Judgment
The judgment is the final reasoned decision of the court as to the guilt or innocence of the accused. Where the accused is found guilty, the judgment would also include an order requiring the accused to undergo the prescribed punishment or treatment. Judgment means the expression of the opinion of the judge or Magistrate arrived at after due consideration of the evidence and the arguments.1 Judgment means a judgment of conviction or acquittal, but not an order of discharge u/s 245. 245.2 A judgment is the final decision of the court intimated to the parties and the world at large by formal "pronouncement" or "delivery" in open court.3
Form and contents
In this connection Section 354 makes the following provisions:
A.
Every Every judgment judgment shall shall be writt written en in the languag languagee of the court; court; and according according to to Section Section 272, the language of the court is determined by the State Government.
B.
Every Every judgment judgment shall shall contai contain n the point or point pointss for determi determinati nation, on, the decisio decision n thereon thereon and the reasons for the decision.
Usually the judgment in a criminal case should commence with a statement of facts in respect of which which the accused accused person person is charged charged.. The judgment judgment should should indicate indicate a careful careful analysis analysis and appraisal of the evidence while reaching the conclusions regarding the proof of the facts.4 The judgment must must be self contained contained and show that the the Magistrate Magistrate /Judge have applied applied his mind to to the facts and the evidence. No judgment can be regarded as a considered judgment unless the reasons for accepting one and rejecting the other of the two viewpoints are clearly mentioned in the judgment. 5 Moreover the
1
Danu Senapati Senapati v. Sridhar Sridhar Rajwar Rajwar ,1893 ,1893 21 Cal 121,127 121,127 Dwarka Dwarka Nath Nath v. Beni Beni Madhab,( Madhab,(1901) 1901) 28 28 Cal 625 3 Sodawala v. State of Maharashtra, (1975) 3 SCC 140: 1974 SCC (Cri) 764 at p. 771: 1974 Cri IJ 1291: SunauJm Singh v. State of U.P AIR 1954 SC 194: 1954 Cri LJ 475. 4 Ram Karan v. State of Rajasthan, 1990 Supp SCC 604; State (Delhi Admn.) v. Shiv Kumar, 1990 Supp SCC 673; State of U.P. v. Jagdish Singh, 1990 Supp SCC 150 2
final order deciding a case must be self contained and should be what is called a speaking Order.6An order of discharge is not a judgment and no reasons in writing are necessary where such an order is passed but it is desirable that the magistrate should record the reasons for discharge.7 In case of a sexual offence the name of the victim is not to be mentioned.8
C.
Every Every judgment judgment shall shall speci specify fy the offence offence (if (if any) of which which and the secti section on of the IPC or other other law under which, the accused is convicted and the punishment to which he is sentenced. When the conviction is under the Indian Penal Code and it is doubtful under which of two sections, sections, or under which of two parts of the same section, section, of that Code the offence falls, the court shall distinctly express the same, and pass judgment in the alternative.9
D.
If the the ju judgment is on one of of ac acquittal, it sh shall st state th the off offence of wh which th the acc accused is acquitted and direct that he be set at liberty.
Even when an accused person is acquitted acqu itted
on the ground of unsoundness of mind,
the
334 Cr.P.C, Cr.P.C,
judgment judgment
should, as
enjoined by
Sec.
record a finding whether such
accused committed the acts (such as causing the death by stabbing or other means) attributed to him. In such a case the court shall not forthwith forthwith set him at liberty or release him from custody. custody. He will have have to be directed directed to be detained detained in a Government Government mental mental health centre centre or ordered ordered to be delivered to any relative or friend upon an application by such relative or friend his is
furnishing furnishing security security to the satisfact satisfaction ion of the court as as provided provided under Sec. 335 Cr.P.C. Cr.P.C. This This because
accused. to
and on
of
the
homicidal
or
dangerous
propensitie propensitiess
already exhibited exhibited by the
Such accused ordered to be detained in the mental health center will be
subject
further orders of the State Government under Sec. Sec . 339 33 9 Cr.P.C.10
Judgment in abridged forms 5
Ismail Ismail Amirshaikh Amirshaikh v. State of Maharashtra, Maharashtra, 1985 Cri LJ 273 (Bom HC). Also see State of Punjab Punjab v. Jagdeo Singh Talwandi, (1984) 1 SCC 596: 1984 SCC (Cri) 135: 1984 Cri LJ 177; Mukhtiar Singh v. State of Punjab, 1995 SCC (Cri) 296; Badri v. State of Rajasthan, 1995 Supp (3) SCC 521: 1995 SCC (Cri) 990. 6 Balwant Balwant Rai v. Chhangi Ram ,AIR 1963 Punj 124 7 Nabi Fakira,(1907) 9 Bom LR 1110 8 S.Ramakrishna v. State ,AIR 2009 SC 885 9 Section 354(2) 10 Sheela v. State of Kerala - 2005 KHC 2079 and Hussai and Hussain n v. State State of Kerala Kerala - 2005 (3) KLJ 12 = ILR 2005 (4) Kerala 239
1)
According to Section 355 the judgment given by a Metropolitan Magistrate shall be in an abridged form giving the following particulars only: i.
the serial number of the case;
ii.
the date of the commission of the offence;
iii.
the name of the complainant if any;
iv.
the name of the accused person, and his parentage and residence;
v.
the offence complained of or proved;
vi.
the plea of the accused and his examination (if any);
vii.
the final order;
viii.
the date of such order;
in all cases in which an appeal lies from the final order either u/s 373 or under sub-
ix.
section (3) of section 374 , a brief statement of reasons for the decision. 2)
The judgment given in a summary trial is also to be recorded in a similar abridged form as prescribed by Sections 263-264.
This section lays down that the metropolitan magistrate need not write the detailed judgments provided in the presiding section but should only record the particular set out in this section. Clause (1) however makes it obligatory on the part of the metropolitan magistrate to give brief statement of the reasons for his decision in all cases in which an appeal lies.
Post Conviction Orders
In every criminal trial, when the court finds the accused guilty, it has to punish the accused in accordance with law after hearing him.11 However, having regard to the age, character, antecedents or physical or mental condition of the offender, and to the circumstances in See Ss. 235(2), 248(2), 255(2).
11
which the offence was committed, the court may instead of sentencing the accused person to any
punishment, release him after admonition or on probation of good conduct under Section 360 of the Code or under the provisions of the Probation of Offenders Act, 1958. In recent times, there has been an increasing emphasis on the reformation and rehabilitation of the offender as a useful and self-reliant member of society without subjecting him to the deleterious effects of jail life. 12 On the other hand there are occasions when an offender is so antisocial that his immediate and sometimes prolonged confinement is the best assurance of society's protection. In such cases, the consideration of rehabilitation has to give way, because of paramount need for the protection of society.13 It is not easy to reconcile these conflicting demands. As has been rightly observed by the Supreme Court, guilt once established, the punitive dilemma begins.14 While exercising the discretion in respect of post-conviction orders, some statutory guidelines have been given to courts by Sections 360, 361 and the Probation of Offenders Act, 1958.
Section 360
This section is a beneficial piece of legislation. It enables the court, under certain circumstances, to release the accused, who has been convicted, on probation of good conduct. Section 360 is intended to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime, and to help even men of more mature years who for the first time may have committed crimes through ignorance, or inadvertence or the bad influence of others and who, but for such lapses, might be expected to be good citizens. It is not intended that this section should be applied to experienced men of the world who deliberately flout the law and commit offences.15
An analysis of Section 360 will bring out the following points: -
Release on probation of good conduct
See Statement of Objects and Reasons appended to the Probation of Offenders Bill, 1957. See the observations of the Law Commission of India in its 47th Report on "The Trial and Punishment of Social and Economic Offences", at p. 85, para 10: 3. 14 Ediga Anamma v. State ofAndhra Pradesh, 1974 SCO (Cri) 479 at p. 485: 1974 Cri IJ 683 15 In re, Titus, AIR 1941 Mad 720 at pp. 723-24 12
13
Having regard to the age, character or antecedents of the offender, and the circumstances in which the offence was committed , if the court convicting the accused person considers it
expedient to release the offender on probation of good conduct (instead of sentencing him at once to any punishment), it may direct the offender to be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the court may fix and in the meantime to keep the peace and be of good behavior. Such a release is permissible only if the following conditions are satisfied: •
there is no previous conviction proved against the offender and
•
when the person convicted is a woman of any age, or any male person under twenty-one years of age, the offence of which he or she is convicted is not punishable with death or imprisonment for life or
•
when the person convicted is not under twenty-one years of age, the offence of which he is convicted is punishable with fine only or with imprisonment for a term of seven years or less.
No Magistrate of the second class, unless he is specially empowered, can release an offender on probation as mentioned above; however, if such a Magistrate considers that the offender should be so released, he may transfer the case to a Magistrate of the first class who may thereupon take such action as is appropriate as to sentencing the offender or releasing him on probation.
Release after admonition
Having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, the court may, after convicting the accused person, release him after due admonition. Such a release is permissible only if the following conditions are satisfied: •
there is no previous conviction proved against the accused person;
•
the offence of which the accused is convicted is either (A) theft, ( B) theft in a building, or (C) dishonest misappropriation, or (D) is punishable under the IPC with not more than two years imprisonment, or (E) is one punishable with fine only.
Section 360, itself makes it quite clear that it shall not affect the provisions of the Probation of Offenders Act, 1958.16 According to Section 18 of the Probation of Offenders Act, 1958 read with Section 8(1) of the General Clauses Act, 1897, Section 360 of the Code would cease to apply to the States or parts thereof in which the Probation of Offenders Act is brought into force. 17 However, the offender can be still released after admonition or on probation of good conduct under Sections 3 and 4 of the Probation of Offenders Act which is wider in its scope than the provisions of Section 360. In that case also the court will have to use discretion on the same lines as in cases under Section 360. No imprisonment in case of young offenders
The discretion given to the court in passing post-conviction orders has been restricted to some extent in favour of young offenders below 21 years of age. According to Section 6 of the Probation of Offenders Act, if the court finds such young offender guilty of an offence punishable with imprisonment (but not with imprisonment for life), it shall not sentence him to imprisonment without satisfying itself that it would not be desirable to release the offender after admonition or on probation of good conduct; and if the Court, after such satisfaction, passes any sentence of imprisonment, it shall record reasons for doing so.
Special directive in favor of non-punitive measures
The discretion to sentence a convicted person to any punishment has been narrowed down by Section 361 states 361. Special reasons to be recorded in certain cases.
Where in any case the court could have dealt with-
(a) An accused person under section 360 or under the provisions of the Probation of offenders Act, 1958 (20 of 1958), or
16 17
See section 360(10) State of Kerala v. Chellappan George, 1983 KLT 811.
(b) A youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.
-
This section was inserted in the new code as it was observed that the courts used those statutory provisions incorporated in the Probation of Offenders Act,1958 or the Children Act,1960(Now Juvenile (Care and Protection of children) Act,2000 or any other similar laws only rarely.
-
To insure that such provisions should be used frequently, courts are now required to give reasons in their judgments for not applying the provisions of those special laws whenever they are applicable. However when the nature of offence is such that it could not be dealt with by special laws, no reasons are required to be given.
-
Where the juvenile offender had committed rape and was convicted sentence awarded of rigorous punishment for 10 years was held not to be proper. Provision of section 361 was mandatory. The court must comply with the provisions of section 360,361, suo moto.18
-
Section 361 of the Cr.P.C. supplements the provisions of the Probation of Offenders Act, 1958 and there is no conflict between CrPC and The Probation of Offenders act Section.19
-
Provisions of Section 361 are mandatory.20 Judicial discretion in sentencing
If the convicted person is not released after admonition or on probation of good conduct as mentioned above, the court shall (in case of serious offences after hearing him on the question of sentence) pass sentence upon him according to law.21 There are different kinds of punishments provided by the Indian Penal Code and other laws, such as, death, imprisonment for life, imprisonment (rigorous or simple), forfeiture of property, fine, etc. The penal law often prescribes for an offence two or more kinds of punishments as cumulative or alternative punishments, like 'death or imprisonment for life', 'imprisonment or/and fine', and it is for the court to decide the suitable kind of punishment to be imposed in a particular case. Further, the penal laws normally prescribe the maximum punishment awardable in respect of an 18
Reepik Ravinder v.State of Andhra Pradesh,1991 CrLJ 595(AP) State of Himachal Pradesh v. Lat Singh ,1990 CrLJ 723 (HP) 20 Leela v. State of Rajasthan ,1989 CrLJ NOC 70(Raj) 21 See Ss. 235(2), 248(2), 255(2) 19
offence and then leave it to the court to decide the appropriate sentence for the offence in a particular case subject to the maximum limit prescribed by the law. The question as to how the judicial discretion in sentencing should be exercised is a complex problem. Its solution requires a working compromise between the competing views based on reformative, deterrent, preventive, and retributive theories of punishment. A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances—extenuating or aggravating—of the offence, the prior criminal record, if any, of the offender, his age and educational background, his record as to employment, home life, sobriety and social adjustment, his emotional and mental condition, the prospects for his rehabilitation and return to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrent sentence in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence.22 The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim.23 Modern penology regards crime and criminal as equally material when the right sentence has to be picked out. However in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict of the sentence.24 The Code no doubt provides by Sections 235(2) and 248(2) that if the accused, in a trial before a Court of Session or in a trial of warrant case by a Magistrate, is found guilty, the court or Magistrate shall 'hear' the accused on the question of sentence and then pass sentence on him according to law. The word 'hear' has been used to give an opportunity to the accused to place before the court the various circumstances having a bearing on the question of sentence.25 The non-compliance with the requirement of Section 235(2) or Section 248(2) amounts to bypassing an important stage of the trial and cannot be considered as a mere irregularity in the course of the trial curable under Section 465. It may also be noted that wherever the Probation of Offenders Act is applicable, the court can call for the report of the Probation Officer and the officer would then be under a duty— Santa Singh v. State of Punjab. (1976) 4 SCC 190: 1976 SCC (Cri) 546 at p. 550, per Bhagwati, J. See Dhananjay Chatterjee v. State of W.B., (1994) 2 SCC 220 at p. 239. 24 Ediga Anamma v. State of A.P., (1974) 4 SCC 443: 1974 SCC (Cri) 479 at p. 485: 1974 Cri LJ 683. 25 Tarlok Singh v. State of Punjab, (1977) 3 SCC 218.
22 23
“to inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him, and submit reports to the court.”26 The report of the Probation Officer would be of considerable importance in making appropriate sentencing decisions. Decisions as to specific punishments
(1) Sentence to death. —where death is one of the alternative punishments prescribed for an offence, the discretion given to the court assumes onerous importance and its exercise becomes extremely difficult particularly because of the irrevocable character of the death penalty. Section 354(3) requires that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence. Further, when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead [S. 354(5)]. It would thus appear from Section 354(3) above that the sentence of death may be awarded only for special reasons, that is to say, only special facts and circumstances in a given case, will warrant the passing of the death sentence.27 It is not possible to make a catalogue of the special reasons which may justify the passing of the death sentence. But a few may be indicated : such as the crime has been committed by a professional or hardened criminal or it has been committed in a very brutal manner or on a helpless child or a woman or the like.28
-
The supreme Court observed in the case of Bachan Singh v. State of Punjab 29
See Section 14 of The Probation of Offenders Act,1958 Ambaram v. State of M.P., (1976) 4 SCC 298: 1976 SCC (Cri) 610: 1976 Cri LJ 1716; see also Balwant Singh v. State of Punjab, (1976) 1 SCC 425: 1976 SCC (Cri) 43 at p. 45; Joseph v. State of Goa. (1977) 3 SCC 280: 1977 SCC (Cri) 486: 1977 Cri LJ 1449; Sarveswar Prasad Sharma v. State ofM.P.. (1977) 4 SCC 322: 1977 SCC (Cri) 596 at p. 597; see also Barhan Singh v. State of Punjab, (1979) 3 SCC 727 28 Balwant Singh v. State of Punjab, (1976) 1 SCC 425: 1976 SCC (Cri) 43; Ediga Anamma v. State of A.P., (1974) 4 SCC 443: 1974 SCC (Cri) 479 at pp. 489-490: 1974 Cri LJ 683; Joseph, supra note 17: Bishnu Deo Shaw v. State of W.B., (1979) 3 SCC 817: 1979 SCC (Cri) 817 at p. 828; Dalbir Singh v. State of Punjab, (1979) 3 SCC 745: 1979 SCC (Cri) 848 at p. 855. 29 1980 2 SCC 684 26 27
“As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the 'man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons " can legitimately be said to exist. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia 30, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances": Aggravating circumstances: A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he
30
33 L Ed 2d 346
was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other” -
Though the Supreme court has refused to fetter its discretion, it seems that the court has been limiting the number of death sentence by evolving what is called ‘rarest of rare cases ‘Only in the rarest of rare cases do the courts award death penalty31
-
On the question of standardization of sentence according to degree of culpability and aggravating and mitigating circumstances, the Supreme Court observed as follows
Regarding the question of laying down standards and norms restricting the area of imposition of death penalty, if by "laying down standards", it is meant that 'murder' should be categorized beforehand according to the degrees of its culpability and all the aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion, the argument merits rejection. Such standardization is well-nigh impossible. Firstly, degree of culpability cannot be measured in each case; secondly, criminal cases cannot be categorized, there being infinite, unpredictable and unforeseeable variations; thirdly, on such categorization, the sentencing process will cease to be judicial; and fourthly, such standardization or sentencing discretion is a policy- matter belonging to the legislature beyond the court's function.32 The validity of clause 5 of section 354 was challenged on the ground that it was volatile of Art.21 of the constitution as being perspective of cruel punishment. The Supreme Court however held that the section was valid.33 31
Sevaka Perianal v. State of T.N.. (1991) 3 SCC 471: Juman Khan v. State of U.P., (1991) 3 SCC 752 Mohd.Chaman v. State (NCT of Delhi),2001 CrLJ 725 33 Deena v. Union of India, AIR 1963SC 1115 32
The decision of the trial court awarding the sentence of death is not final unless it is confirmed by the High Court. For this purpose the trial court is required to make a reference to the High Court, and the sentence is not to be executed unless and until it is confirmed by the High Court [S. 366(1)]. The provision regarding reference is applicable irrespective of the appeal that may be filed by the accused person. If the High Court in the reference proceedings thinks that a further inquiry should be made or additional evidence should be taken regarding any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session. [S. 367(1)] The reference case is to be heard by the Bench of Judges and the confirmation of the death sentence is to be made by a majority constituted by two or more Judges. 34In any case submitted by the Court of Session for confirmation of the sentence of death, the High Court— (a) may confirm the sentence or pass any other sentence warranted by law, or (b)
may annul the conviction, and convict the accused of any offence of which the Court of Session might have convicted him, or order a new trial on the same or an amended charge, or
(c)
May acquit the accused person.
However, no order of confirmation shall be made until the period allowed for preferring an appeal has expired, or if an appeal is presented within such period, until such appeal is disposed of (Section 368). Time and again the Supreme Court has pointed out that the proceedings upon reference for confirmation of death sentence are a continuation of the trial on the same evidence or additional evidence. Therefore, it is the duty of the High Court to reappraise the entire evidence and consider the proceedings in all their aspects and then come to an independent conclusion on the merits of the case.35 Considering the irrevocable character of the death penalty it is vitally important that a thorough scrutiny of the decision of the trial court is made by the High Court as a necessary precaution against any possible mistake of the trial court in reaching that decision.
34
[See Ss. 369 and 370 read with S. 392.]
35
Kartarey v. State ofU.P., (1976) 1 SCC 172: 1975 SCC (Cri) 803 at p. 810; Charan Singh v. State of Punjab, (1975) 3 SCC 39: 1974 SCC (Cri) 735 at p. 743: 1974 Cri LJ 1253
(2) Sentence of imprisonment. —Generally the penal laws prescribe the maximum term of imprisonment awardable in respect of an offence. The law does not, except in very exceptional circumstances, prescribe the minimum term of imprisonment that the court must, in the least, award for an offence. In exercising the -discretion in awarding a suitable term of imprisonment in a given case, the court takes into consideration several factors such as the gravity of the offence, the motive of the offender, the harm caused to the victim, the circumstances in which the offence was committed, the age, character and antecedents of the offender, etc. It may also be noted that the Code as a policy is not in favour of short terms of imprisonment being imposed on the offenders. Short-term imprisonment does not serve any useful purpose. It sometimes proves more harmful to the accused. It brands a person as a previous convict without affording him the advantage of living a disciplined life in a jail for a sufficiently long time.36 Therefore, with a view to discourage short terms of imprisonment, Section 354(4) provides: "When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provisions of this Code." When an accused person is convicted of several offences at one trial, the total quantum of punishment for all such offences shall be determined according to the provisions of Section 31. The court may order such punishments when consisting of imprisonment to run either consecutively or concurrently. In a case of consecutive sentences the convicted person is not to be sentenced for a total term of imprisonment exceeding 14 years in the aggregate. The aggregate punishment in such a case is also not to exceed twice the amount of punishment which the court is competent to inflict for a single offence. The Court may pass separate sentences, subject to provisions of section 71 of the Indian Penal Code, for the several offences for which the accused is guilty. Section 71 of the Indian Penal Code provides 1.
That where anything which is an offence is made up of parts, any of which parts is itself an
offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided 2.
That Where anything is an offence falling within two or more separate definitions of any law in
force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a Lekh Raj v. State ,AIR 1960 Punj 482
36
different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences
Also there may be situations where a person who is already undergoing a term of imprisonment is again convicted in a different trial by the same court or by any other court for an offence or offences. In such circumstances Section 427 empowers the court to decide as to whether the subsequent sentence of imprisonment shall commence after expiry of the previous sentence or whether it shall run concurrently with the previous one. It has been reiterated that unless specifically mentioned by the court, sentences shall not be allowed to run concurrently.37 The sentences which a Magistrate or a Judge is competent to pass have been mentioned in Sections 28 and 29. (3) Sentence of fine. —usually fines are prescribed as punishments for offences which are not of serious type. In case of some offences it is prescribed as an alternative to or in addition to any other punishment prescribed for the offence. Usually the law prescribes the maximum limit to which the fine may extend; the minimum is not normally fixed. The court while exercising the discretion in fixing the amount may take into consideration several circumstances including the financial condition of the accused person. It has been specifically provided that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive (Section 63 of the Indian Penal Code). While imposing the sentence of fine the court may direct that in default of payment of fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced (Section 64 of the Indian Penal Code). The Supreme Court has of late shown the trend of awarding fine/compensation in place of imprisonment or imprisonment with fine and insisting for revival of the original punishment in cases of failure to pay fine/compensation. In Jacob Geoge v State of Kerala38the Supreme Court substituted the punishment of 4 years, rigorous imprisonment and Rs 5000 imposed by the Kerala High Court with an amount of Rs. 100000 and a condition that in case of failure of the Kerala HC sentence will revive. (A)
The term for which the court directs the offender to be imprisoned in default of payment
of fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for 37 38
Nathu Ram Bansal v.state of Harayana, 1997CriLJ 1413
1994 3SCC 430
the offence, if the offence be punishable with imprisonment as well as fine.39 Further, if the imprisonment in default of payment of fine is awarded by a Magistrate, it is essential that the term of such imprisonment— -
is not in excess of the powers of the Magistrate under Section 29 of the Code;40
-
shall not, where imprisonment has been awarded as part of the substantive sentence, exceed onefourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. [S. 30(1)] The imprisonment awarded by a Magistrate as above-mentioned may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the magistrate under Section 29. [S. 30(2)] (B)
If the offence is punishable with fine only, the imprisonment in default of payment of fine
shall be simple, and the term of such imprisonment shall not exceed— 1.
two months, if the amount of fine is up to Rs 50;
2.
four months, if the amount of fine is up to Rs 100; and 3.
six months, in any other case.41
Precautionary and preventive orders
(1) Order requiring habitual offenders to notify their whereabouts. —In order to prevent the commission of certain offences42 provisions have been made to enable the authorities to keep a watch on the whereabouts of persons indulging in such crimes. While passing any sentence on any habitual thief, robber, cheat, burglar, counterfeiter of coins and currency notes, etc., the court may require under Section 356 that the whereabouts of such an offender shall be notified in the prescribed manner for a period extending up to five years from the date of his release. (2) Preventive measure against the risk of breach of peace. —When a Court of Session or a court of a Magistrate of the first class convicts a person of an offence involving breach of the
See S. 65 of the Penal Code, But see Jacob George (Dr.) v. State of Kerala, (1994) 3 SCC 430. See Lecture 2, Table at p. 16. 41 See S. 67 of the Penal Code. 42 These offences are covered by S. 215, S. 489-A, S. 489-B, S. 489-C, S. 489-D and also by Chapters XII and XVII of the Penal Code. 39
40
peace,43 the court may, in addition to the sentence that it may award for the offence, order the offender to give security for keeping the peace for a specified period not exceeding three years. [See S. 106]
Compensation and costs
Section 357 of Code of Criminal Procedure
(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied-
(a) In defraying the expenses properly incurred in the prosecution,
(b) In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion, of the court, recoverable by such person in a Civil Court;
(c) When, any person is convicted of any offence for having caused the death of another person or of having abetted the commission of shelf all offence, in paying in, compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) When any person is convicted of any offence which includes theft, criminal, misappropriation, criminal breach of trust or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal his elapsed, or if an, appeal be presented, before the decision of the appeal. 43
Such offences refened to in S. 106 are—offences punishable under Chapter VII of the IPC other than those punishable under Ss. 153-A, 153-B or 154, any offence consisting of or including assault or using criminal force or ^committing mischief, any offence of criminal intimidation or one
(3) When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury reason of the act for which the accused person his been so sentenced.
(4) An order under this section may also be made by all Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section.
Comments
The present section provides for award of expenses or compensation to the prosecution or other person ‘out of’ the fine levied on the accused.44 Section 357 Cr.P.C. bears the heading "Order To Pay Compensation". In Sub-section (1) the power of the Court to utilize a portion of the fine imposed for the purpose of compensating any person for any loss or injury caused by the offence. The new sub section (3) provides for payment of compensation even in cases where the fine does not form a part of the sentence.45 The power of the courts to award compensation under sec 357 is not ancillary to other sentences but is an addition thereto. It is a measure to responding appropriately to crime as well as reconciling the victim with the offender.46 -
Discretion of criminal courts: it is purely within the discretion of the criminal courts to
order or not to order payment of compensation and in practice they are not particularly liberal in utilizing this provision.47 44
B.B.Mitra, Code of Criminal Procedure, Act of 1974, 21 st edition, 2011, kamal Law House; Kolkata,2011, pg. 1887 45 Sawaran Singh v. State AIR 1978 SC 1525. 46 Hari Krishan and State of Haryana v. Sukhbir Singh, AIR 1988 S.C. 2127 at p. 2131. 47 Law commission of India; 41st report (Cr.PC, 1898), 24 th September,1969, Vol. 1, p. 356
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No order for compensation to passed on conviction : when an accused is discharged or
when no fine is imposed, no order for compensation can be passed u/s 357 of CrPC. For sustaining an order for directing expenses to be paid to the state under this provision, there must be a substantive sentence of fine, otherwise no direction under clause(a) can be made.48 -
Compensation can be directed to be paid both in terms of Sub-section (1) of Section 357 of the Code of Criminal Procedure as also Sub-section (3) thereof. However, while exercising jurisdiction under Sub-section (3) of Section 357, no direction can be issued that in default to pay the amount of compensation, the accused shall suffer simple imprisonment. Such an order could have been passed only in terms of Sub-section (1) of Section 357. If the compensation directed to be paid by the Court in exercise of its jurisdiction under Sub-section (3) of Section 357 Cr.P.C. is not deposited, the same can be realized as fine in terms of Section 421 of the Code.49
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According to Section 357(1) it provides for the disbursement of fine imposed by way of compensation, Sub-section (3), merely empowers the Court when it imposes a sentence of which fine does not form a part, to order the accused person to pay, by way of compensation, such amount as may be specified in the order, to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
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In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr 50 , wherein, while considering the difference between the provisions of Section 357(1)(b) and Section 357(3) Cr.P.C., i.e., the difference between "fine" and "compensation" this Court observed that the distinction between Sub-sections (1) and (3) of Section 357 is apparent as Sub-section (1) provides for application of an amount of fine towards the purposes indicated while imposing a sentence of which fine forms a part, whereas Sub-section (3) is applicable in a situation where the Court imposes a sentence of which fine does not form a part of the sentence
48
Girdhari Lal v. State of Punjab , 1982 CrLJ. 1742. Vijayan Vs. Sadanandan K. and Anr 2009CriLJ2957
49
50
MANU/SC/1803/2007: 2007CriLJ2417
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In the case of Hari Singh v. Sukhbir Singh,51 wherein it was, inter alia, held that since the imposition of compensation under Section 357(3) Cr.P.C. was on account of social concern, the Court could enforce the same by imposing sentence in default, particularly when no mode had been prescribed in the Code for recovery of sums awarded as compensation in the event the same remained unpaid
Section 357 (A) of Code of Criminal Procedure
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. (5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.".
Order to pay costs to the successful complainant 51
MANU/SC/0183/1988 : (1998) 4 SCC 551
If in the trial of a non- cognizable offence upon a complaint the accused is convicted, the court may, in addition to the sentence imposed upon the convicted accused, order him to pay to the complainant, in whole or in part, the cost incurred by him in the prosecution. The court may further order that in default of payment, the accused shall suffer simple imprisonment for a period up to 30 days. [S. 359] Compensation for wrongful arrests
Whenever any person causes a police officer to arrest another person, and if it appears to the Magistrate by whom the case is heard that there was not sufficient ground for causing such arrest, the Magistrate may order the person causing the arrest to pay compensation (not exceeding Rs 1000) to the person so arrested for his loss of time and expenses in the matter [S. 358(1)]. If there are more than one person so arrested each may be awarded compensation of thousand rupees [S. 358(2)]. All such compensation may be recovered as if it were a fine, and if it cannot be so recovered, the person liable to pay shall be sentenced to simple imprisonment up to 30 days. [S. 358(3)] Generally it is for the police to decide whether there are reasonable grounds for making arrest of the accused person. Therefore, something more is needed than the mere information sent to the police in order to hold that the person who filed the police complaint caused the arrest.52 It has been opined that a show-cause must be read in to the provisions of Section 358.53 There have been instances where the judiciary ordered compensation by the State to be paid to the victim because of the failure of the police to process prosecution.54 In a case the police was asked to bear the cost of petition against them filed by victims of their illegal acts. 55 In one case the High Court in exercise of inherent powers ordered the complainant to pay compensation to the harassed defendant,56 in another the complainant was asked to pay the cost to the Government, rather than to the defendant.57 Modes of Pronouncing the Judgment Mallappa v. Veerabasappa, 1977 Cri LJ 1856 (Kant HC). Also see Pramod Kumar v. Golekha, 1986 Cri LJ 1634 (Ori HC). 53 Pramod Kumar v. Golekha, 1986 Cri U 1634 (Ori HC). 54 Hazari Chaubey v. State of Bihar, 1988 Cri U 1390 (Pat HC). 55 Padam Dev v. State ofH.P., 1989 Cri LJ 383 (HP HC). 56 Jamnaprasad Sarju Tiwari v. Saban K. Dhone, 1993 Cri U 1470 (Bom HC). 57 D.M. Seth v. Ganesh Narayan, 1993 Cri U 1899 (Bom). 52
A judgment is the final decision of the court intimated to the parties and the world at large by formal "pronouncement" or "delivery" in open court.58 The rules made by the Code in this connection are intended to secure certainty in the ascertainment of what the judgment was. Therefore until the judgment is ‘delivered’ or ‘pronounced’ in compliance with such rules it is strictly speaking no judgment, and the judge can at such a stage change his mind and make alterations in the judgment.
Section 353 deals with modes of pronouncing a judgment, which reads as follows353. Judgment - (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be
pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders.
(a) By delivering the whole of the judgment: or
(b) By reading out the whole of the judgment: or
(c) By reading out the operative part of the judgment and explaining the substance of the judgment in a language, which is understood by the accused or his p leader.
(2) Where the judgment is delivered under clause (a) of sub-section (I), the presiding officer shall cause it to be taken down in short hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of subsection (1), as the case may be, it shall be dated and signed by the presiding officer in open court and if it is not written with his own hand, every page of the judgment shall be signed by him.
(4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), he whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.
58
1.1. Sodawala v. State of Maharashtra, (1975) 3 SCC 140: 1974 SCC (Cri) 764 at p. 771: 1974 Cri IJ 1291: SunauJm Singh v. State ofU.P., AIR 1954 SC 194: 1954 Cri LJ 475.
(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted:
Provided that, where there are more accused than one, and one or more of them do not attend the court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.
(8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465.
Comments
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‘Shall be pronounced’ -that is the ,shall be read out in open court
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‘in open court’ -if a judge dies after writing his judgment but before delivering it in open
court, the judgment is not to be considered as a judgment but merely as an opinion. If a judge who prepared the judgment died before it was delivered another judge cannot deliver it.59 No expression of opinion by a judge becomes judgment until it is pronounced.60 -
After the termination of the trial -the legality or illegality of a judgment in consequence
of its delivery after sentence is passed is a question that can only be answered according to the facts of each case. Where no material prejudice is caused, the omission to write a judgment at the time of passing of the sentence cannot be regarded as an illegality. It is a mere irregularity cured by section 465.61 The Allahabad and Madras High Courts have held
59
Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194 Nundeeput Mahta v. Alexander Shaw ,1870 13 WR 209 61 Thaver Issaji Boree, 1911 13 Bom LR 635 60
that the sentence is illegal if there is no written judgment when it is passed. 62The Calcutta High Court has held that such a sentence is not illegal if there is no failure of justice.63 -
“At some subsequent time” - These words contemplate passing of judgment without
undue delay, as any delay in passing of the judgment would be opposed to the principle of law.64 -
The Supreme Court has given a very timely judgment regarding the undesirable practice of some judges delivering judgments after several months since completion of hearing. The court has correctly perceived it to be a violation of the speedy trial right enshrined in Article 21 of the Constitution.65 -
The ‘presiding officer’ means a presiding officer at the trial, who is assumed in the section to have written and pronounced his judgment while still holding the same office. 66An omission to sign and date a judgment at the time of pronouncing it amounts to a mere irregularity curable by section 465.67
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The provisions regarding dating and signing of written judgment do not apply to a high court. Section 388 requires that the judgment of the High Court should be certified to the court below.68
Court not to alter judgment —Save as otherwise provided, no court when it has signed its
judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. [S. 362]
62
Hargobind ,1892 14 All 242; Bandanu Atchayya ,1903 27 Mad 237 Tilak Chandra v. Baisagomoff ,1896 23 Cal 502 64 Anil Rai v. State of Bihar , 2001 7 SCC 318 65 Ibid . The Court in this case has issued certain guidelines to be followed by the courts in India till Parliament make measures to deal with the problem of delayed delivery of judgment. 66 Alli Kahn ,(1947) Mad 365 67 Sodawala, AIR 1974 SC 1880 68 Pragmadho Singh,1932 55 All 132 63
Bibliography
1. B.B.Mitra, Code of Criminal Procedure, Act of 1974, 21st edition, 2011, kamal Law House;
Kolkata,2011 2. Law commission of India; 41st report (CrPC, 1898), 24th September,1969, Vol. 1 3. Ratanlal and Dhirajlal, The Code of Criminal Procedure, 20th Edition, Wadhhwa and
Company, Nagpur. 4. R. V. Kelkar’s, Criminal Procedure, 5th Edition, Eastern Book Company, 2008 5. Woodroffe, Commentaries on Code of Criminal Procedure, 3rd Edition, Law Publishers,
Allahabad, 2010. Websites Referred -
www.vakilno1.com/bareacts/CrPc/s354.htm
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http://iitbiimb498a.wordpress.com/judgment-devoid-of-reasons-nonmaintenable/
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http://www.taxindiaonline.com/RC2/pdfdocs/Crpc.pdf
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kja.nic.in/article/Sessions%20Trial.pdf
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http://jajharkhand.in/judg/sc/pdf/NEGOTIABLE%20INSTRUMENTS %20ACT/Default%20Sentence%20While%20Ordering %20Compensation/Vijayan%20Vs%20Sadanandan %20%202009%206%20SCC%20652.pdf
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http://aipoa.com/doc/File904.pdf
