AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2024 (5) TMI 1489
X X X X Extracts X X X X
X X X X Extracts X X X X
....gh, Sr. Adv., Mr. Gautam Narayan, AOR, Ms. Asmita Singh, Adv., Mr. Harshit Goel, Adv., Mr. K.V. Vibu Prasad, Adv. JUDGMENT M. M. SUNDRESH, J. 1. Criminal Appeal No. 3924 of 2023 has been filed by the informant, against the order of remittal passed by the Division Bench of the Patna High Court directing the Trial Court to conduct a de novo trial, while making certain observations against the Special Judge, disapproving his approach in the conduct of the trial. Criminal Appeal Nos. 3926-3927 of 2023 have been filed by the learned Special Judge who conducted the trial and thereafter delivered the judgment. Criminal Appeal No. 3925 of 2023 has been filed by the very same learned Judge, aggrieved over the remarks once again made by the High Court in an order of remittal, requesting the Hon'ble Chief Justice of the Patna High Court to consider whether the Judicial Officer should be assigned the function of holding sessions trial which have far reaching consequences, while sending him for fresh training to the State Judicial Academy. 2. Heard Learned Senior Counsel Mr. Vikas Singh for the appellant and Learned Senior Counsel Mr. C. U. Singh for the respondents. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed and Proceedings under Section 164 of the CrPC.- 11.1 The Court may, at its discretion, authorize detention of an accused, frame charges in a criminal trial under the CrPC by video conferencing. However, ordinarily judicial remand in the first instance or police remand shall not be granted through video conferencing save and except in exceptional circumstances for reasons to be recorded in writing. 11.2 The Court may, in exceptional circumstances, for reasons to be recorded in writing, examine a witness or an accused under Section 164 of the CrPC or record the statement of the accused under Section 313 CrPC through video conferencing, while observing all due precautions to ensure that the witness or the accused as the case maybe is free of any form of coercion, threat or undue influence. The Court shall ensure compliance with Section 26 of the Evidence Act." 4. The High Court of Patna, in exercise of the powers conferred under Articles 225 and 227 of the Constitution of India, 1950, framed rules and procedures relating to the use of video conferencing for Courts. This was done with the concurrence of the State Government. "Rules for Video Conferencing for Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... due compliance of the procedure with adequate opportunities for all the stakeholders. Such procedural safeguards and compliance are to be kept in mind by the Court, as any deviation might either impact the prosecution or the defence in a given case. In an adversarial system of criminal law, which is being followed in India, when an accused is prosecuted on behalf of the State, the interest of a victim cannot be ignored. An offence is presumed to be against societal values and, therefore, any crime would constitute a deviant act by the accused. 8. Every trial is a march towards the truth. It is the primary duty of the Court to search for the truth using the procedural law as its tool. Such a procedural law may have a substantive part extending certain inalienable rights to both, the accused and the victim. By non-compliance of the procedural law, justice cannot be allowed to derail. Anyone, who complains of an unfair trial, is duty bound to satisfy the Court that he stands prejudiced by it. This does not mean that a Court can be lackadaisical in following the rules and procedures meant to ensure justice. 9. A fair trial is the heart and soul of criminal jurisprudence. The pri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. "No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d'être in prescribing the time frame" for conclusion of the trial." (emphasis supplied) Rattiram v. State of M.P., (2012) 4 SCC 516 "39. The question posed by us fundamentally relates to the noncompliance with such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al injustice has in fact occurred." (emphasis supplied) Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 "35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....embarks upon a trial in its quest for the truth. Though an accused is charged with an offence, it is the Court which has to satisfy its conscience, upon the prosecution proving the charges levelled beyond reasonable doubt. For the aforesaid purpose, an accused will have to be given a decent setting to prove his innocence. Compliance with the procedural safeguard is meant for the aforesaid purpose. However, such procedural safeguards would not only ensure a fair trial, but also help the prosecution in confirming that it did its part fairly. 12. The concept of fair trial is not a vague idea, but a decisive one. While a speedy trial is in the best interest of everyone, including the society, the pace can only be set through the procedural mechanism, and it cannot be done at the mere dictate of the Court in ignorance of the procedural law. At the same time, care has to be taken with the aid of the law, to prevent the miscarriage of justice, when the delay is caused on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be permitted to destroy the latter by its recklessness. Any anxiety on the part of the Court, either to expedite the trial in contravention of law, or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e CrPC, 1973 which would only mean the protection of rights conferred under the Constitution of India, 1950. To put it differently, the CrPC, 1973 is a handbook introduced to maintain and uphold fair play in a criminal case, starting with the investigation and ending with the acquittal or a conviction leading to a sentence. SUPPLY OF DOCUMENTS Section 173 of the Code of Criminal Procedure, 1898 "173. Report of police officer.- xxx xxx xxx (4) After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of, the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under Section 164 and the statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses." Section 207A of the Code of Criminal Procedure, 1898 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." Section 208 of the CrPC, 1973 "208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to make sure that due compliance is made at the earliest. Section 208 of the CrPC, 1973 reiterates the aforesaid position in cases instituted otherwise than on a police report and triable by the Court of Sessions. It is only thereafter, that the commitment of the case to a Court of Sessions, regarding an offence exclusively triable by it, shall take place. 16. Section 238 of the CrPC, 1973 mandates that while dealing with a warrant case instituted on a police report, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 of the CrPC, 1973. In all these cases, due compliance is to be done when the accused is produced or appears before the Magistrate. Therefore, Section 238 of the CrPC, 1973 reiterates the bounden duty of a Magistrate and, if not done, to be complied with at the time of commencement of the trial. Such a reiteration would only reinforce a renewed emphasis on due compliance being a facet of fair play. An accused shall be put to notice on the incriminating materials leading to the charges framed against him. As stated, the obligation so imposed is not only on the supply of the relevant documents, but such compliance should be at....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The question arising would no longer be one of compliance or non-compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of CrPC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view [V.K. Sasikala v. State, 2012 SCC OnLine Kar 9209] taken by the High Court that the accused must be made to await the conclusion of the trial to test ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-àvis the arguments adduced by both sides. The words "after hearing the submissions of the accused" would imply an effective and meaningful hearing. It is not a mere procedural compliance. A Judge has to satisfy himself that the accused had reasonable time to ponder over and prepare his arguments before seeking a discharge. At this stage, an accused gets a substantive right as there is a window of opportunity for him to get discharged, instead of facing a prolonged trial. Such an opportunity can only be exercised by not only supplying the documents needed, but also giving adequate and sufficient time to the defence to place its case. Granting time for the aforesaid purpose is the sole discretion of the Court. 19. The duty of the Court is to see as to whether the materials produced by the prosecution are reasonably related to the offence attributed against the accused. What is to be seen is the existence of a prima facie case. The case is at a pre-framing stage and therefore, it cannot be a full-fledged pretrial. Adequacy and sufficiency are the relevant factors to be seen. The test is one of the degree of probability. 20. Section 227 of the CrPC, 1973, in fact, is a pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y down certain norms so that the infirmities that we have noticed in the present matter are not repeated: xxx xxx xxx 31.3. Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard-andfast rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate. 31.4. Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160 : (2018) 3 SCC (Cri) 721] ." (emphasis supplied) Kewal Krishan v. Suraj Bhan, 1980 (Supp) SCC 499 "11. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (Vide State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] , All India Bank Officers' Confederation v. Union of India [(1989) 4 SCC 90 : 1989 SCC (L&S) 627 : AIR 1989 SC 2045] , Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [(1989) 1 SCC 715 : 1989 SCC (Cri) 285] , State of M.P. v. Krishna Chandra Saksena [(1996) 11 SCC 439 : 1997 SCC (Cri) 35] and State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338 : 2000 SCC (Cri) 1110 : AIR 2000 SC 2583] .) 101. In Dilawar Balu Kurane v. State of Maharashtra [(2002) 2 SCC 135 : 2002 SCC (Cri) 310] , this Court while dealing with the provisions of Sections 227 and 228 CrPC, placed a very heavy reliance on the earlier judgment of this Court in Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : AIR 1979 SC 366] and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained. In such....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. xxx xxx xxx 24. At the stage of framing of charge under Section 228 CrPC or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other." Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 "465.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Magistrate concerned liable to departmental proceedings. 475. It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him when the court examines the charge-sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda [(1966) 16 L Ed 2d 694 : 384 US 436] principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 21. Under sub-section (2) of Section 228 of the CrPC, 1973, the Judge, while framing any charge, is ordained to read and explain it to the accused. Thereafter, the accused shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. As a matter of routine, video conferencing must be avoided, unless there are compelling reasons to do so. This is an occasion where the Judge avoids the lawyer and keeps in touch with the accused directly. He records the response of the accused. Under those circumstances, unless a situation so warrants otherwise, the presence of the accused shall be ensured. EXAMINATION OF WITNESSES Section 230 of the CrPC, 1973 "230. Date for prosecution evidence .- If the accused refuses to plead, or does not plead, or claims to be tried or is not convict....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ween the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration: (i) possibility of undue influence on witness(es); (ii) possibility of threats to witness(es); (iii) possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; (iv) possibility of loss of memory of the witness(es) whose examination-in-chief has been completed; (v) occurrence of delay in the trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) CrPC ["309. Power to postpone or adjourn proceedings.-(1) In every inquiry or trial the proceedings shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded:"See also Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712; and S.J. Chaudhary v. State (UT of Delhi), (1984) 1 SCC 722 : 1984 SCC (Cri) 163.] . These fac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ocess unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." 23. At this stage, the accused will be called upon to enter on his defence and adduce any evidence. If the accused applies for the issue of process to compel the attendance of any witnesses or production of document, the Judge shall issue such process. It is only when he comes to the conclusion, that an application filed for the aforesaid purpose on behalf of the defence is vexatious or filed to delay the proceedings or for defeating the ends of justice, it has to be refused. We have no hesitation in holding that when an application is moved invoking Section 233 of the CrPC, 1973 the Judge is duty bound to issue process, unless he is satisfied on the existence of the three elements as aforesaid. Any denial would be an affront to the concept of a fair trial. Section 309 of the CrPC, 1973 "309. Power to postpone or adjourn proceedings.- (1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anted include, in appropriate cases, the payment of costs by the prosecution or the accused." 24. This section places emphasis on the continuation of the trial as any obstruction and delay would hamper the process of justice. In a criminal trial, continuity is of utmost importance, as it not only helps the court to concentrate, but ensures quality justice. However, the courts are not powerless in granting adjournments if the circumstances so warrant. Therefore, despite a bar under the second and fourth proviso to Section 309, an adjournment can be granted, provided the party who seeks so, satisfies the court. After all, a speedy trial enures to the benefit of the accused. State of UP v. Shambu Nath Singh (2001) 4 SCC 667 "11. The first sub-section mandates on the trial courts that the proceedings shall be held expeditiously but the words "as expeditiously as possible" have provided some play at the joints and it is through such play that delay often creeps in the trials. Even so, the next limb of the sub-section sounded for a more vigorous stance to be adopted by the court at a further advanced stage of the trial. That stage is when examination of the witnesses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 25. This provision is meant to uphold the decision of the trial court, even in a case where there is an apparent irregularity in procedure. If the evidence available has been duly taken note of by the Court, then such a decision cannot be reversed on account of a mere technical error. This is based on the principle that a procedural law is the handmaid of justice. However, the ultimate issue is as to whether such an error or omission has constituted a failure of justice, which is one of fact, to be decided on the touchstone of prejudice. 26. If the Appellate Court is of the view that there is a continued noncompliance of the substanti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Rafiq Ahmed v. State of U.P. [(2011) 8 SCC 300: (2011) 3 SCC (Cri) 498: AIR 2011 SC 3114] , SCC p. 320, para 36; Rattiram v. State of M.P. [(2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] and Bhimanna v. State of Karnataka [(2012) 9 SCC 650] .)" (emphasis supplied) Kottayya v. Emperor, AIR (34) 1947 Privy Council 67 "[7] Even on this basis, Mr. Pritt for the accused has argued that a breach of a direct and important provision of the Code of Criminal Procedure cannot be cured, but must lead to the quashing of the conviction. The Crown,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same- (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the miscarriage of justice caused with reference to the evidence and investigatory process. 33.5. If a matter is directed for retrial, the evidence and record of the previous trial is completely wiped out. 33.6. The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice: (a) The trial court has proceeded with the trial in the absence of jurisdiction; (b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and (c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade." SENTENCING "If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella's illegitimate baby" Nigel Walker. British criminologist Sentencing in a Rational Society 1 (1969) Section 235 of the CrPC, 1973 "235. Judgment of acquittal or conviction.- (1) After hearing arguments and points of law (if any), the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing him on probation of good conduct under section 4, release him after due admonition. Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." Section 4 of the Probation of Offenders Act, 1958 "4. Power of court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 sureties, 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 be of good beh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 reasons for doing so. (2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in subsection (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender." 28. Before passing the sentence on a convict, after rendering conviction, the Judge shall consider the feasibility of proceeding in accordance with the provisions of Section 360 of the CrPC, 1973 which speaks of releasing a convict on probation of good conduct or after admonition. Being a beneficial provision dealing with a reformative aspect, it is the bounden duty of the Judge to consider the application of this provision before proceeding to hear the accused on sentence. While doing so, the Judge has to hear the accused and the prosecution. Similarly, the Court has to apply the salient provisions contained under Secti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Before falling on the ground, rainwater remains the same. It is the soil which changes the character of the water. Rainwater partakes in the character of the soil, over which it does not have any control. The issues are extremely complex. 32. A decision of a Judge in sentencing, would vary from person to person. This will also vary from stage to stage. It is controlled by the mind. The environment and the upbringing of a Judge would become the ultimate arbiter in deciding the sentence. A Judge from an affluent background might have a different mindset as against a Judge from a humble one. A female Judge might look at it differently, when compared to her male counterpart. An Appellate Court might tinker with the sentence due to its experience, and the external factors like institutional constraints might come into play. Certainly, there is a crying need for a clear sentencing policy, which should never be judge-centric as the society has to know the basis of a sentence. 33. Sentencing shall not be a mere lottery. It shall also not be an outcome of a knee-jerk reaction. This is a very important part of the Fundamental Rights conferred under Articles 14 and 21 of the Constitutio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... correct conclusion. What we have at present is an imposition of a sentence by way of a legislation. There are obvious errors and lacunae, which have been pointed out in the preceding discussion. It may also be imperative for a court to have an assessment to be made by an independent authority on the conduct and behaviour of the accused for the purpose of deciding the sentence. The guidelines which have been proposed by this Court may also be considered. This would include the creation of a competent authority tasked to give a report and its composition. Manoj v. State of M.P., (2023) 2 SCC 353 "230. The strength of "precedent" and "consistency" is perhaps, therefore, lowest when it comes to matters of sentencing, as long as it is within the confines of legality and resulting in "principled sentencing". In other words, the judicial incongruence when it relates to sentencing, would in fact be a positive indicator, rather than a negative one, provided it is still within the well-defined contours of "principled" sentencing. For sentencing in capital offences, discretion to arrive at individualised sentences is encouraged, but must be constrained by the "rarest of rar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] . Even for the other factors of (3) and (4)-an onus placed squarely on the State-conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison i.e. to evaluate the progress of the accused towards reformation, achieved during the incarceration period. 250. Next, the State, must in a time-bound manner, collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows: (a) Age (b) Early family background (siblings, protection of parents, any history of violence or neglect) (c) Present family background (surviving family members, whether married, has children, etc.) (d) Type and level of education (e) Socio-economic background (including conditions of poverty or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case." (emphasis supplied) We hereby fully endorse and direct that this should be implemented uniformly, as further elaborated above, for conviction of offences that carry the possibility of death sentence." 38. Our thought process has been ignited from a book titled "Discretion, Discrimination and the Rule of Law, Reforming Sentencing in India", authored by Mr. Mrinal Satish, published by the Cambridge University Press, (2017). The learned author has drawn extensively from the sentencing policy in Israel. Upon a thorough reading of the book, it presents an excellent insight into sentencing policy. The Israeli model takes into consideration numerous factors compiled in the form of guidelines to the Judge, in sentencing an accused. 39. We have also benefitted by looking into the policy adopted in other countries, such as in Canada, New Zealand and UK. CANADA Criminal Code (Can....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services, shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are impose....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o provide a sufficient range of sentences and other means of dealing with offenders; and (d) to provide for the interests of victims of crime." (emphasis supplied) Section 7 of the Sentencing Act, 2002 "Purposes and principles of sentencing 7 Purposes of sentencing or otherwise dealing with offenders (1) The purposes for which a court may sentence or otherwise deal with an offender are- (a) to hold the offender accountable for harm done to the victim and the community by the offending; or (b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or (c) to provide for the interests of the victim of the offence; or (d) to provide reparation for harm done by the offending; or (e) to denounce the conduct in which the offender was involved; or (f) to deter the offender or other persons from committing the same or a similar offence; or (g) to protect the community from the offender; or (h) to assist in the offender's rehabilitation and reintegration; or (i) a combination of 2 or more of the purposes in paragraphs (a) to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10)." (emphasis supplied) Section 9 of the Sentencing Act, 2002 "9 Aggravating and mitigating factors (1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case: xxx xxx xxx (2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case: xxx xxx xxx (3) Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes). xxx xxx xxx (4) Nothing in subsection (1) or subsection (2)- (a) prevents the court from taking into account any other aggravating or mitigating factor that the court t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the trial: (c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false: (d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence: (e) either party may cross-examine any witness called by the other party. (3) For the purposes of this section,- aggravating fact means any fact that- (a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and (b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating fact means any fact that- (a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in section 10(1) or the outcome of any other restorative justice processes that have occurred in relation to the case: (d) recommendations on the appropriate sentence or other disposition of the case, taking into account the risk of further offending by the offender: (e) in the case of a proposed sentence of supervision, intensive supervision, or home detention, recommendations on the appropriate conditions of that sentence: (f) in the case of a proposed sentence of supervision, intensive supervision, or home detention involving 1 or more programmes,- (i) a report on the programme or programmes, including a general description of the conditions that the offender will have to abide by; and (ii) confirmation that the report has been made available to the offender: (g) in the case of a proposed sentence of supervision, intensive supervision, or home detention involving a special condition requiring the offender to take prescription medication, confirmation that the offender- (i) has been fully advised by a person who is qualified to prescribe that medication about the nature and likely or intended effect of the medication....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (b) any alternative sentence or other mode of disposition that may be considered by the court if it appears that the sentence or other mode of disposition under consideration is inappropriate." (emphasis supplied) Section 31 of the Sentencing Act, 2002 "31 General requirement to give reasons (1) A court must give reasons in open court- (a) for the imposition of a sentence or for any other means of dealing with the offender; and (b) for the making of an order under Part 2. (2) The reasons may be given under this section with whatever level of particularity is appropriate to the particular case. (3) Nothing in this section limits any other provision of this or any other enactment that requires a court to give reasons. (4) The fact that a court, in giving reasons in a particular case, does not mention a particular principle in section 8 or a particular factor in section 9 or a consideration under section 10 or section 11 is not in itself grounds for an appeal against a sentence imposed or an order made in that case." (emphais supplied) UNITED KINGDOM Coroners and Justice Act, 2009 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n-judicial member if the person appears to the Lord Chancellor to have experience in one or more of the following areas- (a) criminal defence; (b) criminal prosecution; (c) policing; (d) sentencing policy and the administration of justice; (e) the promotion of the welfare of victims of crime; (f) academic study or research relating to criminal law or criminology; (g) the use of statistics; (h) the rehabilitation of offenders. (2) The persons eligible for appointment as a non-judicial member by virtue of experience of criminal prosecution include the Director of Public Prosecutions." Section 120 of the Coroner and Justice Act, 2009 Guidelines "120 Sentencing guidelines (1) In this Chapter "sentencing guidelines" means guidelines relating to the sentencing of offenders. (2) A sentencing guideline may be general in nature or limited to a particular offence, particular category of offence or particular category of offender. (3) The Council must prepare- (a) sentencing guidelines about the discharge of a court's duty under section 73 of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed. (3) Those factors are- (a) the offender's culpability in committing the offence; (b) the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence; (c) such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question. (4) The guidelines should- (a) specify the range of sentences ("the offence range") which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and (b) if the guidelines describe different categories of case in accordance with subsection (2), specify for each category the range of sentences ("the category range") within the offence range which, in the opinion of the Council, it may be appropriate fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for a category of case described in the guidelines in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for cases within that category- (i) before taking account of the factors mentioned in subsection (6), and (ii) assuming the offender has pleaded not guilty, and (b) where the guidelines do not describe categories of case in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for the offence- (i) before taking account of the factors mentioned in subsection (6), and (ii) assuming the offender has pleaded not guilty." Section 128 of the Coroner and Justice Act, 2009 "128 Monitoring (1) The Council must- (a) monitor the operation and effect of its sentencing guidelines, and (b) consider what conclusions can be drawn from the information obtained by virtue of paragraph (a). (2) The Council must, in particular, discharge its duty under subsection (1)(a) with a view to drawing conclusions about- (a) the frequency w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n which the order is made. (3) A court which makes a deferment order must forthwith give a copy of the order- (a) to the offender, (b) if it imposes deferment requirements that include a restorative justice requirement, to every person who would be a participant in the activity concerned (see section 7(1)), (c) where an officer of a provider of probation services has been appointed to act as a supervisor, to that provider, and (d) where a person has been appointed under section 8(1)(b) to act as a supervisor, to that person. (4) A court which makes a deferment order may not on the same occasion remand the offender, notwithstanding any enactment." (emphais supplied) Section 6 of the Sentencing Act, 2020 "6 Effect of deferment order (1) Where a deferment order has been made in respect of an offence, the court which deals with the offender for the offence may have regard to- (a) the offender's conduct after conviction, or (b) any change in the offender's circumstances." (emphais supplied) Section 30 of the Sentencing Act, 2020 "Pre-sentence reports 30 Pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... respond to our suggestion by way of an affidavit within a period of six months from today. 41. In this connection, we would like to place on record the 47th Report of the Law Commission of India, Report by the Committee on Reforms of Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003), Report by the Committee on Draft National Policy on Criminal Justice, Chaired by Dr. N.R. Madhava Menon and decisions rendered by this Court to indicate an emerging need for a distinct sentencing policy 47th Report of the Law Commission of India CHAPTER 7 DESIRABILITY OF AMENDMENTS - SUBSTANTIVE POINTS COMMON TO ALL THE ACTS CONSIDERED "7.44. A proper sentence is a composite of many factors, including the nature of the offence, the circumstances- extenuating or aggravating- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education. home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Draft National Policy on Criminal Justice, Chaired by Prof. (Dr.) N.R. Madhava Menon, July, 2007 "5.5 PUNISHMENTS AND SENTENCING 5.5.1 Given the limited options in the choice of punishments now available in the statutes and the inadequate deterrence in the sentence often imposed, there has to be some serious rethinking on the philosophy, justification and impact of sentencing in criminal justice administration. The quantums of fines were prescribed more than a century ago. Imprisonment in practice is reduced to a much shorter period through a variety of practices even when it is for life. Equality in sentencing is not pursued vigorously and there is no serious attempt yet to standardize the sentencing norms and procedures. The objects of punishment are not served in many cases as a result of such incoherent sentencing practices. 5.5.2 What are the policy choices in the matter of punishments and determination of its quantum to achieve the goals of criminal justice? Can community service be made an effective punishment and how is it to be organized? How to make probation a dominant part of disposition in criminal cases? How to achieve equality and fairness....
X X X X Extracts X X X X
X X X X Extracts X X X X
....object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration. 15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....symmetric and lopsided and presents a poor reflection of the system of criminal administration of justice. This situation is a matter of concern for this Court and needs to be remedied." (emphasis supplied) Soman v. State of Kerala, (2013) 11 SCC 382 "15. Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges. In State of Punjab v. Prem Sagar [(2008) 7 SCC 550 : (2008) 3 SCC (Cri) 183] this Court acknowledged as much and observed as under: (SCC p. 552, para 2) "2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, wherein the first part deals with the conviction and the second deals with the sentence. Sub-section (1)(c) of the aforesaid provision has to be understood to mean that a Judge is expected to consider the aggravating and mitigating circumstances. In such view of the matter, sub-section (3) of the aforesaid provision is more clarificatory, keeping in mind the nature of the offence committed. As a convict is heard on sentence, it follows that any decision on sentence has to indicate the reasons for exercise of judicial discretion by the Judge. ON FACTS Criminal Appeal No. 3924 of 2023 and Criminal Appeal Nos. 3926- 3927 of 2023. 43. An FIR was registered in Crime No. 137 of 2021 for the occurrence that took place on 01.12.2021. The said complaint was filed by the mother of the victim on 02.12.2021. Accordingly, the case was registered under Section 376AB of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC, 1860") and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "POCSO Act, 2012") read with Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....week was rejected, sans any substantial reason. For the purpose of questioning under Section 313 of the CrPC, 1973 alone, the accused was brought through video conferencing. In a hurried manner, the questioning was done. The repeated plea of adjournment by one week made by the counsel for the defence was once again rejected, while ultimately facilitating a day's adjournment. 48. On the next day i.e. 25.01.2022, an application was filed by the defence praying for time for production of witnesses. The matter was passed over, with a direction to produce the witnesses on that day itself. Arguments were heard, during which time, the prosecution made submissions for 10 minutes, whereas the defence argued for 3 hours. It was accordingly concluded at 6.30 p.m. The judgment was delivered at about 7.00 pm, running into about 27 pages consisting of 59 paragraphs. It is not known as to how the copies of the witnesses statements were made ready and kept for perusal. Admittedly, even the counsel for the defence did not have those copies. 49. Two days thereafter i.e. 27.01.2022, the case was posted for sentencing. Upon hearing the accused, death sentence was imposed by the trial court. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... there is no need for remittal. During the course of trial, the counsel for the responden-taccused has not raised any serious objection. Criminal Appeal No. 3925 of 2023 It is further submitted that the appellant has discharged his judicial function and, therefore, any action without hearing him is contrary to law. Though the charges have been dropped, the observations made would be detrimental to his future career progression. The accused had antecedents and, therefore, the Trial Court rightly exercised due caution. It is a case where no witness was produced on behalf of the defence. To buttress his submission, learned senior counsel appearing for the appellant has relied upon the following decisions, * Munna Pandey v. State of Bihar, AIR 2023 SUPREME COURT 5709. * Akil v. State (NCT of Delhi), (2013) 7 SCC 125. * Sakshi v. Union of India, (2004) 5 SCC 518. * State of Maharashtra v. Mahesh Kariman Tirki, (2022) 10 SCC 207. * Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62. SUBMISSIONS ON BEHALF OF THE RESPONDENT 54. Per contra, Mr. C. U. Singh, learned senior counsel appearing for the High Court and the accus....