Sentence

From Justice Definitions Project

What is a Sentence?

“Sentences” are declarations in judgments that specify the legal penalty that is to be applied to the offence committed by the offender. A sentence is considered to be the predecessor of the actual inflicting of punishment, if any. The aim of sentencing is “what must be done in the event that a wrong was done”. The Wex legal dictionary and legal encyclopedia describe sentencing as ‘The judgment that a court formally pronounces after finding a criminal defendant guilty. “Sentence” refers to the term of imprisonment or probation imposed on a convicted defendant for criminal wrongdoing.’[1]

The official definition of Sentence.

  • The term sentence is nowhere defined but Section 53 of the Indian Penal Code in Chapter III deals with the kinds of punishments which can be inflicted on the offenders:
  1. Death
  2. Imprisonment for life
  3. Imprisonment, which is of two descriptions: Rigorous and simple
  4. Forfeiture of property
  5. Fine
  • Section 235(2) of Code of Criminal Procedure provides for a pre-sentence hearing. It mandates that once the accused is convicted of an offence and the court is not proceeding on the line of probation, the court must hear the accused on the question of sentencing and then pass a sentence according to law. A similar provision is also incorporated in section 248 (2) of the Code of Criminal Procedure in relation to the trial of warrant cases by magistrates. Though section 235 (2) does not make any specific mention regarding adducing evidence and only provides for a hearing of the accused, it is implicit in the provision that if either of the parties makes a request for producing evidence or other materials having a bearing on the issue of sentencing, the court should grant such permission. Thus, many social and personal facts pertaining to the offender which may not be relevant for the purpose of determining the guilt may be extremely important for deciding upon the sentence to be passed.
  • The relevant provision as to the right of the accused to be heard on the question of sentence in warrant cases exclusively triable by a court of Session is provided in Section 235 (2) of the Code of Criminal Procedure, whereas in cases pending trial before Judicial Magistrate can be located in Section 248 (2) of the same code. This provision of hearing on the question of sentence is mandatory. Noncompliance with the provisions of section 235 (2) of the Code of Criminal Procedure, is not an irregularity but is an illegality which vitiates the sentence.

Legal Provision Relating to Sentencing in India

  • In accordance with Articles 72 and 161 of the Indian Constitution as well as Sections 432, 433 and 433A of the Code of Criminal Procedure, 1973, the appropriate Government in matters relating to any law relating to a matter to which the executive power of the Union extends the appropriate government will be considered Central government and the Government of the State within which the offender is sentenced or the said order is passed. Also, The powers conferred by sections 432 and 433 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government. Section 435 also mentions certain cases where the state government has to act in consultation with the central government. This appropriate government may commute, condone, or pardon any sentence, including capital punishment and life in prison, that has been imposed and affirmed by a court of law. Even a life sentence may be reduced to a sentence of no more than 14 years in prison.
  • Remission of sentence means, waiver of the entire period of the balance of imprisonment. It is granted under special circumstances including the circumstances under which the offence had taken place and the manner of the disposal of the case through trial and appeals. When remission is granted, it is not revocable. Apart from granting, remission of sentences, in individual cases, the government may grant remission generally to serve certain classes of persons as an act of policy of the State. Remissions may be by restricting the sentence to a period of imprisonment already undergone. Commutation of the sentence means, altering the sentence from one grade to a lower grade. Rigorous imprisonment may be converted into simple imprisonment. Imprisonment can be converted into a fine. The death sentence may be converted into a life sentence and a life sentence to a sentence of 14 years imprisonment. The sentence of 14 years may be reduced to any term of imprisonment. Here also, the government needs to take the exigencies of the case before commuting the sentence. Before exercising the power of suspension, remission and commutation, the government will call for and obtain the opinion of the presiding officer of the court who ordered or confirmed the conviction. The opinion may not be treated as a recommendation or as binding advice. The opinion may be taken into consideration only. The commutation once granted is not revocable.
  • The procedure of how sentences are to be awarded in Section 28 of the Code of Criminal Procedure details Sentences which High Courts and Sessions Judges may pass, Section 29 details Sentences which Magistrates may pass, Section 325 details the Procedure when Magistrate cannot pass sentence sufficiently severe and provides for referring, to the concerned Chief Judicial Magistrate, cases involving serious offences in which, in their respective opinion, the accused ought to receive punishment different in kind or more severe than they are empowered to inflict. Section 31 details Sentences in cases of conviction of several offences at one trial. Section 30 details Sentences of imprisonment in default of fine.
  • Section 265-I provides for the period of detention undergone by the accused to be set off against the sentence of imprisonment. And section 465 provides for finding or sentence when reversible by reason of error, omission irregularity.
  • Judicial discretion comes in Section 360 of the Code of Criminal Procedure which provides for the release of the convict on probation. When there is no immediate threat to society, the section’s goal is to attempt and reform those criminals. This is demonstrated by limiting the section’s application exclusively to situations in which the following circumstances exist:
  1. A woman convicted of an offence the punishment of which is not death or life imprisonment
  2. A person below 21 years of age convicted of an offence the punishment of which is not death or life imprisonment
  3. A male above 21 years is convicted of an offence the punishment of which is fine or imprisonment of not above 7 years.
  • Sentences can be appealed as provided in section 377 which provides for Appeal by the State Government against sentence and section 389 which provides for Suspension of sentence pending the appeal; release of appellant on bail.

Aggravating and Mitigating Factors that Influence a Sentence

  • At the sentencing hearing, the presentation of evidence by the prosecutor of aggravating factors would result in a harsher sentence. There exist different criminal statutes that specify the factors resulting in harsher punishments. The seriousness of the offence is judged based upon the circumstances of the case such as the gravity of the injury, usage of weapons etc. The seriousness of the offence is the prerequisite factor in deciding the length of the sentence. Some of the factors are as follows:
  1. Repeat Offences: It is often argued that the court should treat the previous conviction of the offender as an aggravating factor provided the conviction before has relation to the current offence and the time has passed since the conviction. It is regarded that a sentence can be imposed considering the failure to respond to previous non-custodial sentences.
  2. Victim Vulnerability: There might be situations where the court may impose a harsher sentence based on the vulnerability of the victim. It states when an act is performed by the defendant against a child, the elderly would be considered an aggravating factor. It also involves causing mental and physical injury, disability, and illness.
  3. Leadership: If the defendant played an influential role in the minds of individuals leading to the commission of offence then the court would consider it as an aggravating factor.
  4. Hate Crimes: There exist states which have enacted laws on hate crimes. Different statutes have categorized hate crimes based on caste, religion, gender, and national origin.  
  5. The Culpability of an Offence: Intention, negligence, recklessness, and knowledge play a crucial role in determining the culpability of an offence. It is also regarded as an aggravating factor provided that the defendant has deliberately caused more harm than required and has targeted a vulnerable victim.
  • Production of evidence on mitigating factors would help the defence in bringing leniency in sentencing. The factors that can be considered by the judge while sentencing is:
  1. The offender was coerced and threatened to commit the offence. It would not constitute a complete defence but would slightly affect the sentencing process.
  2. The involvement of the offender in the crime was a mere accessory.
  3. The offender was extremely careful in carrying out the crime.
  4. It was because of provocation the act was committed.
  5. A belief possessed by the defendant that he/she holds a rightful claim over the property.
  6. Under the situation of necessity, the offender was forced to provide aid to his/her family.
  7. Mental or physical instability at the time of the commission of the offence would reduce the culpability of the offender.
  8. Lack of forming a rationale judgment because of his/her age.
  9. The offender under unusual circumstances committed an offence provided there does not exist sufficient intent to violate the law
  • As per section 3 of the Probation of offenders Act, 1958, the court may release the convict on due admonition when he is found guilty of having committed an offence punishable under Section 379, 380, 381, 404 or 420 of the Indian Penal Code or an offence punishable with imprisonment for not more than two years, and no previous conviction is proved against him. Under section 4 of the said Act when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court is of the opinion that it is expedient to release him on probation of good conduct, then the court may instead of sentencing him to any punishment release him on his executing bond, with or without sureties to appear and receive sentence when called upon during such period, not exceeding 3 years, and in the meantime to keep the peace and be of good behaviour.

Types of Sentencing

Section 53 of the Indian Penal Code in Chapter III deals with the kinds of punishments which can be inflicted on the offenders:

Death

  • The death penalty is the execution of a criminal who has been sentenced to death by a court of law for a serious felony. It is known as the most severe form of punishment. It serves as punishment for the most heinous, grievous, and abhorrent crimes against humanity.
  • In Jagmohan Singh vs the State of Uttar Pradesh[2], the Supreme Court held that deprivation of life is constitutionally lawful if done according to the procedure set by law.
  • The Supreme Court in Bachan Singh vs the State of Punjab upheld the validity of the death penalty, but the court restricted the provision of the death penalty to the rarest of rare cases only.
  • CHAPTER XXVIII of the Code of Criminal Procedure lays down the provision for confirmation of the Death Sentence passed by the Sessions Court. According to Section 366, the sentence of death, passed by the Session Court, is automatically suspended on a reference made to the High Court, until the same is confirmed by the High Court. Further, under section 367 High Court(s) can make an inquiry into or take evidence, itself or direct such an enquiry to be made or additional evidence taken by a Court of Session(s), where it, “thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person”. The order passed by the High Court shall be one of the options provided in Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the accused among others. As per the provisions of Section 369 of the Code, the death reference(s) made by the Court of Session to the High Court are placed before, decided and signed by at least two of the Judges of the said High Court, “when such court consists of two or more Judges”. However, in the case of a conflict/difference of opinion between the Judges constituting such a Bench at the High Court, as per the provisions of Section 370 Code of Criminal Procedure, the said case/conflict has to be decided in the manner as provided under Section 392 of the Code.

Imprisonment for life

  • In its natural meaning, imprisonment for life means imprisonment for the whole of the remaining term of the convicted person’s natural life. As per section 57 of the Indian Penal Code, the period for life imprisonment is 20 years only for calculating purposes. Imprisonment for life can never be simple imprisonment; it is always rigorous imprisonment.
  1. Imprisonment, which is of two descriptions: Rigorous and simple
  • Simple Imprisonment: It is the type of imprisonment where an accused convicted of a crime is kept in prison without any hard labour. They are required to do only light duties. The punishment of simple imprisonment is awarded only for lighter offences such as defamation.
  • Rigorous Imprisonment: It is the type of imprisonment under which a prisoner or an accused convicted for a crime is kept in prison, and they have to do hard labour such as agriculture, carpentry, drawing water, etc. Rigorous imprisonment is obligatory for the offences given under the following two sections (no alternative for simple imprisonment is available):
  • Section 194, Indian Penal Code: Giving or fabricating false evidence with intent to procure conviction of capital offence.
  • Section 449, Indian Penal Code: House-trespass in order to commit an offence punishable with death.
  • A sentence of imprisonment in default, as per section 30 of Code of Criminal Procedure, should not be in excess of power u/s 29 Code of Criminal Procedure and should not exceed 1/4th of the term of imprisonment which the magistrate is empowered to inflict. However, it may be in addition.

Forfeiture of property

  • Forfeiture implies the loss of property of the accused. Under this punishment, the State seizes the property of a criminal. It is the result of the wrong or default caused by the person. The property forfeited may be movable or immovable.

Fine

  • The court may impose the punishment of a fine as sole imprisonment or as an alternative for imprisonment, or in addition to imprisonment. It depends upon the court to decide whether imprisonment or fine or both are to be awarded in a particular case.
  • According to section 64 of Indian Penal Code, the court may order imprisonment if a person fails to pay the fine.

Community Sentencing

Community sentencing is an alternative to imprisonment in which the court finds different ways to punish a defendant who has been convicted of committing an offence, other than through a custodial sentence and capital punishment. It is also known as alternative sentencing. Community sentencing is a kind of punishment for those who have committed less dangerous crimes, the court put some limitations and gave them some duties. Non-custodial punishment includes:

  1. House arrest
  2. Unpaid work
  3. Curfew
  4. Apology to victim
  5. Judicial corporal punishment
  6. Specific court orders and injunctions
  7. Regular report to someone
  8. Fines and compensation

They enable people to undertake rehabilitative programs or work in the community under supervision. The person who is convicted under community sentence will be assigned an offender manager who works for a National Probation Service or Community Rehabilitation Company. Any person who fails in the assigned work could see a return to court which may result in being sent to prison.

  • In the case of Bachan Singh v. State of Punjab[3], the Court established the principle that the punishment for a crime should be proportionate to the crime committed and the offender’s circumstances. This decision highlighted the need for the sentencing Judge to consider the nature of the crime, the motive, the method of commission, and the offender’s previous conduct, as well as the nature of society and the public conscience. The Court emphasised that the sentence should not be excessively harsh or unduly lenient.
  • Similarly, in the State of Maharashtra v. Sukhdev Singh[4], the court held that while the law prescribes a maximum sentence for a particular offence, it does not mandate that sentence in every case. The court emphasised that the sentencing Judge must exercise discretion in determining the appropriate sentence based on the facts and circumstances of the case, including aggravating and mitigating factors.
  • The landmark judgment in State v. T. Makwanyane[5] is another example of the importance of considering the individual circumstances of each case when determining a sentence. In this case, the Constitutional Court of South Africa held that the death penalty was unconstitutional because it violated the right to life and dignity, as well as the prohibition against cruel, inhuman, and degrading punishment. The court emphasised that the punishment should be tailored to the individual offender and the crime committed, rather than being a mandatory sentence prescribed by law.

International Experiences.

The United States system

The Guidelines are the product of the United States Sentencing Commission and are part of an overall federal sentencing reform package that took effect in the mid-1980s. The Guidelines are now discretionary as a result of US v. Booker (2004)[6], which means that judges may take them into account but are not obligated to use them as a guideline when deciding on a sentence. Despite this, when sentencing criminal defendants, federal judges nearly always utilise the Guidelines at least as a starting point. The judge must provide a written justification for each sentence that deviates from the recommended parameters. The two main considerations under the Guidelines to calculate punishments are:

  1. The conduct associated with the offence and,
  2. The defendant’s criminal history.

The relationship between these two criteria is illustrated by the Sentencing Table [xxviii] in the Guidelines Manual. The Table offers a sentencing range, in months, within which the court may sentence a defendant for each pairing of offence level and criminal history category. There are six criminal history categories and 43 offence levels, and each category carries a different number of criminal history points. For instance, the Guidelines suggest a sentence of 41–51 months for a person found guilty of an offence with a total offence level of 22 and a criminal history category of I. The Guidelines would suggest a sentence of 84–105 months, however, if a person with a significant criminal history (Category VI) committed the same crime in the same way in the same current timeline and not during the earlier guideline periods.

The statutory mission as stated in the 2005 Federal Sentencing Guideline Manual[7] is “…deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender. It delegates to the Commission broad authority to review and rationalise the federal sentencing process.” Once again discretion though guided is not completely removed in the case of the US as well.

The United Kingdom system

The Coroners and Justice Act, of 2009[8] governs the sentencing process in the UK. The system provides a guiding principle for the judiciary to use when determining the appropriate level of punishment for a certain offence. The policy’s primary goal is to achieve uniformity while promoting public confidence and proportionality in sentencing.

The rules are strict in that they prevent judges from imposing sentences that fall outside of the range that is specified in the guidelines. However, the particular range is flexible because the courts have the option to diverge from it whenever necessary in the interest of justice.

Apart from the offence-specific guidelines for punishment, the guidelines also provide general guidelines where the specific offence is not mentioned and the factors that ought to be taken into account by the courts while sentencing the offender. The rules promote clarity in sentencing concerning the offences committed by the offender by incorporating provisions that ensure transparency in the sentencing process.

The Sentencing Council’s general guidelines contain guiding principles that work together with the offence-specific guidelines. These guidelines are in addition to the offence-specific guidelines, and their application would cover both offences for which there are offence-specific guidelines as well as offences for which there are not.

According to the guidelines, the court must consider Section 164 of the Criminal Justice Act of 2003 while determining the fine to be imposed on the offender. Section 164 states that the fine must be proportionate to the crime committed and must also convey the gravity of the offence. The fine should be set fairly and proportionately so that it justifies the purpose of the punishment and discourages the offender from committing similar offences or obtaining any financial benefit in lieu of such commission of the offence. This means that it shouldn’t be less expensive to break the law than to follow it. The fine imposed must be quantified in a manner to obligate the shareholders to comply with the provisions of the law.

The Act’s sentencing guidelines have a prescriptive tone due to the way they are written. The courts are required under Section 59(1) of the Coroners and Justice Act, 2009, to adhere to the punishment range indicated in the guidelines while taking into account that justice is done. As a result, the guidelines draw the judiciary’s focus to the significance of guidelines while still allowing the courts to use their discretion to impose an appropriate penalty.

Research that engages with.

  1. Death Penalty Sentencing in Trial Courts: Delhi, Madhya Pradesh and Maharashtra (2000-2015).[9] The research analyses and documents the use of the Bachan Singh doctrine in trial courts in Delhi, Madhya Pradesh and Maharashtra. It also examines the inconsistencies within the Supreme Court’s jurisprudence on capital sentencing and argues that the capital sentencing crisis in the trial courts is heavily influenced by the confusion in the apex court.
  2. Committee on Reforms of Criminal Justice System.[10] The Malimath Committee, a panel created by the Ministry of Home Affairs, released a report in March 2003 that underlined the necessity to develop sentencing criteria to reduce ambiguity when imposing punishments.
  3. Report of the Committee on Draft National Policy On Criminal Justice.[11] The draft report provides for A national policy on sentencing that shall seek to address the issues with regard to more alternatives to punishment, reduce disparity in punishment, avoid overcrowding by no short-term imprisonment, specific sentencing guidelines and institutional machinery involving correctional experts for fixing proper punishment.
  4. 47th Law Commission Report, The Trial and Punishment of Social and Economic Offences.[12] The commission recommended a new code that would be based on modern principles of criminal justice, such as the presumption of innocence, the right to a fair trial, and proportionate sentencing.

Challenges.

  1. The practice of invoking Section 325 by the Judicial Magistrate and referring to the Chief Judicial Magistrate isn't duly observed. To encourage the practice, High Courts like Punjab and Haryana have allowed the concerned Judicial Magistrate to record the judgment of conviction, to claim the units of disposal of cases.[13]
  2. Observation of pre-sentence hearing under Section 235(2) Code of Criminal Procedure is not duly complied with in many instances.

Also Known as.

  1. Punishments: The term punishment refers to a loss serving as retribution that is imposed upon a convicted offender via the judicial system. The loss can take various forms within the boundaries of possible punishments outlined in local, state, or federal guidelines.[14]
  2. Conviction: A conviction is a formal declaration that someone has been found guilty of a crime by a court of law.
  3. Judgement: Judgment is the official decision of a court finally resolving the dispute between the parties to the civil action.

References.

  1. https://www.law.cornell.edu/wex/sentence
  2. 1973 AIR 947
  3. AIR 1980 SC 898
  4. 1992 AIR 2100
  5. [1995] ZACC 3
  6. 543 US 220 (2005)
  7. https://www.ussc.gov/guidelines/archive/2005-federal-sentencing-guidelines-manual
  8. 2009 c. 25
  9. https://www.project39a.com/s/Death-Penalty-Sentencing-in-Trial-Courts.pdf
  10. https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf
  11. https://www.mha.gov.in/sites/default/files/2022-08/DraftPolicyPaperAug%5B1%5D.pdf
  12. https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080816-1.pdf
  13. https://cja.gov.in/Important%20Instructions/Section%20325%20of%20the%20Cr%20P%20C%2013.02.2014.pdf
  14. https://www.britannica.com/topic/indeterminate-sentence
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