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Principles on sentencing..

PRE BRITISH ERA: Law makers thought to provide adequate and effective sentencing to the offenders/criminals (after their trial is over and being convicted and not before the trial) without any deviation from caste creed, religion and other factors affecting general public. British thought it giving effective and correct sentencing to every convict without any variance is the correct way of administering the CRIMES.

What happened to the earlier sentencing policy? If the earlier sentencing policy was very effective why there was a need of writing a UNIFORM PENAL CODE, all over INDIA in the year 1860? Does it mean now the PENAL administration or the Government sentencing policy is for much better than the earlier? The answer is in affirmative.

Why that the sentences though cruel in the PRE-BRITISH era were ineffective was for the reason those sentences were not approved by the public.

CONVICTION:

It is very necessary from the point of view of criminal justice that the guilty must be punished when the facts are fresh in the public mind [M.S.sheriff and another vs. State of Madras – AIR 1954 SC 397 – 5 judge bench].

SENTENCING – A PROTRACTING DILEMMA:

Guilt once established, the punitive dilemma begins. The choice between death penalty and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence [Ediga Anamma vs. State of A.P – (1974) 4 SCC 443].

SENTENCING – AN APPLICATION OF MIND:

  1. State of Punjab vs. Prem Sagar & Ors – (2008) 7 SCC 550 – We have noticed the development of law in this behalf in other countries only to emphasise that the courts while imposing sentence must take into consideration the principles applicable thereto. It requires application of mind. The purpose of imposition of sentence must also be kept in mind.

  2. State of A.P vs. Polamala Raju @ Rajarao – (2000)7 SCC 75 – To say the least, the order contains no reasons, much less “special or adequate reasons”. The sentence has been reduced in a rather mechanical manner without proper application of mind.

DO WE HAVE SENTENCING POLICY – NEGATIVE:

  1. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some Committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines [STATE OF PUNJAB vs PREM SAGAR AND OTHERS – (2008) 9 SCALE 590=(2008) 7 SCC 550=(2008) 3 SCC(Cri) 183].

  2. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges [Soman vs. State of Kerala – (2013) 11 SCC 382]

DO OTHER COUNTRIES HAVE SENTENCING POLICIES – AFFIRMATIVE:

UNITED KINGDOM: Halliday report based on the white paper in the name of justice for all presented before British Parliament. They are now having Sentencing council for sentencing guidelines 2010 based on Criminal Court Sentencing Act, 2000.

UNITED STATES: Sentencing commission is an independent body created by Sentencing Reform Act 1984.

WHY THERE IS NO SENTENCING POLICY? That no two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. The court further observed that standardization of the sentencing process tends to sacrifice justice at the altar of blind uniformity [Swamy Shraddananad’s case – 2013(5) SCC 546].

Finally, in simple words though we do not have any sentencing policy yet our sentencing policy is more effective.

PRINCIPLE GOVERNING SENTENCING:

The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with [(2009)2 SCC 272 – State of M.P vs. Babu Natt].

AIM / PURPOSE OF EFFECTIVE SENTENCING:

A sentence aims to:

  1. Punish the offender – this can include sending the accused to prison, paying a fine.

  2. (to) Protect the public – from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.

  3. (to provide) Compensation / Make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and get an apology.

  4. (helping society in) Crime reduction – by preventing the offender from committing more crime and putting others off from committing similar offences. Maintain law and order [s.144 cr.p.c].

  5. Reform and rehabilitate offenders – changing accused’s behaviour to prevent future crime (for example by requiring an offender to have treatment for drug addiction or alcohol abuse).

EFFECTIVE SENTENCING STARTS WITH FOLLOWING:

1st stage: during Remand, Bail, summons or warrant (includes recalling the warrants), Administration of bonds – 88 and 446 cr.p.c

2nd stage:, Convicting in a non-cruel yet effective way as per Section 53 IPC [Death Penalty, Imprisonment for life, Imprisonment, Forfeiture of property and Fine] [The main punishment removed by the British is ‘Banishment’] or as specified under other Acts,

3rd stage: Considering Probation laws while delivering judgments

4th stage: Considering section 427 & Section 428 Cr.P.C while delivering,

Final stage: At last by suspending the sentence which was given following all the above methodology.

POWERS OF MAGISTRATES:

  1. Powers Under Cr.P.C – Section 29.

  2. Sentencing powers under Cr.P.C –248 (chap –XIX – warrants case), 325, 360 and 361.

  3. Section 325 Cr.P.C – cannot exceed the sentencing limits but can forward the accused to CJM/CMM.

  4. Section 30 Cr.P.C – sentence of imprisonment for default [yes – but cannot exceeds the power u/s 29 cr.p.c].

  5. Section 31 Cr.P.C – several offences in one trial – subject to the provisions of s.71 IPC.

  6. Under N.I Act – s. 138

[has overriding effect of Cr.P.C pls see: R.Vijyan v. Baby & anr – (2012)1 L.W (Cri) 359 (SC)=2011 (4) Crimes 237 (SC)=(2011) 3 MWN (Cri) (DCC) 107 (SC)]

.

  1. Probation, admonishing and compensatingvictim.

PROBATION LAWS:

Earlier Section 562 of the Code if Criminal Procedure, 1898, had been dealt with probation. Thereafter, as under amendment in 1974 it turned as S.360 of Code of Criminal Procedure, 1973. S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation.

Under Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the board may require, for the good behaviour and well-being of juvenile for any period not exceeding three years.

PROBATION ACT – FIVE IMPORTANT ASPECTS TO BE CONSIDERED:

  1. Admonition (section 3);

  2. Probation of Good Conduct (section 4);

  3. Compensation and Costs (section 5);

  4. Offenders under 21 years of age (section 6);

  5. Report of Probation Officer (section 7).

ADMONISHING – PROBATION:

As per s.3 of P.O Act the Court may release the offender after due admonition, instead of sentencing him but under section 4 without sentencing the offender to any punishment, the Court may release the offender on probation of good conduct. [Please note: that “report of Probation officer” is not mandatory to apply this provision but if report is available on the record, the Court shall take into consideration the report of probation officer before making an order of probation of good conduct]

The key factor for enacting P.O Act “Prison overcrowding”.

PROBATION – BAIL:

The Under-trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society [IN RE., INHUMAN CONDITIONS IN 1382 PRISONS – 2016 1 MWN (Cr.) 474].

PROBATION – HOW TO APPRECIATE? The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison [HARI KISHAN vs. SUKHBIR SINGH AND OTHERS – (1988) 2 SCALE 426=(1988) 4 SCC 551=(1988) SCC(Cri) 984]. 

DIFFERENCE BETWEEN SECTION 360 CR.P.C & PROBATION OF OFFENDERS ACT, 1958:

Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with u/s 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area [CHHANNI vs THE STATE OF UTTAR PRADESH – (2006) Cri.L.J 4068 (SC)].

General understanding between P.O Act & 360 Cr.P.C: The P.O Act, 1958 is more expand than section 360 Cr.P.C. It has supervision request, payment of compensation, post-trial supervision. Since, P.O is the Special Act it would stop section 360 Cr.P.C.

DUTY OF THE CORUT – SECTION 360 CR.P.C:

When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the CrPC. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused u/s 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed [Chandreshwar Sharma vs. State of Bihar – (2000)9 SCC 245=2000 SCC (Cri) 1500]. 

REMITTED BACK BY HON’BLE APEX COURT FOR CONSIDERING SECTION 360:

Considering the aforesaid decision Hon’ble Apex Court has held that therefore, while upholding the conviction, we remit the matter to the trial court for limited purpose for deciding whether the benefit u/s 360 Cr.P.C. can be extended to the appellants [Eliamma & another v. State of Karnataka – (2009) 2 SCALE 484=(2009) 11 SCC 42=(2009) 3 SCC(Cri) 1227].

PUBLIC OPINION:

  1. Public opinion is often confused with media reactions.

  2. Public opinion is based upon the impact on social, political and cultural affiliations.

  3. Nirbhaya case: Media proposed as if Public demands death sentence to rape convicts whereas the sentencing policy is ‘rarest of rare’ cases for awarding death penalty.

EFFECTIVE SENTENCING – CASE LAWS

[guidelines of Hon’ble Apex/High Courts]

:

  1. SENTENCE – UNDUE LENIENCY – The law on the principles governing proper sentencing has been elaborated by this Court in a large number of cases. It is the duty of the Court awarding sentence to ensure justice to both the parties and therefore undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not reassure the society that the offender has been properly dealt with. It is not a very healthy situation to leave the injured and complainant side thoroughly dissatisfied with a very lenient punishment to the accused [State of M.P vs. Udaiban – (2016)2 SCC (Cri) 244=(2016)4 SCC 116].

  2. NON-COMPOUNDABLE OFFENCE – SENTENCING POLICY – s.326 IPC (LIFE/UPTO 10 YRS AND FINE): Though it is stated that both the parties have amicably settled, in view of the fact that the offence charged u/s 326 is non compoundable and also in the light of serious nature of the injuries and no challenge as to conviction, we are of the view that the High Court is not justified in reducing the sentence to the period already undergone [State of M.P vs. Najab Khan – AIR 2013 SC 2997].

  3. CORRECTIVE MACHINERY or DETERRENCE SENTENCING POLICY – ONLY IN HEINOUS CRIMES:  We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. After considering many principles Hon’ble Apex Court has guided that in any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious, namely, cases involving heinous crime with element of criminality against the society and not parties inter se[State Of H.P vs Nirmala Devi – (2017) 4 Scale 468=(2017) 7 SCC 262=(2017) 3 SCC(Cri) 380].

  4. Section 324 IPC SENTENCING POLICY (UPTO THREE YEARS OR FINE OR BOTH): At this juncture, we may repeat at the cost of repetition that imposition of sentence, apart from the illustrations which have been stated to be mitigating factors would depend upon many a other factors which will depend/vary from case to case. The legislature in respect of an offence punishable u/s 124 of the Indian Penal Code has provided punishment which may extend to three years or with fine or with both. Further Apex Court reduced the sentence of three years of imprisonment to one year [Gopal Singh vs. State of Uttarakhand – AIR 2013 SC 3048].

  5. MINIMUM OR MAXIMUM – Section – 307 IPC: It is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although section 307 IPC does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the judges in arriving at a fair and impartial verdict [Hazara Singh vs. Raj Kumar and others – (2013) 9 SCC 519=(2014)1 SCC (Cri) 159] [Also please see: National Conference of Judges of the District Judiciary on Just sentencing: policy & Practice – 20th to 22nd March 2015].

  6. RETRIBUTIVE THEORY OR REFORMATIVE THEORY: The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make depreciation of life and liberty reasonable as penal panacea [Kunju Kunju Janartharan vs. State of Kerala – AIR 1979 SC 916].

  7. EFFECTIVE SENTENCING IN CROSS CASES / COUNTER CASENathi Lal & ors. vs. State of U.P – (1990) Supp SCC 145; Sudhir vs State (2001) 2 SCC 688; State of M.P vs Mishrilal – (2003) 9 SSC 426.

  1. CONCURRENT OR CONSECUTIVE – SECTION 279 IPC & SECTION 304-A IPC:

  2. It is not correct to state that when the court directs that two sentences should run concurrently they merge into one sentence. The word ‘concurrent’ means meeting in the same point, running, coming, acting or existing together, coinciding, accompanying. ‘Concurrently’ means agreeing, when two sentences are directed to run concurrently, it means, they run together [1982 Cr.L.J 1844 (A.P) – K. Venkata Reddy vs. Inspector General of Prisons].

  3. In our considered opinion, it was necessary for the Magistrate to have ensured compliance of Section 31 of the Code when she convicted and sentenced the appellant for two offences in a trial and inflicted two punishments for each offence, namely, Section 279 and Section 304-A IPC. In such a situation, it was necessary for the Magistrate to have specified in the order by taking recourse to Section 31 of the Code as to whether the punishment of sentence of imprisonment so awarded by her for each offence would run concurrently or consecutively [Gagan Kumar v The State of Punjab – (2019) 3 SCALE 390].

  4. DEFAULT SENTENCE: CONCURRENT OR CONSECUTIVE: In the circumstances, we reject the submission regarding concurrent running of default sentences, as in our considered view default sentences, inter se, cannot be directed to run concurrently [Sharad Hiru Kolambe vs The State Of Maharashtra –  (2018) 11 Scale 305=(2019) Cri.L.J 567 (SC)]

  5. SECTION 427 CR.P.C – FINE NOT PAID – CONSECUTIVE – In terms of section 427(1), if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion be exercised by the court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case. Further Supreme Court has held that If the fine amount is not paid, the default sentence will run consecutively and not concurrently [Anil Kumar vs. State of Punjab – 2017(2) MWN (Cri) 17 (SC)].

  6. SECTION 428 CR.P.C – SET OFF – Reading section 428 Cr.P.C in the above perspective, the words ‘of the same case’ are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the above said period. The words ‘of the same case’, were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words [State of Maharashtra vs. Najakat @ Mubarak Ali – AIR 2001 SC 2255=(2001)SCC (Cri) 1106].

  7. SHALL ALSO BE FINE – In the above case, this Court had considered Section 325 IPC and the phrase ‘and shall also be liable to fine’. The Court held that when the punishment provided is for sentence of imprisonment and also with fine, the imprisonment and fine both are imperative [Zunjarrao Bhikaji Nagarkar v. Union of India and Others – (1999) 7 SCC 409 followed in State Of H.P vs Nirmala Devi – (2017) 4 Scale 468=(2017) 7 SCC 262=(2017) 3 SCC(Cri) 380].

  8. COMPOUNDING OF OFFENCE – Section 320 of the Cr.P.C. enumerates and draws a distinction between offences as compoundable, either between the parties or with the leave of the court. 

  9. COMPOUNDING OF OFFENCEwho may enter contract compounding? Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under Indian Penal Code which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the Court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable u/s 320, abatement of such offence or an attempt to commit such offence or where the accused is liable u/s 34 or 149 Indian Penal Code can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the Court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the Court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the Court to which he has been committed or with the leave of the appeal Court, as the case may be. The Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner [DASAN vs STATE OF KERALA AND ANOTHER – (2014) 1 SCALE 633=(2014) 12 SCC 666=(2014) 5 SCC(Cri) 186].

  10. COMPOUNDING – LATEST GUIDELINES BY SUPREME COURT – Merely because an offence is compoundable under Section 320 Cr.PC, still discretion can be exercised by the court having regard to nature of offence, as such it is rightly held in the impugned judgment that as the offence for which appellant was convicted and sentenced, it will have its own effect on the society at large. In view of the reasons recorded in the impugned order rejecting the application for compounding, it cannot be said that the High Court has committed any error in not accepting the application filed for compounding the offence [Bhagyan Das Versus The State of Uttarakhand & Another – Criminal Appeal No. 465 of 2019 (Arising out of SLP(Crl.) No. 125 of 2017) – 11-03-2019].

  11. SECTION 138 N.I ACT – COMPROMISE – WHETHER PROSECUTION WILL BE OVER?

An interesting question of law as to whether in view of payments or settlements made after the issuance of a Cheque, a Complainant can disclose the true state of affairs and issue a demand for a lesser amount and whether in such circumstances the Criminal prosecution for dishonour of a Cheque Page No: 146 for higher amount is legally sustainable or not, did arise in this case. However, on account of subsequent talks between the parties, an amicable Settlement has been arrived at and hence, there is no requirement now to answer the aforesaid question of law in the present proceedings and hence, the same is left open for adjudication in any other appropriate case [MOSER BAER PHOTO VOLTAIC LTD vs. PHOTON ENERGY SYSTEMS LTD – 2016 1 MWN (Cr.) DCC 145 (SC)].

PLEA BARGAINING & GUILTY MEMO:

Plea bargaining – what is?

Plea bargaining is a concept based on the latin term “Nolo Contendere” which means I do not wish to contend.

If an accused who is eligible admits his guilt voluntarily before the Presiding Officer than the court may release him on probation or award lesser punishment than prescribed.

EVOLUTION OF PLEA BARGAINING IN INDIA:

Murlidhar Meghraj Loya and Another Vs State Of Maharashtra And Others – AIR 1976 SC 1929;

Thippaswamy vs State of Karnataka – (1982) 2 SCALE 1398=(1983) 1 SCC 194.

Kasambhai Abdulrehmanbhai Sheikh and Others Vs State Of Gujarat And Another – AIR 1980 SC 854 – Hon’ble Apex Court has held ‘Plea Bargaining” as “unconstitutional”.

Laws in India do not recognize the concept of plea-bargaining as such. However, section 206 (1) & (3) Cr.P.C and section 208 (1) of the Motor Vehicles Act, 1988, enable the accused to plead guilty to petty offences and to pay small fines. This does not in any way involve bargaining between the prosecution and the accused. Section 320 Cr.P.C, specifies only 53 offences as compoundable (with or without the permission of the court) out of total of 383 offences under the I.P.C. Thus, a large number of offences under the I.P.C cannot be compounded. Most of the special enactments, that have created new offences, do not contain any provision for compounding of such offences [please see also – State of U.P v. Chandrika – AIR 2000 SC 164=2000 Cr.L.J 384 (SC)=1999 AIR SCW 4251=1999 (3) Crimes 137 (SC)=2000 (1) L.W (Cri) 375 (SC)=2000 SCC (Cri) 16=1999 (8) Supreme 723=1999 (8) SCC 638=2000 (1) SCJ 385].

INTRODUCTION OF CONCEPT OF PLEA-BARGAINING IN INDIA: Plea bargaining was introduced in the Code of Criminal Procedure, 1973 through Chapter – XXIA by Criminal Law (Amendment) Act, 2 of 2006 (w.e.f 05th July, 2006.) Sections 265 A to L – 142nd, 154th & 177th Law Commission recommended.

Plea Bargaining not applicable in the following cases:-

  1. The offence in which the maximum sentence is above 7 years.

  2. The offence which has been committed against a woman or a child below 14 years of age.

  3. Where the accused has been previously convicted for the same offence.

  4. Offence which affects the socio-economic condition of the country.

How to identify Socio-Economic Offences?

The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of section 265A, namely,-

(i) Dowry Prohibition Act, 1961.

(ii) The Commission of Sati Prevention Act, 1987.

(iii) The Indecent Representation of Women (Prohibition) Act, 1986

(iv) The Immoral Traffic (Prevention) Act, 1956.

(v) The Protection of Women from Domestic Violence Act, 2005

(vi) The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.

(vii) Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).

(viii) Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955).

(ix) Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of  boundaries of protected areas under the Wildlife (Protection) Act, 1972.

(x) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

(xi) Offences mentioned in the Protection of Civil Rights Act, 1955.

(xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

(xiii) The Army Act, 1950.

(xiv) The Air Force Act, 1950.

(xv) The Navy Act, 1957.

(xvi) Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.

(xvii) The Explosives Act, 1884.

(xviii) Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995.

(xix) The Cinematograph Act, 1952.

PLEADING GUILTY:

GUILTY MEMO – The scheme of the provision in the Cr.P.C makes it clear that when particulars of the offence are put to the accused u/s 242 Cr.P.C, it is open to him to admit the allegation or if he does not plead guilty the Magistrate shall proceed to take evidence u/s 242(3) Cr.P.C and thereafter question the accused u/s 313 Cr.P.C on the incriminating circumstances, then the Magistrate can accept the said plea, but not before the case reaches the stage of 313 Cr.P.C. There is no provision in the Code which contemplates filing of a memo by the accused admitting the guilt after the initial stage u/s 242 Cr.P.C and the conviction passed on such memo is not according to law and following such a procedure is not justified [Balaji vs. Inspector of Police – (2001) 2 LW(Cri) 528=(2001) 2 M.W.N (Cri) 244].

ACCUSED PLEADED GUILTY WHILE QUESTIONING:

But, in my considered opinion, normally an accused will plead guilty only expecting lenient punishment. The common principle of penological proposition is that when an accused without contesting the matter pleads guilty, the Court should be lenient [Geetha Devi and others vs D.I. Nathan and others – (2015) 1 LW(Cri) 585=(2015) 2 MWN (Cri) 59].

PLEADING GUILTY UNDER THE Cr.P.C:

Sections 229, 240, 252 Cr.P.C – P. SARAVANAN vs. STATE – 2016 2 MWN (Crl) 626.

GUILTY MEMO – DIRECTION TO PRESIDING OFFICERS:

It is necessary to record as a future guidance to the Learned Magistrates who accept the guilty plea that before acting upon such guilty memo, the Presiding Officer should ensure that the said memo is a voluntary one and it has emanated from the proper source. Before acting upon the guilty memo, adequate time to the accused should be offered to reflect upon the guilty plea. While imposing sentence, based on the guilt plea, the Presiding Officer should always consider the previous conduct of the party, nature of offence and the possibility of indulging in similar offence in future. After considering all these three facts, appropriate sentence should be imposed [M.Manga vs State by: Inspector of Police, Police Station, Kancheepuram District – Crl.R.C No.471 of 2012-15.02.2019].

Aggravating or Mitigating:

What are mitigating circumstances? [SANTOSH KUMAR SATISHBHUSHAN BARIYAR vs STATE OF MAHARASHTRA – (2009) 7 SCALE 341=(2009) 6 SCC 498=(2009) 2 SCC(Cri) 1150]

  1. That the offence was committed under the influence of extreme mental or emotional disturbance.

  2. The age of the accused. 

  3. The probability that the accused would not commit criminal acts in the future.

  4. The probability that the accused can be reformed and rehabilitated.

  5. That the accused acted under the duress or domination of another person.

  6. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

SUSPENSION OF SENTENCE:

Sections 389 (1), (2) and (3) of the code of criminal procedure deal with suspension of sentence. Sections 389 (1)(2) deal with situation where convicted person can get a bail from Appellate court after appeal being filed and numbered. Section 389 (3) Cr.P.C deals with a situation whereby the Trial court itself can grant a bail to person who has been convicted.