India Criminal Defense Manual - Plea Bargaining/Guilty Pleas

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Introduction - The concept of Plea Bargaining has been recently introduced in India. By insertion of a new chapter XXIA consisting of 12 sections in The Code of Criminal Procedure, 1973 by act 2 of 2006. The Central Government has modified the offences affecting the socio-economic condition of the country, which have been kept out of the preview of Plea Bargaining. Not only the Plea Bargaining will expedite the disposal of the cases, it may also result in adequate compensation for the victim of the crime, since he along with the prosecutors will be in a position to bargain with the accused.

In order to bring about a substantial reduction of cases, other than cases involving capital punishment, life imprisonment or imprisonment for a term exceeding seven years, suitable instructions have been issued for proper implementation of the Plea Bargaining Scheme.


In the American legal system, there are essentially two types of guilty pleas: guilty and nolo contendere (or "no contest"). A plea of guilty is an admission that one has committed the crime in question, and an acceptance of the related punishment. A plea of nolo contendere allows the accused to accept the punishment related to the crime without admitting to the crime. It is instead a statement that the accused will not contest the charges levied against him. Courts in the United States very rarely accept nolo contendere pleas. The implications of a guilty plea go beyond claiming responsibility for an act and replace the role of a jury at a trial. In India the Plea Bargaining can be divided into three types:

1. Charge bargaining

2. Sentence bargaining

3. Fact bargaining

Guilty pleas are often entered as the result of a plea bargain or an agreement in which a prosecutor and a accused arrange to settle the case against the accused. The accused agrees to plead guilty to a specified charge in exchange for a mutually agreed-upon sentence, a sentence recommendation to the judge, or the dismissal or reduction of other criminal charges. Quite often, an agreement to testify against a co-accused is a condition of a plea bargain.

A guilty plea is formal admission of guilt and is the equivalent of a conviction. Most often, it occurs as part of a plea bargaining process which may result in reduced charges or an agreed-upon favorable sentence. The vast majority of criminal cases in the U.S. (probably more than 95%) are resolved through this procedure. Plea bargaining has only been introduced to Indian law since 2005 and is probably the most effective means for expediting cases.

Plea Bargaining are often entered as the result of a plea bargain or an agreement in which a prosecutor and an accused arrange to settle the case against the accused. The accused agrees to plead guilty to a specified charge in exchange for a mutually agreed-upon sentence or the dismissal or reduction of other criminal charges. Quite often, an agreement to testify against a co-accused is a condition of a plea bargain. Each type of Plea

Bargaining mention herein above involves implied reduction sentence, but differ in the ways of achieving reductions. The supervising judge must approve of any guilty plea or plea bargain. Generally a judge will authorize the plea if the accused makes a knowing and voluntary waiver of his right to trial, the accused understands the charges, and the accused makes a voluntary confession, in court, to the alleged crime. Even if an accused agrees to plead guilty, a judge may decline to accept the guilty plea and plea bargain if the charge or charges have no factual basis or support.

The court must also explain the nature of the crimes to which the accused is pleading guilty. For example, while a person not involved in the legal system by trade or experience may have a general notion of what a crime such as murder means, he may not understand the difference between murder and manslaughter. It is important for the accused to understand to what he is pleading guilty, so that he may better understand the potential ramifications beyond the courthouse and any legal penalties.

The following offences are excluded from the preview of the Plea Bargaining:-

a. Dowry Prohibition Act

b. The Commission of Sati Prevention Act, 1987.

c. The Indecent Representation of Women (Prohibition) Act, 1986.

d. The Immoral Traffic (Prevention) Act, 1956.

e. Protection of Women from Domestic Violence Act, 2005.

f. The Infant Milk Substitutes, Feeding Bottles and Infant Foods (regulation of Production, Supply and Distribution) Act, 1992.

g. Provisions of Fruit Products Order, 1955 (issued under the Essential Commodities Act, 1955).

h. Provisions of Meat Food Products Order, 1973 (issued under the Essential Commodities Act, 1955).

i. Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under Wildlife (Protection) Act, 1972.

j. The SC and ST (Prevention of Atrocities) Act, 1989.

k. Offences mentioned in the Protection of Civil Rights Act, 1955.

l. Offences listed in Sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

m. The Army Act, 1950.

n. The Air Force Act, 1950.

o. The Navy Act, 1957.

p. Offences specified in Sections 59 to 81 and 83 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.

q. The Explosives Act, 1884.

r. Offences specified in Sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1955.

s. Cinematograph Act, 1952.

When a court in India accepts a plea bargain, the guilty plea operates as a conviction, and the accused cannot be retried on the same offense by the same governmental entity. If the government breaches a plea bargain (for example, by arguing for a specific sentence when the agreement is that it will not do so), the accused may seek to withdraw the guilty plea, ask the court to enforce the plea bargain, or ask the court for a favorable modification in the sentence. If the accused breaches a plea agreement (for example, by refusing to cooperate in the prosecution of jointly accused persons), the prosecution may re-prosecute the accused.

Guilty plea and accompanying waivers must be voluntary!

In the Indian criminal justice system, a guilty plea that is the result of coercion or force is not acceptable to the court. The requirements discussed above are designed to provide the accused with a depth of knowledge required to make an informed decision. If, after being informed of the implications of entering a guilty plea, the accused chooses to enter that plea, it is considered to be a voluntary waiver of rights as specified above.

Factual Basis Determination

The court must also determine that there is a factual basis for the plea. Generally speaking, this is done through a "colloquy" or conversation between the accused and the judge in which the judge states the facts that the government believes it can prove and the accused states that he accepts those facts as true. The facts must support the crime to which the accused is pleading guilty.

Benefits of Pleading Guilty to the Accused

The result of a guilty plea is often a reduction in charges (e.g., murder to manslaughter). Also, at the Magistrates discretion, if the agreed upon sentence from plea bargaining is the minimum sentence allowed, the judge can choose to impose as little as half that sentence, at his own discretion. A trial never has a guaranteed outcome. No matter how strong either side's case may be, there is always the possibility of loss for either side. Pleading guilty removes the process and the uncertainty of the trial, and provides a guaranteed penalty. The stress of criminal prosecution can be great on the accused and his family, and even though a guilty plea is being entered, many accused persons may prefer to put an end to the ordeal and have