Sentencing is not a routine tailpiece to conviction. Once guilt is recorded, the Sessions Judge enters a distinct judicial stage in which fairness, statutory discipline, and recorded reasons become critical; many otherwise sustainable convictions are exposed to appellate criticism because the sentencing part is casual, mechanical, or incomplete.
Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the safest approach is to treat the process from conviction onward as a structured legal sequence: record a precise finding of guilt, hear the accused on sentence, consider aggravating and mitigating factors, examine previous conviction only in the manner permitted by law, apply probation and compensation provisions where relevant, stay within statutory sentencing limits, grant set-off, and complete all consequential formalities.
The statutory backbone under BNSS
Chapter XIX of the BNSS governs trial before a Court of Session, and sections 248 to 259 set out the final stages of the Sessions trial ending in arguments, judgment of acquittal or conviction, and previous conviction. Section 258 is the key provision for judgment after arguments, while section 259 specifically permits the court, after conviction on the principal offence, to take evidence regarding an alleged previous conviction charged under section 234(7) BNSS and record a finding thereon.
The wider sentencing framework is spread across Chapter III and Chapter XXIX. Section 22 deals with the sentences that High Courts and Sessions Judges may pass; section 25 governs sentence in cases of conviction for several offences at one trial; and Chapter XXIX includes section 395 (order to pay compensation), section 396 (victim compensation scheme), section 401 (release on probation of good conduct or after admonition), section 402 (special reasons to be recorded in certain cases), section 404 (copy of judgment to accused and other persons), section 405 (translation of judgment), and section 406 (copy of finding and sentence to District Magistrate).
First precaution: make the conviction order exact
Before thinking of sentence, the conviction itself must be drafted with precision. The judgment should clearly state the exact section of the Bharatiya Nyaya Sanhita, 2023 or of the special statute under which the accused stands convicted, because the lawful sentencing range depends entirely on that finding.
A vague or loosely worded conviction order creates avoidable trouble at sentencing. The Sessions Judge should ensure that each charge is separately answered, the findings are reasoned, and the operative part leaves no ambiguity about the offence proved, because sentencing cannot lawfully proceed on an uncertain foundation.
Second precaution: do not treat sentencing as automatic
The greatest danger at the post-conviction stage is to move directly from “convicted” to “sentenced” without a real hearing. The Supreme Court has repeatedly explained, in the context of section 235(2) CrPC, that the hearing on sentence is not discharged by a ritual question; the judge must make a genuine effort to elicit all material bearing on punishment.
That jurisprudence remains directly relevant to BNSS sentencing practice because section 258 BNSS preserves the same essential structure of bifurcation between conviction and sentence. The safest judicial method is therefore to expressly record that the accused, the prosecution, and where relevant the victim were heard on sentence before the punishment was determined.
Is a separate date compulsory? The legally correct position
A refined statement is necessary here. It is not correct to say that in every case sentence must always be postponed to another date; the Supreme Court has clarified that what the law insists upon is a meaningful and effective hearing, measured qualitatively rather than merely by the number of days granted.
At the same time, the Court has also stressed that same-day sentencing, especially in grave cases, often becomes vulnerable when the accused is not given a genuine chance to present antecedents, social background, mitigating factors, or material bearing on reform. Therefore, as a matter of best practice, a Sessions Judge should ordinarily grant a separate date in serious cases or where severe punishment is under consideration, even though the legal test remains effectiveness of hearing rather than mechanical adjournment.
What should happen in a proper hearing on sentence?
A proper sentencing hearing should not be skeletal. The prosecutor should be allowed to place aggravating circumstances such as brutality, premeditation, vulnerability of the victim, abuse of trust, criminal antecedents, societal impact, or victim harm; the defence should be permitted to place mitigating circumstances such as age, health, family circumstances, absence of prior record, remorse, lesser role, possibility of reform, or the period already undergone in custody.
The Supreme Court has also recognised that the sentencing stage may require additional material beyond the evidence strictly relevant to guilt. That means the Sessions Judge may, where the case requires, permit affidavits, reports, or other material relevant to sentence, while ensuring that the hearing is not converted into an instrument for unnecessary delay.
Third precaution: previous conviction must be handled only after guilt
Section 259 BNSS is an important safeguard against prejudice. Where previous conviction is charged under section 234(7) BNSS and the accused does not admit it, the Judge may take evidence regarding that alleged previous conviction only after convicting the accused under section 252 or section 258, and must then record a finding on it.
This sequencing is vital. A Sessions Judge should not permit the prosecution to contaminate the trial on guilt by relying prematurely on previous convictions, because the statutory design is meant to prevent prejudice while still allowing lawful consideration of antecedents where enhanced punishment is authorised.
Fourth precaution: sentencing reasons must show judicial application of mind
A legally sound sentencing order must disclose why the court chose the sentence it did. It is not enough to say that “having regard to the facts and circumstances” a particular sentence is imposed; the order should identify the major aggravating and mitigating circumstances that weighed with the court and show how the balance was struck.
This is especially important because sentencing requires consideration not only of the crime but also of the criminal. Supreme Court authority explains that sentencing must take account of the offender’s background, prior record, prospects of rehabilitation, social circumstances, and all other relevant facts necessary to choose a proper punishment.
Fifth precaution: remain within statutory sentencing powers
Section 22 BNSS confirms that High Courts, Sessions Judges and Additional Sessions Judges may pass any sentence authorised by law, but a sentence of death passed by a Sessions Court does not take effect unless confirmed by the High Court. A Sessions Judge must therefore always verify that the punishment imposed is one permitted by the substantive penal provision and that any special statutory minimum or special statutory restriction has been respected.
Where the accused is convicted of several offences in one trial, section 25 BNSS permits separate punishments and allows the court to decide whether they will run concurrently or consecutively. However, the aggregate punishment cannot exceed twenty years and cannot exceed twice the maximum punishment the court is competent to inflict for a single offence. The operative order should therefore expressly state whether the sentences are concurrent or consecutive, instead of leaving jail authorities or appellate courts to infer it.
Sixth precaution: consider probation wherever legally open
Section 401 BNSS preserves the probation/admonition jurisdiction in substance. Therefore, before imposing substantive imprisonment in a case where probation may legally be available, the Sessions Judge should record that the court has considered whether release on probation of good conduct or after admonition is appropriate.
This does not mean probation must be granted in serious cases. It means the order should show awareness of the reformative option where the statute permits it, especially for first-time offenders, younger offenders, or comparatively less grave offences; if refused, brief reasons should be recorded so the order reflects conscious judicial choice and not oversight.
Seventh precaution: compensation is not optional silence
A polished sentencing order under BNSS should not ignore the victim. Section 395 of BNSS empowers the court, when passing judgment, to order the accused to pay compensation to the victim, and section 396 provides the statutory victim compensation scheme through the State and Legal Services Authorities.
Judicial best practice is therefore to address compensation explicitly. The court should say whether compensation is being awarded, whether compensation from the accused is adequate, and if not, whether a recommendation under the victim compensation scheme is being made for rehabilitation through the District Legal Services Authority or State Legal Services Authority.
Eighth precaution: record special reasons where law demands it
Section 402 BNSS itself is titled “Special reasons to be recorded in certain cases.” Accordingly, wherever the sentencing law or statutory framework calls for special reasons, the court must record reasons that are specific to the facts of the case and not merely formulaic recitals.
This matters especially in grave cases and in cases involving statutory minimums or exceptional punishments. The more serious the sentence, the more carefully the reasons must be articulated.
Ninth precaution: never forget set-off
Section 468 BNSS carries forward the principle of set-off of pre-trial detention against the sentence of imprisonment imposed on conviction. A sentencing order should therefore expressly direct that the accused shall be entitled to set-off under section 468 BNSS for the period of detention already undergone during investigation, inquiry, or trial.
This is not a clerical nicety. Failure to mention set-off leads to execution-stage confusion, jail disputes, and unnecessary applications, all of which are avoidable if the sentencing portion is drafted with care.
Tenth precaution: complete the post-sentence formalities
The sentencing exercise is not complete when the punishment is pronounced. Sections 404, 405 and 406 BNSS require the court to ensure supply of copy of judgment, translation where necessary, and communication of the finding and sentence to the District Magistrate.
If the sentence is death, the statutory route changes immediately: section 407 requires the Court of Session to submit the death sentence for confirmation by the High Court. A Sessions Judge must remember that such a sentence has no operative finality unless and until the High Court confirms it under Chapter XXX.
How should the sentencing portion be drafted?
A Sessions Judge will avoid many errors by making the sentencing portion read as a compact, speaking order within the judgment. A sound structure would be:
State the exact provisions under which the accused is convicted.Record that the court heard the prosecution and the accused on the question of sentence under section 258 BNSS.
Summarise the aggravating and mitigating circumstances accepted by the court.
Record consideration of previous conviction, if lawfully raised, under section 259 BNSS.
State whether section 401 BNSS and probation principles were considered, and why probation is granted or refused.
Address compensation under sections 395 and 396 BNSS.
Specify the kind of imprisonment, duration, fine, default sentence, and whether sentences are concurrent or consecutive under section 25 BNSS.
Grant set-off under section 468 BNSS.
Record consequential directions regarding custody, supply of copy, and right of appeal as a matter of fair process.
Common sentencing mistakes that invite appellate interference
Certain mistakes recur in trial courts and should be consciously avoided:
Treating the hearing on sentence as a mere formality.
Imposing sentence without recording real aggravating and mitigating reasons.
Referring to previous convictions before guilt is first determined on the main charge.
Failing to specify whether sentences are concurrent or consecutive in multi-count convictions.
Forgetting probation, compensation, or set-off.
Passing a death sentence without immediate compliance with confirmation procedure.
Final word
A careful Sessions Judge does not merely convict and punish; the Judge demonstrates on the face of the record that punishment was imposed after hearing, reflection, statutory compliance, and reasons. Under the BNSS, the surest way to avoid illegality is to treat sentencing as a distinct judicial responsibility—structured, fair, and speaking in every material respect.
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