“If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella’s illegitimate baby”
Nigel Walker.
British criminologist
Sentencing in a Rational Society 1 (1969)
Section 235 of the CrPC, 1973
“235. Judgment of acquittal or conviction.-
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the questions of sentence, and then pass sentence on him according to law.”
Section 360 of the CrPC, 1973
“360. Order to release on probation of good conduct or after admonition.-
(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he 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 direct and in the meantime to keep the peace and be of good behaviour:
Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court , and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, 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, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court , or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of Sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court , before directing the release of an offender under sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may after hearing the case, pass sentence.
(10 ) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or 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.”
Section 3 of the Probation of Offenders Act, 1958
“3. Power of court to release certain offenders after admonition.-
When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.
Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.”
Section 4 of the Probation of Offenders Act, 1958
“4. Power of court to release certain offenders on probation of good conduct.-
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he 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 direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year , as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”
Section 6 of the Probation of Offenders Act 1958
“6. Restrictions on imprisonment of offenders under twenty-one years of age.-
(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.”
In Sunita Devi v. State of Bihar (2024), the Court held that,
“28. Before passing the sentence on a convict, after rendering conviction, the Judge shall consider the feasibility of proceeding in accordance with the provisions of Section 360 of the CrPC, 1973 which speaks of releasing a convict on probation of good conduct or after admonition. Being a beneficial provision dealing with a reformative aspect, it is the bounden duty of the Judge to consider the application of this provision before proceeding to hear the accused on sentence. While doing so, the Judge has to hear the accused and the prosecution. Similarly, the Court has to apply the salient provisions contained under Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 (hereinafter referred to as “Act, 1958”). If an offence is considered as an act against the society, the resultant action cannot be retributive alone, as equal importance is required, if not more, to be given to the reformative part.
The ultimate goal is to bring the accused back on the rails, to once again be a part of society. Any attempt to ignore either Section 360 of the CrPC, 1973 or the provisions as mandated in the Act, 1958 would make their purpose redundant. It looks as if these laudable provisions have been lost sight of while rendering a sentence. The ultimate objective is to prevent the commission of such offences in future. It can never be done by a retributive measure alone, as a change of heart at the behest of the accused is the best way to prevent an act of crime.
Therefore, we have absolute clarity in our mind, that a trial court is duty bound to comply with the mandate of Section 360 of the CrPC, 1973 read with Sections 3, 4 and 6 of the Act, 1958 before embarking into the question of sentence. In this connection, we may note that sub-section (10 ) of Section 360 of the CrPC, 1973 makes a conscious effort to remind the Judge of the rigour of the beneficial provisions contained in the Act, 1958.
29. Hearing the accused on sentence is a valuable right conferred on the accused. The real importance lies only with the sentence, as against the conviction. Unfortunately, we do not have a clear policy or legislation when it comes to sentencing. Over the years, it has become judge-centric and there are admitted disparities in awarding a sentence.
30. In a country like ours, sentencing accused persons pursuant to a conviction, on a uniform pattern, would also be prejudicial. When it comes to sentencing, there are various factors such as age, sex, education, home life, social background, emotional and mental conditions, caste, religion and community that constitute aggravating and mitigating circumstances.
31. There is a distinction between knowledge and character. Knowledge is acquired, while character is formed. The formation of a person’s character depends upon various factors. More often than not, a convict does not have control over the formation of his character. This leads to certain groups of people inheriting crime. In this connection, we can draw an analogy from nature itself. Before falling on the ground, rainwater remains the same. It is the soil which changes the character of the water. Rainwater partakes in the character of the soil, over which it does not have any control. The issues are extremely complex.
32. A decision of a Judge in sentencing, would vary from person to person. This will also vary from stage to stage. It is controlled by the mind. The environment and the upbringing of a Judge would become the ultimate arbiter in deciding the sentence. A Judge from an affluent background might have a different mindset as against a Judge from a humble one. A female Judge might look at it differently, when compared to her male counterpart. An Appellate Court might tinker with the sentence due to its experience, and the external factors like institutional constraints might come into play. Certainly, there is a crying need for a clear sentencing policy, which should never be judge-centric as the society has to know the basis of a sentence.
33. Sentencing shall not be a mere lottery. It shall also not be an outcome of a knee-jerk reaction. This is a very important part of the Fundamental Rights conferred under Articles 14 and 21 of the Constitution of India , 1950 . Any unwarranted disparity would be against the very concept of a fair trial and, therefore, against justice.
34. Various elements such as deterrence, incapacitation and reformation should form part of sentencing. There is a compelling need for a studied scrutiny of sentencing, to address in particular the reformative aspect, while maintaining equality between different groups. Perhaps, much study is also required on the occurence of repeat offences, which could be attributable to certain groups. The nexus between particular types of offences and the offenders forming their own groups has to be taken note of and addressed.
35. The concept of intuitive sentencing is against the rule of law. A Judge can never have unrestrictive and unbridled discretion, based upon his conscience formed through his understanding of the society, without there being any guidelines in awarding a sentence. The need for adequate guidelines for exercising sentencing discretion, avoiding unwanted disparity, is of utmost importance.
36. Courts do take into consideration the mitigating and aggravating circumstances. As we have dealt with illustratively, no research has been undertaken for constituting what are aggravating and mitigating circumstances. While it would be appropriate to follow `beyond reasonable doubt’ standard in adjudicating aggravating circumstances, the `balance of probability’ standard is required while construing mitigating circumstances. Courts may also be guided by the conduct of the convict during pre-trial stage, either under incarceration or otherwise. A report may well be called for from the designated authority. The ultimate idea is to eliminate discretion on the part of the Court , which obviously leads to disparity.
37. As we discuss the issue we have flagged, we understand that the issue is an extremely complex one and it is the duty of the States and the Union of India to deal with the situation by duly considering the three different modes discussed above. There has to be a conscious discussion and debate over this issue which might require constituting an appropriate Commission on Sentencing consisting of various experts and stakeholders. We illustratively suggest “the members from the legal fraternity, psychologists, sociologists, criminologists, executives and legislators”. Societal experience would come handy in coming to a correct conclusion.
What we have at present is an imposition of a sentence by way of a legislation. There are obvious errors and lacunae, which have been pointed out in the preceding discussion. It may also be imperative for a court to have an assessment to be made by an independent authority on the conduct and behaviour of the accused for the purpose of deciding the sentence. The guidelines which have been proposed by this Court may also be considered. This would include the creation of a competent authority tasked to give a report and its composition.
Manoj v . State of M.P., (2023) 2 SCC 353
“230. The strength of “precedent” and “consistency” is perhaps, therefore, lowest when it comes to matters of sentencing, as long as it is within the confines of legality and resulting in “principled sentencing”. In other words, the judicial incongruence when it relates to sentencing, would in fact be a positive indicator, rather than a negative one, provided it is still within the well-defined contours of “principled” sentencing. For sentencing in capital offences, discretion to arrive at individualised sentences is encouraged, but must be constrained by the “rarest of rare” principle, wherein the court considers aggravating circumstances of the crime, and mitigating circumstances of the criminal (a “liberal and expansive” construction of the latter), which in turn must inform their consideration of whether the option of life imprisonment is unquestionably foreclosed owing to an impossibility [ Held to be “probability” and not “impossibility” in Rajendra Pralhadrao Wasnik v . State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] to reform.
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233. Therefore, “individualised, principled sentencing” – based on both the crime and criminal, with consideration of whether reform or rehabilitation is achievable (held to be “probable” in Rajendra Pralhadrao Wasnik [Rajendra Pralhadrao Wasnik v . State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] ), and consequently whether the option of life imprisonment is unquestionably foreclosed – should be the only factor of “commonality” that must be discernible from decisions relating to capital offences. With the creation of a new sentencing threshold in Swamy Shraddananda (2) [Swamy Shraddananda (2) v . State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] , and later affirmed by a Constitution Bench in Union of India v . V . Sriharan [Union of India v . V . Sriharan, (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695] , of life imprisonment without statutory remission (i.e. Articles 72 and 161 of the Constitution are still applicable), yet another option exists, before imposition of death sentence. However, serious concern has been raised against this concept, as it was upheld by a narrow majority, and is left to be considered at an appropriate time.
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Practical guidelines to collect mitigating circumstances
248. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.
249. To do this, the trial court must elicit information from the accused and the State , both. The State , must-for an offence carrying capital punishment-at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person’s frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh [Bachan Singh v . State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] . Even for the other factors of (3) and (4)-an onus placed squarely on the State -conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison i.e. to evaluate the progress of the accused towards reformation, achieved during the incarceration period.
250. Next, the State , must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows:
(a) Age
(b) Early family background (siblings, protection of parents, any history of violence or neglect)
(c) Present family background (surviving family members, whether married, has children, etc.)
(d) Type and level of education
(e) Socio-economic background (including conditions of poverty or deprivation, if any)
(f) Criminal antecedents (details of offence and whether convicted, sentence served, if any)
(g) Income and the kind of employment (whether none, or temporary or permanent, etc.);
(h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any), etc.
This information should mandatorily be available to the trial court , at the sentencing stage. The accused too, should be given the same opportunity to produce evidence in rebuttal, towards establishing all mitigating circumstances.
251. Lastly, information regarding the accused’s jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e. Probation and Welfare Officer, Superintendent of Jail, etc.). If the appeal is heard after a long hiatus from the trial court’s conviction, or High Court’s confirmation, as the case may be – a fresh report (rather than the one used by the previous court ) from the jail authorities is recommended, for a more exact and complete understanding of the contemporaneous progress made by the accused, in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress, and reveal post-conviction mental illness, if any.
252. It is pertinent to point out that this Court in Anil v . State of Maharashtra [Anil v . State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266] has in fact directed criminal courts to call for additional material : (SCC p. 86, para 33)
“33. … Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case.”
(emphasis supplied)
We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of death sentence.”
Reference
Sunita Devi v. State of Bihar (2024)