Author : Riddhi Vichare, SVKM’s NMIMS Kirit P. Mehta School of Law
To the point
Plea bargaining, introduced into Indian criminal jurisprudence in 2005, was seen as a revolutionary step to reduce pendency and ensure swift justice. Plea Bargaining refers to a negotiated arrangement that takes place specifically within the framework of the criminal justice system. It involves negotiations between the prosecution and the defence, where the accused agrees to plead guilty to a lesser charge or to one of multiple charges in exchange for benefits offered by the prosecution, which may include a reduced sentence or dropping of additional charges. This process aims to expediate court proceedings, reduce the burden on judicial system, and provide a resolution that is acceptable to both parties. While the mechanism expediates trials ad relieves overburdened courts, it has sparked concerns over its neglect of victims’ rights, particularly in terms of participation, compensation, and emotional justice. This article examines the procedural, ethical, and constitutional dimensions of how victims are treated in plea bargaining process in India.
Abstract
This article delves into the victim’s legal position in the plea bargaining process under Indian criminal law, critically analysing their right to participate, right to compensation, and access to justice under the constitutional umbrella. While the concept of plea bargaining was introduced to improve procedural efficiency, the article argues that victim satisfaction and restorative outcomes are often compromised. Using relevant case laws, international practices and constitutional values, the article recommends a shift towards a more victim centric model to ensure that plea bargaining serves all stakeholders in the justice system.
Use of Legal Jargon
Plea Bargaining was introduced into the Indian legal framework through the Criminal Law (Amendment) Act, 2005, enacted by the Parliament during the winter session of that year. This amendment introduced Chapter XXI-A to the Code of Criminal Procedure, covering Sections 265A to 265L. This procedural device involves the interplay of multiple legal principles such as mens rea, actus reus, judicial discretion, and victim compensation. The process necessitates in-camera proceedings to ensure confidentiality and mandates a pre-trial hearing before magistrate to ascertain that the plea is entered voluntarily, without coercion or undue influence. Furthermore, the role of the Public Prosecutor and the victim of the offence is integral to the process, especially under Section 265C, which requires the victims’ consent in cases eligible for mutually satisfactory disposition. However, the lack of enforceable standards for victim impact assessments and restitution raises constitutional concerns under Article 21 (right to life and personal liberty and) and Article 39A (equal justice and free legal aid), calling for a recalibration of the balance between restorative justice and judicial economy.
With the enactment of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS), which replaces the CrPC, the plea bargaining mechanism has been retained with minimal structural changes. The relevant provisions now fall under Chapter XXIII of the BNSS, reaffirming the legislatures continued emphasis on alternative dispute resolution within criminal trials. The essential features such as voluntary application by the accused, exclusion of serious offences, in camera proceedings and the role of victim and public prosecutor in mutually satisfactory dispositions; remain largely intact. However, the BNSS incorporates procedural modernization, encouraging digital filings and streamlining court interactions aiming to enhance the accessibility of plea bargaining within the evolving framework of Indian Criminal Law.
The Proof
India’s Criminal Justice System has long faced crises of delayed justice and judicial backlog. In light of the over 5 crore pending cases reported in 2024, plea bargaining was introduced as a mechanism to swiftly resolve minor and intermediate criminal matters. However, in its practical functioning, plea bargaining centres around efficiency over equity.
The victim, who suffers the direct consequences of crime, is often sidelined in a process that primarily focuses on the accused’s consent and the prosecutor’s convenience. Even though Section 265C mandates notice to the victim and gives them a say in the settlement, this role is largely symbolic, not substantive.
The absence of structured legal aid , counselling, or victim impact procedures renders the victim’s involvement weak, uninformed, or even coercively manipulated. Additionally, there is no statutory mechanism ensuring adequate or fair compensation, which results in victims walking away from courtrooms with no closure or justice.
Case Laws
State of Gujarat v. Natwar Harchandji Thakor, (2005)
This landmark case marked a turning point in the judicial perception of plea bargaining in India following its legislative introduction. The Gujarat High Court acknowledged the value of plea bargaining as a legitimate mechanism for ensuring inexpensive and speedy trials. The court, in this case, also clarified that such procedures must be voluntary, fair, and informed without compromising the broader objectives of justice. Importantly, the judgement implied that expediency should never come at the cost of justice to the victim, thereby reinforcing the need for a balanced approach.
Kasambhai Abdul Rehman Bhai Sheikh v. State of Gujarat; (1980) 3 SCC 120.
Delivered prior to the formal incorporation of plea bargaining into Indian Law, this judgement reflects scepticism towards negotiated justice. The Hon’ble Supreme Court held that the practice of plea bargaining was unconstitutional and illegal, asserting that it had the potential to encourage corruption, foster collusion, and pollute the sanctity of the justice delivery system. The observation was made in the context of a case where the accused had been convicted for the offence of food adulteration.
Thippaswamy v. State of Karnataka; (1983) 1 SCC 194
Although this case predates the enactment of plea bargaining provisions, it lays down a crucial principle: The importance of free and voluntary consent in accepting guilt. The Supreme Court emphasized that any admission of guilt must not stem from coercion or inducement. This principle remains highly relevant even today, especially where victims might be pressured into accepting reduced charges or inadequate reparations, thereby underscoring the need for a sensitive and regulated plea bargaining framework.
State v. Ram Singh; (2012) – (the Nirbhaya case)
While not directly related to plea bargaining, this high profile case is critical for understanding the legislative exclusion of certain offences from plea negotiations. The court strongly condemned any form of leniency in crimes involving violence against women and children, asserting that such offences shake the collective conscience of society. This judgement aligns with section 265A of CrPC which expressly excludes such grave offences from the scope of plea bargaining, thereby protecting the dignity and rights of vulnerable victims.
Conclusion
Plea bargaining was introduced to deliver faster justice, but its long term success depends on how well it respects the interests of all stakeholders, especially victims. While Indian law provides a theoretical seat at the table for victims, in practice, this seat is often empty or silent. Ensuring victim participation must go beyond mere procedure; it must translate into meaningful involvement, fair compensation, and emotional closure.
If justice is to remain both effective and equitable, the plea bargaining process must be reformed to shift from an accused centric model to a victim centric system, aligning with India’s constitutional promise of justice for all.
FAQS
Q : What is Plea Bargaining?
Plea Bargaining is a pre-trial negotiation process in criminal cases where the accused voluntarily agrees to plead guilty to a lesser offence or accepts a reduced punishment, in exchange for certain concessions from the prosecution. It is intended to ensure speedy disposal of cases, reduce judicial backlog, and offer a more efficient route to justice.
Q: For what types of offences is plea bargaining applicable in India?
In India, Plea Bargaining is permitted only for offences that carry a punishment of up to seven years imprisonment and do not involve the commission of a grave or serious crime. It is not permitted in cases involving offences against women or children below the age of 14, or in cases that affect the socio-economic condition of the country, as notified by the Central Government.
Q: What role does the victim play in plea bargaining?
The victim can participate in the mutually satisfactory disposition process under section 265C under CrPC which continues to exist as section 290 under BNSS. However, their role is often limited due to lack of awareness and representation.
Q: Can a victim challenge a plea bargain?
Under the CrPC or BNSS, there is no explicit provision that gives a victim the direct right to appeal or challenge a plea bargaining settlement. However, a victim may challenge the plea bargain in certain circumstances: if it can be shown that the plea was obtained through fraud, coercion, misrepresentation, or without proper judicial satisfaction as required under the law. Additionally, the victims may seek judicial review through a writ petition under Articles 226 or 227 of the constitution of India or approach the Supreme Court through Article 136 via a Special Leave Petition.
Q: Can the court reject a plea bargain application?
Yes. If the court finds that the application was not made voluntarily, or if it is related to an offence excluded under Section 265A, or if the accused does not fulfil the eligibility criteria, the court has the authority to reject the application and continue with the standard trial process.
