This is an excerpt from the judgment State of Karnataka v. Puttaraja.
The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of 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. 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 of law which must be achieved by imposing appropriate sentence.
Therefore, law as a corner stone of the edifice of “order” should meet the challenges confronting the society. Friedman in his “Law in Changing Society” stated that, “State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society”. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence ideology 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, the indelible impact on the victim and his family and all other attending circumstances are relevant facts which would enter into the realm of consideration.
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 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. This position was illuminatingly stated by Supreme Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 Supreme Court 1463 : 1991(2) RCR (Criminal) 427 (SC)).
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.
Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greater severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the gravity of the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
After giving due consideration to 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 Mc Gautha v. State of California, 402 US 183 : 28 L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infitie variety of circumstances that may affect the gravity of the crime. 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.
The object 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.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women like the case at hand, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact and serious repercussions on social order, and public interest, cannot be lost sight of and per se require exemplary treatment.
Any liberal attitude by imposing meagre sentence or taking too sympathic view merely on account of lapse of time of considerations personal to the accused only in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence in-built in the sentencing system.
In Dhananjoy Chatterjee v. State of W.B. (1994(2) SCC 220 : 1994(1) RCR (Criminal) 429 (SC), Supreme Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system’s cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
Similar view has also expressed in Ravji v. State of Rajasthan, (1996(2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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. 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”.
These aspects have been highlighted in State of M.P. v. Ghanshyam Singh (2003(8) SCC 13 : 2003(4) RCR (Criminal) 564 (SC)). Rape is violation with violence of the private person of the victim, an abominable outrage by all canous.
14. In the background what has been stated in Ghanshyam Singh’s case (supra) the inevitable conclusion is that the High Court was not justified in restricting the sentence to the period already undergone, which is 46 days. Leniency in matters involving sexual offences is not only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the conviction of the accused are not only shocking but outrageous in their contours. The only reason indicated by the High Court for awarding sentences lesser than prescribed minimum is quoted below :
“I have heard at length the submission of Mr. Bhagavan, learned counsel for the accused, on the question of sentence. He submitted that the accused is a cooli and agriculturists, young man aged 22 years old and requires sympathy. It is also relevant to point out that the occurrence took place in the year 1985 and a long time has lapsed. The trial and the appeal have kept the appellant busy is court. Taking all these factors into account I feel that the appellant need not be sentenced to imprisonment since he was already in custody for a period of 46 days.”
If the above can be described as “adequate and special reasons” then it would be insulting to ratiocination.
Reference
State of Karnataka v. Puttaraja (2003)