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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
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
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
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
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
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.
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.
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.
7.13 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
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
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
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
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
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
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
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
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
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