 Good evening friends and as we keep on sharing the knowledge and by the grace of God we are getting speakers who are taking sessions on different aspects of law. Today we have what we normally leave as a lawyer and otherwise as what could be the manner of sentencing policy? What is the brain behind that? How does it work upon that? So to understand the sentencing policy in India, especially in respect of the criminal law, we have the resource person Mr. S Siddharth Nenglish who is a renowned person in this field of law and he is a former district judge and principal law secretary, government of Karnataka. He is also a resource person in the Karnataka judicial academy to have insights from a person with a person of stature of Mr. S Siddharth Nengish is always a pleasure to be learned. When I had connected with him on behalf of Beyond Laws, you'll see the topics which he shared with us, they are quite fascinating and today as they say that it's the first step towards the long journey of legal knowledge sharing with him. Without taking much time, I request sir to take things forward and we are all waiting for it. Thank you Mr. Vikas for having given me this opportunity. Good evening to all the participants who are logged in now to have this subject sentencing policy in India under criminal law. So I'm taking this subject with certain main chapters which I could take up are the first introduction, the second one is theories of punishment, the third one is kinds of punishment, application of 360 CRPC or probation offenders act, factors to be considered for imposing punishment, statutory restrictions in imposing punishment, set up of the periods spent while in custody, guidelines through judicial decisions, various committees formed for framing sentencing policy and the conclusion. These are my structured presentation for today. So let us start with the introduction. As a sentencing policy is concerned, the administration justice has been given to the judiciary to punish the wrongdoers. See the various stages of offenses that takes place will have also to be taken into consideration for the purpose of sentencing, the various stages perhaps as you know would be the complaint, the investigation, trial, judgment of conviction and then the sentence. So therefore we shall now see what is the meaning of the word sentence. The term sentence has not been defined anywhere, but it has been it is the meaning given by Manu the great Hindu law giver in the following words I quote punishment governs all mankind punishment alone preserves them punishment makes while their guards asleep the wise consider the punishment Danda as the perfection of justice close the netcomers. The Oxford dictionary meaning the word sentence is verdict or punishment allotted to a person condemned in a criminal trial. Now the word punishment is there and then the sentence is there. What exactly they do means if they are the synonym terms punishment and sentence generally the word punishment is given by a non-judicial person and the sentence is to be given by judicial person means it could be said that even a judicial decision for instance a student a teacher punishes the student for not doing the homework that is punishment is given. The teacher is for the purpose of non-judicial person or it is a non-judicial decision that could be said. So therefore the punishment and sentence as I said would be rather overlapped quite often in my discussion. Now let us consider what is this punishment for and how it has to be given who has to be given and when it has to be given these are the basic questions which are required to be considered. The punishment is to be given it must involve pain or the pleasure. What exactly is meant by the pain or pleasure has to be considered in the sense let us take an example of a car driver who commits theft of a luxurious car you will have the in mind that one day he should drive or he should have a car of a luxury car so to say and then he commits theft of such a car and drives the vehicle throughout the city or even you may take out even to the different states also. When once the owner of the vehicle files a complaint saying that he has lost the car then the police will start investigation and then that person would be caught and investigation starts he would be arrested and then produced before the court. Then after the charge it is filed trial will take place and in the trial he will be found guilty he will be sentenced. So undergoing the sentence is the pain so one will have to understand the pleasure is that the way in which he has taken the car drove the vehicle is a pleasure and now the punishment that is given to him is a pain that's why it is said that he should involve the pain which is which could be said to be over the pleasure. The second basic element of sentence is it should be against the legal rules that means the legal rule should prohibit of doing a particular act if it is not prohibited then it will not be an offense a small example could be given perhaps one might have seen the signboard like no harm just before they come into the hospital building until the hospital building is over. So that board is put up by virtue of a notification issued by the police saying that nobody should harm at that particular place so that is the prohibition given by the police for the purpose of say whether any offense is committed or not when once a person crosses that boundary if he passes let us say that he has crossed about half a kilometer one kilometer then there will not be an offense that's why this act should be as against the legal rules now the third basic element is that anyone any person cannot be found guilty or cannot be punished so in order to punish a person the he should be found guilty of such an offense found guilty means how it has to be only by a judicial process that is by a magistrate who finds him or who holds him guilty of a particular offense then only he could be punished and not otherwise perhaps the general opinion is that any person who permission offense when he is arrested then he should be immediately punished that that is not what is going to take place only when he is found guilty in respect of an offense for which he is charged then only he could be punished and not otherwise because he might have heard in so many cases where though the charges are framed the trial takes place and then he could be acquitted also for so many reasons that's why only when there is an order of conviction that is when he is found guilty then only he could be punished so this is the third element and the fourth element is very very important it must be imposed and administered by an authority constituted by legal system so no one can punish a person or a sentence a person for having committed an offense let us say that a magistrate though has been appointed by the government to do the ministerial work as the powers that have been given under the criminal procedure code nevertheless if he is deputed to some other work on official duty or on on other duties then he cannot work as a magistrate he cannot punish a person for the wrong doing so therefore he should be properly rather empowered to punish a person for the purpose of sentencing him so these are the four basic elements which are required to be taken into consideration for the purpose of sentencing a person now let me give an illustration so that it would be better for us to further discuss with a subject let us say that four offenders are there who have committed theft of motorcycle one each at different places in the same city under the different police station jurisdictions then in such a case the persons who have lost the motorcycles will lodge a complaint on the basis of the in each case on the basis of such complaint investigation will start and then they will find out the accused and then develop the accused also would be arrested and then later on if the bail is to be permitted it would they would be released on bail or else they'll be remanded to the judicial custody and further charge it would be filed after the completion of the investigation and they have to face the trial now for the as far as the facing trial is concerned all four offenders will not be rather tried by one magistrate court because they're all under different police station jurisdictions under such circumstances let us call four courts as court a court b court c and court d so each of the offenders who have committed the theft of the motorcycle will be tried in each court there's court a one offender court b second offender court the third offender court for the fourth offender because it is they are not connected in series each have committed the offense individually in in different in different areas therefore they have to be tried separately now let us say that the court a where the uh preside the judge who is presiding over that court a is very strict in the sense he gives an upper finds an opportunity to convict the accused he convicts the accused and stricter punishment would be given let us say for the case of for an offense the punishment risked is up to maximum of three years this court a magistrate would punish him by awarding three years punishment the second court he is literally either this way or that way he do not make such attempt of punishing that person very seriously he perhaps he may impose or award a sentence of one of years then come the court b the court b thinks that no it is not such a serious offense therefore let me punish him with only one month and after one month the the period during which he was under custody that could be set up therefore though he imposes a sentence of one month he would be set up by virtue of the provisional section 4 and 28 CRPC and as the fourth court is concerned that is the court b is concerned he finds that no offense is made out as against the accused and that he is let free that means he is acquitted now let us analyze this so any person who sees these this illustration with all the four accused facing different offense defense different punishments for the offense being the same and the article that has been with which the offense has been committed also being the same and being tried by four different persons getting four different results is it what is required how it could be rather get uniformity what is to be done are there no principles are there no rules are there no restrictions so these are things which were required to now consider one by one by adopting the by knowing the principles let us now go to with this in mind let us discuss the sentencing principles one by one also theories of punishment is concerned there are four theories in which the accused will have to be dealt with one is called as a retributive punishment a retributive theory the second one is deterrent theory the third one is a preventive theory and then the fourth one is the reformative theory all these four theories let us understand what exactly they mean as for the number one let let us see as what is meant by retributive theory as for this retributive theory is concerned when once an offense is said to have been committed there will be retaliation by the injured or a person against whom the offense is committed he demands punishment immediately that cannot be said but never the inner peace is not restored till the accused is punished therefore the the punishment will have to be given how it has to be given perhaps earlier it was the basic principle was the eye to eye that means an individual himself will punish the person against whom in favor of whom the injured has been committed that's why it is called as eye to eye or tooth to tooth earlier the punishment was by an individual person after an organized society has come into being now that is the moral duty of an organized state to punish a person that's why it is said that all offenses are committed as against the state not as against an individual person that has to be made known so as for this retributive theory is concerned the person may be punished if violently done something legally wrong that means if a person has done something legally wrong you'll have to be punished the second one is that second aspect is that punishment should match or be equivalent to the wickedness of his game of his offense so therefore one will have to see what is the punishment that is to be given means it should be equivalent to the offense that has been committed or the wickedness of that particular person will have to be taken into account then the third aspect of it is that there should be justification for punishing that person so without justification the punishment cannot be considered so these three principles will have to be considered in this retributive theory but for considering this theory there are two aspects one is called as positive one and another way is negative one what is positive one is that the offender should receive the sentence adequately that means if it should reflect the gravity of the offense if the sentence should not it should not be too short or too lenient that should be adequate punishment should be given that is the positive aspect of it the negative aspect also would be there you should not receive sentence heavier than justified by the offense sentence must not be too long or excessive that means adequate means you should be commensurate with the offense that he has committed this is what is retributive theory now the second thing is deterrent theory this deterrent theory is nothing but a warning to not only the person who commits the offense but also to the persons who intend to commit the offense saying that if enough if the punishment is given you should be warning to him or to other person saying that if he also commits such an offense he would be rather inflicted with similar punishment that's why to deter from committing the offense such of such punishment is being given then comes then in this case also there are two aspects of it that is individual deterrence and general deterrence individual deterrence the object is to rather mend or one individual person to deter a particular individual from committing the offense that means to teach him a lesson that if you commit such an offense he would be punished that is the individual aspect of it the general aspect of it is that the general deterrence is that the punishment not considering the individual interest but considering the interest of the society as such he will have to be punished so therefore the punishment should be in consideration of the interest of the society therefore these two important as for this individual deterrence and the general deterrence will have to be considered as far as this is a second theory is concerned deterrent theory now let us come to the third theory preventive theory preventive theory here the offender is kept in custody for long period as the need of the public demands this is a very peculiar one in a sense until unless it is a case of a very rather an accused who has committed the offense quite often for such person this principle or this theory would be applicable for that means as long as he is in custody or as long as he is suffering imprisonment the general public or the society as such would be quite safe because there cannot be any offense as for his concern in this regard i have reminded of an incident that took place while i was working at the chief judicial magistrate in a place called chitradurga in karnataka where the accused was charged with the offense of having committed three-hand section three-and-seven offense and the accused was demanded to just the custody judicial custody the defense council appearing for the accused filed an appeal application and the prosecutor filed the objections of hearing both the sides i passed an order granting the bail the circumstances of the case demands that bail should be granted and i granted the bail with the normal conditions one such condition is that he should attend the court and all the dates of hearing on the next date of hearing the accused did not turn up i asked the defense council as to why the accused did not turn up the defense council said that sir it is a misfortune of the accused what is that misfortune said no sooner the accused was released on bail from the jail immediately he was murdered that means then i felt that i ought not to have released the accused and bail so that his life could have been saved but i never knew but i thought that under the circumstances under the legal parameter i granted the bail to him because justice demands that the bail should be given unless it is required that bail should be rejected in serious offenses it was not so serious then i granted a bail so therefore so long as accused in custody not only himself but also to the society it will be safe then comes the last theory called as reformative theory this is tending to reform the criminals the very purpose of reformative is that to see that the accused returns to the society by getting new sets of values desirable to contribute to the society how it could be done also is a point to be considered it is by virtue of re-educating him or reorganizing his criminal attitudes how by motivating stimulating ideas pattern ideas and patterns of conduct will have to be considered and then you'll have to be made to see that a good person a good citizen to lead in the society this rehabilitation also could be done by virtue of studying his antecedents or his history he associates with whom he is attached his environment and mental capacitor all the facts which are required to be taken to consideration for the purpose of reforming him and then rehabilitating him now there are legislations also in this regard to say for example this probation of offenders act is there and then junior justice act is there these are the acts which promotes the rehabilitation of the accused to reform himself and see that he leads a good life a good citizen in the society now we come across let us say the next chapter that I intend to continue is in respect of this punishment different kinds of punishments have been prescribed under the penal code that is Indian penal code IPC which we call it they are the death that is the capital punishment the next one is imprisonment for life which shall be with the regress that is with hard labor then imprisonment for a term which may be either regress or may be simple simple means with the simple work and regress means with the hard work then comes for future property and the next one comes fine imposition of the fine and these are the different kinds of punishments that could be awarded to the persons who found guilty by a court now as for the punishments are considered there are two sets two kinds of punishments one is custodial punishment and the another one is called as non-custodial punishments what are custodial punishments we shall see to it custodial punishments means a punishment is to be given and see that there in custody let us say for example this capital punishment or imprisonment for life or imprisonment for a term of a particular year these are the custodial punishments non-custodial punishments are like imposing a fine where no customer no imprisonment will be imprisonment will be there then the compensation to the victim or for future of the property so they sell the different kinds of punishments and also the two kinds of punishments like custodial and non-custodial now who are the persons who are authorized to punish there is hierarchy of course perhaps everyone will be knowing that the highest court in the state would be the high court the next one would be the court of sessions the third one is the metropolis magistrates and the fourth one will be the chief judicial magistrate and then the next judicial magistrate first class and then the judicial magistrate in second class perhaps everyone will have heard the nomenclature of judicial magistrate first class but very difficult to find out who are these judicial magistrates of second class as a judicial magistrate of second class are concerned perhaps as you know the administrative officers who are on training let us say for example maybe IIS officers who are on training they will be given a short empowerment will be empowerment will be for the purpose and there is the judicial magistrate second class where they can try as very small petty offenses and then impose punishments with that in such cases we can find this judicial magistrate second class now as the powers to pass sentence is concerned that also will have to be seen these are the why I am saying all this thing is that if the magistrates though you will be having powers you will have to find out the powers which they are having unless they do not have the power they can't impose punishments the high court and session courts have got the they have got powers to punish the person with the death sentence and also as for the death sentence imposed by session court is concerned is required to be get confirmed by the high court and as a chief metropolitan magistrate as chief judicial magistrate is concerned except death sentence or imprisonment for life the other sentences could be awarded that to up to seven years he could award and as for the magistrate the first class is concerned they could award the imprisonment up to three years and find up to 50,000 if I am right and as a magistrate second class is concerned is one year and I have to find out rupees 1000 so these are the different classes of kinds of persons powers have been given but now there are the little different kinds of punishments which have come of a recent period perhaps you might have heard what is called a flea bite punishment flea FLEA flea bite punishment means the punishment that is given though actually on record is a punishment it doesn't touch him it is like a flea bite it doesn't affect him also such punishments are also given and the other kind of punishment is that punishment being given till the rising of the court that means for the offense that has been committed till rising the court the punishment is given for this reason because in the final court the offenses are classified for which sentences are being given which say that imprisonment are fine that means the magistrate has got the power to impose or imprison a particular person the offender who has been convicted or fine either of it so therefore here is a choice or discretion given to the magistrate for imposing the fine or imposing the sentence of imprisonment now in certain cases for certain offenses there is what is called as and fine that means imprisonment and fine so there is no option given to the magistrate they are required to impose or give the sentence of not only imprisonment but also imprison the punishment of imposing fine and such circumstances as the till rising the court means is nothing want to imposing the imprisonment so right from morning till evening the person will have to be in the court and then that will satisfy the order that is passed with the magistrate for the purpose of rather undergoing the punishment the next different kinds of kind of punishment is what is called as community service this is a flat it has come into being community servicemen not undergoing imprisonment as has been stated or as has been described on the penal court is not even a punishment punishment of our sentence of fine it is communicate communicate community service perhaps in this regard I intend to refer to a decision reported in 2012 volume 8 SCC page 450 their losses are held in the said addition serving the society actually is not punishment in the real sense where the convict pays back to the community which was conduct of convicts will not only be appreciated by the community it will also give a lot of solace to him especially in case where because of one section in action human lives have been lost but in a case where six lives have been lost an account of an accident the honorable supreme court has passed this sentence along with awarding 50 lakhs of fine that has to be given to their victims or the near relatives of the deceased persons so this is what is called as community service punishment is in the also now as far as in certain cases the magistrates may not be having the powers to such sentence an accused person that means the message feels that higher his powers are only three years if the message feels that more than three years punishment will have to be given to an accused then the message will have to form an opinion and will send the send file to the chief judicial magistrate so the chief judicial magistrate has got the powers to impose after seven years and then he can rather consider all the materials placed before him by recording the evidence and then after coming to the conclusion that the accused has committed the offense then he would rather send a sentence him with the proper imprisonment this is the powers of the magistrates including the chief judicial magistrate now let us see how this IPC has come into being the IPC is nothing but the Indian Penal Code this was first first Indian law commission was constituted in the year 1834 and a draft code was submitted to the governor general in council on 14th October 1837 but later on after the first and the second reading the draft bill was referred to the select committee and the same was published in the supplement of the to the Kolkata Gazette dated 21st, 24th, 28th January and later on the Indian Penal Code was passed by the legislative council of India and received the assent of the honorable governor general on 6th October 1860 it was due to come into force in the first day of May 1861 but nevertheless it was delayed by some more time for the reason that the people judges and administrators to get accustomed or to get know the process of the law it was deferred for some period and in fact it has come into effect by one with effect from 111862 so therefore even though more than 150 years has elapsed very few amendments have taken place as far as the Indian Penal Code is concerned perhaps you might have one who is very well versed with Indian Penal Code you might see that fines of the range of rupees 100 200 or 500 rupees is there what was the value of 100 rupees in the 1860 and what is the value of 100 rupees as and today can just think over and imagine so for all these the pecuniary rather the fine amounts are concerned that I personally feel that they relate to be amended so that the relevant and proper fine amount could be imposed or could be amended in the Indian Penal Code so that the measures also could impose such a be fines now coming to the question of the discretion force as I said earlier nevertheless it is not as even once the accused is convicted the magistrate has got the power to impose punishment that is not the case because there are certain mandatory provisions which is required to follow what are those mandatory provisions those provisions are section 235 as for the section court is concerned 248 and 348 as far as the magistrate is concerned and 360 and 361 is concerned this also as far as the magistrates are concerned now let me see immediately after a judgment of conviction the next immediate step would be the application of section 360 or 61 of the CRPC that is the accused the court will have to find out it cannot immediately rather impose sentence the court will have to find out whether the accused could be given the what is called as could be released on probation of good conduct wherever there is probation of offender sack 1958 applicable in such a state the provision of section 360 CRPC is not applicable but however it is only the provisions of the probation offender sack would be applicable in what cases their applicable would be where the woman declared guilty of offense the punishment of which is not a death or imprisonment for life in such cases the court is required to invariably consider must consider the word may deserve from the section 360 PCRPC the word surely is used not may that means the court is the court must consider this aspect and the second category of persons to whom it would be applicable would be any individual below 21 years of age declared guilty of offense and a penal code of which death is not the life imprisonment death or life imprisonment has not been imposed so that means where the punishment biscuit is lesser than the death or imprisonment for life under such circumstances if the individual is below 21 years this provision of section 360 CRPC should be applicable the third category of persons to whom this provision would be applicable is a male or 21 years sentence of an offense of the punishment of which is fine or detainment of not over seven years that means if a person is more than seven 21 years if the punishment is not more than seven years then in such cases this section 360 CRPC will be applicable that means the under these three categories of for these three categories people this section 360 CRPC or the probation offender sack could be made applicable and it is as I said it is a mandatory for the magistrate to consider that and that for non is not necessary that in every case the for these categories of people this provision of section 360 or probation offender sack will have to be applied and actually let me set on getting some conduct or getting a bond for good behavior it is not so even though the word shall be said only application of this principle is there the court has got every discussion the court has got every power to say that this is a case where he needs offenses made out this is a case where the wicked was very cruel here is a case where the victim has been injured like this and it's not a fit case where the accused is not entitled for the benefit of the provisions of section 360 or POAC will have to be stated in writing that means a mandate is to the magistrate to record the reasons for not applying the provisions or for not giving the benefit of provisions of section 360 CRPC or the probation offender sack if it is not done the order will be set aside the judgment if any given by the magistrate will be set aside by the higher court so therefore the magistrates or the persons who inter budding advocates who intend to become the judges they should bear in mind these the two provisions of section 360 CRPC or the probation offender sack next another check has been given for the magistrates to impose punishment or once the magistrate is of opinion that it is not a case for giving the benefit of section 360 of probation offender sack the next even step would be the opportunity to be given to the accused if it is for the session judge it will be under section 235-2 if it is the magistrate it will be under section 248 to CRPC this is what is called opportunity to be given to the accused on the question of sentence that means the accused will have the opportunity to say what he has got to say whether he has committed the offense an account of his poor condition or it is a fact that an account of some other conditions or circumstances why and how he has committed the offense these facts will have to be stated if he wants to say that he is the only earning member in the family and no others are there in the family if he is sent to prison and the his family members will be very difficult to meet their demands then in such cases these facts will have to be taken to consideration by the court is only for that reason this provision of giving opportunity to the accused here the sentence has been prescribed under the CRPC and one point to be taken note of is that this is a mandatory provision if any magistrate process an order process a sentence on the accused sentencing him to imprisonment without giving the opportunity to say on the question of a sentence then that's that order would be set aside by the higher court therefore the magistrate should be very careful in following this mandatory provision of giving the opportunity to the accused before being sentenced say therefore these are the restrictions that have been imposed on the magistrate so that to a certain extent the discretion that has been given to them could be curtailed there cannot be any arbitrary exercise of discretion in order to avoid the arbitrary exercise of discretion these mandatory provisions have been described rather have been prescribed so for a to support the contention that in a case where the probation of offenders act is applicable in the states then 360 CRPC is not applicable one may refer to a decision reported in EIR 2006 SSC page 3051 now let me consider as I said that it is the case the magistrates or the sessioners cannot arbitrary exercise the discretion now what are the factors that are required to be considered for the purpose of sentencing the accused who is found guilty there are two kinds of circumstances one is called as extenuating circumstance it is also called as mitigating circumstance the second one is called as aggravating circumstances this mitigating circumstances or circumstances in order to simple imprisonment and as of the aggravating circumstances have to be considered or imposing very heinous rather serious punishment that could be given to the accused let us understand what are these mitigating circumstances the antecedents of the offender will have to be considered the nature of the offense circumstances of the offense prior prior criminal record of the offender the age tenderer would background with reference to age education etcetera emotional and mental condition prospects of rehabilitation whether it is a provocation and sudden fight absence of mensia influence or instigation of some other person self-reservation whether it has exceeded the self-defense his state of health delay in disposal of the case drunkenness so these are the factors which are called as mitigating circumstances will have to be taken to consideration by a magistrate before he proceed to pass an order of sentence either for imprisonment or proposing for imposing a sentence to find here I would like to stress upon one point the delay in disposal of the case is also an important fact to be taken to consideration in such an year that is why I have been rather making it a point clear to my training officers in our judicial academy to see that the cases are not delayed at the instance of the magistrates that means the magistrates are required to take into consideration at the fact that whether the accused in judicial custody if he is in judicial custody such cases will have to be taken and will have to be tried at an early period and then in other cases also the accused will have to be tried early for this reason that the marriage the magistrate should not be a cause for the delay in disposal of the cases with that in reference the delay in disposal of the case will have to be taken to consideration for the mitigation circumstances to be considered as for the aggravating circumstances are concerned what are the factors to be taken will be considered would be the gravity of the offense such as the previous heart either a 325 or a 326 IBC whether it's a deliberate and well-planned crime whether the accused is habitual offender whether he has caused extortion offenses against person or greater than those against property securing aid of accomplices breach of trust and misappropriation perjury and fabricating false evidence offense perpetrated by fraudulent means socio-economic offenses with the planned profit making minister public health for example adulteration of food etc degradation of contact that's infanticide during assault on women personal gain and expense of innocence house breaking assault on public servant to deter from doing the duty deliberate fire mischief deliberate was a violation of the offenses relating to currency and coins so these are the factors which are required to be taken to consideration by the magistrate for the purpose of imposing a severe punishment or a linear punishment depending upon the mitigating or the aggravating circumstances now even after the accused is sentenced to imprisonment there are two kinds as I said that the rigorous imprisonment or simple imprisonment rigorous imprisonment means putting the offender to hard labor and simple imprisonment means not not necessarily the hard labor a simple hard simple work would be rather awarded to him for the purpose of completing his period of imprisonment now as far as the punishment is consistent factors are required to be taken to consideration these simple factors perhaps which everyone would be appreciating it the guidelines are the sound common sense that means sound common sense in the sense the later the master will have taken to consideration the offense which has been committed by the accused and the commons rate punishment will have to be given taken to consideration his common sense then the practicality also will have to be considered practicality in the sense let us say for instance a poor person is asked to pay a fine of rupees 10,000 rupees from here you could get it it is impossible for him to get that 10,000 rupees nevertheless in default sentence it will be imposed nevertheless that fine amount will cannot be recovered at all and then he should also have the human approach this so these are all the factors which are required to be taken to consideration one or two caseless may be rather cited in respect of what factors are required to be taken to consideration one case law could be referred is reported in 2012 volume 2 hcc page 648 where the honorable supreme court has stated that the court must keep in mind the gravity of the crime motive for the crime nature of the offense and all other antecedent circumstances which have to be taken to consideration another case law is there for reference reported in EIR 2009 SC within bracket supplement page 2922 so these caseless may be gone into for the purpose of finding what are the factors that are required to be considered now another important restriction has been imposed or prescribed under the penal code though one may think that the magistrate has got so much of power to send the accused to the prison that is not the case checks and balances are there there are called as statutory minimum sentences though three years punishment could be given under for your offense having having been committed by the accused can he cannot impose maximum three years sentence for example there are certain offenses where the dowry death case is there section 3 and 4 b if you see where the minimum sentence prescribed is not less than seven years but may extend to life imprisonment so this is important aspect one will have to take into consideration as for the magistrates are concerned section 354 clause b and clause which have been incorporated to include in clause which have been incorporated the minimum sentence that prescribed for these offenses that is section 354 b 354 c is one year minimum sentence that will have to be given that means the magistrate has no the discretion to award less than the minimum punishment or minimum sentence that has been prescribed under the statutes if he does or impose any punishment less than what is prescribed there and then he will be committing the violation of the statute but there is one rather aspect that could be considered by the magistrate in this regard is though minimum punishment of one year three years or seven years is required for various offenses under statute one discretion he has been vested that power is given to the magistrate to give a lesser punishment than the minimum punishment for the reasons to be recorded in writing by the magistrate to see that here is a case where less than minimum punishment is required to be given then only he can award less than the prescribed minimum sentence generally it will not be done done because there will not be any special circumstances but those special circumstances if any will have to be recorded that recording of the special reasons should be recorded in the judgment or in the order sheet whatever it may be and then they are made to obey the law that has been imposed imposing the restrictions under the different sections so this also restriction of the exercise of powers with magistrates are there now we shall come across the another alternative that means here as I said earlier the imposition of imprisonment or awarding of sentence or fine that is the option that has been given to the magistrates it depends upon the gravity of the offense where the magistrate can award either the sentence of imprisonment or the sentence of fine therefore the principle in this regard is that there should be an excess between the in respect of where he wants to impose only fine there should be an excess between the amount of fine and the potentiality of the accused to pay earlier I said that if heavy fine is imposed on the accused where it cannot be recovered then it will be very difficult under such circumstances the magistrates are directed or to obey this principle of having the excess between the amount of fine and the potentiality of the accused now even case let us say that the accused is imposed the final fine of certain amount and for any reason he is unable to pay that amount what is to be done and for not paying that amount also the sentence could centers of imprisonment could be awarded that we scored as centers of imprisonment in default of payment of fine that default sentence is generally called as default sentence that default sentence should not exceed one fourth of the maximum imprisonment that is to be given for the substantive sentence that means let us say for example for the offense of theft three years maximum punishment that is prescribed and then for the default sentence we should not exceed one fourth of three years so that is what the law says that is section 65 of the IPC and in case of default of fine it could be even a rigorous imprisonment or simple imprisonment would be there and as for the centers of fine is concerned see for that also the default sentence if the offense committed with the accused for which only the fine is imposed a sentence then how much default sentence will have to be imposed is covered under section 67 of the IPC that default sentence should not exceed maximum of six months it is stated in the said section 67 that if the fine amount does not exceed 50 rupees only the center default sentence should not exceed two months if the amount does not exceed 100 rupees the term should not exceed four months if in any other case it should not exceed six months that means maximum six months default sentence that could be awarded by the magistrate now we should come to another important provision of section 511 IPC where the punishment is to be given for an attempt to commit an offense let us say an offense to commit theft for committing the offense 3 and 79 would be there for attempting to commit an offense of theft then 370 is not applicable it will be 511 for this 511 IPC the punishment should not exceed half of the longest term provided for the offense for the offense of theft longest 30 is 3 years and then for an attempt to commit offenses would be applicable that is section 511 IPC is applicable only to the offenses in the PC and not special or the local special of the local law may be adulteration of food act or the electricity act or whatever it may be different enactments other than the IPC this section 511 will not be applicable and it will also be not applicable in respect to offense punishment imprisonment and not offenses punishment fine only that means if the offense for which the fine is imposed then this section will not be applicable another important condition for application of this provision is that where attempt to commit itself has been made and a distinct offense the IPC this 511 is not applicable for example attempt to commit suicide section 309 is there so for the offense therefore this five section 511 is not applicable similarly the section 460 IPC describes an updated type commit housebreaking or lurking house stress pass the cases also this section 511 IPC will not be applicable in cases where the accused is found guilty for having committed more than one offense that is under section 71 CPC read with section 31 the maximum punishment that could be awarded to the accused is not more than 14 years and then the aggregate punishment shall not exceed twice the amounts of punishment with the court is competent to inflict for a single offense let us say that for instance if the accused has committed the offense under section 457 and 380 that is committing theft while entering into the building that is 457 380 for 457 3 years he imposed the punishment and for the instance section 380 he imposed yes it is not the 5 totally five years imprisonment would be there it is not double than that of the imprisonment that could be that the magistrate has got powers because magistrate has got powers to impose up to three years double than that means up to six years he could impose if it is to be rather the number of offenses are accused and another important aspect to be considered is that if the offense is committed by the accused in two or three counts that means with respect to all three offenses different punishments are prescribed they had to run consecutively that means one after the other let us say that an accused has committed the offense under 457 three years punishment is given for the offense under section 380 two years punishment is given that means after another two years you have to spend in jail for having committed the offense under section 380 this is what is called as undergoing the imprisonment consecutive unless the magistrate in his order of the judgment of sentence says that sentence says to run concurrently means both will run together both three years and two years will run together after the expiry of the maximum of three years he will be set at devoted this is the meaning of undergoing of the for this case there is a three judge bench district of the honorable supreme court reported in AIR 2015 supreme court is 03 where it is stated that there is no rule either way that means either for a running no order is passed it runs consecutively should be specifically ordered in the judgment and only the accused can get the benefit of running both the sentences or both three or four sentences at a time it runs consecutively that means one after the other that one can refer to this decision and there is one restriction this default of payment of fine cannot be ordered to run concurrently along with substantive sentence that means for not paying this fine amount that's a different one he has to undergo to separate independently it cannot be run for correctly and as far as there is one important provision where the benefit has to be given under CRPC to the accused the period during which he has been under custody that means under judicial custody during the trial that period will have to be deducted out of the total amount of the sentence that has been imposed by the court and in this regard that period should be spent in not in another case that means the world in the same case has been made use of and not in other cases that is what is stated with honorable supreme court in this decision reported in 2010 volume 1 SCC page 603 for the world the same case has been interpreted saying that in that particular case whatever the period he has spent will be rather set off now with these principles and restrictions prohibitions and mandatory provisions that have been incorporated under the CRPC the magistrate cannot exercise his discretion arbitrarily and another important aspect which I will take another five minutes with Mr. Vikas permission so that I am already is it a time Mr. Vikas who can other files I will take a guideline that I have been given by this can I take another five minutes Mr. Vikas the guidelines have been given by the the honorable supreme court guidelines through judicial decisions as I said this all the mandatory statutory prescriptions as statutory requirements or statutory restrictions that have been imposed in the magistrate but nevertheless honorable supreme court in the number of cases it was certain guidelines that are also required to be considered only a few cases have been stated in a decision reported in 2016 volume 1 SCC page 463 the honorable supreme court they have stated that no description is there it cannot be allowed to yield fanciful notions that means the magistrate cannot impose the the supreme court imposes a guideline to the magistrate that liberal sentencing cannot be done because it has no legal permissibility and social acceptable acceptability if any measure resort to liberal sentencing that is deprecated that is what is stated and in this decision the duties of a has been stated therein and it is it is very fine to just go through the state decision for knowing more in see this another important task is that this is a case where three years and five has been about trial court for the offense in the section 306 IPC and honorable high court has reduced it to period already undergone that is for four months and 20 days the honorable supreme court adequate sentence to be imposed by the trial court appeal by state or person agreed to be changed so this is an important aspect of the magistrate because whatever the sentence that is imposed by the magistrate should be adequate and appropriate if it is not then if no appeal is fine state or by the agreed person that is accused before the appellate court then whatever the punishment that is given by the trial court stands it cannot be announced so this is an important aspect for this case at this category direction and suitable orders and it has also stated that there is no straight jacket formula for imposing sentences and it is not a soluble theory in mathematical exactitude that means you can't say that 2 plus 2 means 4 it can't be said guided and be fixed in such and here in this case the honorable supreme court say that no personal perception of judge can be allowed to have a place I will give one small historical which I used to tell to my training officers in a nutshell the there was a one family where the we was a woodcutter and he lived by a cut by salad to the people who is in need of it and out of the amount he sells he used to give it to the wife and so that he wife could go to a top there's some materials like a process required for the house and in such fashion the wife gets a the different intimacy with the shopkeeper and after some time this husband started meeting the wife the wife thought that why why she should stay with the husband then she thought once one night she thought he could go away from that husband and then go to some other village she left the house of the husband and there was a rivulet to be supplement to cross that also that fact also was known to the wife the wife when he left first she went to the shop that is the owner of the shop and asked her to assist her to cross the boat he refused then she went to the house of the boatman boatman also refused to help her then she thought that there is what he knew that there was one more pathway which was very circuitous one and then that was a path where one has to go through in the forest and she knew that the wild animal should be there and when nobody either the shopkeeper nor the boatman supported her while she was going in that long circuitous route she was attacked by a wild animal and the next day morning the husband searched for her and found that her body was mutilated in found in mutilated condition now please stand who is responsible for her death you can just imagine yourself I will just give the elaborate it on that and my students some one group says that it was husband who was responsible for the death I asked why they say that there was no reason for him to beat the wife and therefore the wife has to live there and they leave him and therefore it is the husband who is responsible for her death another group people said that no no no it is not the husband it is that shopman she went out of the shop with whom she had developed an intimacy if such is the case definitely the shop help her so that she could have saved her life that was the second opinion given the third group people said that no one was the boatman who is responsible at the dead night when a woman has gone to his house to help to seek seeking help but he has not helped therefore boatman is responsible for the cause of the death then another group said that no sir it is the woman herself is responsible for the cause of the death for the reason that at that dead hour there was no reason for her to have come out of the house of the husband and second thing is that those who knew that there would be wild animals in that forest he ought not have venture to go there and therefore it is the wife who is responsible now these four kinds of decision are the cause of the person's responsible husband and who is responsible can it be accepted this how that is happening in the course one view one person is responsible other one you use the other person is responsible therefore this all what are what is called as personal perception therefore the honor in this case law that is decided in 2016 one as I stated earlier supreme court cases page 463 has stated that no personal perception of a judge or self adhered a moralistic vision or hypothetical apprehensions be allowed to have any place for considering the imprisonment factors another important decision is reported in 2013 volume 12 sec page 308 the duty of a court has been stated prime objectives of the criminal law is imposition of adequate just proposed state punishment it should be commensurate with the gravity and nature of the crime manner in which it is commuted further it has given a caution if any lenient view is taken or showing misplaced sympathy or it shock or if it shocks the conscience of the society then it will be mockery of criminal justice so therefore a guidance has been given to the magistrate not to impose the linear centers or misuse the misplaced sympathy or it should the punishment to be given or punishment given should not shock the conscience of society if such factors are taken into consideration it will amount to nothing but mockery of justice therefore to strike the proper balance is what is required that has been stated as a duty of the court by their lawships in the said decision another decision is reported 2015 volume 5 sec page 182 it has given a caution to the courts court should not be swayed away by passion of mercy mercy has no role for the purpose of considering the imprisonment the obligation the court has been stated short could constantly remind itself rights of the victim persons agreed society at large they should not be marginalized guided by sense of sentimentality and governed by prejudices these also should not come in the way of the magistrates while imposing the imprisonment and there are so many other cases only one case live would refer to which is the full bench decision of the honorable supreme court reported in 2015 volume 6 sec page 185 this important judgment where of course as I said there misplace sympathy and unwarranted leniency will send a wrong signal to the public giving room to suspect institute institutional integrity and also affects the credibility of the verdict so these are the factors which guideline which the magistrates and the judges for empower to pass an order of imprisonment should take into consideration that principles also have been stated there in which the court will have to remind is social interest and conscience is not given common man will lose faith in course sentence should reflect social conscience of society and sentencing to be stern there are so many other cases it may not be relevant though they are relevant but they are not to be considered these principles which have been given by our guidelines that have been given by the honorable supreme court would be sufficient guidelines not only in addition to the restrictions or prescriptions or prohibitions have been given under the would be sufficient for considering the imposing the sentence now that apart the steps that have been taken by the government from far framing litigation policy is to the effect that it during the year 2003 there has been a committee formed constituted for reforms and criminal justice where honorable mr. justice vs. malimat he was the chairman of the committee and the committee has concluded in saying that exercise of unguided description is not good whether or not it is a jet that exercise of the description and subsequently another committee has been formed that the chairmanship of mother man and that is called a mother man committee in the year 2008 it is a committee on draft national policy and criminal justice and even that report also is pending and some of the important course one or two sentences voting is there by the prominent three judges of the honorable supreme court if that is to be taken to consideration i think i leave it to you as to whether for policy sentencing policies require or not has to be considered honorable justice christian air has said every saint has a past every sinner has a future honorable justice k t thomas has said theory of reformation through punishment is grounded on the sublime philosophy that every man is born good but circumstances transfer him into a criminal honorable justice dp vodha has stated reformative theory is certainly important but too much stress on my mind and to my mind cannot be laid down on it that basic tenets of punishment altogether would vanish with these points on discussion only one point that i am that i would like to stress upon is that the in all the cases that have been stated that appropriate punishment and then punishment commensurate with the offense and then just punishment has to be given we have to find the definition for these words appropriate adequate just proportionate nowhere it is defined it is only the circumstances will have to be taken into consideration by the magistrates or the judges who have been empowered to punish and then they have to take those into consideration and with this in view the sentencing policy do not if at all if to be rather put into surveys should be a structured stature of statutory litigation rather sentencing policy should be there because if it is just only a sentencing policy it cannot be followed or implemented in v of section 141 of the article 141 of the constitution of India should be binding and understand this it is a statutory policy it cannot be followed mere report will not serve the purpose with this in mind i conclude thanking all the viewers and also mr vikas for giving the opportunity for presenting this subject thank you very much thank you mr vikas thank you sir a question has come can a judge mention in the judgment that sentence is not subject to remission or commutation that remission is also there not there in and ultimately after serving the sentence for some period there is one provision under the CRPC where the commission will be there that that section could be a precedent of service is there any difference between principles of punishment and policy of punishment as i said policy is a different policy is to be may be a guideline to be framed by the government how far that will be put into surveys has to be considered that's why i said at the end it should be a statutory guideline unless it is a statutory guideline it cannot be pressed into surveys and it would not be a rather mandatory for the measures to consider the same as for the guidelines given by the honorable supreme court in respect of the decisions which i cited there as i said and article 1 part 2 in the binding upon the magistrate they are required to follow it but as for the policies as such is concerned it cannot be there will be only on paper means enlighten the scope of section 482 CRPC while directing the sentences of two separate judgments to run concurrently no two separate judgments they are quite different one judgment cannot be tagged onto the other judgment there is nothing in that regard each judgment sentence should be quite independent thank you sir for enriching us it was a pleasure hearing you thank you everyone stay safe stay blessed and those who have missed our previous webinars can subscribe to the channel beyond all CLC they can help the thank you thank you very much because thank you