PRE BRITISH ERA: Law makers thought to provide adequate and effective sentencing to the offenders/criminals (after their trial is over and being convicted and not before the trial) without any deviation from caste creed, religion and other factors affecting general public. British thought it giving effective and correct sentencing to every convict without any variance is the correct way of administering the CRIMES.
What happened to the earlier sentencing policy? If the earlier sentencing policy was very effective why there was a need of writing a UNIFORM PENAL CODE, all over INDIA in the year 1860? Does it mean now the PENAL administration or the Government sentencing policy is for much better than the earlier? The answer is in affirmative.
Why that the sentences though cruel in the PRE-BRITISH era were ineffective was for the reason those sentences were not approved by the public.
CONVICTION:
It is very necessary from the point of view of criminal justice that the guilty must be punished when the facts are fresh in the public mind [M.S.sheriff and another vs. State of Madras – AIR 1954 SC 397 – 5 judge bench].
SENTENCING – A PROTRACTING DILEMMA:
Guilt once established, the punitive dilemma begins. The choice between death penalty and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence [Ediga Anamma vs. State of A.P – (1974) 4 SCC 443].
SENTENCING – AN APPLICATION OF MIND:
1. State of Punjab vs. Prem Sagar & Ors – (2008) 7 SCC 550 – We have noticed the development of law in this behalf in other countries only to emphasise that the courts while imposing sentence must take into consideration the principles applicable thereto. It requires application of mind. The purpose of imposition of sentence must also be kept in mind.
2. State of A.P vs. Polamala Raju @ Rajarao – (2000)7 SCC 75 – To say the least, the order contains no reasons, much less “special or adequate reasons”. The sentence has been reduced in a rather mechanical manner without proper application of mind.
DO WE HAVE SENTENCING POLICY – NEGATIVE:
1. 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, had not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some Committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines [STATE OF PUNJAB vs PREM SAGAR AND OTHERS – (2008) 9 SCALE 590=(2008) 7 SCC 550=(2008) 3 SCC(Cri) 183].
2. 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 [Soman vs. State of Kerala – (2013) 11 SCC 382]
PRE-SENTENCE HEARING: [sections 235(2) & 248(2) Cr.P.C].
Whether simply by way of oral submissions or by also bringing pertinent material on record, there is no bar on the presentencing hearing taking place on the same day as the preconviction hearing. Depending on the facts and circumstances, a separate date may be required for hearing on sentence, but it is equally permissible to argue on the question of sentence on the same day if the parties wish to do so. Further Apex Court has held that now we need to consider the impact of noncompliance of procedure provided under Section 235(2) of CrPC by the trial court. Even assuming that a procedural irregularity is committed by the trial court to a certain extent on the question of hearing on sentence, the violation can be remedied by the appellate Court by providing sufficient opportunity of being heard on sentence. It must be kept in mind that Section 465 of the CrPC mandates that no finding, sentence or order passed by the Court of competent jurisdiction shall be reversed or altered by the Court of appeal on account of any error, omission or irregularity in the order, judgment and other proceedings before or during trial unless such error, omission or irregularity results in a failure of justice. Such noncompliance can be remedied by the appellate Court by either remanding the matter in appropriate cases or by itself giving an effective opportunity to the accused [Accused “X” vs. State of Maharashtra – (2019) 6 Scale 407].
DO OTHER COUNTRIES HAVE SENTENCING POLICIES – AFFIRMATIVE:
UNITED KINGDOM:Halliday report based on the white paper in the name of justice for all presented before British Parliament. They are now having Sentencing council for sentencing guidelines 2010 based on Criminal Court Sentencing Act, 2000.
UNITED STATES: Sentencing commission is an independent body created by Sentencing Reform Act 1984.
WHY THERE IS NO SENTENCING POLICY?
That no two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. The court further observed that standardization of the sentencing process tends to sacrifice justice at the altar of blind uniformity [Swamy Shraddananad’s case – 2013(5) SCC 546].
Finally, in simple words though we do not have any sentencing policy yet our sentencing policy is more effective.
PRINCIPLE GOVERNING SENTENCING:
The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with[(2009)2 SCC 272 – State of M.P vs. Babu Natt].
AIM/PURPOSE OF EFFECTIVE SENTENCING:
A sentence aims to:
Punish the offender – this can include sending the accused to prison, paying a fine.
(to) Protect the public– from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.
(to provide) Compensation/ Make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and get an apology.
(helping society in) Crimereduction – by preventing the offender from committing more crime and putting others off from committing similar offences. Maintain law and order [s.144 cr.p.c].
Reform and rehabilitate offenders – changing accused’s behaviour to prevent future crime (for example by requiring an offender to have treatment for drug addiction or alcohol abuse).
EFFECTIVE SENTENCING STARTS WITH FOLLOWING:
1st stage: during Remand, Bail, summons or warrant (includes recalling the warrants), Administration of bonds – 88 and 446 cr.p.c
2nd stage:,Convicting in a non-cruel yet effective way as per Section 53 IPC [Death Penalty, Imprisonment for life, Imprisonment, Forfeiture of property and Fine] [The main punishment removed by the British is ‘Banishment’] or as specified under other Acts,
3rd stage:Considering Probation laws while delivering judgments
4th stage:Considering section 427 & Section 428 Cr.P.C while delivering,
Final stage: At last by suspending the sentence which was given following all the above methodology.
POWERS OF MAGISTRATES:
1. Powers Under Cr.P.C – Section 29.
2. Sentencing powers under Cr.P.C –248 (chap –XIX – warrants case), 325, 360 and 361.
1. Section 325 Cr.P.C – cannot exceed the sentencing limits but can forward the accused to CJM/CMM.
2. Section 30 Cr.P.C – sentence of imprisonment for default [yes – but cannot exceeds the power u/s 29 cr.p.c].
3. Section 31 Cr.P.C – several offences in one trial – subject to the provisions of s.71 IPC.
4. Under N.I Act – s. 138 [has overriding effect of Cr.P.C pls see: R.Vijyan v. Baby & anr – (2012)1 L.W (Cri) 359 (SC)=2011 (4) Crimes 237 (SC)=(2011) 3 MWN (Cri) (DCC) 107 (SC)].
5. Probation, admonishing and compensatingvictim.
PROBATION LAWS:
Earlier Section 562 of the Code if Criminal Procedure, 1898, had been dealt with probation. Thereafter, as under amendment in 1974 it turned as S.360 of Code of Criminal Procedure, 1973. S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation.
Under Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the board may require, for the good behaviour and well-being of juvenile for any period not exceeding three years.
PROBATION ACT – FIVE IMPORTANT ASPECTS TO BE CONSIDERED:
1. Admonition (section 3);
2. Probation of Good Conduct (section 4);
3. Compensation and Costs (section 5);
4. Offenders under 21 years of age (section 6);
5. Report of Probation Officer (section 7).
ADMONISHING – PROBATION:
As per s.3 of P.O Act the Court may release the offender after due admonition, instead of sentencing him but under section 4 without sentencing the offender to any punishment, the Court may release the offender on probation of good conduct. [Please note: that “report of Probation officer” is not mandatory to apply this provision but if report is available on the record, the Court shall take into consideration the report of probation officer before making an order of probation of good conduct]
The key factor for enacting P.O Act “Prison overcrowding”.
PROBATION – BAIL:
The Under-trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society [IN RE., INHUMAN CONDITIONS IN 1382 PRISONS – 2016 1 MWN (Cr.) 474].
PROBATION – HOW TO APPRECIATE? The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? 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 and protect them from the stigma and possible contamination of prison[HARI KISHAN vs. SUKHBIR SINGH AND OTHERS – (1988) 2 SCALE 426=(1988) 4 SCC 551=(1988) SCC(Cri) 984].
DIFFERENCE BETWEEN SECTION 360 CR.P.C & PROBATION OF OFFENDERS ACT, 1958:
Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with u/s 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area [CHHANNI vs THE STATE OF UTTAR PRADESH – (2006) Cri.L.J 4068 (SC)].
General understanding between P.O Act & 360 Cr.P.C: The P.O Act, 1958 is more expand than section 360 Cr.P.C. It has supervision request, payment of compensation, post-trial supervision. Since, P.O is the Special Act it would stop section 360 Cr.P.C.
DUTY OF THE CORUT – SECTION 360 CR.P.C:
When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the CrPC. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused u/s 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed [Chandreshwar Sharma vs. State of Bihar – (2000)9 SCC 245=2000 SCC (Cri) 1500].
REMITTED BACK BY HON’BLE APEX COURT FOR CONSIDERING SECTION 360:
Considering the aforesaid decision Hon’ble Apex Court has held that therefore, while upholding the conviction, we remit the matter to the trial court for limited purpose for deciding whether the benefit u/s 360 Cr.P.C. can be extended to the appellants [Eliamma & another v. State of Karnataka – (2009) 2 SCALE 484=(2009) 11 SCC 42=(2009) 3 SCC(Cri) 1227].
PUBLIC OPINION:
• Public opinion is often confused with public pressure (media reactions).
• Public opinion is based upon the impact on social, political and cultural affiliations.
• Current public opinions shall not influence courts in its verdict.
• Nirbhaya case: Media proposed as if Public demands death sentence to rape convicts whereas the sentencing policy is ‘rarest of rare’ cases for awarding death penalty.
EFFECTIVE SENTENCING – CASE LAWS [guidelines of Hon’ble Apex/High Courts]:
1. SENTENCE – UNDUE LENIENCY – The law on the principles governing proper sentencing has been elaborated by this Court in a large number of cases. It is the duty of the Court awarding sentence to ensure justice to both the parties and therefore undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not reassure the society that the offender has been properly dealt with. It is not a very healthy situation to leave the injured and complainant side thoroughly dissatisfied with a very lenient punishment to the accused [State of M.P vs. Udaiban – (2016)2 SCC (Cri) 244=(2016)4 SCC 116].
2. NON-COMPOUNDABLE OFFENCE – SENTENCING POLICY – s.326 IPC (LIFE/UPTO 10 YRS AND FINE): Though it is stated that both the parties have amicably settled, in view of the fact that the offence charged u/s 326 is non compoundable and also in the light of serious nature of the injuries and no challenge as to conviction, we are of the view that the High Court is not justified in reducing the sentence to the period already undergone [State of M.P vs. Najab Khan – AIR 2013 SC 2997].
3. CORRECTIVE MACHINERY or DETERRENCE SENTENCING POLICY – ONLY IN HEINOUS CRIMES: We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. After considering many principles Hon’ble Apex Court has guided that in any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious, namely, cases involving heinous crime with element of criminality against the society and not parties inter se[State Of H.P vs Nirmala Devi – (2017) 4 Scale 468=(2017) 7 SCC 262=(2017) 3 SCC(Cri) 380].
4. Section 324 IPC – SENTENCING POLICY (UPTO THREE YEARS OR FINE OR BOTH): At this juncture, we may repeat at the cost of repetition that imposition of sentence, apart from the illustrations which have been stated to be mitigating factors would depend upon many a other factors which will depend/vary from case to case. The legislature in respect of an offence punishable u/s 124 of the Indian Penal Code has provided punishment which may extend to three years or with fine or with both. Further Apex Court reduced the sentence of three years of imprisonment to one year [Gopal Singh vs. State of Uttarakhand – AIR 2013 SC 3048].
5. MINIMUM OR MAXIMUM – Section – 307 IPC: It is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although section 307 IPC does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution.The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the judges in arriving at a fair and impartial verdict [Hazara Singh vs. Raj Kumar and others – (2013) 9 SCC 519=(2014)1 SCC (Cri) 159] [Also please see: National Conference of Judges of the District Judiciary on Just sentencing: policy & Practice – 20th to 22nd March 2015].
6. RETRIBUTIVE THEORY OR REFORMATIVE THEORY: The retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary social goals which make depreciation of life and liberty reasonable as penal panacea [Kunju Kunju Janartharan vs. State of Kerala – AIR 1979 SC 916].
7. EFFECTIVE SENTENCING IN CROSS CASES / COUNTER CASE–Nathi Lal & ors. vs. State of U.P – (1990) Supp SCC 145; Sudhir vs State (2001) 2 SCC 688; State of M.P vs Mishrilal – (2003) 9 SSC 426.
8. CONCURRENT OR CONSECUTIVE – SECTION 279 IPC & SECTION 304-A IPC:
a. It is not correct to state that when the court directs that two sentences should run concurrently they merge into one sentence. The word ‘concurrent’ means meeting in the same point, running, coming, acting or existing together, coinciding, accompanying. ‘Concurrently’ means agreeing, when two sentences are directed to run concurrently, it means, they run together [1982 Cr.L.J 1844 (A.P) – K. Venkata Reddy vs. Inspector General of Prisons].
b. In our considered opinion, it was necessary for the Magistrate to have ensured compliance of Section 31 of the Code when she convicted and sentenced the appellant for two offences in a trial and inflicted two punishments for each offence, namely, Section 279 and Section 304-A IPC.In such a situation, it was necessary for the Magistrate to have specified in the order by taking recourse to Section 31 of the Code as to whether the punishment of sentence of imprisonment so awarded by her for each offence would run concurrently or consecutively [Gagan Kumar v The State of Punjab – (2019) 3 SCALE 390].
c. MORE THAN TWO CASES – Reliance has also been placed by Mr. Joshi in Ammavassi and Anr. v. Inspector of Police, Valliyanur and Ors. AIR 2000 SC 3544. Therein, the appellants were convicted in four-five different cases, during a period of three to four months. The appellants therein claimed benefit u/s 427 of the Code in order to avoid undergoing imprisonment of a total period of 28 or 35 years in jail. This Court opined that 14 years rigorous imprisonment would meet the ends of justice. It is, therefore, clear that even in that case whereas Section 427 of the Code was applied in three cases, but in two cases, the sentences were directed to run consecutively. The said decisions, therefore, are not the authorities for the proposition that it is incumbent upon the court to direct in a case of this nature that both the sentences shall run concurrently and not consecutively [M.R. KUDVA vsSTATE OF ANDHRA PRADESH – (2006) 14 SCALE 118=(2007) 2 SCC 772=(2007) 1 SCC(Cri) 648].
9. DEFAULT SENTENCE: CONCURRENT OR CONSECUTIVE: In the circumstances, we reject the submission regarding concurrent running of default sentences, as in our considered view default sentences, inter se, cannot be directed to run concurrently [Sharad Hiru Kolambe vs The State Of Maharashtra – (2018) 11 Scale 305=(2019) Cri.L.J 567 (SC)].
10. SECTION 427 CR.P.C – FINE NOT PAID – CONSECUTIVE – In terms of section 427(1), if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion be exercised by the court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case. Further Supreme Court has held that If the fine amount is not paid, the default sentence will run consecutively and not concurrently [Anil Kumar vs. State of Punjab – 2017(2) MWN (Cri) 17 (SC)].
11. SECTION 428 CR.P.C – SET OFF – Reading section 428 Cr.P.C in the above perspective, the words ‘of the same case’ are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the above said period. The words ‘of the same case’, were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words [State of Maharashtra vs. Najakat @ Mubarak Ali – AIR 2001 SC 2255=(2001)SCC (Cri) 1106].
We find no merit in the contentions of the applicant. The following are the reasons. Section 428 of Cr.P.C. on which the applicant lays considerable store by, actually contemplates the presence of two circumstances. They have been highlighted in the very judgment which the applicant relies on, namely (2001) 6 SCC 311, State of Maharashtra and Another versus Najakat Alia Mubarak Ali. During the stage of investigation, inquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. The second requisite is that he should have been sentenced to a term of imprisonment in that case. In the facts of this case, the applicant was in custody admittedly in connection with another case on 15.11.2019 as also on 03.02.2020 and also on 16.03.2020. For the mere reason that this Court after convicting the applicant by order dated 15.11.2019 caused the production of the applicant before this Court for the purpose of considering the imposition of an appropriate sentence, it cannot be said that the applicant would be in custody. In this regard we notice that in the order dated 15.11.2019, the Court contemplated a chance being afforded to the applicant to purge himself of the contempt. Hon’ble Apex Court after distinguishing Supreme court Judgment Niranjan Singh and Another Versus Prabhakar Rajaram Kharote and Others – (1980) 2 SCC 559 which explains what is custody has held as follows:
As far as Section 428 of Cr.P.C. is concerned, an indispensable requirement to invoke Section 428 of Cr.P.C. is that there must be a conviction. The conviction must be followed by a sentence of imprisonment. It must be for a term and it should not be imprisonment in default of payment of fine. If these requirements exist, then the occasion opens up for applying the beneficial provisions of Section 428 of Cr.P.C. However, for it to be invoked the existence of detention undergone by the convict during investigation, enquiry or trial in the ‘same case’ is indispensable. If these requirements are satisfied, the convict would be entitled to the set off for the period of detention which he has undergone [Miscellaneous Application No.1902 OF 2022 (@ DIARY NO.33420 OF 2022) with interlocutory application NO.157792/2022 (application for clarification/direction) IN CONTEMPT PETITION (CIVIL) NO.2120 OF 2018 IN SPECIAL LEAVE PETITION (CIVIL) NO.20417 OF 2017 – MR. VINAY PRAKASH SINGH PETITIONER(S) VERSUS SAMEER GEHLAUT & ORS. RESPONDENT(S) – IN THE MATTER OF:- SHIVINDER MOHAN SINGH APPLICANT – 14th November, 2022].
12. SHALL ALSO BE FINE – In the above case, this Court had considered Section 325 IPC and the phrase ‘and shall also be liable to fine’. The Court held that when the punishment provided is for sentence of imprisonment and also with fine, the imprisonment and fine both are imperative [Zunjarrao Bhikaji Nagarkar v. Union of India and Others – (1999) 7 SCC 409 followed in State Of H.P vs Nirmala Devi – (2017) 4 Scale 468=(2017) 7 SCC 262=(2017) 3 SCC(Cri) 380].
13. COMPOUNDING OF OFFENCE– Section 320 of the Cr.P.C. enumerates and draws a distinction between offences as compoundable, either between the parties or with the leave of the court.
14. COMPOUNDING OF OFFENCE – who may enter contract compounding? Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under Indian Penal Code which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the Court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable u/s 320, abatement of such offence or an attempt to commit such offence or where the accused is liable u/s 34 or 149 Indian Penal Code can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the Court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the Court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the Court to which he has been committed or with the leave of the appeal Court, as the case may be. The Revisional Court is also competent to allow any person to compound any offence who is competent to compound. The consequence of the composition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner [DASAN vsSTATE OF KERALA AND ANOTHER – (2014) 1 SCALE 633=(2014) 12 SCC 666=(2014) 5 SCC(Cri) 186].
15. COMPOUNDING OF OFFENCE – SS..307 R/W 34 IPC – The offence for which both the appellants have been convicted is one under Section 307 read with Section 34 of the Indian Penal Code, but having regard to the nature of the injury sustained by Shri Ram, we think that the proper offence for which the appellants should have been convicted was under Section 324 read with Section 34. Shri Ram received only one injury on the shoulder and that was also in the nature of simple hurt. We would, therefore, convert the conviction of the appellants to one under Section 324 read with Section 34. Since the parties belong to the same village and desire to compound the offence, we think, in the larger interest of peace and harmony between the parties and having regard to the nature of the injury, that it would be proper to allow the parties to compound the offence [RAM PRASAD vs
STATE OF UTTAR PRADESH – (1982) 2 SCC 149=(1982) SCC(Cri) 375].
16. COMPOUNDING OF OFFENCE – SS 341 AND 325 IPC– Offences Under Sections 341 and 325 are compoundable. In view of the settlement they can be permitted to be compounded. However, offences Under Sections 148 and 149 of the Indian Penal Code are not compoundable. Hence, permission to compound them cannot be granted. However, since the accused and the victim have entered into a compromise, we feel that it would be in the interest of both sides to reduce the sentence awarded to the accused Under Sections 325 and 341 of the Indian Penal Code to the sentence already undergone [SATHIYAMOORTHY vsSTATE – (2014) 8 SCALE 642=(2014) 13 SCC 52=(2014) 5 SCC(Cri) 540].contradicting dasan case (supra).
17. COMPOUNDING – LATEST GUIDELINES BY SUPREME COURT – Merely because an offence is compoundable under Section 320 Cr.PC, still discretion can be exercised by the court having regard to nature of offence, as such it is rightly held in the impugned judgment that as the offence for which appellant was convicted and sentenced, it will have its own effect on the society at large. In view of the reasons recorded in the impugned order rejecting the application for compounding, it cannot be said that the High Court has committed any error in not accepting the application filed for compounding the offence [Bhagyan Das Versus The State of Uttarakhand & Another – Criminal Appeal No. 465 of 2019 (Arising out of SLP(Crl.) No. 125 of 2017) – 11-03-2019].
18. SECTION 138 N.I ACT – COMPROMISE – WHETHER PROSECUTION WILL BE OVER?
An interesting question of law as to whether in view of payments or settlements made after the issuance of a Cheque, a Complainant can disclose the true state of affairs and issue a demand for a lesser amount and whether in such circumstances the Criminal prosecution for dishonour of a Cheque Page No: 146 for higher amount is legally sustainable or not, did arise in this case. However, on account of subsequent talks between the parties, an amicable Settlement has been arrived at and hence, there is no requirement now to answer the aforesaid question of law in the present proceedings and hence, the same is left open for adjudication in any other appropriate case [MOSER BAER PHOTO VOLTAIC LTD vs. PHOTON ENERGY SYSTEMS LTD – 2016 1 MWN (Cr.) DCC 145 (SC)].
PLEA BARGAINING & GUILTY MEMO
Plea bargaining – what is?
Plea bargaining is a concept based on the latin term “Nolo Contendere” which means I do not wish to contend.
If an accused who is eligible admits his guilt voluntarily before the Presiding Officer than the court may release him on probation or award lesser punishment than prescribed.
EVOLUTION OF PLEA BARGAINING IN INDIA:
Murlidhar Meghraj Loya and Another Vs State Of Maharashtra And Others – AIR 1976 SC 1929;
Thippaswamy vsState of Karnataka – (1982) 2 SCALE 1398=(1983) 1 SCC 194.
Kasambhai Abdulrehmanbhai Sheikh and Others Vs State Of Gujarat And Another – AIR 1980 SC 854 – Hon’ble Apex Court has held ‘Plea Bargaining” as “unconstitutional”.
Laws in India do not recognize the concept of plea-bargaining as such. However, section 206 (1) & (3) Cr.P.C and section 208 (1) of the Motor Vehicles Act, 1988, enable the accused to plead guilty to petty offences and to pay small fines. This does not in any way involve bargaining between the prosecution and the accused. Section 320 Cr.P.C, specifies only 53 offences as compoundable (with or without the permission of the court) out of total of 383 offences under the I.P.C. Thus, a large number of offences under the I.P.C cannot be compounded. Most of the special enactments, that have created new offences, do not contain any provision for compounding of such offences [please see also – State of U.P v. Chandrika – AIR 2000 SC 164=2000 Cr.L.J 384 (SC)=1999 AIR SCW 4251=1999 (3) Crimes 137 (SC)=2000 (1) L.W (Cri) 375 (SC)=2000 SCC (Cri) 16=1999 (8) Supreme 723=1999 (8) SCC 638=2000 (1) SCJ 385].
INTRODUCTION OF CONCEPT OF PLEA-BARGAINING IN INDIA: Plea bargaining was introduced in the Code of Criminal Procedure, 1973 through Chapter – XXIA by Criminal Law (Amendment) Act, 2 of 2006 (w.e.f 05thJuly, 2006.) Sections 265 A to L – 142nd, 154th& 177th Law Commission recommended.
Plea Bargaining not applicable in the following cases:-
1. The offence in which the maximum sentence is above 7 years.
2. The offence which has been committed against a woman or a child below 14 years of age.
3. Where the accused has been previously convicted for the same offence.
4. Offence which affects the socio-economic condition of the country.
How to identify Socio-Economic Offences?
The Central Government has, by S.O. 1042(E), dated 11th July, 2006, determined the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of section 265A, namely,-
(i) Dowry Prohibition Act, 1961.
(ii) The Commission of Sati Prevention Act, 1987.
(iii) The Indecent Representation of Women (Prohibition) Act, 1986
(iv) The Immoral Traffic (Prevention) Act, 1956.
(v) The Protection of Women from Domestic Violence Act, 2005
(vi) The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992.
(vii) Provisions of Fruit Products Order, 1955 (issued under the Essential Services Commodities Act, 1955).
(viii) Provisions of Meat Food Products Orders, 1973) (issued under the Essential Commodities Act, 1955).
(ix) Offences with respect to animals that find place in Schedule I and Part II of the Schedule II as well as offences related to altering of boundaries of protected areas under the Wildlife (Protection) Act, 1972.
(x) The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
(xi) Offences mentioned in the Protection of Civil Rights Act, 1955.
(xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
(xiii) The Army Act, 1950.
(xiv) The Air Force Act, 1950.
(xv) The Navy Act, 1957.
(xvi) Offences specified in sections 59 to 81 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002.
(xvii) The Explosives Act, 1884.
(xviii) Offences specified in sections 11 to 18 of the Cable Television Networks (Regulation) Act, 1995.
(xix) The Cinematograph Act, 1952.
PLEADING GUILTY:
GUILTY MEMO –The scheme of the provision in the Cr.P.C makes it clear that when particulars of the offence are put to the accused u/s 242 Cr.P.C, it is open to him to admit the allegation or if he does not plead guilty the Magistrate shall proceed to take evidence u/s 242(3) Cr.P.C and thereafter question the accused u/s 313 Cr.P.C on the incriminating circumstances, then the Magistrate can accept the said plea, but not before the case reaches the stage of 313 Cr.P.C. There is no provision in the Code which contemplates filing of a memo by the accused admitting the guilt after the initial stage u/s 242 Cr.P.C and the conviction passed on such memo is not according to law and following such a procedure is not justified [Balaji vs. Inspector of Police – (2001) 2 LW(Cri) 528=(2001) 2 M.W.N(Cri) 244].
ACCUSED PLEADED GUILTY WHILE QUESTIONING:
But, in my considered opinion, normally an accused will plead guilty only expecting lenient punishment. The common principle of penological proposition is that when an accused without contesting the matter pleads guilty, the Court should be lenient [Geetha Devi and others vsD.I. Nathan and others – (2015) 1 LW(Cri) 585=(2015) 2 MWN(Cri) 59].
PLEADING GUILTY UNDER THE Cr.P.C:
Sections 229, 240, 252 Cr.P.C – P. SARAVANAN vs. STATE – 2016 2 MWN (Crl) 626.
GUILTY MEMO – DIRECTION TO PRESIDING OFFICERS:
It is necessary to record as a future guidance to the Learned Magistrates who accept the guilty plea that before acting upon such guilty memo, the Presiding Officer should ensure that the said memo is a voluntary one and it has emanated from the proper source. Before acting upon the guilty memo, adequate time to the accused should be offered to reflect upon the guilty plea. While imposing sentence, based on the guilt plea, the Presiding Officer should always consider the previous conduct of the party, nature of offence and the possibility of indulging in similar offence in future. After considering all these three facts, appropriate sentence should be imposed [M.Manga vs State by: Inspector of Police, Police Station, Kancheepuram District – Crl.R.C No.471 of 2012-15.02.2019].
Aggravating or Mitigating:
What are mitigating circumstances?[SANTOSH KUMAR SATISHBHUSHAN BARIYAR vsSTATE OF MAHARASHTRA – (2009) 7 SCALE 341=(2009) 6 SCC 498=(2009) 2 SCC(Cri) 1150]
1. That the offence was committed under the influence of extreme mental or emotional disturbance.
2. The age of the accused.
3. The probability that the accused would not commit criminal acts in the future.
4. The probability that the accused can be reformed and rehabilitated.
5. That the accused acted under the duress or domination of another person.
6. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
SUSPENSION OF SENTENCE:
Sections 389 (1), (2) and (3) of the code of criminal procedure deal with suspension of sentence. Sections 389 (1)(2) deal with situation where convicted person can get a bail from Appellate court after appeal being filed and numbered. Section 389 (3) Cr.P.C deals with a situation whereby the Trial court itself can grant a bail to person who has been convicted.
COMPENSATION & VICTIM COMPENSATION
PROVISIONS:
General laws:
1. compensation to victims of crime – sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure, 1973
2. Constitution of India – Articles 14 and 21.
a. Rudal Shah vs. State of Bihar – AIR 1983 SC 1086 – Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violaters in the payment of monetary compensation.
b. D.K.Basu vs. state of W.B – (1997) SCC(Cri) 92 – Investigation – Arrest – Custodial death – Right to constitutional remedies – Power of Court – Torture during interrogation and investigation punishable under Section 330 IPC – Citizen is also entitled to compensation from State.
Special laws:
1. Probation of Offenders Act, 1958.
2. Motor Vehicles Act, 1988,
3. The Scheduled Castes & The Scheduled Tribes (Prevention of Atrocities Act, 1989),
4. Protection of Human Rights Act, 1993,
5. Workmen Compensation Act, 1923,
6. Domestic Violence Act, 2005,
7. Railways Act, 1989,
8. Tamil Nadu Victim Compensation Scheme, 2013 – by G.O M.S no: 1055 (30.11.2013) based on the judgment S. Sathia Chandran Versus State of Tamil Nadu, Rep. by the Secretary to Government, Home Department & Another – W.P. NO. 17598 OF 2012 – This writ petition as Public Interest Litigation has been filed seeking a direction upon the respondents to take steps and prepare a Victim Compensation Scheme as mandated by Section 357-A of the Code of Criminal Procedure.
9. Victim Compensation scheme, 2018: for Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’) – NIPUN SAXENA AND ANOTHER vs. UNION OF INDIA AND OTHERS – (2018) 15 Scale 769=(2019) 2 SCC 703– by G.O. Ms. No. 1591, Home (Pol.12) (24th September 2018) – published in Government Gazette dated: 3.10.2018
OBJECT & SCOPE OF COMPENSATION – EXPLAINED: after explained section 357 Cr.P.C in detail the Hon’ble Apex Court has held that in awarding compensation as cautioned by this Court in a decision reported in Palaniappa Gounder Vs. State of Tamil Nadu and Others, , the Court should not first consider what compensation ought to be awarded to the heirs of the deceased and then impose a fine which is higher than the compensation. It is the duty of the Court to take into account the nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity of the accused to pay and order relevant circumstances in fixing the amount of fine or compensation [SARWAN SINGH AND OTHERSvs. State of Punjab – AIR 1978 SC 1525].
Section 357 Cr.P.C: Under S. 357 Cr.P.C only accused person can be directed to pay compensation to victim/injured and not state. Also, accused has to pay compensation to victim and not to state [Section 357(3) Cr. P.C. provides for ordering of payment by way of compensation to the victim by the accused- Balraj vs. State of H.P – (1994) 4 SCC 29].
According to s. 357 subs. (1) and sub-s. (3) of Cr.P.C, the court may award compensation to the victim of crime at the time of passing judgment. These provisions make the trial courts and the appellate courts competent to award compensation to the victims of crime only after conviction of the accused.
For payment of compensation under Section 357 (1) of Cr.P.C. imposition of fine is must as compensation can be ordered to be paid out of the fine imposed. Section 357(3) Cr.P.C empowers the Court to award compensation for loss or injury suffered by a person, in cases where fine does not form a part of the sentence.
The basic difference between sections 357 (1) & (3) is that in the former case, the imposition of the fine is the basic and essential requirement, while in the latter even in the absence (of fine) thereof court can direct payment of compensation.
COMPENSATION – DUTY OF COURT: while the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation [MANOHAR SINGH vsSTATE OF RAJASTHAN – (2015) 1 SCALE 448=(2015) 3 SCC 449=(2015) 2 SCC(Cri) 332].
Section 357A Cr.P.C: This is because the object of Section 357- A Cr.P.C. is to pay compensation to victims, where compensation paid under Section 357 of Cr.P.C. is not adequate or where the case ended in acquittal or discharge and where the victim is required to be rehabilitated [E.AthiyasaKumar vs. The State of Tamil Nadu, through the Secretary to Government, Home (Prison) Department, Secretariat, Fort St. George, Chennai – W.P.(MD)No.16822 of 2016 and W.M.P.(MD) No.12198 of 2016 – 21.02.2018].
[When a person convicted for life sentence and directed to pay compensation and has no property to recover and also he determined to stay inside. Now, what would be the fate of the compensation directed by the court to the victim].
Who is entitled? Every victim (irrespective of getting compensation under special laws) is entitled to get compensation.
a. ACCIDENT CASE – INSURANCE COMPANY PAID ALREADY: In our view, the sentence of mere fine of Rs. 40,000/- imposed by the High Court is not adequate and proportionate to the offence. We have been informed that a sum of Rs. 3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation Under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section [State of Himachal Pradesh vs. Ram Pal – (2015) 3 SCALE 111 : (2015) 11 SCC 584]
b. ACCUSED PAID ALREADY – Regard being had to the aforesaid decisions we direct the accused-respondent No. 2 to pay a compensation of Rs. 50,000/- and the State to pay a compensation of Rs. 3 lakhs. If the accused does not pay the compensation amount within six months, he shall suffer further rigorous imprisonment of six months, in addition to what has been imposed by the trial court. The State shall deposit the amount before the trial court within three months and the learned trial Judge on proper identification of the victim, shall disburse it in her favour [Ravada Sasikala Versus State of Andhra Pradesh & Another – Criminal Appeal Nos. 406-407 of 2017 (@ S.L.P. (Criminal) Nos. 9389-90 of 2016) – dt: 27-02-2017].
COMPENSATION – MUST BE REASONABLE: The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused, they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The Court may enforce the order by imposing sentence in default [HARI KISHAN vs. SUKHBIR SINGH AND OTHERS – (1988) 2 SCALE 426=(1988) 4 SCC 551=(1988) SCC(Cri) 984].
CAPACITY OF OFFENDER/CONVICT:
1. In awarding compensation, the court has to decide whether the case is fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay compensation has to be determined [Baldev singh @ anr vs. State of Punjab – (1995)6 SCC 593].
2. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary [Dilip S. Dahnukar vs. Kotak Mahindra Co Ltd & anr – (2007) 6 SCC 528].
3. Capacity of the accused to pay which constitutes an important aspect of any order u/s 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family [Ankish Shivaji Gaikwad vs. State of Maharashtra – (2013) 6 SCALE 778 : (2013) 6 SCC 770 : (2014) 1 SCC(Cri) 285 ].
LIMIT OF COMPENSATION: No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant [Pankajbhai Nagjibhai Patel vs. State of Gujarat – AIR 2001 SC 567=(2001) 1 SCALE 102=(2001) 2 SCC 595=(2001) SCC(Cri) 369].
Sections 357(1) & 357 (3) Cr.P.C – difference of opinion in default of payment of compensation [Chapter 32 – Execution]:
1. Compensation can be directed to be paid both in terms of sub-section (1) of Section 357 of the Code of Criminal Procedure as also sub-section (3) thereof. However, while exercising jurisdiction under sub-section (3) of Section 357, no direction can be issued that in default to pay the amount of compensation, the accused shall suffer simple imprisonment. Such an order could have been passed only in terms of sub-section (1) of Section 357. If the compensation directed to be paid by the Court in exercise of its jurisdiction under sub- section (3) of Section 357, Criminal Procedure Code is not deposited, the same can be realised as fine in terms of Section 421 of the Code [Ahmed Kutty vs. Abdullakoya – (2009) 6SCC 660=(2009) 3 SCC(Cri) 302].
2. It is true that the said provision does not include the power to impose a default sentence, but read with Section 431 Cr.P.C. the said difficulty can be overcome by the Magistrate imposing the sentence. Supreme Court further concludes that the provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 IPC, empower the Court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same [Vijayan vs. Sadanandan – 2009 (6) SCC 652].
3. LATEST PROPOSITION:
All the circumstances in subsection (1) of Section 357 refer to direction to pay compensation out of the fine imposed. Thus, all the circumstances are circumstances where fine imposed and recovered is to be applied in the above circumstances [Satyendra Kumar Mehra @ Satendera Kumar Mehra vs. The State of Jharkhand – CRIMINAL APPEAL NO.406 OF 2018 (ARISING OUT OF SLP(CRL.)NO.1994 OF 2018)]. As far as section 357 (3) Vijayan vs. Sadanandan (supra) case has been approved in Kumaran vs. State of Kerala @ anr – (2017) 6 Scale 62=(2017) 7 SCC 471=(2017) 3 SCC(Cri) 431.
INTERIM COMPENSATION: It is the duty of the court, on taking cognizance of a criminal offence, to ascertain whether there is tangible material which showed the commission of the crime, whether the victim was identifiable and whether the victim of crime require immediate financial relief. On being satisfied either on application or suo moto, the court ought to direct the grant of interim compensation, subject to the final determination of compensation at a later stage. This duty continues at every stage of criminal case, where compensation ought to be given but not given, irrespective of the application by the victim. At the stage of final hearing, it is obligatory on the part of the court to advert to the provision and record a finding as to whether a case for grant of compensation had been made, if so who is entitled to compensation and how much. Award of the compensation can be interim. 5. Gravity of the offence and need of victim are to be the guiding factors, apart from other factors which are relevant to the facts and circumstances of the case [Suresh v. State of Haryana – criminal appeal No.420 of 2012 decided on 28 November, 2014] [Also there is a direction to National Judicial Academy to circulate this judgment to all the courts in INDIA].
DEPOSIT OF COMPENSATION AMOUNT: On perusal of the S. 357(2) indicates that even if the compensation amount is deposited, the payment cannot be made to the victim before the decision of the appeal. It is not always necessary to insist for the payment of compensation amount as condition precedent for passing an order of suspension of sentence. The order of directing payment of compensation amount by the Trial Court is also a subject matter of appeal being right of the accused. The position may be different it is a case of remission. [2011 – 1 – LW (Crl) 646 – C.Murugesan vs. Prabakaran & ors].
VICTIM COMPENSATION – DEPOSIT:
Victim Compensation Scheme has been considered by this Court in State of H.P. Vs. Rampal (2015(11) SCC 584) and this Court opined that compensation of Rs. 40,000/- was inadequate taking note of the fact that the life of young child aged 20 years was lost and taking note of the precedents observed that in the interest of justice, the accused is required to pay a sum of Rs. 1 lakh and the State to pay a sum of Rs. 3 lakhs as compensation. Taking note of the precedents of which reference has been made, we consider it appropriate to observe that both the accused shall pay the additional compensation of Rs. 1,50,000/-(Rupees One Lakh and Fifty Thousand) each and the State of Himachal Pradesh shall pay the compensation as admissible under the Victim Compensation Scheme as in vogue to the acid victim (Ishita Sandhu, D/o Late Shri Rikhi Ram Sandhu) (Appellant No. 2). If the accused does not pay the additional compensation amount of Rs. 1,50,000/- (Rupees One Lakh and Fifty Thousand) each within six months, the defaulting accused shall suffer rigorous imprisonment of six months. The State shall deposit the compensation before the trial Court within three months from today and the learned trial Court, after proper identification of the victim, disburse at the earliest [State of Himachal Pradesh & Another Versus Vijay Kumar Alias Pappu & Another – Criminal Appeal No. 753 of 2010 – 15-03-2019].
EVALUATION OF VICTIM COMPENSATION SCHEME: The 154th Law Commission Report on the CrPC devoted an entire chapter to ‘Victimology’ in which the growing emphasis on victim’s rights in criminal trials was discussed extensively as under:
SECTION 357 – A CR.P.C – NO TRIAL: Sub-section (4) of Section 357Astates that even where no trial takes place and the offender is not traced or identified; but the victim is known, the victim or his dependents can apply to the State or the District Legal Services Authority for award of compensation.
VICTIM COMPENSATION SCHEME– NOT ENOUGH: The Courts have provided solace to the victim with monetary compensation, but that is not enough. There are victim compensation schemes in force due to the mandate of Section 357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that is not enough, though they are being implemented in several parts of the country. We are of the view that the judiciary is obliged to go and has gone beyond merely awarding compensation and has taken into consideration the larger picture from the perspective of the victim of an offence, relating to infrastructure in court buildings and has recommended and implemented some recommendations such as the construction of child friendly courts and courts that address the concerns of vulnerable witnesses. The Courts have done and are continuing to do their best for the victims of crime [MALLIKARJUN KODAGALI (DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES vs STATE OF KARNATAKA AND ORS – (2018) 14 Scale 32 : (2019) 2 SCC 752 : (2019) 1 SCC(Cri) 801].
VICTIM COMPENSATION FUNDUTILISATION – Tamilnadu: While dealing a Writ Petition, Madras (Madurai) High Court has directed that the first respondent shall thereafter issue appropriate directions for disbursement of the victim compensation fund deducted from the wages of the prisoners under rule 486(6) of Tamil Nadu Prison Rules, 1983. Such direction shall be issued within 8 weeks thereafter [E.AthiyasaKumar vs. The State of Tamil Nadu, through the Secretary to Government, Home (Prison) Department, Secretariat, Fort St. George, Chennai – W.P.(MD)No.16822 of 2016 and W.M.P.(MD) No.12198 of 2016 – 21.02.2018].
DIFFERENCE BETWEEN COMPENSATION SCHEME UNDER SECTION 357-A AND SECTION 357,CRPC:
1. Under Section 357 A, compensation is payable out of funds created by the State Government and under Section 357, it is payable out of fine recovered from convict.
2. Under Section 357 A, compensation is payable even if offender is not traced or identified but under Section 357, it is payable only upon conviction of offender.
3. Under Section 357 A, compensation is payable in addition to compensation awarded under Section 357 and under Section 357, there is no such provision.
4. Section 357 A is a mandatory provision for compensation whereas Section 357 is discretionary for the courts but mandatory for State government.
5. Under Section 357 A, order for compensation is made by District Legal Service Authority or State Legal Service Authority and under Section 357 by the Court.
6. Section 357 A empowers District Legal Service Authority or State Legal Service Authority to make Order for interim relief and under Section 357, there is no such provision.
7. Under Section 357 A, no condition is specified for dependents of victim entitled to compensation.Under Section 357 only dependents or heirs of victim who are entitled under Fatal Accidents Act can claim compensation.
PROBATION OF OFFENDERS ACT,1958 – Power of court to require released offenders to pay compensation – The Court directing the release of an offender under section 3 or section 4 may make at the same time a further order directing him to pay such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and such costs of the proceedings as the court thinks reasonable.
PROBLEMS
PROBLEM-1: SECTION 360 CR.P.C – ADMONISHING – SECTION 357 CR.P.C:
The Trial Court (Judicial Magistrate), after having taken into account the prosecution case, the supporting evidences as well as the facts and circumstances of the case, ultimately had come to a conclusion that A1 deserved to be admonished. According to the Trial Court (J.M), even though the charge against him under Section 323 of IPC was proved, it was not a serious one and therefore, taking into account the situation faced by the said A1, instead of sentencing him, released him by admonishing under Section 360 of Cr.P.C.. Further, at the same time, the Trial Court ordered a compensation of a sum of Rs.5000/- to be paid by A1 to the victim, viz., P.W.2 by invoking Section 357(3) of Cr.P.C – Legal Position to be discussed.
PROBLEM-2: SUSPENSION OF SENTENCE – EXTENSION OF TIME:
Accused got convicted in the Judicial Magistrate Court – sentenced for 1 year and fine of rs.1000 rupees for section 324 IPC (since S.324 is for punishment for extend to 3 years, or with fine, or with both) – paid fine – sentence suspended upto 30 days under section 389 (3) Cr.P.C – preferred appeal late and pending before the Sessions Court – sentence not suspended – nearing the deadline directed by the J.M – Appellant/Accused filed application for extension of time –Legal Position to be discussed.
Discussion:
1. Whether P.O Act 1958 will apply on N.I Act 1872 (section138)?
2. Whether complainant in N.I Act can recover his compensation even after the accused undergone imprisonment for default?
3. Whether s.320 Cr.P.C will apply to J.J. Act 2000?
4. Whether compounding of offences will be effective even after the death of the complainant or accused?
5. Whether High Court or Trial Court can direct the accused to file suspension of sentence application for a prescribe period (for instance 1 year) after filing the appeal?
ANSWERS,/u>
PROBLEMS:
A – Problem-1: s.360 – Admonishing – S.357 Cr.P.C: – After a person gets admonished, he cannot be treated to be a person who had suffered with sentence. He may be a convicted person, but has not been sentenced. When the court thinks to impose a sentence, in view of the language used in sub section (3) of section 357, the Court does not have the power to impose compensation payable to the victim, on the person who has been admonished [R.Chinnadurai & Others Versus State rep. by The Inspector of Police, Irumpulikurichi Police Station, Irumpulikurichi, Sendurai Taluk, Ariyalur District – (2018) 2 MLJ (Crl) 710 (mad)=2018(2) MWN (crl) 387].
A – Problem-2: SUSPENSION OF SENTENCE – EXTENSION OF TIME: As per section 389(3) Cr.P.C sufficient time to present appeal and obtain orders of the Appellate court must be given to the accused while suspending the sentence. Further, Madras High Court has held that section 389(3) Cr.P.C also says that sufficient time not only to present the appeal but also to obtain the orders of the court [Samuvel and Others vs. Inspector of Police – 2013(1) CLT (Cri) 745 (Mad)].The learned Magistrate lacks jurisdiction to grant suspension beyond 30 days from the date of imposition of sentence[P.Ramakrishnan vs. Rani Rambai – 2012(1) MWN(Cri) (DCC) 97]
DISCUSSION
Whether P.O Act 1958 will apply on N.I Act 1872 (section138)?
If the trial Court comes to the conclusion that the accused is guilty, then it is open to the learned Judicial Magistrate to take into consideration about the payment made by the accused and also take into consideration the other factors and to show leniency while sentencing the accused. Even the learned Judicial Magistrate may apply the relevant provision u/s 3 of the Probation of Offenders Act and admonish him, subject to Section 361 of Code of Criminal Procedure [P.S. SETHURAMAN vsP. ELAVAZHAGAN – (2010) 1 LW(Cri) 697=(2010) 1 MWN(Cri) DCC 80=(2010) 3 MLJ(Criminal) 313]. Also: KUMARAN vsSTATE OF KERALA – (2017) 6 Scale 62=(2017) 7 SCC 471=(2017) 3 SCC(Cri) 431.
Whether complainant in N.I Act can recover his compensation even after the accused undergone imprisonment for default?
Thus it is clear that the object of the legal fiction created by Section 431 is to extend for the purpose of recovery of compensation until such recovery is completed – and this would necessarily take us not only to Section 421 of the Cr.P.C. but also to Section 70 of the Penal Code, a companion criminal statute, as has been held above [KUMARAN vsSTATE OF KERALA – (2017) 6 Scale 62=(2017) 7 SCC 471=(2017) 3 SCC(Cri) 431].
Whether s.320 Cr.P.C will apply to J.J. Act 2015?
Yes, only to the IPC offences. Though the J.J Act is the procedurally overflow, there are sections which are penal in nature to the accused therein. Those sections cannot be compounded in the terms of section 320 Cr.P.C inasmuch as J.J Act is a special Act [Theoffences punishable under the special statutes are not covered by Section 320 – DASAN vsSTATE OF KERALA AND ANOTHER – (2014) 1 SCALE 633=(2014) 12 SCC 666=(2014) 5 SCC(Cri) 186].
Whether compounding of offences will be effective even after the death of the complainant or accused?
State cannot compound the offence: no one on behalf of the State is empowered to compound the offences. However, the public prosecutor may withdraw from prosecution with the consent of the Court, as provided for in Section 321 CrPC [LAW COMMISSION OF INDIA – Compounding of (IPC) Offences Report No. 237 December, 2011]. Then only the parties can compound the offences. De-facto complainant can enter into the contract of compounding of offences with the accused, if the the complainant is dead then their legal heirs can enter into compounding of offences [Deva Ram … Appellant Vs. The State of Rajasthan & Anr – CRL APL NO:1165 OF 2014 –23rd july 2014 in trial court section 302 Cr.P.C].
Accused: Jugal Kishore Khetawat vs. State of W.B; II (2011) CCR 378 (SC) – to continue prosecution. [An amendment to S. 431 Cr.P.C (old code) was suggested in the Bill introduced in the Parliament by a private member, Shri.K.V.Raghunatha Reddy. The main object of the amendment was to provide machinery whereby the children or the members of the family of a convicted person who dies during the appeal could challenge the conviction and get rid of the odium attaching to the family as a result of the conviction. The Law Commission of India by its Forty – Fourth(44th)Report[1] found the proposed amendment ‘eminently sound’ and recommended that the amendment be made with certain modifications. Accordingly S. 394 Cr.P.C has made the said proviso].
Whether High Court or Trial Court can direct the accused to file suspension of sentence application for a prescribe period (for instance 1 year) after filing the appeal?
However, we have also taken note of the observations made in the last part of the order impugned, whereby, the High Court has provided that the petitioner shall not approach the Court “before a minimum period of three years from the date of conviction”. The aforesaid observations cannot be approved for the simple reason that seeking relief of suspension of execution of sentence and to be released on bail is the statutory right of the appellant and there is no warrant for such a proposition that any appellant be debarred, from renewing his prayer for suspension of execution of sentence, for a particular period. As to whether such a prayer is to be granted or not is a matter entirely different but such kind of time-specific debarment is not envisaged by the law. Therefore, we would annul the aforesaid observations occurring in the penultimate paragraph of the order impugned [Krishan Kumar vs. The State of Haryana – S.L.P (crl) No: 612 / 2022- 31.01.2022 – Court-14 – Item No.20].
[1]September, 1969, Vol. I, pp. 279-81
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