood and the right of every man and woman
in its residual human essence. 
34. We have discussed hereinabove the necessity to harmonize the
various social imbalances and in particular in favour of those who have been
denied the opportunity of developing their consciousness and thereby being
deprived of their conscious acting as a mirror to their acts. We have
highlighted as to how in various jurisdictions abroad the issue is dealt with.
We have discussed hereinabove the deliberations at the ‘All India Seminar
on Correctional Service’ where emphasis for re-habilitation of ex-convicts,
committing minor offences, by induction in public service was accorded
primacy in the deliberations.
A criminal record is a record of a person's criminal history, generally
used by potential employers to assess the candidate’s trustworthiness. The
information included in a criminal record varies between countries and even
between jurisdictions within a country. In most cases it lists all nonexpunged
criminal offenses and may also include traffic offenses such as
speeding and drunk-driving. In some countries the record is limited to actual
convictions (where the individual has pleaded guilty or been declared guilty
by a qualified court) while in others it also includes arrests, charges
dismissed, charges pending and even charges of which the individual has
been acquitted. The latter policy is often argued to be a human
rights violation since it works contrary to the presumption of innocence by

exposing people to discrimination on the basis of unproven allegations.
IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment Delivered on : July 15, 2016
W.P.(C) 11979/2015
MANOJ 

v
UOI & ORS

CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MS. JUSTICE PRATIBHA RANI

Print Page

Distinction between Express and implicit plea bargaining.

Apart from this, taking into consideration of the other aspects, there are two kinds

of plea bargaining, as endorsed in International jurisprudence. i.e., Express and implicit

plea bargaining. Express bargaining occurs when an accused or his lawyer negotiates

directly with a prosecutor or a trial judge concerning the benefits that may follow the

entry of a plea of guilty. Implicit bargaining, on the other hand, occurs without face-to-
face negotiations. In Implicit bargainings, the trial judges especially, establish a pattern

of treating accused who plead guilty more leniently than those who exercise the right to

trial, and the accused therefore come to expect that the entry of guilty pleas will be

rewarded.

Print Page

Procedure to be followed by court in case of plea bargaining

The High Court failed to appreciate that before the statement of the appellant or any other witness could be recorded, the trial court disposed off the matter on the date when the application itself had been submitted admitting the guilt. Even otherwise if the trial court wanted to entertain any issue of plea bargaining under Chapter XXI- A, inserted w.e.f. 5.7.2006, then too the court was obliged thereunder to put the victim to notice before extending any such benefits that have been given in the present case. The procedure therefore appears to have been clearly violated. Therefore, in the facts and circumstances of the case, the appellant had no opportunity to raise any grievance before the appropriate forum.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1547 of 2013

Girraj Prasad Meena V State of Rajasthan & Ors.

JUDGMENT

Dr. B.S. CHAUHAN, J.1

dated;September 30, 2013

Print Page

Leading case law on plea bargaining

The status of accused, who pleads not guilty to the charge and claims to be tried is incomparable with the status of the accused, who pleads guilty and invokes remedy of plea-bargaining. In that sense, the two sets of accused cannot be equated or said to be similarly placed. Moreover, the provision, such as Section 265-E, providing for sentence is a concession offered to accused who voluntarily resorts to plea-bargaining, so as to avoid the uncertainty of the trial, the term of sentence, if found guilty and also the litigation costs and time. Until the introduction of Chapter XXI-A in the Code, the law of the land was to discourage plea bargaining, being against public policy. Thus, the argument of discrimination is unavailable to the accused, who, at his own volition, 38 210911

elects the remedy of plea-bargaining. As regards the effect of providing for fixed sentence period in cases of plea-bargaining, even though the principal substantive law does not provide for minimum sentence, we fail to understand as to how this argument can be taken forward by the accused electing remedy of plea bargaining at his own volition. Notably, the validity of Section 265-E is not put in issue in the present case. Neither the argument of discrimination, nor the effect of the provision resulting in imposing minimum sentence of one-fourth of the punishment provided or extendable can be taken forward by these petitioners.

33. Taking over all view of the matter, we have no hesitation in upholding the opinion of the trial Court that the Court has no discretion to award sentence other than one-fourth of the punishment provided for or extendable, as the case may be, for the offence in question in cases covered by clause (d) of Section 265-E of the Code. On this finding, the final order passed by the Magistrate of awarding sentence of 21 months to the petitioners is unassailable.

Bombay High Court

Guerrero Lugo Elvia Grissel vs The State Of Maharashtra on 4 January, 2012

Bench: A.M. Khanwilkar, Rajesh G. Ketkar

Print Page

Whether Conviction Of Govt. Servant In Petty Offences should Be Treated As Disqualification For Entry and Retention in Govt. Service?

Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people through out the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost along them being traffic, municipal and other petty offences under the India; Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or in experienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service.
Supreme Court of India

Pawan Kumar vs State Of Haryana And Anr on 7 May, 1996

Equivalent citations: 1996 SCC (4) 17, JT 1996 (5) 155

Bench: Punchhi

Print Page

Difference between plea bargaining, charge bargaining and sentence bargaining

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of 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 in return for a more lenient sentence.[1] 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, 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 not carry jail time. In cases such as an automobile collision when there is a potential for civil 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. Plea bargaining can present a dilemma to defense attorneys, in that they 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.[2] In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a 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 (ie, to affirm or concede) certain facts that will affect how the defendant is punished under the sentencing guidelines.

Print Page