Section 353 of the Code of Criminal Procedure provides that the judgment in every trial in any Criminal Court of original jurisdiction is to be pronounced in the open Court by the presiding officer of that Court. Such judgement is to be given immediately after the termination of the trial or at any subsequent time, of which notice should be given to the parties or to their pleaders. The judgement is to be given—
Image Source: orig05.deviantart.net
(a) By delivering the whole of the judgement; or
ADVERTISEMENTS:
(b) By reading out the whole of the judgement; or
(c) By reading out the operative part of the judgement, and explaining the substance of the judgement in a language which is understood by the accused or by his pleader.
Where the judgement is delivered as per clause (a) above, the presiding officer must cause it to be taken down in shorthand, sign the transcript and every page thereof as soon as it is ready, and write thereon the date of the delivery of the judgement.
If the judgement is pronounced as per clause (c) above, the whole judgement, or a copy thereof, is to be made available immediately for the perusal of the parties or their pleaders, free of cost.
ADVERTISEMENTS:
If the accused is in custody, he is to be brought to hear the judgement pronounced. If the accused is not in custody, he is not to be called upon to attend and hear the judgement pronounced, except where his personal attendance at the trial has been dispensed with, and the sentence is one of fine only, or when he is acquitted.
If, however, there are several accused persons, and one or more of them do not attend the Court when the judgement is to be pronounced, in order to avoid unnecessary delay, the presiding officer may pronounce the judgement, notwithstanding their absence.
It is further provided that no judgement delivered by any Criminal Court is invalid only by reason of the absence of any party or his pleader on the day or from the place notified for the delivery of the judgement, or on account of any omission to serve, or any defect in serving, the notice of such day and place on the parties, on their pleaders, or any of them.
It is also provided that every judgement as delivered above must further comply with the following eight requirements:
ADVERTISEMENTS:
1. It must be written in the language of the Court.
2. It must contain the points for determination, the decision on those points and the reasons for the decision.
3. It must specify the offence of which, and the section of the Indian Penal Code (or other law) under which, the accused is convicted, and the punishment to which he is sentenced.
4. If it is a judgement of acquittal, it must state the offence of which the accused is acquitted, and direct that he should be set at liberty.
5. If the conviction is under the Indian Penal Code, and it is doubtful under which of two sections (or under which of two parts of the same sections) the offence falls, the Court must distinctly express the same, and pass a judgement in the alternative.
6. If the conviction is for an offence which is punishable either with death, or with life-imprisonment, or with imprisonment for a term of years, the judgement must state the reason why that particular sentence was awarded. If a death sentence is awarded, the specific reasons for awarding the extreme penalty must also be mentioned. [S. 354(3)]
7. If the conviction is for an offence which is punishable with imprisonment for one year or more, but the Court imposes a sentence of imprisonment for three months or less, it must record its reasons for awarding such sentence—
(a) Unless the sentence is for imprisonment till the rising of the Court; or
(b) Unless the case was tried summarily under the provisions of the Code.
8. When any person is sentenced to death, the sentence must direct that he is to be hanged by the neck till he is dead.
The Supreme Court has held, in Balwant Singh’s case (A.I.R. 1976 S.C. 230), that under the present Code, it is clear that the Court is required to state the reasons for the sentence awarded, and in the case of a death sentence, special reasons are required to be stated. Thus, it will be seen that awarding of a sentence, other than the death sentence, is the general rule now, and only special reasons, viz, special facts and circumstances of a given case, will warrant the passing of a death sentence.
It is not unnecessary, nor is it even possible, to make a catalogue of the special reasons which would justify the passing of a death sentence in a given case. The Court, however, indicated some such circumstances, as for instance, the fact that the crime has been committed by a professional or hardened criminal, or that it has been committed in a very brutal manner, or on a helpless child or woman, and so on.
In another case (B. Annamma,-A.I.R. 1976 S.C. 799), the Supreme Court, dealing with the same question, observed as follows:
“The unmistakable shift in legislative emphasis is that life imprisonment for murder is the rule, and capital sentence the exception, to be resorted to for reasons to be stated. It is obvious that the disturbed conscience of the state on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention.”
In a case decided by the Supreme Court (Bachan Singh v. State of Punjab,—(1980) S.C.C. 684), the question before the Court was whether S. 354(3) of the Criminal Procedure Code (referred to above) is unconstitutional on the ground that it gives the Court unguided and untrammelled discretion and allows the death penalty to be arbitrarily or freakishly imposed on a person found guilty of murder or any other offence where the death sentence is prescribed as an alternate sentence. The Court came to the conclusion that Parliament has advisedly not restricted the sentencing discretion, as it is neither possible nor desirable to do so. In this connection the Court observed:
“Cognizant of the past experience of the administration of the death penalty in India, Parliament, in its wisdom, thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the Courts which are manned by persons of reason, experience and standing in the profession.”
With reference to the question of laying down standards and norms restricting the area of imposition of the death penalty, the Supreme Court held, in the above case, that if by laying down standards, it is meant that murder should be categorised beforehand, according to the degrees of its culpability, and that all the aggravating and mitigating circumstances should be exhaustively and rigidly enumerated, so as to exclude all free play of discretion, the argument deserves to be rejected.
In the opinion of the Court, such standardisation is well-nigh impossible. Firstly, the degree of culpability cannot be measured in each case. Secondly, criminal cases cannot be categorised, there being infinite, unpredictable and unforeseen variations. Thirdly, on such categorization, the sentencing process will cease to be judicial. And lastly, such standardisation of sentencing discretion is a policy-matter belonging to the legislature, and is beyond the Court’s function.
The Court, however, cautioned that for making the choice of punishment or for ascertaining the existence or non-existence of special reasons (under S. 354(3) of the Cr. P.C.), the Court must pay due regard both to the crime and the criminal. The relative weight to be given to the aggravating and mitigating factors would, of course, depend on the facts and circumstances of the particular case.
S. 355 then enacts a provision which relieves the Metropolitan Magistrate of the task of writing a detailed judgement setting out the various points already discussed above. It provides that, instead of recording a very detailed judgement, the Metropolitan Magistrate need record only the following nine particulars, namely,—
(a) The serial number of the case;
(b) The date of the commission of the offence;
(c) The name of the complainant, if any;
(d) The name of the accused person, and his parentage and residence;
(e) The offence complained of or proved;
(f) The plea of the accused, and his examination, if any:
(g) The final order;
(h) The date of such order;
(i) In all cases where an appeal lies against the final order under S. 373 or S. 374, a brief statement of the reason for the decision.
S. 357 provides that when a Court imposes a sentence of fine, or any other sentence (including a death sentence) of which fine forms a part, the Court may, when passing the judgement, order the whole or any part of the fine to be applied—
(a) In defraying the expenses properly incurred in the prosecution;
(b) In payment, to any person, of compensation for any loss or injury caused by the offence, when in the opinion of the Court, such compensation is recoverable by such a person in a civil Court;
(c) When any person is convicted of having caused the death of any person or of having abetted such death, in paying compensation to the persons who are entitled to recover damages under the Fatal Accident Act, 1855;
(d) When any person is convicted of theft, criminal misappropriation, criminal breach of trust, cheating, dishonestly receiving or retaining stolen property,-in compensating any bona fide purchaser of such property for the loss of the same, if such property is restored to the person entitled to it.
If the Court imposes a sentence which does not include a fine, when passing the judgement, the Court may order the accrued person to pay, by way of compensation, such amount as may be specified in the order, to the person who has suffered the loss or injury.
It is to be noted that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court must take into account any sum paid or recovered as compensation under the above provisions.
If any person causes a Police Officer to arrest another person, and it appears to the Magistrate that there was no sufficient ground for causing such arrest, the Magistrate may order that the person causing the arrest must pay, to the person arrested, compensation upto Rs. 1,000 for his loss of time and expenses in the matter.
If more persons than one are arrested, compensation not exceeding Rs. 1,000 can be awarded to each such person. Such compensation can be recovered as if it was a fine imposed by the Magistrate, and if it cannot be recovered, the person concerned can be sentenced to simple imprisonment for upto 30 days, unless such amount is sooner paid.
If any complaint of a non-cognizable offence is made the Court and the accused is convicted, in addition to the penalty imposed on him, the Court can order him to pay to the complainant, in whole or in part, the cost incurred by the complainant in the prosecution, and may further order that in default of payment, the accused is to suffer simple imprisonment for any period not exceeding 30 days. Such costs may include any expenses incurred in respect of process-fees and Pleader’s fees which the Court may consider reasonable. (S. 359)
An order under S. 359 can be made by the Appellate Court or by the High Court, or a Sessions Court when exercising its powers of revision.
S. 360 then provides that, in certain cases, if a person is convicted of certain offences, and it appears to the Court that having regard to the age, character or antecedents of the offender, and also to the circumstances in which the offence was committed, it is expedient that the offender should be released on probation on good conduct instead of sentencing him, the Court may direct him to be released on bond, with or without sureties, to appear and receive the sentence when called upon during such period (which cannot exceed three years) as the Court may direct, and in the meanwhile to keep the peace and be of good behaviour.
However, the above direction can be exercised by the Court, only if the following conditions exist, namely,—
(i) A person not under 21 years is convicted of an offence punishable with fine only, or with imprisonment for seven years or less,
(ii) A person under 21 years or a woman (of any age) is convicted of an offence not punishable with death or life imprisonment.
(iii) No previous conviction is proved against the offender.
Before directing the release of an offender as above, the Court must be satisfied that such a person or his surety, if any, has a fixed place of residence or a regular occupation in the place in which the Court is situated or in which the offender is likely to live during the relevant period. Later, if the Court is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his arrest.
If a person is apprehended on such a warrant, he is to be brought immediately before the Court issuing the warrant, and such a Court may either remand him in custody until the case is heard, or admit him to bail with a sufficient surety, and after hearing the case, the Court may pass the necessary sentence.
It has been held that even if all the conditions of S. 360 are fulfilled, the accused cannot claim the benefit of this section as a matter of right. Misplaced leniency and sympathy for the accused are matters which should never be allowed to influence the Court’s mind; otherwise, the very object for which punishments are provided would be defeated. (Sita Ram v. Malkiat Singh, — 1956 Patiala, 13)
S. 360 also provides that if a person is convicted of theft, dishonest misappropriation, cheating or any other offence under the Indian Penal Code punishable with not more than two years’ imprisonment, or any other offence punishable only with fine, and no previous conviction is proved against him, the Court may, instead of sentencing him to any punishment, release nm alter due admonition.
However, before doing so, the Court must have regard to the age, character, antecedents and 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.
It has been held that the above provision does not apply to an offence which, although punishable with a maximum sentence of two years, cannot be said to be a trivial nature. (Ibrahim, — 1974 Cr. L.J. 993)
S. 361 then provides that in any case where the Court could have dealt with—
(a) An accused person under S. 360 above, or under the Probation of Offender’s Act, 1958, or
(b) A youthful offender under the Children’s Act, 1960, or other similar enactments, — but has not done so, it must record, in the judgement, the special reasons for not having done so.
It has been held that where a 35-year old accused was sentenced for manufacturing illicit arms as a regular business, and there were no circumstances mitigating the gravity of the crime, the absence of special reasons for not invoking the provisions of Ss. 360 and 361 did not render the sentence erroneous. (Khalif, — 1976 Cr. L.J. 465)
It is also provided that once the Court has signed its judgement or final order disposing of a case, it cannot alter or review the same, except to correct any clerical or arithmetical error, or except as provided by Criminal Procedure Code itself or by any other law in force.
If the accused is sentenced to imprisonment, a copy of the judgement is to be given to him, free of charge, immediately after the judgement is pronounced.
On the application of the accused, a certified copy of the judgement, or if so desired, a translation of the judgement in his own language (if practicable) or in the language of the Court, is to be given to him, free of cost. Moreover, if a death sentence is passed or confirmed by the High Court, a certified copy of the judgement is to be given to the accused free of cost, whether he applies for it or not.
If the accused is sentenced to death by any Court, and an appeal lies from such judgement as a matter of right, the Court must inform him of the period within which he must prefer his appeal, if he chooses to do so.
Any other person who is affected by a judgement or order passed by a Criminal Court, may also apply for a copy of the judgement or order, on payment of the prescribed charges.