 Good evening, friends. Amongst us, we have Justice Avi Chandrasekhar, a former judge from Karnataka High Court. And those who have been connected in the journey of Beyond Law CLC, they would have seen the sessions which are one of the most popular are by Justice Avi Chandrasekhar. His style of making things simplified has what made him a different perspective that people want to hear him. And one of the facets which we have today is also an important aspect that we all discuss about criminal appeals, the procedure, the evidence, et cetera. But another aspect is normally when there is a sentence on the punishment, et cetera, then normally we go and we believe that probably it is the discretion and how you convince, what are the parameters? Are there any parameters to discuss on the hearing on sentence and punishment? Or it is what as going in the lighter sense, it was said the judgment would be what the judge thinks upon that particular moment and particular situation. But are there any parameters for deciding the punishment and the sentence part? These are the nuances which will be taken forward in the current sessions. And Justice Chandrasekhar as such would not require any introduction because his name as such is so popular on the panel, on the Journal of Beyond Law CLC and being a regular resource person in the Karnataka Judicial Academy. And different law colleges as they say that Justice Chandrasekhar is so passionate about teaching and making simplified is what makes him a distinct and distinguishable personality from the other persons. And he has created his own niche within the society of making things simplified. I will not take much time and we are so enamored by the fact that despite his decision, I made a request late night one day and he very really agreed. And I do not know how many resource persons he have been able to connect with him. What do you say? Thank you, Mr. Chathrat. Because Chathrat, good evening to all the, all those who have logged in, my respected and beloved advocates and all those who are interested in knowing something about the criminal jurisprudence. Friends, Mr. I was not able to log in through this platform for quite a long time. There were many requests from Vikas Chathrat, Savava I was torching. Ultimately I couldn't say no to him. And it's very good that Mr. Vikas Chathrat has started this platform to educate all the, all those who deal with different laws in different forums. Knowledge is power. And Mr. Chathrat has been doing a wonderful work roping in persons who have practiced in various courts on different matters. And they have been sharing their, not only knowledge, but also their huge and rich experience. Friends, all of you know very well that in the criminal law jurisprudence, the first principle is that an accused is deemed to be innocent till the contrary is proved. Even if 100 accused are let out, not even a single innocent should be punished. And at the same time, a new principle is avowed that an attempt must be made to find out the real guilty and to punish him or her as the case may be. As all of you know, trial is a journey to unravel the truth. So recording of evidence is an important passage either in disposal of a criminal case or a civil case. The courts, which we call as cutting edge courts, will take up the responsibility of recording evidence. And on the basis of the evidence recorded and the pleadings, if any, in civil case, the judges will decide the case. In a criminal case, the accused has lot of constitutional protection. What are those protection? Article 20 of the Constitution of India provides an accused many safeguards and they're embedded and they're ingrained into the criminal procedure court. For example, soon after the trial is over, the evidence of the prosecution is recorded. And if there are incriminating materials, the judge will collect all those incriminating materials and put to the accused so that the accused can have his say. That is the only opportunity which can be used by the accused to explain his stand in the case, even if he does not answer the incriminating questions put to him. No adverse inference shall be drawn is the mandate of section 313 of CRPC. If you read section 313 of CRPC, you will come to know that article 20, the principles adumberated in article 20 of the Constitution of India have been virtually bodily lifted and put into section 313 of CRPC. So ultimately with great difficulty, the judge let us assume convicts an accused. Even conviction is not so easy because in a criminal case, the prosecution is expected to prove the guilt of the accused beyond reasonable doubt. So if you see section, if you read section 3 of the evidence act carefully which deals about proved, not proved and disproved, you don't find that in a criminal case, the accused is expected to prove the prosecution is expected to prove its case beyond reasonable doubt. Then how is it that the concept of proof beyond reasonable doubt is being applied by the courts in India, criminal courts in India? All of you know English were our rule, Englishmen were our rulers. They brought IPC and CRPC. In English courts, the concept of proof beyond reasonable doubt has had been applied. Since we have also borrowed the Anglo-Saxon system, legal system, over a period of time, our courts have also been applying the same principle. That is the proof beyond reasonable doubt. What is proof beyond reasonable doubt? It's very difficult to explain. But in one of the celebrated judgments, Honorable Mr. Justice M. M. Tachalaya, as a judge of the Supreme Court reported in AIR 1988, Supreme Court 2154, State of UP versus Krishna Gopal has eloquently explained what exactly is the proof beyond reasonable doubt. So for deciding a criminal case, the judges will apply the principle of preponderance of probability. In criminal case also, the same preponderance of probability is used. But in criminal cases, a little higher degree of proof beyond is preponderance of probability is required. That's all the difference. So ultimately, when an accused is convicted, in a warrant case or a session's case, the judge dealing with that case, the judge convicting the accused must has a responsibility, statutory responsibility of hearing the accused with regard to this sentence to be imposed. Let us assume that in a case, punishable for offense and in a case, punishable under section 324 of IPC, causing hurt with a deadly weapon. The maximum punishment contemplated is three years. It's a warrant trial. The judicial magistrate first class convicting an accused should necessarily hear the accused with regard to the sentence to be imposed. But not only as all of you see, it's the advocates who represent the accused will submit with regard to the sentence to be imposed. There is no prohibition for an advocate representing an accused to make appropriate submissions with regard to the sentence to be imposed. Definitely as a counsel representing the accused, he has a duty. And similarly, on behalf of the prosecution, the extent public prosecutor or the senior public prosecutor or the public prosecutor as the case may be, has also a duty to make appropriate submissions about the sentence to be imposed by the court. On hearing both of them, normally sentence will be imposed. Very rarely accused will be called upon to have his say with regard to the sentence to be imposed. Section 248 of CRPC speaks about the power of the judge to acquit an accused or to convict an accused. Subsection one of section 248 enables a court to acquit an accused if the accused is found not guilty. But subsection two of section 248 enables the judge to convict an accused. I will read out because subsection two of section 248 is relevant and I will just read it out. Where quote, where in any case under this chapter, the magistrate finds the accused guilty but does not proceed accordance with the provisions of section 325 or section 360. He shall after hearing the accused on the question of sentence, pass sentence upon him according to law. When an accused is convicted in a warrant case, the magistrate is if the magistrate does not apply the provision of section 325 of CRPC, that is if he has no jurisdiction to sentence beyond a particular limit, he has to make it over to the chief judicial magistrate or magistrate or if he does not apply the beneficial provisions found under section 360 of CRPC, then he must necessarily hear the accused. Normally accused is not heard. Let us say in such a case, what will be the submission of the Estend Public Prosecutor? Sir, the accused has committed an offense punishment under section 324 of CRPC. The maximum punishment contemplated is three years. He caused injury and it was unwarranted. Therefore the maximum punishment may be imposed. On behalf of the accused, what would be the submission? Sir, he is a young man recently married as a small child. His parents are aged. He is the only earning member of the family. Therefore, have a lenient view. Normally these are the submissions made. In today's session, we have to look into the mandate found in the probation of Appendress Act 1958. Section 360 of CRPC is a benevolent provision which speaks about order to release on probation of good conduct or after admonition. So section 360 of CRPC enables the magistrate to release an accused convicted accused on probation of good conduct or after due admonition. So it has 10 subsections. Under what provisions, this beneficial benefit could be extended. This section 360 is applicable in states which have not adopted the probation of Appendress Act 1958. The probation of Appendress Act 1958 is a central legislation and the states have the liberty to adopt the same. And such of those states who are desirous of adopting the same will have to issue a notification and should be published in the official case. And from that day, TO Act will be applicable. In the state of Karnataka, the probation of Appendress Act 1958 is applicable. It is a small central legislation having just 19 sections. This probation of Appendress Act was passed by the parliament. What is the object? Why was this act brought into force? It is an act to provide for release of Appendress on probation or after due admonition and for matters connected therewith. Have you ever seen any advocate in a criminal court arguing or making submissions about the request for the court to invoke the provisions, relevant provisions of the probation of Appendress Act 1958? Very rarely. I don't say that there are no advocates, no advocates would make such submission. I don't venture to make such a declaration. In very few cases, submissions would be made by the accused representing the accused to invoke the provisions of PO Act. So this PO Act, sections three and section four are two important provisions in the act which a very advocate practicing on criminal side should remember. What is this? Three, when any person is found guilty of having committed an offense punishable under sections three and 79 or section 380 or section 381 or section 404 or section 420 FIPC or any offense punishable with imprisonment for not more than two years or with fine or with both under Indian Penal Code or any other law not only under the Indian Penal Code or any other special law and no previous conviction is proved against him and the code by which the person is found guilty is of opinion that having regard to the circumstances of the case including the nature of the offense and the character of the offender it is expedient so to do then notwithstanding anything contained in any other law for the time being enforced the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section four release him after due admonition. Therefore, what are the see there are sections 380, 379 theft house breaking and say theft in a house 380, 381, 404, apart from that any offense for which the punishment contemplate contemplated does not exceed two years and if no previous conviction is found the judge has the discretion to release the accused on probation of good conduct are under due admonition. Then let us go to section 4. What does it say? Power of court to release certain offenders on probation of good conduct. When any person is found guilty of having committed an offense not punishable with death or imprisonment for life and the code by which the person is found guilty is opinion that having regard to the circumstances of the case including the nature of the offense and the character of the offense it is expedient to release him on probation of good conduct then notwithstanding anything contained in any other law for the time being enforced the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without truities to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep the peace and to be of good behavior. So here even in a case which is not punishable either with death penalty or imprisonment for life. In all other cases this section 4 can be invoked. So even in grave offenses also an accused convicted for such offense can make a request to invoke the provisions of section 4. Now the question that arises is whether an advocate or the accused must necessarily make a request to the court convicting such an accused to invoke the provisions of sections 4 or 3 or 4 of the PO act. No, it is the duty of every court to first find out whether the provisions of probation of offenders act are really applicable and then and if they are applicable and if the court finds that such sections should not be used in the present case reasons must be assigned as to why the provisions of PO act are not made applicable though they are actually applicable. So normal rule is to invoke the provisions of PO act and the exception is to reject to invoke and such exception must be preceded by good reasons. Honorable Supreme Court has made it very clear. And section 5 states that the court releasing such a convicted accused under the provisions of PO act may impose costs which it thinks reasonable for any loss or injury caused to any person by the commission of the offense and such costs of the proceedings as the court thinks reasonable. Then section 6 is one more important section. Restrictions and imprisonment of offenders under 21 years of age where any person under 21 years of age is found guilty of having committed an offense punishable with imprisonment but not with imprisonment for life. The court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offense and the character of the offender it would not be desirable to deal with him under section 3 or section 4. And if the court passes any sentence of imprisonment on the offender it shall record its reason for doing so. Though a court dealing with an accused below 20 years, 21 years and below has a right to impose sentence but it has to assign valid reasons as to why it is not applying the provisions of PO Act. The same analogy is applicable with respect to an accused in which sections 3 or section 4 will have to be involved. Friends, this probation of offender's act is a very vital act for yet another reason. Please see section 12, very important. Lawyers practicing on criminal side must know what are the effects? What is the effect of using the provisions of PO Act to an accused in future? Section 12, removal of disqualification attaching to conviction notwithstanding anything contained in any other law a person found guilty of an offense and dealt with under the provisions of section 3 or 4 shall not suffer disqualification if any attaching to a conviction of an offense under such law. That means there will be no stigma. There will be no stigma in future unless the law under which he is convicted mandates for a disqualification then section 12 cannot be applied. In all other cases, the discretion if exercised under PO Act will have an effect that the disqualification will be removed. Let us assume an accused is convicted for offense punishment section 324 or 325 of IPC. The judge takes a lenient view and only imposes fine and does not impose any sentence of imprisonment. Whether sentence of imprisonment is imposed or whether fine is imposed, it does not make any difference. It is a sentence for all practical purposes. Let us assume that he applies for a government job. Let us say he applies for a post of Tashildar or a resident commissioner and gets through. Subsequently, after he is selected, the list will be sent to the concerned for verification of antecedents. So in the place where he resides and in the police station, there will be record to show that he was accused in a particular case and convicted. Then the report will go to the selecting authority and ultimately he will not be selected. He will challenge the same in the upper letter administrative authority. There also it's very difficult to argue because a sentence is a sentence for all practical purposes. Whether he sentence of fine is imposed or sentence of imprisonment is imposed. If the advocate had argued before the court for invoking the provisions of PO Act and if the PO Act had been invoked and if he had been admonished or released on good conduct of probation, there will be no stigma. It will not come in his way. Very, very difficult. Therefore, my request to all of you is this is a very small act consisting of only 19 sections. It's a benevolent social piece of legislation. Lawyers practicing on criminal courts in criminal courts whether they are magistrate courts or sessions courts or judicial magistrate courts, please try to make out a case for invoking. Even otherwise, let us assume that the lawyer has not requested the court and the judge has also not invoked the provisions and sentenced and acquitted. In an appeal or revision also there is discretion. Discretion is vested with the appellate judge or the revisional court judge to deal with the same. There is no prohibition for, except for imposing for invoking the provisions. Section 11 of PO Act mandates, courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision. So even the appellate court or the revisional court has also the power to deal with the provisions of PO Act and give benefit to the same if the convicted accused is entitled to. So Karnataka High Court had an opportunity to deal with the same at length in the case of Anumantanayak versus state of Karnataka. 2016, SCC online, Karnataka 8749, equivalent to 2016, Bracket 3, Karnataka large journal 426. So it was a case of a ration negligent driving by a car driver, car driver. He had dashed against a moving train. He was convicted for offense punishable under section 161 of Railway Act, which is equivalent to section 279 and 337 of IPC. He was convicted by the trial court and sentenced to undergo imprisonment for six months. The appeal was upheld. The appeal filed by the accused was dismissed and the judgment of conviction and sentence was upheld. The accused had approached the Honorable High Court of Karnataka challenging the judgment of conviction and the confirmation of the same by the appellate court. The High Court has upheld the conviction but remanded the matter to the trial court to the appellate court to consider the provisions of PO Act. Ultimately, it is observed as follows in paragraph 40. From a blind reading of the decisions referred to above, it is clear that all the courts dealing with criminal cases should, after committing the accused, make an endeavor to ascertain about the applicability of the provisions of probation of Appellate Act. Whether a submission is made to that effect or not by the accused, reasons must also be assigned if the provisions of the said act are not made applicable to the case. So this is the reiteration of the law laid down by the Supreme Court. One of the leading judgments of the Supreme Court is Hari Singh versus Sukhbir Singh. Reported in 1988, bracket four, SCC 551. Equivalent to AIR 1988 SC 2127. It's a judgment rendered by late Justice K. Jagannar Shetty. Who was the judge of the Supreme Court? Analyzing the provisions of the PO Act and the earlier decisions of the Supreme Court. It is reiterated in paragraph eight of Sukhbir Singh's case, Hari Singh's case as follows. I'll just read it out for your benefit. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct. We gave our anxious consideration to the contentions urged by the council. We are of the opinion that the High Court has not committed any error in this regard also. Many offenders, please remember this. 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. Please understand court encourages, courts encourage their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flareup. These are not shown to be incorrect. We have already said that the accused had no intention to commit the murder of any person. Therefore, the extension of benefit to the beneficial legislation applicable to first offenders cannot be said to be inappropriate. So this is a fair idea of the PO act. Now, let us assume that the judge is not inclined to apply the provisions of the PO act. Then he will, the judge, he or she would give valid reasons as to why the provisions of the PO act, though applicable or not made applicable here. And if they are not applicable, nothing is applicable to the judge. The judge is not inclined to apply the provisions of the PO act. And if they are not applicable, nothing comes in the way of the court. There are also exceptions. PO act, normally they will not be applied where serious offenses of, offenses of grave offenses are committed or offenses are committed against women, children, persons belonging to scheduled caste, scheduled tribe, serious economic offenses, prevention offenses punishable under the Prevention of Corruption Act or PMLA Act. So these are the offenses of grave danger to the society. And therefore the judge will say, though the offenses are neither punishable with death or neither punishable with imprisonment for life nor death, the provisions of PO act will not be made applicable. Now the question is, if the judge intends to sentence the accused, the judge is bound to hear, normally, as I have already told you, submissions would be made by the counsel representing the accused. He or she can make definitely submissions. And the judge has a duty to personally hear the accused with regard to sentence to be imposed. Otherwise, if the judge does not hear the accused in person, it would be as good as denying a great opportunity. Sometimes it may happen. Let us assume. Normally accused at docket would say, sir, he is aged, he has two children, they are dependent on him, he has a wife and she is not turning. His mother and father are already aged. He has no source of income. Therefore, he is the only person, bread earner and such submissions will be made. There are usual submissions, they are not sufficient. Let us assume in a case the accused is called by the judge himself and he asks, what do you want to say? See, now this is a case, this is a case of, say, offense punishment under section 326 of IPC. Let us assume that as a result of his assault with a deadly weapon causing reverse injury, let us assume that one finger is broken and it cannot be re-unit. So prosecutor would argue, assistant public prosecutor, senior public prosecutor would argue, sir, maximum punishment could be 10 years, even it can extend, it was imprisonment for life. Therefore, maximum punishment can be imposed. That is the usual submission made. The judge personally calls the accused and seeks his explanation. He may have many difficulties. Probably he may have a child which is a spastic or his father might have been inflicted with paralysis or his, probably his wife may have dead, living two minor children. He has to look after the welfare of those children. Additional responsibility. If his wife was alive, she would have looked after, somehow looked after those children. So additional responsibility would be there on this earning member of the family. These are also certain circumstances. These circumstances can be ascertained. Only if a meaningful exercise is done by the judge. Sometimes it may also happen. There may be a submission by the accused that his mother is suffering from paralysis. The court may also ask the prosecutor, sir, he is making a submission that his wife is paralysis. Why can't you cross check and make submissions? Sometimes to have sympathy, you can't rule out the possibility of making a false submission before the court also. It may be true or it may not be true also at times. Therefore, the prosecutor appearing for the prosecution may request the court, sir, give me two days' time. I will get it verified and make suitable submissions. If his version is found to be true, I leave it to your Lordship to take a lenient view. See, because the prosecutor is not a police prosecutor. He is not a state prosecutor. He is a public prosecutor. Public prosecutor has a greater responsibility even if the government takes a decision in the cabinet that some cases, criminal cases will have to be withdrawn. An application will have to be made under section 321 of CRPC before the court and the decision taken by a cabinet in terms of article 162 of the Constitution of India, even if an executive order is passed, that executive order does not bind the prosecutor. That is the duty of section 321 of CRPC. That's why Abdul Karim, whose son was a DBSP, was murdered, had been murdered by Virapa's gang and against Virapa's gang, some cases had been withdrawn, that the father of the deceased police officer challenged before the Supreme Court and there is a, say, marathon but a well-written judgment about the powers of the prosecutor under section 321 of CRPC. He is not subordinate to the state. He is not subordinate to the police. He is a public prosecutor. The public prosecutor is not only, he is not interested in getting an acquittal or a conviction. His duty is to assist the court in placing all the materials before the court and assist the court in coming to a proper and appropriate conclusion. It may be an acquittal, it may be a conviction or it may be a partial conviction. It can happen, he has a dispassionate duty. He is not bound by the state though his salary is paid by the state. He is not bound with the decision of the state. Hence, in the case of 2002 Criminal Law Journal, 271, Bhrigu vs. State of UP, it is a decision of the Allahabad High Court. There was an opportunity for the Allahabad High Court to deal with the mandate found in subsection 2 of section 248. That is the hearing regarding sentence. It has held like this. The order of sentence is bad in law and as much as the applicant was not given any opportunity of hearing on the question of sentence as contemplated under section 248 2 of CRPC. It is pointed out that from the judgment of the trial court itself, it is evident that after recording conviction only the counsel for the applicant was heard orally on the question of sentence and no opportunity of hearing as required in law was afforded to the applicant and therefore he was deprived of the right conferred upon by law makers. So, there is a right conferred on the accused who is convicted to have his say regarding the sentence to be imposed. Of course, the lawyer has the right that he may get submissions but there is a duty cast upon the court to personally hear the convicted accused about the sentence to be imposed. At that time, the court will have to first think whether the provisions of PO act are applicable. If applicable, make an honest effort to apply the same and if for any valid reasons the court which convinced the accused comes to the conclusion that they are not to be applied in that case with having regard to the circumstances of the case the court will have to give reasons. Giving reasons is a mandate. So, normal rule is to apply. Exception is to reject to apply and such rejection must be preceded by valid reasons. So, the object what is the object of giving an opportunity to the accused to have his say it is twofold. On one hand, it fulfills the principle of natural justice by giving an opportunity to the accused to place on record his antecedents socioeconomic conditions as well as the mitigating and extenuating circumstances before the court. The other is that it also helps the court to choose an appropriate sentence particularly when no minimum sentence is prescribed and the court has to select sentence out of a wide range of period of sentence. In the present case, the court finds that magistrate as well as the first of the court treated this a mere formality which has greatly prejudiced the applicant in revision. So, it was a revision. High court in its revision capacity said that both the trial court as well as the first appellate court had not thought of invoking the provisions sorry had not thought of hearing the accused with regard to the sentence of sentence to be imposed. So, in this judgment words mitigating and extenuating circumstances what are those mitigating and extenuating circumstances which need to be placed normally the prosecution is expected to make a submission with regard to the aggravating circumstances. The council for the accused and the accused are expected to make submissions with regard to extenuating circumstances considering these submissions based on extenuating and aggravating circumstances the court will have to pass appropriate sentence sentence appropriate to the crime. So, in this regard the honourable supreme court has time and again held that it is the duty of the court to impose on the person found guilty the punishment prescribed by law. Factors relevant in determining the quantum of punishment is reiterated. So, in the case of state of MP versus Babu Lal 2008 first volume SCC state of MP versus Babu Lal honourable supreme court has held has reiterated. Supreme court has held long back in the subsequent divisions the honourable supreme court has reiterated those well settled principles to be followed while sentencing an accused. Paragraph 30 quote once a person is convicted for an offense of rape he should be treated with a heavy hand an undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging potential criminals the society can no longer endure such serious threats courts must hear the loud cry for justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. All of you know where even in the year 2000 in December in the month of December 2012 a horrible incident took place in Delhi Nirbhaya case we call it as Nirbhaya case a young girl was murdered and she was brutally killed. The whole nation stood up and cried for the maximum punishment and on the basis of the same the parliament appointed a committee under the chairmanship of late justice J. Swarma former Chief Justice of India and had swapped to his lordship I think within a month or two he submitted a detailed report on the basis of which the amendments have been carried out to Indian penal court not only with regard to the sentence of punishment sentence of imprisonment but also with regard to categorization of certain offenses earlier there was only section 375 definition of rape now 375 A to E they are aggravated section 354 offense of attempt to create the modest F1 now 354 354A, 354B, 354C 354D so that is how because the the cry of the society was for maximum punishment so courts cannot be viewed spectators when society demands reasonable justice see accused has several protections constitutional protections they are all recognized by the constitutional courts yes when the constitution provides for some protection he is entitled for the same we have no grudge we have no second thought about the same but at the same time victim needs with victim has rights earlier to section 357A there was no compensation for victim now even in cases where an accused is acquitted victim needs to be compensated under section 357AFC the court has a duty to recommend to the concerned district legal services authority for awarding compensation because there is a scheme to award compensation in criminal cases and there were there was no uniformity in the schemes prepared by various states and on the basis of the judgment of the Supreme Court in Suresh versus state of Haryana now almost all the states have made a uniform scheme with regard to the quantum of compensation to be paid with the offenses so now victim has a right under section 357AFC the RPC to be compensated and under section 338 the court dealing with the accused whether it is whether he convicts or whether the court convicts or acquits the accused has the right to assess the compensation and award it 11 benchmarks have been laid down in rule 11 of Poxo rules and as a result of section the victim being defined under section 2WAFC RPC with effect of 3110, 3112 2009 victim has a right to file an appeal the state may not choose to file an appeal but the victim has a right to file an appeal considering the criminal jurisprudence is slowly evolving to protect the rights of victim also under Poxo Act the court has a duty to provide a copy of the charge sheet to the victim as also to his parents section 207 of CRPC that accused must be provided with the final report similarly the team must also be provided with the final report and there is a duty cast upon the court to provide legal assistance also under the provisions of Poxo Act that's how the criminal jurisprudence is evolving now with regard to the responsibility of the courts to impose appropriate sentence we have one more case earlier case that is 1974 third volume SCC 85 VG Goswami versus Delhi administration it is held as follows always a difficult question requiring as it does proper adjustment and balancing of various considerations which vary with a judicial mind in determining its appropriate quantum in a given case the main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future both as an individual and as a member of the society punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offense it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole reformatory deterrent and punitive aspects of punishment in judicial thinking while determining the question in modern civilized societies however the informatory aspect is being given somewhat greater importance so this PO act is based on the reformative theory because we must look at the criminal not at the crime not at the crime that is the whole basis of understanding of course in India we do not apply the retributive theory that means an eye for an eye if somebody has caused a damage to and as a result of this eye is gone his eye cannot be taken that is retributive theory is not applicable deterrent theory is applicable in grave offenses because similarly placed persons should not should not be allowed should be deterred from reformative theories for various reasons for simple reasons an act of offense might have been committed so allow an opportunity for him to reform and this probation of understand is based on this reformative theory thanks in order to consider what would be the appropriate sentence the accused and the prosecutor will have to make appropriate submissions on the basis of those submissions the court will have to come to a proper conclusion so on behalf of the accused to have a lenience with regard to the sentence extenuating circumstances will have to be made up what are the antecedents of the offender circumstances of the offense prior criminal record of the offender age tenderer background with reference to education home life social background and economic condition emotion and mental condition prospect of rehabilitation provocation absence of minstrel influence or instigation of some other person self-preservation exceeding self-defense state of health disposal of case these are all some extenuating circumstances to be considered by the court if a lenience is to be given if the offense appears to be very severe and grave naturally the submissions would be made by the prosecution with regard to aggravating circumstances therefore take a lenient view these are aggravating circumstances therefore I request your honor not to have a lenient view gravity of the offense deliberated when well planned crime habitual offender causing hurt for extortion securing aid of accomplices breach of trust and misappropriation especially public money pejor perjury and fabricating false evidence offense perpetrated by fraudulent means socio-economic offenses with planned profit making like drugs and cosmetics act then food security act managed to public health example adulteration of degradation of conduct example conduct infanticide daring assault on women personal gain at the expense of innocent host breaking and theft to deter from doing his duty deliberate fire mischief offense relating to currency and coins destruction of state economy deliberate violation of essential commodities act to take advantage of scarcity to make huge profit these are only illustrative in nature they are not excessive there may be circumstances beyond these factors it would be good if the prosecutor or the accused make appropriate submissions with regard to the same then the court will have to balance now see in India there are no sentencing guidelines in many western countries there are sentencing guidelines or they are very well structured of course I too do not advocate any sentencing guideline as such honorable supreme court and constitutional courts have time and again depending upon the facts and circumstances of the case have laid down broad guidelines with regard to the policy of sentencing and they are sufficient to enable the court to impose appropriate sentencing depending upon the gravity of the offense now the question is of late there are many special penal laws for example prevention of corruption act if a person is found to be accepting right and he is found guilty the minimum after 2014 the minimum punishment is 4 years maximum is 7 years so the maximum punishment contemplated is 7 years and it minimum of 4 years the court committing such an accused is no discretion to sentence beyond 4 years even if an appeal is filed let us assume unless the accused is acquitted by allowing the appeal even the appellate court has no power to sentence the high court honorable high court has also no power to impose sentence beyond below 4 years in extraordinary cases supreme court to do justice between the parties can invoke the extraordinary power vested in it under article 142 of the constitution of India to do justice between the parties no other courts according to me have any power similarly Pokeshawak minimum 7 years, minimum 10 years minimum 20 years even in IPC section 354 now is minimum 2 years if the offense of rape the offense of attempt to outrage the modesty of women is proved earlier it was 3 years it up to 3 years with fine or with both even if accused was convicted and if some time had taken place had been consumed he could have been imposed only with fine now minimum sentence so many many special statutes again PML act has also minimum stat minimum sentence courts have no power to impose sentence beyond the minimum on the other hand what the supreme court say is the court convicting an accused in such where minimum punishment is contemplated the court must always aim at the maximum punishment and the accused who wants leniency must make out an extraordinary case otherwise no let for example if is court as a matter of say it cannot automatically say impose 4 years of imprisonment it has to look to 7 years then the accused must make out a clear case of extenuating circumstances supreme court has specifically held that in offenses relating to women children safety of the society and offenses against offenses against economy they are not to be treated lightly maximum punishment must be imposed when minimum can be imposed if accused makes out a case let us assume that he has lost his wife that he has two small children and out of which one is a spastic or one has two one has no he said all I said it all or his father is bedridden only under such circumstances the court can impose minimum sentence therefore lawyers practicing in special courts keep in mind as to how best they could help an accused to get the minimum sentence I will just bring to your notice section 3 76 of CRPC unamended and demanded from February 2013 376 of IPC has to demanded and the minimum sentence is 10 years if a offense of rape is made up earlier the minimum sentence was 7 years if the court had found it that it was an exceptional case court had the power to impose sentence below 7 years and of course the court was expected to assign valid reasons for reducing the sentence below the minimum of 7 years but now that right is taken away that discretion is also taken away wherever minimum sentence is provided the courts have no other option except to impose the maximum and if some leniency is required case is to be made up dealing with such provision honorable supreme court in the case of state of Rajasthan 2012 bracket 6 SCC 770 has held it as follows keeping in mind the power of the court to even in cases where the court has the power to impose sentence below the minimum the natural presumption in law is that but for the provider is the enacting part of the should be enacting part should be generally given such a construction which would make the exceptions unnecessary and redundant should be avoided proviso is used to remove special cases from the general enactment and provide for them separately proviso may change the very concept of intentment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable so even in cases where the criminal court can impose sentence beyond the minimum below the minimum court must be very careful the extraordinary reasons must be assigned such being the case in cases where punishment minimum punishment is provided the court must always aim it the maximum and the party is seeking lenience will have to make an exceptional case for lenience this is what the law is laid down and friends sentencing on hearing on sentence is a salute provision under section 248 courts have a greater responsibility of listening to the accused with regard to the personal hearing must be provided and the accused the advocates appearing for the accused must have a serious interaction with the accused and trying to ascertain about the extenuating circumstances similarly the prosecution must also make out if there are aggravating circumstances to make appropriate submissions and the courts then have to balance these circumstances keeping in mind the appropriate sentence to be imposed an attempt is made by me to give an overview of the provisions of section 248 the principles involved I have not gone into the question of death penalty because in Bachchan Singh's case 1980 supreme court which has already held exceptional death penalty can be imposed and now what has happened is in certain cases death penalty cannot be imposed but imposition of life imprisonment would be found to be little inadequate therefore now in certain statutes in Pokeshark it is made clear even in section 376 also in certain cases it is said that the accused shall be imposed imprisonment for life which shall be the imprisonment for the remainder of life that was the a new concept invoked by the honorable supreme court in the case of swamishraddhananda in the case of swamishraddhananda there was a split decision by the honorable supreme court one had favoured for confirmation of death penalty for imposition imprisonment for life and ultimately when it was referred to a larger bench it was ultimately held that imprisonment for life shall mean imprisonment till the last breath of the accused now statutory protection itself is being given by explaining imprisonment for life shall mean imprisonment for the remainder of life of course in the case of nathuram godse also in the case of maruram honorable supreme court has specifically held that imprisonment for life means imprisonment of the remainder of life only but under section 433 A of CRPC the executive has the power to commute the sentence if the accused is found to be has good contact after the lapse of 14 years of jail incarceration it may invoke the provision to commute of course it is a constitution the governor or the president giving not to such decisions of the executive will have to look to various factors so it is also clearly held that in respect of offenses against women children scheduled cars scheduled drive and other serious economic offenses and if there is a imprisonment for life it should not be commuted at any cost because imprisonment for life means imprisonment for life French made a small attempt to explain briefly the scope of the hearing on sentence and some principles involved with regard to the sentencing policy and also the provisions of the Pivo act I once again thank mr. Prashant for giving me an opportunity I once again congratulate him for disseminating the knowledge and experience of the lawyers to the youngsters and those who are in need I am extremely grateful to chat for starting this platform and encouraging our advocates to be we strengthen our knowledge and we are just receiving on the chat so much messages that it was a quite a fascinating session and there is only one question so far if a magistrate refuses to accept the petition invoking the provisions of Pivo act in 324 IPC cases what is the remedy there need not be any petition written petition at all even if an overall request would be sufficient if the jet does not apply in the appellate court it can be one of the grounds or even if appellate court does not apply even in revision before the high court such an effort can be made because law provides for the same one question was asked but that is not with the topic we are not taking that question another is yes sir Chandrasekhar says how can we be asked before the sentence how can we I don't know he is saying how can we be asked before the sentence no no it is an opportunity which should be given by the court and at that time they are accused and they accused is to be personally heard by the court and it is a salutary duty of the court and the accused advocate has also discretion to make appropriate submission with regard to the sentence keeping in mind the extenuating circumstances this is Chandrasekhar how do we prove that such an issue was raised before the court below in an appeal no no no a harder sheet so in the very judgment after conviction there will be a separate there will be separate paragraphs about her regarding sentence and if during the course of hearing of sentence if it is made up that accused is not personally held it can be brought to the notice of the court and to that extent there may be a limited remand or the appellate court itself can consider this normally we are taking things forward we will like to ask you if you have to sum it up like what we keep on repeating if you have to sum it up in 2 minutes or 3 minutes the entire this thing what will be your cracks in 2 minutes no no no say the whole it is a salutary provision advocates must seriously think over the same and make appropriate submissions and it is all advocates are the officers of the court and many a times court may not be knowing many things also it is the duty of the advocates of the prosecutor to enlighten the court also and it is for doing justice appropriate justice either it could be a justice to the victim it could be a justice to the accused thank you sir and we are all thankful the fact that it was a glitch of the password still people have logged in and people have watched a lot of the sessions have been watched on the youtube and those who have missed our webinars of even Mr Chandrasekhar I request everyone to you can subscribe to that and like and also share amongst the friends so that the knowledge it is the person like Mr Chandrasekhar has been sharing it can be shared amongst all as we all come off saying that our entire