ST.

MOTHER TERESA LAW DEGREE COLLEGE

LONAPUR, GOMTI NAGAR, LUCKNOW

L.L.B.(3 YEARS) 4th SEMESTER COURSE

FACULTY OF LAW

ASSIGNMENT FILE
ON
CODE OF CRIMINAL PROCEDURE – II

Bail and Sentencing

SUBMITTED TO – SUBMITTED BY –

PANKAJ KUMAR JAISWAL

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 Acknowledgement

I would like to thank to my

teachers for their valuable
guidance and help. They clarified
all my queries about the project
without which I would have not
been able to complete the
project. I would also like to
thank my family for providing all
necessary materials and my
friends for helping me with this
project.

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Introduction of BAIL
Black’s Dictionary defines bail as “Procuring the release of a person from legal custody,
by undertaking that he/she shall appear at the time and place designated and submit
him/herself to the jurisdiction and judgment of the court”.

Bail is the conditional release of a person accused of a crime, for an amount, pledged for
the appearance of the accused when the same is due in court. The person paying the
money acts as the surety. Getting bail is one of the rights of the accused in a civil case
while it is the discretion of the bail granting authority in a criminal case.

To know more about concept of bail bond and role of bail bond agents in brief, please
refer to the video below:

Historical development
Bail can be traced back as early as 399 BC when Plato first tried to create a bond to free
Socrates. In medieval times, the circuit courts in Britain created a system of bail. The
concept of modern bail chiefly originated from all the medieval laws governing it.

Kautilya’s Arthashastra also mentioned that avoiding pre-trial detention was ideal
therefore the concept of bail was somehow prevalent in ancient India too. During the
17th century that was the Mughal period, bail was practised in the form of ‘Muchalaka’
and ‘Zamanat’.

Currently, bail is governed by the Code of Criminal Procedure, 1973 (hereafter referred to
as the ‘Act’). Bail is not explicitly defined in the Act but the terms bailable offence and
non-bailable offences are defined under Section 2(a). Section 436–450 governs the
provisions relating to bail under the Act.

Types of bail in India

There are three types of bail in India-

 Regular bail

When a person commits a cognizable non-bailable offence (offences which are so grave
that a police officer can arrest the accused without a warrant or start the investigation
without the permission of a court), the police can take him under custody and after the

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custody period expires he must be sent to jail. Section 437 and 439 of the Cr.P.C gives
the accused the right to be released from such custody. So, a regular bail is basically the
release of an accused from custody to ensure his presence at the trial.

 Interim bail

This bail is granted as a temporary means and granted for a short period of time, either
during the time of pendency of an application or when the application of anticipatory or
regular bail is pending before the court. Interim bail is always conditional and can be
extended, but if it expires before the accused has been granted an anticipatory bail or
regular bail and he fails to pay the amount required for continuing the bail, then he loses
his right of freedom and will be taken under custody.

 Anticipatory bail

Anticipatory bail is self-defining. It is a type of bail which is given to someone who is in

anticipation of getting arrested for a non-bailable offence by the police. This is a very
essential bail in recent times because business rivals and other influential people often
try to frame their opponents in false cases. This is an advanced bail mentioned
under Section 438 of the Act. A person who has been granted an anticipatory bail cannot
be arrested by the police.

Conditions under which bail can be granted in India

CHAPTER XXXIII (S.436-450) of the Code of Criminal procedure deals with bails and bonds.
There are certain conditions under which bail can be granted and we shall discuss the as
follows:

Conditions governing bail in a bailable offence

Section 436(1) of Cr.P.C. lays down the conditions under which bail can be granted for
bailable offences committed under the Indian Penal Code (1862). Whenever a person is
arrested or detained by police for any non-bailable offence is produced before the court
and he is prepared to give bail, he may be released on bail.

In this case, bail can either be granted by the police officer who has made the arrest or
by the Court before which the person has been produced. Here bail will ordinarily be
granted against furnishing of surety by the arrested person. However, if the arresting
officer or the court is satisfied that the person is indignant and cannot furnish surety, he

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may be discharged on bail on the execution of a bond without sureties for his
appearance.

Whether a person is indignant or not is also explained under this section. If within a
period of one week of arrest, the person fails to give bail, he will be considered as an
indignant person and will be eligible to be discharged on the execution of a bond without
sureties.

At the time of granting bail to any person, the bail granting authority must be satisfied
that:

1. the accused appears to be innocent, i.e. he has most probably not committed
the offence.
2. that further enquiry for the offence is required to be conducted to find out
whether he has committed the offence.
3. the offence is not a major one, i.e. it is not an offence punishable with death,
life imprisonment or imprisonment up to 10 years.

Sub-section (2) of this section lays down the conditions under which bail may be refused
even if the offence is of bailable nature. If a person fails to comply with the conditions of
appearance as laid down in the bail-bond, he may, in any subsequent occasion in the
same case, if arrested or brought before the court, be refused bail.

In India, court cases are long-drawn and may continue for years. For various reasons, the
trying court may take a long time to give its verdict. Section 436A was inserted in CrPC to
ensure that an accused person is not detained for an inordinate length of time. Any
person, if accused of any offence, other than an offence where the prescribed
punishment is death, will be released in bail-bond, during the period of investigation, if
he has already been detained for more than half the length of maximum punishment
prescribed for that offence. However, the section also gives the court the discretion to
extend the period of imprisonment beyond this period, if so satisfied, but in no
circumstances, up to the maximum length of punishment prescribed for the offence.

Conditions governing bail in a non-bailable offence

Right to liberty as enshrined in the Constitution– these two principles are required to be
analyzed in conjugation, in deciding whether an accused can be granted bail in respect of
a non-bailable offence. The Court has to strike a balance between the two. The Hon’ble
Supreme Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) has
observed that “Liberty is to be secured through a process of law, which is administered
keeping in mind the interests of the accused, the near and dear of the victim who lost his
life and who feel helpless and believe that there is no justice in the world as also the

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collective interest of the community so that parties do not lose faith in the institution
and indulge in private retribution.”

Section 437 of the Code of Criminal Procedure,1973 states that bail can also be granted
for committing non-bailable offences. However, here the discretion is that of the Court
and the accused cannot claim it as a matter of right. Under this section, if a person is
arrested without a warrant and produced before a court, any court other than the High
Court or the Court of Sessions may grant him bail. However, the Court may not grant bail
if it has sufficient grounds to believe that the person is guilty of an offence punishable
with death or life imprisonment. The Court may also refuse bail if the offence is
cognizable and the person has been previously convicted of an offence punishable with
death or imprisonment for seven years or more or convicted in two or more than two
occasions against an offence punishable with imprisonment for three or more years.

Further, the Court may also grant bail if the accused is a woman or a child, evidence of
the crime is not strong enough and further enquiry is warranted, FIR has not been lodged
promptly and the accused is seriously indisposed or infirm.

The mere reason that the examination of the accused needs the witness, will not be
sufficient cause for refusing bail. At the same time for offences punishable with death or
imprisonment for seven years or more, the Public Prosecutor will be given an opportunity
of hearing and opposing bail, before the same is granted.

If the accused is suspected to have committed, abated, conspired or attempted to

commit a crime punishable with imprisonment with seven or more years, he shall be
released on bail on the imposition of the following conditions:

1. attendance as laid down in the bail bond;

2. The undertaking of not committing any similar offence; and
3. The undertaking of not making any direct or indirect inducement, threat or
promise to any person acquainted with the facts of the case.

Conditions governing bail in anticipation of arrest:

Section 438 of the CrPC lays down the procedures for getting bail in anticipation of arrest
for a non-bailable offence. The provision was incorporated as per the recommendation of
the report of the 41st Law Commission. There should be an element of apprehension, i.e.
the person seeking bail feels that he will be framed or arrested in a false case or someone
having enmity with him will try to get him arrested on the pretext on a fabricated charge.
The applicant has to present before the Court certain special facts or circumstances
which makes him believe would result in his arrest. This is however left to the
satisfaction of the court, whether such facts would be considered good enough for
granting bail.

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Anticipatory bail can be granted only a High Court or a Court of Sessions.

Other conditions affecting grant of anticipatory bail

 The person concerned will have to make himself available for interrogation by
the police.
 He shall not make any direct or indirect inducement, threat or promise to any
person acquainted with the facts of the case.
 He will not leave the country without the prior permission of the court.

Bail reforms in India – a critical analysis

 Detention of undertrials should be an exception and not a rule in law. The
Indian Legal system relies on the presumption of innocence unless otherwise
proven guilty. In practice, this is not really true. The nature of the offence
often weighs heavily on the mind of the judge or magistrate who grants or
refuses bail. If the offence is grave enough, bail is often not granted and the
cardinal principle that the offence is yet to be proved is often ignored. Thus,
the importance of FIR is paramount in the Indian Legal system. I, therefore,
feel that this excessive reliance on the gravity of the offence as stated in the
FIR has to be carefully examined. Grant of bail should not depend on the
sections in which a person is charged, i.e. on the nature and gravity of the
offence (which is yet to be proved), but it should be evidence-based and the
careful understanding of the judge as to the probability of the accused
committing the offence. If required thorough, but quick enquiry may be
conducted to find out whether bail may be granted or not. Another important
area, already recommended by the Law Commission is revamping the system of
the arrest. The system should be made more rational, fair and transparent. For
this, Section 41 of Cr.P.C. should be amended. This would go a long way in
preventing arbitrary arrests and result in fewer people seeking bail before the
police and the court. Most importantly, it would help the bail granting authority
take a rational decision based on the merit of the case.
 There are various statutes and sections in-laws which lay emphasis on the
presumption of guilt which is contrary to principles of natural justice. For
example, It is very hard to get bail for offences under the Narcotic Drugs and
Psychotropic Substances Act, 1985, The Scheduled Caste and Scheduled Tribes
(Prevention of atrocities Act), 1989, as these laws lay emphasis on the
presumption of guilt. Similarly, Section 375 (Rape) and Section 498A (Cruelty
against a married woman) of IPC also lay presumption on guilt. These sections
were drafted to prevent people from committing atrocities against women and
the traditionally oppressed classes, which is no doubt necessary to prevent
crimes against them, but at the same time, the sections bypass the principle of
innocence prior to being proved guilty. Thus, all statutes and laws should

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 emphasize the principle of ‘innocence unless proved guilty and should be
amended to the extent required.
One classic example in this regard is the judgement delivered by a Supreme Court Bench
in the case State of Kerala v. Rajesh (2020). Here the decision of Kerala High Court,
granting bail to the accused under the Narcotics, Drugs & Psychotropic Substances Act,
1985 was turned down, upholding the appeal of the State Government, as the apex court
thought that Section 37 of the Act, which puts the onus of proving innocence on the
accused, was overlooked by the High Court. In the larger context, we have to admit that
this section goes against the principles of liberty and natural justice of our constitution
and the Supreme Court too, preferred not to examine it.

 The bail system relies on sureties and bonds which often act as a deterrent for
the poor. Repeated bail petitions get rejected as the poor do not have the
monetary means. Thus, there is a common notion that bail is not for the poor.
Therefore granting of bail should not be only on monetary considerations. Other
means should be devised.
 Section 436A of the Cr.P.C. perhaps needs further reforms. In the Indian system
of jurisprudence, under-trial prisoners suffer a lot. The prosecution, which is
burdened with cases, often make inordinate delay in completing enquiry and
filing charge sheets. This can result in the accused languishing in custody for
years. This can continue up to half the period of maximum punishment
prescribed for the offence and even up to the maximum length of punishment
prescribed for the offence. This goes against the principle of life and liberty
guaranteed by the Constitution and even worse, valuable years of his life get
wasted if the accused is found not to be guilty of the offence at the end of the
trial. This is a gross crime against humanity which can never be rectified.
 Finally, we come to the most important issue of speedy justice. If justice is fast
and verdict comes quickly, then many poor under-trial prisoners, who often do
not get bail for economic reasons or reasons of caste, creed or backwardness,
are spared from languishing behind the bars. Thus, reforms in the Indian
Judiciary should primarily focus on this issue and it will naturally address the
problems of bail in India, along with many other problems.

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Introduction of SENTENCING

In order for all citizens to be able to exercise their human rights, sovereign states must
uphold the rule of law, promote respect for it, and maintain peace. States can fulfill this
obligation by enacting the required legislative, executive, and judicial measures. But
without appropriate preventive and punitive measures to either restrict or repair the
individuals’ wrongful actions, such measures would be ineffective.

Furthermore, it’s important to realise that wrongful actions have the potential to affect
other members of society or society at large. As a result, it is the responsibility of the
State to identify and detain the individual responsible for the unlawful behaviour or
invasion, and then to subject that person to a fair trial, and, if found guilty, to punish the
individual in accordance with the law.

In other words, we may say that each society has a certain amount of social control and
that control has an ethical and moral justification. The basis of the concept of social
control is justice. Any conduct that deviates in some way from this acceptable behaviour,
social custom, or rule is met with a specific sort of punishment. This affliction will vary
from society to society. The imposition of a proper, just, adequate, and proportionate
penalty is one of the main goals of criminal law. This article aims to discuss the concept
of sentencing with respect to India.

What is meant by ‘sentence’

“Sentences” are declarations in judgments that specify the legal penalty to be applied to
a certain offence. When the same is put in action, and is operationalized, it would be
termed as ‘punishment’. A sentence is considered to be the predecessor of the actual
inflicting of punishment if any. Any country that has sentencing laws has them in place to
deter crime and punish offenders. The sentencing guidelines represent how society views
and justifies a certain offence. Guidelines for sentencing can be viewed as a method for
determining the appropriate punishment for a certain offence.

Both the legislature and the judiciary in India have not established formal sentencing
guidelines. Numerous committees have realised the importance of well-considered
guidelines. Recognizing the need for such a policy, the judiciary has occasionally laid out
certain principles and criteria that courts should take into account when determining
punishments. It has also been noted that the absence of sentencing guidelines is resulting
in broad discretion, which ultimately results in uncertainty in the awarding of sentences.

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Aim of sentencing
The main objective of a criminal trial is sentencing. When the victim is satisfied, justice
through punishment serves as a symbol for the current and subsequent generations.
Therefore, the ultimate focus of the sentencing policy is to keep an eye on crime and
punish offenders.

The development of civilization brought about many forms of punishment that were
sanctioned by various societies. For instance, the punishment for offences under
Mohammedan law included blood, money, and revenge. For instance, the punishment for
offences under Mohammedan law included blood, money, and revenge. According to
Hindu law, discretionary punishment was required and favoured Brahmins. The use of
harsh trials as a form of punishment was widely known in English law. But penology
steadily changed as society developed. Several judicial systems began to explain their
punishments, and they eventually came to a point where the emphasis was more on
reforming the offender, than on deterring him.

The type of punishment imposed for various offences can be used to determine the
underlying philosophy of any criminal justice delivery system. But it is impossible to
expect everyone in a system like ours, with so many players, engaged besides the accused
and victim, to respond to a specific crime in the same way. For example, the victim
might display more emotion than the judge, who is an absolute stranger to both sides.
The accused may also come to believe that his actions were justified by stressing the
circumstances surrounding them. Judges and other legal professionals are appointed in
order to reach an agreement over a certain incident.

The decision here must consider not only whether a wrong was done or not, but also—and
perhaps more importantly—what must be done in the event that a wrong was done.
There are lots of choices. The best course of action in a victim-centred system would be
to put the victim back in the same situation that existed before the mistake was
committed. This is typically utilised in economic crimes and tort situations. In situations
of physical, emotional, and psychic harm where rehabilitation is rarely achievable, this
cannot be consistently applied. Retribution and rehabilitation are the two choices
available in these situations.

In the former, the system focuses on condemnation of the crime as a more important
rationale for penalising than any other. Rehabilitation, on the other hand, is more
accusation-friendly and advocates reintegrating the subject into society at large.
Deterrence, whose core principle is to stop the same event from occurring again, is
another prevalent justification for punishment.

According to the White Paper (the sentencing policy, which was introduced into the
British parliament), the object of sentencing guidelines should be “dissuading and
safeguarding society from evils”. Not only does a lack of a fair conviction policy violate

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the rights of victims and convicts, but it also breaches the Constitution’s core human
right – the right to be treated equally under the law. It is impossible to entirely eliminate
the judges’ discretionary authority. However, certain guiding principles that limit a
judge’s authority and establish a penalty-based principle can be adopted, allowing the
Indian criminal justice system to take a more rights-based approach.

The aim of a punishment framework should be to reform juvenile delinquents or first-

time offenders, while acting as a deterrent for repeat offenders or habitual offenders. It
is important to strike a balance between the severity and leniency of these penal
provisions. In addition, compensation to victims should be provided. The rationale of
criminal laws may strike a balance between social norms that apply to both the individual
and society as a whole.

Fundamentals of sentencing
Typically, sentencing is considered one of the most important components of criminal
laws and is seen as the State’s most invasive and powerful tool. Sentencing is that stage
of the criminal justice system where the actual punishment of the convict is decided by
the judge. As a result, punishment and sentencing go hand in hand. The main purposes of
punishment are to deter criminal activity and to repress antisocial elements in order to
safeguard society. Theories of punishment suggest that there are four possible goals for
punishment: retribution, prevention, reformation, and deterrence.

The Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian
Evidence Act, 1872 make up the majority of the criminal justice system in India. A
number of special and local laws, such as those prohibiting animal cruelty, defending civil
rights, and counterterrorism, supplement the Indian Penal Code, 1860. It’s crucial to
remember that substantive penal laws can be effective only when the procedural laws for
enforcing them are efficient. The function of the criminal justice system is essentially
this.

Although many factors must be taken into account when determining which acts or
omissions are punishable, who should receive what punishment, and how severe it should
be, these factors include the applicable law, the offender’s role in the commission of the
crime, its nature or severity, the availability of evidence against the accused, how the
judicial authorities will evaluate this evidence, the offenders’ criminal histories, and
eyewitness testimony.

Judges should ideally be interchangeable and mutually consistent, rendering comparable

judgments in comparable cases, preventing anyone from unfairly influencing the judge or
the proceedings in any way. But because the law cannot foresee every circumstance or
determine which laws may apply in a certain circumstance, some discretion is inevitable.
Standard principles of justice and due process, reason, and the specifics of each case are
expected to fill any gaps in the law’s guidance.

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Sentencing in India
The reformative theory is used to administer punishment in India. The punishment
imposed shouldn’t be so severe or so light that it fails to have an effect on the offender
and serve as a wake-up call for others. It is believed that punishment should be
administered in a way that results in changes to a person’s personality and way of
thinking.

Penalties in India were defined under Section 53 of the Indian Penal Code of 1860.

The provision discusses the various punishments that the courts may impose for certain
offences. The following is a list of them:

1. Death
2. Imprisonment for life
3. Imprisonment, which is of two descriptions: Rigorous and simple
4. Forfeiture of property
5. Fine

The fundamental law of the country, the Indian Constitution, has given both the Central
and State governments the authority to pass laws governing criminal justice, criminal
procedure, and preventive detention. In accordance with Articles 72 and 161 of the Indian
Constitution as well as Sections 432 or 433 of the Code of Criminal Procedure, 1973, the
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.

The judges have complete discretion over how sentences are distributed, and it has been
observed that this leads to drastically unequal sentencing practices. In addition, the
Cr.P.C. 1973 gives the judge a lot of latitudes after the verdict has been
reached. Sections 235, 248, 325, 360, and 361 of the Criminal Procedure Code deal with
sentencing.

To ensure that the offender is given the opportunity to speak for himself and offer input
on the sentence to be imposed on him, this section offers a quasi-trial. The reasons given
by the criminal might not be relevant to the offence or be legitimate under the law. It is
merely for the court to gain a sense of the convict’s social and personal background and
determine whether anything will have an impact on the sentencing. A sentence that does
not follow Section 235 (2) may be overturned because it violates natural justice.
However, this procedure is not required in cases where the sentencing is done according
to Section 360.

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The main part of judicial discretion comes in S.360 which provides for 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 offence the punishment of which is not death or life

imprisonment

2. A person below 21 years of age convicted of offence the punishment of which is not
death or life imprisonment

3. A male above 21 years convicted of an offence the punishment of which is fine or

imprisonment of not above 7 years.

Additionally, the court may leave the convict without any punishment at all after a
simple warning if the crime committed is of a nature that the maximum sentence
allowable is 2 years or a simple fine. The court will take into account the different
factors related to the convict in making this decision. The court may also order the
offender to be arrested again if they fail to follow the rules established at the time of
release as described in this section. The offender or the surety must reside or be
regularly engaged within the court’s jurisdiction in order to be released under these
requirements.

The application of Section 360 is mandated by the Code through Section 361, and in cases
when an exception applies, it must be justified clearly. The judge must explain any
instances where the punishment imposed falls short of the minimum required by the
applicable laws. The failure to record the special reason is an irregularity that has the
potential to overturn the judgment on the grounds of injustice. Only trials before the
Court of Sessions and warrants cases are eligible under these rules.

Issues associated with the sentencing system in India

The Supreme Court observed, in Soman v. State of Kerala (2021) that “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.”

The discretion provided for under the existing procedure is guided by vague terms such as
‘circumstances of the crime’ and ‘mental state and age’. It is true that they can be
determined, but the legislature has not specified when these determinations will affect
the punishment. Every crime, for instance, is accompanied with circumstances, but the
court has the discretion to determine which circumstances are mitigating and which serve

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as aggravating. Therefore, if one court finds a certain circumstance to be mitigating,
another judge would still be free to disregard it as irrelevant (apart from its value as a
precedent). Due to this inconsistent application of the law, some judges have abused
their discretion on the basis of their personal prejudices and biases.

Judges in India consider many aspects of the case, such as severity, liability, guilt, and
sentence. This punishment is solely the consequence of the judge’s thinking, personal
bias, and judgment. Section 354(1)(b) of the Criminal Code states that a judge shall state
the reasons for the judgment in an awarded sentence. The law’s solution to this question
led to a specific logic, such as aggravating and mitigating circumstances, in the decision
of the case and in supporting their position regarding the penalty imposed.

Multiple scholarly works on this subject assert that lawmakers should legislate even on
such areas wherein the quantum of punishment to be meted out of the offence is
prescribed. The majority of criminal laws specify the minimum and maximum
punishment/fine that may be imposed in specific circumstances. Complete objectivity in
this case, however, is also not acceptable. No two cases would have the same grounding
in criminal law. This is because various cases may need different punishments depending
on the circumstances surrounding the conduct of the offence, the presence of aggravating
and mitigating elements, and other variables.

After the trial is completed, the need for a sentencing policy does not end. Section 360
and Section 361 govern the release of convicts for good behaviour, and the recording of
special reasons in cases where the orders are passed by a Magistrate of the second class.
Again, every prison authority, each prison circumstance and the type of crime committed
by the offender depends on the concept of good.

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 in order
to reduce ambiguity when imposing punishments. It stated, “The Indian Penal Code
prescribed offences and punishments for the same. For many offences, only the maximum
punishment is prescribed and for some offences, the minimum may be prescribed. The
Judge has wide discretion in awarding the sentence within the statutory limits. There is
now no guidance to the Judge in regard to selecting the most appropriate sentence given
the circumstances of the case. Therefore, each Judge exercises discretion according to
his own judgment. There is therefore no uniformity. Some Judges are lenient and some
Judges are harsh. The exercise of unguided discretion is not good even if it is the Judge
who exercises the discretion. In some countries, guidance regarding sentencing option[s]
is given in the penal code and sentencing guideline laws. There is a need for such a law in
our country to minimise uncertainty in the matter of awarding sentences. There are
several factors that are relevant in prescribing alternative sentences. This requires a
thorough examination by an expert statutory body.”

The Committee advised further that, in order to bring “predictability in the matter of
sentencing,” a statutory committee should be established to lay guidelines on sentencing
under the Chairmanship of a former Judge of the Supreme Court or a former Chief Justice

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of a High Court experienced in criminal law with other members representing the
prosecution, legal profession, police, social scientist and women representative.

In 2008, the Committee on Draft National Policy on Criminal Justice (the Madhav Menon
Committee), reiterated the necessity of developing a policy and prescribing sentence
standards. The Law Minister was mentioned in an October 2010 news story as saying that
the government is looking into establishing a “uniform sentencing policy” in line with that
of the US and the UK to ensure that judges do not impose varying sentences.

The Supreme Court of India, in State of Punjab v. Prem Sagar & Ors (2008), also noted
the absence of judiciary-driven guidelines in India’s criminal justice system, stating, “In
our judicial system, we have not been able to develop legal principles as regards
sentencing. The superior courts, except [for] making observations with regard to the
purport and object for which punishment is imposed upon an offender, had not issued
any guidelines.” The Court stated that the superior courts have come across a large
number of cases that “show anomalies as regards the policy of sentencing,” adding,
“Whereas the quantum of punishment for the commission of a similar type of offence
varies from minimum to maximum, even where the same sentence is imposed, the
principles applied are found to be different. Similar discrepancies have been noticed in
regard to the imposition of fines.”

No formula of a foolproof nature is possible that would provide a reasonable criterion in

determining just and appropriate punishment in the infinite variety of circumstances that
may affect the gravity of punishment.

In Alister Anthony v. State of Maharashtra (2012), the Court held that sentencing is an
important task in matters of crime. “One of the prime objectives of the criminal law is
the imposition of an appropriate, adequate, just and proportionate sentence
commensurate with the nature and gravity of [the] crime and the manner in which the
crime is done. There is no straitjacket formula for sentencing an accused on proof of
crime. The courts have evolved certain principles, the twin objective of the sentencing
policy is deterrence and correction.” What sentence would meet the ends of justice
depends on the facts and circumstances of each case and the court must keep in mind the
gravity of the crime, motive for the crime, nature of the offence and all other attendant
circumstances.

Graduation of punishments
The Indian Penal Code provides us with a broad classification and gradation of
punishments. This has been further carved by various judicial decisions on sentencing.
However, the following drawbacks apply to these court decisions:

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 1. Facts specific: Although these rules are stated as Obiter Dicta, the application
of such rules in the succeeding judgments is unclear. This argument is
illustrated by the use of this test in the case of A. Devendran v. State of Tamil
Nadu (1997). There were three murders in this case. The Supreme Court said
that the trial court was not justified in issuing the death penalty as the accused
had no premeditated plot to kill anyone and the primary goal was to commit
robbery. This case should be compared with Gentela Vijayavardhan Rao v. State
of Andhra Pradesh (1996), in which the appellant burned a bus full of
passengers to death while acting with the intent to rob the vehicle. The
sentence provided by the judges of the lower court was the death penalty for
convict A and 10 years of rigorous imprisonment for convict B. This was
challenged by the convict. The deterrence and retribution theories are
reflected in this verdict.

In both cases, the motive is to rob the victim. However, it has been utilised as a
mitigating factor in one case and an aggravating element in the other. This
demonstrates how the same test has been used in conflicting ways.

2. Not followed by lower courts: Lower courts do not adhere to these rules since
they are not legally required to do so. Precedents are typically disregarded or
distinguished from the current factual situation so as to give the judge his space
to rule on the case.

3. More of a legislative job: It is the job of the legislature to make rules and of
the judiciary to interpret and enforce it. It would not be fulfilling or correct to
expect and allow the judges to frame the rules by themselves.

4. Another reason the judiciary should not frame the rules is that it once again
comes down to the whims and fancies of the judge framing it. This would
merely be a manifestation of the idea that one judge had superiority over all
others.

Andrew von Hirsch proposed that while determining proportionality, the process can be
divided into steps in order to reach a sentence. These four steps are:

1. What interests—physical integrity, financial security and comfort, freedom from

humiliation, privacy, and autonomy—are at risk or infringed in the typical
criminal case?

2. Effects of violating such interests on a typical victim’s standard of living:

minimum well-being, adequate well-being, significant improvement

3. Culpability of the offender

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 4. Remoteness of the actual harm as seen by a reasonable man

Depending on which of the following methods one chooses, different factors determine
responsibility.

1. Determinism: When external causes, such as self-defence or duress, control a

person’s behaviour. However, most people have enough autonomy to choose their own
course of action, therefore this won’t always be true.
2. Social and familial background: Low family income, large family, parental
criminality, low intelligence and poor parental behaviour.
3. Individuals are significantly impacted by economic, educational, and employment
policies. They have negative effects including deprivation and marginalisation, which
encourage the emergence of criminals in society.
The main criticism of this process is that it once more gives the judge broad discretion in
evaluating the degree of culpability. The overall effect is that sentencing policy continues
to be a mess, with several well-known cases simply elucidating general rules rather than
offering courts a comprehensive standard by which to determine the wrongdoers.

Need for sentencing in India

In India, there is no standard method for imposing sentences. A statute or set of
guidelines that balances and outlines the consideration to be given as to the aggravating
as well as the mitigating elements involved in the committing of an offence will enable
the legal system in meting out the accused the appropriate penalty. Additionally, it will
also be in parlance with the common law countries from where we have borrowed most of
the laws.

Uncertainty of sentencing

Different provisions of the IPC govern the punishment and sentencing aspects for various
offences. The sections specify the minimum and/or maximum penalties that may be
imposed for the offences. The difference between these two ranges, however, offers
judges considerable room in deciding the punishment in cases where a sentencing range is
available and broad discretion in cases where it is not, for instance, in cases of theft
where no maximum punishment is specified. As a result, the sentencing process is
unpredictable because some Judges are lenient while others are harsh in their judgment.
Hence, there is no certainty or predictability in the quantum of punishment and
sentencing that could be granted to the offender. The same was also recognised by
the Malimath Committee in the year 2003, which was reasserted by the Madhav Menon
Committee suggesting the need for a statutory framework for sentencing guidelines in
India.

Appeals

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India has witnessed an increase in appeals as a result of the lack of any laws that regulate
sentencing. The party appealing believes that the Judge may have had a prejudicial
opinion while passing judgment on the issue of the sentence because of the broad
discretion granted to judges, which is one of the reasons for doing so.

Affects the fundamental rights of the offender

All citizens in India are guaranteed the right to equality under the constitution. The right
to equality, which ensures that everyone is treated equally before the law, as well as the
right to a quick trial are both protected by Article 21 of the Constitution. However, in the
absence of sentencing guidelines, the Judges may pass judgments where in the case of
similar facts the consequences might differ thus affecting the offender’s entitlement to
both rights.

A proper set of sentencing guidelines will therefore aid in guaranteeing uniformity and
the administration of justice, thereby building public confidence in the legislature and
the judiciary.

Conclusion
Bail is an important check and balance to ensure that no innocent person is punished until
proven guilty. But the complicated system of bail in the country’s criminal law system
often fails to appreciate it. Grant or refusal of bail depends on factors that are remotely
connected with the merit of the case. The recommendations of the Law Commission in
its 268th report on bail reforms are important and they should be implemented so that a
fair and transparent system of bail evolves in our criminal law system. This would go a
long way in upholding the rights of life and liberty enshrined in the Indian Constitution.

The Indian criminal justice system urgently needs an appropriate sentencing policy given
the rising crime rates in the country. The goal of introducing such a policy is to reduce
the subjectivity that judges use to a minimum while still allowing them the necessary
discretion needed in the interest of justice, hence it must not be a strict one. The courts
in India currently have to rely on precedents, which also vary depending on the judge’s
discretion and the existence of additional aggravating and mitigating circumstances
surrounding the offence. If these rules are applied, this will prove to be very helpful. The
intention of the sentencing guidelines is to create a just and equitable society in which
the rights of victims and criminal defendants, who are now being weakened by the
sentencing system, are protected.

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