CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001

SEPTEMBER, 2024

RESEARCH PROPOSAL SUBMITTED IN PARTIAL FULFILLMENT OF

COURSE
COMPARTIVE CRIMINAL PROCEDURE
ON
“Comparative Study of Plea Bargaining in India & USA”

Proposal submitted by:

Supriya Gupta
Course: LL.M
Semester – 1st
Roll no.: 665
Session: 2024-2025
Proposal Submitted to:
Dr. Ganesh Prasad Pandey
Assistant Professor of Law
DECLARATION

I hereby declare that the case analysis entitled “Comparative Study of Plea
Bargaining in India & USA” submitted by me at CHANAKYA NATIONAL LAW
UNIVERSITY is a record of bona fide project work carried out by me under the
guidance of our mentor Dr. Ganesh Prasad Pandey, I further declare that the
work reported in this project has not been submitted and will not be submitted,
either in part or in full, for the award of any other degree or diploma in this
university or in any other university.

SIGNATURE OF THE STUDENT

ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is

inexplicable to an extent. This research work, although prepared by me, is a culmination of
efforts of a lot of people who remained in veil, who gave their intense support and helped me
in the completion of this project.

Firstly, I am very grateful to my mentor Dr. Ganesh Prasad Pandey, without the kind support
and help of whom the completion of this project was a herculean task for me. They donated
their valuable time from their busy schedule to help me to complete this project. I would like
to thank them for their valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project. I am also thankful to the library staff of my
college which assisted me in acquiring the sources necessary for the compilation of my
project.

Last but not the least, I would like to thank the Almighty who kept me mentally strong and in
good health to concentrate on my project and to complete it in time.

I thank all of them!

----

Supriya Gupta

Roll.no. 665

Semester: 1st

LL.M
Contents
INTRODUCTION.....................................................................................................................................3
PLEA BARGAINING IN USA.....................................................................................................................4
PLEA BARGAINING IN INDIA..................................................................................................................5
Application of Plea Bargaining:..........................................................................................................5
Application process:..........................................................................................................................5
Time limit:..........................................................................................................................................6
Guidelines for Mutually Satisfactory Disposition:..............................................................................6
Report and Disposal of Case:.............................................................................................................7
FAMOUS CASES ON PLEA-BARGAINING.................................................................................................9
PLEA BARGAINING IN INDIA AND USA: COMPARATIVE ANALYSIS.......................................................11
CONCLUSION.......................................................................................................................................12
BIBLIOGRAPHY.....................................................................................................................................13
INTRODUCTION

Plea bargaining has gained popularity globally as a method for resolving legal cases.
However, its application, scope, and functioning differ considerably between common law
and civil law systems. It is a process where the accused is asked to plead guilty in exchange
of the judge acting lenient while awarding punishment or considering the seriousness of the
offence. It is derived from the Latin phrase ‘Nolo Contendere’ which means ‘I do not wish to
contend’ i.e. a plea of ‘No contest’. Plea Bargaining is a situation where the accused admits
that the charges levelled against him are true and that he will not contend a query to the Court
to decide over his guilt.

The concept of Plea Bargaining was not originally introduced into the Indian legal system but
into USA. However, the Law Commission’s efforts promoted the insertion of the provisions
concerning Plea Bargaining via its 142nd, 154th, and 177th reports. A new chapter on ‘Plea
Bargaining’ was introduced into the Criminal Procedure Code based on the recommendations
of the Law Commission for certain offences.

Former Chief Justice of India, Y. K. Sabharwal (2005—2007), believed that introducing plea
bargaining in India would not only speed up the criminal justice process but also act as a
form of restorative justice, allowing victims to be equal participants and receive adequate
compensation. However, despite years of consideration, the Indian criminal justice system
has yet to implement plea bargaining.

The concept of ‘Plea Bargaining’ is operative in both India and USA but the practice is not
identical. However, it is pertinent to know about the concept of Plea Bargaining and
landmark cases associated to it in both legal systems separately for a fruitful comparison
between the two.
PLEA BARGAINING IN USA

Although the Sixth Amendment to the US Constitution did not explicitly address plea
bargaining, the US judiciary played a crucial role in establishing it. Plea bargaining was
formally recognized in the US through the 1971 case of Santobello v. New York. 1

This case is considered the starting point for plea bargaining, which has since become
widespread, with approximately 90% of criminal cases in the United States being resolved
through this process. The plea known as "nolo contendere" allows a defendant to avoid
contesting the case, leading to the resolution of a case every minute using this plea.

This plea can be seen as a conditional admission of guilt, as opposed to a direct guilty plea.
By choosing this plea, the accused agrees not to contest the charges, and the government
typically agrees to consider the defendant's guilt only in relation to the specific case at hand,
not for other charges.

It is important to note that the court has the discretion to accept or reject such a plea. If
accepted, it must be done without conditions, though the court must evaluate it based on the
specific facts and circumstances of the case. The prosecutor's consent is not required for the
court to accept the plea, though it can be a significant factor in the decision.

A significant development in plea bargaining jurisprudence came with the case of Lott v.
United States,2 which established that accepting a nolo contendere plea does not, by itself,
prove the accused's guilt, although it can be a contributing factor.

Plea bargaining is recognized in many cases across the United States, though there are
exceptions. Some legal experts argue that this "agreement" helps alleviate the judiciary's
workload significantly, despite concerns that it may sometimes involve coercion, forcing
defendants to choose between unfavourable options. The Brady v. United States 3case
affirmed that potential duress does not necessarily render the plea-bargaining process
illegitimate.

Historically, plea bargaining was not accepted by the American judiciary during colonial
times. However, it has evolved to become an integral part of the criminal justice system, to

1
404 U.S. 257.
2
367 US 421.
3
397 U.S. 742.
the extent that its removal would likely cause significant disruption. What began as a
carefully controlled practice is now prevalent in the majority of criminal cases in the United
States.
PLEA BARGAINING IN INDIA
The practice of plea bargaining was introduced in India in 2006. Under Section 289 BNSS,
plea bargaining can be pursued after a charge sheet has been filed under Section 193 BNSS or
when a magistrate has acknowledged the offence. However, it is not allowed for crimes that
carry the death penalty, life imprisonment, or a prison term exceeding seven years. It also
does not apply to offences impacting the country’s socio-economic conditions or those
committed against women or children. Section 290 BNSS outlines the procedure for plea
bargaining applications, requiring them to be filed within thirty days of the formal charges
being presented by the court. Additionally, this section provides up to sixty days for the
Public Prosecutor or Complainant, along with the accused, to negotiate and reach a
settlement.

Application of Plea Bargaining:

Section 289 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which corresponds to
Section 265A of the Code of Criminal Procedure (CrPC), defines when plea bargaining can
be used:

 It's available when police have filed a report under BNSS Section 193 (CrPC Section
173) indicating an offense, but only for crimes not punishable by death, life
imprisonment, or more than seven years in prison.
 It can also be used when a Magistrate has acknowledged an offense based on a
complaint, has examined relevant parties under BNSS Section 223 (CrPC Section
200), and has initiated proceedings under BNSS Section 227 (CrPC Section 204).
Again, this excludes offenses carrying penalties of death, life imprisonment, or over
seven years' imprisonment.
 Plea bargaining is not allowed for crimes that impact the country's socio-economic
conditions, or for offenses against women or children under 14.
 The Central Government has the authority to determine which offenses fall under the
category of affecting socio-economic conditions.

This section essentially outlines the scope and limitations of plea bargaining under the new
law, specifying when it can be applied and notable exceptions to its use.
Application process:
Section 290 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which corresponds to
Section 265B of the Code of Criminal Procedure (CrPC), outlines the process for initiating
plea bargaining:

 Timing: The accused has a 30-day window from the date charges are framed to
submit a plea-bargaining application to the court.
 Application requirements: The filing must include a brief case summary and an
affidavit. This affidavit must state that the accused is voluntarily seeking plea
bargaining, understands the potential punishment, and has not been previously
convicted of the same offense.
 Court's initial actions: Upon receiving the application, the court notifies both the
Public Prosecutor (or complainant) and the accused.
 Verification process: The court conducts a private (in camera) examination of the
accused to confirm the voluntary nature of the application. If the court is satisfied:
 It allows up to 60 days for all parties to negotiate a mutually agreeable
resolution, including victim compensation.
 If not satisfied that the application is voluntary, the court proceeds with a
regular trial.

This section essentially lays out the procedural steps and requirements for initiating the plea-
bargaining process under the new law, emphasizing the voluntary nature of the process and
the court's role in verifying this.

Time limit:
The plea-bargaining process has specific time constraints:

 Deadline for application: The accused must submit their plea-bargaining request
within a 30-day window, starting from the day charges are formally framed in court.
 Negotiation period: Section 290 of BNSS introduces a novel provision not present in
the current Section 265B of the Code of Criminal Procedure (CrPC). It grants a
maximum of 60 days for all involved parties to reach a mutually agreeable resolution.

This timeframe addition in the BNSS aims to provide a structured yet flexible period for
negotiations, balancing the need for efficient case resolution with allowing sufficient time for
thorough discussions between the accused, prosecutors, and potentially victims.
Guidelines for Mutually Satisfactory Disposition:
Section 291 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which corresponds to
Section 265C of the Code of Criminal Procedure (CrPC), outlines the notification process for
plea bargaining meetings:

 For police-initiated cases: The court notifies four key parties to join the meeting: The
Public Prosecutor, the investigating officer, the accused, and the victim.
 For non-police-initiated cases: The court sends notices to two main parties: the
accused and the victim.
 Voluntary participation and legal representation:
 The court takes steps to ensure that all parties are participating voluntarily.
 The accused is allowed to bring their advocate to the meeting if they wish.

This section essentially describes who needs to be involved in plea bargaining discussions,
emphasizing the importance of voluntary participation and the right to legal representation for
the accused.

Report and Disposal of Case:

Section 292 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), corresponding to Section
265D of the Code of Criminal Procedure (CrPC), outlines the outcomes of plea-bargaining
discussions:

 If a mutually agreeable resolution is reached, the court documents this in a report

signed by all involved parties.
 If no agreement is reached, the case proceeds to a regular trial.

Section 293 BNSS (equivalent to Section 265E CrPC) details how the court finalizes cases
resolved through plea bargaining:

 The court orders compensation for the victim.

 It hears arguments regarding the extent of punishment.
 The court considers probation or release under the Probation of Offenders Act, 1958.
 Sentencing guidelines:
 Generally, the court imposes half of the minimum prescribed punishment.
 For first-time offenders, the sentence is reduced to one-fourth of the minimum
punishment.
  In cases without a specified minimum punishment, first-time offenders receive
either one-fourth or one-sixth of the maximum possible sentence.

These provisions aim to balance justice for victims, leniency for cooperative defendants
(especially first-time offenders), and efficient case resolution.

Under Section 295 of the BNSS (which corresponds to Section 265G of the CrPC), the
court's decision made under this section is final. No appeals against such decisions can be
filed in any court, except through a Special Leave Petition under Article 136 or Writ Petitions
under Articles 226 and 227 of the Constitution.

According to Section 296 BNSS, the court has the authority to handle bail, trial of offences,
and other case-related matters as specified in this Code, in order to fulfill its duties under this
Chapter.

Section 468 of BNSS (which aligns with Section 428 of the CrPC) governs how the time an
accused has already been detained is credited against the prison sentence imposed under this
Chapter, using the same process applied to sentences under other sections of this Code.

Section 298 BNSS states that the provisions of this Chapter will take precedence over any
conflicting provisions in other sections of the Code. No other provisions should be interpreted
in a way that limits or alters the interpretation of this Chapter. For the purposes of this
Chapter, "Public Prosecutor" includes the Assistant Public Prosecutor as defined in clause (v)
of Section 2 and appointed under Section 19 of BNSS (which corresponds to Section 25 of
the CrPC).

Under Section 299 BNSS, despite any other laws, statements or facts provided by an accused
in a plea-bargaining application under Section 290 of BNSS (which corresponds to Section
265B of the CrPC) are to be used only as specified in this Chapter.

Section 300 BNSS clarifies that none of the provisions in this Chapter apply to juveniles or
children as defined in clause (k) of Section 2 of the Juvenile Justice (Care and Protection of
Children) Act, 2015.
FAMOUS CASES ON PLEA-BARGAINING

Vijay Moses Das v. CBI4

In this case, a man was accused of providing substandard materials to ONGC, exacerbating
issues at the wrong port and leading to significant financial losses for ONGC. The accused
sought to reduce his sentence through plea bargaining, and the other party was also willing to
pursue this option. The CBI investigated the case under Sections 420, 468, and 471 of the
IPC and ultimately had no objections to the plea-bargaining proposal. However, the trial
court rejected the plea-bargaining request, citing that the accused had not submitted an
affidavit as required under Section 265B. Therefore, plea bargaining was not permitted in this
case.

Ranbir Singh v State5

In this case, the petitioner challenged the sentence of six months' imprisonment and a Rs.
5,000 fine under Section 304A IPC, with an additional one month of imprisonment if the fine
was not paid, as well as a Rs. 5,000 fine under Section 279 IPC, with another month of
simple imprisonment for defaulting on the payment.

The Trial Court had the authority to impose only 1/4th of the maximum sentence, but it was
also required to consider mitigating factors. However, the Trial Court did not take any
mitigating circumstances into account when imposing the full penalty. The petitioner, who is
the sole breadwinner supporting two minor children and elderly parents, had compensated the
victims and submitted an affidavit from the legal heirs of the deceased, indicating that a
settlement had been reached and there was no ongoing dispute between the parties. The
prosecution, however, argued that reckless driving leading to deaths under Section 304A IPC
is on the rise and requires strict penalties to serve as a deterrent.

According to Section 265E CrPC, the Court has the discretion to enforce only 1/4th of the
fine, especially in cases where the parties have mutually agreed on a settlement. Furthermore,
the trial court’s decision is final, with no option for appeal as outlined in Section 265G of the
Code.

4
Cri. Misc. App.1037/2006.
5
CRL.M.C. 1705/2011.
The Delhi High Court ruled that although the petitioner should not be completely exempt
from imprisonment, given the mitigating circumstances, the full penalty imposed by the Trial
Court was excessive. The High Court reduced the sentence to four months' imprisonment
under Section 304A IPC and a Rs. 1,000 fine under Section 279 IPC.

Rahul Kumpawat v. Union of India6

In this case, the petitioner filed a miscellaneous criminal petition with the Rajasthan High
Court, challenging the trial court's decision to dismiss his application for plea bargaining. The
petitioner's counsel argued that the dismissal was without merit and lacked justification,
contrary to the intent of Section 265A of the Code of Criminal Procedure.

The counsel strongly asserted that the purpose of Section 265A is to expedite criminal trials,
and by ignoring this purpose in the current case, the trial court had misused its authority. The
Rajasthan High Court found these arguments to be valid and concluded that the trial court's
order should be overturned to ensure justice. Consequently, the High Court set aside the trial
court's order.

6
CRIMINAL MISC. (PET.) (CRLMP) No. 2257 of 2015.
PLEA BARGAINING IN INDIA AND USA: COMPARATIVE
ANALYSIS
While plea bargaining in India is often seen as derived from the US system, there are notable
differences:

1. Scope of applicability:
 US: Plea bargaining is available regardless of the offense severity.
 India: Limited to offenses with maximum punishments of less than seven
years.
2. Negotiation process:
 US: Negotiations occur out of court between prosecutor and defendant.
 India: Process starts with a formal application by the defendant, aiming to
reduce the risk of coercion.
3. Role of victims in proceedings: Under Indian law, the victim plays a significant role
in plea bargaining proceedings, including the authority to reject or block a plea deal if
an agreement cannot be reached. In contrast, in the USA, the victim does not have an
active role in plea bargaining processes.
4. Judicial oversight:
 US: Limited judicial involvement in the plea-bargaining process.
 India: Judges have the authority to review and potentially reject plea bargains
if they deem the agreed punishment unsatisfactory or unfair.
5. Finality: In the Indian legal system, if the court believes that the punishment given in
a plea-bargaining case is inadequate or affected by unfair conditions, it can be
overturned through a Special Leave Petition (SLP) under Article 136 or a writ petition
under Articles 226 and 227 of the Indian Constitution. In contrast, in the USA, the
decision is considered final.

These differences reflect India's attempt to adapt the concept to its legal system while
incorporating additional safeguards. The Indian approach emphasizes judicial oversight and
places limits on which cases are eligible for plea bargaining, contrasting with the broader
application in the US system.

While the core concept of plea bargaining is similar in both countries - allowing defendants
to negotiate reduced charges or sentences in exchange for a guilty plea - the implementation
and procedural details differ significantly, tailored to each country's legal framework and
priorities.

CONCLUSION

Although plea bargaining is a relatively new concept in India, it has developed over time with
significant efforts from the Indian Judiciary. Critics raise an important concern: in the pursuit
of expediting justice, is there a risk that true justice might be compromised, leaving the
accused overwhelmed by negative consequences.

In the USA, the conviction rate through plea bargaining is nearly 90%, while in India, it is
less than 10% of criminal cases. This difference arises from the varying practices of plea
bargaining between the two countries.

Despite the significantly lower conviction rate in India compared to the USA, plea bargaining
in India is effective in ensuring that it is pursued voluntarily. Although justice may be
delayed, it should not be denied. In India, an accused person engages in plea bargaining not
to escape a harsher sentence but as a voluntary choice. This means there's a lower risk of
punishing an innocent person through plea bargaining.

However, the urgent need for quicker case resolutions remains. Therefore, legislative reforms
and improved judicial infrastructure are essential to reduce the number of undertrial
prisoners.
BIBLIOGRAPHY
 Aggarwal, T., Rewari, S. (2006). Wanna Make a Deal? The Introduction of Plea
Bargaining in India. URL:
https://www.ebc-india.com/lawyer/articles/2006_2cri_12.htm.

 Alschuler, A. W. (1979). Plea Bargaining and its History. Law & Society Review.
Vol. 13. No. 2. Special Issue on Plea Bargaining. DOI:10.2307/3053250.

 Chandrasekharan Pillai, K. N. (2008). R. V. Kelkar's Criminal Procedure. Eastern

Book Company.

 Cheesman, S. J. A Comparative Analysis of Plea Bargaining and the Subsequent

Tensions with an Effective and Fair Legal Defence. Faculty of Law and Political
Science, University of Szeged. URL:
http://doktori.bibl.u-szeged.hu/2488/1/Samantha_Joy_Cheesman_ertekezes.pdf.

 Iovene, F. (2013). Plea Bargaining and Abbreviated Trial in Italy. Warwick School of
Law Research Paper. No. 2013/11. DOI: 10.2139/ssrn.2286705.

 Kathuria, S. (2007). The Bargain has been Struck: A Case for Plea Bargaining in
India. Special Issue on Alternative Dispute Resolution in Association with the
Singhania Chair on ADR Laws. Vol. 19. No. 2.