Introduction
The Plea Bargaining under BNSS refers to a legal deal where the accused party voluntarily pleads guilty to a lesser offense in return for a light sentence or punishment. It is like a type of agreement brokered between the defendant and the prosecution subject to court to ensure fairness. It should be noted that this principle was not originally found in India; it has its origins in the United States, where it grew to deal with the overwhelming burden of criminal cases and to assist in the speeding up of justice. It eventually evolved into a valuable tool for balancing the rights of the accused against the need for judicial productivity.
India, observing the success stories from the US, legally embraced this practice under the Criminal Law (Amendment) Act, 2005, which incorporated Chapter XXIA (Sections 265A to 265L) in the Code of Criminal Procedure (CrPC), 1973.
As the BNSS takes effect in 2023, the material of plea bargaining is retained in its essential idea but its language and form have been revised to serve modern-day procedural needs. Plea bargaining thus imitates a more aged philosophy of criminal justice while being guided by fairness and due process.
Legal Provisions on Plea Bargaining under BNSS
Under Section 289, Plea bargaining in the new Bharatiya Nagarik Suraksha Sanhita (2023) applies only to minor offences. It cannot be used for crimes punishable by death, life sentence, or more than 7 years’ imprisonment. It is also barred where the offence is deemed to affect the nation’s socio-economic interests, or if it was committed against a woman or a child. In practical terms, this means that only ordinary criminal cases are eligible.
If a police FIR (under Sec.193) or a Magistrate’s complaint case (after framing charge) meets these conditions, the court may entertain a plea-bargaining application.
Applying for Plea Bargaining Section 290, an accused person can propose plea bargaining, but only after charges are framed and only within 30 days of that event. The application must outline the facts of the case and be accompanied by an affidavit. The affidavit must confirm that the accused fully understands the punishment for the offence, is choosing plea bargaining voluntarily, and has never been convicted before of the same offence.
In short, the accused must honestly declare that the plea is by choice and that they have a clean record on that charge. For example, the law explicitly requires the plea-bargaining application to include “a brief description of the case and an affidavit stating that the accused has voluntarily preferred the plea bargaining in his case” and that he has no prior conviction for that offence.
Once the application is filed, the court immediately issues notices to the Public Prosecutor or complainant, the investigating officer in police cases, and the accused, and fixes a date for all to appear. On that date, the judge interviews the accused in camera privately, to confirm that the plea is truly voluntary. If the court is not satisfied, it rejects the plea-bargaining attempt and resume normal trial proceedings.
But if the court is satisfied that the accused is freely cooperating, it pauses the trial and allows up to 60 days for the parties to negotiate a mutually acceptable resolution. Negotiation and Report Sections 291–292. During the 60-day negotiation period, the court actively facilitates discussions.
If it is a police-case, the judge summons the Public Prosecutor, the investigating officer, the accused, and the victim for a meeting to work out the deal; if it began by complaint rather than police report, the judge meets with the accused and the victim only. Throughout, the court ensures the process remains voluntary and that each party may have a lawyer present.
If the parties reach agreement, the judge oversees preparation of a written report.
This report spells out the agreed terms and must be signed by the judge and all participants (the accused, prosecutor, complainant/victim, etc.) If no agreement is reached within the allowed time, Section 292 requires the court to record that fact and proceed with the trial as before Court’s Decision.
Sections 293–295: When a plea bargain is finalized, the court “disposes” of the case according to the agreed terms. In practice, this means the judge will give the promised compensation to the victim and then hear the parties on sentencing. The court may impose probation or release on good behaviour (Section 401 ofBNSS) if suitable. Otherwise, it must fix a prison sentence shorter than normal, typically, a fraction of the statutory minimum.
For example, if an offence’s law prescribes a certain minimum jail term, the court may impose half of that minimum (and if the accused is a first-time offender with no prior convictions, just one-fourth of the minimum). If the offence was not covered by that rule, then the court may impose one-fourth of the maximum allowed, or one-sixth if first-offender. In all cases, the idea is clear: the sentence is much lighter than usual in exchange for plea and efficiency.
Once decided, the court delivers its judgment in open court and signs it (Sec. 294). The judgment must explicitly state the agreed terms and reduced sentence.
Under Section 295, that judgment is final the normal right to appeal is waived. No appeal is allowed against a plea-bargaining sentence, except that the accused could still seek extraordinary remedies (a writ or a Supreme Court special leave petition under Articles 226, 227 or 136 of the Constitution). In other words, once the plea bargain sentence is pronounced, the case is essentially over.
Throughout this process, the court retains full control over bail, the trial timetable, and the case in general, using all its usual powers. Importantly, any time already spent in custody is credited to the accused’s sentence (Section 297) so that the accused cannot be punished twice for the same period.
Section 298 makes it clear that these plea-bargaining rules override any other provisions of the BNSS nothing else in the law can dilute or nullify the special plea-bargaining chapter. Moreover, Section 299 protects the accused by declaring that any statements or information given during the plea negotiations cannot be used against them elsewhere.
In other words, what an accused says in the plea-bargaining application or discussions “shall not be used for any other purpose” except the plea-bargaining process itself.
Finally, Section 300 explicitly excludes juveniles/children from this scheme.
In short, the BNSS plea-bargaining provisions strive to ensure both fairness and prompt justice, freeing courts to focus on serious crimes while letting minor offenders receive proportionately lenient treatment once they accept guilt.
Procedure for Plea Bargaining under BNSS
While discussing eligibility, only offences punishable with up to 7 years (not involving women, children, or notified “socio-economic” crimes) may use plea bargaining.
The application as mentioned in Section 290, the accused must apply within 30 days of framing of charge, filing a case summary and an affidavit stating the plea is voluntary and that he has no prior conviction for the same offence.
Then the court summons the prosecutor, investigating officer, victim and accused. In an in-camera session, the judge privately questions the accused to confirm the plea is uncoerced.
When it comes to negotiation if the plea is voluntary, the court allows up to 60 days for the prosecution, accused and victim to negotiate a settlement. During settlement or trial if an agreement is reached, the judge records the settlement in a report signed by all participants.
The court then disposes of the case per Section 293; it enforces the agreed compensation and may place the accused on probation or impose a reduced sentence (e.g. as low as half or one-fourth of the minimum term for first-time offenders). If no deal is reached, the trial proceeds normally.
While passing Judgment, the final sentence is pronounced in open court. It is binding and final: no ordinary appeal lies (only special leave petition to the Supreme Court or writ petition). Statements by the accused in a plea application cannot be used in other cases. Plea bargaining under BNSS is not available to juveniles or children.
Overall, the BNSS plea-bargaining scheme is designed as a transparent, victim-inclusive process that speeds up case resolution while protecting all parties’ rights.
Types of Plea Bargaining under BNSS
Plea bargaining under BNSS 2023, is based on the same fundamental principles that were established in the Criminal Procedure Code (CrPC), 1973. Although the BNSS does not firmly establish various forms of plea bargaining, Indian jurisprudence based on comparative law and practice identifies three main arrangements, namely charge bargaining, sentence bargaining, and fact bargaining. Every one of them serves a purpose, but they all have the basic aim of obtaining faster and more equitable convictions in criminal cases while reducing the load of the courts.
Charge Bargaining
In charge bargaining, the suspect gives consent to enter a guilty plea to a charge that is lower than the original charge. This helps the defense and the prosecution avoid drawn-out trials. For example, to receive a lighter sentence, an accused person may agree to enter a guilty plea to the charge of simple hurt if he is charged for grievous hurt.
Because it lessens the gravity of the charge and allows the prosecution to secure a conviction without having to deal with the whims of a trial, this strategy benefits the accused.
Sentence Bargaining
When a suspect enters a guilty plea to the original charge in exchange for a lower or lesser sentence, this is known as bargaining on sentence. For example, the prosecution and the accused may agree that the accused will only receive probation or one year in jail instead of three years.
This kind of negotiating is common in India and is even more suited to the BNSS rules, which allow courts to impose probation or lower penalties once both parties reach a mutually agreeable agreement.
Fact bargaining
And then there is fact bargaining. In such an occurrence, the accused will agree to plead to some facts or aspects of the crime in exchange for the prosecution’s promise not to introduce particular facts or evidence.
For example, an accused can plead to the fact of having stolen property if the prosecution promises not to say anything about any charges of theft. Even though this is a notion, fact bargaining is practiced less in India, because at times it can affect the evidentiary value of the case.
Although these three forms of bargaining are not directly codified in the BNSS, they function within its judicial process as structured in Sections 289 to 303. The statute offers that all plea bargaining shall be done freely, under the supervision of the judge, and with no coercion. The aim continues to achieve justice that is both efficient and equitable providing the accused with a chance for lenience while ensuring that the process maintains the integrity of the criminal justice system.
Case Laws on Plea Bargaining under BNSS
In the early years, Indian courts were hostile to plea deals. In Kasambhai Abdul Rahmanbhai Sheikh v. State of Gujarat (1980), the Supreme Court struck down a negotiated guilty plea as unconstitutional and against public policy. It held that a sentence induced by promises of leniency violated the accused’s right to a fair trial under Article 21.
By contrast, the tone shifted after the 2000s when backlogs became crushing. For example, in State of Gujarat v. Natwar Harchandji Thakor (2005) the Gujarat High Court recognized the utility of plea bargaining in reducing congestion.
It cautioned only that not every guilty plea is ipso facto a plea deal; each case must be examined on its facts. The court noted that negotiated resolutions could advance the goal of “fast, economical, and effective justice” by clearing routine cases more quickly.
Later judgments have similarly observed that voluntarily negotiated pleas with judicial oversight can speed up trials without short-changing defendants’ rights. Together these decisions chart a clear evolution.
What once was deemed illegal is now seen as a practical tool when used properly. Notably, the new Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 formally codifies plea bargaining in Chapter 23 (Sections 289–300)., reflecting this modern approach under law.
Benefits of Plea Bargaining in Criminal Justice System
Plea deals let courts swiftly dispose of minor cases without undergoing lengthy trials. Instead of months or years of hearings for every theft or simple assault, a negotiated guilty plea can conclude the case in weeks. This speed helps chip away at the backlog of pending cases. By skipping a full trial, both the government and the defendant save time and the system saves money.
Each plea bargain cuts out many hearings, witnesses, and complex arguments. This reduces expenses for everyone involved the courts spend less time, police and lawyers spend less effort, and defendants pay far lower fees. The cumulative effect is significant savings on public and private resources.
The BNSS framework explicitly involves victims in plea negotiations. Victims are notified and can attend the bargaining meeting, and any approved deal must “grant compensation to the victim.” This means a person harmed by a crime can get payment and a sense of closure much sooner than if the case went to trial. In practice, plea bargaining often spares victims the ordeal of a lengthy trial; while still ensuring they receive restitution.
Plea bargaining opens the door to non-prison sentences. Under Section 293 of the BNSS, once a plea deal is approved, the court “shall award compensation to the victim” and then may release the accused “on probation or after admonition”.
In other words, a first-time offender might be sent to probation or given a warning instead of jail. If a prison term is imposed, it can be much shorter than normal often as low as half the minimum sentence (or even a quarter for first-timers)
By settling routine cases through plea deals, judges are freed to concentrate on serious or complex trials. The law itself limits plea bargaining to lesser offenses (those punishable by under 7 years), so that courts can focus “their time and resources on more serious offences”. In practice, simple disputes petty thefts, minor frauds, etc can be removed from the docket quickly, making the justice system more responsive to urgent cases without sacrificing fairness in the most serious matters.
Challenges and Criticism of Plea Bargaining in India
Despite these benefits, plea bargaining in India has some serious concerns. Poor or uneducated defendants may feel they have no real choice. Studies warn of indirect coercion, especially in the case of poor or illiterate accused persons. In practice, many undertrial prisoners may plead guilty “simply to avoid prolonged detention, even if they are innocent”. In other words, someone desperate to get out of jail even a genuinely innocent person might accept a deal just to escape uncertainty. This risks guilty pleas that are not truly voluntary, undermining justice.
The plea-bargaining process is still new and not widely understood. Many defendants and even some lawyers, police, and judges simply don’t know how it works. The system has seen limited use partly because of this lack of awareness among the accused, police, prosecutors, and even some members of the judiciary.
Without proper education and training, eligible people might never try a plea deal, or might enter one by accident. Public seminars, legal aid counsel, and clear court procedures are needed so bargaining remains an option, not a mystery. Many courts remain uneasy about plea bargaining. Even years after the law was passed, the mechanism is still largely underused due to judicial reluctance.
Judges may worry that plea deals could let offenders off too lightly, or that the process is too much like a private contract and not a formal finding of guilt. As a result, plea bargaining has been applied unevenly across India. Until courts fully trust the many judges may avoid approving bargains except in very clear-cut cases.
There is a danger that prosecutors and police might push hard for quick resolutions. Outside observers note that plea bargaining can become a prosecutor-driven process with limited judicial oversight. If the police or government are only evaluated on closure rates, they might coerce or cajole deals at all costs.
In the worst cases, that could lead to wrongful convictions, with innocent people frightened into plea deals by threats of harsher punishment. Ensuring an independent judge calls the shots at each stage is crucial to prevent such abuses.
Culturally, pleading guilty carries a heavy stigma. Conviction even with a short sentence creates a criminal record that can follow a person for life, affecting jobs and social standing. In other words, many defendants fear the lifelong mark of admitting guilt.
This means some guilty people might refuse a legitimate deal, and more dangerously, innocent people who do plead guilty could find themselves ostracized or trapped by that confession.
Victims sometimes worry that justice is being bargained away. Because plea bargaining involves negotiation, some victims feel their voice is sidelined. Critics point out the process may be insensitive to victims, leaving them feeling that justice was compromised when an offender gets off easy.
Safeguarding victims’ interests by requiring compensation and letting them participate helps, but courts must guard against any sense that the deal short-changed the harmed person.
These criticisms underline that plea bargaining cannot be a blunt instrument.
Conclusion
Plea Bargaining under BNSS 2023 is a bold experiment. It promises to speed up justice and lighten prisons, while still holding wrongdoers to account and paying victims what they deserve. By letting an accused negotiate a lesser sentence in open court, India aims to clear years of backlog and save litigation costs for everyone involved.
However, the system will only succeed if used responsibly. Courts must vet every deal rigorously. Judges are required to ensure every plea is truly voluntary for example, by examining affidavits and questioning the defendant under oath.
If there is any sign of coercion or unfairness, the judge should reject the plea so the full trial goes on. BNSS also guarantees that victims get paid and that statements in plea talks can’t be used elsewhere, which helps protect everyone’s rights.
With strong oversight, public education, and clear rules, plea bargaining can make India’s justice more responsive and humane: freeing accused people from endless detention when appropriate, giving them a chance to reform for example through probation, and delivering quicker justice and compensation to victims. In short, it can reduce delays and uphold fairness but only if courts remain vigilant and fair during every step of the process.
About Author
Shreeya, is a penultimate year law student at B.M.S. College of Law, Bengaluru, with a strong interest in Criminal and Family law. Passionate about legal research and reform, she aspires to use her work to bring meaningful change in society and make law more accessible.
FAQ
- Who is eligible for plea bargaining, and which cases are excluded?
Under BNSS Section 289, plea bargaining applies only to crimes punishable by up to 7 years of prison. It explicitly excludes the most serious offences – anything punishable by life imprisonment or death – as well as any crime “affecting the socio-economic fabric” (e.g. corruption, terrorism) and all offences against women or children. Minors are also barred. Section 300 of BNSS says the plea process does not apply to juveniles. - What protections ensure plea bargains are fair?
Several safeguards are built in. First, every accused must swear the plea is voluntary and the court tests them under oath before allowing negotiations. Neither a judge, nor a policeman nor prosecutor, has final say in approving any deal. Section 299 of BNSS specifically protects the accused anything they say during the plea process can only be used for resolving that case, not for any future trial. The victim must also be heard, and the court is required to grant victim compensation in any approved deal. Importantly, if later evidence shows the accused really was coerced or misled, the plea can be thrown out and a full trial can be conducted. These measures are meant to prevent misuse and keep the plea system honest.
REFERENCES:
https://www.apnilaw.com/bare-act/bnss/section-290-bharatiya-nagarik-suraksha-sanhitabnss-application-for-plea-bargaining/
https://www.juscorpus.com/negotiating-justice-understanding-plea-bargaining-in-indian-law/
https://prsindia.org/billtrack/prs-products/bharatiya-nagarik-suraksha-sanhita-2023-1702016352
Great job shreeya!❤️
Proud of you 👏