JAMIA HAMDARD

The Code of Criminal Procedure, 1973

ASSIGNEMENT ON
SENTENCING POWER OF COURTS

SUBMITTED TO - PROF. SHOAIB

SUBMITTED BY - MIRZA SHAQUIB
SEMESTER - 7th SEM(2022)
SECTION - A
DEPARTMENT - LAW

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 ACKNOWLEDGEMENT
I am using this opportunity to express my gratitude to everyone who supported me throughout
the course of this assignment. I am thankful for their aspiring guidance, invaluably constructive
criticism and friendly advice during the project work. I am sincerely grateful to them for sharing
their thankful and illuminating views on a number of facts related to the assignment.

I express my warm thanks to SHOAIB Sir for giving this opportunity.

I would also like to thank my project external source and all the sources which provided me with
the information being required and conductive conditions for thisassignment

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INTRODUCTION:-
Indian Judiciary is one of the most efficient Judicial systems in the world. The Judiciary derives
its powers from the Constitution of India. The existence of Courts is required to check the misuse
of the powers conferred by the Legislature or the Executive. The Indian Judiciary is the guardian
of the Constitution of India, along with being a custodian of the Fundamental Rights of the
citizens. The Judiciary is well established with quite a lengthy and complex hierarchy of courts.
The judicial system has been established in such a way so that it caters the need of each and
every person of the country. The Judicial system in India is in the form of a pyramid, with the
Supreme Court being at the top of the hierarchy. The hierarchy has been created in a manner
that it is possible for a person even from a remote area to approach the courts to get their disputes
resolved. And the courts have been given number of powers and functions to use effectivily for
day to day use keeping in mind, what required dealing with the cases usualy the courts in India
oversees during the trails and procedure.

Hierarchy of Criminal Courts:

The hierarchy of the Criminal Courts in India is as follows:-

 The Supreme Court of India – The Supreme Court of India, being the apex court of
India, was established under Article 124 of Part V and Chapter IV of the Constitution of
India.
 The High Courts of India– The high courts are at the second level of the hierarchy.
They are governed by Article 141 of the Constitution of India and are bound by the
judgement of the Apex Court.
 Lower Courts of India have been classified as follows.

Metropolitan Courts

 Sessions Court
 Chief Metropolitan Magistrate
 First Class Metropolitan Magistrate

District Courts

 Sessions Court
 First Class Judicial Magistrate
 Second Class Judicial Magistrate
 Executive Magistrate

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Object of Sentencing
In Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652. The Object of
sentencing policy should be to see that crime does not go unpunished and victim of crime as also
the society has satisfaction that justice has been done to it.

Different Theories of Punishment:

Following are the main theories of punishmentsto offenders:

(i) Deterrent: (capital punishment or such other exemplary / severe punishments which deter
others to commit offences)

(ii) Preventive: (disabling the offender from committing crimes again by detaining or
imprisoning him for life or for other terms)

(iii) Retributive: (returning evil for evil, eye for eye, tooth for tooth, limb for limb, life for life)

(iv) Reformative: (probation, TRC, admonition etc.)

(v) Expiatory: (repentance, penance etc.)

Sentencing Aspect related to some of the Punishment theories:

Rehabilitary & reformative aspects in sentencing: Crime is a pathological aberration. The
criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-
culture that leads to ante-social behaviour has to be countered not by undue cruelity but by re-
culturization. Therefore, the focus of interest in penology in the individual and the goal is
salvaging him for the [Link] infliction of harsh and savage punishment is thus a relic of past
and regressivetimes. The human today vies sentencing as a process of reshaping a person who
has detetiorated into criminality and the modern community has a primary stake in the
rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an
'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the
person merely produces laceration of his mind. If you are to punish a man retributively, you must
injure him. If you are to reform him, you must improve him and, men are not improved by
injuries.

Reformative approach: The reformative approach to punishment should be the object of the
criminal law. In order to promote rehabilitation of the offenders without offending their
communal conscience and to secure social justice to them, the courts should prefer reformative
approach towards the offenders instead of subjecting them to harsher punishments.

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Relevant considerations for determining quantum of sentence:
The courts should take into consideration the following factors while determining the quantum of
sentence to be awarded against the convicts:

(i) Nature and gravity of offence.

(ii) Penalty provided for the offence.
(iii) Manner of commission of offence.
(iv) Poportionality between crime & punishment.
(v) Age and sex of the offender Page 3 of 27.
(vi) Character of the offender.
(vii) Antecedents (criminal history etc.)
(viii) Possibility of reforms.
(ix) Impact of offence on social order and public interest.
(x) The personality of the offender as revealed by his age, character, antecedents and other
circumstances and the tracebility of the offender to reform must necessarily play the most prominent
role in determining the sentence. A judge has to balance the personality of the offender with the
circumstances, situatiions and the reactions and choose the appropriate sentence to be imposed.

What is ‘Proper sentence’?

Deo Narain Mandal Vs. State of UP (2004), sentence should not be either excessively harsh or
ridiculously low. While determining the quantum of sentence, the court should bear in mind the
principle of proportionality. Sentence should be based on facts of a given case. Gravity of
offence, manner of commission of crime, age and sex of accused should be taken into account.
Discreton of Court in awarding sentence cannot be exercised arbitrarily or whimscally.

Sentences which can be passed by Courts

Sentences which can be passed by the various courts (section 28 of CrPC):

 Any sentence authorised by law can be passed by the High Court. 

 A sessions or additional sessions Judge has the authority to pass any sentence
authorised by law. But, while passing death sentence prior permission from High
Court is required. 
 An Assistant Sessions Judge has the authority to pass any sentence which has been
authorised by law. Such judge cannot pass a death sentence, life imprisonment or
imprisonment for more than 10 years. 

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Sentences passed by the Magistrates (Section 29 of CrPC):
The Court of Chief Judicial Magistrate is authorised to pass any sentence approved by law
except for death sentence, life imprisonment or imprisonment for more than seven years.

 The first class Magistrate is eligible to pass a sentence of imprisonment for a term of
not more than three years, or fine not exceeding ten thousand rupees or both.
 The Second Class Magistrate may pass a sentence of imprisonment for a term not
more than one year, or fine or both. The fine imposed cannot exceed five thousand
rupees.
 The Chief Metropolitan Magistrate has the powers of that of a Chief Judicial
Magistrate as well as that of a Metropolitan Magistrate, in addition to the powers of
the First Class Magistrate.

The sentence for default of fine (Section 30 of CrPC):

According to this section, the Magistrate has the power to pass imprisonment for default of
payment of fine as specified by law. But the following conditions need to be satisfied.

 The term should not go beyond the ambit of the powers of the Magistrate
(under section 29).
 The term should not exceed one-fourth of the term of imprisonment which the
Magistrate is competent to award only if imprisonment awarded, is a  part of the
substantive sentence as punishment for the offence.
 The imprisonment sentenced under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate
under section 29.
The sentence in cases of conviction of several offences at one trial (Section 31)

According to this section, when a person is convicted for two or more offences, at one trial, the
Court may sentence him for such offence in one trial, subject to the provisions of section 71.

 The court also has the power to award several punishments. Such sentences of
imprisonment may commence after the expiration of other punishments. Unless courts
direct such punishments run simultaneously with each other.  In the case of
succeeding sentences, it is not necessary for the Court to send the offender before
High court. If the aggregate punishment for several offences exceeds the power of the
court to inflict the punishment for a single offence. Provided that.
 The imprisonment should not exceed a term of fourteen years.

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  the aggregate punishment also shall not exceed twice the amount of punishment
which the Court is competent to inflict for a single offence.
For appeal, the aggregate punishment passed against him under this section is normally assumed
as a single sentence.

20 years RI awarded for different offences in violation of Sec. 31 CrPC set aside by the Supreme
Court: Interpreting the provisions of Section 31 CrPC, it has been held by the Supreme Court
that where the accused was convicted for several offences and 20 years aggregate sentence was
consecutively awarded by the M.P. High Court, the same was illegal as u/s 31 CrPC the
convict/accused could not have been sentenced to imprisonment for period longer than 14 years
and sentence of 20 years rigorous imprisonment being illegal was set aside by the Supreme
Court, In Case Chatar Singh vs. State of M.P., AIR 2007 SC 319.

Types of sentence
There are four basic types of sentence that a court may impose on offender:

Discharges

 Discharges are given for the least-serious offences such as very minor thefts. A discharge
means that the person is released from court without any further action. But they will still get
a criminal record.
 The court may give an offender an absolute discharge. This means that the court has
decided not to impose a punishment because the experience of going to court has been
punishment enough.
 The court can also give a conditional discharge. This means that, if the offender commits
another crime, they can be sentenced for the first offence and the new one.
 A discharge can be combined with an order for disqualification, payment of compensation or
court costs.

Fines

 Fines are the most common type of sentence given by the courts. That is because they are
given for lower-level crimes such as minor driving offences or minor theft.
 The court sets the amount of a fine after considering how serious the offence is and how
much money the offender can pay based on their income. Fines can be given to organisations
or companies as well as people.

Custodial sentences

Imprisonment is the most severe sentence available to the courts. Custodial sentences are
reserved for the most serious offences and are imposed when the offence committed is “so
serious that neither a fine alone nor a community sentence can be justified for the offence”

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(section 230(2) of the Sentencing Code). A custodial sentence may be imposed where the court
believes it is necessary to protect the public. The length of the sentence depends on the
seriousness of the offence and the maximum penalty for the crime allowed by law. Parliament
has also introduced minimum sentences for some serious offences that must be imposed unless
there are exceptional circumstances:

 seven years’ imprisonment for a third Class A drug trafficking offence

 three years for a third domestic burglary
 five years for certain firearms offences
 six months for a second offence of possessing a weapon
 six months for threatening with a weapon.

Types of custodial sentence

There are a number of different types of prison sentence that the courts can impose:

 Suspended sentences
 Determinate sentences
 Extended sentences
 Life sentences

Community sentences

A community sentence combines some form of punishment with activities carried out in the
community. It could mean, for example, that an offender must:

 carry out up to 300 hours of unpaid work, for example removing graffiti
 have alcohol or drug treatment to help tackle the reasons why they have committed crimes in
the first place
 keep to a curfew – which aims to keep them out of trouble, or
 Live at a particular address or not travel abroad.

There are 13 possible requirements offenders might be expected to meet and offenders can be
given only one or a combination.

The aim of the requirements is to punish offenders, change offenders’ behaviour so they don’t
commit crime in the future, and make amends to the victim of the crime or the local community.

Other Instances relating to Sentencing:

 Delay in disposal of appeal no ground for awarding sentence below minimum prescribed :
In the matter of conviction of an accused under Section 7 & 13(1)(d)(ii) of the P.C. Act,

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 1988, it has been ruled by the Hon'ble Supreme Court that delay in disposal of appeal is no
ground for awarding sentence below minimum prescribed.
 Loss of service due to conviction no ground for awarding sentence below minimum
prescribed : : In the matter of conviction of an accused under Section 7 & 13(1)(d)(ii) of the
P.C. Act, 1988, it has been ruled by the Hon'ble Supreme Court that delay in disposal of
appeal is no ground for awarding sentence below minimum prescribed. Loss of job by the
delinquent due to conviction and the quantum of amount taken as graft is also immaterial
for reduction of sentence below the minimum prescribed.
 In the event of compromise, sentence can be reduced by court even in noncompoundable
offences: Section 320(9) CrPC explicitly prohibits any compounding except as permitted
under Section 320 CrPC. But in the event of a settlement or compromise between the
parties, quantum of sentence can be reduced by the court even in serious non-
compoundable offences. Mention in case of Murali Vs State, (2021) 1 SCC 726.
 Awarding inadequate sentence illegal : The Supreme Court, in many recent decisions, has
declined to follow the theory of reformation of the accused persons as propounded by the
former Supreme Court Judge Hon'ble Krishna Iyer in Phul Singh Vs. State of Haryana,
(1979) 4 SCC 413 and has ruled that awarding lesser sentence than the minimum
prescribed is illegal.
 Long pendency of case not a ground to award lesser sentence: Just and appropriate
sentence should be imposed by courts after giving due consideration to the facts and
circumstances of each case. Long pendency of case is no ground to award lesser sentence.
 Court cannot award less than minimum sentence provided by statute: Offence of atrocity
was committed by the accused u/s 3(1)(x) of the SC/ST (Prevention of Atrocities) Act,
1989. The trial court had convicted and sentenced the accused with imprisonment for six
months and Rs. 500/- as fine. On appeal, the High Court reduced the minimum sentence of
six months to the period already undergone by the accused in jail and enhanced the fine
from Rs. 500/- to Rs. 3000/-. The Supreme Court set aside the said penalty awarded by the
High Court and restored the penalty awarded by the trial court. The Supreme Court further
held that court cannot impose less than minimum sentence contemplated by the statute.
Even the provisions of Article 142 of the Constitution of India cannot be resorted to impose
sentence less than the minimum sentence provided by law. Mention in case, State of
Madhya Pradesh Vs. Vikram Das, AIR 2019.
 Illiteracy not a ground for awarding lesser sentence : Sentence u/s 376 IPC less than
minimum prescribed cannot be awarded on the ground that the accused was rustic and
illiterate labourer belonging to scheduled tribe. Impact of offence on social order and
public interest cannot be lost sight of while exercising such discretion.

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CONCLUSION:-
The Constitution of India holds the absolute authority and value in India. Hence, it becomes
necessary to provide safeguards for its protection and therefore, the courts have been vested with
various sentencing powers to keep a check and to ensure that no authority misuses its powers and
encroaches upon others domain. The courtrooms are the places where people can take their
grievances and get their disputes resolved upon the failure of other systems of the Government.

The hierarchy of the Courts has been developed in such a manner that it becomes easy for
everyone who is living in this country to knock the doors of the courts whenever a dispute arises.
It provides a platform for the citizens for appealing to higher courts, in case they feel that justice
has been denied to them by the lower courts. India is a country with a huge population in it.
Therefore, it needs this existing system of Judiciary to prosper and makes its process easier, so
that people can approach it easily so that Justice is given to all citizens of this country.

Referrences:
 The Code Of Criminal Procedure,1973
 [Link]
 S.S Upadhaya, “Principles of Sentencing”

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