A.D.R.

in criminal cases

Subject: Alternative Dispute Resolution

Submitted to: - Submitted by:-

Mr. H. Manu
ADHISH PRASad

Faculty of ADR Roll no: - 904

Semester: - 6th

Session: - 2013-18

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 .TABLE OF CONTENTS

1. OBJECT OF THE STUDY..4

2. SCOPE OF THE STUDY...................................................................................................4

3. HYPOTHESIS.....4

4. REASARCH METHODOLOGY....4

CHAPTERISATION
i. INTRODUCTION....................................................................................5-7

ii. RELRCANCY OF ADR..........8

iii. LRGISLATIVE INTENTS.........9-12

iv. APPLICABILITY OF ADR IN CRIMINAL CASES.....................13-28

v. CONCLUSION .........................................29

BIBLIOGRAPHY..................30

ACKNOWLEDGEMENT

I am very thankful to everyone who all supported me for I have completed my project effectively
and moreover on time. I am equally grateful to my ADR faculty: Mr. H. Manu He gave me
moral support and guided me in different matters regarding the topic. He had been very kind and

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patient while suggesting me the outlines of this project and correcting my doubts. I thank him for
his overall supports. Last but not the least, I would like to thank my friends who helped me a lot
in gathering different information, collecting data and guiding me from time to time in making
this project despite of their busy schedules ,they gave me different ideas in making this project
unique.

Thanking you

ADHISH PRASAD

OBJECT OF THE STUDY-

The object of study is to find out the applicability of ADR in criminal cases.

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 SCOPE OF THE STUDY-

The scope of study is to find out the legal implication of ADR in criminal matters

HYPOTHESIS-

ADR is applicable in criminal cases.

RESEARCH METHODOLOGY-

Researcher shall emphasize and use the doctrinal method to prepare this project
topic.

CHAPTER 1: INTRODUCTION

Unlike the suits and writs filed for a trial, alternate dispute resolution (ADR) is a kind of out of
court settlement. Alternative dispute resolution (ADR) is a process qualitatively distinct from
judicial process. It is a process where the disputes are resolved by third neutral party usually

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chosen them, where the neutral is generally familiar with the disputes of that nature, where the
proceedings are informal without procedural technicalities and are conducted in a manner agreed
to by the parties. ADR has gained significance in every possible civilized dispensation. ADR is a
process where the disputes are resolved with comparably less expenditure of time, talent and
money with the decision making process geared to delivery of substantial justice, maintaining the
confidentiality of the subject matter of the dispute. ADR in its wider perspective gains
various forms including arbitration, mediation, negotiation and conciliation. In the present time,
conciliation follows almost the same process as mediation. Arbitration includes resolving the
disputes by third party to make decision which is binding on both the parties. This is a binding
method of resolving the disputes and both the parties are expected to follow the same. Mediation
includes resolving the disputes by the third party by working on the dispute and settling it.
Unlike arbitration, the process of mediation is not a binding method. Negotiation is the process
where attorneys of the parties work together to settle the dispute.1

Considering our present criminal jurisprudence, the Constitution of India has stated some articles
for the same. For example, Article 20 is provided against double jeopardy 2. Once an accused is
acquitted for a crime done, he/she cannot be prosecuted once again. A fresh trial is impermissible
even if evidence not available at the first trial later on becomes leading to his involvement.
Article 22 guarantees a person arrested to be informed to the charge under which he/she is
arrested and seek legal assistance followed by producing of the person before the nearest
magistrate within 24 hours of the arrest.3

1 http://www.allaboutlaw.co./stage/areas-of-law/alternative-dispute-resolution,
Accessed on 23/04/2016

2 The Constitution of India, 1950

3 Ibid

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ADR as mentioned earlier is classified further into the branches of mediation, arbitration and
conciliation. Mediation and conciliation is more or less almost the same process. Mediation is a
settlement effort which utilizes the services of an impartial, third party, mediator in an effort to
reach an agreement to the dispute. Mediation in most of the cases would be facilitative,
encouraging the parties to settle the issues by the intervening procedure by the mediator. On the
other hand, there is a slight difference in the process of conciliation, where the conciliator tends
to take the procedure to evaluative mediation. The parties in mediation can agree to conciliate at
any point of time. Conciliation is officially recognized in India by the Arbitration and
Conciliation Act, 1996. The conciliated settlement agreement is given the same status as of a
decree of court. Unlike in the day to day courts litigation, in mediation, each party may on his
own on invitation to the mediator can present the dispute and ask the mediator to proceed with
the settlement of the case.4

Arbitration on the other hand is a process where the disputes are resolved by a distinct judicial
process with the binding decision. India has a comprehensive, contemporary and progressive
legal framework to support the process of arbitration. Party autonomy and maximum judicial
support with the minimum judicial intervention are the abiding features of the Arbitration and
Conciliation Act, 1996. Even the judiciary is in full support of arbitration. The court can even
stop a case from being carried on in a breach of an arbitration agreement 5. In arbitration, the
parties rely on third party decision maker to make binding judgments. Unlike mediation and
conciliation, arbitration makes judgments which are binding on both the parties and they have to
accept the same.

4 http://www.lawctopus.com/academike/criminal-cases-adr/, Accessed on
21/04/2016

5 Supreme Court of India suggested introduction of case management systems in a recent

judgment on 3 August 2005.

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Lokadalat is a system of alternate dispute resolution where the cases are sent for speedy justice
among the parties who are willing to settle the issue between them. Lokadalat is generally called
as Peoples court. The introduction of lokadalats added a new chapter to the justice
dispensation system. It is one of the components of ADR. Lokadalats are generally held
periodically to try such cases, which are presided over by retired judges, social activists, or other
members of legal profession. Earlier, there was panchayat system in India.

The disputes were referred to the panchayats and the decision of the panchayat was final and
binding. The main function of lokadalat is compromise between the parties. If both the parties
are willing to get the settlement as soon as possible, their cases are send to lokadalats. Hence,
lokadalats try to settle the matter between both the parties. The settlements made by the lokadalat
are binding on both the parties. No court fees are levied in lokadalats. Every lokadalat while
resolving any case shall be guided by the principles of justice and equality. In case, if the matter
is not resolved in the lokadalat, the matter again goes to the court. Hence it can be said that
lokadalat plays a vital role in resolving the matter through ADR with less expenditure of time
and money.6

In ADR, the third neutral party would be to identify the causes relating to the dispute and settle
the matter accordingly. ADR is a process of alternate dispute where no party wins or loses, but
every party walks out as a winner. It is basically a process for a compromise between two
disputing parties.

A new trend that can be noticed in the sphere of alternate dispute resolution is its applicability in
criminal matters. Mediation is one form of its kind where the issue of criminal justice is
concerned. Considering todays practicality in the courts of law, many of the judges pass on
some of the current running cases to be resolved in the lokadalats.7
6 Reported in The Hindu, 4 August 2005; Telegraph, 4 August 2005, Kolkata, p 1.

7 Ibid.

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So, ADR has a vital role to play in resolving criminal matters though not of heinous crimes. In
our criminal jurisprudence, the issue of various criminal cases are settled through ADR.
Especially mediation is used for settling such matters. Protection given through domestic
violence act has given a ray of hope to such matters but as newly introduced, it needs time to
totally get implemented in the Indian society.8 Many of such disputes if not settled in the courts
of law, ADR helps settling such matters.

CHAPTER 2: RELEVANCY OF A.D.R

By Oct. - 3, 2001 there were 2.03 crore backlog pending cases in District Court and High Court.
More than 80% cases were from seven states- Uttar Pradesh, Gujarat, Bihar, Karnataka, Madhya
Pradesh, West Bengal and Maharashtra. There were 35,57,637 case spending in different High
Court of the country. Five lakh of them are more than ten years old. Even the Supreme Court has
21,995 cases pending therein.

The Law Commission of India in its 120th Report (1987) 9observed that late disposal of backlog
cases is because of low judge per capita ratio in the country. The Indian judges are roughly 10.5
judges per million whereas the figure is more than four times in Australia, U.K., U.S.A. and
Canada. There was also a suggestion for increase in the number of judicial officers.

8 Nani A. Palkhivala, We the nation lost decade (1994), UBS Publications, p. 215.

9 Law Commission of India, 12th Report on Manpower Planning in Judiciary: A Blue print ,
July 1987, pp. 2-3.

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Because of overburdening of Courts with cases, there is gross neglect towards the status of under
trials. Flooding of cases led to increase in number of convicts and over population of prisoners.
Although there is a capacity of 2.56 lakh prisoners but there is more than 5 lakh prisoners which
are behind the prison.

The State govt. spend more than Rupee 55 per day on each prisoner and annual expenditure
comes upto Rs 361 crore. If we could have adopted different method (speedy trial) then the
situation would have been totally different. The State Government would be able to reduce the
number of under trials in the jails and also the huge expenditure could have been checked10.

CHAPTER 3: LEGISLATIVE INTENTS

FUNDAMENTAL RIGHT TO SPEEDY TRIAL

The Supreme Court, on various occasions, in its judgments, made it clear that speedy trial is of
essence to criminal justice and there can be no doubt that the delay in trial, by itself, constitutes
denial of justice11. In yet another case the Supreme Court states:

There can be no doubt that speedy trial, and by speedy trial we mean a reasonably expeditious
trial, is an integral and essential part of fundamental right to life and liberty enshrined in article
21.12

10 P.K.Singh Plea Bargaining, CBI , Bulletin, June- Dec. 2008, p. 14.

11 Hussainara Khatoon v. State of Bihar AIR 1979 SC1360

12 Maneka Gandhi v. Union of India AIR 1978 SC 597

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 CONSTITUTIONAL OBLIGATION

The preamble of the Constitution, enjoins the state to secure social, economic and political
justice to all its citizens, making the constitutional mandate for speedy justice inescapable. This
Directive Principle of State Policy directs the state to strive for reducing inequalities amongst
groups of people in different areas [art 38 (1)]. This is elaborated by specifically adding that:

The State shall secure that the operation of the legal system promotes justice, to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities (art 39A).

While interpreting this provision the Supreme Court held that:

Social justice would include legal justice which means that the system of administration of
justice must provide a cheap, expeditious and effective instrument for realization of justice for all
sections of the people irrespective of their social or economic position or their financial
resources.13

NEED FOR A FAIR JUDGE-POPULATION RATIO

The Law Commission of India has repeatedly recommended an increase in the judge-population
ratio. However, the same has not been accepted by the Government. The 120th Law Commission
Report stated:

If legislative representation can be worked out, as pointed out earlier, on the basis of population
and if other services of the state bureaucracy, police, etc, can also be similarly planned, there is
no reason at all for the non-extension of this principle to the judicial services. It must also be
frankly stated that while population may be a demographic unit, it is also a democratic unit. In

13L Babu Ram v. Raghunathji Maharaj and ors AIR 1976 SC 1734.

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other words, we are talking of citizens with democratic rights induding the right to access to
justice which is the duty of the State to provide.14

The 120th Law Commission Report, while recommending the five-fold increase in judicial
strength, at all levels of the Indian judiciary, from 10.5 to 50 judges per million of population,
also pointed out how Indias judge- population ratio stands in poor contrast when compared with
several other countries. However the government is still to take any action on the same.

CRIMINAL CASE MANAGEMENT SYSTEMS

In order to ensure fair, speedy and inexpensive justice, the Supreme Court 15has suggested a
model Case Flow Management System in which a judge or an officer of the court would be
required to set a time-table and monitor a particular case from its initiation to its disposal.

A bench comprising YK Sabharwal, DM Dharmadhikari and Tarun Chatterjee JJ, while

suggesting changes in CPC to incorporate recommendations by Justice Jagannadha Rao
Committee, pointed out that a study by the Committee had revealed that case management
system had yielded exceedingly good results in other countries.

In a judgment delivered on 3 August 200516, the bench further directed high courts to examine
the elaborate model Case Flow Management Rules framed by the Committee, headed by former
apex court judge and Law Commission Chairman M Jagannadha Rao J, and consider adopting it
with or without modifications within a period of four months.

14 Law commission Report

15 Supreme Court of India suggested introduction of case management systems in a recent judgment on 3/08/2005.

16 Reported in The Hindu, 4 August 2005; Telegraph, 4 August 2005, Kolkata, p 1.

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Though the court had upheld the constitutional validity of the amendments earlier, it had
appointed the Committee to frame modalities for the implementation of the provisions inserted
by the amendments. The judgment, delivered after the court considered the report, records the
suggestions made by the Committee.

The Supreme Court not only wanted to put cases on the fast track, it wanted them to be graded as
sprint, middle-distance and long-distance according to priority.17 Each category was to have its
own deadline.

Under the plan, which has yet to be passed into law by the Parliament, Track I cases are to
comprise of crimes punishable with death. So do cases of rape, other sexual offences and dowry
deaths. The endeavour is to complete the Track I cases within a period of nine months.

Other criminal cases where the accused have been denied bail and kept in jail custody are to be
Track II cases and are to be decided within a year. The 12 month deadline is to apply to Track III
cases, which relate to mass cheating, economic offences, illicit liquor tragedy and food
adulteration. Terrorism-related cases under special laws like (the now revoked) Prevention of
Terrorism Act, as well as drugs and corruption cases, are to be on Track IV, with a 15-month
deadline. All other criminal cases will be on Track V and must be disposed off in 15 months.
The Supreme Court has suggested that not only trial courts but each high court, too, classify
criminal appeals pending before it into different tracks on the same lines.

In most cases of prisoners where the accused are illiterate or poorly educated and lack the means
to hire a lawyer the Supreme Court judgment has suggested that they be allowed the services of
amicus curiae or state legal aid counsel.

As for writ petitions before high courts, those of habeas corpus must have highest priority. The
Supreme Court has ruled that high courts should issue notice at the first hearing of such writs and
make them returnable within 48 hours. Which means the government or the police must respond
within 48 hours of the notice being issued. Other writ petitions are to be classified into three
categories: fast-track (deadline: six months) normal-track (not more than a year) and slow-track.

17 Ibid.

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The last group of petitions, subject to pendency of other cases in the court, should ordinan, be
disposed of within a period of two years.

In civil cases, the court of appeal should consider if there is a possible of a settlement, between
the parties, at the first hearing, and the court concerned can, if it feels there is a possibility, make
a reference mediation or conciliation, for a settlement.

To administer the rule of law and justice, certain necessary steps need to be taken by the state. In
case of civil matters there are alternate options available such as alternate dispute resolution
mechanisms, thus there is a procedure by which pendency of cases can be tackled. However such
a facility is not available in administration of criminal justice. There is a need to evolve an
alternative approach of resolving criminal cases in a constructive manner. Although, there are
very few alternatives to prosecution in a criminal trial, however, the pre-trial processes of
investigation and prosecution can be rationalised, and alternatives founds to prolonged trial
procedures. Compounding of offences of less serious nature and plea bargaining are some areas,
which can help to speed up the trial and increase the conviction rate.

CHAPTER 3: APPLICABILITY OF A.D.R. IN CRIMINAL

CASES

The criminal jurisprudence is quite different from the ADR mechanism, as in the case of a
criminal dispute, penal provision is sought after to place a benchmark. In the case of ADR, some
kind of settlement that may not result into court proceeding is sought after.

A recent trend that can be noticed in the sphere of ADR is its applicability to the criminal
matters. Mediation is the most sought after form of ADR, where the issue of criminal justice is
concerned.

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In order to create a system to manage the backlog of cases in the Indian judicial system, a review
of the court system was undertaken by the Malimath Committee, and a series of
recommendations were made with the aim to reduce litigation and ensure that justice is made
accessible to the people at the minimum cost of time and money.18

Steps were taken by the Central Government to formally introduce the ADR mechanism into the
criminal justice system by passing an amendment of the National Legal Services Authority Act,
1987 thereby providing for the establishment of Permanent Lok Adalats and an introduction of
the concept of plea bargaining in India through the Criminal Law (Amendment) Act, 2005
embodied in the Chapter 21 A of the Code of Criminal Procedure, 1973.

Even the famous jurist Nani Palkhivala has said, The greatest drawback of the administration
of justice in India today is because of delay of cases. The 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.

It is the policy and purpose of law to have speedy justice for which efforts are required to be
made to come to the expectation of the society of ensuring speedy and unpolluted justice19. The
problem of delay and backlog of cases is rather more acute in criminal cases as compared to civil
cases.20 However, The Criminal Law (Amendment) Act 2005 has been introduced in order to
eradicate challenges in criminal cases.

18 Anonymous, Alternative Dispute Resolution in India, Astrea Legal Associates LLP,

<http://astrealegal.com/alternative-dispute-resolution-in-india/&gt;, Accessed on
23/04/2016

19 Anil Rai v. Satte of Bihar, AIR 2000 SC 3173.

20Supra 2.

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 1. PLEA BARGAINING:

Plea bargaining is an agreement in a criminal case in which a prosecutor and defendant

arrange to settle the case against the defendant. The defendant pleads guilty or prefers not to
contest, in exchange for some concessions from the prosecutor21. The idea of plea bargaining
is to save the Courts from conducting needless trials for every crime that is committed. Plea
Bargaining entails pre-trial negotiation between the accused and prosecutor, where the
accused has the option of admitting guilt and settling for lesser punishment. This is known as
sentencing bargaining22. In some cases the accused negotiate for the dropping of some of the
charges (in case of multiple charges), or settling for a lesser grave charge than one put by the
prosecution, in return for the plea of guilt is called charge bargaining. In the same cases the
accused settling for less incriminating prosecution of facts in return for a plea of guilt is
known as fact bargaining. Whatever the nature of case the accused is getting some
concession from the prosecution.

PLEA BARGAINING AND CRIMINAL LAW (AMENDMENT) ACT, 2005

A formal proposal for incorporating plea-bargaining into the Indian Criminal justice system was
put forth in 2003 through the Criminal Law (Amendment) Bill, 2003. The Bill was introduced in
the Upper House of Parliament on 22-8-2003 and referred to the standing committee. However,
because the Lower House of Parliament was dissolved on 6-2-2004, the committee could not
present its report.23 Subsequently it was re-introduced with slight changes through the Criminal
law (Amendment) Bill, 2005, which was passed by the Rajyasabha on 13-12-2005 and by the
21 Legal Service India

22 Legal Dictionary

23 Conference of the Chief Ministers and Chief Justices of various High Courts held on 18th
September, 2004

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Lok Sabha on 22-12-2005. The provisions were thus finally incorporated into the Code of
Criminal Procedure, 1973 of Chapter XXI A through the Criminal Law (Amendment) Act,
2005 w.e.f. 5th July, 2006.

APPLICATION OF PLEA BARGAINING UNDER SECTION 265 -A Cr. P.C.

The Plea Bargaining is applicable only in respect of those offences in which punishment
extends for a period of 7 years.

It does not apply where such offence affects the socio-economic condition of the country
which is notified by the Central Government or has been committed against a woman or a child
below the age of 14 years.

It does not apply to the cases, where the offence is punishable with death, life imprisonment or
of imprisonment more than 7 years.

Plea bargaining is not applicable to any Juvenile or Child as defined under Juvenile Justice
(Care and Protection of Children) Act, 2000. 24

PROCEDURE IN PLEA BARGAINING CASES

As per Section 265-B, the process of plea bargaining commences with an application made by
an accused. The application must be in writing with brief facts of the case supported with an
affidavit sworn by the accused affirming the genuineness of application as voluntarily submitted
with details of previous conviction, if any, of the accused. The application should be filed before
the trial court only.

24 Shree Rams The Law, Vol. II, Issue X October 2014, A monthly Journal cum Magazine on
Law and Judiciary.

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 Upon receipt of application, the trial court has to issue notice to prosecution either to Public
Prosecutor or to Complainant in Sec 190 (a) cases and also to the accused intimating the date of
hearing of application.

After receipt of notice from the court, the examination of accused shall be done in camera to
ensure the genuineness and authority of application. Before proceeding further, the court shall
ensure that the application is filed voluntarily by the accused.

After examination of the accused, if the court feels that the application is involuntarily
submitted or the accused is not eligible for plea bargaining on the ground of earlier conviction in
a case charged with same offence, the court has to drop the proceedings and proceed further with
the trial from the stage, wherein the application is entertained by the court.

After the examination of the accused, if the court feels that accused is entitled for plea-
bargaining, then proceed further for a settlement, giving time to prosecution and accused to work
out a mutually satisfactory disposition of the case. Mutually satisfactory disposition includes
awarding of compensation, charges and expenses to the victim of the case.

A notice to Public Prosecutor, Investigation Officer, Victim or defacto complainant and to the
accused must be given, in cases instituted upon police Report to work out the solution in a Joint
Meeting of the Parties.

In cases instituted otherwise than a police report, [or private complaint] notice shall be given
to the accused and the complainant / victim to participate in the Joint Meeting of the Parties.
The accused can be participated with his lawyer. However the actual presence of the accused
is required irrespective of a representation through the lawyer.

The Court shall ensure that every actions of the accused / Parties during the meeting is
voluntarily made and without any vitiating or coercive elements. The Presence of Judicial officer
is necessary, during the process of Joint meeting.

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 Under Section 265D, the trial court has to prepare a report, if a mutually satisfactory
disposition of the case has been worked out and such report shall be signed by the Presiding
Officer of the Court and the parties in the Joint Meeting.

If no satisfactory disposition is made, the court shall proceed with the case by dropping the
proceedings in plea bargain and start the proceedings from the stage, where in the application is
entertained.

Disposal of case on the basis of report:- After completion of Proceedings under Section 265-D
by preparing a report signed by the Presiding Officer of the Court and the parties in the meeting,
the court shall hear the parties on the quantum of punishment or accuseds entitlement of release
on probation of good conduct or after admonition court can either release the accused on
Probation under Section 360 of the Code of Criminal Procedure or under the Probation of
Offenders Act, 1958 or under any other legal provisions in force, or punish the accused by
passing the sentence.

The Court, at its discretion, may pass minimum punishment, if the law provides such
minimum punishment for the offences committed by the accused or if such minimum
punishment is not provided, the court can pass a sentence of one-fourth of the punishment
provided for such 21 offence. Apart from this, depending on the report on mutually satisfactory
disposition the court also grant compensation to the Victim.25

The court has to pronounce the Judgment under section 265 F is final and no appeal shall lie
against such Judgment. However such Judgments are subject to challenge under Articles 226 &
227 of the Constitution before the High Court by way of Writ Petition and under Article 136 of
the Constitution before the Supreme Court by filing Special Leave Petition. 26

25 Alternative Dispute Resolution by M.Sridhar, First Edition, Lexis Nexis Publication,

p.232

26 The Constitution of India, 1950

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 A court, which is proceeding on an application of plea bargaining shall have all the powers
vested with a court such as granting and rejecting bail, trial of offenders and other general
matters relating to disposal of case27.

Accused is entitled for setting off the period of detention from the sentence of imprisonment
under Section 265 E.

KINDS OF PLEA-BARGAINING
The kinds of bargaining are as follows:

1. Charge bargaining

2. Fact bargaining

3. Sentence bargaining.

1.Charge bargaining: It is the defendant who has to come to plead guilty for reduction of
charges. It occurs when defendant pleads guilty to necessarily included offences. 28For this
element, the prosecutor may offer to amend the charges to a lesser offense that carries a lesser
penalty. An individual charged with burglary, a felony, may be offered a chance to plead guilty to
criminal trespass, which is a misdemeanour. Alternatively, in return for a plea to a specific charge
such as driving under the influence, other charges arising out of the same event, perhaps driving
on a suspended license, might be dropped.

27 Section- 265 A (1)(a) of CrPC, 1973.

28 Daviv Levinson, Encyclopedia of crime and punishment (2003), vol.3, p.1147.

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Charge bargains can be used to avoid mandatory minimum penalties if a charge is changed to
one that does not have the same minimums, but the facts fit the alternate charge. The authority to
alter charges is within the complete discretion of the prosecutor.

2 .Sentence bargaining: In this instance, the prosecutor agrees to make a specific

recommendation to the judge of a sentence in return for a guilty plea. Most charges carry a wide
range of sentence possibilities. Given the range of possible outcomes, many defendants prefer
the certainty of a specific sentence rather than the uncertainty of a sentence following a guilty
verdict when the sentence is entirely at the discretion of the judge. Generally, sentence bargains
must be approved by the trial judge.

3.Fact bargaining It involves negotiations and admissions of certain facts stipulating to the
truth and existence of provable fact, thereby eliminating the need for the prosecutor to prove
them.29 This is a little used possibility and often happens in minor cases that may expose a
defendant to civil liability to a crime victim. Fact bargaining involves an stipulation to certain
facts or the introduction to certain evidence, thereby eliminating the need for the prosecutor to
have to prove them, in return for an agreement not to introduce certain other facts into evidence.
The defendant may then technically maintain a plea of not guilty, though it is understood he will
be found guilty.

A guilty plea is an admission that may be used against a defendant in another court proceeding as
to liability for specific acts. A finding of guilty after a trial is not such an admission. This process
achieves a conviction for the prosecution without a full trial, and avoids a court admission for the
defendant. In some jurisdictions this same result is achieved by a plea of no contest.

29 Supra 7.

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OBJECT OF PLEA BARGAINING

By introducing the concept of Plea Bargaining in the Criminal Procedure the object of the
legislature is;

1) To reduce the pending litigation.

2) To decrees the number of under trial prisoners.

3) To make provision of compensation to the victim of crimes by the accused.

4) To cut delay the disposal of criminal cases.

DRAWBACKS OF PLEA BARGAINING

Some of the major drawbacks of the concept of Plea Bargaining as is recognized in India are:-

1) Threat to right to fair trial.

2) Involving the Police in Plea Bargaining process would invite coercion.

3) By involving the court in Plea Bargaining process the court impartially is impugned.

4) Involving the victim in Plea Bargaining process would invite corruption.

5) If the plead guilty application of the accused in reject then the accused would face great

hardship to prove himself innocent.

EFFECT OF PLEA BARGAINING

In lieu to remove the backlog cases, the individual and the collective goal in regard to plea-
bargaining can only be achieved when judges, public prosecutors, accused, investigating officers
and the victims co-operate and work together.

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It leads to minimum risks of undesirable results for either parties; avoid the uncertainty of the
trial. The reason for plea-bargaining by either side may be several and are as follows:

1.Plea Bargaining In respect to victims:

a) He can easily get the compensation.

b) He can save himself from long drawn Judicial Process.

c) Less time and money consuming.

Although the crime is against the state and the society but it is ultimately the victim which need
to be satisfied. This plea-bargaining has come up as a victim oriented reform in the criminal
justice system. Perhaps, it is the first time that the recommendation and suggestion of law
commission in CrPC has been implemented for taking care of the interest of the victim. 30It
provides greater respect and consideration towards the victim and their rights. 31 There is a
scheme for compulsory compensation; and also satisfactory disposition of the case. The plea
bargaining also mandates for giving compensation to the victims of the crime. When the process
is complete and the quantum of punishment and possibility of the probation is finished, we can
say that the victims are not the forgotten actor rather they have become a key player in the
criminal justice system. The right of the victims are better upheld; and they do not have to satisfy
himself with the court decision. They can bargain over the courts decision.

The victim does not have to produce evidence in the Court and thus led to reduction in anxiety to
the victims and the unpleasantness of hearing all details of crime analyse in length in public 32.

30A.K.Sikri Reforming Criminal Justice System: Can Plea Bargaining Be The Answer?, NYAYA
DEEP, Vol.__,2006,p.39-60.

31 Ibid

32 Attorneys Paul Bergman & Sara J. Berman- Barett, The criminal law handbook: Know
your rights, survive the system, (1997) Berkkeley : nolo press.

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For those who do give evidence the process is often stressful 33. Due to Plea bargaining the victim
may even avoid the stress and publicity of trial; and even the courts time is saved.

2.Plea bargaining In respect to Accused:

The accused are the most benefited person of Plea Bargaining when they confess about the
crime. They can even save the Attorneys fee if they are represented by the Private Counsel. The
time consumed in Plea Bargaining is always less as compared to take the case in trial. The other
benefits are34:
a) In case of Minimum Punishment, he will get half punishment.
b) If no such punishment is provided, then he will get one fourth of the punishment provided.
c) He may release on probation or admonition.
d) He may get the gain of period already undergone in custody under section 428 of Cr.P.C.
e) No appeal lies against the judgment in favour of him.
f) Admission of accused cannot be used for any other purposes except for Plea-bargaining.
g) Less time and money consuming.
h) Getting Out of Jail.
i) Resolving the Matter Quickly.
j) Having fewer or less serious offences on Ones record
k) Avoiding hassles of finding a good lawyer for preparing for trial.
l) Avoiding Publicity.

3.Plea Bargaining in respect to Judges and Prosecutors:

Many judges and Prosecutors get powerful incentive because of crowded calendars and
overburdening of Prisons. Plea Bargaining may help court and prosecutors to manage
caseloads35. Judge even presides effective trials because of Plea bargaining, minimise risk of
ruling being overturned on appeal; and to avoid the necessity of making ruling during trial36.

33 Ashworth & Redmayne, The Criminal Process ed. 3rd, p. 283.

34J.Morgan and L.Zedner, Child victims: crime, impact, and criminal justice, 1992.

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 2. FAST TRACK COURT SCHEME

Under the Fast Track Court Scheme, a sum of Rs 502.90 crores was sanctioned as upgradation
grant for judicial administration for five years till 2005. At present, there are 1.8 lakh under-trials
in jails, on whose maintenance the Government was spending about Rs 361 crores a year at the
rate of Rs 55 per person, per day, in prison. About two crore cases were expected to be disposed
by 2005. If successfully implemented it would entail substantial saving in jail expenditure,
besides addressing a serious human rights problem

Fast track courts were set up first in India in 2001. In the report of Department of Finance, it was
stated that the proposed Fast Track courts would dispense long pending Sessions cases and also
help with the cases of vast under trial prisoners in the country who languish in court waiting for
their case to end, in some cases the number of years the under trial prisoners spend in the courts
are more than the maximum punishment they would get if convicted. A fast track case is heard
by the court on a day to day basis. These courts were funded by the Central government till the
year 2011 after which it stopped the funding. Presently, setting up and functioning of Fast track
courts is entirely dependent on the State government and these courts are administered by the
High Courts. The numbers of these courts have come down due to financial problems even when
the number of cases dispensed by them was high.37

WHICH CASES GO IN FAST TRACK COURTS?

35Stetan, J Kapsch, Plea Bargaining, The guide to American Law: Everyones legal
Encyclopedia, Minneapolis, MN; West, 1998.

36 http:// criminal. Findlaw.com/articles// 1491.html, Accessed on 22/04/2016

37 http://www.mightylaws.in, Accessed on 23/04/2016

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There are no guidelines as to particular cases that should be fast tracked. It has been observed
that cases that get much media attention are declared to be tried before the fast track courts.
Many intellectuals bash up this bias against other cases as it might be against the fundamental
right to equality which is guaranteed by our constitution. When a case is fast tracked because of
public pressure, the case tends to take more than average time in a Fast Track Court because
there is extra caution while performing each step and these is lesser chance of cutting corners. A
High Court can declare which case would be tried in a Fast Track Court.

Fast tracking a case is a good method to remove backlogs, but, each of these cases is more than
just numbers. There is no codified system to send cases to these courts and this can lead to
arbitrariness. Even though the achievements of these courts have been credible and as these
courts are also subject to the higher courts, there are proper sanctions to these courts they would
work properly only when they are not chalked out of the existing batches of Courts as is done by
some states.38

SOME NOTABLE FAST TRACK CASES:39

Best Bakery Case

This case could be one of the examples of how fast tracking a case can have serious
repercussions if the procedure and evidence are not taken properly by the court in the beginning
of a case. 14 people were burnt alive in one of the post Godhra riots in Gujarat in the city of
Vadodara in 2002. The case was tried in a Baroda Fast Track Court No.1 which amidst
allegations of faulty procedure acquitted the 21 accused. This trial was just 44 days long. The
court blamed the police for not investigating the case properly and also due to the fact that many
witnesses retracted their statement in the court. Even the High Court upheld the verdict and it

38 Law of Arbitration and Concilliation Including others ADRS by S.K Chawla, p.132

39 http://www.news18.com/news/india/3-486666.html, Accessed on 23/04/2016

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was not till the National Human Rights Commission intervened and petitioned to the Supreme
Court that the Re-trial was ordered by the court.

When the verdict by the Bombay High Court came in July 2012, upholding life imprisonment of
four people and acquitting five, many people were left dissatisfied. Timely investigation is of
great essence and due to the lapses in the conduct of the police as well as the Fast Track Court;
the Supreme Court observed that there has been gross miscarriage of justice.In a rare instance,
the SC had sentenced prime witness Sheikh to one year in prison for perjury in this case.

Jessica Lal Murder Case

When model and part time waitress Jessica Lal was killed by gunshot wound in 1999 in a party
in South Delhi, it would have been an easy investigation, but for the fact that the accused was the
son of a powerful politician. During the trial the three critical eye witnesses recanted earlier
statements made to the police and twenty-nine witnesses of lesser importance did the same. One
of the eye witnesses, Shyan Munshi, changed his testimony so completely that his revised
statement was used as evidence by the defense.

On February 2006, Sharma and other defendants were acquitted leading to a huge outcry. There
was petition to the then President as well as the Prime Minister by the public. When the decision
of the lower court was appealed, the High Court took the matter urgently and heard the case
without allowing many adjournments. Though this is not a case which was Fast Tracked
officially, many newspapers reported that the case has been fast tracked, referring to the nature of
the events. This case explains why every court can be a fast track court in India and making a
special court for controversial cases seems like giving a placebo to angry citizens.

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26/11 Mumbai case

When on 26 November, 2008, Ajmal Kasab and nine other gunmen attacked various places in
Mumbai killing 166 people; he was the only one who was caught alive by the police. There was
overwhelming evidence of his guilt including CCTV footage of him with the weapon in the
CST station, his confession as well as testimony by the people who survived the attack, DNA
match with the articles on the vessel hijacked by the terrorists and he was given a fair trial by
following the proper mechanism of the judicial system which took some time to reach a verdict.

The case of Ajmal Kasab, because of the nature of the offence (waging war on the nation, murder
of 166 people), was put on Fast Track Court in January, 2009. The prosecution filed a charge
sheet running into 11,000 pages. He was charged of at least 86 offences and was found guilty to
most of them by the court on May 6, 2010 and sentenced to capital punishment. This case went
into appeal to the High Court, then the Supreme Court and a Mercy Petition was applied for and
rejected by the President of India. The lone surviving terrorist was hanged four years after the
gruesome incident.

IS THIS COURSE AFFECTING THE PROCEDURE OF NATURAL JUSTICE?

One more similarity one would find in all these cases is that in each of them there was extreme
pressure on the judiciary as well as the executive to do their job. Each and every document was
being followed up by thousands of interested people. Fast Track Courts also have been known to
get unrealistic targets as compared to normal judicial process. According to the Department of
Justice, As per the latest available information received from the High Court /State
Governments, 32.34 lakh cases have been disposed off by these courts, out of 38.90 lakh
transferred to these courts leaving 6.56 lakh cases pending for disposal. After looking at this
data a question comes into mind that how such high numbers are achievable by remaining within
the principles of natural justice and whether these speedier disposals are at the cost of bypassing
the proper route necessary for both the victim as well as the accused.

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The long term problem of delay in deciding the cases can be checked by increasing the number
of permanent judges by five times the present number. Senior advocate of the Supreme Court,
Mr. Colin Gonzalves has been quoted in the Voice of America as saying that the present number
of judges in India is 12 per million people whereas in developing countries, it should be around
60 per million. Fast track courts are Sessions court with improved efficiency. They are a proof
that the system can work when it chooses to. By increasing the number of Judges, our country
can significantly decrease the chances of delayed justice and rebuild the faith in the Indian
Judiciary.40

3.COMPOUNDING OF OFFENCES: SECTION 320 CR PC

MEANING OF COMPOUNDING OF AN OFFENCE

The word compounding means the act of combining things to form a new whole. In section 320
of Cr.P.C, the word compounding means to combine the two rival parties by compromise.
Compounding of an offence means, in order to restore harmony between the victim and accused,
they resolve their disputes amicably and peacefully. And in case of compounding of an offence
the victim or the person against whom an offence is committed is given some gratification. The
gratification need not always necessarily be of a financial character. It is enough if it acts as an
inducement to the victim to abstain from the prosecution. And the victim, being gratified, desires

40 An introduction to ADR, by Dr. Anupam Kurlwal, Central Law publication, p.105

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to settle the dispute voluntarily, to abstain from the prosecution. It is laid down in the Section
320 of the Criminal Procedure Code that if the offence is compounded, composition shall have
the effect of acquittal.

WHO CAN COMPOUND AN OFFENCE?

Section 320 of Cr.P.C provides two tables, one in sub-section (1) and the other in sub- section
(2), each having three columns. The first column contains the name of offence, second column
contains section of the Indian Penal Code applicable and the third column contains person by
whom offence may be compounded. Both the sub-section (1) and sub-section (2) say that the
offences may be compounded by only the persons mentioned in the third column of those tables.
But the difference is that the offences mentioned in the first column of sub-section (1) can be
compounded without permission of the Court whereas the offences mentioned in the first column
of sub-section (2) can be compounded only with the permission of Court. If any person other
than the person so specified, in the third column, compounds an offence, it will not have the
effect of acquittal of the accused 41. Under sub-section (2) even the Supreme Court can grant
permission to compound an offence.42

Section 320 of Criminal Procedure Code (Cr PC) provides for compounding of offences. Part
one gives a list of offences which can be compounded without the consent of the court, while the
second part provides for compounding of serious offences with the courts permission. Some
examples of compoundable offences are causing hurt, wrongful restraint, criminal trespass,
adultery, enticing defamation, criminal intimidation and act caused by making a person believe
that he will be an object of divine displeasure.

41 Commentary on the Arbitration and Concillation Act, by Justice S.B. Malik, p.87

42 The Code of Criminal Procedure, 1973

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The second part deals with relatively serious offences that can be compounded with the courts
permission. Section 381 talks about theft by clerk or servant of property in possession of master,
where the value of the stolen property does not exceed Rs 250. As per s 320(2) the courts
permission has to be obtained to compound the offence. There are various other provisions in the
IPC that require that permission by the court be taken to compound the offence. 43 There is a need
to widen the scope of compounding offences with provision of details for procedure, principles
and safeguards to reduce the burden of prosecution and the trauma of trial.

If an offence falls beyond the scope of compounding, and where the trial is necessitated then the
accused must get a favourable and fair opportunity to voluntarily plead guilty but with certain
safeguards.

CHAPTER 5: CONCLUSION

After going through various books, online materials and other data sources, the researcher has
concluded that, his hypothesis is partially true,

ADR in criminal case are introduced in Criminal Justice System in the form of Plea Bargaining.
However the plea bargaining is applicable in selected criminal cases only. Plea bargaining will

43 Lectures on ADR System, by Dr. Rega Surya Rao, Andhra Law House, p.98

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not completely clear all back log criminal cases that will certainly help in reduction of pending
criminal cases to a large extent

The Justice delivery system in spite of innumerable draw backs and failings still command high
respect from the people. Their faith is our strength. Plea Bargaining is given a statutory
recognition in India as alternative dispute mechanisms despite objections from the bench and the
bar. The statistics reveal that in the USA, 70% of total convictions are secured as a result of Plea
Bargaining. The philosophy of alternative dispute resolution system is well settled as rightly
pointed by Abraham Lincoln discourage litigation, persuade your neighbors to compromise
whatever you can point out to them how the normal winner is often a looser in fees, expense,
cost and time. Litigation does not always lead to satisfactory results. It is expensive in terms of
time and money. A case won or lost in the Court of law does not change the mindset of the
litigants who continue to be adversaries and go on fighting in appeals after appeals. Alternative
dispute resolution system enables the change in mental approach of the parties. The technique of
Plea Bargaining will be a suitable answer to the over burdened criminal courts. The Parliament
has done its job by passing appropriate law on Plea Bargaining. Now the ball rolls over to the
Judiciary.

BIBLIOGRAPHY

PRIMARY SOURCE

STATUTE: -

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 The Constitution of India,1950
Code of Criminal Procedure, 1973
Legal Service Authority Act, 1987
The Arbitration and Conciliation Act,1996

SECONDARY SOURCE

BOOKS: -

Law of Arbitration and Concilliation Including others ADRS by S.K Chawla

Commentary on the Arbitration and Concillation Act, by Justice S.B. Malik
An introduction to ADR, by Dr. Anupam Kurlwal, Central Law publication
Lectures on ADR System, by Dr. Rega Surya Rao, Andhra Law House
Alternatvive Dispute Resolution, by M. Sridhar, Lexis Nexis

WEBSITES.

1. http://www.lawctopus.com
2. http://www.mightylaws.in
3. www.lawyersclubindia.com
4. www.allaboutlaw.com

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