Plea Bargaining | Section 289 to 300 BNSS

Plea Bargaining under the BNSS, 2023: Chapter XXIII, Sections 289 to 300, the Thirty-Day Limit, the Mutually Satisfactory Disposition and the Role of the Victim

Plea bargaining was for many years not merely absent from Indian criminal procedure but positively condemned by the Supreme Court. It was introduced by amendment in 2005, and the Bharatiya Nagarik Suraksha Sanhita, 2023 carries the scheme forward in Chapter XXIII with one significant change: an application must now be filed within thirty days from the date of framing of charge, where the Code of Criminal Procedure fixed no period at all.

The Indian scheme differs from the practice the expression usually denotes elsewhere. It is not a negotiation between prosecutor and accused about what offence to charge. The offence stays as it is; what is negotiated is a mutually satisfactory disposition, which may include compensation to the victim; the victim participates; the court must satisfy itself in camera that the application is voluntary; and the sentence, if the accused is not released on probation, is fixed by the statute at one-fourth or one-sixth of what the offence carries.

1. The Development

📖 State of Uttar Pradesh v. Chandrika, (2000) 2 SCC 746

Facts: The High Court had reduced the sentence of convicted persons on the footing that they had pleaded guilty and that the case had been disposed of on the basis of a bargain. The question was whether a court may dispose of a criminal case on the basis of a plea bargain, and whether a sentence may be reduced because the accused pleaded guilty as part of such an arrangement.

Held: The Supreme Court held, on the law as it then stood, that plea bargaining is not recognised and is against public policy. It held that it is the duty of the court to decide the case on the merits, and that a court cannot dispose of a criminal case merely on the basis that the accused has pleaded guilty as a result of a bargain. Mere acceptance or admission of guilt should not be a ground for reducing the sentence; the sentence has to be awarded according to the offence proved and in accordance with law, having regard to the facts and circumstances. The Court held that the High Court had erred in reducing the sentence on that basis, and that convicting an accused on the basis of a negotiated plea, without the case being decided on its merits, was impermissible.

Ratio: Before the statutory scheme, plea bargaining was not recognised in Indian law and was held to be against public policy. A sentence could not be reduced merely because the accused had pleaded guilty under a bargain.

📖 Thippaswamy v. State of Karnataka, (1983) 1 SCC 194

Facts: The accused had been induced or led to plead guilty on the understanding that he would be dealt with leniently, and on appeal against the sentence the appellate court enhanced it. The question was the position of an accused who has pleaded guilty in consequence of such an understanding.

Held: The Supreme Court held that it is contrary to public policy to induce or lead an accused to plead guilty under a promise or assurance that he will be let off lightly, and then to impose a severe sentence. Where an accused has been so induced, it would be violative of Article 21 to sentence him to a substantial term or to enhance the sentence on appeal, because the plea was not a free one; the appropriate course in such a case is to set aside the conviction and remit the matter for a trial on the merits, giving the accused an opportunity to defend himself. The Court emphasised that a plea obtained by an inducement is not a plea at all in the sense the law requires, and that the fairness of the procedure under Article 21 extends to the manner in which a plea is obtained.

Ratio: A plea of guilty induced by an assurance of leniency is not a free plea, and to sentence on it is contrary to Article 21. The course is to set aside the conviction and remit for a trial on the merits.

⚠ Why the statutory scheme is built as it is

Every safeguard in Chapter XXIII answers one of these decisions. The requirement that the accused file an affidavit that he has preferred the application voluntarily after understanding the nature and extent of the punishment answers Thippaswamy. So does the in-camera examination by the Court in the absence of the other party.

The fact that the sentence is fixed by statute — one-fourth or one-sixth — rather than negotiated, answers Chandrika: the court is not reducing a sentence because of a bargain, it is applying a figure Parliament has fixed.

And the requirement that the disposition be mutually satisfactory, with the victim participating and compensation available to him, answers the objection that a bargain between the State and the accused disposes of a wrong done to somebody who was never consulted.

2. Where the Chapter Applies

Figure 1: The scheme, step by step

Section 289, BNSS 2023

This Chapter shall apply in respect of an accused against whom —

the report has been forwarded by the officer in charge of the police station under section 193 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force, and after examining the complainant and witnesses under section 223, issued the process under section 227,

but this Chapter shall 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 fourteen years.

Available	Not available
Where a report under section 193 has been forwarded alleging an offence	An offence punishable with death
Where a Magistrate has taken cognizance on a complaint, examined the complainant and witnesses under section 223, and issued process under section 227	An offence punishable with imprisonment for life
Any offence punishable with seven years or less	An offence punishable with imprisonment for a term exceeding seven years
—	An offence affecting the socio-economic condition of the country, as notified by the Central Government
—	An offence committed against a woman
—	An offence committed against a child below the age of fourteen years
—	Section 300: the Chapter does not apply to a child as defined in the Juvenile Justice (Care and Protection of Children) Act, 2015

3. The Procedure

3.1 The application: section 290

The application is filed by the accused, in the Court in which the offence is pending trial, within a period of thirty days from the date of framing of charge. That time limit is new; section 265B of the CrPC prescribed none.
It must contain a brief description of the case relating to which it is filed, including the offence to which it relates, and be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred the application after understanding the nature and extent of the punishment provided under the law for the offence, and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
The Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused, to appear on a date fixed.
When they appear, the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily.
Where the Court is so satisfied, it provides time to the parties to work out a mutually satisfactory disposition. Where it finds the application involuntary, or that the accused has previously been convicted of the same offence, it shall proceed further in accordance with the provisions of the Sanhita from the stage such application has been filed.

3.2 The mutually satisfactory disposition: sections 291 to 293

Section 291 provides the guidelines. In working out a mutually satisfactory disposition, the Court shall follow the procedure the section lays down: in a case instituted on a police report, it shall issue notice to the Public Prosecutor, the police officer who investigated the case, the accused and the victim to participate in a meeting to work out a satisfactory disposition, which may include giving compensation to the victim and other expenses during the case. In a case instituted otherwise than on a police report, notice goes to the accused and the victim. The Court shall ensure that the process is completed voluntarily by the parties, and it may permit the accused to participate with his advocate, and the victim to do likewise.

Section 292 provides that where a satisfactory disposition has been worked out, the Court shall prepare a report of such disposition, signed by the presiding officer and all other persons who participated in the meeting; and where no such disposition has been worked out, it shall record such observation and proceed further in accordance with the Sanhita from the stage the application was filed.

3.3 Disposal and sentence: section 293

Step	Content
Compensation	The Court shall award the compensation to the victim in accordance with the disposition, and hear the parties on the quantum of the punishment
Probation or admonition	Where the accused is a first-time offender and has not been previously convicted of any offence, the Court shall, after hearing the parties, release him on probation under the Probation of Offenders Act, 1958 or under section 401 of the Sanhita, or after admonition, where the law permits
One-fourth	After hearing the parties, if the Court is of the view that a minimum punishment has been provided for the offence committed, it may sentence the accused to one-fourth of such minimum punishment
One-sixth	In a case where the accused is not a first-time offender, or where no minimum punishment is provided, the Court may sentence him to one-sixth of the punishment provided or extendable for such offence
Set off	Section 297: the Court shall set off the period of detention already undergone by the accused against the sentence imposed

4. The Judgment and Its Finality

Section 294. The Court shall deliver its judgment in open Court according to the disposition, and it shall be signed by the presiding officer.
Section 295. The judgment delivered under section 294 shall be final and no appeal shall lie in any Court against it, except the special leave petition under Article 136 and a writ petition under Articles 226 and 227 of the Constitution.
Section 296. The Court shall have, for the purposes of discharging its functions under the Chapter, all the powers vested in it in respect of bail, the trial of offences and other matters relating to the disposal of a case.
Section 298. The provisions of the Chapter shall have effect notwithstanding anything inconsistent in any other provision of the Sanhita, and nothing in such other provisions shall be construed as constraining the meaning of any provision of the Chapter. The savings provision also preserves the statutory rights of a child and the provisions on the set-off of detention.
Section 299. Notwithstanding anything contained in any law, the statements or facts stated by an accused in an application for plea bargaining shall not be used for any purpose other than the purpose mentioned in the Chapter.
Section 300. The provisions of the Chapter shall not apply to any child as defined in clause (12) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

⚠ Section 299 is the provision that makes the process usable

An accused invited to apply for plea bargaining is being asked to say, on affidavit, that he understands the punishment for an offence he is charged with, and then to participate in a meeting about a disposition. If the process fails, everything he has said would otherwise be available to the prosecution at the trial that follows.

Section 299 removes that risk. The statements and facts stated in the application shall not be used for any purpose other than the purpose mentioned in the Chapter — so a failed plea-bargaining application leaves the trial exactly where it was.

Section 292 completes the protection: where no disposition is worked out, the Court records the observation and proceeds from the stage the application was filed, so nothing is lost and nothing is gained by the attempt.

5. Plea Bargaining, Compounding and a Plea of Guilty

Figure 2: The three compared

The three are distinct in what they produce, and the distinction is the most useful thing to hold on to in this area.

Compounding under section 359 ends in an acquittal. It is a settlement between the victim and the accused, available only for the offences the table to that section lists, some with the Court’s permission and some without, and the composition has the effect of an acquittal of the accused.
Plea bargaining under Chapter XXIII ends in a conviction with a statutorily reduced sentence, or in release on probation for a first offender. It requires the Court to be satisfied that the application is voluntary, and the sentence is fixed by the statute rather than negotiated.
A plea of guilty under sections 252, 264 or 275 ends in a conviction with the sentence determined in the ordinary way. There is no statutory reduction, no victim participation, and no requirement of an affidavit or an in-camera examination — only that the plea be recorded and, in a summons case, in the accused’s own words.

	Plea bargaining	Compounding	Plea of guilty
Provision	Sections 289 to 300	Section 359	Sections 252, 264 and 275
Outcome	Conviction, reduced sentence	Acquittal	Conviction, ordinary sentence
Who initiates	The accused, within thirty days of the charge	The person competent to compound	The accused, when put to plead
Victim’s role	Participates; compensation may form part of the disposition	He is the person who compounds	None
Court’s role	Satisfies itself of voluntariness in camera; awards compensation; fixes the statutory sentence	Permission where the table requires it	Records the plea and may convict in its discretion
Appeal	Section 295: final, save Articles 136, 226 and 227	No question of appeal	Section 416: no appeal except as to the extent or legality of the sentence

6. Key Takeaways

The position stated shortly

1. Plea bargaining was not recognised and was held to be against public policy before the statutory scheme: State of U.P. v. Chandrika. A plea induced by an assurance of leniency violated Article 21: Thippaswamy.

2. Chapter XXIII applies where a report under section 193 has been forwarded, or where a Magistrate has taken cognizance on a complaint and issued process under section 227.

3. It does not apply to an offence punishable with death, imprisonment for life, or imprisonment exceeding seven years; to an offence affecting the socio-economic condition of the country as notified; or to one committed against a woman or a child below fourteen. Section 300 excludes a child altogether.

4. The application is filed by the accused, within thirty days from the date of framing of charge — that limit is new — with an affidavit that he has preferred it voluntarily after understanding the punishment, and that he has not previously been convicted of the same offence.

5. The Court examines the accused in camera, in the absence of the other party, to satisfy itself that the application is voluntary.

6. The mutually satisfactory disposition is worked out at a meeting attended by the Public Prosecutor, the investigating officer, the accused and the victim, and may include compensation to the victim.

7. Where a disposition is reached, the Court awards the compensation, hears the parties on quantum, and — for a first-time offender — may release him on probation or after admonition.

8. Otherwise the sentence is one-fourth of the minimum punishment provided, or, where no minimum is provided or the accused is not a first-time offender, one-sixth of the punishment provided. The period of detention already undergone is set off.

9. The judgment is delivered in open Court and is final: no appeal lies, save a petition under Article 136 or under Articles 226 and 227.

10. Section 299: the statements made in the application shall not be used for any other purpose; and where no disposition is worked out, the Court proceeds from the stage the application was filed.

7. Frequently Asked Questions

What is plea bargaining under the BNSS?

A procedure under Chapter XXIII by which an accused may apply for a mutually satisfactory disposition of his case, worked out with the prosecution, the investigating officer and the victim, and approved by the Court, resulting in a conviction with a sentence fixed by the statute at one-fourth or one-sixth of the punishment, or in release on probation for a first-time offender.

What is the time limit for a plea bargaining application?

Thirty days from the date of framing of charge: section 290(1). The limit is new; the Code of Criminal Procedure prescribed no period.

Which offences are excluded?

Those punishable with death, imprisonment for life, or imprisonment exceeding seven years; those affecting the socio-economic condition of the country as notified by the Central Government; and those committed against a woman or a child below fourteen. Section 300 also excludes a child as defined in the Juvenile Justice Act, 2015.

What sentence follows a plea bargain?

Where the accused is a first-time offender, the Court may release him on probation or after admonition. Otherwise, one-fourth of the minimum punishment provided for the offence; and where no minimum is provided, or the accused is not a first-time offender, one-sixth of the punishment provided or extendable. The period of detention already undergone is set off.

Can the judgment be appealed?

No. Section 295 makes it final and provides that no appeal lies, except a special leave petition under Article 136 and a writ petition under Articles 226 and 227 of the Constitution.

What happens if the plea bargaining fails?

The Court records the observation that no disposition was worked out and proceeds further from the stage at which the application was filed. Section 299 provides that the statements and facts stated in the application shall not be used for any purpose other than that mentioned in the Chapter, so nothing said in the process can be used at the trial.

How does plea bargaining differ from compounding?

Compounding is a settlement between the parties which has the effect of an acquittal, available only for the offences listed in the table to section 359. Plea bargaining ends in a conviction with a statutorily reduced sentence, requires the Court to be satisfied of voluntariness, and is excluded for the categories section 289 specifies.

Related Topics

Compounding of Offences under the BNSS, 2023: Section 359
Trial of Warrant Cases: Sections 261 to 273, BNSS
Summary Trials: Sections 283 to 288, BNSS
The Victim under the BNSS, 2023
Compensation to Victims under the BNSS, 2023
Judgment under the BNSS, 2023: Chapter XXIX