FINAL draft for partial fulfilment OF criminal law2 ON THE TOPIC:determinig appropriate punishment

PRESENTED BY: - KUMAR MANGALAM

B.A.LLB, 4th SEMESTER, 2nd YEAR
ROLL NO.:- 936
SUBMITTED TO: - father peter ladis
Date:1|Page

1. INTRODUCTION
One of the leading lawyer Nani Palkhivala, said: The greatest drawback of
the administration of justice in India today is because of delay of casesThe law
may or may not be an ass, but in India, it is certainly a snail and our cases
proceed at a pace which would be regarded as unduly slow in the community of
snails. Justice has to be blind but I see no reason why it should be lame. Here it
just hobbles along, barely able to work. Indias efficiency in crime investigation,
prosecution and trial process is under a shadow of doubt and crisis of credibility
because more than seventy per cent accused are acquitted. When it is difficult or
impossible to secure evidence to establish crime through able investigation,
what are the alternatives to send the criminals to jails? One limited answer is
plea bargaining where confessions will be bargained from criminal under
judicial supervision which might result in speedy trial and sentencing. This
article intends to examine the utility of plea bargaining. This research work will
also deal with various provisions related to trials, trial before a court of session,
trial of warrant and summon cases by magistrate, conclusion of the trial and case
laws related to it. Concept of fair trial is very recent concept, earlier it was not in
the society. With the passage of time and with establishment of court, gave rise to
concept of fair trial. It has been universally accepted that a person accused of any
offence should not be punished unless he has given a fair trial and his guilt has
been proved beyond reasonable doubt, fairness in trial is a relative concept and
could be measured only in relation to gravity of the accusation, the time and
resources which the society could reasonably afford to spend. Now, coming to
plea bargaining, it is also called plea agreement, plea deal or copping a plea,
which is an agreement between the prosecutor and defendant whereby the
defendant agrees to plead guilty to a particular charge in return for some
concession from the prosecutor. It is a Pre-Trial procedure whereby a bargain
or deal is struck between the accused of an offence and the prosecution with the
active participation of the trial judge. It can further be explained as:
(i)
(ii)
(iii)

Withdrawal of one or more charges against an accused in return for a

plea of guilty,
Reduction of a charge from a more serious charge to a lesser charge in
return for a plea of guilty.
Recommendation by the prosecutor to sentencing judges as to leniency
of sentence in lieu of plea of guilty.

Unlike the accused, victims in India have virtually no rights in criminal

proceedings, supposedly conducted on their behalf by state agencies. When state
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agencies fail to successfully prosecute offenders, as is oftentimes the case, victims

are left to either suffer injustice silently or seek personal retribution by taking
the law into their own hands.1 Ironically, the guilty man is lodged, fed, clothed,
warmed, lighted and entertained in a model cell at the expense of the State, from the
taxes that the victim pays to the treasury.

OBJECT OF THE STUDY

The researcher, by doing this research wants to achieve:1. Does every accused get a chance of fair trial before being punished?
2. What is plea- bargaining and its importance in determing appropriate
punishment?

SCOPE OF THE STUDY

The end product of this research work will be:1. Importance of plea- bargaining.
2. Correct way to determine appropriate punishment.
3. Application of various decided cases in present time.

HYPOTHESIS
The hypothesis of the researcher is that:1. The present way of trial is the appropriate way to determine punishment.

RESEARCH METHODOLOGY.
The researcher has used doctrinal method of research. The researcher has
confined his study to various books related to criminal law.
Primary sources: - Code of Criminal Procedure, 1973
Secondary sources: - N.V. Paranjape, the Code of Criminal Procedure, 4th
Edition, Central Law Agency publication; R.V. Kelkars Criminal Procedure, 6 th
Edition, various online database.

Taken from N.R. Madhava Menon, Victims rights and criminal justice reforms, The Hindu, Mar. 27, 2006,
available at http://www.thehindu.com/2006/03/27/stories/2006032703131000.htm.

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TENTATIVE CHAPTERISATION
1. Introduction
2. Trial before a court of sessions.
3. Trial of warrant and summon cases before magistrate
4. Plea-bargaining
5. Conclusion, criticism and suggestions

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2. TRIAL BEFORE COURT OF SESSIONS

It is settled principle of criminal law that a person who is charged of an offence
cannot be punished unless he has been tried by the competent Court and his guilt
is proved. The Public Prosecutor appointed under section 24 of the code
represents the state in all trials before the Court of Sessions and it is only he who
is entitled to conduct prosecutions in a Court of Sessions.2 When it appears to the
Magistrate that the case is triable exclusively by the Court of Session 3, he shall
commit the case to that court and send all the records, documents, and articles,
etc. to it, and remand the accussed to custody or grant him bail and notify it to
the Public Prosecutor. Then the public prosecutor will open the case before the
session court, by explaining the charge or charges brought against the accused
and the evidence he is going to produce to prove the guilt of the accused. If, upon
consideration of the record of the case and the documents submitted and after
hearing the submissions of the accused and the prosecution in this behalf , the
judge considers that there is no sufficient ground for proceeding against the
accused, he shall discourage the accused and the record his reason for so doing.
The Supreme Court, in the case of Alamoham Das v. State of West Bengal4 had
also observed that A magistrate holding injury is not intended to act merely a
recording machine. He is entitled to shift and weigh the material on record but
only for seeing whether there is sufficient evidence for conviction. if there is no
prime facie evidence or the evidence of totally unworthy of credit, it is the duty to
discharge the accused, and if there is some evidence on which a conviction mar
reasonably be based, he must commit the case.
The framing of charges are done, in the writing a charge against the accused, if
exclusively triable by the court. If the accused pleads guilty, the Judge shall
record the plea and may in his discretion, convict him thereon. 5 A plea of guilt is
no less than confession. If the accused wants to plea guilty he should do so
personally rather by doing it through legal counsel. But where the personal
attendance of the accused is dispensed with, he may plead guilty made by the
through his pleader.6 The Judge should take all such evidence as may be
produced in support of prosecution on the date so fixed. 7after hearing both the

Section 225 of chapter 18 of CrPC

Section 226 of Chapter 18 of CrPC
4
AIR 1970 SC 863
5
Section 229 of Chapter 18 of CrPC
6
Kanchan Baiv. State of Nagaland, 1983, CrLJ 57 (Gau).
7
Section 231 of Chapter 18 of CrPC
3

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prosecution and defence counsel, judge could order of acquittal or conviction and
finally judgement of acquittal and conviction should be given by the Judge.8

Section 234 and Section 235 of Chapter 18 of CrPC.

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3. Conclusion of the trial9

Once charge is framed in warrant cases, the Magistrate has no power to
discharge the accused. He must acquit or convict him unless he decides to
proceed under section 32510 or section 36011. When the proceedings have been
instituted upon complaint, and on any day fixed for the hearing of the case, the
complainant is absent, and the offence may be lawfully compounded or is not
cognizable offence, the Magistrate may, in his discretion, notwithstanding
anything hereinbefore contained at any time before the charge has been framed,
discharged the accused.12 Payment of compensation to those accused against
whom complaints of accusation were made without any reasonable ground.13
This section reserves the power to award compensation only to magistrate who
has heard the case and has set aside the conviction and sentence against the
accused, no other magistrate or the court of appeal can pass an order of
compensation under this section. This view finds support in the Supreme Courts
decision14 , where in the court ruled that the same magistrate who acquitted the
accused setting aside his conviction and sentence, alone can initiate action and
pass the final orders of compensation under this section.15

Section 248 to Section 250 of Chapter18 of CrPC

Magistrate could not pass sentence sufficiently severe.
11
Release of the accused on probation of good conduct or after admonition.
12
Section 249 of CrPC:- ABSENCE OF COMPLAINANT
13
Section 250 of CrPC :- compensation for accusation without reasonable cause.
14
Krishnarao Nirgire v. Junanath Laxman Kushalkar(1998) 2 SCC 355
15
Section 250 of CrPC
10

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4. Trial of warrant and summon cases

Warrant cases:A warrant case relates to offences punishable with death, imprisonment for life
or imprisonment for a term exceeding two years.16 The CrPC provides for two
types of procedure for the trial of warrant cases by a magistrate, triable by a
magistrate:a. Those instituted upon a police report and,
b. Those instituted upon complaint.
In respect of cases instituted on police report, it provides for the magistrate to
discharge the accused upon consideration of the police report and documents
sent with it. In respect of the cases instituted otherwise than on police report, the
magistrate hears the prosecution and takes the evidence. If there is no case, the
accused is discharged. If the accused is not discharged, the magistrate holds
regular trial after framing the charge, etc. In respect of offences punishable with
death, life imprisonment or imprisonment for a term exceeding seven years, the
trial is conducted in a Sessions Court after being committed or forwarded to the
court by a magistrate.

Summon Cases:A summons case means A case relating to an offence not being a warrant case,
implying all cases relating to offences punishable with imprisonment not
exceeding two years.17 In respect of summons cases, there is no need to frame a
charge. The court gives substance of the accusation, which is called notice, to
the accused when the person appears in pursuance to the summons. The court
has the power to convert a summons case into a warrant case, if the magistrate
thinks that it is in the interest of justice. No charge needs to be framed only the
particulars of the offence need to be conveyed to the accused. Accused may plead
guilty by post without appearing before the magistrate.18
In a case19, High court of Delhi ruled that where accused did not plead guilty, the
magistrate has simply to ask the accused if he had any defence to make and
nothing beyond that. The Magistrate could not at initial stage compel the accused
16

Taken rom http://www.article2.org/mainfile.php/0702/313/ at 12.00 on 21.04.2015.

Taken from http://www.article2.org/mainfile.php/0702/313/ at 12.08 on 21.04.2015.
18
http://hanumant.com/CrPC-DifferencesShortNotes.html at 12.17 on 21.04.2015
19
Sant Kumar Singh v. State 2005, Cri LJ 4760(Del.)
17

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to disclose his defence in detail. In the instant case, while giving the notice of
substance of accusation to the accused asking several question to accused to find
out whether he was driving offending vehicle rashly and negligently was liable to
set aside being beyond the ambit of the provisions contained in section 251 of
CrPC.

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5. Plea bargaining
The Indian concept of Plea Bargaining is inspired from the Doctrine of Nolo
Contendere.20 The doctrine has been under consideration by India for
introduction and employment in the Criminal Justice System. 21 Indian Criminal
Justice System has been ineffective in providing speedy and economical justice.
Because Courts are flooded with astronomical arrears, the trial life span is
inordinately long and the expenditure is very high. Subsequently majority of
cases are arising from criminal jurisdiction and the rate of conviction is very low.
Plea bargaining has been inserted through Chapter XXI A22 in the Criminal
Procedure Code. It provides for pre - trail negotiations between the defence and
the prosecution during which an accused might plead guilty in exchange for
certain concessions by the prosecution. The judge would decide if the plea
bargaining was resorted to with malafide or bonafide intention. There are certain
exceptions laid down to plea bargaining under the Bill. It has been proposed that
there will be no plea bargaining in three cases namely, offences against women,
children below the age of 14 years and socio-economic offences (like offences
under Food Adulteration Act etc). There can be plea bargaining for offences
where punishment prescribed is 7 years or less. Charge Bargaining is basically
an exchange of concessions by both the sides which may also mean that the
defendant will plead guilty to a less serious charge, or to one of several charges,
in return for the dismissal of other charges; or it may mean that the defendant
will plead guilty to the original criminal charge in return for a more lenient
sentence. Sentence bargaining is the process which is introduced in India where
the accused with the consent of the prosecutor and complainant or victim would
bargain for a lesser sentence than prescribed for the offence.
The salient features are as follows: The Plea Bargaining is applicable only in respect of those offences for
which punishment of imprisonment is up to a period of 7 years.
It does not apply where such offence affects the socio- economic condition
of the country or has been committed against a woman or a child below
the age of 14 years.
The application for Plea Bargaining should be filed by the accused
voluntarily.
A person accused of an offence may file an application for Plea Bargaining
in the court in which such offence is pending for trial.
20

A Nolo contendere plea is also referred to as a plea of No Contest. In criminal trials entering a plea of Nolo
Contendere is a plea in which the person charged with a criminal offense neither admits nor disputes the charges
brought against them. A Nolo Contendere plea, while not technically a guilty plea, will have the same
immediate effect as a guilty plea, and is often offered as part of a plea bargain. A plea by which a defendant in
a criminal prosecution accepts conviction but does not plead or admit guilt.
21
http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html visited at 12.40 on 21.04.2015
22
Chapter XXI A includes Section 265A to Section 265L.

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 The complainant and the accused are given time to work out a mutually
satisfactory disposition of the case, which may include giving to the victim
by the accused, compensation and other expenses incurred during the
case.
Where a satisfactory disposition of the case has been worked out, the
Court shall dispose of the case by sentencing the accused to one-fourth of
the punishment provided or extendable, as the case may be for such
offence.
The statement or facts stated by an accused in an application for plea
bargaining shall not be used for any other purpose other than for plea
bargaining.
The judgment delivered by the Court in the case of plea-bargaining shall be
final and no appeal shall lie in any court against such judgment
The 154th Report of the Law Commission points out that an order accepting the
plea passed by the competent authority on such a plea shall be final and no
appeal shall lie against the same.23 Plea bargaining cannot be availed of in respect
of offences punishable with a sentence exceeding seven years. In other words,
plea bargaining would not apply to serious offences. On July 11, 2006 the Central
Government actually issued a notification cataloguing 19 statutes as affecting the
socio-economic conditions of the country and the offences in those statutes now
stand excluded from the plea bargaining process.24 The positive aspect of PLEA
BARGAINING is that the offences in which a mutually satisfactory agreement can
be reached are limited. Secondly, the judge is not completely excluded from the
process and exerts supervisory control.25 Thirdly, the Act ensures that such an
opportunity will not be available to habitual offenders. Fourthly, the fact that the
Act does not provide for an ordinary appeal from the judgment in such a case is a
step towards expediting the disposal of cases.26 At the same time, a process for
reviewing illegal or unethical bargains does exist though it may be noted that
Article 136 of the Constitution does not confer a right of appeal on a party as
such but confers a wide discretionary power on the Supreme Court to grant
special leave. Also, though the remedy under Articles 226 and 227 of the
Constitution can be made use of, it is unclear whether the victim of the offence
can utilize this remedy. The Honble Supreme Court has criticized the concept of
Plea Bargaining in its judgment, Murlidhar Meghraj Loya v. State of
Maharashtra27
Call plea bargaining, plea negotiation, trading out and compromise in criminal
cases and the trial magistrate drowned by a docket burden nods assent to the
23

http://shodhganga.inflibnet.ac.in/bitstream/10603/32064/6/06_chapter%204.pdf VISITED AT 12.55 ON

21.04.2015
24
http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html visited at 01.00 on 21.04.2015.
25
http://www.ebc-india.com/lawyer/articles/2006_2cri_12.htm VISITED AT 4.00 ON 22.04.2015.
26
https://www.academia.edu/9589240/PLEA_BARGAINING_AN_ANALYSIS_IN_CONTEXT_OF_INDIA_
AND_United_Kingdom visited at 4.04 on 22 April, 2015.
27
AIR 1976 SC 1929.

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sub rosa anteroom settlement. The businessman culprit, confronted by a sure

prospect of the agony and ignominy of tenancy of a prison cell, trades out of the
situation, the bargain being a plea of guilt, coupled with a promise of no jail.
These advance arrangements please everyone except the distant victim, the
silent society
Further, the Honble Supreme Court in a case strongly disapproved the practice
of plea bargain.28 The Apex Court held that practice of plea bargaining is
unconstitutional, illegal and would tend to encourage corruption, collusion and
pollute the pure fount of justice. Similarly, in Kasambhai v. State of Gujarat29,
the Supreme Court had expressed an apprehension that such a provision is likely
to be abused.
Based on the recommendation of the Law Commission, the new chapter on plea
bargaining making plea bargaining in cases of offences punishable with
imprisonment upto seven years has been included in Crl.R.C and the same has
come into effect from 05.07.2006. A consideration of Chapter XXI-A dealing with
plea bargaining will show that certain procedure prescribed for plea bargaining
under Sections 265-A to 265-L of Cr.P.C are to be complied to make it a valid plea
bargaining.30 As per Section 265-A, the plea bargaining shall be available to the
accused charged of any offence other than offences punishable with death or
imprisonment or for life or of an imprisonment for a term exceeding seven years.
Section 265-B contemplates an application for plea bargaining to be filed by the
accused which shall contain a brief description of the case relating to which such
application is filed, including the offence to which the case relates and shall be
accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred, after understanding the nature and extent of the
punishment provided under the law for the offence, the plea bargaining in his
case and that he has not previously been convicted by a court in a case in which
he had been charged with the same offence. Sub-clause 4(a) is to the effect that if
the court is satisfied with the voluntary nature of the application, then it shall
provide time for working out a mutually satisfactory disposition of the case
which may include giving to the victim by the accused compensation and other
expenses. Section 265-C prescribes the procedure to be followed by the court in
working out a mutually satisfactory disposition. Section 265-D deals with the
preparation of the report by the court as to the arrival of a mutually satisfactory
disposition or failure of the same. Section 265-E prescribes the procedure to be
followed in disposing of the cases when a satisfactory disposition of the case is
worked out. Section 265-F deals with the pronouncement of judgment in terms
of such mutually satisfactory disposition. Section 265-G says that no appeal shall
lie against such judgment. Section 265-H deals with the powers of the court in
plea bargaining. Section 265-I makes Section 428 applicable to the sentence
28

Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr 1980CriLJ 553
AIR 1980 SC 854
30
https://www.academia.edu/9589240/PLEA_BARGAINING_AN_ANALYSIS_IN_CONTEXT_OF_INDIA_
AND_United_Kingdom visited at 4.30 on 22.04.2015
29

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awarded on plea bargaining. Section 265-J contains a non obstante clause that
the provisions of (2005) Cr.L.J.2957, the chapter shall have effect
notwithstanding anything inconsistent therewith contained in any other
provisions of the Code and nothing in such other provisions shall be construed to
contain the meaning of any provision of chapter XXI-A. Section 265-K says that
the statements or facts stated by the accused in an application for plea bargaining
shall not be used for any other purpose except for the purpose of the chapter.
Section 265-L makes the chapter not applicable in case of any juvenile or child
as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children)
Act, 2000.

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6. Conclusion
After doing the research work, the researcher has came to the conclusion that for
determining appropriate punishment, a fair trial should be initiated. The right
to equality before the law is sometimes regarded as part of the rights to a fair
trial. It is typically guaranteed under a separate article in international human
rights instruments. Fair trial is based on principle of natural justice. Constitution
of India also provide for fair trial of the accused. It has been universally accepted
in the present day of civilization that as a human value no person accused of any
offence should be punished unless he has been given a fair trial and his guilt has
been proved in such trial. The notion of fair trial cannot e explained in absolute
terms. Fairness is relative concept and therefore fairness in criminal trial could
be measured only in relation to the available time and resources and the
prevailing human values in the society. Article 21 provides the protection of life
and personal liberty means No person shall be deprived of his liberty except
according to procedure established by law. Article 20 of the constitution
provides protection in respect of conviction for offence, means No person shall
be convicted of any offence except for violation of a law in force at the time of the
commission of the offence, nor be subjected to penalty greater than that which
might have been inflicted under the law in force at the time of the commission of
the offence. However, justice and fair play require that no one be punished
without a fair trial. A person might be under a thick cloud of suspicion of guilt, he
might have been even caught red-handed, and yet he is not to be punished unless
and until he is tried and adjudged to be guilty by a competent court. In the
administration of justice it is of prime importance that justice should not only be
done but must also appear to have been done. Further, it is one of the cardinal
principles of criminal law that everyone is presumed to be innocence unless his
guilt is proved beyond reasonable doubt in a trial before a impartial and
competent court.
Therefore it becomes absolutely necessary that every person accused of crime is
brought before the court for trial and that all the evidence appearing against him
is made available to the court for deciding as to his guilt or innocence.
After so many provisions and laws people are still not having a fair trial which is
one of the main reasons for non determination of appropriate punishment.
The reasons that are cited for the introduction of plea-bargaining include the
tremendous overcrowding of jails, high rates of acquittal, torture undergone by
prisoners awaiting trial, etc. can all be traced back to one major factor, and that is
delay in the trial process. It is a weakness of our jurisprudence that victims of
crime and the dependents of the victims do not attract the attention of law. In
fact, the victim reparation is still the vanishing point of our law. This is the
deficiency in the system, which must be rectified by the legislature.

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Suggestions
One of the leading lawyer Nani Palkhivala, said: The greatest drawback of
the administration of justice in India today is because of delay of casesThe law
may or may not be an ass, but in India, it is certainly a snail and our cases
proceed at a pace which would be regarded as unduly slow in the community of
snails. Justice has to be blind but I see no reason why it should be lame. Here it
just hobbles along, barely able to work. The principle behind Indian Legal
System is that even if 100 criminals escape from getting punishment but a not
even one innocent person should be punished. In my opinion the establishment
of more speedy courts, mobile courts and establishment of more trial courts
could help in determing appropriate punishment. The public must have faith in
judiciary and other legal bodies. Some people only take the wrong way because
of the delay in justice. If the correct justice is done at correct time, then it may
happen that many crimes could be stopped.

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Bibliography
1. The Code Of Criminal Procedure, Dr. N.V. Paranjape, 4th Edition, reprint
2013, Central Law Agency.
2. R.V. Kelkars Criminal Procedure, K.N. Chandtashekharan Pillai, 6 th Edition,
2014, Eastern Book Company.
3. Professionals Code of Criminal Procedure, 1973, Professional Book
Publishers.
4.
5.
6.
7.
8.

http://www.thehindu.com/2006/03/27/stories/2006032703131000.htm.
http://www.article2.org/mainfile.php/0702/313/
http://hanumant.com/CrPC-DifferencesShortNotes.html
http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html
https://www.academia.edu/9589240/PLEA_BARGAINING_AN_ANALYSIS_IN_CO
NTEXT_OF_INDIA_AND_United_Kingdom

9. http://shodhganga.inflibnet.ac.in/bitstream/10603/32064/6/06_chapter
%204.pdf
10. http://www.legalserviceindia.com/article/l87-Plea-Bargaining.html
11. http://www.ebc-india.com/lawyer/articles/2006_2cri_12.htm

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