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A Comparative Study On The Procedures Involved In Plea Bargaining With Reference To The Judicial Pronouncements In India And The USA By - Agna Prem

A Comparative Study  On The Procedures Involved In Plea Bargaining With Reference To The Judicial Pronouncements In India And The USA


Authored By - Agna Prem



Plea bargaining is the pre-trial negotiation that widens the scope of reducing the backlog of cases and their speedy disposal. As per the Black laws dictionary, “Plea-bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval." Plea bargaining is a silver line in reinstating the justice mechanism of the accused to a greater extent. The objective of the paper is to make an overview of the concept of plea bargaining, which plays a very crucial role in the judicial system of various countries, by analysing the procedures involved in plea bargaining keenly. The mutually satisfactory disposition between the accused and the prosecution aims to tackle overburdened courts, minimise the enforcement cost, and reduce the uncertainties that may arise due to time lags. While considering the USA, there is no exception in cases to be tried under the purview of plea bargaining, whereas in India, the exceptions are enumerated under Section 265A of CrPC.


 The same has been enshrined under the ambit of the 142nd, 154th, and 177th law commission reports and adopted by the Indian legal mechanism outlined from the prevailing laws in the US. Because the US legal system initiated the concept of plea bargaining under the sixth amendment to the US Constitution, a dire need arises to look into a comparative study among The prevailing laws by analysing the critical case laws.  The SC of the USA in Brady v. the United States[1] and Santobello v. New York[2] upheld the constitutional validity and the significant role the concept of plea-bargaining plays in the disposal of criminal cases. While considering the purview of India, we introduced the same under Sections 265A to 265L CrPC; even though there has been a significant impact, certain drastic drawbacks exist as it leads to abuse of power in some situations.


In India, the concept of plea-bargaining was examined by the SC in Murlidhar Meghraj Loya v. the State of Maharashtra.[3] Understanding the types, processes, and procedures of plea bargaining is essential to the relevant judicial pronouncements. The paper also analyses the status quo of the beneficiary in plea bargaining negotiations and the broader perspective of the law.


KEYWORDS: Plea bargaining, the criminal justice system, Criminal procedure code, mutually satisfactory disposition, Section 265A to 265L, nolo contendere.



To make an overview of plea bargaining by analysing the procedures involved in plea bargaining in India and the USA. To conduct a comparative study on the processes involved in the light of major judicial pronouncements.



Numerous procedures have evolved in the criminal justice system to render access to justice at every stage. Plea bargaining can be defined as "a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offence or one of the multiple charges in exchange for some concession by the prosecutor, usually a more lenient sentence or a dismissal of the negotiated charges"[4]. The aspect of plea bargaining is predominant in the criminal justice system and criminal jurisprudence. Plea bargaining was conceptualised in various countries to reduce the backlog of cases, render speedy justice and avoid the problems associated with regular trials. The practice of plea bargaining prevails in India and the USA, but the procedures and stages involved differ.  In certain circumstances, the accused can approach the court to plead guilty to the offence committed without the formal trial procedures that consume time and money. It acts as a silver line in exchange for a lenient negotiation of sentencing or even dismissal of charges with mere fines.


While considering the criminal procedure in the US, plea bargaining is of significant importance. Decades ago, the practice of pleading guilty or mutual negotiation was not encouraged under the common law system. But the revolutionary aspect has become an integral part of the criminal justice system and disposes of around 90% of the cases with plea bargaining[5]. However, in India, plea bargaining is practised differently than the US system and incorporates sui generis modifications.



Plea Bargaining can be categorised into Charge Bargaining, Sentence Bargaining, and Fact Bargaining. This categorisation mainly aims at the reduction of sentences through various negotiations. In most cases, the type of plea bargaining can be made available to the accused based on the criminal history and the gravity of the offence committed.


The charge Bargain involves when the defendant pleads guilty to minimise the original charge into a less severe crime. In Sentence Bargaining, in exchange for a promise by the prosecutor, the defendant argues guilty to recommend a lighter sentence. By avoiding the need to establish the defendant's guilt at trial, sentence bargaining saves the prosecution time. In return, the defendant benefits from spending less time in jail, if any time at all. The defendant may be eligible for lower fines and costs when the jail period is not a possibility[6]. While considering the purview of the United States, sentence bargaining can be approved by the recommendation of the Trial Judge. In the case of Fact Bargaining, negotiation involves admission to specific facts in return for not including particular other facts. In bargaining, the defendant enters a guilty plea based on specific facts that establish his guilt. In exchange, the prosecution leaves out some facts that, under the sentencing laws would have made the penalty more severe. Fact Bargaining can be considered one of the least preferred types.



Considering the purview of India, before the year 2005, the concept of plea bargaining pertained to petty offences. It did not cover the significant spectrum of crimes. Despite various recommendations by the Law Commission of India, the Indian Judiciary portrayed a laid-back attitude towards its implementation. In the case, Kachhia Patel Shanthilal Koderlal V. State of Gujarat and Anr.[7], "it was held that the practice of plea bargaining is unconstitutional and illegal in nature which would tend to promote corruption, and pollute the purity of justice." The apex court was hesitant to implement the aspect of plea bargaining in various judicial pronouncements.[8]


But later, there was a paradigm shift in judicial thinking from a tentative approach and recognising plea bargaining as an efficient alternative in redressal. In Madanlal Ramachander Daga V. State of Maharashtra, The Court opinioned that "The offences can be punished and tried as per the guilt of the accused. Suppose the court believes that it is sufficient to show certain leniency. In that case, it can be shown on the facts of the case it may impose a lighter sentence".[9]  But it was also reiterated by the court that "the law aims to render expeditious justice by resolving disputes with consideration to the prevailing profile of pendency and delay in disposal of cases. Hence the fundamental reforms are inevitable and upheld plea bargaining as a redressal mechanism that adds a new dimension to the judicial reform"[10].


The recommendations incorporated by the law commission of India and the Criminal Reforms Committee in the 142nd, 154th, and 177th reports were a significant breakthrough.  Jst. Malimath Committee Report[11] recommended the aspect of plea bargaining by comparing it with success in the United States. It highlighted the need to adopt the approach in the Criminal Justice System to render justice. The law commission, through its reports, highlighted plea bargaining as a viable alternative to deal with the pending criminal cases in the country. Unlike the USA, it shall apply to some instances where the imprisonment is less than seven years or a fine or pertaining to certain exceptions such as not extending to socio-economic offences or offences against women and children.[12]


Implementing such a proactive mechanism faced major hindrances before the 2005 amendment. The provisions relating to plea bargaining are enumerated under Section 265A to 265L[13]. The provisions list the applicability of plea bargaining, as The provision is available only to offences with a punishment of less than seven years[14], excluding offences with the sentence of death or life imprisonment or imprisonment exceeding seven years, and not available to crimes against women and children below the age of fourteen[15]. The sections also highlight that a person convicted of the same crime cannot be considered under the purview of the same,  specific guidelines for mutually satisfactory disposition, procedures involved, etc.



Initially, the aspect of plea bargaining was not favoured wholeheartedly by the justicial system. Still, due to the expansion of population that led to lengthier trial sessions and overcrowded courts, the concept attracted such momentum. The defendant can put forth any of the three pleas, guilty, not guilty, or nolo contendere (I do not wish to contend), which is rather 'willingness to accept the declaration of guilt.' Brady v. the United States[16] decided in 1970, established the constitutionality of plea negotiations. Still, the Supreme Court issued a warning that specific plea incentives, such as those that were excessively large or coercive, preclude defendants from acting freely or used in a way that resulted in a sizable number of innocent people entering pleas of guilty, might be illegal or raise constitutional issues. According to Santobello v. New York[17], legal remedies are available when plea agreements are violated. Mostly plea bargaining was considered a contract between the defendant and the prosecutor[18].


"In the recent U.S. Supreme Court decision, Missouri v. Frye, Justice Kennedy, writing the majority opinion, Pointed out the statistics that 97% of federal convictions and 94% of state convictions are the results of guilty pleas"[19]. It is crucial to make no such promises regarding guaranteeing any lighter sentence to the accused. The judge may accept the plea if he is completely satisfied that the accused voluntarily makes the plea. 



The plea bargaining procedure initiates with the application stage [20]. It is crucial that the accused plead guilty voluntarily to the court and is required to submit an affidavit along with the application. The application is supposed to be filed before the initiation of the trial since the same is considered a pre-trial procedure. "On receipt of the application,  the concerned magistrate is to be satisfied that the affidavit and the application submitted by the accused are voluntary rather than under compulsion. If the magistrate discovers that the party had previously been found guilty of the same crime by some lower court, the magistrate can reject the application"[21]. The court examines the applicant in camera to satisfy that the application was filed voluntarily and decide the eligibility in filing the same. If on examination, it is found that the application was instituted under compulsion or did not comply with the requirements specified in the affidavit, the court exercises the discretion to reject the application and proceed with the regular trial proceedings.


On receipt of the aforementioned matters from the accused, a notice is issued to both parties to appear before the court on a pre-fixed date. If the Magistrate is satisfied with filing the plea bargaining application by the accused. The court will give the accused and the complainant time to work on certain negotiations. In case of mutually satisfactory disposition[22], if the case is initiated upon a Police Report, the Court will issue a notice to the concerned investigating office, public prosecutor, and the parties to initiate a mutually satisfactory disposition. In such cases initiated other than upon Police Report, the police shall be issued to the victim and the accused to initiate a mutually satisfactory disposition. Upon examination of the report in this regard, the court, in accordance with the disposition, shall award compensation to the victim and release the accused on probation[23] or reduce the quantum of punishment.



In the US, Plea Bargaining evolved from the doctrine of Nolo contendere, and it changed its form to charge fact and sentence bargaining. The Process is changed from time to time to cater to the need of the criminal justice system. Due to prison overcrowding and the rise in the pendency of criminal cases, the process has been more incentivised. The Process starts after the arrest and investigation of the accused's crime. Plea bargaining is a negotiation between the defence counsel and the offender. If there is a successful negotiation, the plea agreement is submitted before the judge, who will pronounce the sentence. If there is no consensus between the defence and offender, the trial will proceed against the offender[24].


In the US, the success rate of plea bargaining negotiation was more than 90 per cent. It is mainly because the process focuses on closing the criminal case as early as possible, and incentives are offered to the defence counsel and offender for settling the plea agreement. In most cases, the offender has to choose between a probable conviction and a reduced sentence with certain incentives. These incentives are the reason for the successful Incorporation of the process in the US criminal justice system.[25]


There were circumstances in which the governments of various countries took a step back in taking proper precautionary measures inside the prison during the initial stages of the pandemic. The wheels of the justice system in the country started to grind the prisoners, mainly the undertrials. When there was a drastic increase in Covid cases across the country, people were locked in such a facility where social distancing was practically impossible. To an extent, there was a decline in the number of cases accessed by the attorneys as there was a huge barrier to direct communication with their clients. There were numerous problems in arranging client meetings, accessing proper materials, etc. But at the same time, many positive factors increased the disposal of cases during the pandemic[26]. Due to the pressure on the defendants from being locked up during the pandemic, they pleaded guilty to their health. There was a large number of defendants who pleaded guilty to get out of jail. During the pandemic court closure situations in the US, plea bargainings were offered more quickly and often to eliminate the backlog of cases.



Plea Bargaining in India is adopted from the US, but the process is not entirely similar. In India process is based on the restorative approach, it involves the victim, defence/prosecution, and the offender as parties to the negotiation, and the judge will act as an observer. The judge precedes the entire process to protect the interest of society and ensure no injustice is being done to either party. The judge plays a predominant role in the process as he ensures that there is no miscarriage of justice being done.  In the US, the process does not involve the victim. The role of the victim is practically non-existent. At the same time, the judge also has no place in the process. This makes the process without involving all the affected parties to the crime, and no adjudicator to look after the miscarriage of justice.


This resulted in more freedom for the defence counsel and more burden on the offender. By having the incentives for accepting the plea and reducing the sentence or charge, the offender can get away with a lesser sentence, and the prosecution has the lighter work to do. But the process proved to be most successful as 90 per cent of the cases end through plea bargaining. Unlike in India, less than 2 per cent of cases end through the same.  While considering the wide gap between the number of cases disposed of in India and the US, the major reason is the complexity of procedures and the categorisation  of exceptions in India. All the existing complexities often hinder the applicant from returning to normal trial proceedings. Secondly, most accused who are booked under various offences are often illiterate. They do not have the proper knowledge to understand the importance of the process and the procedures involved. Thirdly, a gap in judicial thinking still prevails in considering plea bargaining an alternative.  



The drastic increase in the pendency of cases in the courts attracted various reforms to be adopted to deal with the issues[27]. Plea bargaining acting as an alternative to the adversarial trial practised in the criminal justice system, has brought about a significant positive change toward the disposal of case laws all around the globe. But the plea bargaining system prevailing in India compared to that in the United States can be considered in its infancy. Even though the concept was adopted from the US, there is still a particular hindrance in adopting it in its entire essence. "Studies reveal that, since its adoption, it was only in the year 2015 proper data were available with this regard"[28]. There is still a more significant gap to be filled in correctly implementing such a mechanism to the country's criminal justice system and disposal of cases.  There is a dire need to adopt plea bargaining in a definite manner. Being a mechanism that reduces the lengthy trial procedures and reduces trial-related expenses. There is a need to instil confidence among the people and create proper awareness by conducting sessions among the under-trial prisoners. Our country's judiciary and justice system must adopt the same in a society that is not entirely aware of such an alternative.


Despite including a provision about plea bargaining in the criminal procedure code, there is a need to widen the scope and applicability of the provision.  Compared with the US, India is taking an extremely cautious step in leading to its limited operation. Under the existing crimes in India, including a larger spectrum of crime categories is crucial for better adoption of the concept. There were instances in which the Hon'ble court, after considering the facts and circumstances of the case admitted the application for plea bargaining in the Motor Vehicles Act for first-time offenders[29]. Amendment of the provision in India can be appreciated if the same loosens the stringent parameters. "Not only should the offences considered socio-economic crime be pointed out, but the categorisation for benefitting from plea bargaining should be done considering the gravity of the offence. Furthermore, its scope should be expanded, helping implement the section constructively"[30]. It is also required to provide proper awareness to the legal practitioners, including the magistrates and the lawyers, regarding the need to adopt such alternatives, which could reduce the time and backlog of cases. Such measures of providing awareness classes can be initiated by the legal services authorities of different states and the Bar Council of India so that we could increase the number of case laws similar to that of the US.



  1. Rosie Athulya Joseph, Plea bargaining: a means to an end, Available at, http://www.manupatra.com/roundup/326/Articles/Plea%20bargaining.pdf (last visited on 3rd October 2022)
  2. NLSIU Banglore, Abhinav Sekhri, "Pendency in the Indian Criminal Process: a creature of crisis or flawed design?", 2019
  3. George Fisher, Plea bargaining's triumph a history of plea bargaining in  America (Stanford University Press, Stanford California, 2003)
  4. Putra G, "A critical analysis of plea bargaining in India", 1(1) International Journal of Criminal, Common and Statutory Law 28-32 (2021)
  5. Justice JN Bhatt, " For fast track justice, Doctrine of Nolo Contendere, Does it not deserve a trial?" available at https://lawcommissionofindia.nic.in/adr_conf/nolo%20contendere%204.pdf (Last visited on 23rd September 2022)
  6. Neeraj Arora, Plea Bargaining- A New Development in the Criminal Justice System, December 25, 2010, available at https://www.legallyindia.com/views/entry/plea-bargaining-a-new-development-in-the-criminal-justice-system-html  (Last visited on September 24, 2022).


[1] 397 U.S. 742 (1970

[2] 404 U.S. 257

[3] AIR 1929 1977 SCR

[4] Garner A. Bryan black’s law dictionary (Tenth Edition page no 1339).

[5]Albert Alschuler W. The Prosecutor's Role in Plea Bargaining, 36 U. Chi. L. Rev 1968;50:50. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3606&context=uclrev

[6] Charge bargaining and sentence bargaining, available at: https://www.simmrinlawgroup.com/faqs/what-are-charge-bargaining-and-sentence-bargaining/ (last visited on September 26th 2022).

[7] {1980} 3 SCC 120

[8] Muralidhar Megh Raj v. State of Maharashtra AIR 1976 SC 1929

[9] AIR 1968 SC 1267

[10] State of Gujarat v. Natwar Harchandji Thakor, 2005 CriLJ 2957

[11] Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs, Volume 1, March, 14.10.3, 14.10.4, 14.10.5

[12] ibid

[13] Criminal Law ( Amendment) Act, 2005, Sec 265 A to 265L

[14] Section 265A CrPC

[15] Section 265L CrPC

[16] 397 U.S. 742

[17] 404 U.S. 257 (1971)

[18] Lott v. the United States, 367 US 421

[19] No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012 )

[20] Section 265B

[21] Ibid

[22] Section 265C CrPC

[23] Under Probation of Offenders Act, 1958

[24] Tina Wan, "The unnecessary evil of plea bargaining: an unconstitutional conditions problem and a not- so- least restrictive alternative", 17:1 Review of Law and Social Justice 2007

[25] Ibid

[26] available at https://www.apa.org/pubs/highlights/spotlight/issue-211 (last visited on 1st October 2022)

[27] supra.

[28] Editorial, "Speedy Justice: Delhi Court Decides 51 Cases in a Day" The Times of Inida (June 11, 2007)

[29] Rebecca Samervel, Drunk driving: Plea bargaining helps 22 men get away with fines in Mumbai, Aug 15 2022, Available at: https://timesofindia.indiatimes.com/city/mumbai/drunk-driving-plea-bargaining-helps-22-men-get-away-with-fines/articleshow/85339224.cms (last visited on 4th Oct 2022)

[30] Rosie Athulya Joseph, Plea Bargaining: A means to an end, available at

 http://www.manupatra.com/roundup/326/Articles/Plea%20bargaining.pdf  (Last visited on Oct 2, 2022).


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