SENTENCE
The topic of discussion is ‘Sentence’. Needless to mention
that it is an interesting and vast topic. It would not be
possible to cover the whole topic in the allotted time, thus,
I would confine myself to the extent material for to day’s
purpose. Sentence and appropriate sentence is an
important aspect in Criminal Justice Delivery System.
Adequate punishment is as important as holding as a
wrong doer guilty for his criminal action. Punishment is
necessary for the security of members of society.
The purpose of criminal justice is to punish the criminal. It
is for the State to punish the evildoer.Punishment is
necessary for the security of the membersof the Society,
therefore, one of the prime functions of the State is to
maintain peace,order and security in the society and to
achieve that it becomes inevitable to punishthe evildoer.
Punishment means to inflict pain or suffering upon a
person for his misdeed. The purpose is to protect the
society by deterring the offenders or preventing the
offenders from committing further offence. There have
been manytheories concerning punishment. Though,
theories which have been propounded areRetributive,
Deterrent, Preventive, Expiatory and
ReforSENTENCEmatory, however with the social change,
only three theories, i.e. Retributive, Deterrent and
Reformatory came to be followed.
Retributive Theory was based on the principle that evil
should be returned for evil Retribution was based on the
saying; an eye for an eye, a tooth for a tooth, a limb for a
limb and a life for a life. This theory has been criticized on
the principle that it ignores the basis purpose of
punishment, i.e. to reform the criminal. Thus, with
advancement of civilization, the theory became almost an
obsolete.
Deterrent Theory was based on the principle that
punishment should be inflicted in such a manner that it
should deter or prevent not only the offender but also
others from following the example. The object of
punishment, according to this theory was to make an
evildoer an example and a warning to the others. This
theory was also criticized as it was not based on human
conducts holding that it was a method of punishment
suiting the crime and not the criminal. Since severity of
punishment also did not curtail volume of crime, and thus,
did not serve the society and with this came to be followed
Reformative theory. This theory puts forward doctrine that
main object should be to reform the criminal. This theory
implies the crime as a disease and objects to cure the
disease and propounds the detention to educate and
healthy influences, which should reshape the character of
the criminal so as to put the criminal again in the main
stream of the society. This theory takes into account the
factors which compel the criminals to commit a crime, viz.
his family, education, socioeconomic background etc. This
theory concentrates on the criminals and not on the crime.
Keeping this in view, provision has been made in different
statutes providing different yardsticks distinguishing
offenders below 21 years and those above 21 years. The
enactment of Probation of Offenders Act is a result of this
theory which again distinguishes between a habitual
offender and the first offender. The enactments dealing
with criminal justice delivery system are based on the
combination of Deterrent, Preventive and Retributive
Theories.
What should be the condign Punishment in a particular
case, at times, baffles, not only a young Judicial Officer,
who has just occupied the seat but also at higher levels. In
Criminal cases, awarding sentence is not a mere formality.
Awarding sentence is as important as conviction of
accused by holding him guilty. Hon’ble Supreme Court in
State of U.P. versus Anil Singh, 1990 (3) Recent Criminal
Reports, Page 585, observed that a Judge does not
preside over a criminal trial merely to see that no innocent
man is punished – A Judge also presides to see that a
guilty man does not escape – One is as important as the
other – Both are public duties which the Judge has to
perform. Hon’ble Supreme Court in a recent case “Deo
Narain Mandal versus U.P. 2004 (4) RCR (Criminal), 118
has observed that in criminal cases, awarding of sentence
is not a mere formality where the Statute has given the
Court a choice of sentence with maximum and minimum
limit prescribed, as element of discretion is vested with the
Court. The discretion cannot be exercised arbitrarily or
whimsically. It has to be exercised taking into
consideration the gravity of offence, the manner in which it
is committed, the age, the sex of the accused, antecedents
of the accused etc. In other words, sentence has to be
awarded considering the background and facts of each
case and while doing so, the court should bear in mind the
principle of proportionality. The sentence awarded should
be neither excessively harsh nor ridiculously low.
First of all, let us see what types of punishment the law
recognizes. Chapter III of the Indian Penal Code deals with
the punishments and Section 53 gives the type of
punishments that can be awarded namely, death,
imprisonment for life, imprisonment which is two
descriptions namely rigorous imprisonment, i.e. with hard
labour, simple and fine. The sentence which may be of
either description and it shall be competent to the court to
direct that such imprisonment shall be wholly rigorous or
wholly simple or any part of such imprisonment shall be
rigorous or simple. (Section 60). In every case, of an
offence punishable with imprisonment as well as fine, in
which the offender is sentenced to a fine, whether with or
without imprisonment and in every case of an offence
punishable with imprisonment or fine or with fine only, in
which the offender is sentenced to a fine, it shall be
competent to the court, which sentences such offender to
direct by the sentence that, in default of payment of fine,
the offender shall suffer imprisonment for a certain term, in
which imprisonment shall be in excess of any other
imprisonment, to which he may have been sentenced or to
which he may be liable under a commutation of a sentence
(Section 64). The term for which the court may direct the
offender to be imprisoned in default of payment of fine
shall not exceed one fourth of the term of the maximum
imprisonment, if the offence is punishable with
imprisonment as well as fine. (Section 65). The
imprisonment in default of fine may be of any description
(Section66). The imprisonment which the court may
impose in default of payment of fine, where offender is
punishable with fine only, can only be simple (Section 67).
The punishments that can be imposed by different courts
has been prescribed in Chapter III of the Code of Criminal
Procedure. Section 29 of the Code prescribes the
punishments which the court of Chief Judicial Magistrate,
Judicial Magistrate Ist Class and Judicial Magistrate IInd
Class can pass.
The relevant for the participants is Section 29 (2) and (3)
of the Code of Criminal Procedure. The Court of Judicial
Magistrate Ist Class is competent to pass sentence of
imprisonment for a term not exceeding three years or a
fine not exceeding Rs.5000/ or both (vide amendment Act
of 2005, the fine has been enhanced to Rs.10000/). The
Judicial Magistrate IInd Class may pass sentence of
imprisonment for a term not exceeding one year, or fine
not exceeding Rs.1000/ or both. (The amount of fine has
been enhanced to Rs.5000/ vide Amendment Act of 2005).
Section 30 deals with sentence that can be imposed in
default of payment of fine. Sub Section 2 of Section 30
provides that imprisonment awarded under this section
shall be in addition to a substantive sentence awardable
by Magistrate. Similarly, Section 31 of the Code of Criminal
Procedure provides that several punishment prescribed at
one trial of two or more offences, including a provision,
that unless the court directs that such punishment shall
run concurrently, they shall start after expiration of the
other. However, Section 31 (2) 2nd proviso lays down that
the aggregate 4 punishment shall not exceed twice the
amount of punishment which the Court is competent to
inflict for a single offence.
While Section 235 of the Code of Criminal Procedure
deals with judgment of acquittal or conviction in session
trials, Section 248 deals with judgment of acquittal or
conviction by Magistrates in warrant trial cases and
Section 255 deals with judgment of conviction or acquittal
in summons triable cases.
“Section 235. Judgment of acquittal or conviction –
(1) After hearing arguments on points of law (if any), the
Judge shall give
a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then
pass sentence on him according to law.
Section 248. Acquittal or conviction –
(1) If, in any case under this Chapter in which a charge
has been framed, the Magistrate finds the accused not
guilty, he shall record an order of acquittal.
(2) Where, in any case, under this Chapter, the Magistrate
finds the accused guilty, but does not proceed in
accordance with the provisions of Section 325 or Section
360, he shall, after hearing the accused on the question of
sentence, pass sentence upon him according to law.
(3) Where, in any case under this Chapter, a previous
conviction is charged under the provisions of subsection
(7) of Section 211 and the accused does not admit that he
has been previously convicted as alleged in the charge,
the Magistrate may, after he has convicted the said
accused, take evidence in respect of the alleged previous
conviction, and shall record a finding thereon;
Provided that no such charge shall be read out by the
Magistrate nor shall the accused be asked to plead thereto
nor shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and
until the accused has been convicted under sub section
(2).”.
Section 255. Acquittal or conviction –
(1) If the Magistrate, upon taking the evidence referred to
in section 254 and such further evidence, if any, as he
may, of his own motion, cause to be produced, finds the
accused not guilty, he shall record an order of acquittal.
(2) Where the Magistrate does not proceed in accordance
with the provisions of section 325 or section 360, he shall,
if he finds the accused guilty, pass sentence upon him
according to law.
(3) A Magistrate may, under section 252 or section 255,
convict the accused of any offence triable under this
Chapter, which from the facts admitted or proved he
appears to have committed, whatever may be the nature
of the complaint or summons, if the Magistrate is satisfied
that the accused would not be prejudiced thereby.”.
It would be interesting to note that section 235 (2)
(Sessions trial cases) and section 248 (2) (warrants the
trial cases by the Magistrates) reproduced above would go
to show that these are almost similar provisions and
require that sentence has to be passed “a fter hearing the
accused on quantum of sentence” while section 255, (trial
of summons cases by the Magistrates) does not require
any such hearing.
There is another interesting thing to note that sections 248
(2) and 255 (2) both require that the court has to proceed
to pass a sentence if he does not proceed under section
325 or Section 360 of the Code of Criminal Procedure and
Section 360 under section 235 (2).
There was no such provision in the old Code for hearing
the accused on the quantum of sentence. The legislature
realizing that sentence is as important in the process of
Administration of Criminal Justice as important as the
adjudication of guilt and it should not be consigned to a
subsidiary position as if it was a matter of much
consequence.
At this juncture, it would be appropriate to refer to Section
309 of the Code of Criminal Procedure and in particular,
3rd proviso to sub section 2, which is reproduced
hereunder :“
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show
cause against the sentence proposed to be imposed on
him”.
Reading Sections 235 (2) and 248 (2) together, dealing
with hearing of accused on the question of sentence and
third proviso to section 309 (2) of the Code of Criminal
Procedure, requiring that no adjournment shall be granted
for purpose only for enabling the accused to show cause
against the sentence proposed to be imposed upon him,.
Hon’ble Supreme Court had the occasion to deal with
Section 235 (2) and Section 309 of the Code of Criminal
Procedure in judgment in “Ram Deo Chauhan vs. State of
Assam” 2001 Criminal Law Journal, 2902, and laid down
the following legal position regarding necessity to afford
opportunity for hearing to the accused on the quantum of
sentence :
(1) When the conviction is under S.302 IPC (with or
without the aid of S.34) or 149 or 120B of IPC) if the
Sessions Judge does not propose to impose death penalty
on the convicted person it is unnecessary to proceed to
hear the accused on the question of sentence. S. 235 (2)
of the Code will not be violated if the sentence of life
imprisonment is awarded for that offence without hearing
the accused on the question of sentence.
(2) In all other cases the accused must be given sufficient
opportunity of hearing on the question of sentence.
(3) The normal rule is that after pronouncing the verdict of
guilty the hearing should be made on the same day and
sentence shall also be pronounced on the same day.
(4) In cases where the Judge feels or if the accused
demands more time for hearing on the question of
sentence (especially when the Judge proposes to impose
death penalty) the proviso to S. 309 (2) is not a bar for
affording such time.
(5) For any reason the court is inclined to adjourn the case
after pronouncing the verdict of guilty in grave offences the
convicted person shall be committed to jail till the verdict
on the sentence is pronounced. Further detention will
depend upon the process of law.
In a later judgment reported as “The Assistant
Commissioner,Assessment= II, Banglore and Ors versus
M/s Velliappa Textiles Ltd. and Ors”, 2003
(3) Recent Criminal Reports (Criminal), 695, the Hon’ble
Supreme Court laid down certain guidelines by observing
as under :
“Court has very wide discretion in the matter of
awardingsentence – The discretion undoubtedly has to be
exercised onsound judicial principles having regard to
various factors –This will include the nature of the crime,
the manner and method of commission thereof, the
position and condition of victim and also matters
attributable personally to the accused like his age, health,
social background, mental condition Section 360 Cr.P.C.
empowers the Court to release a person on probation if he
is over 21 years of age and has been convicted of an
offence which is punishable for a term of seven years and
in a case where the person convicted is under 21 years of
age or is a woman, the benefit of release on probation can
be given if he or she is convicted of an offence not
punishable with death or imprisonment for life –
Government has also the power to commute the sentence
and release a prisoner These provisions show that even
after a person has been convicted and sentenced, it is not
absolutely mandatory that he must undergo the whole
sentence.
“Hon’ble Supreme Court in a recent judgment “ Kamalakar
Nadram Bhavsar and Ors.versus State of Maharasthra”
2004 (1) Recent Criminal Reports, 228, mandated that
hearing of accused on the point of sentence is mandatory.
Similar view was expressed by the High Court of
Allahabad in “Bhirug versus State of U.P. “ 2002 C riminal
Law Journal, 271 and observed as under :
“ Hearing as contemplated in S. 248 is not confined merely
to hearing of oral submissions. It is the duty of the court to
give opportunity to the accused to produce evidence or
other material before the Court having a bearing on the
question of sentence. It is not a mere formality and strict
compliance thereof is mandatory. The object of giving such
an opportunity is two fold. On one hand it fulfils the
principle of natural justice by giving an opportunity to the
accused to place on record his antecedents, socio
economic conditions as well as the mitigating and
extenuating circumstances before the Court. The other is
that it also helps the court to choose an appropriate
sentence particularly when no minimum sentence is
prescribed and the Court has to select sentence out of a
wide range of period of sentence. In the present case
learned Magistrate as well as the Appellate Court treated
this salulary provision a mere formality which has greatly
prejudiced the applicant in revision.”
For guidelines laid down for awarding of punishment,
reference may be made to judgments
(a) 2005 (2) RCR (Crl.), 64.
(b) 2205 (3) RCR (Crl.) 18.
(c) 2205 (3) RCR (Crl.) 749.
(d) 2005 (1) RCR (Crl.) 385.
In the earlier part, a mention was made to the Reformative
theory to which the society is drifting. Section 360 of the
Code of Criminal Procedure and provisions of Probation of
Offenders Act are relevant in this context . Section 360 of
the Code of Criminal Procedure empowers the court to
release an accused on probation if he is over 21 years of
age and has been convicted of 10 an offence which is
punishable for a term of seven years and in case, where
the person convicted is under 21 years of age or is a
woman, the benefit of release on probation can be given if
he or she is convicted of an offence not punishable with
death or imprisonment for life. Provisions of Section 361 of
the Code of Criminal Procedure are mandatory in nature
and enjoins upon the court to give special reasons if
convict is not dealt with under section 360 of the Code of
Criminal Procedure. While awarding sentence, the court
has to take into consideration number of factors such as
age, circumstances, gravity and nature of offence whether
the convict is habitual to commit the offence, whether he
can be reformed etc.
Reference may be made to case Surinder Kumar versus
State of Haryana, 2004 (2) Recent Criminal Reports, 783,
in which it was observed as under :
“A convict can be released on probation whether under
section 4 (1) or Under Section 4 (3) of the Probation of
Offenders Act, 1958. A difference between these two
provisions is that under Sub clause3, the convict shall
remain under the supervision of the Probation Officer.
There is no requirement of law anywhere that prior to
releasing the convict on probation, report from the
Probation Officer has to be called and it depends upon the
satisfaction of the court only to call for the report of the
Probationary Officer to releasing the convict on probation
of good conduct (See section 6 (2) of the Act). However, in
case the court orders probation under the supervision,
terms and conditions of supervision have to be explained
to the offender. The release of a convict on probation is in
nature a preventive measure, which seeks to save the
offender from the evil effects of institutional incarceration
and affords him an opportunity of reformation within the
community itself. This provision shall not be mistaken as
undue leniency nor should it be applied leniently in
undeserving cases where the offender is in his early
twenties and committed some offence like rape etc.”
At this stage, it would be relevant to point out that
provisions of Probation of Offenders Act can even be
invoked where minimum punishment is prescribed.
Reference may be made to Full Bench Judgment of our
Hon’ble High Court in
“Joginder Singh versus State of Punjab” 1980, Punjab Law
Reporter, 585. However, it must be borne in mind that if
punishment has to be imposed, it has to be minimum
prescribed. It has also to be borne in mind that the
accused shall always be dealt with under Section 360 read
with Probation of Offenders Act, unless a special statute
bars the invoking of such provision. Section 248 (2) also
speaks of Section 325 of the Code of Criminal Procedure
in addition to Section 360. Under Section 325, if the
Magistrate is of the opinion that after hearing evidence of
the prosecution and the accused, that the accused is guilty
and that he ought to receive a punishment different in kind
from, or more severe than, that which such Magistrate is
empowered, he may record his opinion and submit
proceedings and forward the accused to the Chief Judicial
Magistrate to whom he is subordinate. However, if more
than one accused are being together and, the Magistrate
considers it necessary to proceed against any such
accused, he has to forward all the accused, who are in his
opinion guilty, to the Chief Judicial Magistrate, who may,
thereafter examine the parties, recall and examine any
witness including recording any further evidence and then
pass judgment and sentence the accused. In such cases,
the court forming an opinion is not required to record his
detailed judgment.
The court is only required to record the opinion and submit
proceedings and forward the accused to the Chief Judicial
Magistrate. After the accused has been convicted and
sentenced and the provisions of Section 360 of the Code
of Criminal Procedure being not invoked, there is another
important provision which has to be kept in view, i.e.
regarding the suspension of sentence to enable the
convict to file appeal. Section 389 of the Code of Criminal
Procedure is relevant at this stage. Sub Section 3 of
Section 389 deals with the situation. Under this provision,
the court which convicts the person may suspend the
sentence if the convicted person satisfies that he intends
to present an appeal, upon which the court shall” (i) where
such person, being on bail, is sentenced to imprisonment
for a term not exceeding three years, or (ii) where the
offence of which such person has been convicted is a
bailable one, and he is on bail, order that the convicted
person be released on bail, unless there are special
reasons for refusing bail, for such period as will afford
sufficient time to present the appeal and obtain the orders
of the Appellate Court Arial Narrowunder sub section(1),
and the sentence of imprisonment shall, so long as he is
so released on bail, be deemed to be suspended. Under
this provision, only substantive sentence can be
suspended and that too in the event of the accused being
on bail and being sentenced to imprisonment for a term
not exceeding three years or where the person was
convicted for an offence which is bailable and the accused
is on bail. It is often observed that the courts even
suspend the sentence even in cases where the accused is
in custody.
Another common mistake is regarding set off of
imprisonment for a period during which the accused
remained in custody during investigation, enquiry and trial.
The period can only be set off against substantive
sentence and in the same case. There is no option with
the court but to set off the period during which the accused
had remained in custody during investigation, enquiry or
trial of the same case. The punishment in default of
payment of fine is not liable to be set off.
B.M. Bedi
District & Sessions Judge
(Vigilance),
Haryana.
