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Author: Sameer Afzal Ansari, III year of B.A.,LL.B. from Guru Gobind Singh Indraprastha University

Punishment is retribution on the offender for the suffering inflicted on the offender's person or property, as defined by the law. Punishment is a method of preventing an offender from committing crimes against people, property, or the government. As a result, punishments might be deterrent, rehabilitative, restorative, or retributive in nature.

Sentencing Policy

  • The Indian Penal Code bases its sentencing strategy on the following factors

1. The gravity of the violation;

2. The seriousness of the crime; and

3. Its general effect upon public tranquillity.

  • There is a link between the severity of punishment and the level of guilt.

  • As a result, the punishment policy for a certain crime is standardised.

Fundamental Principles for Imposition of Different Types of Punishments

  • According to the United States Institute of Peace, the implementation of punishment might be based on the following principles:

1. The necessity for criminal justice compulsion; and

2. The proportionality of punishment based on the nature and degree of the danger which is present against the fundamental freedoms, human rights, social values, rights guaranteed and protected under the Constitution or international law.

  • The Supreme Court of India highlighted a number of principles when using discretionary powers in the matter of Soman v. Kerala.

1. Proportionality, deterrence, and rehabilitation are the guiding principles. A variety of aggravating and mitigating circumstances should be considered when applying the proportionality principle.

2. Mitigating circumstances are those that are not related to the offence, whereas aggravating circumstances are those that are.

3. The Supreme Court pronounced that “Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice.

  • There are no legislative or judicially established criteria to help the trial court in imposing appropriate punishment on an accused who is found guilty of the accusations before it.

  • Furthermore, the court accepted and relied on the statement made in the case of State of Punjab v. Prem Sagar, in which the Court noted, "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 have not issued any guidelines.”

  • As a result, a sentencing strategy must be developed that takes into account the recommendations of the Madhava Menon Committee and the Malimath Committee.

Scope of Section 53

  • Section 53 of the Indian Penal Code, 1803 (“Code”), deals explicitly with the various forms of punishments that can be imposed by Criminal Courts if a person is found guilty under the Code.

  • Section 53 of the Code recognises five different types of punishments:

1. Death

2. Imprisonment for life;

3. Imprisonment:

a) Rigorous Imprisonment; or

b) Simple Imprisonment.

4. Forfeiture of property;

5. Fine.

  • In light of the aforementioned penalties, courts are required to follow the procedures and regulations set forth in other adjective and substantive laws.

  • The maximum punishment is established by the Code, whereas the minimum punishment is left to the Judge's discretion. The Judge has all of the tools necessary to form an opinion on the punishment that will best serve the ends of justice in a given instance.

  • If the offence is serious, the Code specifies the maximum and minimum sentence periods.

Awarding Appropriate Sentence is the Discretion of the Trial Court

  • The three-judge bench of the Madhya Pradesh High Court noticed the following plan of punishment in the case of SibbuMunnilal v State Of Madhya Pradesh:

1. The classification of offences is made with reference to the maximum punishment to which the offender is liable to receive.

2. In the case of the death penalty and imprisonment for life is provided as a punishment under a section. Imprisonment for life shall be considered as an alternative. And death penalty shall only be given if the case comes under the ambit of ‘rarest of rare case’. While giving the death penalty as punishment the Judge shall give due importance to the facts and nature of the case.

3. Imprisonment can be categorized into two categories- simple and rigorous.

4. Imprisonment for life means rigorous imprisonment for twenty years.

5. The difference between imprisonment for life and imprisonment is the former can be rigorous and the imprisonment is till his last breath, however, the duration of the latter can vary from period 24 hours to 14 years.

6. Lastly, offences punishable with fine means the offences for which the maximum penalty can be fine only.

  • The Supreme Court has held in State of H.P. v Nirmala Devi that the trial court has the discretion to impose sanctions in accordance with the code's framework.

When Appellate Courts Can Interfere with Sentence Imposed

As per Section 386 of CrPC, the Powers of Appellate Court are as follows:

1. The Appellate court can interfere or dismiss the appeal if it finds sufficient grounds to do so after hearing the parties of the appeal;

2. If the matter is an appeal from an order or acquittal:

i. Then the appellate court can reverse such order and direct further inquiry of the matter or;

ii. Direct for retrial of the accused.

3. If an appeal from a conviction, then the Appellate court have the following powers:

i. Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial by a competent court, or committed for trial;

ii. Alter the maintaining, finding of the sentence, or;

iii. Alter the nature or the extent or nature and extent of the sentence, with or without altering the finding. However no power to enhance the sentence by the court.

4. If an appeal for enhancement of sentence, then the Appellate court have the following powers:

i. Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial, or committed for trial;

ii. Alter the maintaining, finding of the sentence, or;

iii. Alter the nature or the extent or nature and extent of the sentence, with or without altering the findings with the power to enhance or reduce the sentence.

5. If the appeal is from any other order, then power to alter or reverse such order;

6. The appellate court can make any amendment or act incidental or any consequential order can be ordered which may seem to be just or proper to the court.

  • The section also includes a provision wherein it lays out conditions to the Appellate Court while exercising this power. The conditions are as follows:

1. The Appellate Court shall not enhance the punishment unless the accused given an opportunity for such enhancement;

2. Further, the Appellate Court shall not inflict the punishment given by the court under appeal (trial court or lower court) unless the Appellate Court has a view that the punishment is inadequate.

The Supreme Court has ruled in State of H.P. vs. Nirmala Devi that the Appellate Court cannot go beyond the statutory system established by the Indian Penal Code when exercising its powers under Section 386 of the Cr.P.C.

Principles for Sentencing

The sentencing principle evolved as a result of court rulings and legislation. And it is on the basis of these principles that sentence decisions are made. The following are the general principles that the court follows:

1. Excessiveness/Parsimony– the punishment which is given shall not be severe unless required.

2. Proportionality– the sentencing shall fit to the overall gravity of the crime.

3. Parity– the punishment should be similar for similar types of offences committed by offenders under similar situations.

4. Totality– when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behaviour.

5. Purpose– the sentencing shall achieve the purpose of the punishment. The purpose of punishment can be a deterrent, rehabilitative, protection of the public, etc.

6. Simplicity and predictability– sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing.

7. Truthfulness- the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity.

Aggravating Circumstances

The aggravating circumstances to which the Judges consider are as follows:

1. The surrounding of the crime itself;

2. The circumstances relating to the criminal’s background;

3. The circumstances relating to the criminal’s conduct;

4. The criminal’s future dangerousness;

The other factors which are considered under aggravating circumstances are as follows:

1. Professionalism and premeditation;

2. Prevalence of offence;

3. Offences committed in the group;

4. Breach of trust

The court in Sangeet &Anr. v. State of Haryana recognised that the methodology laid out in Bachan Singh was not entirely embraced by the courts after that. When deciding on a sentence for the accused, both mitigating and aggravating circumstances must be weighed and balanced.

Possible Reforms

  • Reclassification of criminal offences: Because there has been a significant increase in the number of sorts of offences, classifying them into separate classes or splitting them into other codes would help to make the Code more clear and lucid. The technique and nature of the trail can also be discussed under the various codes.

  • The penalties must be both deterrent and non-severe at the same time. As a result, it is past time for the Indian judiciary to establish a sentencing policy, so that there is no room for ambiguity or bias on the part of the judge, which can create a barrier during sentencing. This action will also limit the number of appeals for increased or reduced sentence, which will be a huge relief for the courts.

  • Under the Code, a proper victim compensation fund can be established, with confiscated assets from organised crime included.


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