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SENTENCING[1]

QUESTION BANK

Q.1. Write note on ‘sentencing process in India’.

Q.2. What is sentencing process? What are the factors to be taken into consideration while sentencing?

SHORT NOTES

Minimum sentence.
Mitigating factors.

I] Meaning of Sentencing Process:-

As we know, the accused person may be acquitted or convicted for his offence. If he is acquitted, no question of adopting the sentencing process comes. However, the sentencing process begins when the accused is convicted, i.e., the court holds him guilty of the offence. After holding the accused guilty of the offence (i.e. conviction), another question comes before the court: how much punishment is to be awarded? In other words, awarding an appropriate quantum of punishment becomes important. The process adopted by the court for that purpose is called a sentencing process.

Thus, the ‘sentencing process’ is the process adopted by the judiciary when awarding a convicted person’s sentence.

The sentencing process may also be defined as ‘the final phase of the trial, where the judge has to play an important role in awarding the sentence. After arriving at the conviction decision, the court must follow the sentencing process. The sentencing process is a series of actions which need to be followed by the court in awarding of correct and just quantum of sentence.

II] Factors/ Circumstances to be taken into Consideration:-

Determination of an appropriate sentence for the convict[2] is as important as the adjudication of the guilt of the accused. Individualisation[3] of punishment and rehabilitation of the offender are important objects of the sentencing process. To be appropriate, large discretion is given to the court while awarding punishment. Therefore, the Indian Penal Code and the other penal laws lay down the maximum punishment awardable for an offence and then leave it to the court’s discretion to pass a suitable sentence within such maximum limit; e.g. punishment for theft is imprisonment up to 3 years. Thus, the Court can award imprisonment of any term within a limit of 3 years, which it thinks is suitable for the individual convict.

While awarding a sentence within the maximum prescribed limit, courts generally take into consideration the following circumstances. These circumstances may be aggravating[4] or mitigating,[5] i.e., it may lead to an increase or decrease in punishment.

1) Age of the Offender:-

Child or old age may be mitigating factors, but adult age may aggravate circumstances.

2) Gravity of Offence[6]:-

The Quantum of punishment depends upon the gravity of the offence. If the offence committed is not grave, it mitigates the rigour of punishment; however, if it is grave, it aggravates punishment. Thus, offences of murder attract more punishment than traffic offences.

3) Antecedents[7]:-

A convict with no previous criminal background attracts lesser punishment; however, a convict having a past criminal record attracts severe punishment. Thus, having no criminal history is a mitigating circumstance and vice versa.

4) Prospects of Reformation:-

If there is a prospect of the offender’s reformation, lesser punishment is awarded; however, if reformation seems difficult (in terrorist cases, etc.), the punishment is obviously severe.

5) Circumstances in which an offence is Committed:-

Circumstances in which an offence is committed may also be taken into consideration when awarding severe or lesser punishment.

A thief who steals food to satisfy his hunger is less punished than one who commits theft to get rich (corruption).

6) Motive:-

Motive also plays an important role in deciding the quantum of punishment. Suppose murder is committed with the motive of grabbing property or satisfying lust. In that case, the offender will get a more severe punishment than someone who commits murder just in the spur of movement.

7) Planned Offence:-

A planned offence or a pre-mediated crime is an aggravating circumstance that requires severe punishment. However, the absence of pre-mediation requires lesser punishment.

8) Manner of Committing Offence:-

If the offence is committed in a very cruel and heinous manner, it is taken as an aggravating circumstance.

9) Organised crime/ Crime Committed by Single Person:-

Offences committed in an organised manner warrant more severe punishment than offences committed signal.

Thus, daylight robbery committed by five or more persons warrants more severe punishment than theft committed by a single person.

10) Weapons Used:-

The lethal weapon used in the commission of a crime warrants severe punishment.

11) Force used in Commission of Crime:-

The force used in commission affects the quantum of punishment. The greater the force used, the greater the punishment required.

In Gurumukh Singh V/s State of Hariyana[8]

Hon’ble Supreme Court laid down the above circumstances to be considered while awarding the appropriate quantum of punishment.

III] Procedural Factors Necessary in Awarding Punishments:-

Other procedural factors necessary in awarding punishment are as follows-

1) The court shall have the power to award punishment:-

As laid down in Cr. P.C., every Magistrate or Sessions’ court has his jurisdiction and power to award punishment within limits laid down by it. Therefore, no court can pass a sentence not authorised.

2) Hearing of the accused on the question of a sentence:-

It is mandatory for Courts to hear the accused on the question of the sentence (S. 235 and 248 of the Cr. P.C). It means that when the court finds any accused guilty of an offence, it has to give an opportunity to the accused to argue for awarding lesser punishment.

3) Judgment is delivered in open court:-

As per S. 353 of the Cr. P.C, the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court. Thus, the sentence is also announced in open court.

4) Supply of copies (S. 363 and S. 364):-

It is mandatory for the court convicting the accused to supply a copy of the judgment free of costs immediately.

Thus, in conclusion, we may say that no foolproof formula can be laid down that would provide a reasonable criterion for determining just and appropriate punishment in an infinite variety of circumstances.

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[1] शिक्षा सुनावण्यासाठीची प्रक्रीया

[2] ज्याचे विरूध्द गुन्हा सिध्द झालेला आहे असा व्यक्ती /गुन्हेगार

[3] व्यक्तीसापेक्ष शिक्षा

[4] शिक्षेत वाढ करवी असे सुचविणारे घटक

[5] शिक्षेत घट करवी असे सुचविणारे घटक

[6] गुन्हयाचे स्वरूप

[7] गुन्हेगाराचा पुर्व-इतिहास

[8] 2009(11) SCALE 688