Plea Bargaining — Old CrPC vs New BNSS Comparison

In India, plea bargaining moved on 1 July 2024 from Chapter XXIA of the Code of Criminal Procedure, 1973 (CrPC, Sections 265A–265L) to Chapter XXIII of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, Sections 289–300), which adds a 30-day filing window, a 60-day negotiation cap, lower first-time-offender sentences and an exclusion for offences against any child.

At a glance

Chapter XXIA was inserted into the CrPC by Act 2 of 2006, with effect from 5 July 2006 (footnote to Section 265A). Plea bargaining is a procedure, not an offence, so there is no cognizable/bailable classification to compare. The eligibility test in Section 289 turns on the punishment the offence carries.

What changed

• Modified — child exclusion (Section 289(1)). Section 265A excluded an offence "committed against a woman, or a child below the age of fourteen years". Section 289 ends at "a woman, or a child". Section 2(2) BNSS imports definitions from the Bharatiya Nyaya Sanhita, 2023 (BNS), and Section 2(3) BNS defines "child" as "any person below the age of eighteen years". On a reading of those provisions, the exclusion now covers offences against anyone under eighteen, not only under fourteen.
• New — 30-day window (Section 290(1)). The application may be filed "within a period of thirty days from the date of framing of charge". Section 265B(1) had no time limit.
• New — 60-day cap (Section 290(4)(a)). The time the Court gives the parties to work out a disposition is now time "not exceeding sixty days". Section 265B(4)(a) set no limit.
• Minor edit — affidavit wording (Section 290(2)). Section 265B(2) required a statement that the accused "has not previously been convicted by a Court in a case in which he had been charged with the same offence". Section 290(2) reads "by a Court in which he had been charged with the same offence", without the words "a case". Section 290(4)(b) keeps "in a case".
• Minor edit — meeting guidelines (Section 291). "Pleader" becomes "advocate", and the second proviso to clause (a) now reads that the accused "may participate".
• Modified — sentencing (Section 293(c)–(d)). The half and one-fourth fractions remain. Each clause adds a lower fraction "where the accused is a first-time offender and has not been convicted of any offence in the past": one-fourth of the minimum under clause (c), and one-sixth of the punishment provided or extendable under clause (d). Probation now refers to Section 401 BNSS instead of Section 360 CrPC.
• Minor edit — finality (Section 295). Section 265G says "The judgment delivered by the Court under section 265G shall be final". Section 295 says "under this section". Both refer to the finality section itself rather than to the section under which judgment is delivered (Section 265F, now Section 294). That is how the enacted texts read. On a reading of the Chapter as a whole, the judgment meant is the one delivered under Section 294.
• Minor edit — set-off and savings (Sections 297–298). Set-off runs through Section 468 BNSS instead of Section 428 CrPC. The Explanation to Section 298 refers to clause (v) of Section 2 and Section 19, in place of clause (u) of Section 2 and Section 25.
• Modified — juveniles (Section 300). "Clause (k) of section 2" of the Juvenile Justice Act, 2000 becomes "section 2" of the Juvenile Justice (Care and Protection of Children) Act, 2015.
• Related change outside the Chapter — "victim". Section 2(wa) CrPC referred to loss caused by "the act or omission for which the accused person has been charged"; Section 2(1)(y) BNSS says "the act or omission of the accused person".

Statutory text (relevant extracts)

Extract, Section 265A(1) CrPC (closing words):

"…but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years."

Extract, Section 289(1) BNSS (closing words):

"…but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child."

Extract, Section 293(c) BNSS:

"…it may sentence the accused to half of such minimum punishment, and where the accused is a first-time offender and has not been convicted of any offence in the past, it may sentence the accused to one-fourth of such minimum punishment;"

Who can use plea bargaining — the eligibility test

Section 289(1) opens the Chapter to an accused in one of two situations:

1. Police-report cases (clause (a)). The officer in charge of the police station has forwarded a report under Section 193 BNSS (formerly Section 173 CrPC) alleging an offence.
2. Complaint cases (clause (b)). A Magistrate has taken cognizance on a complaint, examined the complainant and witnesses under Section 223 (formerly Section 200), and issued process under Section 227 (formerly Section 204).

In both cases the offence must not be punishable with death, imprisonment for life, or imprisonment "for a term exceeding seven years". Three exclusions then apply:

• Socio-economic offences. These are offences the Central Government has notified under Section 289(2) (formerly Section 265A(2)). The notification is not reproduced in the texts used for this guide. Check it before advising on eligibility.
• Offences against a woman. Section 2(35) BNS defines "woman" as a female human being of any age.
• Offences against a child. As explained above, on a reading of Section 2(2) BNSS and Section 2(3) BNS, this means any person below eighteen.

Because only terms "exceeding seven years" are excluded, an offence with a maximum of exactly seven years is inside the threshold — for example cheating under Section 318(4) BNS, or petty organised crime under Section 112 BNS (one to seven years). Every offence under Section 111 BNS (organised crime) is outside: most of its sub-sections extend to life, and Section 111(7) to ten years. See organised crime under BNS Sections 111 and 112.

The procedure, step by step

Step 1 — Application (Section 290(1)–(2)). The accused applies to the Court where the offence is pending for trial, within thirty days from framing of charge. The application contains a brief description of the case and the offence. It must be accompanied by the accused's affidavit stating that he has voluntarily preferred plea bargaining, after understanding the nature and extent of the punishment provided, and has not previously been convicted by a Court in which he was charged with the same offence.

Charges are framed under Section 251 BNSS (sessions trials) and Section 263(1) (warrant cases on a police report, "within a period of sixty days from the date of first hearing on charge"). In summons cases, Section 274 says "it shall not be necessary to frame a formal charge". The Sanhita does not say how the thirty-day window runs where no formal charge is framed; that is an open question on the text.

Step 2 — Notice (Section 290(3)). The Court issues notice to the Public Prosecutor or the complainant, and to the accused, to appear on the date fixed.

Step 3 — In-camera examination (Section 290(4)). The Court examines the accused in camera, "where the other party in the case shall not be present", to satisfy itself that the application is voluntary. If the application is involuntary, or the accused has a previous conviction for the same offence, the Court proceeds under the Sanhita from the stage the application was filed (clause (b)).

Step 4 — Time to negotiate (Section 290(4)(a)). If the application is voluntary, the Court gives the parties time, not exceeding sixty days, to work out a mutually satisfactory disposition. That disposition "may include giving to the victim by the accused the compensation and other expenses during the case".

Step 5 — The meeting (Section 291). In a police-report case, notice goes to the Public Prosecutor, the investigating police officer, the accused and the victim. In any other case, notice goes to the accused and the victim. The Court must ensure throughout that the process is completed voluntarily. The accused, and in complaint cases the victim too, may attend with an advocate.

Step 6 — Report or failure (Section 292). If a disposition is reached, the Court prepares a report signed by the presiding officer and every participant. If not, it records that observation and the case resumes from the stage the application was filed.

Step 7 — Disposal and judgment (Sections 293–294). The Court awards compensation to the victim in accordance with the disposition. It hears the parties on punishment and on release on probation or after admonition (Section 401 BNSS or the Probation of Offenders Act, 1958), then disposes of the case under clauses (b) to (d). Judgment is delivered in open Court and signed by the presiding officer.

Sentencing under Section 293 — worked examples

Section 293 works in sequence. First, if probation or another beneficial law is attracted, the Court may release the accused on probation (clause (b)). Otherwise the fractions in clauses (c) and (d) apply.

Example 1 — an offence with a minimum. Section 112(2) BNS punishes petty organised crime with imprisonment of not less than one year, extendable to seven years, and fine. Assume the offence is not a notified socio-economic offence and was not committed against a woman or child. Under Section 293(c) the Court may sentence to half the minimum, six months. For a first-time offender with no past conviction, it may sentence to one-fourth of the minimum, three months. Under the CrPC regime the only fraction was one-half.

Example 2 — an offence with no minimum. Section 318(4) BNS carries imprisonment up to seven years and fine, with no minimum. One-fourth of seven years is 21 months. One-sixth, for a first-time offender, is 14 months.

The Court "may" impose these fractions; it is not bound to. Section 297 then applies Section 468 to set off detention already undergone.

Note on "first-time offender": Section 293 qualifies the phrase with "and has not been convicted of any offence in the past". The affidavit test in Section 290(2) is narrower: it asks only about a previous conviction for "the same offence". On a reading of the two provisions, an accused can be eligible to apply yet not qualify for the lower fractions.

After the judgment — finality and protection of statements

Section 295 makes the judgment final, subject only to a special leave petition under Article 136 and writ petitions under Articles 226 and 227. Section 298 gives the Chapter effect "notwithstanding anything inconsistent therewith contained in any other provisions of this Sanhita". Section 299 provides that statements or facts stated in the application "shall not be used for any other purpose except for the purpose of this Chapter". That protection is framed around the application. It does not expressly mention what is said at the Section 291 meeting.

What this means in practice

For the accused and defence advocate

• Diarise the date of framing of charge. The thirty days under Section 290(1) run from it.
• Check eligibility in three layers: the maximum punishment (not beyond seven years), the Section 289(2) notification, and whether the offence was committed against a woman or anyone under eighteen.
• The lower fractions in Section 293(c)–(d) need a record of no past conviction for any offence; assemble it early.
• Where several cases are plea-bargained together, ask expressly for a direction under Section 467(1) BNSS (formerly Section 427(1) CrPC) that sentences run concurrently. Iqram (below) shows the cost of leaving this out.

For the victim

• The victim gets notice of the meeting (Section 291) and compensation in accordance with the disposition (Section 293(a)). The definition of "victim" in Section 2(1)(y) BNSS extends to a guardian or legal heir.
• An offence against a woman or a child cannot be plea-bargained at all (Section 289(1)).

For the Public Prosecutor and investigating officer

• In police-report cases, the investigating officer is a notice party to the meeting (Section 291(a)).
• With negotiation capped at sixty days (Section 290(4)(a)), compensation figures and the position on sentence need to be ready early.

Judgments that still matter

The Supreme Court judgments below were read in full text. The first two predate the statutory Chapter. None construes the BNSS text, and no judgment applying Sections 289–300 was read for this guide.

1. Kasambhai v. State of Gujarat, [1980] 2 S.C.R. 1037 (1980 INSC 24) — 13 February 1980. A bench of P.N. Bhagwati and A.P. Sen JJ. considered a food-adulteration conviction recorded on a plea of guilty after an informal understanding between prosecution, defence and Magistrate. The Court held (at p. 1041) that "the conviction of an accused based on a plea of guilty entered by him as a result of plea-bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal". It reasoned that such a procedure was unfair and unjust and violated Article 21. It remanded the case for trial, ignoring the plea. Why it bears on Section 290: the vice identified was an inducement held out to the accused. Chapter XXIII's affidavit, in-camera examination and supervised meeting address voluntariness; on a reading, a bargain struck outside that procedure gets no protection from the Chapter.

2. State of Uttar Pradesh v. Chandrika, [1999] Supp. 4 S.C.R. 239 — 29 October 1999. A bench of K.T. Thomas and M.B. Shah JJ., judgment by Shah J. The High Court had reduced a Section 304 IPC sentence to the period undergone after the accused chose not to contest conviction. The Supreme Court set this aside, holding (at pp. 241–242) that the concept of plea bargaining "is not recognised and is against public policy under our criminal justice system". It also held that "Mere acceptance or admission of the guilt should not be a ground for reduction of sentence." Why it matters now: Section 293 BNSS authorises a reduced sentence only inside Chapter XXIII's conditions. On a reading, Chandrika's point still governs a sentence concession sought outside the Chapter, for example on appeal in an offence the Chapter excludes.

3. State through CBI, Anti Corruption Branch, Chandigarh v. Sanjiv Bhalla, [2014] 6 S.C.R. 1078 — 4 July 2014. A bench of Ranjana Prakash Desai and Madan B. Lokur JJ. In a separate concurring opinion (para 20), Lokur J. described the 2006 amendments as including "a chapter on plea bargaining, which again is intended to assist and enable the Trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime". This is one judge's opinion, not the holding of the bench. Relevance: it reads the Chapter as victim-centred, consistent with Sections 291 and 293(a).

4. Iqram v. State of Uttar Pradesh, [2022] 16 S.C.R. 51 — 16 December 2022. A bench of D.Y. Chandrachud CJI and P.S. Narasimha J. The appellant agreed to a plea bargain in nine sessions trials. He was convicted by nine judgments on 5 November 2020 and sentenced to two years' simple imprisonment in each (para 5). With no direction for concurrent running, the sentences added up to 18 years (para 8). The Court noted that Section 265G bars appeals except a special leave petition and writ petitions (para 9). It held that the High Court, in its writ jurisdiction, should have corrected the miscarriage of justice (para 13), and it directed that the sentences run concurrently (para 14). Why it bears on Sections 295 and 467: the constitutional routes Section 295 preserves remain available to correct a plea-bargained sentence, and Section 467(1) BNSS repeats the discretion in Section 427(1) CrPC.

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before the BNSS came into force (1 July 2024) is to be "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". On a reading of that clause, a trial pending on 30 June 2024 continues under the CrPC. That would include Chapter XXIA, with no thirty-day window and the older sentence fractions. Whether a fresh plea bargaining application in such a trial is itself an "application" governed by Section 531(2)(a) is a question the text does not answer expressly. For the full transition analysis, see offence before 1 July 2024 — which law applies.

Frequently asked questions

Which offences can be plea-bargained under the BNSS?

Section 289(1) BNSS covers an offence other than one punishable with death, imprisonment for life or imprisonment for a term exceeding seven years. It excludes offences notified by the Central Government under Section 289(2) as affecting the socio-economic condition of the country, and offences committed against a woman or a child. An offence carrying a maximum of exactly seven years is therefore within the threshold, subject to those exclusions.

What is the deadline for filing a plea bargaining application under the BNSS?

Section 290(1) BNSS allows the application to be filed within a period of thirty days from the date of framing of charge, in the Court in which the offence is pending for trial. Section 265B CrPC set no such period. The Sanhita does not state what happens to a late application; on a plain reading of Section 290(1), it falls outside the window the section provides.

How much can the sentence be reduced for a first-time offender?

Under Section 293(c) BNSS, where the offence carries a minimum punishment, the Court may sentence the accused to half of that minimum, or to one-fourth of it where the accused is a first-time offender who has not been convicted of any offence in the past. Under Section 293(d), in other cases the fractions are one-fourth of the punishment provided or extendable, or one-sixth for such a first-time offender. Section 265E CrPC had only the half and one-fourth fractions.

Does the child exclusion in plea bargaining now cover all persons under eighteen?

Section 265A(1) CrPC excluded offences committed against a child below the age of fourteen years. Section 289(1) BNSS excludes offences committed against a child, with no age stated. Section 2(2) BNSS gives undefined words the meaning in the Bharatiya Nyaya Sanhita, and Section 2(3) BNS defines child as any person below the age of eighteen years, so on a reading of those provisions the exclusion now reaches offences against any person under eighteen.

Can a plea bargaining judgment be appealed?

No ordinary appeal lies. Section 295 BNSS, like Section 265G CrPC, makes the judgment final and provides that no appeal lies in any Court except a special leave petition under Article 136 and a writ petition under Articles 226 and 227 of the Constitution. In Iqram v. State of Uttar Pradesh (2022) the Supreme Court corrected, on appeal from a High Court writ order, the consequence of nine plea-bargained convictions being served consecutively.

What happens if the prosecution and the accused cannot agree?

Under Section 292 BNSS (Section 265D CrPC), if no satisfactory disposition is worked out, the Court records that observation and proceeds under the Sanhita from the stage at which the application under Section 290(1) was filed. Section 299 BNSS (Section 265K CrPC) provides that statements or facts stated by the accused in the application shall not be used for any other purpose except for the purpose of the Chapter.

Related

• Compounding and compromise: BNSS 359 vs CrPC 320
• Discharge applications and charge-framing deadlines: BNSS 250–263
• Undertrial release and the first-time offender proviso: BNSS 479 vs CrPC 436A
• Victim rights and compensation under the new laws
• Timelines for investigation and trial
• Offence before 1 July 2024 — which law applies
• Section 2 CrPC vs Section 2 BNSS — Definitions
• Sections 265A–265L CrPC vs Sections 289–300 BNSS — Plea Bargaining
• Sections 353–365 CrPC vs Sections 392–406 BNSS — The Judgment

Sources

Statutes read (primary text):

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette CG-DL-E-25122023-250884): Sections 2(1)(v), 2(1)(y), 2(2), 19, 193, 223, 227, 251, 263, 274, 289–300, 401, 467, 468, 479, 531.
• Bharatiya Nyaya Sanhita, 2023 (Gazette CG-DL-E-25122023-250883): Sections 2(3), 2(35), 111, 112, 318(4).
• Code of Criminal Procedure, 1973 (official text): Sections 2(wa), 265A–265L (with the Act 2 of 2006 insertion footnote), 427.
• Constitution of India: Articles 20(1), 136, 226, 227.

Judgments read (Veritect judgment corpus, full text):

• Kasambhai v. State of Gujarat, [1980] 2 S.C.R. 1037 — 1980_2_1037_1042_EN.md
• State of Uttar Pradesh v. Chandrika, [1999] Supp. 4 S.C.R. 239 — S_1999_4_239_246_EN.md
• State through CBI v. Sanjiv Bhalla, [2014] 6 S.C.R. 1078 — 2014_6_1078_1100_EN.md
• Iqram v. State of Uttar Pradesh, [2022] 16 S.C.R. 51 — 2022_16_51_55_EN.md

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.