Plea bargain, also known as plea agreement or plea deal, refers to the pre-trial negotiation or agreement, in a criminal case, between the prosecutor and the defendant. Herein, the defendant, in exchange for some concession from the prosecutor, agrees to plead guilty or nolo contendere to a particular charge.
In other words, ‘plea bargaining’ is a deal offered by the prosecution side in order to induce the accused to plead guilty.
Under the agreement, the defendant may plead guilty either to a less serious charge or to one of the several charges, in return for the dismissal of other charges or to the original charge in return for a lenient sentence. In practice, plea bargaining entails the “mutual satisfaction” of the strengths and weaknesses of the charges as well as the defences. In general, plea bargaining is taken up before the trial.
The object behind this practice is to reduce the risk of undesirable judgments for either side. The rationale behind plea bargain, as regards to the courts, the prosecution, and the defence, include:
- It greatly relieves the courts’ burden.
- It allows for a speedier and cheaper dispensation of justice.
- It would take some burden off prosecutors, thereby allowing them to effectively prosecute more serious offences.
Courts, however, are under no compulsion to accept plea bargains. The prosecution may only recommend the same and the court, upon ensuring that the requirements thereunder have been satisfied, may accept the recommendations contained in the agreement.
Types of Plea Bargain
The concept of plea bargain involves three areas of negotiations.
The first is Charge Bargain, which involves a negotiation of specific charges that have been framed against the defendant in a trail. The process involves the accused pleading “guilty” for a lesser charge in return for the dismissal of higher or other charges, as the case may be. Charge Bargain is the most common form of plea bargain.
The second kind of plea bargain is Sentence Bargain, which involves the admission of guilt with respect to the offence charged in exchange for a reduced or lighter sentence. This process, which provides an opportunity for a lighter punishment, also saves the prosecution’s time and effort in proving the case.
Lastly, the least common form of a plea bargain is the Fact Bargain, which involves the admission to certain facts in return for an agreement not to introduce certain other facts into evidence.
Merits And Demerits of Plea Bargain
The main arguments in favour of plea bargain highlight the following merits to the practice:
- Voluntary Agreement between parties.
- Discounted Sentence for the accused.
- A guaranteed conviction for the prosecution.
- Expeditious disposal of Matters.
- Cheaper alternative.
On the other hand, the concept carries its own disadvantages and issues, including:
- Possibility of coercive manipulation based on rewards and threats
- Potential hampering of justice owing to unjust sentencing.
- Involvement of police entails the possibility of misuse and coercion.
- Hamper’s independence and impartiality of the judiciary.
- Invites corruption.
Development In India
The concept of Plea Bargain, per se, is not indigenous to the Indian Legal System. However, similar practices may be traced to be prevalent under the Indian criminal jurisprudence in the Vedic times. In the Vedic period, “Prayaschita”, which comprised models of self-purification by means of confession of guilt, provided the basis for reduction of penalty. The same has also been justified by scholars of shastras and smritis.
Post the Vedic times, plea bargaining was also witnessed under the Mauryan as well as Mughal empire. While the former did not have a formal procedure with regards to plea bargain, the latter drew up the Quisas system. However, under the British legal system in India, plea bargaining, in any form, was discontinued, and emphasis was laid on punishing offenders.
This adversarial system was adopted into the Indian regulatory landscape. The 154th Law Commission recommended the incorporation of plea bargaining in the Indian system, defining it as an alternative method that should be introduced to deal with the high arrears of criminal cases in Indian Courts. Further, the Malimath Committee, constituted under the chairmanship of Justice V.S. Malimath for tackling the issue of the escalating number of criminal cases, recommended in favour of inclusion of a plea bargaining system in India, so as to facilitate expeditious disposal and thereby, lessen courts’ burden.
Accordingly, the Criminal Law (Amendment) Act, 2005 was introduced, which amended the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1892.
Chapter XXI-A of the Code of Criminal Procedure, comprising Sections 265A to 265L, introduced plea bargaining in India. The provisions allow for plea bargaining in the following circumstances:
- Where maximum punishment is imprisonment for seven years;
- Where the offences do not affect the socio-economic condition of the country;
- Where the offences are not committed against a woman or child below the age of 14.
Further, the central government is empowered to notify the offences with regards to which plea bargaining may apply.
The process for a plea bargain, as provided under CrPC, is as follows:
- Application: An application for plea bargaining may be filed by an accused where the trials are pending. The application should contain brief details about the case and the offences that are dealt therein, in respect of which the said application is filed, and an affidavit by the accused stating, inter alia, that the application has been preferred voluntarily.
- Notice: The court shall issue a notice to the concerned parties to the trial, calling them to appear on the date fixed for the plea bargaining.
- In-Camera Examination: Upon appearance, the court will examine the accused in-camera, No other parties are allowed to attend such an examination so that the court may satisfy itself of the voluntary nature of the application.
- Mutually Satisfactory Disposition: Once satisfied, the court may allow parties to work out, within the given time frame, a mutually satisfactory disposition. Section 265-C lays down certain guidelines along with the procedure in this regard.
- Report: Section 265-D necessitates the preparation and submission of a report of the disposition. Where a satisfactory disposition has been worked out, the report of such disposition, signed by the Presiding Officer as well as all participants, is to be prepared by the court. If, however, disposition could not be worked out, the Court shall record the same and further proceed with the trial.
- Disposal of Cases: As per Section 265-E, which prescribes the procedure for disposing of cases where a satisfactory disposition is worked out, provides that after the submission of the report, the Court will hear the parties with regards the quantum of the punishment or release on probation. While deciding so, the Court may, at its discretion, pass a sentence of minimum punishment, or where it is not provided, a sentence of one-fourth of the provided punishment.
- Judgement: The Court shall pronounce the judgment as per the mutual disposition reached between the parties. Such a judgement shall be the final determination of the matter and no appeal, except a special leave petition or writ petition, may be filed against such judgement.
The Chapter, under Section 265-H, empowers the concerned court with regards to bail, the trial of offences and other matters with regards to disposal, as under the CrPC. It also provides, under Section 265-I, that the period of detention undergone by an accused may be set off against the bargained sentence, essentially extending the Provisions of Section 428 of the Code to cases of a plea bargain. The chapter also clearly mentions that all statements and facts stated by the accused in an application shall not be used except under the provisions for a plea bargain.
Judicial Trends of Plea Bargain
Judicial trends indicate that the judiciary, prior to the Criminal Law (Amendment) Act, 2005, had not been in favour of the concept of a plea bargain. In Murlidhar Meghraj Loya v. State of Maharashtra, the Hon’ble Supreme Court criticized the concept of Plea Bargaining, calling upon the idea that it intrudes upon the society’s interests. Further, in Kasambhai v. State of Gujarat, the Apex court held plea bargaining to be against public policy, describing it to be a highly reprehensible practice. The Supreme Court has held, in various cases, plea bargaining to be illegal and unconstitutional. Concerns with regards to the possibility of corruption and collusion based on these decisions.
However, it was in the State Of Gujarat v. Natwar Harchandji Thakorthat the Court acknowledged plea bargaining’s significance, holding that every plea of guilt should not be understood as a “plea bargaining” ipso facto. As per the court, the concept of a plea bargain would add a new dimension in the realm of judicial reforms.
Although still not widely popular, the concept is attaining greater recognition and application. In a recent case, various members of the Tablighi Jamaat, belonging to different countries, accused of violating their visa conditions by attending a religious congregation in Delhi, obtained release from court cases by means of plea bargain.
While the introduction of the concept under CrPC may go a long way in relieving the burden upon courts and in providing cheaper and expeditious disposals, the various loopholes that it entails cannot be overlooked. Chapter XXI-A, to a large extent, restricts the scope of a plea bargain by defining the specific cases wherein it may be applied. Further, arbitrary powers have been conferred on the government with regards to deciding the scope of socio-economic offences, and no guidelines are provided with regards to the basis of classification, which may result in the violation of Article 14.
Further, in a country like India, where cases go on for an unpredicted number of years and where, in the eyes of the society, an accused is convicted way before the court decides the case on its merits, the possibility of an innocent person agreeing to bargained sentence, so as to avoid the long drawn litigation and the expenses it entails, the cannot be ignored. Also, entrusting the responsibility of deciding whether or not such an agreement was voluntary adds to the court’s work and would require additional time.
Crime loses its gravity as the gap between the incidence and the conviction increases. The concept of plea bargaining as a recognized and practised concept has come a long way from its inception, especially in India. It may well be successful, when properly administered, in relieving the burden of courts, prosecutors, and the guilty-accused. Plea bargaining is more complex than what meets the eye, and for it to be successful, sufficient safeguards must be in place so as to avoid its possible abuse.
 Criminal Procedure Code, 1974, s. 265-A.
 Criminal Procedure Code, 1974, s. 265-L.
 AIR 1976 SC 1929.
 1980 AIR 854.
 Id.; Thippaswamy v. State of Karnataka  1 SCC 194; State of Uttar Pradesh v. Chandrika 2000 Cr.L.J. 384(386).
 (2005) 1 GLR 709.
 K. Venkataraman, The Hindu Explains | What is plea bargaining and how does it work?, The Hindu, July 19, 2020, https://www.thehindu.com/news/national/the-hindu-explains-what-is-Plea-bargaining-and-how-does-it-work/article32126364.ece (Last Accessed on September 8, 2020)
BY- Abhilasha Bhatia | Amity Law School, Delhi