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“Law Master’s” Publication “ADR in Criminal Matters”
Prof. S.D. Bhosale
(..7..)
ALTERNATE DISPUTE RESOLUTION IN CRIMINAL MATTERS
Question Bank
Q.1. Critically examine the provisions of plea bargaining adopted in criminal
administration of justice in India.
Q.2. Explain the meaning, essentials and significance of Negotiation.
Short Notes
1. Compoundable offences and ADR.
2. Plea bargaining.
Table of Contents
I. Introduction-...................................................................................................................60
II. Provisions of Plea Bargaining in CrPC:-......................................................................60
1. Applicability (S. 265-A):-..........................................................................................60
2. Application for plea bargaining (S. 265-B):-.............................................................60
a) Who files:-..............................................................................................................60
b) Content of application:- .........................................................................................60
c) Notice by the Court:-..............................................................................................61
d) Steps by the Court on appearance of parties:- .......................................................61
3. Guidelines for Mutually satisfactory disposition (S. 256-C):- ..................................61
4. Report of the mutually satisfactory disposition (S. 265-D):- ....................................61
5. Power of the Court in Plea Bargaining (S. 265-H):- .................................................62
6. No use of the statement of the accused (S. 265-K):- .................................................62
III. Conclusion:-.................................................................................................................62
“I Accept the Crime”
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“Law Master’s” Publication “ADR in Criminal Matters”
Prof. S.D. Bhosale
I. Introduction-
Resolving criminal matters through alternate dispute resolution is very common
in U.S. However, it was not inserted in Indian judicial system until recently i.e. in
2006.
In fact Indian criminal justice system was reluctant to adopt alternate dispute
resolution in its field. The Law Commission of Indian in its 142nd Report in 1991, in
its 154th Rent in the year 1996 and in its 177th report in 2001 had recommended to
apply plea bargaining in Criminal Procedure Code.
Justice Malimath Committee on “Reforms of Criminal Justice System”, had
endorsed various recommendations of the Law Commissions and favoured for
introducing ‘plea bargaining’ system in India. The Committee had submitted its report
in 2003.
II. Provisions of Plea Bargaining in CrPC:-
Upon various reports of Law Commissions and Committees, the Criminal
containing Ss. 265-A to 265-L, dealing with plea bargaining. The amendment was
effected in 2006.
We will discuss these provisions as follows-
1. Applicability (S. 265-A):-
Plea bargaining is available to the accused person who is charged for an offence
wherein the maximum imprisonment prescribed is up to 7 years. Moreover, it is not
available to an offence affecting socio-economic condition of the county. Also the
offence should not have been committed against a woman or a child below 14 years of
age. Moreover, this Chapter does not apply to juvenile as defined in Juvenile Justice
2. Application for plea bargaining (S. 265-B):-
a) Who files:-
An application for plea bargaining is to be filed by the accused.
b) Content of application:-
The application shall contain (i) a brief description of the case relating to which
the application is filed including the offence to which the case relates and (ii) shall be
accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred, (after understanding the nature and extent of punishment
provided under the law for the offence), the plea bargaining in his case, that (iii) he has
1 Henceforth for the sake of brevity called as “CrPC”.
2 S. 2 (k) “Juvenile” or “Child” means a person who has not completed eighteen years of age.
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“Law Master’s” Publication “ADR in Criminal Matters”
Prof. S.D. Bhosale
not previously been convicted by a court in a case in which he had been charged with
the same offence.
c) Notice by the Court:-
The court shall thereafter, issue notices to the public prosecutor concerned,
investigating officer of the case, the victim of the case and the accused, of the date
fixed for the plea bargaining.
d) Steps by the Court on appearance of parties:-
When the parties appear, the court shall examine the accused in-camera wherein
the other parties in the case shall not be present, with the motive to satisfy itself that the
accused has filed the application voluntarily.
3. Guidelines for Mutually satisfactory disposition (S. 256-C):-
The section lays down the procedure to be followed by the court in mutually
satisfactory disposition.
(i) In a case instituted on a police report, the court shall issue the notice to the
public prosecutor concerned, investigating officer of the case, and the victim of the
case and the accused to participate in the meeting to work out a satisfactory disposition
of the case.
(ii) In a complaint case, the Court shall issue a notice to the accused and the
victim of the case.
4. Report of the mutually satisfactory disposition (S. 265-D):-
This section talks about the preparation of the report of mutually satisfactory
disposition and submission of the same. There may come two situations namely,-
(a) If in a meeting, a satisfactory disposition of the case has been worked out, the
report of such disposition is to be prepared by the court. It shall be signed by the
presiding officer of the Court and all other persons who participated in the meeting.
The Court then, has to hear the parties on the quantum of the punishment or
Court can either release the accused on probation under the provisions of S. 360 of the
Code or under the Probation of Offenders Act, 1958 or under any other legal provisions
in force or (b) punish the accused, passing the sentence. While punishing the accused,
the Court, at its discretion, (i) can pass sentence of minimum punishment, if the law
provides such minimum punishment for the offenses committed by the accused or (ii)
if such minimum punishment is not provided, can pass a sentence of one-fourth of
the punishment provided for such offense.
(b) But if no such disposition has been worked out, the Court shall record such
3
अरापोको ताडकर / उसे चते ावणी, समज द
े
कर छोडना
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“Law Master’s” Publication “ADR in Criminal Matters”
Prof. S.D. Bhosale
observation and proceed further in the case, from the stage the application was filed (S.
265-E).
As per S. 428 of the CrPC, the accused gets benefit of a set-off, of the period of
detention already undergone by him (S. 265-I).
The Court shall deliver its judgment in the open Court and the same shall be
signed by the presiding officer of the Court (S. 265-F).
The judgment delivered by the Court shall be final and no appeal (except the
special leave petition under article 136 and writ petition under articles 226 and 227 of
the Constitution) shall lie in any Court against such judgment (S. 265 G).
5. Power of the Court in Plea Bargaining (S. 265-H):-
The section talks about the powers of the court in plea bargaining. A Court shall
have, for the purposes of discharging its functions under this Chapter, all the powers
vested in respect of bail, trial of offences and other matters relating to the disposal of a
case in such Court under the Criminal Procedure Code.
6. No use of the statement of the accused (S. 265-K):-
The statements or facts stated by the accused in an application under section 265-
B shall not be used for any other purpose except for the purpose as mentioned in the
chapter. In other words, the accused would not get any disability because of his
III. Conclusion:-
After inclusion of plea bargaining in CrPC, the courts also have accepted the
concept of alternate dispute resolution in criminal matters. It is evident from number of
judgments thereafter.
In Gain Singh v. State of Punjab
4 (7). S. 498-A whether compoundable?
The Supreme Court in the case of Ramgapal v. State of MP (2010) 13 SCC 540 and also in
Diwakar Singh v. State of Bihar4 decided in 2008 had suggested to the Law Commission of India to
make offence under S. 498-A, of IPC to e compoundable (i) to relieve courts of deciding cases in which
the aggrieved parties have themselves arrived at a settlement (ii) to facilitate reconciliation among
spouses.
As per the suggestion of Supreme Court, the Law Commission of India and the Government of
India decided to examine all aspects of S. 498-A and whether it can be made compoundable.
Accordingly, the Law Commission of India in its 237th report on “Compounding of some (IPC)
offences”, submitted in Dec, 2011 has suggested to make 498-A a non-compoundable to compoundable
offence with courts permission. S. 498-A prescribes punishment to a husband or his relatives who
subject his wife to cruelty.
However, the section could not until recently be made compoundable by the legislature.
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“Law Master’s” Publication “ADR in Criminal Matters”
Prof. S.D. Bhosale
(2012) 10 SCC 203.
The Supreme Court observed that, “the criminal cases having overwhelmingly and
pre-dominatingly civil flavour stand on different footing for the purposes of quashing
it, particularly the offences arising from commercial, financial, mercantile, civil,
partnership or such like transactions or the offences arising out of matrimony relating
to dowry, etc. or the family disputes where the wrong is basically private or personal in
nature and the parties have resolved their entire dispute. In this category of cases, High
Court may quash criminal proceedings if in its view, because of the compromise
between the offender and victim, the possibility of conviction is remote and bleak and
continuation of criminal case would put accused to great oppression and prejudice and
extreme injustice would be caused to him by not quashing the criminal case despite full
and complete settlement and compromise with the victim”.
Thus, the judgment upheld the inherent power of a High Court under S. 482 of
the CrPC, even of quashing proceeding before the lower courts.
The Supreme Court has affirmed victim’s interest and acclaimed his right of appeal in
following case.
In Malikarjun Kodgali v. State of Karnataka
(2019) 2 SCC 752
Three judge bench of the Supreme Court considered 154th Report of the Law
Commission of India submitted on August 1996; The Report of the Committee on
Reforms of Criminal Justice System commonly known as Justice Malimath
Committee; Draft National Policy on criminal Justice of July, 2007, known as the
Professor Madhava Menon Committee and 221st Report of the Law Commission of
Indian, submitted in 2009, and observed that “Parliament has been proactive in
recognizing the rights of victims of an offence. One such recognition is through the
provisions of Chapter XXI-A CrPC, which deals with plea bargaining. Parliament has
recognised the rights of a victim to participate in a mutually satisfactory disposition of
the case. This is a great leap forward in the recognition of the right of a victim to
participate in the proceedings of non-compoundable cases.
The Parliament has
amended CrPC introducing the right of appeal to the victim of an offence”.
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