SENTENCING PROCESS

Introduction:
 Sentencing procedure deserves an articulate and judicial
administration.
 In this regard, all courts are equally responsible. Sentencing process
should be so complied with, that enough information is generated to
objectively inform the selection of penalty.
 The selection of penalty must not require a judge to reflect on his/her
personal perception of crime.

Meaning of sentencing process:

Literally sentencing: process is the combination of two words, namely,

sentencing and process.
 The word ‘sentence’: is derived from the Latin word 'sententia' and
 'Process' is derived from 'processus'.
 So sentencing process means, a procedure adopted by the judiciary,
while deciding the sentence of convicted person.

According to Encarta Dictionary 2005, "sentence" means "a judgement by a

court specifying the punishment of somebody convicted of crime" and
"sentencing" means final phase of a trial, in which a sentence is arrived at and
pronounced, or the act of making such a pronouncement. The word "process"
means "a series of actions directed toward a particular aim" or "to deal with
somebody according to an established procedure".

According to Cambridge Dictionary, 'sentence' means a punishment given

by a judge in court to a person after they have found guilty of doing something
wrong and 'process' means a series of actions that you take in order to achieve
a result."

After study of dictionary definitions, it may be said that 'sentencing process'

is the final phase of trial, where the judge has to play an important role in
awarding the sentence. After arrived at the decision of conviction, the court
has to follow sentencing process. Sentencing process is the series of actions,
which followed by the court in awarding of correct and just, quantum of
sentence.

As every faces of the people are different, not matching to each other’s.
Similarly, facts of the cases are also different and not matching, but may be
similar or nearby. The Indian Penal Code, 1860, and/or Special law set out the
punishment or penalty to be awarded by the Judge. For some offences, the
judge can decide how long and what type of sentence to be given.

Factors to be considered in sentencing process:

 After hearing argument of both the sides, namely, prosecution and

defence, the court has to conclude the whole proceeding and has to take
the decision of the trial. If, court concludes that, the prosecution has
failed to prove the accusation or defence is able to prove the defence,
then the judge has to make decision of acquittal.

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  On the other hand, if the court satisfied offence and court has then der,
in that case court has to use sentencing process, by using the series of
actions, in deciding the correct sentence. In sentencing process
following the factors are to be considered:

1. Court shall have the power to award sentence: Every court is having its
powers and jurisdiction under statute, so before delivering the sentence, it
is the duty of the court to award the sentence within the power, if offender
is deserving more sentence then the power of that court, in such
circumstances the case shall be referred to the competent court.

2. Hearing of accused on the question of sentence: It is the mandatory duty

of the court to hear the accused on the question of the sentence. This duty
is imposed on the Court of Session by section 235 (2) and on the
Magistrate by section 248 (2) of the Code, according to these sections if
the accused is convicted, the Judge/Magistrate shall, hear the accused on
the question of the sentence.

3. Question of previous conviction: Where in any case, a previous

conviction is charged and the accused does not admit that he has been
previously convicted as alleged in the charge. The Magistrate may, after he
has convicted the said accused, take evidence in respect of the alleged
previous conviction and shall record a finding thereon. But, no such charge
shall be read out by the Judge/Magistrate nor shall the accused be asked to
plead thereto nor shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and until the accused
has been convicted.

4. Benefit of doubt goes in the favour of convict: As it is the rule that

benefit of doubt shall go in favour of convict person only. If there is doubt
on the nature of offence that falls under two offences then lesser one
should be considered.

5. Purposes of punishment to be considered according to nature of

offence: While a judge sentencing, he must consider the purpose of
sentencing, it may be a. specific deterrence: Specific deterrence considers
whether or not the accused needs to be prevented from committing further
offences or crimes.
b. general deterrence: General deterrence means that everyone should
know what type of sentence will be given if anyone commits this type
of offence or crime
c. Rehabilitation of the offender: Rehabilitation helps the offender to
change his or her behavior to prevent further offences. and
d. The protection of the public are important considerations: The
judge must decide if the offender needs to be kept away from the
public.

6. Court shall not consider more than prescribed punishment:

 Not to award more punishment: The court is bound by the rule of
law that no one can be awarded more punishment than provided by
the enforceable law, on the date of offence committed.
 Not bound to impose minimum punishment: But if the court is not
bound by express provision of enforceable law to impose minimum

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 punishment, then it is at the judicious discretion of the court to
impose minimum sentence.
 If alternative punishment is provided then the lower degree of the
punishment shall be awarded.
 But the court may award up to maximum sentence of the offence
provided by the enforceable law with reasons.
 In civil suit the claim made by the applicant is the higher degree of
suit.

7. Lower degree of punishment is the rule and higher is exceptional:

 The court has to ask itself that, why lower degree of punishment
provided by statute of the alleged offence cannot be awarded to the
offender.
 If the court arrived at the conclusion that alleged offence is provided
punishment for imprisonment in the option of fine, then first it has to
consider the fine only.
 If nature of offence and character of offender demands that, he
should not be awarded only with fine; in that case judge has to think
about the alternative punishment of the alleged offence.
 Court can award maximum sentence also, if it desires in the
circumstances, but rule is that while awarding high degree of
sentence then it is duty of the court to explain why lower degree of
sentence cannot be awarded.
 It is not only the mere obligation of the court but it is the rule
established by the law and right of the accused.

8. Alternative sentence to imprisonment:

 The foremost duty of the court is to check the number of offence
committed by the offender, if he is first offender, then such offender
is liable to be released on admonition under section 3 or release on
probation of good conduct under section 4 of the Probation of
Offenders Act, 1958 and section 360 of the Code.
 If, the judge finds that such offender cannot be given benefit of
probation and the offender is below the age of 21 years or woman
then court has to explain why the benefit of probation cannot be
awarded.
 This provision is mandatory, imposed by the section 6 of the
Probation of Offenders Act and section 361 of the Code beyond this
fine, restitution and compensation.

9. Other factors:
a. Considered to include the presence or absence of a criminal record,
b. the life-style of the offender,
c. attitude and history of the offender,
d. the impact on the victim,
e. the gravity of the offence, and
f. He circumstances concerning the commission of the offence.
 The judge might impose the sentence immediately or the judge might
ask for more information about the accused.
 In the latter case, probation officers would prepare a pre-sentence
report. The judge can also listen to the victim of the crime and should
consider pre-sentence report with victim impact statement.

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(a) Pre-sentence report: A pre-sentence report states
1. the age,
2. education,
3. family support,
4. employment,
5. health problems,
6. addictions, and
7. previous convictions of the offender.
It may include interviews with people close to the offender such as family,
friends, a teacher, or an employer. The report helps the judge to learn
more about the offender.

(b) Victim impact statement: Before deciding the sentence, the judge shall
consider the victim's statement. The statement must be in written form and it
must be made by the person to whom harm was done or be made by a person
who suffered physical of habitational loss as a result of the commission of the
offence. If the victim is dead, ill, or incapable of making the statement, then a
relative of that person may make the statement.

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 Plea Bargaining

Meaning and Definition:

 The term "plea bargaining" is not defined under any Statute but it
literally means "bargain with accused person in pleading him guilty"
 According to Albert W. Alschuler "plea bargaining consists of the
exchange of official concessions for a defendant's act of self-
conviction",
 According to Peter Clark, "Plea bargaining is an agreement by the
accused to plead guilty in return for the promise of some benefits".
 But, according to Robert M Wilson, the plea bargains are legal
transactions in which a defendant pleads guilty to a lesser charge or
pleads guilty to the original charge in exchange for some other form of
leniency.
 According to Encyclopedia of Britannica 2005, "Plea bargaining is
process in which defendant and prosecutor negotiate mutually
acceptable settlement of a case; usually defendant pleads guilty to only
one or some of many counts in a multi-count suit, or pleads guilty to a
lesser charge; in return prosecutor offers concessions such as sentence
reduced in length or severity, or reduced number of counts; praised
because of its promptness.

Reorganization of Plea bargaining:

 Bargaining outside the court, is recognized under almost all Criminal
Judicial Systems up to some extent.
 In India: it is also recognized in India, which is called settlement in the
cases where the offences are compoundable under section 320 of the
Code but not in other cases.
 The judiciary never can be a party to the bargaining for plea guilty. The
function of judiciary is to convict with the appropriate punishment. It
is the judge's discretion to give him lesser punishment according to
offence, but he is not at liberty to punish him with nominal
punishment as a result of plea bargaining.
 The discretion means judicial discretion, not at the discretion of
judge's arbitrariness. Here, we are concerned with the meaning of plea
bargaining in the strict sense. In 2006, the Legislators have inserted in
the Code, strict sense of "plea bargaining" through the Criminal Law
Amendment Act, 2005, (2 of 2006), which came into force w.e.f. 12th
April, 2006.

The supporters of "plea bargaining" claim that, this process makes the court
proceeding speedier and guarantees the conviction. On the other hand,
opponent believes that it prevents justice from being served.

(a) Judicial recognition in USA:

In America, plea bargaining is no more than the offering of incentives to

waive trial rights guaranteed by the Constitution. Given the Constitutional
conditions, one might well have expected Supreme Chustudion bargaining
unconstitutional. The che American to accept the However the when it

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invalidated a statutory for appeared Bargaining. However, the court was
destined to uphold and justify the practice of plea bargaining in subsequent
deendes,

The Supreme Court of America refused to invalidate the practice of plea

bargaining, asserting that the practice benefited both sides and that a guilty
plea suggested some hope for success in rehabilitation. According much
Reight to State's interest in the rapid and efficient disposition of cases effected
by plea bargaining, the Chief Justice Burger wrote for the court: "the
disposition of the criminal charges by agreement between prosecutor and the
sccused, sometimes loosely called 'plea bargaining', is an essential component
of administration of justice. Properly administered, it is to be encouraged. If
every criminal charge were subjected to full scale trial, the State and the
Federal Government would need to multiply by many times the number of
judges and court facilities". He added "it is not only an essential part of the
process but a highly desirable part for many reasons"." Plea bargaining has
become extremely common place. Today approximately 85 to 90% of all
criminal cases are settled through plea bargains.

Constitutional validity of plea bargaining in India:

The Hon'ble Supreme Court has held that plea bargaining is not "procedure
established by law". The procedure of plea bargaining is unreasonable, unfair,
unjust, hence violating Article 21 of the Constitution. It would have the effect
of polluting the pure fount of justice, because it might induce an innocent
accused to plead guilty to suffer a light and inconsequential punishment rather
than to go through a long and arduous criminal readministration justice our
cumbrous and stem of administration of justice. Again, the Hon'ble Supd
unsatisfactory that where by reason of plea bargaining the accused pleads
guilty and was convicted and sentenced by Magistrate acting upon his plea of
guilty, the enhancement of sentence by the appellate or revisional court in
appeal or by acting on plea of guilty would not be reasonable, fair and post it
would be clearly violative of Article 21 of the Constitution to induce or lead
an accused to plead guilty under promise or assurance that he would be let off
lightly than in appeal or revision to enhance the sentence, the court of appeal
or revision should, in such a case, set aside the conviction and sentence of the
accused and remand the case to the trial court so that the accused can be
charged and if he is found guilty, proper sentence can be passed against him."

The Criminal Law (Amendment) Act, 2005 has inserted plea bargaining:
Section 4 of the Criminal Law (Amendment) Act, 2005, has inserted, the
provisions relating to plea bargaining as a new chapter XXI-A (twelve
sections 265A to 265L) in the Code of Criminal Procedure, 1973. The
provisions of chapter are as follows - (i) Application of plea bargaining:
Application for plea bargaining may be filed: (a) Where a report of police
officer after on completion of investigation, alleges that the accused has
committed the offence punishable up to seven years of imprisonment (but not
punishable with death sentence or imprisonment for life); or (b) a Magistrate
has taken cognizance of an offence on complaint, punishable up to seven years
of imprisonment (but not punishable with death sentence or imprisonment for
life); and after examining the complaint and witnesses, issued the process
against the accused.

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(ii) Restriction on plea bargaining Application of plea bargaining cannot be
allowed in: (a) socio-economic offences, (b) offences against woman, or (c)
any offence against children below the age of 14 years. This section further
states that plea bargaining shall also apply to juvenile or child.

(iii) Procedure for plea bargaining: Person accused of an offence may file
an application for plea bargaining in the court, where the trial is pending. Such
application shall contain a brief description of the case relating to which the
application is filed including the offence to which it relates and shall be
accompanied by an affidavit shown by the accused stating that he has
voluntarily preferred, after understanding the nature and extent of punishment
provided under the law for the offence, the plea bargaining in this case and
that he has not previously been convicted by a court in a case in which he had
been charged with the same offence. On the receipt of such application the
court shall issue notice to the Public Prosecutor or the complainant of the case,
as the case may be, and to the accused to appear on the date fixed for the case.

When Public Prosecutor/complainant of the case and the accused appear on

the date, the court shall examine the accused in camera, where the be present,
to satisfy itself that the has filed the application voluntarily and where-

(a) The court is satisfied that the application has been filed by the accused
voluntarily, it shall provide time to the Public Prosecutor complainant or the
case, and the accused to work out a mutually satisfactory disposition of the
case which may include giving to the victim, by the accused, a compensation
and other expenses during the case and thereafter fix the date for further
hearing of the case.

(b) If the court finds that the application is filed involuntarily by the accused
or he has previously been convicted by the court in a case in which he had
been charged with the same offence, it shall proceed further, trial from that
stage.

(iv) Mutually satisfactory disposition: In working out a mutually satisfactory

disposition, the court shall follow the following procedure -

(a) In a case instituted on a police report, the court shall issue notice to the
Public Prosecutor, the police officer investigated the case, the accused and the
victim of the case to participate in the meeting to work out as satisfactory
disposition of the case.

(b) In a case instituted otherwise than on police report, the court shall issue
notice to the accused and the victim of the case to participate in meeting to
work out a satisfactory disposition of the case.

Throughout such procedure of working out satisfactory disposition of the case,

it shall be the duty of the court to insure that the entire process is completed
voluntarily by the parties participating in the meeting. The accused, if he so
desires, may participate in such meeting with his pleader, if any engaged in
the case.

(v) Report of mutually satisfactory disposition to be submitted before the

court: Where in a meeting a satisfactory disposition of the case has been

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worked out, the court shall prepare a report of such disposition, which shall be
signed by the presiding officer of the court and all other persons who
participate in the meeting. If no such disposition has been worked out, the
court shall record such observation and proceed further according to law.

(vi) Disposal of the cases: Where the satisfactory disposition of the case has
been worked out, the court shall dispose in the following manner -

(a) Award compensation to the victim The court shall award the compensation
to the victim in accordance with disposition and hear the parties on quantum
of sentence, release of the accused on probation of good conduct or after
admonition under section 360 or for dealing with the accused under the
Probation of Offenders Act, or any other law for the time being in force.

(b) Release on probation: After hearing the parties, if the court is of the view
that provisions of probation are attracted in the case of accused, it may release
the accused on probation or provide the benefit of such law.

(c) If minimum sentence is provided: If, after hearing the parties, the court
finds that minimum punishment has been provided under the law for the
offence committed by the accused, it may sentence the accused to half of such
minimum punishment.

(d) If no minimum sentence is provided: If, after hearing the parties, the court
finds that the offence committed by the accused is not covered by the above
provision, then it may sentence the accused to one-fourth of the punishment
provided or extendable, as the case may be, for such offence.

(vii) Judgement of the court: The court shall deliver its judgement in terms of
the above in open court and same shall be signed by the Presiding Officer of
the court.

(viii) Finality of the judgement: The judgement delivered by the court shall be
final and no appeal (except the special leave petition under Article 136 and
writ petition under Articles 226 and 227 of the Constitution) shall lie in any
court against such judgement.

(ix) Power of the court in plea bargaining: A court shall have, for the purposes
of discharging its functions, under this chapter, all the powers vested in
respect of bail, trial of offences and other matters relating to the disposal of a
case in such court under this code.

(x) Period of detention undergone by the accused to be set off against the
sentence of imprisonment: The provisions of section 428 shall apply, for
setting off the period of detention undergone by the accused against the
sentence of the imprisonment imposed under this chapter, in the same manner
as they apply in respect of the imprisonment imposed under the code.

(xi) The statement of the accused not to be used: The statement or facts stated
by an accused in an application for plea bargaining shall not be used for any
other purposes.

(e) Position of plea bargaining after Amendment:

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Of course, a new chapter on plea bargaining making plea bargaining in cases
of offences punishable with imprisonment up to seven years has been included
in the Code. A consideration of Chapter XXI-A dealing with plea bargaining
will show that certain procedure prescribed for plea bargaining under Sections
265-A to 265-L of the Code are to be complied to make it a valid plea
bargaining. Unless the said procedure contemplated in Chapter XXI-A is
followed, the same cannot be a valid disposal on plea bargaining. Even though
'plea bargaining is available after the introduction of the said amendment, in
cases of offenses which are not punishable either with death or with
imprisonment for life or with imprisonment for a term exceeding seven years,
the chapter contemplates a mutually satisfactory disposition of the case which
may also include giving compensation to the victim and ether expenses. The
same cannot be done without involving the victim in the process of arriving at
such settlement.

(1) Case remitted for following correct procedure for plea bargaining: In a
case, the court has observed that the plea bargaining was not made in
accordance with the procedure contemplated under the said chapter and the
plea of guilty was made even before the introduction of the said chapter
legalizing plea bargaining. Therefore, as rightly contended that the plea of
guilty made by the respondents was against Article 21 of the Constitution of
India and that hence the respondents are at liberty to withdraw the said plea of
guilty and seek trial of the case. In view of the same, Madras High Court
comes to the conclusion that it becomes necessary to set aside the judgment of
conviction pronounced by the trial court based on the plea of guilty made by
the respondents and remit the matter back to the trial court for fresh disposal
according to law with an observation that the accused persons may avail the
plea bargaining facility as per Chapter XXI-A of the Code, in which case the
learned Judicial Magistrate, Mettupalayam shall give an opportunity to the
victim (petitioner herein).1"

(ii) Case remitted to accept plea bargaining: In the present case alleged
offences, said to have been committed by the petitioners, are sections 420, 468
and 471 of IPC, and all the three are not punishable with imprisonment for a
period more than seven years. Section 265B of the Code provides that an
application for 'plea bargaining' can be moved either by the accused or by the
prosecutor. It requires that it the application is moved by the accused, it shall
be accompanied with the affidavit that he (accused) had made application
voluntarily and that he has not been previously convicted. After receiving such
application, the Magistrate is required to issue notice or hear public prosecutor
and the complainant (victim). Under sub-section (4) of Section 265B of the
Code, accused is to be heard 'in camera' by the court, to satisfy it that the
accused has voluntarily moved such an application. It is nobody's case that the
application is not voluntary. As to the compensation required to be paid by the
accused to the victim, there is no such demand or condition raised by the
prosecuting agency (CBI) or by the victim (ONGC) for accepting the 'plea
bargaining'. Rather, before this Court on behalf of the parties it is pleaded that
arbitration proceedings are already going on as to the civil liability of the
accused / petitioners. That being so, it appears that the trial court has erred in
law in rejecting the application of the petitioners for 'plea bargaining'. This
petition under Section 482 of the Code is disposed of directing the trial court
to accept the 'plea bargaining' sought by the accused to which the prosecuting

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agency and the victim have endorsed no objection, and to pass appropriate
orders in the light of the observations made above. The order passed by the
trial court rejecting the application for 'plea bargaining' is set aside."

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