Sentencing policy
Punishment is imposed for social discipline and to do justice.
The legislative framework In India.
The Indian Penal Code, 1860 (IPC) & to name a few, special and local laws dealing with those crimes which are not included in the IPC, e.g. Narcotic Drugs and Psychotropic Substances Act, 1985, Prevention of Food Adulteration Act,1954, Prevention of Corruption Act,1986, Sexual Harassment (prevention, protection and rehabilitation) Act, 2013 define the offences and also prescribes punishment that may be awarded by the courts on trial.
The Criminal Procedure Code, 1973 deal procedural aspect of criminal law.
In India, the criminal justice system, recognizes following punishment for the commission of crime.
1. Death penalty.
2. Imprisonment for life.
3. Rigorous imprisonment, i.e., with hard labor.
4. Simple imprisonment.
5. Solitary confinement.
6. Forfeiture of property.
7. Fine.
8. Probation of offender for good conduct.
9. Admonition.
10. Compensation.
11. Order to pay costs in non-cognizable cases.
12. Apology in Court.
Indian Penal Code, 1860
Chapter III of IPC deals with punishments.
Section 53 envisages primarily five kinds of punishment.
These include Death Sentence, Life Imprisonment, Imprisonment (simple or
rigorous), Forfeiture of Property, and Fine.
Section 73 prescribes solitary confinement.
Section 54 deals with commutation of sentence of death
Ssection 55 deals with commutation of sentence of life imprisonment.
Section 57 clarifies that life imprisonment is to be constructed as imprisonment for a period of 20 years.
After the 2013 Criminal Law Amendment Act, section 376A, 376 D, 376E have added a new dimension to the ‘life imprisonment’ by specifying that it shall mean imprisonment for the remainder of that person’ natural life.
Criminal Procedure Code, 1973
The Cr PC empowers the high courts and sessions courts to impose any of these sentences, except that in case death sentence is awarded by the sessions court, it has to be confirmed by the high court of the state.
The subordinate judiciary has clearly specified powers and authority to try
cases of specific nature and award punishments accordingly.
Discretionary paradigm of sentencing
Generally the IPC and other special laws dealing with crime provide for a discretionary paradigm of sentencing. The maximum term of punishment is specified for a specific offence and the judge has the authority to determine the quantum of sentence to be awarded in a given case upon conviction.
On the question of how sentence ought to be determined the Law Commission of India in its 47th Report observed:
The Law Commission of India in its 47th Report on the question of how sentence ought to be determined observed:
A proper sentence is a composite of many factors, aggravating, mitigating or -extenuating circumstances including the nature of offence, the prior professional or social record, criminal record, if any, of the offender, the age of the offender, the background of the offender with reference to the education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to 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 this offender,or by others, and the present community need, if any, of such a deterrent in respect to the particular type of offense involved.
---For imposing substantial punishment, many aspects are taken into account. Similarly for reducing the quantum, factors which mitigate are also taken into account. Therefore in the sentencing process, both these factors are taken together which will have to weigh with a Judge who passes the sentence.
Various Aggravating factors:
Seriousness of the offence is aggravated when victim is specially vulnerable, where the offender takes advantage of a helpless person; a very young or very old or handicapped person.
Breach of trust. Where accused takes disadvantage by abusing his position & office. A premeditated crime executed with professionalism also is an aggravating factor. Excessive violence, offences by a group or an offence committed by a person on bail …
Factors which mitigate the seriousness of the offence.
Offence committed under grave provocation, offender acting in right of private defence .
Other extenuating factors –
young age of offender, old age of offender, offender’s previous character, offender has performed meritorious service, offender shows remorse, offender plead guilty.
Serious illness of the offender, effect of sentence on the family, passage of time after he committed the offence and trial .
No statutory sentencing policy
Unlike several countries around the world with laws prescribing sentencing guidelines, there is no statutory sentencing policy in India till date.
What the IPC prescribes is only the maximum punishments for offences and, in some cases, the minimum punishment.
Consequently, Judges exercise very wide discretion within the statutory limits and the scope for arriving at sentence.
The task of deciding the quantum of punishment is left to the judiciary to reach, after hearing the parties, evaluating/attaching weights to the pieces of evidence adduced. In the absence of such statutory guidelines, judges’ discretion prevail.
Indian judiciary has come of age and deserve appropriate sentencing policy. Individualization, non-uniform or random sentencing status in India needs to give way for certainty and logicality in the award of sentence.
Having sentencing guidelines in place will enable the courts respond to the daily cry for justice and the yearnings of the community. The judges should be able to award appropriate punishment proportionate to crime committed. It is only by so doing that the retributive and just desert theories of criminal punishments can be met.
Post- conviction phase of sentencing- determination of sentence
sections 235(2), 248(2) and 255(2).
Generally after the pronouncement of conviction a separate date is fixed for hearing arguments on quantum of sentence where both the parties to the case are entitled to put evidence before the court relating to factors relevant for sentencing.
Hearing on the sentence is mandatory and a punishment pronounced without giving an opportunity of hearing on sentence, within the mandated requirements of law shall be quashed in appeal.
The court has the power to release a person on probation of good conduct or after admonition simply under the provisions of Cr PC or Probation of Offender” Act, 1958.
The court may award Fine, compensation, imprisonment or capital punishment but it has to be a reasoned order.
Sections 432 and 433, Cr PC empower the appropriate government to suspend, remit or commute sentence. Even the life imprisonment can be commuted to an imprisonment for a period not exceeding 14 yrs.
Law Commission of India in its 48th report had pointed out the deficiency about
( lack of comprehensive information as to characteristics and background of the offender)
Section 235(2) Cr PC contains just a hearing procedure to be followed while deciding the quantum of sentence post- conviction. It is more of mercy plea, provisional opportunity wherein the convict should be called upon to show cause while the maximum penalty should not be imposed on him. The convict’s submissions may be outside the facts in issue. The social-economic standing of the convict may mitigate the punishment and could influence the judge in deciding the sentence.
Punishment must be severe enough to act as a deterrent but not too severe to be brutal. Similarly punishments should be moderate enough to be human but cannot be too moderate to be ineffective.
In the absence of comprehensive guidelines for determining the kind and quantum of sentence in the Code of Criminal Procedure, the judiciary has recognized certain factors that must be kept in mind while determining an appropriate sentence in a particular case.
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