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Chapter 7

COURT IN SESSION:
FINDING & SENTENCE

Finding and sentence is the final stage of the criminal proceedings. The
types of finding in a criminal case are (i) Discharge, (ii) Acquittal and (iii)
Conviction. The acquittal dealt with in this chapter is only after the stage of
defence evidence and not at the stage of Sec.232 Cr.P.C. which has been discussed
in detail in Chapter 5. A `decision' does not merely mean the “conclusion”. It
embraces within its fold the reasons which form the basis for arriving at the
“conclusion”.1

7.1. Discharge by Sessions Judge


While discharging an accused, the Judge concerned has to consider the
record of the case and the documents placed therewith, and if he is so convinced
after hearing both the parties that there is no sufficient ground to proceed against
the accused, he shall discharge the accused, but he has to record his reasons for
doing the same.2
Strong suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.
But at the initial stage if there is a strong suspicion which leads the Court to think
that there is ground for presuming that the accused has committed an offence then
it is not open to the Court to say that there is no sufficient ground for proceeding
against the accused.3

1
Mukhtiar Singh v. State of Punjab, AIR 1995 SC 686
2
R.S.Mishra v. State of Orissa, AIR 2011 SC 1103
3
State of Bihar v. Ramesh Singh, AIR 1977 SC 2018

241
Section 228 Cr.P.C. which deals with framing of the charge, begins with
the words “If after such consideration”. Thus, these words in Sec. 228 refer to the
'consideration' under Sec. 227 Cr.P.C. which has to be after taking into account the
record of the case and the documents submitted therewith. These words provide an
inter-connection between Sections 227 and 228. That being so, while Sec.227
provides for recording the reasons for discharging an accused, although it is not so
specifically stated in Sec.228, it can certainly be said that when the charge under a
particular section is dropped or diluted, (although the accused is not discharged),
some minimum reasons in nutshell are expected to be recorded disclosing the
consideration of the material on record. This is because the charge is to be framed
'after such consideration' and therefore, that consideration must be reflected in the
order.4
Where the question of jurisdiction is raised and the trial Court is required to
adjudicate that issue, it cannot be said that reasons are not to be recorded. In such a
case, reasons relate to question of jurisdiction and not necessarily to the issue
relating to framing of charge. Therefore, in such cases, reasons dealing with a plea
relating to jurisdiction have to be recorded.5

7.2. Application of mind


The words “not sufficient ground for proceeding against the accused”
clearly show that Judge is not a mere Post Office to frame the charge at the behest
of the prosecution, but has to apply his judicial mind to the facts of the case in
order to determine whether a case for trial has been made out by prosecution. In
assessing this fact, it is not necessary for the court to enter into the pros and cons
of the matter or into a weighing and balancing of evidence and probabilities which
is really the function of the court, after the trial starts. At the stage of Sec.227
Cr.P.C., the Judge has merely to sift the evidence in order to find out whether or

4
supra note 2
5
Lalu Prasad v. State of Bihar, AIR 2007 SC (Supp) 1873

242
not there is sufficient ground for proceeding against the accused. In other words,
the sufficiency of ground would take within its fold the nature of the evidence
recorded by the police or the documents produced before the court which ex facie
disclose that there are suspicious circumstances against the accused so as to frame
a charge against him.6
It is trite that the words “not sufficient ground for proceeding against the
accused” appearing in Sec.227 Cr.P.C. postulate exercise of judicial mind on the
part of the Judge to the facts of the case in order to determine whether a case for
trial has been made out by the prosecution. However, in assessing this fact, the
Judge has the power to sift and weigh the material for the limited purpose of
finding out whether or not a prima facie case against the accused has been made
out. The test to determine a prima facie case depends upon the facts of each case
and in this regard it is neither feasible nor desirable to lay down a rule of universal
application. By and large, however, if two views are equally possible and the
Judge is satisfied that the evidence produced before him gives rise to suspicion
only as distinguished from grave suspicion, he will be fully within his right to
discharge the accused. At this stage, he is not to see as to whether the trial will end
in conviction or not. The broad test to be applied is whether the materials on
record, if unrebutted, makes a conviction reasonably possible.7

7.3 Duty of Judge


In exercising his jurisdiction under Sec 227Cr.P.C., the Judge cannot act
merely as a mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the documents
produced before the court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a roving enquiry into the
pros and cons of the matter and weigh the evidence as if he was conducting a
trial.8

6
P. Vijayan v. State of Kerala, AIR 2010 SC 663
7
Yogesh v. State of Maharashtra, AIR 2008 SC 2991
8
Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366

243
7.4 Discharge by Magistrate u/s. 239 Cr.P.C.
As per Sec. 239 Cr.P.C., Magistrate has to discharge the accused if (1) on
consideration of (a) the police report, (b) the documents filed under Sec.173
Cr.P.C.; and (2) making such examination, if any, of the accused as the Magistrate
thinks necessary; and (3) after giving the prosecution and the accused an
opportunity of being heard, he considers charge against the accused to be
groundless. This section, however, casts an obligation on the Magistrate to record
his reasons for holding that the charge is groundless and discharging the accused.9
The Magistrate is obliged to record his reasons if he decides to discharge the
accused.10
If the Magistrate finds that the allegations or imputations made against the
accused do not make out a prima facie case and do not furnish basis for framing
charge, it will be a case of charge being groundless, so he has no option but to
discharge the accused. Where the Magistrate finds that taking cognizance of the
offence itself was contrary to any provision of law, like Sec. 468 Cr.P.C., the
complaint being barred by limitation, he cannot frame the charge and he has to
discharge the accused. Indeed in a case where the Magistrate takes cognizance of
an offence without taking note of Sec. 468 Cr.P.C., the most appropriate stage at
which the accused can plead for his discharge is the stage of framing the charge.
He need not wait till completion of trial. The Magistrate will be committing no
illegality in considering that question and discharging the accused at the stage of
framing charge if the facts so justify.11

7.5 Discharge by Magistrate u/s. 245 Cr.P.C.


An order of discharge of the accused after collecting the evidence
envisaged in Sec.244 of the Code can be passed only when “the Magistrate
considers, for reasons to be recorded, that no case against the accused has been
made out which, if unrebutted, would warrant his conviction.” This is the

9
Arun Vyas v. Anita Vyas, AIR 1999 SC 2071
10
Kanti Bhadra Shah v. State of West Bengal, AIR 2000 SC 522
11
supra note 9

244
legislative edict of Sec.245 of the Code. The only other exception to the said
precept is that it is open to the Magistrate to discharge the accused at any previous
stage of the case “if for reasons to be recorded by such Magistrate, he considers
the charge to be groundless.”12

7.6 Effect of Limitation


The mere fact that the complaint was filed 25 days after the expiry of the
period of limitation, did not entitle the accused to seek his discharge under Sec.
245 Cr. P.C. because the complainant has, under law, a right to seek for extension
of time under Sec. 473 Cr.P.C. Where the delay was explainable which was
occasioned on account of the bonafide belief to obtain the sanction for the purpose
of filing the complaint, accused can not be discharged.13

7.7 Acquittal by Sessions Judge


After hearing arguments and points of law (if any), if the Judge finds that
the accused is not guilty of the offence he shall acquit the accused. This is
provided u/s. 235(1) Cr.P.C.

7.8 Acquittal by Magistrate


Section 255(1) Cr.P.C. provides that in a summons case, if the Magistrate,
upon taking evidence, finds the accused not guilty, he shall record an order of
acquittal. In a warrant case in which a charge has been framed, if the Magistrate
finds the accused not guilty, he shall record an order of acquittal. This is the
mandate of Sec. 248(1) Cr.P.C.

7.9 Conviction by Sessions Judge


After hearing arguments and points of law (if any), if the Judge finds that the
accused is guilty of the offence, he shall convict the accused. In such case, unless
he proceeds in accordance with the provisions of Sec.360 Cr.P.C., he shall hear

12
State of Bihar v. Baidnath Prasad, AIR 2002 SC 64
13
Rakesh Kumar Jain v. State, AIR 2000 SC 2754

245
the accused on the question of sentence, and then pass sentence on him according
to law. This has been provided u/s. 235(2) Cr.P.C.

7.10 Conviction on Plea of Guilty


In sessions trial, as per Sec.229 Cr.P.C., if the accused pleads guilty, the
Judge shall record the plea and may, in his discretion, convict him thereon. In the
trial of warrant case instituted on police report and warrant case instituted
otherwise than on police report before magistrate, similar provisions are there in
Sec. 241 & 246(3) Cr.P.C. The provision is similar in the case of a summons case
also which is contained in Sec. 252 Cr.P.C.
In the case of sessions trial, it is desirable for the judge to proceed to take
evidence irrespective of the plea of guilty. The court should not act upon the plea
of guilty in serious offences but should proceed to take the evidence as if the plea
had been one of not guilty and should decide the case upon the whole evidence
including the plea of the accused.14
The rule of practice adopted by the various High Courts in not acting upon a
plea of guilty in cases of serious offences of murder is a rule of caution and
prudence. An offence of murder involves not only the physical act of violence but
also the mental element of intention or knowledge. A lay accused, when pleads
guilty, is likely to be more concerned with the physical act and may not advert to
the various ingredients constituting the offence. Whether act constitutes murder is
a mixed question of law and fact. The court, while holding an accused guilty of
murder, should also enter a finding that he did the act with the requisite intention
or knowledge. For such a finding to be entered and to decide whether the offence
is murder or a lesser offence, the court should have before it the details of the
occurrence, the circumstances under which the act was done and the motive if any
and for this purpose it is desirable that the entire evidence is placed before the
court.15

14
Ram Kumar v. State of U. P., 1998 CRI. L. J. 1267
15
Ramesan v. State of Kerala, 1981 CRI. L. J. 451

246
In the case of magisterial trial also, the magistrate shall not automatically
convict the accused on the basis of the plea of guilty. The Magistrate shall
ascertain as to whether the act admitted to have been committed amounted to an
offence. The magistrate has to consider this fact before he finds the accused guilty
of the offence.

7.11 Broomfield Error


This is an example of the judge committing error in finding the accused guilty
of the offence on the basis of the mere plea of guilt by the accused. In March
1922, Gandhiji was tried before Mr. Broomfield, I.C.S., District & Sessions Judge
of Ahmedabad, for sedition in respect of two Articles, which he had written in his
paper “Young India”. The material portion of the Article reads as follows:-
“I shall not hesitate (when the time is ripe), at the peril of being shot, to ask the
Indian sepoy individually to leave his service and become a weaver. For, has not
the sepoy been used to hold India under subjection, has he not been used to murder
innocent people at Jalianwala Bagh, has he not been used to drive away innocent
men, women, and children during that dreadful night at Chandpur, has he not been
used to subjugate the proud Arab of Mesopotamia, has he not been utilised to
crush the Egyptian? How can any Indian having a spark of humanity in him, and
any Mussalman having any pride in his religion, feel otherwise than as the Ali
Brothers have done? The sepoy has been used more often as a hired assassin than
as a soldier defending the liberty or the honour of the weak and the helpless.”
Gandhiji was prosecuted and committed for trial before the Sessions Judge
of Ahmedabad. Gandhiji pleaded guilty. Mr. Strangman, the Advocate-General
suggested that the court should proceed with the trial. But the judge decided to
accept the plea of guilty. He stated “Mr. Gandhi, you have made my task easy in
one way by pleading guilty to the charge.” Here, the judge committed the mistake.
He did not consider as to whether the act committed by Gandhiji amounted to the
offence of sedition. In fact, what Gandhiji said was that sepoys were not being
used by the British Empire as soldiers; but they were being used for unlawful

247
purpose. So, in fact, the crux of the criticism of Gandhiji was that the British
Empire was not upholding the values of the British regime. So, what ought to have
been done was to say thanks to Gandhiji for pointing out the decline of the value
of the British regime.
Rather than attempting to examine the consequence of the criticism of
Gandhiji, Broomfield straight away proceeded to find Gandhiji guilty of the
offence and thereafter proceeded to impose the punishment afer hearing Gandhiji
on the question of sentence. This grave error committed by Broomfield is one of
the reasons for the collapse of the British regime in India. This is known as
Broomfield Error. Had Broomfield proceeded to ascertain, whether the act done
by Gandhiji, irrespective of the plea of guilty, amounted to the offence, this error
could have been avoided.
Therefore, before being carried away by the plea of guilty, it is for the
judge to ascertain whether the act admitted to have been done by the accused
amounted to an offence. So, the judge can not straight away find the accused
guilty on the basis of the plea of guilty.

7.12 Conviction by Magistrate


In a summons case, if the Magistrate, upon taking evidence, finds the
accused guilty, he shall convict the accused. In such case, unless he proceeds in
accordance with the provisions of Sec.325 or 360 Cr.P.C., he shall pass sentence
on him according to law. This is done u/s. 255(2) Cr.P.C. In a warrant case, if the
Magistrate finds the accused guilty, he shall convict the accused. If the Magistrate
does not proceed in accordance with the provisions of Sec.325 or Sec.360, he
shall, after hearing the accused on the question of sentence, pass sentence upon
him according to law. This has been provided u/s. 248(2) Cr.P.C.

7.13 Sentence
The law regulates social interests and arbitrates conflicting claims and
demands. Security of persons and property of the people is an essential function of

248
the State. It could be achieved through instrumentality of criminal law.
Undoubtedly, there is a cross cultural conflict where living law must find answer
to the new challenges and the courts are required to mould the sentencing system
to meet the challenges.16
The judge cannot decide the sentence according to his whims. A Manhattan
criminal court judge who decided the length of a jail sentence on the toss of a coin
and asked courtroom spectators to vote on which of two conflicting witnesses to
believe was, in 1983, barred from office by the New York State Commission on
Judicial Conduct.17
The criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal conduct.
It ordinarily allows some significant discretion to the Judge in arriving at a
sentence in each case, presumably to permit sentences that reflect more subtle
considerations of culpability that are raised by the special facts of each case.
Judges, in essence, affirm that punishment ought always to fit the crime; yet in
practice , sentences are determined largely by other considerations. Sometimes, it
is the correctional needs of the perpetrator that are offered to justify a sentence.
Sometimes, the desirability of keeping him out of circulation, and sometimes even
the tragic results of his crime. Inevitably these considerations cause a departure
from just desert as the basis of punishment and create cases of apparent injustice
that are serious and widespread.18
In operating the sentencing system, law should adopt the corrective
machinery or the deterrence based on factual matrix. By deft modulation,
sentencing process be stern where it should be, and tempered with mercy where it
warrants to be. The facts and given circumstances in each case, the nature of the
crime, the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature of weapons used
and all other attending circumstances are relevant facts which would enter into the

16
Siriya v. State of M. P., AIR 2008 SC 2314
17
David Pannick, Judges, Oxford University Press, Walton Street, Oxford, 1987, p.1.
18
State of Punjab v. Rakesh Kumar, 2009 SC 391

249
area of consideration.19 For instance, a murder committed due to deep-seated
mutual and personal rivalry may not call for penalty of death. But an organised
crime or mass murders of innocent people would call for imposition of death
sentence as deterrence.20

7.13.1 Nature of Offence


The nature of the offence said to have been committed by the accused plays
an important role. There are certain offences which touch our social fabric.
Whether the court, while awarding a sentence, would take recourse to the
principle of deterrence or reform or invoke the doctrine of proportionality, would
no doubt depend upon the facts and circumstance of each case. While doing so,
however, the nature of the offence said to have been committed by the accused
plays an important role. The offences which affect public health must be dealt with
severely. For the said purpose, the courts must notice the object for enacting
Article 47 of the Constitution of India.21

7.13.2. Impact on the society


The social impact of the crime, e.g., where it relates to offences against
women, dacoity, kidnapping, misappropriation of public money, treason and other
offences involving moral turpitude or moral delinquency which have great impact
on social order, and public interest, cannot be lost sight of and per se require
exemplary treatment.22 Imposition of appropriate punishment is the manner in
which the courts respond to the society's cry for justice against the criminals.
Justice demands that courts should impose punishment befitting the crime so that
the courts reflect public abhorrence of the crime.23
The contagion of lawlessness would undermine social order and lay it in
ruins. Protection of society and stamping out criminal proclivity must be the object

19
State of Karnataka v. Raju, AIR 2007 SC 3225
20
Shivaji v. State of Maharashtra, AIR 2009 SC 56
21
State of Punjab v. Prem Sagar, AIR 2008 SC (Supp) 261
22
State of Karnataka v. Puttaraja, AIR 2004 SC 433
23
supra note 20

250
of law which must be achieved by imposing appropriate sentence.24 Therefore, law
as a corner-stone of the edifice of “order” should meet the challenges confronting
the society.25
The object of imposing sentence should be to protect the society and to
deter the criminal in achieving the avowed object of law by imposing appropriate
sentence. It is expected that the courts would operate the sentencing system so as
to impose such sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be.26 There are certain offences
which touch our social fabric. We must remind ourselves that even while
introducing the doctrine of plea bargaining in the Code of Criminal Procedure,
certain types of offences had been kept out of the purview thereof. While imposing
sentences, the said principles should be borne in mind. 27
The punishment to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should 'respond to the society's cry for justice against the
criminal.28
In justice-delivery system, sentencing is indeed a difficult and complex
question. Every Court must be conscious and mindful of proportion between an
offence committed and penalty imposed as also its impact on society in general
and the victim of the crime in particular.29

7.13.3 Undue sympathy


Undue sympathy to impose inadequate sentence would do more harm to
the justice system to undermine the public confidence in the efficacy of law and
society could not long endure under such serious threats. It is, therefore, the duty

24
Shailesh Jasvantbhai and Another v. State of Gujarat and Others, (2006) 2 SCC 359
25
State of Madhya Pradesh v. Sheikh Shahid, AIR 2009 SC 2951
26
State of Madhya Pradesh v. Saleem, AIR 2005 SC 3996
27
State of Punjab v. Prem Sagar, AIR 2008 SC (Supp) 261
28
supra note 26
29
State of M.P. v. Babulal, AIR 2008 SC 582

251
of every Court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc.30 Imposition of
sentence without considering its effect on the social order in many cases may be in
reality be a futile exercise.31 The Court will be failing in its duty if appropriate
punishment is not awarded for a crime which has been committed not only against
the individual victim but also against the society to which the criminal and victim
belong.32
Any liberal attitude by imposing meagre sentences or taking too
sympathetic view merely on account of lapse of time in respect of such offences
will be resultwise counter-productive in the long run and against societal interest
which needs to be cared for and strengthened by string of deterrence inbuilt in the
sentencing system. 33

7.13.4 Factors in respect of Accused


What is relevant in fixing the sentence may be irrelevant and even
objectionable in fixing the guilt and all that is relevant at the conviction stage,
pooled and presented to the court, may be altogether inadequate for the sentencing
process.34 Although a wide discretion has been conferred upon the court, the same
must be exercised judiciously. It would depend upon the circumstances in which
the crime has been committed and his mental state. Age of the accused is also
relevant. 35
Crime is a pathological aberration. The criminal can ordinarily be
redeemed. The State has to rehabilitate rather than avenge. The sub-culture that
leads to anti-social behaviour has to be countered not by undue cruelty but by re-
culturisation. If every saint has a past, every sinner has a future, and it is the role

30
Sevaka Perumal v. State of Tamil Nadu,1991 (3) SCC 471.
31
Ankush Maruti Shinde v. State of Maharashtra, AIR 2009 SC 2609
32
State of Madhya Pradesh v. Saleem, AIR 2005 SC 3996
33
Venu v. State of Karnataka, AIR 2008 SC 1199
34
P.B. Sahasranaman, Speaking for the Bench, Selected Judgments of V.R. Krishna Iyer, Oxford
University Press,2012, p. 213.
35
supra note 21

252
of law to remind both of this.36 Therefore, the focus of interest in penology is the
individual, and the goal is salvaging him for society. The infliction of harsh and
savage punishment is thus a relic of past and regressive times. The human today
views sentencing as a process of reshaping a person who has deteriorated into
criminality and the modern community has a primary stake in the rehabilitation of
the offender as a means of social defence. Therefore, a therapeutic, rather than an
‘in terrorem’ outlook, should prevail in our criminal courts, since brutal
incarceration of the person merely produces laceration of his mind. 37
A sentence is a judgment on conviction of a crime. It is resorted to after a
person is convicted of the offence. It is the ultimate goal of any justice delivery
system. The Parliament, however, in providing for a hearing on sentence, as would
appear from Sub Sec. (2) of Sec. 235, Sub-Sec. (2) of Sec. 248, Sec. 325 as also
Secs. 360 and 361 of the Code of Criminal Procedure, has laid down certain
principles. The said provisions lay down the principle that the court in awarding
the sentence must take into consideration large number of relevant factors;
sociological backdrop of the accused being one of them.38

7.13.5 Aggravating and Mitigating Circumstances


After due consideration of the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really relevant
circumstances in a dispassionate manner by the Court. Such act of balancing is
indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG
Dautha v. State of Callifornia39 that no formula of a foolproof nature is possible
that would provide a reasonable criterion in determining a just and appropriate
punishment in the infinite variety of circumstances that may affect the gravity of

36
supra note 34, p. 217.
37
Mohd. Giasuddin v. State of A.P., AIR 1977 SC 1926
38
supra note 21
39
402 US 183: 28 L.D. 2d 711

253
the crime.40 In the absence of any foolproof formula which may provide any basis
for reasonable criteria to correctly assess various circumstances germane to the
consideration of gravity of crime, the discretionary judgment in the facts of each
case, is the only way in which such judgment may be equitably distinguished. 41

7.13.6 Sentence – Purpose of


The main purpose of the sentence broadly stated is that the accused must
realise that he has committed an act which is not only harmful to the society of
which he forms an integral part but is also harmful to his own future, both as an
individual and as a member of the society. Punishment is designed to protect
society by deterring potential offenders as also by preventing the guilty party from
repeating the offence; it is also designed to reform the offender and re-claim him
as a law abiding citizen for the good of the society as a whole. Reformatory,
deterrent and punitive aspects of punishment thus play their due part in judicial
thinking while determining this question. In modern civilized societies, however,
reformatory aspect is being given somewhat greater importance. Too lenient as
well as too harsh sentences both lose their efficaciousness. One does not deter and
the other may frustrate thereby making the offender a hardened criminal.42

7.13.7 Death Sentence


When the court is called upon to choose between the convict's cry 'I want
to live' and the prosecutor's demand 'he deserves to die', it goes without saying
that the court must show a high degree of concern and sensitiveness in the choice
of sentence. In our justice delivery system, several difficult decisions are left to the
presiding officers, sometimes without providing the scales or the weights for the
same.43 The question whether or not death penalty serves any penological purpose
is a difficult, complex and intractable issue. It has evoked strong, divergent

40
State of M.P. v. Basodi, AIR 2009 SC 3081
41
Siddarama v. State of Karnataka, AIR 2006 SC 3265
42
Goswami v. Delhi Adfministration, AIR 1973 SC 1457
43
Allauddin Mian v. State of Bihar, AIR 1989 SC 1456

254
views.44 The unmistakable shift in legislative emphasis is that life imprisonment
for murder is the rule and capital sentence the exception to be resorted to for
reasons to be stated.45

7.13.8 Constitutionality & Reasonableness


It is not possible to hold that the provision of death penalty as an alternative
punishment for murder, in Sec. 302 of Indian Penal Code is unreasonable and not
in the public interest. The impugned provision in Sec.302, violates neither the
letter nor the ethos of Article 19 of the Constitution.46 The main reasons, among
others, are the following:-
(1) Notwithstanding the view of the Abolitionists to the contrary, a very large
segment of people, the world over, including sociologists, legislators, jurists,
judges and administrators still firmly believe in the worth and necessity of
capital punishment for the protection of society
(2) In the perspective of prevailing crime conditions in India, contemporary public
opinion channelised through the people's representatives in Parliament rejected
all attempts to abolish or specifically restrict the area of death penalty,
(3) Death penalty is still a recognised legal sanction for murder or some types of
murder in most of the civilised countries in the world,
(4) The framers of the Indian Constitution were fully aware of the existence of
death penalty as punishment for murder, under the Indian Penal Code,
(5) The 35th Report and subsequent Reports of the Law Commission of India
suggesting retention of death penalty, and recommending revision of the
Criminal Procedure Code and the insertion of the new Secs.235(2) and 354(3)
in that Code providing for pre-sentence hearing and sentencing procedure on
conviction for murder and other capital offences were before Parliament and

44
Bachan Singh v. State of Punjab, 1980 (2) SCC 684
45
Ediga Anamma v. State of A.P., AIR 1974 SC 799
46
supra note 44

255
presumably considered by it when in 1972-73 it took up revision of the Code
of 1898 and replaced it by the Code of Criminal Procedure, 1973.47

7.13.9 Guidelines
48
In Machhi Singh v. State of Punjab the apex court observed that the
following propositions emerge from Bachan Singh's case 49 :
(i) The extreme penalty of death need not be inflicted except in gravest cases of
extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also
require to be taken into consideration along with the circumstances of the
'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other
words, death sentence must be imposed only when life imprisonment appears
to be an altogether inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only provided, the option to
impose sentence of imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn
up and in doing so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.50
From Bachan Singh's51 and Machhi Singh's cases52 the principle culled out
is that when the collective conscience of the community is so shocked, that it will
expect the holders of the judicial power centre to inflict death penalty irrespective
of their personal opinion as regards desirability or otherwise of retaining death

47
ibid
48
Machhi Singh v. State of Punjab,1983 (3) SCC 470
49
1980 (2) SCC 684
50
supra note 48
51
supra note 49
52
1983 (3) SCC 470

256
penalty, the same can be awarded. The community may entertain such sentiment
in the following circumstances :
(1) When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme indignation
of the community.
(2) When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward; or cold-blooded
murder for gains of a person vis-a-vis whom the murderer is in a dominating
position or in a position of trust; or murder is committed in the course for
betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc.
is committed not for personal reasons but in circumstances which arouse social
wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is
committed in order to remarry for the sake of extracting dowry once again or
to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance, when multiple
murders, say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis-a-vis whom the murderer is in a dominating
position, or a public figure generally loved and respected by the community.53

7.13.10 Hearing on Sentence – Purpose


The requirement of hearing the accused in Sub-Sec. (2) to Sec.235 Cr.P.C.,
is intended to satisfy the rule of natural justice. It is a fundamental requirement of
fair play that the accused who was hitherto concentrating on the prosecution
evidence on the question of guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of sentence. This is all
the more necessary since the courts are generally required to make the choice from

53
Devender Pal Singh v. State of NCT of Delhi, 2002 (5) SCC 234

257
a wide range of discretion in the matter of sentencing. To assist the Court in
determining the correct sentence to be imposed, the legislature introduced sub-
section (2) to Sec.235. The said provision therefore satisfies a dual purpose; it
satisfies the rule of natural justice by affording to the accused an opportunity of
being heard on the question of sentence and at same time helps the court to choose
the sentence to be awarded. Since the provision is intended to give the accused an
opportunity to place before the court all the relevant material having a bearing on
the question of sentence, there can be no doubt that the provision is salutary and
must be strictly followed.54

7.13.11 Hearing is Mandatory


It is clearly mandatory and should not be treated as a mere formality. In a
case of life or death as in the case of punishment for murder, the presiding officer
must show a high degree of concern for the statutory right of the accused and
should not treat it as a mere formality to be crossed before making the choice of
sentence. If the choice is made without giving the accused an effective and real
opportunity to place his antecedents, social and economic background, mitigating
and extenuating circumstances, etc., before the court, the court's decision on the
sentence would be vulnerable.55
An administrative decision having civil consequences, if taken without
giving a hearing is generally struck down as violative of the rule of natural justice.
Likewise, a sentencing decision taken without following the requirements of Sub-
Sec. (2) of Sec.235 in letter and spirit would also meet a similar fate and may have
to be replaced by an appropriate order. The sentencing Court must approach the
question seriously and must endeavour to see that all the relevant facts and
circumstances bearing on the question of sentence are brought on record. Only
after giving due weight to the mitigating as well as the aggravating circumstances
placed before it, it must pronounce the sentence. As a general rule, the trial courts

54
Allauddin Mian v. State of Bihar, AIR 1989 SC1456
55
ibid

258
should after recording the conviction adjourn the matter to a future date and call
upon both the prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter pronounce the sentence
to be imposed on the offender 56

7.14 Inadequacy of Law


The Indian Penal Code still lingers in the somewhat compartmentalised
system of punishment viz. imprisonment, simple or rigorous, fine and, of course,
capital sentence. There is a wide range of choice and flexible treatment which
must be available with the judge if he is to fulfil his tryst with curing the criminal
in a hospital setting. May be in an appropriate case actual hospital treatment may
have to be prescribed as part of the sentence. In another case, liberal parole may
have to be suggested and, yet in a third category, engaging in certain types of
occupation or even going through meditational drills or other courses may be part
of the sentencing prescription. The perspective having changed, the legal strategies
and judicial resources, in their variety, also have to change. Rule of thumb
sentences of rigorous imprisonment or other are too insensitive to the highly
delicate and subtle operation expected of a sentencing judge. Release on
probation, conditional sentence, visits to healing centres, are all on the cards.57
The inadequacy of the Indian system is reflected sharply in the
administration of criminal justice particularly in sentencing aspect. For various
offences punishability, quantum of punishment and its nature depend upon the
discretion of the Presiding Judge and may vary from one Judge to the other, so
much so that it can be described as erratum. The sentencing tendency of the
Judges seems to be fairly well-determined before he sits on the Bench. There are
Judges who regard sex-offences as worst of all. There are Judges who feel that
most heinous crimes are those committed with weapons. There are Judges who
favour prosecution. There are severe Judges and lenient ones.58

56
ibid
57
supra note 37
58
B.Indira Ram, Justice – Judges, Andhra Weekly Reporter, July to Dec.,1991,p.16.

259
The Committee on Reforms of the Criminal Justice System, 2003 was
established by the Government of India to recommend changes to the criminal
justice system in India. It had observed that the judges were granted wide
discretion in awarding the sentence within the statutory limits. It was also of the
opinion that as there was no guidance in selecting the most appropriate sentence in
the fact situation thereof, there was no uniformity in awarding sentence as the
discretion was exercised according to the judgment of every judge. Thus, the
committee emphasized the need for having sentencing guidelines to minimize
uncertainty in awarding sentences. It recommended the appointment of a statutory
committee to lay down the sentencing guidelines.59

59
supra note 27

260