Supreme Court of India
SUNITA DEVIversusTHE STATE OF BIHAR & ANR
- Citation
- 2024 INSC 448
- Decided
- 17 May 2024
- Disposal
- Dismissed
- Bench
- M M SUNDRESH
Holding
The Supreme Court affirmed that while the trial court’s procedural violations warranted setting aside the conviction, the absence of a failure of justice precludes ordering a retrial, and thus dismissed the appeals, directing the government to explore a comprehensive sentencing policy.
Summary
The case arose from a POCSO trial in which the Special Judge conducted the proceedings in extreme haste, denying the accused the opportunity to consult counsel, receive documents, and present a defence, and ultimately imposing a death sentence that was set aside by the Patna High Court and a de novo trial ordered. The informant appealed the High Court's remand order (Criminal Appeal No. 3924) while the Special Judge filed separate appeals (Criminal Appeals Nos. 3925-3927) challenging the observations against him. The Supreme Court examined whether the trial court violated procedural safeguards under the CrPC, the POCSO Act, and related statutes, and whether such violations warranted a retrial. It held that the trial court’s conduct breached the accused’s right to a fair trial, but in the absence of a failure of justice, the appellate court would not order a retrial and dismissed the appeals. The Court also directed the trial court to conduct the trial expeditiously in line with the POCSO Act and instructed the Government of India to consider a comprehensive sentencing policy.
Issues considered
- The trial court’s conduct violated the procedural safeguards and the accused's right to a fair trial under the Constitution and the CrPC.
- Whether the High Court was justified in ordering a de novo trial based on the identified procedural irregularities.
- Whether the appellate court should intervene in the Special Judge's administrative observations and potential disciplinary actions.
- The applicability of Section 465 CrPC in preventing a retrial when procedural errors are present.
- The need for a comprehensive sentencing policy to address disparities in sentencing.
Legislation cited
- Code of Criminal Procedure, 1973s. 207, s. 207A, s. 208, s. 209, s. 227, s. 228, s. 230, s. 231, s. 233, s. 238, s. 309, s. 354, s. 360, s. 386, s. 465
- Coroners and Justice Act, 2009 (UK)
- Criminal Code (Canada)
- Probation of Offenders Act, 1958s. 3, s. 4, s. 6
- Protection of Children from Sexual Offences Act, 2012
- Rules for Video Conferencing for Courts, 2020s. Rule 11, s. Rule 6, s. Rule 8
- Sentencing Act 2002, New Zealand
- Sentencing Act 2020 (UK)
- Witness Protection Scheme, 2018
Subjects
SentencingSentencing policyNeed for sentencing policyComprehensive sentencing policyDisparities in awarding sentenceDenial of due opportunity to defendDeath sentenceDe novo trialPrinciple of presumption of innocenceFair trialAbsence of a fair trialRight to fair hearingArticle 21Speedy trialSentencing discretionAggravating and mitigating circumstancesLack of policy/ legislation on sentencingJudge-centric sentencingDeterrenceIncapacitationReformationSentencing CommissionExamination of witnessesWitness Protection SchemeExamination-in-chiefCross examinationPrima facie caseVideo ConferencingPre-framing stageFull-fledged pre-trialSupply of relevant documentsNon-compliance of mandatory provisionsDischargeFraming of chargeEffective and meaningful hearingRight of an accused to be heardRe-trialSentencing policy in Israel, Canada, New Zealand, UK
Judgment
[2024] 5 S.C.R. 629 : 2024 INSC 448
Sunita Devi
v.
The State of Bihar & Anr.
(Criminal Appeal No. 3924 of 2023)
17 May 2024
[M.M. Sundresh* and S.V.N. Bhatti, JJ.]
Issue for Consideration
Need for a comprehensive sentencing policy. Trial against the
accused under Protection of Children from Sexual Offences Act,
2012 was conducted by the judicial officer in utmost haste and the
accused was denied due opportunity to defend himself. Conviction
and death sentence awarded was set aside by the High Court and
a de novo trial was ordered, making certain observations against
the Special Judge. Criminal Appeal Nos.3925-3927 of 2023 filed
by the judicial officer. Criminal Appeal No.3924 of 2023 filed by the
informant against the order of remittal for de novo trial. On facts,
in Criminal Appeal No.3925 of 2023, the trial had commenced and
concluded in a single day wherein the aforesaid judicial officer
rendered a similar conviction however, the accused was sentenced
to life imprisonment.
Headnotes†
Sentencing – Lack of policy/legislation – Disparities in
awarding sentence – Need for sentencing policy – Constitution
of India – Articles 14, 21:
Held: Hearing the accused on sentence is a valuable right conferred
on the accused – The real importance lies only with the sentence,
as against the conviction – Unfortunately, there is no clear policy
or legislation when it comes to sentencing – Over the years, it has
become judge-centric and there are admitted disparities in awarding
a sentence – When it comes to sentencing, there are various
factors such as age, sex, education, home life, social background,
emotional and mental conditions, caste, religion and community that
constitute aggravating and mitigating circumstances – A decision of
a Judge in sentencing, would vary from person to person and also
from stage to stage – It is controlled by the mind – The environment
and the upbringing of a Judge would become the ultimate arbiter
in deciding the sentence – A Judge from an affluent background
* Author
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might have a different mindset as against a Judge from a humble
one – A female Judge might look at it differently, when compared
to her male counterpart – An Appellate Court might tinker with
the sentence due to its experience, and the external factors like
institutional constraints might come into play – There is a crying need
for a clear sentencing policy, which should never be judge-centric
as the society has to know the basis of a sentence – Sentencing
shall not be a mere lottery – It shall also not be an outcome of a
knee-jerk reaction – This is a very important part of the Fundamental
Rights conferred under Articles 14 and 21 – Various elements such
as deterrence, incapacitation and reformation should form part
of sentencing – The need for adequate guidelines for exercising
sentencing discretion, avoiding unwanted disparity, is of utmost
importance – Courts do take into consideration the mitigating and
aggravating circumstances – However, no research has been
undertaken for constituting what are aggravating and mitigating
circumstances – Suggestions made – Department of Justice, Ministry
of Law and Justice, Government of India to consider introducing
a comprehensive policy, possibly by way of getting an appropriate
report from a duly constituted Sentencing Commission consisting
of experts in different fields for the purpose of having a distinct
sentencing policy – Government of India to file an affidavit on the
feasibility of introducing a comprehensive sentencing policy and a
report thereon, within six months. [Paras 29, 30, 32-36, 37, 40, 58]
Administration of Criminal Justice – Denial of due opportunity
to defend and hearing – Trial against the accused under
POCSO Act was conducted by appellant-judicial officer in
utmost haste – At every stage, the accused was denied due
opportunity to defend himself – High Court set aside the
conviction and the death sentence and a de novo trial was
ordered – In Criminal Appeal No.3925 of 2023 filed by the very
same judicial officer, a similar conviction was rendered in the
trial which was concluded in a single day and the accused
was sentenced to life imprisonment:
Held: High Court while passing both the impugned judgments not
only called for the records and rendered findings of fact, but also
considered them in detail – At every stage, the accused was denied
due opportunity to defend himself – The appellant was acting in
utmost haste – It would be humanly impossible to deliver the judgment
within half an hour’s time running into 27 pages consisting of 59
paragraphs in the first case and similarly in the other – At every
[2024] 5 S.C.R. 631
Sunita Devi v. The State of Bihar & Anr.
stage, including framing of charges, there was a constant denial
of due opportunity and hearing – Accused was not able to consult
his lawyer – He was not even served with the copies, though his
lawyer received the same before framing of the charges – Receiving
of documents by his lawyer would not be sufficient compliance,
unless there was sufficient time given for him to peruse them and
thereafter have a consultation – Admittedly, neither the provisions of
the Witness Protection Scheme, 2018 were invoked nor the Rules
for Video Conferencing for Courts, 2020 were followed – Further,
the appellant was fortunate that no action was taken against him
thus, in the absence of any proposed action, there is no question of
hearing him – Trial court to keep in mind the mandate of POCSO
Act, 2012 while recording the evidence of the victim and to conduct
and complete the trial expeditiously. [Paras 32, 55, 56, 58]
Code of Criminal Procedure, 1973 – s.360 – Probation of
Offenders Act, 1958 – ss.3, 4, 6:
Held: Section 360 speaks of releasing a convict on probation of
good conduct or after admonition – Before passing the sentence
on a convict, after rendering conviction, the Judge shall consider
the feasibility of proceeding in accordance with this provision –
Being a beneficial provision dealing with a reformative aspect,
it is the bounden duty of the Judge to consider the application
of this provision before proceeding to hear the accused on
sentence – While doing so, the Judge has to hear the accused
and the prosecution – Similarly, the Court has to apply the salient
provisions contained under Sections 3, 4 and 6 of the Probation
of Offenders Act, 1958 – A trial court is duty bound to comply with
the mandate of Section 360 of the CrPC, 1973 read with Sections
3, 4 and 6 of the Act, 1958 before embarking into the question of
sentence. [Para 28]
Administration of Justice – Administration of Criminal Justice –
Conduct of a fair trial – Constitution of India – Articles 14,
21 – Absence of a fair trial violates fundamental rights:
Held: A fair trial would include due compliance of the procedure
with adequate opportunities for all the stakeholders – Such
procedural safeguards and compliance are to be kept in mind by
the Court, as any deviation might either impact the prosecution
or the defence in a given case – A fair trial is the heart and soul
of criminal jurisprudence – It is not only a statutory right, but also
a human right, which would be violated when the safeguards
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provided under the Statute are not followed – The absence of a
fair trial would seriously impair and violate the fundamental rights
guaranteed under Articles 14 and 21 – The right to fair hearing is
a part of Article 21 – A trial should be a real one and, therefore,
not a mere pretence – There shall never be an impression over
the decision of a Court that it has predetermined and pre-judged a
case even before starting a trial, or else, such a trial would become
an empty formality – Principle of presumption of innocence and
concept of speedy trial, discussed. [Paras 7, 9, 10]
Code of Criminal Procedure, 1973 – ss.238, 207:
Held: Section 238 mandates that while dealing with a warrant case
instituted on a police report, the Magistrate shall satisfy himself that
he has complied with the provisions of Section 207 – In all these
cases, due compliance is to be done when the accused is produced
or appears before the Magistrate – Therefore, Section 238 reiterates
the bounden duty of a Magistrate and, if not done, to be complied with
at the time of commencement of the trial – Such a reiteration would
only reinforce a renewed emphasis on due compliance being a facet
of fair play – An accused shall be put to notice on the incriminating
materials leading to the charges framed against him – The obligation
so imposed is not only on the supply of the relevant documents,
but such compliance should be at the appropriate stage so that it
does not brook any delay – The idea is to enable an accused to
face the trial by thoroughly understanding the case stated against
him – However, a mere non-supply of a part of the documents would
not lead to the trial being vitiated, unless an accused substantiates
before the Court that it has caused prejudice to him – It is ultimately
for the Court to come to an appropriate conclusion by an adequate
assessment of facts placed before it. [Para 16]
Code of Criminal Procedure, 1973 – s.465 – Rigour of, when
not applicable:
Held: If the Appellate Court is of the view that there is a continued
non-compliance of the substantial provisions of the CrPC, 1973
then the rigour of Section 465 of the CrPC, 1973 would not apply
and, in that case, an order of remand would be justified – This
provision is meant to uphold the decision of the trial court, even
in a case where there is an apparent irregularity in procedure – If
the evidence available has been duly taken note of by the Court,
then such a decision cannot be reversed on account of a mere
technical error – This is based on the principle that a procedural
[2024] 5 S.C.R. 633
Sunita Devi v. The State of Bihar & Anr.
law is the handmaid of justice – However, the ultimate issue is as
to whether such an error or omission has constituted a failure of
justice, which is one of fact, to be decided on the touchstone of
prejudice. [Para 25]
Code of Criminal Procedure, 1973 – ss.227, 228 – Discharge –
Framing of charge – Constitution of India – Article 22:
Held: Before the stage of framing of charges, the Judge is expected
to discharge an accused, if he is of the considered view that there
is no sufficient ground to proceed against the accused – This being
a judicial exercise, his discretion must be supported by adequate
reasons – In discharge of his powers, he has to consider the
records and documents submitted by the prosecution vis-à -vis the
arguments adduced by both sides – The words “after hearing the
submissions of the accused” would imply an effective and meaningful
hearing – It is not a mere procedural compliance – The duty of
the Court is to see as to whether the materials produced by the
prosecution are reasonably related to the offence attributed against
the accused – What is to be seen is the existence of a prima facie
case – The case is at a pre-framing stage and therefore, it cannot
be a full-fledged pre-trial – Adequacy and sufficiency are the relevant
factors to be seen – The test is one of the degree of probability –
Section 227 gives effect to Article 22 of the Constitution – The
right of an accused to be heard is inalienable – For exercising
this right, there has to be due consultation – It is the duty of the
court to ensure that the accused is given sufficient opportunities
to consult his lawyer – Under sub-section (2) of Section 228 of the
CrPC, 1973, the Judge, while framing any charge, is ordained to
read and explain it to the accused – Thereafter, the accused shall
be asked as to whether he pleads guilty of the offence charged or
claims to be tried – This is an occasion where the Judge avoids
the lawyer and keeps in touch with the accused directly – Unless a
situation so warrants otherwise, the presence of the accused shall
be ensured. [Paras 18-21]
Code of Criminal Procedure, 1973 – ss.230, 231, 233, 309:
Held: Sections 230, 231 are to be read in consonance with
each other – At this stage, the Court is concerned only with
the prosecution’s evidence – To ensure fair play, as a normal
practice, the Court has to fix a date for the examination of the
witnesses – The idea is to complete the examination-in-chief
and cross examination, both at the same time – While fixing the
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date, the Court is expected to take into consideration the relative
convenience of the parties, though the discretion lies with it – A
balance has to be struck between the competing interests –
Further, when an application is moved invoking Section 233, the
Judge is duty bound to issue process, unless he is satisfied on
the existence of the three elements, as stated – Any denial would
be an affront to the concept of a fair trial – Section 309 places
emphasis on the continuation of the trial as any obstruction and
delay would hamper the process of justice – Despite a bar under
the second and fourth proviso to Section 309, an adjournment
can be granted, provided the party who seeks so, satisfies the
court. [Paras 22-24]
Code of Criminal Procedure, 1973 – s.386 – Powers of the
Appellate Court – Re-trial:
Held: An Appellate Court has got ample power to direct re-trial –
However, such a power is to be exercised in exceptional cases –
The irregularities found must be so material that a re-trial is the
only option. [Para 27]
Sentencing – Sentencing policy – Sentencing policy adopted
in countries like Israel, Canada, New Zealand and UK –
Discussed. [Paras 38-40]
Case Law Cited
Mohd. Hussain v. State (Govt. of NCT of Delhi) [2012] 10 SCR
480 : (2012) 9 SCC 408; State of Haryana v. Ram Mehar [2016]
5 SCR 172 : (2016) 8 SCC 762; Talab Haji Hussain v. Madhukar
Purshottam Mondkar [1958] 1 SCR 1226; Naresh Kumar Yadav
v. Ravindra Kumar [2007] 11 SCR 615 : (2008) 1 SCC 632; P.
Gopalkrishnan v. State of Kerala [2019] 17 SCR 422 : (2020) 9
SCC 161; Anokhilal v. State of M.P. [2019] 18 SCR 1196 : (2019)
20 SCC 196; Kewal Krishan v. Suraj Bhan 1980 (Supp.) SCC
499; Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014)
3 SCC 92; Sajjan Kumar v. CBI [2010] 11 SCR 669 : (2010) 9
SCC 368; Mohd. Ajmal Amir Kasab v. State of Maharashtra [2012]
8 SCR 295 : (2012) 9 SCC 1; State of Kerala v. Rasheed [2018]
13 SCR 587 : (2019) 13 SCC 297; State of UP v. Shambu Nath
Singh [2001] 2 SCR 854 : (2001) 4 SCC 667; State of M.P. v.
Bhooraji [2001] Supp. 2 SCR 128 : (2001) 7 SCC 679; Darbara
Singh v. State of Punjab [2012] 7 SCR 541 : (2012) 10 SCC 476;
[2024] 5 S.C.R. 635
Sunita Devi v. The State of Bihar & Anr.
Kottayya v. Emperor, AIR (34) 1947 Privy Council 67; Nasib Singh
v. State of Punjab [2021] 13 SCR 566 : (2022) 2 SCC 89; Manoj v.
State of M.P. [2023] 11 SCR 246 : (2023) 2 SCC 353; Dhananjoy
Chatterjee v. State of W.B. [1994] 1 SCR 37 : (1994) 2 SCC 220;
Swamy Shraddananda (2) v. State of Karnataka [2008] 11 SCR
93 : (2008) 13 SCC 767; Soman v. State of Kerala [2012] 11 SCR
1155 : (2013) 11 SCC 382 – referred to.
Munna Pandey v. State of Bihar [2023] 11 SCR 1005 : AIR 2023
SUPREME COURT 5709; Akil v. State (NCT of Delhi) [2012] 13
SCR 659 : (2013) 7 SCC 125; Sakshi v. Union of India [2004]
2 Suppl. SCR 723 : (2004) 5 SCC 518; State of Maharashtra v.
Mahesh Kariman Tirki (2022) 10 SCC 207; Pradeep S. Wodeyar
v. State of Karnataka [2021] 11 SCR 985 : (2021) 19 SCC 62 –
held inapplicable.
Books and Periodicals Cited
“Discretion, Discrimination and the Rule of Law, Reforming
Sentencing in India”, authored by Mr. Mrinal Satish, published by
the Cambridge University Press, (2017); 47th Report of the Law
Commission of India, Report by the Committee on Reforms of
Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003), Report
by the Committee on Draft National Policy on Criminal Justice,
Chaired by Dr. N.R. Madhava Menon – referred to.
List of Acts
Code of Criminal Procedure, 1973; Probation of Offenders Act, 1958;
Code of Criminal Procedure, 1898; Rules for Video Conferencing
for Courts, 2020; Witness Protection Scheme, 2018; Criminal
Code (Canada); Sentencing Act 2002, New Zealand; Coroners
and Justice Act, 2009 (UK); Sentencing Act 2020 (UK).
List of Keywords
Sentencing; Sentencing policy; Need for sentencing policy;
Comprehensive sentencing policy; Disparities in awarding sentence;
Denial of due opportunity to defend; Death sentence; de novo trial;
Principle of presumption of innocence; Fair trial; Absence of a
fair trial; Right to fair hearing; Article 21; Speedy trial; Sentencing
discretion; Aggravating and mitigating circumstances; Lack of policy/
legislation on sentencing; Judge-centric sentencing; Deterrence;
Incapacitation; Reformation; Sentencing Commission; Examination
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of the witnesses; Witness Protection Scheme; Examination-in-chief;
Cross examination; prima facie case; Video Conferencing; Pre-
framing stage; Full-fledged pre-trial; Supply of relevant documents;
Non-compliance of mandatory provisions; Discharge; Framing of
charge; Effective and meaningful hearing; Right of an accused
to be heard; Re-trial; Sentencing policy in Israel, Canada, New
Zealand, UK.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3924
of 2023
From the Judgment and Order dated 16.08.2022 of the High Court
of Judicature at Patna in CRADB No. 203 of 2022
With
Criminal Appeal Nos. 3926-3927 and 3925 of 2023
Appearances for Parties
Vikas Singh, Sr. Adv., Ms. Deepeika Kalia, Satwik Misra, Ms. Gunjan
Dogra, Ms. Devashree, Keshav Khandelwal, Ms. Vasudha Singh,
Ms. Udita Singh, Mrityunjai Singh, Advs. for the Appellant.
Chander Uday Singh, Sr. Adv., Gautam Narayan, Ms. Asmita Singh,
Harshit Goel, Samir Ali Khan, Pranjal Sharma, Abhimanyu Jhamba,
Nishesh Sharma, Ms. Prerna Singh , Anil Kumar, Sidharth Sarthi,
Shantanu Sagar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1. Criminal Appeal No.3924 of 2023 has been filed by the informant,
against the order of remittal passed by the Division Bench of the Patna
High Court directing the Trial Court to conduct a de novo trial, while
making certain observations against the Special Judge, disapproving
his approach in the conduct of the trial. Criminal Appeal Nos.3926-3927
of 2023 have been filed by the learned Special Judge who conducted
the trial and thereafter delivered the judgment. Criminal Appeal No.3925
of 2023 has been filed by the very same learned Judge, aggrieved
over the remarks once again made by the High Court in an order of
[2024] 5 S.C.R. 637
Sunita Devi v. The State of Bihar & Anr.
remittal, requesting the Hon’ble Chief Justice of the Patna High Court
to consider whether the Judicial Officer should be assigned the function
of holding sessions trial which have far reaching consequences, while
sending him for fresh training to the State Judicial Academy.
2. Heard Learned Senior Counsel Mr. Vikas Singh for the appellant and
Learned Senior Counsel Mr. C. U. Singh for the respondents. We
have perused the documents filed along with the written submissions
made by the parties.
3. Before going into the submissions on merit, we shall first deal with
the provisions governing the legal position in conducting a trial.
VIDEO CONFERENCING
Rule 6 of the Rule for Video Conferencing for Courts, 2020
“6. Application for Appearance, Evidence and
Submission by Video Conferencing:
6.1 Any party to the proceeding or witness, save and
except where proceedings are initiated at the instance of
the Court, may move a request for video conferencing. A
party or witness seeking a video conferencing proceeding
shall do so by making a request in the form prescribed
in Schedule II.
6.2 Any proposal to move a request to for video
conferencing should first be discussed with the other
party or parties to the proceeding, except where it is not
possible or inappropriate, for example in cases such as
urgent applications.
6.3 On receipt of such a request and upon hearing all
concerned persons, the Court will pass an appropriate order
after ascertaining that the application is not filed with an
intention to impede a fair trial or to delay the proceedings.
6.4 While allowing a request for video conferencing, the
Court may also fix the schedule for convening the video
conferencing.
6.5 In case the video conferencing event is convened
for making oral submissions, the order may require the
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Advocate or party in person to submit written arguments
and precedents, if any, in advance on the official email ID
of the concerned Court.
6.6 Costs, if directed to be paid, shall be deposited
within the prescribed time, commencing from the date
on which the order convening proceedings through video
conferencing is received.”
Rule 8 of the Rule for Video Conferencing for Courts, 2020
“8. Examination of persons.—
8.3 Where the person being examined, or the accused
to be tried, is in custody, the statement or, as the
case may be, the testimony may be recorded through
video conferencing. The Court shall provide adequate
opportunity to the under-trial prisoner to consult in privacy
with their counsel before, during and after the video
conferencing.”
Rule 11 of the Rule for Video Conferencing for Courts, 2020
“11. Judicial remand, framing of charge, examination
of accused and Proceedings under Section 164 of
the CrPC.—
11.1 The Court may, at its discretion, authorize detention
of an accused, frame charges in a criminal trial under the
CrPC by video conferencing. However, ordinarily judicial
remand in the first instance or police remand shall not be
granted through video conferencing save and except in
exceptional circumstances for reasons to be recorded in
writing.
11.2 The Court may, in exceptional circumstances, for
reasons to be recorded in writing, examine a witness or
an accused under Section 164 of the CrPC or record the
statement of the accused under Section 313 CrPC through
video conferencing, while observing all due precautions to
ensure that the witness or the accused as the case maybe
is free of any form of coercion, threat or undue influence.
The Court shall ensure compliance with Section 26 of the
Evidence Act.”
[2024] 5 S.C.R. 639
Sunita Devi v. The State of Bihar & Anr.
4. The High Court of Patna, in exercise of the powers conferred under
Articles 225 and 227 of the Constitution of India, 1950, framed rules
and procedures relating to the use of video conferencing for Courts.
This was done with the concurrence of the State Government. “Rules
for Video Conferencing for Courts, 2020” delineate the general
principles governing video conferencing. Rule 6 provides for an
application seeking video conferencing. When such an application is
made, it has to be put to the other party followed by an appropriate
order by the court indicating its satisfaction for granting approval. As
per Rule 8, when the testimony of a person being examined is to
be recorded through video conferencing, the court shall provide an
adequate opportunity to the undertrial prisoner to consult in privacy
with his counsel at different stages – before, during and after. Under
Rule 11, an act of securing the presence of an accused through
video conferencing at the time of judicial remand for the first time
or police remand, is not a matter of course and, therefore, it is to
be exercised only in exceptional circumstances for the reasons
to be recorded in writing. Similar is the case qua recording of the
statement of an accused under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as the “CrPC, 1973”), in
which case, it is obligatory on the part of the Court to make sure
that the accused is free from any form of coercion, threat or undue
influence.
5. On a conjoint reading of the aforesaid rules, it is only appropriate
that the accused has to be produced before the Court, rather than
marking his appearance through video conferencing, the latter being
an exception. While applying its mind, the Court has to rule out the
possibility of any misuse.
WITNESS PROTECTION SCHEME, 2018
6. Witness Protection Scheme, 2018 has been introduced in the interest
of the administration of justice, while enforcing a criminal law. It is
meant to take care of a situation where the witnesses are made
to depose before the Court by completely abandoning the case of
the prosecution, either by fear or favour. The scheme provides for
a competent authority which is the Standing Committee headed
by a District and Sessions Judge with the head of the Police in
the District as a Member and the head of the Prosecution as its
Member Secretary. A witness is at liberty to seek protection before
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the competent authority. The head of the police is expected to place
before the competent authority a “Threat Analysis Report”. The
Scheme lays down in detail, the action proposed to be taken, once
such an application is filed.
FAIR TRIAL
7. A fair trial would include due compliance of the procedure with
adequate opportunities for all the stakeholders. Such procedural
safeguards and compliance are to be kept in mind by the Court, as
any deviation might either impact the prosecution or the defence
in a given case. In an adversarial system of criminal law, which is
being followed in India, when an accused is prosecuted on behalf
of the State, the interest of a victim cannot be ignored. An offence
is presumed to be against societal values and, therefore, any crime
would constitute a deviant act by the accused.
8. Every trial is a march towards the truth. It is the primary duty of
the Court to search for the truth using the procedural law as its
tool. Such a procedural law may have a substantive part extending
certain inalienable rights to both, the accused and the victim. By
non-compliance of the procedural law, justice cannot be allowed
to derail. Anyone, who complains of an unfair trial, is duty bound
to satisfy the Court that he stands prejudiced by it. This does not
mean that a Court can be lackadaisical in following the rules and
procedures meant to ensure justice.
9. A fair trial is the heart and soul of criminal jurisprudence. The principle
of democracy lies in a fair trial. It is not only a statutory right, but
also a human right, which would be violated when the safeguards
provided under the Statute are not followed. The absence of a fair trial
would seriously impair and violate the fundamental rights guaranteed
under Articles 14 and 21 of the Constitution of India, 1950. What is
important to be seen is the existence of a failure of justice, which
is obviously one of fact. A mere violation per se would not vitiate
the trial, especially when the degree of substantivity exhibited in a
statute is minimal.
10. The right to fair hearing is a part of Article 21 of the Constitution of
India, 1950. A trial should be a real one and, therefore, not a mere
pretence. There shall never be an impression over the decision
[2024] 5 S.C.R. 641
Sunita Devi v. The State of Bihar & Anr.
of a Court that it has pre-determined and pre-judged a case even
before starting a trial, or else, such a trial would become an empty
formality.
Precedents
J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401
“28. Fair trial is the main object of criminal procedure
and such fairness should not be hampered or
threatened in any manner. Fair trial entails the interests
of the accused, the victim and of the society. Thus, fair
trial must be accorded to every accused in the spirit of
the right to life and personal liberty and the accused
must get a free and fair, just and reasonable trial on
the charge imputed in a criminal case. Any breach or
violation of public rights and duties adversely affects the
community as a whole and it becomes harmful to the
society in general. In all circumstances, the courts have
a duty to maintain public confidence in the administration
of justice and such duty is to vindicate and uphold the
“majesty of the law” and the courts cannot turn a blind eye
to vexatious or oppressive conduct that occurs in relation
to criminal proceedings.
29. Denial of a fair trial is as much injustice to
the accused as is to the victim and the society. It
necessarily requires a trial before an impartial Judge,
a fair prosecutor and an atmosphere of judicial calm.
Since the object of the trial is to mete out justice and
to convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over
technicalities and must be conducted under such rules
as will protect the innocent and punish the guilty.
Justice should not only be done but should be seem
to have been done. Therefore, free and fair trial is a
sine qua non of Article 21 of the Constitution. Right to
get a fair trial is not only a basic fundamental right but
a human right also. Therefore, any hindrance in a fair
trial could be violative of Article 14 of the Constitution.
“No trial can be allowed to prolong indefinitely due to the
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lethargy of the prosecuting agency or the State machinery
and that is the raison d’être in prescribing the time frame”
for conclusion of the trial.”
(emphasis supplied)
Rattiram v. State of M.P., (2012) 4 SCC 516
“39. The question posed by us fundamentally relates to
the non-compliance with such interdict. The crux of the
matter is whether it is such a substantial interdict
which impinges upon the fate of the trial beyond any
redemption or, for that matter it is such an omission
or it is such an act that defeats the basic conception
of fair trial. Fundamentally, a fair and impartial trial has
a sacrosanct purpose. It has a demonstrable object
that the accused should not be prejudiced. A fair trial
is required to be conducted in such a manner which
would totally ostracise injustice, prejudice, dishonesty
and favouritism.
40. In Kalyani Baskar v. M.S. Sampoornam [(2007) 2
SCC 258 : (2007) 1 SCC (Cri) 577] it has been laid down
that “fair trial” includes fair and proper opportunities
allowed by law to the accused to prove innocence and,
therefore, adducing evidence in support of the defence
is a valuable right and denial of that right means denial
of fair trial. It is essential that the rules of procedure
designed to ensure justice should be scrupulously
followed and the courts should be zealous in seeing
that there is no breach of them.
41. In this regard, we may fruitfully reproduce the
observations from Manu Sharma v. State (NCT of Delhi)
[(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] wherein it has
been so stated : (SCC pp. 79-80, para 197)
“197. In the Indian criminal jurisprudence, the
accused is placed in a somewhat advantageous
position than under different jurisprudence of
some of the countries in the world. The criminal
justice administration system in India places
human rights and dignity for human life at a much
[2024] 5 S.C.R. 643
Sunita Devi v. The State of Bihar & Anr.
higher pedestal. In our jurisprudence an accused
is presumed to be innocent till proved guilty, the
alleged accused is entitled to fairness and true
investigation and fair trial and the prosecution
is expected to play balanced role in the trial of
a crime. The investigation should be judicious,
fair, transparent and expeditious to ensure
compliance with the basic rule of law. These
are the fundamental canons of our criminal
jurisprudence and they are quite in conformity
with the constitutional mandate contained in
Articles 20 and 21 of the Constitution of India.”
(emphasis supplied)
42. It would not be an exaggeration if it is stated that a
“fair trial” is the heart of criminal jurisprudence and, in
a way, an important facet of a democratic polity that is
governed by rule of law. Denial of “fair trial” is crucifixion
of human rights. It is ingrained in the concept of due
process of law. While emphasising the principle of “fair
trial” and the practice of the same in the course of
trial, it is obligatory on the part of the courts to see
whether in an individual case or category of cases,
because of non-compliance with a certain provision,
reversion of judgment of conviction is inevitable or it
is dependent on arriving at an indubitable conclusion
that substantial injustice has in fact occurred.”
(emphasis supplied)
Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158
“35. This Court has often emphasised that in a criminal
case the fate of the proceedings cannot always be left
entirely in the hands of the parties, crimes being public
wrongs in breach and violation of public rights and duties,
which affect the whole community as a community and
are harmful to the society in general. The concept of
fair trial entails familiar triangulation of interests
of the accused, the victim and the society and it
is the community that acts through the State and
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prosecuting agencies. Interests of society are not to
be treated completely with disdain and as persona
non grata. Courts have always been considered to
have an overriding duty to maintain public confidence
in the administration of justice — often referred to
as the duty to vindicate and uphold the “majesty of
the law”. Due administration of justice has always
been viewed as a continuous process, not confined
to determination of the particular case, protecting
its ability to function as a court of law in the future
as in the case before it. If a criminal court is to be an
effective instrument in dispensing justice, the Presiding
Judge must cease to be a spectator and a mere recording
machine by becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find
out the truth, and administer justice with fairness and
impartiality both to the parties and to the community it
serves. Courts administering criminal justice cannot turn
a blind eye to vexatious or oppressive conduct that has
occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name
and standing of the judges as impartial and independent
adjudicators.
xxx xxx xxx
39. Failure to accord fair hearing either to the accused
or the prosecution violates even minimum standards
of due process of law. It is inherent in the concept
of due process of law, that condemnation should be
rendered only after the trial in which the hearing is a
real one, not sham or a mere farce and pretence. Since
the fair hearing requires an opportunity to preserve
the process, it may be vitiated and violated by an
overhasty, stage-managed, tailored and partisan trial.
xxx xxx xxx
54. Though justice is depicted to be blindfolded, as
popularly said, it is only a veil not to see who the party
before it is while pronouncing judgment on the cause
[2024] 5 S.C.R. 645
Sunita Devi v. The State of Bihar & Anr.
brought before it by enforcing law and administer
justice and not to ignore or turn the mind/attention
of the court away from the truth of the cause or lis
before it, in disregard of its duty to prevent miscarriage
of justice. When an ordinary citizen makes a grievance
against the mighty administration, any indifference, inaction
or lethargy shown in protecting his right guaranteed in
law will tend to paralyse by such inaction or lethargic
action of courts and erode in stages the faith inbuilt in
the judicial system ultimately destroying the very justice-
delivery system of the country itself. Doing justice is
the paramount consideration and that duty cannot
be abdicated or diluted and diverted by manipulative
red herrings.”
(emphasis supplied)
PRESUMPTION OF INNOCENCE AND SPEEDY TRIAL
11. Unless a statute indicates otherwise, a criminal trial would commence
with the presumption of innocence. This principle is of utmost
importance as the Court embarks upon a trial in its quest for the
truth. Though an accused is charged with an offence, it is the Court
which has to satisfy its conscience, upon the prosecution proving
the charges levelled beyond reasonable doubt. For the aforesaid
purpose, an accused will have to be given a decent setting to prove
his innocence. Compliance with the procedural safeguard is meant
for the aforesaid purpose. However, such procedural safeguards
would not only ensure a fair trial, but also help the prosecution in
confirming that it did its part fairly.
12. The concept of fair trial is not a vague idea, but a decisive one. While
a speedy trial is in the best interest of everyone, including the society,
the pace can only be set through the procedural mechanism, and it
cannot be done at the mere dictate of the Court in ignorance of the
procedural law. At the same time, care has to be taken with the aid of
the law, to prevent the miscarriage of justice, when the delay is caused
on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be
permitted to destroy the latter by its recklessness. Any anxiety on the
part of the Court, either to expedite the trial in contravention of law, or
delay it unnecessarily, would seriously impede fair trial. In such a case,
either the prosecution or the defence would bear the consequences.
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Precedents
Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408
“40. “Speedy trial” and “fair trial” to a person accused
of a crime are integral part of Article 21. There is,
however, qualitative difference between the right to
speedy trial and the accused’s right of fair trial. Unlike
the accused’s right of fair trial, deprivation of the right
to speedy trial does not per se prejudice the accused in
defending himself. The right to speedy trial is in its very
nature relative. It depends upon diverse circumstances.
Each case of delay in conclusion of a criminal trial has
to be seen in the facts and circumstances of such case.
Mere lapse of several years since the commencement of
prosecution by itself may not justify the discontinuance
of prosecution or dismissal of indictment. The factors
concerning the accused’s right to speedy trial have
to be weighed vis-à-vis the impact of the crime on
society and the confidence of the people in judicial
system. Speedy trial secures rights to an accused but
it does not preclude the rights of public justice. The
nature and gravity of crime, persons involved, social
impact and societal needs must be weighed along
with the right of the accused to speedy trial and if the
balance tilts in favour of the former the long delay in
conclusion of criminal trial should not operate against
the continuation of prosecution and if the right of the
accused in the facts and circumstances of the case
and exigencies of situation tilts the balance in his
favour, the prosecution may be brought to an end.
These principles must apply as well when the appeal
court is confronted with the question whether or not
retrial of an accused should be ordered.”
(emphasis supplied)
State of Haryana v. Ram Mehar, (2016) 8 SCC 762
“24. The decisions of this Court when analysed appositely
clearly convey that the concept of the fair trial is not in the
realm of abstraction. It is not a vague idea. It is a concrete
[2024] 5 S.C.R. 647
Sunita Devi v. The State of Bihar & Anr.
phenomenon. It is not rigid and there cannot be any
straitjacket formula for applying the same. On occasions
it has the necessary flexibility. Therefore, it cannot be
attributed or clothed with any kind of rigidity or flexibility in
its application. It is because fair trial in its ambit requires
fairness to the accused, the victim and the collective at large.
Neither the accused nor the prosecution nor the victim which
is a part of the society can claim absolute predominance
over the other. Once absolute predominance is recognised,
it will have the effect potentiality to bring in an anarchical
disorder in the conducting of trial defying established legal
norm. There should be passion for doing justice but it must
be commanded by reasons and not propelled by any kind of
vague instigation. It would be dependent on the fact situation;
established norms and recognised principles and eventual
appreciation of the factual scenario in entirety. There may
be cases which may command compartmentalisation but
it cannot be stated to be an inflexible rule. Each and every
irregularity cannot be imported to the arena of fair trial. There
may be situations where injustice to the victim may play a
pivotal role. The centripodal purpose is to see that injustice
is avoided when the trial is conducted. Simultaneously the
concept of fair trial cannot be allowed to such an extent so
that the systemic order of conducting a trial in accordance
with CrPC or other enactments get mortgaged to the
whims and fancies of the defence or the prosecution. The
command of the Code cannot be thrown to winds. In such
situation, as has been laid down in many an authority, the
courts have significantly an eminent role. A plea of fairness
cannot be utilised to build castles in Spain or permitted to
perceive a bright moon in a sunny afternoon. It cannot be
acquiesced to create an organic disorder in the system. It
cannot be acceded to manure a fertile mind to usher in the
nemesis of the concept of trial as such.”
Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 SCR
1226 (at page 1232)
“Now it is obvious that the primary object of criminal procedure
is to ensure a fair trial of accused persons. Every criminal
trial begins with the presumption of innocence in favour of
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the accused; and provisions of the Code are so framed
that a criminal trial should begin with and be throughout
governed by this essential presumption; but a fair trial has
naturally two objects in view; it must be fair to the accused
and must also be fair to the prosecution. The test of fairness
in a criminal trial must be judged from this dual point of view.
It is therefore of the utmost importance that, in a criminal
trial, witnesses should be able to give evidence without
any inducement or threat either from the prosecution or the
defence. A criminal trial must never be so conducted by the
prosecution as would lead to the conviction of an innocent
person; similarly the progress of a criminal trial must not
be obstructed by the accused so as to lead to the acquittal
of a really guilty offender. The acquittal of the innocent and
the conviction of the guilty are the objects of a criminal trial
and so there can be no possible doubt that, if any conduct
on the part of an accused person is likely to obstruct a fair
trial, there is occasion for the exercise of the inherent power
of the High Courts to secure the ends of justice. …”
THE CODE OF CRIMINAL PROCEDURE, 1973 (CrPC, 1973)
13. The CrPC, 1973, though a Code dealing with procedural law, is
embellished with numerous substantive elements in it. The substantive
elements give effect to Articles 14, 20, 21 and 22 of the Constitution
of India, 1950. Any Court that deals with a criminal case, starting at
the magisterial level, is duty-bound to give effect to the CrPC, 1973
which would only mean the protection of rights conferred under the
Constitution of India, 1950. To put it differently, the CrPC, 1973 is a
handbook introduced to maintain and uphold fair play in a criminal
case, starting with the investigation and ending with the acquittal or
a conviction leading to a sentence.
SUPPLY OF DOCUMENTS
Section 173 of the Code of Criminal Procedure, 1898
“173. Report of police officer.—
xxx xxx xxx
(4) After forwarding a report under this section, the
officer-in-charge of the police station shall, before the
commencement of, the inquiry or trial, furnish or cause
[2024] 5 S.C.R. 649
Sunita Devi v. The State of Bihar & Anr.
to be furnished to the accused, free of cost, a copy of
the report forwarded under sub-section (1) and of the first
information report recorded under Section 154 and of all
other documents or relevant extracts thereof, on which
the prosecution proposes to rely, including the statements
and confessions, if any recorded under Section 164 and
the statements recorded under sub-section (3) of Section
161 of all the persons whom the prosecution proposes to
examine as its witnesses.”
Section 207A of the Code of Criminal Procedure, 1898
“207A. Procedure to be adopted in proceedings
instituted on police report.
xxx xxx xxx
(3) At the commencement of the inquiry, the Magistrate
shall, when the accused appears or is brought before
him, satisfy himself that the documents referred to in
Section 173 have been furnished to the accused and if he
finds that the accused has not been furnished with such
documents or any of them, he shall cause the same to
be so furnished.”
Section 251A of the Code of Criminal Procedure, 1898
“251A. Procedure to be adopted in cases instituted
on police report.
(1) When, in any case instituted on a police report, the
accused appears or is brought before a Magistrate at the
commencement of the trial, such Magistrate shall satisfy
himself that the documents referred to in Section 173
have been furnished to the accused, and if he finds that
the accused has not been furnished with such documents
or any of them, he shall cause them to be so furnished.”
Section 207 of the CrPC, 1973
“207. Supply to the accused of copy of police report
and other documents.-
In any case where the proceeding has been instituted
on a police report, the Magistrate shall without delay
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furnish to the accused, free of cost, a copy of each of
the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of
section 161 of all persons whom the prosecution
proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request for
such exclusion has been made by the police officer
under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded
under section 164;
(v) any other document or relevant extract thereof
forwarded to the Magistrate with the police report
under sub-section (5) of section 173 :
Provided that the Magistrate may, after perusing any such
part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or
of such portion thereof as the Magistrate thinks proper,
shall be furnished to the accused :Provided further that if
the Magistrate is satisfied that any document referred to
in clause (v) is voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader
in Court.”
Section 208 of the CrPC, 1973
“208. Supply of copies of statements and documents
to accused in other cases triable by Court of Session.-
Where, in a case instituted otherwise than on a police
report, it appears to the Magistrate issuing process under
section 204 that the offence is triable exclusively by the
Court of Session, the Magistrate shall without delay
furnish to the accused, free of cost, a copy of each of
the following:
[2024] 5 S.C.R. 651
Sunita Devi v. The State of Bihar & Anr.
(i) the statements recorded under section 200 or section
202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under
section 161 or section 164;
(iii) any documents produced before the Magistrate on
which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such
document is voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader
in Court.”
Section 209 of the CrPC, 1973
“209. Commitment of case to Court of Session when
offence is triable exclusively by it.-
When in a case instituted on a police report or otherwise,
the accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall—
(a) commit, after complying with the provisions of Section
207 or Section 208, as the case may be, the case to the
Court of Session, and subject to the provisions of this
Code relating to bail, remand the accused to custody until
such commitment has been made;
(b) subject to the provisions of this Code relating to bail,
remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the documents
and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case
to the Court of Session.”
Section 238 of the CrPC, 1973
“238. Compliance with Section 207.
When, in any warrant-case instituted on a police report,
the accused appears or is brought before a Magistrate
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at the commencement of the trial, the Magistrate shall
satisfy himself that he has complied with the provisions
of Section 207.”
14. To understand these provisions, one has to go back to the Code
of Criminal Procedure, 1898 (hereinafter referred to as the “CrPC,
1898”). Section 173 of the CrPC, 1898 fixes the responsibility on
the officer in charge of police station to serve a copy of the report
of the Police Officer and of the First Information Report, along with
the requisite documents, on the accused. As per Section 207A of
the CrPC, 1898 a Magistrate shall, after the commencement of the
inquiry, satisfy himself that there was due compliance of Section
173 of the CrPC 1898 by furnishing all the requisite documents on
the accused. Thus, the Magistrate was expected to find out due
compliance on the part of the investigating agency and, if not done,
must direct it to do so. A similar procedure was adopted under Section
251A of the CrPC, 1898.
15. Section 207 of the CrPC, 1973 has dispensed with the role of the
investigating agency in serving the requisite copies on the accused,
replacing it with that of the Magistrate. Additionally, the Magistratre is
directed to make sure that due compliance is made at the earliest.
Section 208 of the CrPC, 1973 reiterates the aforesaid position in
cases instituted otherwise than on a police report and triable by the
Court of Sessions. It is only thereafter, that the commitment of the
case to a Court of Sessions, regarding an offence exclusively triable
by it, shall take place.
16. Section 238 of the CrPC, 1973 mandates that while dealing with a
warrant case instituted on a police report, the Magistrate shall satisfy
himself that he has complied with the provisions of Section 207 of
the CrPC, 1973. In all these cases, due compliance is to be done
when the accused is produced or appears before the Magistrate.
Therefore, Section 238 of the CrPC, 1973 reiterates the bounden
duty of a Magistrate and, if not done, to be complied with at the
time of commencement of the trial. Such a reiteration would only
reinforce a renewed emphasis on due compliance being a facet
of fair play. An accused shall be put to notice on the incriminating
materials leading to the charges framed against him. As stated,
the obligation so imposed is not only on the supply of the relevant
documents, but such compliance should be at the appropriate stage
[2024] 5 S.C.R. 653
Sunita Devi v. The State of Bihar & Anr.
so that it does not brook any delay. The idea is to enable an accused
to face the trial by thoroughly understanding the case stated against
him. However, a mere non-supply of a part of the documents would
not lead to the trial being vitiated, unless an accused substantiates
before the Court that it has caused prejudice to him. Obviously, it is
ultimately for the Court to come to an appropriate conclusion by an
adequate assessment of facts placed before it.
Precedents
Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632
“13. The documents in terms of Sections 207 and
208 are supplied to make the accused aware of the
materials which are sought to be utilised against him.
The object is to enable the accused to defend himself
properly. The idea behind the supply of copies is to put
him on notice of what he has to meet at the trial. The
effect of non-supply of copies has been considered
by this Court in Noor Khan v. State of Rajasthan [AIR
1964 SC 286] and Shakila Abdul Gafar Khan v. Vasant
Raghunath Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri)
1918]. It was held that non-supply is not necessarily
prejudicial to the accused. The court has to give a
definite finding about the prejudice or otherwise. Even the
supervision notes cannot be utilised by the prosecution
as a piece of material or evidence against the accused. If
any reference is made before any court to the supervision
notes, as has been noted above they are not to be taken
note of by the court concerned. As many instances have
come to light when the parties, as in the present case,
make reference to the supervision notes, the inevitable
conclusion is that they have unauthorised access to the
official records.”
(emphasis supplied)
P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161
“21. Be that as it may, furnishing of documents to
the accused under Section 207 of the 1973 Code is a
facet of right of the accused to a fair trial enshrined
in Article 21 of the Constitution…
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22. Similarly, in V.K. Sasikala v. State [(2012) 9 SCC 771 :
(2013) 1 SCC (Cri) 1010] , this Court held as under : (SCC
p. 788, para 21)
“21. The issue that has emerged before us is,
therefore, somewhat larger than what has been
projected by the State and what has been dealt
with by the High Court [V.K. Sasikala v. State,
2012 SCC OnLine Kar 9209]. The question arising
would no longer be one of compliance or non-
compliance with the provisions of Section 207
CrPC and would travel beyond the confines of
the strict language of the provisions of CrPC and
touch upon the larger doctrine of a free and fair
trial that has been painstakingly built up by the
courts on a purposive interpretation of Article 21
of the Constitution. It is not the stage of making of
the request; the efflux of time that has occurred or
the prior conduct of the accused that is material.
What is of significance is if in a given situation
the accused comes to the court contending
that some papers forwarded to the court by the
investigating agency have not been exhibited by
the prosecution as the same favours the accused
the court must concede a right to the accused
to have an access to the said documents, if so
claimed. This, according to us, is the core issue in
the case which must be answered affirmatively. In
this regard, we would like to be specific in saying
that we find it difficult to agree with the view [V.K.
Sasikala v. State, 2012 SCC OnLine Kar 9209]
taken by the High Court that the accused must
be made to await the conclusion of the trial to test
the plea of prejudice that he may have raised.
Such a plea must be answered at the earliest and
certainly before the conclusion of the trial, even
though it may be raised by the accused belatedly.
This is how the scales of justice in our criminal
jurisprudence have to be balanced.”
(emphasis supplied)
[2024] 5 S.C.R. 655
Sunita Devi v. The State of Bihar & Anr.
xxx xxx xxx
38. It is crystal clear that all documents including “electronic
record” produced for the inspection of the court along with
the police report and which prosecution proposes to use
against the accused must be furnished to the accused
as per the mandate of Section 207 of the 1973 Code.
The concomitant is that the contents of the memory
card/pen-drive must be furnished to the accused, which
can be done in the form of cloned copy of the memory
card/pen-drive. It is cardinal that a person tried for
such a serious offence should be furnished with all
the material and evidence in advance, on which the
prosecution proposes to rely against him during the
trial. Any other view would not only impinge upon the
statutory mandate contained in the 1973 Code, but
also the right of an accused to a fair trial enshrined
in Article 21 of the Constitution of India.”
(emphasis supplied)
17. We make it clear that the right of an accused would arise, in
getting the documents relied upon by the prosecution, after taking
cognizance and before framing of the charges. Therefore, between
taking cognizance and framing of charges, an accused should have
sufficient window to go through the documents supplied to him as
he is entitled to be heard at a later stage.
DISCHARGE
Section 227 of the CrPC, 1973
“227. Discharge.-
If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.”
18. Before the stage of framing of charges, the Judge is expected to
discharge an accused, if he is of the considered view that there is no
sufficient ground to proceed against the accused. This being a judicial
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exercise, his discretion must be supported by adequate reasons. In
discharge of his powers, he has to consider the records and documents
submitted by the prosecution vis-à-vis the arguments adduced by both
sides. The words “after hearing the submissions of the accused” would
imply an effective and meaningful hearing. It is not a mere procedural
compliance. A Judge has to satisfy himself that the accused had
reasonable time to ponder over and prepare his arguments before
seeking a discharge. At this stage, an accused gets a substantive right
as there is a window of opportunity for him to get discharged, instead
of facing a prolonged trial. Such an opportunity can only be exercised
by not only supplying the documents needed, but also giving adequate
and sufficient time to the defence to place its case. Granting time for
the aforesaid purpose is the sole discretion of the Court.
19. The duty of the Court is to see as to whether the materials produced
by the prosecution are reasonably related to the offence attributed
against the accused. What is to be seen is the existence of a prima
facie case. The case is at a pre-framing stage and therefore, it
cannot be a full-fledged pre-trial. Adequacy and sufficiency are
the relevant factors to be seen. The test is one of the degree of
probability.
20. Section 227 of the CrPC, 1973, in fact, is a provision which gives
effect to Article 22 of the Constitution of India, 1950. The right of an
accused to be heard is inalienable. For exercising this right, there
has to be due consultation. Such a right can never be termed as a
procedural one. It would be a ground to challenge the proceeding
at that stage, but the same would not vitiate the trial. Suffice it is to
reiterate that it is the duty of the court to ensure that the accused is
given sufficient opportunities to consult his lawyer.
Precedents
Anokhilal v. State of M.P., (2019) 20 SCC 196
“22. The provisions concerned viz. Sections 227
and 228 of the Code contemplate framing of charge
upon consideration of the record of the case and the
documents submitted therewith, and after “hearing the
submissions of the accused and the prosecution in
that behalf”. If the hearing for the purposes of these
provisions is to be meaningful, and not just a routine
[2024] 5 S.C.R. 657
Sunita Devi v. The State of Bihar & Anr.
affair, the right under the said provisions stood denied
to the appellant.
23. In our considered view, the trial court on its
own, ought to have adjourned the matter for some
time so that the Amicus Curiae could have had the
advantage of sufficient time to prepare the matter.
The approach adopted by the trial court, in our view,
may have expedited the conduct of trial, but did not
further the cause of justice. Not only were the charges
framed the same day as stated above, but the trial
itself was concluded within a fortnight thereafter. In
the process, the assistance that the appellant was
entitled to in the form of legal aid, could not be real
and meaningful.
xxx xxx xxx
26. Expeditious disposal is undoubtedly required in criminal
matters and that would naturally be part of guarantee of fair
trial. However, the attempts to expedite the process should
not be at the expense of the basic elements of fairness
and the opportunity to the accused, on which postulates,
the entire criminal administration of justice is founded. In
the pursuit for expeditious disposal, the cause of justice
must never be allowed to suffer or be sacrificed. What is
paramount is the cause of justice and keeping the basic
ingredients which secure that as a core idea and ideal,
the process may be expedited, but fast tracking of process
must never ever result in burying the cause of justice.
xxx xxx xxx
31. Before we part, we must lay down certain norms so
that the infirmities that we have noticed in the present
matter are not repeated:
xxx xxx xxx
31.3. Whenever any learned counsel is
appointed as Amicus Curiae, some reasonable
time may be provided to enable the counsel
to prepare the matter. There cannot be any
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hard-and-fast rule in that behalf. However, a
minimum of seven days’ time may normally be
considered to be appropriate and adequate.
31.4. Any learned counsel, who is appointed
as Amicus Curiae on behalf of the accused
must normally be granted to have meetings
and discussion with the accused concerned.
Such interactions may prove to be helpful as
was noticed in Imtiyaz Ramzan Khan [Imtiyaz
Ramzan Khan v. State of Maharashtra, (2018)
9 SCC 160 : (2018) 3 SCC (Cri) 721] .”
(emphasis supplied)
Kewal Krishan v. Suraj Bhan, 1980 (Supp) SCC 499
“11. The proposition that in cases instituted on complaint
in regard to an offence exclusively triable by the Court
of Session, the standard for ascertaining whether or not
the evidence collected in the preliminary inquiry discloses
sufficient grounds for proceeding against the accused is
lower than the one to be adopted at the stage of framing
charges in a warrant case triable by the Magistrate, is
now evident from the scheme of the new Code of 1973.
Section 209 of the Code of 1973 dispenses with the inquiry
preliminary to commitment in cases triable exclusively by
a Court of Session, irrespective of whether such a case
is instituted on a criminal complaint or a police report.
Section 209 says: “When in a case instituted on a police
report or otherwise the accused appears or is brought
before the magistrate and it appears to the magistrate that
the offence is triable exclusively by the Court of Session,
he shall commit the case to the Court of Session.” If the
Committing Magistrate thinks that it is not necessary to
commit the accused who may be on bail to custody, he
may not cancel the bail. This has been made clear by the
words “subject to the provisions of this Code relating to
bail” occurring in clause (b) of Section 209. Therefore, if the
accused is already on bail, his bail should not be arbitrarily
cancelled. Section 227 of the Code of 1973 has made
another beneficent provision to save the accused
[2024] 5 S.C.R. 659
Sunita Devi v. The State of Bihar & Anr.
from prolonged harassment which is a necessary
concomitant of a protracted trial. This section provides
that if upon considering the record of the case, the
documents submitted with it and the submissions
of the accused and the prosecution, the judge is not
convinced that there is sufficient ground for proceeding
against the accused, he has to discharge the accused
under this section and record his reasons for so doing.”
(emphasis supplied)
Hardeep Singh v. State Of Punjab, (2014) 3 SCC 92
“100. However, there is a series of cases wherein this Court
while dealing with the provisions of Sections 227, 228,
239, 240, 241, 242 and 245 CrPC, has consistently held
that the court at the stage of framing of the charge
has to apply its mind to the question whether or not
there is any ground for presuming the commission of
an offence by the accused. The court has to see as
to whether the material brought on record reasonably
connect the accused with the offence. Nothing more
is required to be enquired into. While dealing with the
aforesaid provisions, the test of prima facie case is
to be applied. The court has to find out whether the
materials offered by the prosecution to be adduced
as evidence are sufficient for the court to proceed
against the accused further. (Vide State of Karnataka v.
L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 :
AIR 1977 SC 1489] , All India Bank Officers’ Confederation
v. Union of India [(1989) 4 SCC 90 : 1989 SCC (L&S) 627 :
AIR 1989 SC 2045] , Stree Atyachar Virodhi Parishad v.
Dilip Nathumal Chordia [(1989) 1 SCC 715 : 1989 SCC
(Cri) 285] , State of M.P. v. Krishna Chandra Saksena
[(1996) 11 SCC 439 : 1997 SCC (Cri) 35] and State of
M.P. v. Mohanlal Soni [(2000) 6 SCC 338 : 2000 SCC
(Cri) 1110 : AIR 2000 SC 2583] .)
101. In Dilawar Balu Kurane v. State of Maharashtra
[(2002) 2 SCC 135 : 2002 SCC (Cri) 310] , this Court
while dealing with the provisions of Sections 227 and
228 CrPC, placed a very heavy reliance on the earlier
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judgment of this Court in Union of India v. Prafulla Kumar
Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : AIR 1979
SC 366] and held that while considering the question of
framing the charges, the court may weigh the evidence
for the limited purpose of finding out whether or not a
prima facie case against the accused has been made
out and whether the materials placed before the court
disclose grave suspicion against the accused which has
not been properly explained. In such an eventuality, the
court is justified in framing the charges and proceeding
with the trial. The court has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the court but the
court should not make a roving enquiry into the pros
and cons of the matter and weigh evidence as if it is
conducting a trial.”
(emphasis supplied)
Sajjan Kumar v. CBI, (2010) 9 SCC 368
“Exercise of jurisdiction under Sections 227 and 228
CrPC
21. On consideration of the authorities about the scope of
Sections 227 and 228 of the Code, the following principles
emerge:
(i) The Judge while considering the question
of framing the charges under Section 227
CrPC has the undoubted power to sift and
weigh the evidence for the limited purpose
of finding out whether or not a prima facie
case against the accused has been made
out. The test to determine prima facie case
would depend upon the facts of each case.
(ii) Where the materials placed before the
court disclose grave suspicion against
the accused which has not been properly
explained, the court will be fully justified
in framing a charge and proceeding with
the trial.
[2024] 5 S.C.R. 661
Sunita Devi v. The State of Bihar & Anr.
(iii) The court cannot act merely as a post office
or a mouthpiece of the prosecution but has
to consider the broad probabilities of the
case, the total effect of the evidence and
the documents produced before the court,
any basic infirmities, etc. However, at this
stage, there cannot be a roving enquiry into
the pros and cons of the matter and weigh
the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record,
the court could form an opinion that the
accused might have committed offence, it
can frame the charge, though for conviction
the conclusion is required to be proved
beyond reasonable doubt that the accused
has committed the offence.
(v) At the time of framing of the charges, the
probative value of the material on record
cannot be gone into but before framing a
charge the court must apply its judicial mind
on the material placed on record and must
be satisfied that the commission of offence
by the accused was possible.
(vi) At the stage of Sections 227 and 228, the
court is required to evaluate the material
and documents on record with a view to find
out if the facts emerging therefrom taken at
their face value disclose the existence of
all the ingredients constituting the alleged
offence. For this limited purpose, sift the
evidence as it cannot be expected even
at that initial stage to accept all that the
prosecution states as gospel truth even
if it is opposed to common sense or the
broad probabilities of the case.
(vii) If two views are possible and one of
them gives rise to suspicion only, as
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distinguished from grave suspicion, the
trial Judge will be empowered to discharge
the accused and at this stage, he is not to
see whether the trial will end in conviction
or acquittal.
xxx xxx xxx
24. At the stage of framing of charge under Section 228
CrPC or while considering the discharge petition filed
under Section 227, it is not for the Magistrate or the Judge
concerned to analyse all the materials including pros
and cons, reliability or acceptability, etc. It is at the trial,
the Judge concerned has to appreciate their evidentiary
value, credibility or otherwise of the statement, veracity
of various documents and is free to take a decision one
way or the other.”
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1
“465. All this development clearly indicates the direction in
which the law relating to access to lawyers/legal aid has
developed and continues to develop. It is now rather late in
the day to contend that Article 22(1) is merely an enabling
provision and that the right to be defended by a legal
practitioner comes into force only on the commencement
of trial as provided under Section 304 CrPC.
xxx xxx xxx
471. The resounding words of the Court in Khatri (2) [(1981)
1 SCC 627 : 1981 SCC (Cri) 228] are equally, if not more,
relevant today than when they were first pronounced. In
Khatri (2) [(1981) 1 SCC 627 : 1981 SCC (Cri) 228] the
Court also alluded to the reasons for the urgent need of the
accused to access a lawyer, these being the indigence and
illiteracy of the vast majority of Indians accused of crimes.
472. As noted in Khatri (2) [(1981) 1 SCC 627 : 1981
SCC (Cri) 228] as far back as in 1981, a person arrested
needs a lawyer at the stage of his first production before
the Magistrate, to resist remand to police or jail custody
and to apply for bail. He would need a lawyer when the
[2024] 5 S.C.R. 663
Sunita Devi v. The State of Bihar & Anr.
charge-sheet is submitted and the Magistrate applies his
mind to the charge-sheet with a view to determine the
future course of proceedings. He would need a lawyer at
the stage of framing of charges against him and he would,
of course, need a lawyer to defend him in trial.
xxx xxx xxx
474. We, therefore, have no hesitation in holding
that the right to access to legal aid, to consult and
to be defended by a legal practitioner, arises when
a person arrested in connection with a cognizable
offence is first produced before a Magistrate. We,
accordingly, hold that it is the duty and obligation
of the Magistrate before whom a person accused of
committing a cognizable offence is first produced to
make him fully aware that it is his right to consult and
be defended by a legal practitioner and, in case he
has no means to engage a lawyer of his choice, that
one would be provided to him from legal aid at the
expense of the State. The right flows from Articles 21
and 22(1) of the Constitution and needs to be strictly
enforced. We, accordingly, direct all the Magistrates
in the country to faithfully discharge the aforesaid
duty and obligation and further make it clear that
any failure to fully discharge the duty would amount
to dereliction in duty and would make the Magistrate
concerned liable to departmental proceedings.
475. It needs to be clarified here that the right to consult
and be defended by a legal practitioner is not to be
construed as sanctioning or permitting the presence of
a lawyer during police interrogation. According to our
system of law, the role of a lawyer is mainly focused
on court proceedings. The accused would need a
lawyer to resist remand to police or judicial custody
and for granting of bail; to clearly explain to him the
legal consequences in case he intended to make
a confessional statement in terms of Section 164
CrPC; to represent him when the court examines the
charge-sheet submitted by the police and decides
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upon the future course of proceedings and at the
stage of the framing of charges; and beyond that, of
course, for the trial. It is thus to be seen that the right
to access to a lawyer in this country is not based
on the Miranda [(1966) 16 L Ed 2d 694 : 384 US 436]
principles, as protection against self-incrimination,
for which there are more than adequate safeguards
in Indian laws. The right to access to a lawyer is for
very Indian reasons; it flows from the provisions of
the Constitution and the statutes, and is only intended
to ensure that those provisions are faithfully adhered
to in practice.
xxx xxx xxx
477. Every accused unrepresented by a lawyer has
to be provided a lawyer at the commencement of
the trial, engaged to represent him during the entire
course of the trial. Even if the accused does not ask
for a lawyer or he remains silent, it is the constitutional
duty of the court to provide him with a lawyer before
commencing the trial. Unless the accused voluntarily
makes an informed decision and tells the court, in
clear and unambiguous words, that he does not want
the assistance of any lawyer and would rather defend
himself personally, the obligation to provide him with
a lawyer at the commencement of the trial is absolute,
and failure to do so would vitiate the trial and the
resultant conviction and sentence, if any, given to
the accused (see Suk Das v. UT of Arunachal Pradesh
[(1986) 2 SCC 401 : 1986 SCC (Cri) 166] ).
478. But the failure to provide a lawyer to the
accused at the pre-trial stage may not have the same
consequence of vitiating the trial. It may have other
consequences like making the delinquent Magistrate
liable to disciplinary proceedings, or giving the
accused a right to claim compensation against the
State for failing to provide him legal aid. But it would
not vitiate the trial unless it is shown that failure to
provide legal assistance at the pre-trial stage had
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Sunita Devi v. The State of Bihar & Anr.
resulted in some material prejudice to the accused in
the course of the trial. That would have to be judged
on the facts of each case.”
(emphasis supplied)
Section 228 of the CrPC, 1973
“228. Framing of charge.-
(1) If, after such consideration and hearing as aforesaid,
the Judge is of opinion that there is ground for presuming
that the accused has committed an offence which--
(a) is not exclusively triable by the Court of
Session, he may, frame a charge against
the accused and, by order, transfer the case
for trial to the Chief Judicial Magistrate, [or
any other Judicial Magistrate of the first
class and direct the accused to appear
before the Chief Judicial Magistrate, or, as
the case may be, the Judicial Magistrate of
the first class, on such date as he deems
fit, and thereupon such Magistrate] shall
try the offence in accordance with the
procedure for the trial of warrant-cases
instituted on a police report;
(b) is exclusively triable by the Court, he
shall frame in writing a charge against
the accused.
(2) Where the Judge frames any charge under clause (b)
of sub-section (1), the charge shall be read and explained
to the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried.”
21. Under sub-section (2) of Section 228 of the CrPC, 1973, the Judge, while
framing any charge, is ordained to read and explain it to the accused.
Thereafter, the accused shall be asked as to whether he pleads guilty of
the offence charged or claims to be tried. As a matter of routine, video
conferencing must be avoided, unless there are compelling reasons
to do so. This is an occasion where the Judge avoids the lawyer and
keeps in touch with the accused directly. He records the response
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of the accused. Under those circumstances, unless a situation so
warrants otherwise, the presence of the accused shall be ensured.
EXAMINATION OF WITNESSES
Section 230 of the CrPC, 1973
“230. Date for prosecution evidence .-
If the accused refuses to plead, or does not plead, or
claims to be tried or is not convicted under section 229,
the Judge shall fix a date for the examination of witnesses,
and may, on the application of the prosecution, issue any
process for compelling the attendance of any witness or
the production of any document or other thing.”
Section 231 of the CrPC, 1973
“231. Evidence for prosecution.-
(1) On the date so fixed, the Judge shall proceed to take
all such evidence as may be produced in support of the
prosecution.
(2) The Judge may, in his discretion, permit the cross-
examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any
witness for further cross-examination.”
22. These two provisions are to be read in consonance with each other.
At this stage, the Court is concerned only with the prosecution’s
evidence. To ensure fair play, as a normal practice, the Court has
to fix a date for the examination of the witnesses. The idea is to
complete the examination-in-chief and cross examination, both at
the same time. While fixing the date, the Court is expected to take
into consideration the relative convenience of the parties, though the
discretion lies with it. Sub-section (1) of Section 231 of the CrPC,
1973 fixes a responsibility on the Court, the prosecution and the
defence to go ahead with the examination of witnesses on the date
so fixed. Therefore, even for this reason, the Court shall ascertain
and then decide a convenient date for both sides, while being
conscious about any attempt to drag the trial. Completion of such
examination is a matter of rule as any deferment can at best be an
exception, to the discretion of the Court. Obviously, the use of such
a discretion, being judicial in nature, has to be on a case-to-case
[2024] 5 S.C.R. 667
Sunita Devi v. The State of Bihar & Anr.
basis. Suffice it is to state that a balance has to be struck between
the competing interests.
State of Kerala v. Rasheed, (2019) 13 SCC 297
“22. There cannot be a straitjacket formula providing
for the grounds on which judicial discretion under
Section 231(2) CrPC can be exercised. The exercise
of discretion has to take place on a case-to-case
basis. The guiding principle for a Judge under Section
231(2) CrPC is to ascertain whether prejudice would be
caused to the party seeking deferral, if the application
is dismissed.
23. While deciding an application under Section 231(2)
CrPC, a balance must be struck between the rights of
the accused, and the prerogative of the prosecution
to lead evidence. The following factors must be kept
in consideration:
(i) possibility of undue influence on witness(es);
(ii) possibility of threats to witness(es);
(iii) possibility that non-deferral would enable
subsequent witnesses giving evidence on similar
facts to tailor their testimony to circumvent the
defence strategy;
(iv) possibility of loss of memory of the witness(es)
whose examination-in-chief has been completed;
(v) occurrence of delay in the trial, and the non-
availability of witnesses, if deferral is allowed,
in view of Section 309(1) CrPC [ “309. Power
to postpone or adjourn proceedings.—(1) In
every inquiry or trial the proceedings shall be
continued from day to day until all the witnesses
in attendance have been examined, unless the
court finds the adjournment of the same beyond
the following day to be necessary for reasons
to be recorded: See also Vinod Kumar v. State
of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC
668 [2024] 5 S.C.R.
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(Cri) 226 : (2015) 1 SCC (L&S) 712; and S.J.
Chaudhary v. State (UT of Delhi), (1984) 1 SCC
722 : 1984 SCC (Cri) 163.] .
These factors are illustrative for guiding the exercise of
discretion by a Judge under Section 231(2) CrPC.
24. The following practice guidelines should be
followed by trial courts in the conduct of a criminal
trial, as far as possible:
24.1. A detailed case-calendar must be prepared at the
commencement of the trial after framing of charges.
24.2. The case-calendar must specify the dates on which
the examination-in-chief and cross-examination (if required)
of witnesses is to be conducted.
24.3. The case-calendar must keep in view the proposed
order of production of witnesses by parties, expected
time required for examination of witnesses, availability
of witnesses at the relevant time, and convenience of
both the prosecution as well as the defence, as far as
possible.
24.4. Testimony of witnesses deposing on the same
subject-matter must be proximately scheduled.
24.5. The request for deferral under Section 231(2) CrPC
must be preferably made before the preparation of the
case-calendar.
24.6. The grant for request of deferral must be premised
on sufficient reasons justifying the deferral of cross-
examination of each witness, or set of witnesses.
24.7. While granting a request for deferral of cross-
examination of any witness, the trial courts must specify a
proximate date for the cross-examination of that witness,
after the examination-in-chief of such witness(es) as has
been prayed for.
24.8. The case-calendar, prepared in accordance with
the above guidelines, must be followed strictly, unless
departure from the same becomes absolutely necessary.
[2024] 5 S.C.R. 669
Sunita Devi v. The State of Bihar & Anr.
24.9. In cases where trial courts have granted a request
for deferral, necessary steps must be taken to safeguard
witnesses from being subjected to undue influence,
harassment or intimidation.”
(emphasis supplied)
Section 233 of the CrPC, 1973
“233. Entering upon defence.-
(1) Where the accused is not acquitted under section 232,
he shall be called upon to enter on his defence and adduce
any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge
shall file it with the record.
(3) If the accused applies for the issue of any process for
compelling the attendance of any witness or the production
of any document or thing, the Judge shall issue such
process unless he considers, for reasons to be recorded,
that such application should be refused on the ground
that it is made for the purpose of vexation or delay or for
defeating the ends of justice.”
23. At this stage, the accused will be called upon to enter on his defence
and adduce any evidence. If the accused applies for the issue of process
to compel the attendance of any witnesses or production of document,
the Judge shall issue such process. It is only when he comes to the
conclusion, that an application filed for the aforesaid purpose on behalf
of the defence is vexatious or filed to delay the proceedings or for
defeating the ends of justice, it has to be refused. We have no hesitation
in holding that when an application is moved invoking Section 233 of
the CrPC, 1973 the Judge is duty bound to issue process, unless he
is satisfied on the existence of the three elements as aforesaid. Any
denial would be an affront to the concept of a fair trial.
Section 309 of the CrPC, 1973
“309. Power to postpone or adjourn proceedings.— (1)
In every inquiry or trial the proceedings shall be continued
from day-to-day until all the witnesses in attendance have
been examined, unless the Court finds the adjournment
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of the same beyond the following day to be necessary for
reasons to be recorded:
Provided that when the inquiry or trial relates to an offence
under Section 376, Section 376A, Section 376AB, Section
376B, Section 376C, Section 376D, Section 376DA or
Section 376DB of the Indian Penal Code (45 of 1860),
the inquiry or trial shall be completed within a period of
two months from the date of filing of the charge sheet.
(2) If the Court after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks
fit, for such time as it considers reasonable, and may by
a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused
person to custody under this section for a term exceeding
fifteen days at a time:
Provided further that when witnesses are in attendance,
no adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded
in writing:
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him:
Provided also that—
(a) no adjournment shall be granted at the request of a
party, except where the circumstances are beyond
the control of that party;
(b) the fact that the pleader of a party is engaged in
another Court, shall not be a ground for adjournment;
(c) where a witness is present in Court but a party or
his pleader is not present or the party or his pleader
though present in Court, is not ready to examine or
cross-examine the witness, the Court may, if thinks
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fit, record the statement of the witness and pass such
orders as it thinks fit dispensing with the examination-
in-chief or cross-examination of the witness, as the
case may be.
Explanation 1.—If sufficient evidence has been obtained
to raise a suspicion that the accused may have committed
an offence, and it appears likely that further evidence may
be obtained by a remand, this is a reasonable cause for
a remand.
Explanation 2.—The terms on which an adjournment or
postponement may be granted include, in appropriate
cases, the payment of costs by the prosecution or the
accused.”
24. This section places emphasis on the continuation of the trial as any
obstruction and delay would hamper the process of justice. In a
criminal trial, continuity is of utmost importance, as it not only helps
the court to concentrate, but ensures quality justice. However, the
courts are not powerless in granting adjournments if the circumstances
so warrant. Therefore, despite a bar under the second and fourth
proviso to Section 309, an adjournment can be granted, provided
the party who seeks so, satisfies the court. After all, a speedy trial
enures to the benefit of the accused.
State of UP v. Shambu Nath Singh (2001) 4 SCC 667
“11. The first sub-section mandates on the trial courts
that the proceedings shall be held expeditiously
but the words “as expeditiously as possible” have
provided some play at the joints and it is through
such play that delay often creeps in the trials. Even
so, the next limb of the sub-section sounded for a
more vigorous stance to be adopted by the court at a
further advanced stage of the trial. That stage is when
examination of the witnesses begins. The legislature
which diluted the vigour of the mandate contained in
the initial limb of the sub-section by using the words
“as expeditiously as possible” has chosen to make
the requirement for the next stage (when examination
of the witnesses has started) to be quite stern. Once
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the case reaches that stage the statutory command
is that such examination “shall be continued from
day to day until all the witnesses in attendance have
been examined”. The solitary exception to the said
stringent rule is, if the court finds that adjournment
“beyond the following day to be necessary” the same
can be granted for which a condition is imposed on the
court that reasons for the same should be recorded.
Even this dilution has been taken away when witnesses
are in attendance before the court. In such situation the
court is not given any power to adjourn the case except
in the extreme contingency for which the second proviso
to sub-section (2) has imposed another condition,
“provided further that when witnesses are in
attendance, no adjournment or postponement
shall be granted, without examining them, except
for special reasons to be recorded in writing”.
(emphasis supplied)
12. Thus, the legal position is that once examination of
witnesses started, the court has to continue the trial from
day to day until all witnesses in attendance have been
examined (except those whom the party has given up).
The court has to record reasons for deviating from the
said course. Even that is forbidden when witnesses
are present in court, as the requirement then is that
the court has to examine them. Only if there are
“special reasons”, which reasons should find a place
in the order for adjournment, that alone can confer
jurisdiction on the court to adjourn the case without
examination of witnesses who are present in court.”
(emphasis supplied)
Section 465 of the CrPC, 1973
“465. Finding or sentence when reversible by reason
of error, omission or irregularity.—
(1) Subject to the provisions hereinbefore contained,
no finding, sentence or order passed by a Court of
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competent jurisdiction shall be reversed or altered by
a Court of appeal, confirmation of revision on account
of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or in any inquiry
or other proceedings under this Code, or any error, or
irregularity in any sanction for the prosecution, unless in
the opinion of that Court, a failure of justice has in fact
been occasioned thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any
error, or irregularity in any sanction for the prosecution
has occasioned a failure of justice, the Court shall have
regard to the fact whether the objection could and should
have been raised at an earlier stage in the proceedings.”
25. This provision is meant to uphold the decision of the trial court, even
in a case where there is an apparent irregularity in procedure. If the
evidence available has been duly taken note of by the Court, then
such a decision cannot be reversed on account of a mere technical
error. This is based on the principle that a procedural law is the
handmaid of justice. However, the ultimate issue is as to whether
such an error or omission has constituted a failure of justice, which
is one of fact, to be decided on the touchstone of prejudice.
26. If the Appellate Court is of the view that there is a continued non-
compliance of the substantial provisions of the CrPC, 1973 then the
rigour of Section 465 of the CrPC, 1973 would not apply and, in that
case, an order of remand would be justified.
State of M.P. v. Bhooraji, (2001) 7 SCC 679
“15. A reading of the section makes it clear that the error,
omission or irregularity in the proceedings held before or
during the trial or in any enquiry were reckoned by the
legislature as possible occurrences in criminal courts. Yet
the legislature disfavoured axing down the proceedings
or to direct repetition of the whole proceedings afresh.
Hence, the legislature imposed a prohibition that unless
such error, omission or irregularity has occasioned “a
failure of justice” the superior court shall not quash
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the proceedings merely on the ground of such error,
omission or irregularity.
16. What is meant by “a failure of justice” occasioned
on account of such error, omission or irregularity?
This Court has observed in Shamnsaheb M. Multtani
v. State of Karnataka [(2001) 2 SCC 577: 2001 SCC
(Cri) 358] thus: (SCC p. 585, para 23)
“23. We often hear about ‘failure of justice’
and quite often the submission in a criminal
court is accentuated with the said expression.
Perhaps it is too pliable or facile an expression
which could be fitted in any situation of
a case. The expression ‘failure of justice’
would appear, sometimes, as an etymological
chameleon (the simile is borrowed from Lord
Diplock in Town Investments Ltd. v. Deptt.
of the Environment [(1977) 1 All ER 813:
1978 AC 359: (1977) 2 WLR 450 (HL)]). The
criminal court, particularly the superior court
should make a close examination to ascertain
whether there was really a failure of justice
or whether it is only a camouflage.”
(emphasis supplied)
Darbara Singh v. State of Punjab, (2012) 10 SCC 476
21. “Failure of justice” is an extremely pliable or facile
expression, which can be made to fit into any situation
in any case. The court must endeavour to find the
truth. There would be “failure of justice”; not only by
unjust conviction, but also by acquittal of the guilty, as
a result of unjust failure to produce requisite evidence.
Of course, the rights of the accused have to be kept
in mind and also safeguarded, but they should not be
overemphasised to the extent of forgetting that the
victims also have rights. It has to be shown that the
accused has suffered some disability or detriment in
respect of the protections available to him under the
Indian criminal jurisprudence. “Prejudice” is incapable
[2024] 5 S.C.R. 675
Sunita Devi v. The State of Bihar & Anr.
of being interpreted in its generic sense and applied to
criminal jurisprudence. The plea of prejudice has to be
in relation to investigation or trial, and not with respect
to matters falling outside their scope. Once the accused
is able to show that there has been serious prejudice
caused to him, with respect to either of these aspects,
and that the same has defeated the rights available to
him under criminal jurisprudence, then the accused can
seek benefit under the orders of the court. (Vide Rafiq
Ahmed v. State of U.P. [(2011) 8 SCC 300 : (2011) 3 SCC
(Cri) 498: AIR 2011 SC 3114] , SCC p. 320, para 36; Rattiram
v. State of M.P. [(2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481]
and Bhimanna v. State of Karnataka [(2012) 9 SCC 650] .)”
(emphasis supplied)
Kottayya v. Emperor, AIR (34) 1947 Privy Council 67
“[7] Even on this basis, Mr. Pritt for the accused has argued
that a breach of a direct and important provision of the
Code of Criminal Procedure cannot be cured, but must
lead to the quashing of the conviction. The Crown, on the
other hand, contends that the failure to produce the note-
book in question amounted merely to an irregularity in the
proceedings which can be cured under the provisions of S.
537 Criminal P.C. if the court is satisfied that such irregularity
has not in fact occasioned any failure of justice. There are,
no doubt, authorities in India which lend some support to
Mr. Pritt’s contention, and reference may be made to 49
ALL. 475 [(’27) 49 All. 475 : 14 A.I.R. 1927 All. 350 : 100
I.C. 371, Tirkha v Nanak], in which the court expressed
the view that S. 537, Criminal P.C., applied only to errors
of procedure arising out of mere inadvertence, and not
to cases of disregard of, or disobedience to, mandatory
provisions of the Code, and to 45 Mad. 820 [(’22) 45 Mad.
820 : 9 A.I.R. 1922 Mad. 512 : 71 I.C. 252, In re Madura
Muthu Vannian.], in which the view was expressed that any
failure to examine the accused under S. 342, Criminal P.C.,
was fatal to the validity of the trial and could not be cured
under S. 537. In their Lordships’ opinion this argument is
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based on too narrow a view of the operation of S. 537.
When a trial is conducted in a manner different from
that prescribed by the Code as in 28 I.A. 257 [(’01) 28
I.A. 257 : 25 Mad. 61 : 8 Sar. 160 (P.C.), Subrahmania
Aiyar v. Emperor], the trial is bad, and no question of
curing an irregularity arises; but if the trial is conducted
substantially in the manner prescribed by the Code,
but some irregularity occurs in the course of such
conduct, the irregularity can be cured under S. 537,
and none the less so because the irregularity involves,
as must nearly always be the case, a breach of one
or more of the very comprehensive provisions of the
Code. The distinction drawn in many of the cases in
India between an illegality and an irregularity is one
of degree rather than of kind. This view finds support in
the decision of their Lordships’ Board in 5 Rang. 53 [(‘26)
5 Rang. 53 : 14 A.I.R. 1927 P.C. 44 :54 I.A. 96 : 100 I.C.
227 (P.C.), Abdul Rahman v. Emperor], where failure to
comply with Ss. 360, Criminal P.C., was held to be cured
by Ss. 535 and 537. The present case falls under S. 537,
and their Lordships hold the trial valid notwithstanding the
breach of S. 162.”
(emphasis supplied)
RE-TRIAL
Section 386 of the CrPC, 1973
“386. Powers of the Appellate Court.—After perusing
such record and hearing the appellant or his pleader, if
he appears, and the Public Prosecutor if he appears, and
in case of an appeal under section 377 or section 378,
the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such
order and direct that further inquiry be made, or that
the accused be re-tried or committed for trial, as the
case may be, or find him guilty and pass sentence
on him according to law;
[2024] 5 S.C.R. 677
Sunita Devi v. The State of Bihar & Anr.
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and
acquit or discharge the accused, or order
him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate
Court or committed for trial, or
(ii) alter the finding, maintaining the sentence,
or
(iii) with or without altering the finding, alter
the nature or the extent, or the nature and
extent, of the sentence, but not so as to
enhance the same—
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit
or discharge the accused or order him to
be re-tried by a Court competent to try the
offence, or
(ii) alter the finding maintaining the sentence,
or
(iii) with or without altering the finding, alter
the nature or the extent, or, the nature and
extent, of the sentence, so as to enhance
or reduce the same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless
the accused has had an opportunity of showing cause
against such enhancement:
Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the
accused has committed, than might have been inflicted for
that offence by the Court passing the order or sentence
under appeal.”
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27. An Appellate Court has got ample power to direct re-trial. However,
such a power is to be exercised in exceptional cases. The irregularities
found must be so material that a re-trial is the only option. In other
words, the failure to follow the mandate of law must cause a serious
prejudice vitiating the entire trial, which cannot be cured otherwise,
except by way of a re-trial. Once such a re-trial is ordered, the effect
is that all the proceedings recorded by the court would get obliterated
leading to a fresh trial, which is inclusive of the examination of
witnesses.
Nasib Singh v. State of Punjab, (2022) 2 SCC 89
“33. The principles that emerge from the decisions of this
Court on retrial can be formulated as under:
33.1. The appellate court may direct a retrial only in
“exceptional” circumstances to avert a miscarriage
of justice.
33.2. Mere lapses in the investigation are not sufficient
to warrant a direction for retrial. Only if the lapses are
so grave so as to prejudice the rights of the parties,
can a retrial be directed.
33.3. A determination of whether a “shoddy”
investigation/trial has prejudiced the party, must
be based on the facts of each case pursuant to a
thorough reading of the evidence.
33.4. It is not sufficient if the accused/prosecution
makes a facial argument that there has been a
miscarriage of justice warranting a retrial. It is
incumbent on the appellate court directing a retrial
to provide a reasoned order on the nature of the
miscarriage of justice caused with reference to the
evidence and investigatory process.
33.5. If a matter is directed for retrial, the evidence
and record of the previous trial is completely wiped
out.
33.6. The following are some instances, not intended
to be exhaustive, of when the Court could order a
retrial on the ground of miscarriage of justice:
[2024] 5 S.C.R. 679
Sunita Devi v. The State of Bihar & Anr.
(a) The trial court has proceeded with the
trial in the absence of jurisdiction;
(b) The trial has been vitiated by an illegality
or irregularity based on a misconception of
the nature of the proceedings; and
(c) The prosecutor has been disabled or
prevented from adducing evidence as
regards the nature of the charge, resulting
in the trial being rendered a farce, sham
or charade.”
SENTENCING
“If the criminal law as a whole is the Cinderella
of jurisprudence, then the law of sentencing is
Cinderella’s illegitimate baby”
Nigel Walker.
British criminologist
Sentencing in a Rational Society 1 (1969)
Section 235 of the CrPC, 1973
“235. Judgment of acquittal or conviction.—
(1) After hearing arguments and points of law (if any), the
Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless
he proceeds in accordance with the provisions of section
360, hear the accused on the questions of sentence, and
then pass sentence on him according to law.”
Section 360 of the CrPC, 1973
“360. Order to release on probation of good conduct
or after admonition.-
(1) When any person not under twenty-one years of age
is convicted of an offence punishable with fine only or
with imprisonment for a term of seven years or less, or
when any person under twenty-one years of age or any
woman is convicted of an offence not punishable with
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death or imprisonment for life, and no previous conviction
is proved against the offender, if it appears to the Court
before which he is convicted, regard being had to the
age, character or antecedents of the offender, and to
the circumstances in which the offence was committed,
that it is expedient that the offender should be released
on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he
be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called
upon during such period (not exceeding three years) as
the Court may direct and in the meantime to keep the
peace and be of good behaviour:
Provided that where any first offender is convicted by a
Magistrate of the second class not specially empowered
by the High Court, and the Magistrate is of opinion that
the powers conferred by this section should be exercised,
he shall record his opinion to that effect, and submit the
proceedings to a Magistrate of the first class forwarding
the accused to or taking bail for his appearance before,
such Magistrate, who shall dispose of the case in the
manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate
of the first class as provided by sub-section (1), such
Magistrate may thereupon pass such sentence or make
such order as he might have passed or made if the
case had originally been heard by him, and, if he thinks
further inquiry or additional evidence on any point to
be necessary, he may make such inquiry or take such
evidence himself or direct such inquiry or evidence to
be made or taken.
(3) In any case in which a person is convicted of theft,
theft in a building, dishonest misappropriation, cheating
or any offence under the Indian Penal Code (45 of 1860)
punishable with not more than two years’ imprisonment
or any offence punishable with fine only and no previous
conviction is proved against him, the Court before which
[2024] 5 S.C.R. 681
Sunita Devi v. The State of Bihar & Anr.
he is so convicted may, if it thinks fit, having regard to
the age, character, antecedents or physical or mental
condition of the offender and to the trivial nature of the
offence or any extenuating circumstances under which the
offence was committed, instead of sentencing him to any
punishment, release him after due admonition.
(4) An order under this section may be made by any
Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
(5) When an order has been made under this section
in respect of any offender, the High Court or Court of
Session may, on appeal when there is a right of appeal
to such Court, or when exercising its powers of revision,
set aside such order, and in lieu thereof pass sentence
on such offender according to law:
Provided that the High Court or Court of Session shall
not under this sub-section inflict a greater punishment
than might have been inflicted by the Court by which the
offender was convicted.
(6) The provisions of Sections 121, 124 and 373 shall,
so far as may be apply in the case of sureties offered in
pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender
under sub-section (1) shall be satisfied that an offender
or his surety (if any) has a fixed place of abode or regular
occupation in the place for which the Court acts or in which
the offender is likely to live during the period named for
the observance of the conditions.
(8) If the Court which convicted the offender, or a Court
which could have dealt with the offender in respect of his
original offence, is satisfied that the offender has failed to
observe any of the conditions of his recognizance, it may
issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant,
shall be brought forthwith before the Court issuing the
warrant, and such Court may either remand him in custody
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until the case is heard or admit him to bail with a sufficient
surety conditioned on his appearing for sentence and such
Court may after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of
the Probation of Offenders Act, 1958 (20 of 1958), or the
Children Act, 1960 (60 of 1960), or any other law for the time
being in force for the treatment, training or rehabilitation
of youthful offenders.”
Section 3 of the Probation of Offenders Act, 1958
“3. Power of court to release certain offenders after
admonition.—
When any person is found guilty of having committed an
offence punishable under section 379 or section 380 or
section 381 or section 404 or section 420 of the Indian
Penal Code, (45 of 1860) or any offence punishable with
imprisonment for not more than two years, or with fine, or
with both, under the Indian Penal Code or any other law,
and no previous conviction is proved against him and the
court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including
the nature of the offence, and the character of the offender,
it is expedient so to do, then, notwithstanding anything
contained in any other law for the time being in force, the
court may, instead of sentencing him to any punishment
or releasing him on probation of good conduct under
section 4, release him after due admonition.
Explanation.—For the purposes of this section, previous
conviction against a person shall include any previous
order made against him under this section or section 4.”
Section 4 of the Probation of Offenders Act, 1958
“4. Power of court to release certain offenders on
probation of good conduct.—
(1) When any person is found guilty of having committed
an offence not punishable with death or imprisonment
for life and the court by which the person is found guilty
is of opinion that, having regard to the circumstances
[2024] 5 S.C.R. 683
Sunita Devi v. The State of Bihar & Anr.
of the case including the nature of the offence and the
character of the offender, it is expedient to release him
on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being
in force, the court may, instead of sentencing him at
once to any punishment direct that he be released
on his entering into a bond, with or without sureties,
to appear and receive sentence when called upon
during such period, not exceeding three years, as
the court may direct, and in the meantime to keep
the peace and be of good behaviour:
Provided that the court shall not direct such release
of an offender unless it is satisfied that the offender or
his surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises
jurisdiction or in which the offender is likely to live
during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the
court shall take into consideration the report, if any, of
the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the
court may, if it is of opinion that in the interests of
the offender and of the public it is expedient so to
do, in addition pass a supervision order directing that
the offender shall remain under the supervision of
a probation officer named in the order during such
period, not being less than one year, as may be
specified therein, and may in such supervision order,
impose such conditions as it deems necessary for
the due supervision of the offender.
(4) The court making a supervision order under sub-
section (3) shall require the offender, before he
is released, to enter into a bond, with or without
sureties, to observe the conditions specified in such
order and such additional conditions with respect to
residence, abstention from intoxicants or any other
matter as the court may, having regard to the particular
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circumstances, consider fit to impose for preventing
a repetition of the same offence or a commission of
other offences by the offender.
(5) The court making a supervision order under sub-
section (3) shall explain to the offender the terms
and conditions of the order and shall forthwith furnish
one copy of the supervision order to each of the
offenders, the sureties, if any, and the probation
officer concerned.”
Section 6 of the Probation of Offenders Act 1958
“6. Restrictions on imprisonment of offenders under
twenty-one years of age.—
(1) When any person under twenty-one years of age is
found guilty of having committed an offence punishable
with imprisonment (but not with imprisonment for life),
the court by which the person is found guilty shall not
sentence him to imprisonment unless it is satisfied that,
having regard to the circumstances of the case including
the nature of the offence and the character of the offender,
it would not be desirable to deal with him under section
3 or section 4, and if the court passes any sentence of
imprisonment on the offender, it shall record its reasons
for doing so.
(2) For the purpose of satisfying itself whether it would
not be desirable to deal under section 3 or section 4 with
an offender referred to in sub-section (1), the court shall
call for a report from the probation officer and consider
the report, if any, and any other information available to it
relating to the character and physical and mental condition
of the offender.”
28. Before passing the sentence on a convict, after rendering conviction,
the Judge shall consider the feasibility of proceeding in accordance
with the provisions of Section 360 of the CrPC, 1973 which speaks of
releasing a convict on probation of good conduct or after admonition.
Being a beneficial provision dealing with a reformative aspect, it is
the bounden duty of the Judge to consider the application of this
provision before proceeding to hear the accused on sentence. While
[2024] 5 S.C.R. 685
Sunita Devi v. The State of Bihar & Anr.
doing so, the Judge has to hear the accused and the prosecution.
Similarly, the Court has to apply the salient provisions contained
under Sections 3, 4 and 6 of the Probation of Offenders Act, 1958
(hereinafter referred to as “Act, 1958”). If an offence is considered as
an act against the society, the resultant action cannot be retributive
alone, as equal importance is required, if not more, to be given
to the reformative part. The ultimate goal is to bring the accused
back on the rails, to once again be a part of society. Any attempt
to ignore either Section 360 of the CrPC, 1973 or the provisions as
mandated in the Act, 1958 would make their purpose redundant. It
looks as if these laudable provisions have been lost sight of while
rendering a sentence. The ultimate objective is to prevent the
commission of such offences in future. It can never be done by a
retributive measure alone, as a change of heart at the behest of
the accused is the best way to prevent an act of crime. Therefore,
we have absolute clarity in our mind, that a trial court is duty bound
to comply with the mandate of Section 360 of the CrPC, 1973 read
with Sections 3, 4 and 6 of the Act, 1958 before embarking into
the question of sentence. In this connection, we may note that sub-
section (10) of Section 360 of the CrPC, 1973 makes a conscious
effort to remind the Judge of the rigour of the beneficial provisions
contained in the Act, 1958.
29. Hearing the accused on sentence is a valuable right conferred on
the accused. The real importance lies only with the sentence, as
against the conviction. Unfortunately, we do not have a clear policy
or legislation when it comes to sentencing. Over the years, it has
become judge-centric and there are admitted disparities in awarding
a sentence.
30. In a country like ours, sentencing accused persons pursuant to a
conviction, on a uniform pattern, would also be prejudicial. When it
comes to sentencing, there are various factors such as age, sex,
education, home life, social background, emotional and mental
conditions, caste, religion and community that constitute aggravating
and mitigating circumstances.
31. There is a distinction between knowledge and character. Knowledge
is acquired, while character is formed. The formation of a person’s
character depends upon various factors. More often than not, a
convict does not have control over the formation of his character. This
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leads to certain groups of people inheriting crime. In this connection,
we can draw an analogy from nature itself. Before falling on the
ground, rainwater remains the same. It is the soil which changes
the character of the water. Rainwater partakes in the character of
the soil, over which it does not have any control. The issues are
extremely complex.
32. A decision of a Judge in sentencing, would vary from person to
person. This will also vary from stage to stage. It is controlled by
the mind. The environment and the upbringing of a Judge would
become the ultimate arbiter in deciding the sentence. A Judge
from an affluent background might have a different mindset as
against a Judge from a humble one. A female Judge might look at
it differently, when compared to her male counterpart. An Appellate
Court might tinker with the sentence due to its experience, and
the external factors like institutional constraints might come into
play. Certainly, there is a crying need for a clear sentencing policy,
which should never be judge-centric as the society has to know
the basis of a sentence.
33. Sentencing shall not be a mere lottery. It shall also not be an
outcome of a knee-jerk reaction. This is a very important part of
the Fundamental Rights conferred under Articles 14 and 21 of the
Constitution of India, 1950. Any unwarranted disparity would be
against the very concept of a fair trial and, therefore, against justice.
34. Various elements such as deterrence, incapacitation and reformation
should form part of sentencing. There is a compelling need for a
studied scrutiny of sentencing, to address in particular the reformative
aspect, while maintaining equality between different groups. Perhaps,
much study is also required on the occurence of repeat offences,
which could be attributable to certain groups. The nexus between
particular types of offences and the offenders forming their own
groups has to be taken note of and addressed.
35. The concept of intuitive sentencing is against the rule of law. A Judge
can never have unrestrictive and unbridled discretion, based upon his
conscience formed through his understanding of the society, without
there being any guidelines in awarding a sentence. The need for
adequate guidelines for exercising sentencing discretion, avoiding
unwanted disparity, is of utmost importance.
[2024] 5 S.C.R. 687
Sunita Devi v. The State of Bihar & Anr.
36. Courts do take into consideration the mitigating and aggravating
circumstances. As we have dealt with illustratively, no research
has been undertaken for constituting what are aggravating and
mitigating circumstances. While it would be appropriate to follow
‘beyond reasonable doubt’ standard in adjudicating aggravating
circumstances, the ‘balance of probability’ standard is required while
construing mitigating circumstances. Courts may also be guided
by the conduct of the convict during pre-trial stage, either under
incarceration or otherwise. A report may well be called for from the
designated authority. The ultimate idea is to eliminate discretion on
the part of the Court, which obviously leads to disparity.
37. As we discuss the issue we have flagged, we understand that the
issue is an extremely complex one and it is the duty of the States
and the Union of India to deal with the situation by duly considering
the three different modes discussed above. There has to be a
conscious discussion and debate over this issue which might
require constituting an appropriate Commission on Sentencing
consisting of various experts and stakeholders. We illustratively
suggest “the members from the legal fraternity, psychologists,
sociologists, criminologists, executives and legislators”. Societal
experience would come handy in coming to a correct conclusion.
What we have at present is an imposition of a sentence by way
of a legislation. There are obvious errors and lacunae, which
have been pointed out in the preceding discussion. It may also
be imperative for a court to have an assessment to be made by
an independent authority on the conduct and behaviour of the
accused for the purpose of deciding the sentence. The guidelines
which have been proposed by this Court may also be considered.
This would include the creation of a competent authority tasked
to give a report and its composition.
Manoj v. State of M.P., (2023) 2 SCC 353
“230. The strength of “precedent” and “consistency” is
perhaps, therefore, lowest when it comes to matters of
sentencing, as long as it is within the confines of legality
and resulting in “principled sentencing”. In other words,
the judicial incongruence when it relates to sentencing,
would in fact be a positive indicator, rather than a negative
one, provided it is still within the well-defined contours of
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“principled” sentencing. For sentencing in capital offences,
discretion to arrive at individualised sentences is encouraged,
but must be constrained by the “rarest of rare” principle,
wherein the court considers aggravating circumstances of
the crime, and mitigating circumstances of the criminal (a
“liberal and expansive” construction of the latter), which in
turn must inform their consideration of whether the option of
life imprisonment is unquestionably foreclosed owing to an
impossibility [ Held to be “probability” and not “impossibility”
in Rajendra Pralhadrao Wasnik v. State of Maharashtra,
(2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] to reform.
xxx xxx xxx
233. Therefore, “individualised, principled sentencing” —
based on both the crime and criminal, with consideration
of whether reform or rehabilitation is achievable (held to
be “probable” in Rajendra Pralhadrao Wasnik [Rajendra
Pralhadrao Wasnik v. State of Maharashtra, (2019) 12
SCC 460 : (2019) 4 SCC (Cri) 420] ), and consequently
whether the option of life imprisonment is unquestionably
foreclosed — should be the only factor of “commonality”
that must be discernible from decisions relating to capital
offences. With the creation of a new sentencing threshold
in Swamy Shraddananda (2) [Swamy Shraddananda (2) v.
State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri)
113] , and later affirmed by a Constitution Bench in Union
of India v. V. Sriharan [Union of India v. V. Sriharan, (2016)
7 SCC 1 : (2016) 2 SCC (Cri) 695] , of life imprisonment
without statutory remission (i.e. Articles 72 and 161 of the
Constitution are still applicable), yet another option exists,
before imposition of death sentence. However, serious
concern has been raised against this concept, as it was
upheld by a narrow majority, and is left to be considered
at an appropriate time.
xxx xxx xxx
Practical guidelines to collect mitigating circumstances
248. There is urgent need to ensure that mitigating
circumstances are considered at the trial stage, to avoid
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slipping into a retributive response to the brutality of the
crime, as is noticeably the situation in a majority of cases
reaching the appellate stage.
249. To do this, the trial court must elicit information from
the accused and the State, both. The State, must—for an
offence carrying capital punishment—at the appropriate
stage, produce material which is preferably collected
beforehand, before the Sessions Court disclosing
psychiatric and psychological evaluation of the accused.
This will help establish proximity (in terms of timeline), to the
accused person’s frame of mind (or mental illness, if any)
at the time of committing the crime and offer guidance on
mitigating factors (1), (5), (6) and (7) spelled out in Bachan
Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] . Even for the other factors of (3) and
(4)—an onus placed squarely on the State—conducting
this form of psychiatric and psychological evaluation close
on the heels of commission of the offence, will provide a
baseline for the appellate courts to use for comparison i.e. to
evaluate the progress of the accused towards reformation,
achieved during the incarceration period.
250. Next, the State, must in a time-bound manner,
collect additional information pertaining to the accused.
An illustrative, but not exhaustive list is as follows:
(a) Age
(b) Early family background (siblings, protection of
parents, any history of violence or neglect)
(c) Present family background (surviving family members,
whether married, has children, etc.)
(d) Type and level of education
(e) Socio-economic background (including conditions of
poverty or deprivation, if any)
(f) Criminal antecedents (details of offence and whether
convicted, sentence served, if any)
(g) Income and the kind of employment (whether none,
or temporary or permanent, etc.);
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(h) Other factors such as history of unstable social
behaviour, or mental or psychological ailment(s),
alienation of the individual (with reasons, if any), etc.
This information should mandatorily be available to
the trial court, at the sentencing stage. The accused
too, should be given the same opportunity to produce
evidence in rebuttal, towards establishing all mitigating
circumstances.
251. Lastly, information regarding the accused’s jail
conduct and behaviour, work done (if any), activities the
accused has involved themselves in, and other related
details should be called for in the form of a report from the
relevant jail authorities (i.e. Probation and Welfare Officer,
Superintendent of Jail, etc.). If the appeal is heard after a
long hiatus from the trial court’s conviction, or High Court’s
confirmation, as the case may be — a fresh report (rather
than the one used by the previous court) from the jail
authorities is recommended, for a more exact and complete
understanding of the contemporaneous progress made by
the accused, in the time elapsed. The jail authorities must
also include a fresh psychiatric and psychological report
which will further evidence the reformative progress, and
reveal post-conviction mental illness, if any.
252. It is pertinent to point out that this Court in Anil v.
State of Maharashtra [Anil v. State of Maharashtra, (2014)
4 SCC 69 : (2014) 2 SCC (Cri) 266] has in fact directed
criminal courts to call for additional material : (SCC p.
86, para 33)
“33. … Many a times, while determining the sentence,
the courts take it for granted, looking into the facts of
a particular case, that the accused would be a menace
to the society and there is no possibility of reformation
and rehabilitation, while it is the duty of the court to
ascertain those factors, and the State is obliged to furnish
materials for and against the possibility of reformation and
rehabilitation of the accused. The facts, which the courts
deal with, in a given case, cannot be the foundation for
reaching such a conclusion, which, as already stated,
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calls for additional materials. We, therefore, direct that the
criminal courts, while dealing with the offences like Section
302IPC, after conviction, may, in appropriate cases, call
for a report to determine, whether the accused could be
reformed or rehabilitated, which depends upon the facts
and circumstances of each case.”
(emphasis supplied)
We hereby fully endorse and direct that this should be
implemented uniformly, as further elaborated above, for
conviction of offences that carry the possibility of death
sentence.”
38. Our thought process has been ignited from a book titled “Discretion,
Discrimination and the Rule of Law, Reforming Sentencing in India”,
authored by Mr. Mrinal Satish, published by the Cambridge University
Press, (2017). The learned author has drawn extensively from the
sentencing policy in Israel. Upon a thorough reading of the book, it
presents an excellent insight into sentencing policy. The Israeli model
takes into consideration numerous factors compiled in the form of
guidelines to the Judge, in sentencing an accused.
39. We have also benefitted by looking into the policy adopted in other
countries, such as in Canada, New Zealand and UK.
CANADA
Criminal Code (Canada)
Purpose and Principles of Sentencing
Section 718 of the Criminal Code (Canada)
“Purpose
718 The fundamental purpose of sentencing is to
protect society and to contribute, along with crime
prevention initiatives, to respect for the law and the
maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the
following objectives:
(a) to denounce unlawful conduct and the harm done
to victims or to the community that is caused by
unlawful conduct;
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(b) to deter the offender and other persons from
committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to
the community; and
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims or to
the community.”
(emphasis supplied)
Section 718.1 of the Criminal Code (Canada)
“Fundamental principle
718.1 A sentence must be proportionate to the gravity
of the offence and the degree of responsibility of the
offender.”
(emphasis supplied)
Section 718.2 of the Criminal Code (Canada)
“Other sentencing principles
718.2 A court that imposes a sentence shall also take
into consideration the following principles:
(a) a sentence should be increased or reduced to
account for any relevant aggravating or mitigating
circumstances relating to the offence or the offender,
and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by
bias, prejudice or hate based on race, national
or ethnic origin, language, colour, religion,
sex, age, mental or physical disability, sexual
orientation, or gender identity or expression,
or on any other similar factor,
(ii) evidence that the offender, in committing the
offence, abused the offender’s intimate partner
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or a member of the victim or the offender’s
family,
(ii.1) evidence that the offender, in committing the
offence, abused a person under the age of
eighteen years,
(iii) evidence that the offender, in committing the
offence, abused a position of trust or authority
in relation to the victim,
(iii.1) evidence that the offence had a significant
impact on the victim, considering their age
and other personal circumstances, including
their health and financial situation,
(iii.2) evidence that the offence was committed
against a person who, in the performance of
their duties and functions, was providing health
services, including personal care services,
(iv) evidence that the offence was committed for the
benefit of, at the direction of or in association
with a criminal organization,
(v) evidence that the offence was a terrorism
offence,
(vi) evidence that the offence was committed
while the offender was subject to a conditional
sentence order made under section 742.1
or released on parole, statutory release or
unescorted temporary absence under the
Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence
had the effect of impeding another person from
obtaining health services, including personal
care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed
on similar offenders for similar offences committed
in similar circumstances;
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(c) where consecutive sentences are imposed, the
combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if
less restrictive sanctions may be appropriate in the
circumstances; and
(e) all available sanctions, other than imprisonment, that
are reasonable in the circumstances and consistent with
the harm done to victims or to the community should be
considered for all offenders, with particular attention to the
circumstances of Aboriginal offenders.”
(emphasis supplied)
Procedure and Evidence
Section 720 of the Criminal Code (Canada)
“Sentencing proceedings
720 (1) A court shall, as soon as practicable after an
offender has been found guilty, conduct proceedings
to determine the appropriate sentence to be imposed.
Court-supervised programs
(2) The court may, with the consent of the Attorney General
and the offender and after considering the interests of
justice and of any victim of the offence, delay sentencing to
enable the offender to attend a treatment program approved
by the province under the supervision of the court, such
as an addiction treatment program or a domestic violence
counselling program.”
(emphasis supplied)
Section 721 of the Criminal Code (Canada)
“Report by probation officer
721 (1) Subject to regulations made under subsection
(2), where an accused, other than an organization,
pleads guilty to or is found guilty of an offence, a
probation officer shall, if required to do so by a court,
prepare and file with the court a report in writing relating
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to the accused for the purpose of assisting the court
in imposing a sentence or in determining whether the
accused should be discharged under section 730.”
(emphasis supplied)
NEW ZEALAND
Sentencing Act 2002, New Zealand
Section 3 of the Sentencing Act, 2002
“Part 1 Sentencing purposes and principles, and
provisions of general application
Preliminary provisions
3 Purposes
The purposes of this Act are—
(a) to set out the purposes for which offenders may be
sentenced or otherwise dealt with; and
(b) to promote those purposes, and aid in the public’s
understanding of sentencing practices, by providing
principles and guidelines to be applied by courts in
sentencing or otherwise dealing with offenders; and
(c) to provide a sufficient range of sentences and other
means of dealing with offenders; and
(d) to provide for the interests of victims of crime.”
(emphasis supplied)
Section 7 of the Sentencing Act, 2002
“Purposes and principles of sentencing
7 Purposes of sentencing or otherwise dealing with
offenders
(1) The purposes for which a court may sentence or
otherwise deal with an offender are—
(a) to hold the offender accountable for harm
done to the victim and the community by the
offending; or
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(b) to promote in the offender a sense of responsibility
for, and an acknowledgment of, that harm; or
(c) to provide for the interests of the victim of the
offence; or
(d) to provide reparation for harm done by the
offending; or
(e) to denounce the conduct in which the offender
was involved; or
(f) to deter the offender or other persons from
committing the same or a similar offence; or
(g) to protect the community from the offender; or
(h) to assist in the offender’s rehabilitation and
reintegration; or
(i) a combination of 2 or more of the purposes
in paragraphs (a) to (h).
(2) To avoid doubt, nothing about the order in which the
purposes appear in this section implies that any purpose
referred to must be given greater weight than any other
purpose referred to.”
(emphasis supplied)
Section 8 of the Sentencing Act, 2002
“8 Principles of sentencing or otherwise dealing with
offenders
In sentencing or otherwise dealing with an offender the
court—
(a) must take into account the gravity of the offending in
the particular case, including the degree of culpability
of the offender; and
(b) must take into account the seriousness of the type
of offence in comparison with other types of offences, as
indicated by the maximum penalties prescribed for the
offences; and
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(c) must impose the maximum penalty prescribed for the
offence if the offending is within the most serious of cases
for which that penalty is prescribed, unless circumstances
relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum
prescribed for the offence if the offending is near to the
most serious of cases for which that penalty is prescribed,
unless circumstances relating to the offender make that
inappropriate; and
(e) must take into account the general desirability of
consistency with appropriate sentencing levels and
other means of dealing with offenders in respect of
similar offenders committing similar offences in similar
circumstances; and
(f) must take into account any information provided
to the court concerning the effect of the offending on
the victim; and
(g) must impose the least restrictive outcome that is
appropriate in the circumstances, in accordance with the
hierarchy of sentences and orders set out in section 10A; and
(h) must take into account any particular circumstances
of the offender that mean that a sentence or other
means of dealing with the offender that would
otherwise be appropriate would, in the particular
instance, be disproportionately severe; and
(i) must take into account the offender’s personal,
family, whanau, community, and cultural background
in imposing a sentence or other means of dealing
with the offender with a partly or wholly rehabilitative
purpose; and
(j) must take into account any outcomes of restorative
justice processes that have occurred, or that the court
is satisfied are likely to occur, in relation to the particular
case (including, without limitation, anything referred to in
section 10).”
(emphasis supplied)
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Section 9 of the Sentencing Act, 2002
“9 Aggravating and mitigating factors
(1) In sentencing or otherwise dealing with an offender the
court must take into account the following aggravating
factors to the extent that they are applicable in the case:
xxx xxx xxx
(2) In sentencing or otherwise dealing with an offender the
court must take into account the following mitigating
factors to the extent that they are applicable in the case:
xxx xxx xxx
(3) Despite subsection (2)(e), the court must not take into
account by way of mitigation the fact that the offender
was, at the time of committing the offence, affected
by the voluntary consumption or use of alcohol or any
drug or other substance (other than a drug or other
substance used for bona fide medical purposes).
xxx xxx xxx
(4) Nothing in subsection (1) or subsection (2)—
(a) prevents the court from taking into account any other
aggravating or mitigating factor that the court thinks fit; or
(b) implies that a factor referred to in those subsections
must be given greater weight than any other factor that
the court might take into account.”
Section 9A of the Sentencing Act, 2002
“9A Cases involving violence against, or neglect of,
child under 14 years
(1) This section applies if the court is sentencing or
otherwise dealing with an offender in a case involving
violence against, or neglect of, a child under the age
of 14 years.
(2) The court must take into account the following
aggravating factors to the extent that they are
applicable in the case:
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(a) the defencelessness of the victim:
(b) in relation to any harm resulting from the offence, any
serious or long-term physical or psychological effect on
the victim:
(c) the magnitude of the breach of any relationship of trust
between the victim and the offender:
(d) threats by the offender to prevent the victim reporting
the offending:
(e) deliberate concealment of the offending from authorities.
(3) The factors in subsection (2) are in addition to
any factors the court might take into account under
section 9.
(4) Nothing in this section implies that a factor referred to
in subsection (2) must be given greater weight than any
other factor that the court might take into account.”
(emphasis supplied)
Section 24 of the Sentencing Act, 2002
“24 Proof of facts
(1) In determining a sentence or other disposition of
the case, a court—
(a) may accept as proved any fact that was
disclosed by evidence at the trial and
any facts agreed on by the prosecutor
and the offender; and
(b) must accept as proved all facts, express
or implied, that are essential to a plea of
guilty or a finding of guilt.
(2) If a fact that is relevant to the determination of a
sentence or other disposition of the case is asserted
by one party and disputed by the other,—
(a) the court must indicate to the parties the
weight that it would be likely to attach to
the disputed fact if it were found to exist,
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and its significance to the sentence or other
disposition of the case:
(b) if a party wishes the court to rely on that
fact, the parties may adduce evidence as to
its existence unless the court is satisfied
that sufficient evidence was adduced at
the trial:
(c) the prosecutor must prove beyond a
reasonable doubt the existence of any
disputed aggravating fact, and must negate
beyond a reasonable doubt any disputed
mitigating fact raised by the defence
(other than a mitigating fact referred to in
paragraph (d)) that is not wholly implausible
or manifestly false:
(d) the offender must prove on the balance of
probabilities the existence of any disputed
mitigating fact that is not related to the
nature of the offence or to the offender’s
part in the offence:
(e) either party may cross-examine any witness
called by the other party.
(3) For the purposes of this section,—
aggravating fact means any fact that—
(a) the prosecutor asserts as a fact that justifies
a greater penalty or other outcome than
might otherwise be appropriate for the
offence; and
(b) the court accepts is a fact that may, if
established, have that effect on the sentence
or other disposition of the case
mitigating fact means any fact that—
(a) the offender asserts as a fact that justifies a
lesser penalty or other outcome than might
otherwise be appropriate for the offence; and
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(b) the court accepts is a fact that may, if
established, have that effect on the sentence
or other disposition of the case.”
(emphasis supplied)
Section 25 of the Sentencing Act, 2002
“25 Power of adjournment for inquiries as to suitable
punishment
(1) A court may adjourn the proceedings in respect of
any offence after the offender has been found guilty or
has pleaded guilty and before the offender has been
sentenced or otherwise dealt with for any 1 or more
of the following purposes:
(a) to enable inquiries to be made or to determine the
most suitable method of dealing with the case:
(b) to enable a restorative justice process to occur,
or to be completed:
(c) to enable a restorative justice agreement to be fulfilled:
(d) to enable a rehabilitation programme or course of
action to be undertaken:
(da) to determine whether to impose an instrument
forfeiture order and, if so, the terms of that order:
(e) to enable the court to take account of the offender’s
response to any process, agreement, programme, or
course of action referred to in paragraph (b), (c), or (d).
(2) If proceedings are adjourned under this section
or under section 10(4) or 24A, a Judge or Justice or
Community Magistrate having jurisdiction to deal with
offences of the same kind (whether or not the same
Judge or Justice or Community Magistrate before
whom the case was heard) may, after inquiry into the
circumstances of the case, sentence or otherwise
deal with the offender for the offence to which the
adjournment relates.”
(emphasis supplied)
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Section 26 of the Sentencing Act, 2002
“26 Pre-sentence reports
(1) Except as provided in section 26A, if an offender who
is charged with an offence punishable by imprisonment
is found guilty or pleads guilty, the court may direct
a probation officer to prepare a report for the court
in accordance with subsection (2).
(2) A pre-sentence report may include—
(a) information regarding the personal, family,
whanau, community, and cultural background,
and social circumstances of the offender:
(b) information regarding the factors contributing
to the offence, and the rehabilitative needs of
the offender:
(c) information regarding any offer, agreement,
response, or measure of a kind referred to
in section 10(1) or the outcome of any other
restorative justice processes that have occurred
in relation to the case:
(d) recommendations on the appropriate
sentence or other disposition of the case,
taking into account the risk of further
offending by the offender:
(e) in the case of a proposed sentence of
supervision, intensive supervision, or
home detention, recommendations on the
appropriate conditions of that sentence:
(f) in the case of a proposed sentence of
supervision, intensive supervision, or home
detention involving 1 or more programmes,—
(i) a report on the programme or
programmes, including a general
description of the conditions that the
offender will have to abide by; and
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(ii) confirmation that the report has been
made available to the offender:
(g) in the case of a proposed sentence of
supervision, intensive supervision, or home
detention involving a special condition requiring
the offender to take prescription medication,
confirmation that the offender—
(i) has been fully advised by a person
who is qualified to prescribe that
medication about the nature and likely
or intended effect of the medication
and any known risks; and
(ii) consents to taking the prescription
medication:
(h) in the case of a proposed sentence of community
work,—
(i) information regarding the availability
of community work of a kind referred
to in section 63 in the area in which
the offender will reside; and
(ii) recommendations on whether the
court should authorise, under section
66A, hours of work to be spent
undertaking training in basic work
and living skills:
(i) in the case of a proposed sentence of intensive
supervision or possible release conditions for
a proposed sentence of imprisonment for 24
months or less, the opinion of the chief executive
of the Department of Corrections as to whether—
(i) a condition that prohibits the offender
from entering or remaining in specified
places or areas at specified times or at
all times (a whereabouts condition
in this paragraph) would facilitate or
promote the objective of reducing the
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risk of the offender reoffending while
subject to the sentence or release
conditions; and
(ii) a whereabouts condition would
facilitate or promote the objective of
rehabilitating and reintegrating the
offender; and
(iii) a further condition requiring the offender
to submit to electronic monitoring of his
or her compliance with a whereabouts
condition is warranted, having regard
to the likelihood of non-compliance
with the whereabouts condition.
(3) The court must not direct the preparation of a report
under subsection (1) on any aspects of the personal
characteristics or personal history of an offender if a report
covering those aspects is readily available to the court and
there is no reason to believe that there has been any change
of significance to the court since the report was prepared.
(4) On directing the preparation of a report under
subsection (1), the court may indicate to the probation
officer the type of sentence or other mode of disposition
that the court is considering, and may also give any
other guidance to the probation officer that will assist
the officer to prepare the report.
(5) If a court has directed the preparation of a report
under subsection (1), the probation officer charged
with the preparation of the report may seek the further
directions of the court on—
(a) any particular item of information sought by the court; or
(b) any alternative sentence or other mode of
disposition that may be considered by the
court if it appears that the sentence or other
mode of disposition under consideration is
inappropriate.”
(emphasis supplied)
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Section 31 of the Sentencing Act, 2002
“31 General requirement to give reasons
(1) A court must give reasons in open court—
(a) for the imposition of a sentence or for any other
means of dealing with the offender; and
(b) for the making of an order under Part 2.
(2) The reasons may be given under this section with
whatever level of particularity is appropriate to the
particular case.
(3) Nothing in this section limits any other provision of this or
any other enactment that requires a court to give reasons.
(4) The fact that a court, in giving reasons in a particular
case, does not mention a particular principle in section
8 or a particular factor in section 9 or a consideration
under section 10 or section 11 is not in itself grounds
for an appeal against a sentence imposed or an order
made in that case.”
(emphais supplied)
UNITED KINGDOM
Coroners and Justice Act, 2009 (UK)
PART 4
SENTENCING
CHAPTER 1
Sentencing Council For England and Wales
Section 118 of the Coroner and Justice Act, 2009
“118 Sentencing Council for England and Wales
(1) There is to be a Sentencing Council for England and
Wales.
(2) Schedule 15 makes provision about the Council.”
Schedule 15
The Sentencing Council for England and Wales
Constitution of the Council
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Schedule 15, Para 1 of the Coroner and Justice Act, 2009
“1 The Council is to consist of—
(a) 8 members appointed by the Lord Chief Justice
with the agreement of the Lord Chancellor
(“judicial members”);
(b) 6 members appointed by the Lord Chancellor
with the agreement of the Lord Chief Justice
(“non-judicial members”).”
Appointment of a person to chair the Council etc
Schedule 15, Para 2 of the Coroner and Justice Act, 2009
“2 The Lord Chief Justice must, with the agreement of the
Lord Chancellor, appoint—
(a) a judicial member to chair the Council (“the
chairing member”), and
(b) another judicial member to chair the Council in
the absence of the chairing member.”
Appointment of judicial members
Schedule 15, Para 3 of the Coroner and Justice Act, 2009
“3(1) A person is eligible for appointment as a judicial
member if the person is—
(a) a judge of the Court of Appeal,
(b) a puisne judge of the High Court,
(c) a Circuit judge,
(d) a District Judge (Magistrates’ Courts), or
(e) a lay justice.
(2) The judicial members must include at least one Circuit
judge, one District Judge (Magistrates’ Courts) and one
lay justice.
(3) When appointing judicial members, the Lord Chief
Justice must have regard to the desirability of the judicial
members including at least one person who appears to
the Lord Chief Justice to have responsibilities relating to
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the training of judicial office-holders who exercise criminal
jurisdiction in England and Wales.
(4) “Judicial office-holder” has the meaning given by
section 109(4) of the Constitutional Reform Act 2005
(c. 4).”
Appointment of non-judicial members
Schedule 15, Para 4 of the Coroner and Justice Act, 2009
“4(1) A person is eligible for appointment as a non-
judicial member if the person appears to the Lord
Chancellor to have experience in one or more of the
following areas—
(a) criminal defence;
(b) criminal prosecution;
(c) policing;
(d) sentencing policy and the administration of
justice;
(e) the promotion of the welfare of victims of crime;
(f) academic study or research relating to criminal
law or criminology;
(g) the use of statistics;
(h) the rehabilitation of offenders.
(2) The persons eligible for appointment as a non-judicial
member by virtue of experience of criminal prosecution
include the Director of Public Prosecutions.”
Section 120 of the Coroner and Justice Act, 2009
Guidelines
“120 Sentencing guidelines
(1) In this Chapter “sentencing guidelines” means
guidelines relating to the sentencing of offenders.
(2) A sentencing guideline may be general in nature or
limited to a particular offence, particular category of
offence or particular category of offender.
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(3) The Council must prepare—
(a) sentencing guidelines about the discharge of a
court’s duty under section 73 of the Sentencing
Code (reduction in sentences for guilty pleas), and
(b) sentencing guidelines about the application of
any rule of law as to the totality of sentences.
(4) The Council may prepare sentencing guidelines about
any other matter.
(5) Where the Council has prepared guidelines under
subsection (3) or (4), it must publish them as draft
guidelines.
(6) The Council must consult the following persons about
the draft guidelines—
(a) the Lord Chancellor;
(b) such persons as the Lord Chancellor may direct;
(c) the Justice Select Committee of the House of
Commons (or, if there ceases to be a committee
of that name, such committee of the House of
Commons as the Lord Chancellor directs);
(d) such other persons as the Council considers
appropriate.
(7) In the case of guidelines within subsection (3), the
Council must, after making any amendments of the
guidelines which it considers appropriate, issue them
as definitive guidelines.
(8) In any other case, the Council may, after making such
amendments, issue them as definitive guidelines.
(9) The Council may, from time to time, review the
sentencing guidelines issued under this section, and
may revise them.
(10) Subsections (5), (6) and (8) apply to a revision of
the guidelines as they apply to their preparation (and
subsection (8) applies even if the guidelines being
revised are within subsection (3)).
[2024] 5 S.C.R. 709
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(11) When exercising functions under this section, the
Council must have regard to the following matters—
(a) the sentences imposed by courts in England
and Wales for offences;
(b) the need to promote consistency in sentencing;
(c) the impact of sentencing decisions on victims
of offences;
(d) the need to promote public confidence in the
criminal justice system;
(e) the cost of different sentences and their relative
effectiveness in preventing re-offending;
(f) the results of the monitoring carried out under
section 128.”
Section 121 of the Coroner and Justice Act, 2009
“121 Sentencing ranges
(1) When exercising functions under section 120,
the Council is to have regard to the desirability of
sentencing guidelines which relate to a particular
offence being structured in the way described in
subsections (2) to (9).
(2) The guidelines should, if reasonably practicable given
the nature of the offence, describe, by reference to one
or more of the factors mentioned in subsection (3),
different categories of case involving the commission
of the offence which illustrate in general terms the
varying degrees of seriousness with which the offence
may be committed.
(3) Those factors are—
(a) the offender’s culpability in committing the
offence;
(b) the harm caused, or intended to be caused or
which might foreseeably have been caused, by
the offence;
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(c) such other factors as the Council considers to
be particularly relevant to the seriousness of
the offence in question.
(4) The guidelines should—
(a) specify the range of sentences (“the offence
range”) which, in the opinion of the Council, it
may be appropriate for a court to impose on an
offender convicted of that offence, and
(b) if the guidelines describe different categories of
case in accordance with subsection (2), specify
for each category the range of sentences (“the
category range”) within the offence range
which, in the opinion of the Council, it may be
appropriate for a court to impose on an offender
in a case which falls within the category.
(5) The guidelines should also—
(a) specify the sentencing starting point in the
offence range, or
(b) if the guidelines describe different categories of
case in accordance with subsection (2), specify
the sentencing starting point in the offence range
for each of those categories.
(6) The guidelines should—
(a) (to the extent not already taken into account by
categories of case described in accordance with
subsection (2)) list any aggravating or mitigating
factors which, by virtue of any enactment or
other rule of law, the court is required to take
into account when considering the seriousness
of the offence and any other aggravating or
mitigating factors which the Council considers
are relevant to such a consideration,
(b) list any other mitigating factors which the Council
considers are relevant in mitigation of sentence
for the offence, and
[2024] 5 S.C.R. 711
Sunita Devi v. The State of Bihar & Anr.
(c) include criteria, and provide guidance, for
determining the weight to be given to previous
convictions of the offender and such of the
other factors within paragraph (a) or (b) as the
Council considers to be of particular significance
in relation to the offence or the offender.
(7) For the purposes of subsection (6)(b) the following
are to be disregarded—
(a) the requirements of section 73 of the Sentencing
Code (reduction in sentences for guilty pleas);
(b) sections 74, 387 and 388 of the Sentencing Code
(assistance by defendants: reduction or review
of sentence) and any other rule of law by virtue
of which an offender may receive a discounted
sentence in consequence of assistance given
(or offered to be given) by the offender to the
prosecutor or investigator of an offence;
(c) any rule of law as to the totality of sentences.
(8) The provision made in accordance with subsection
(6)(c) should be framed in such manner as the
Council considers most appropriate for the purpose
of assisting the court, when sentencing an offender
for the offence, to determine the appropriate sentence
within the offence range.
(9) The provision made in accordance with subsections
(2) to (8) may be different for different circumstances
or cases involving the offence.
(10) The sentencing starting point in the offence range—
(a) for a category of case described in the guidelines
in accordance with subsection (2), is the
sentence within that range which the Council
considers to be the appropriate starting point
for cases within that category—
(i) before taking account of the factors
mentioned in subsection (6), and
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(ii) assuming the offender has pleaded not
guilty, and
(b) where the guidelines do not describe categories
of case in accordance with subsection (2), is the
sentence within that range which the Council
considers to be the appropriate starting point
for the offence—
(i) before taking account of the factors
mentioned in subsection (6), and
(ii) assuming the offender has pleaded not
guilty.”
Section 128 of the Coroner and Justice Act, 2009
“128 Monitoring
(1) The Council must—
(a) monitor the operation and effect of its sentencing
guidelines, and
(b) consider what conclusions can be drawn from
the information obtained by virtue of paragraph
(a).
(2) The Council must, in particular, discharge its duty
under subsection (1)(a) with a view to drawing
conclusions about—
(a) the frequency with which, and extent to which,
courts depart from sentencing guidelines;
(b) the factors which influence the sentences
imposed by courts;
(c) the effect of the guidelines on the promotion of
consistency in sentencing;
(d) the effect of the guidelines on the promotion of
public confidence in the criminal justice system.
(3) When reporting on the exercise of its functions under
this section in its annual report for a financial year,
the Council must include—
[2024] 5 S.C.R. 713
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(a) a summary of the information obtained under
subsection (1)(a), and
(b) a report of any conclusions drawn by the Council
under subsection (1)(b).”
Sentencing Act 2020 (UK)
Section 3 of the Sentencing Act, 2020
“DEFERMENT OF SENTENCE
3 Deferment order
(1) In this Code “deferment order” means an order
deferring passing sentence on an offender in respect
of one or more offences until the date specified in the
order, to enable a court, in dealing with the offender,
to have regard to—
(a) the offender’s conduct after conviction
(including, where appropriate, the offender’s
making reparation for the offence), or
(b) any change in the offender’s circumstances.
(2) A deferment order may impose requirements (“deferment
requirements”) as to the offender’s conduct during the
period of deferment.
(3) Deferment requirements may include—
(a) requirements as to the residence of the
offender during all or part of the period of
deferment;
(b) restorative justice requirements.”
(emphais supplied)
Section 5 of the Sentencing Act, 2020
“5 Making a deferment order
(1) A court may make a deferment order in respect of
an offence only if—
(a) the offender consents,
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(b) the offender undertakes to comply with any
deferment requirements the court proposes to
impose,
(c) if those requirements include a restorative justice
requirement, section 7(2) (consent of participants
in restorative justice activity) is satisfied, and
(d) the court is satisfied, having regard to the
nature of the offence and the character and
circumstances of the offender, that it would be
in the interests of justice to make the order.
(2) The date specified under section 3(1) in the order
may not be more than 6 months after the date on
which the order is made.
(3) A court which makes a deferment order must forthwith
give a copy of the order—
(a) to the offender,
(b) if it imposes deferment requirements that include
a restorative justice requirement, to every
person who would be a participant in the activity
concerned (see section 7(1)),
(c) where an officer of a provider of probation
services has been appointed to act as a
supervisor, to that provider, and
(d) where a person has been appointed under section
8(1)(b) to act as a supervisor, to that person.
(4) A court which makes a deferment order may not on
the same occasion remand the offender, notwithstanding
any enactment.”
(emphais supplied)
Section 6 of the Sentencing Act, 2020
“6 Effect of deferment order
(1) Where a deferment order has been made in respect
of an offence, the court which deals with the offender
for the offence may have regard to—
[2024] 5 S.C.R. 715
Sunita Devi v. The State of Bihar & Anr.
(a) the offender’s conduct after conviction, or
(b) any change in the offender’s circumstances.”
(emphais supplied)
Section 30 of the Sentencing Act, 2020
“Pre-sentence reports
30 Pre-sentence report requirements
(1) This section applies where, by virtue of any
provision of this Code, the pre-sentence report
requirements apply to a court in relation to
forming an opinion.
(2) If the offender is aged 18 or over, the court must
obtain and consider a pre-sentence report before
forming the opinion unless, in the circumstances
of the case, it considers that it is unnecessary to
obtain a pre-sentence report.
(3) If the offender is aged under 18, the court must obtain
and consider a pre-sentence report before forming
the opinion unless—
(a) there exists a previous pre-sentence report
obtained in respect of the offender, and
(b) the court considers—
(i) in the circumstances of the case, and
(ii) having had regard to the information
contained in that report or, if there is more
than one, the most recent report, that it is
unnecessary to obtain a pre-sentence report.
(4) Where a court does not obtain and consider a
pre-sentence report before forming an opinion
in relation to which the pre-sentence report
requirements apply, no custodial sentence or
community sentence is invalidated by the fact
that it did not do so.”
(emphais supplied)
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Section 31 of the Sentencing Act, 2020
“31 Meaning of “pre-sentence report” etc
“Pre-sentence report”
(1) In this Code “pre-sentence report” means a report
which—
(a) is made or submitted by an appropriate officer
with a view to assisting the court in determining
the most suitable method of dealing with an
offender, and
(b) contains information as to such matters,
presented in such manner, as may be prescribed
by rules made by the Secretary of State.”
40. We find that an exhaustive and detailed exercise has been done by
New Zealand. What we have discussed has already been substantially
taken into consideration by the aforementioned countries. As it is an
important aspect which has escaped the attention of the Government
of India, we recommend the Department of Justice, Ministry of Law and
Justice, Government of India, to consider introducing a comprehensive
policy, possibly by way of getting an appropriate report from a duly
constituted Sentencing Commission consisting of experts in different
fields for the purpose of having a distinct sentencing policy. We
request the Union of India to respond to our suggestion by way of
an affidavit within a period of six months from today.
41. In this connection, we would like to place on record the 47th Report of
the Law Commission of India, Report by the Committee on Reforms
of Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003),
Report by the Committee on Draft National Policy on Criminal Justice,
Chaired by Dr. N.R. Madhava Menon and decisions rendered by this
Court to indicate an emerging need for a distinct sentencing policy
47th Report of the Law Commission of India
CHAPTER 7
DESIRABILITY OF AMENDMENTS – SUBSTANTIVE POINTS
COMMON TO ALL THE ACTS CONSIDERED
“7.44. A proper sentence is a composite of many factors,
including the nature of the offence, the circumstances-
[2024] 5 S.C.R. 717
Sunita Devi v. The State of Bihar & Anr.
extenuating or aggravating- of the offence, the prior criminal
record, if any, of the offender, the age of the offender,
the professional and social record of the offender, the
background of the offender with reference to education.
home life, sobriety and social adjustment, the emotional
and mental condition of the offender, the prospect for the
rehabilitation of the offender, the possibility of a return of
the offender to normal life in the community, the possibility
of treatment or of training of the offender, the possibility
that the sentence may serve as a deterrent to crime by this
offender, or by others, and the present community need,
if any, for such a deterrent in respect to the particular type
of offence involved.”
Report by the Committee on Reforms of Criminal Justice System,
Chaired by Dr. Justice V.S. Malimath, Vol. I March (2003)
“14.4 NEED FOR SENTENCING GUIDELINES
14.4.1 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 accordingly to his own
judgment. There is therefore no uniformity. Some
Judges are lenient and some Judges are harsh.
Exercise of unguided discretion is not good even if
it is the Judge who exercises the discretion. In some
countries guidance regarding sentencing option and
sentencing guideline laws are given in the penal code.
There is need for such law in our country to minimise
uncertainty to the matter of awarding sentence. There
are several factors which are relevant in prescribing the
alternative sentences. This requires a thorough examination
by an expert statutory body.
xxx xxx xxx
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14.4.5 Sometimes the courts are unduly harsh while at
other times they are liberal. We have already adverted
to aspects which Supreme Court said are relevant in
deciding as to what are the rarest of the rare cases for
imposing death sentence. However, even in such matters
uniformity is lacking. In certain rape cases acquittals
gave rise to public protests. Therefore in order to bring
about certain regulation and predictability in the matter
of sentencing, the Committee recommends a statutory
committee to lay guidelines on sentencing under the
Chairmanship of a former Judge of Supreme Court or
a former Chief Justice of a High Court experienced
in criminal law with other members representing the
Prosecution, legal profession, Police, social scientist
and women representative.”
(emphasis supplied)
Report of the Committee on Draft National Policy on Criminal
Justice, Chaired by Prof. (Dr.) N.R. Madhava Menon, July, 2007
“5.5 PUNISHMENTS AND SENTENCING
5.5.1 Given the limited options in the choice of punishments
now available in the statutes and the inadequate deterrence
in the sentence often imposed, there has to be some
serious rethinking on the philosophy, justification and
impact of sentencing in criminal justice administration. The
quantums of fines were prescribed more than a century
ago. Imprisonment in practice is reduced to a much shorter
period through a variety of practices even when it is for
life. Equality in sentencing is not pursued vigorously
and there is no serious attempt yet to standardize
the sentencing norms and procedures. The objects of
punishment are not served in many cases as a result
of such incoherent sentencing practices.
5.5.2 What are the policy choices in the matter of
punishments and determination of its quantum to achieve
the goals of criminal justice? Can community service
be made an effective punishment and how is it to be
organized? How to make probation a dominant part of
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Sunita Devi v. The State of Bihar & Anr.
disposition in criminal cases? How to achieve equality and
fairness in sentencing? These and many related questions
are not even raised in India seriously with the result the
system seems to be functioning as an end in itself.
There has to be a radical change in the law and practice
of sentencing if punishment should serve the cause
of criminal justice. A set of sentencing guidelines may
be statutorily evolved to make the system consistent
and purposeful. Fixing mandatory minimum sentences
may not be a worthwhile solution. More importantly,
the policy should be to increase the choices in
punishment and make the other functionaries of
the system (like probation service and correctional
administration) to have a voice in the sentencing
process and administration.
In short, sentences and sentencing require urgent
attention of policy planners if criminal justice is to
retain its credibility in the public mind.
5.5.3 A national policy on sentencing shall seek to address
the following issues:
(i) The need for criminal law to offer more alternatives
in the matter of punishments instead of limiting the
option merely to fines and imprisonment.
(ii) In respect of the quantum of punishments, the
need for constant review to ensure that it meets the
ends of justice and disparity is reduced in similar
situations.
(iii) A policy to avoid short-term imprisonments and to
prevent overcrowding of jails and other custodial
institutions, to be rigorously pursued at all levels.
(iv) The need for specific sentencing guidelines to be
evolved in respect of each punishment.
(v) Also the need for an institutional machinery involving
correctional experts for fixing proper punishment.”
(emphasis supplied)
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Precedents
Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220
“14. In recent years, the rising crime rate — particularly
violent crime against women has made the criminal
sentencing by the courts a subject of concern. Today
there are admitted disparities. Some criminals get very
harsh sentences while many receive grossly different
sentence for an essentially equivalent crime and a
shockingly large number even go unpunished thereby
encouraging the criminal and in the ultimate making
justice suffer by weakening the system’s credibility. Of
course, it is not possible to lay down any cut and dry
formula relating to imposition of sentence but the object
of sentencing should be to see that the crime does
not go unpunished and the victim of crime as also the
society has the satisfaction that justice has been done
to it. In imposing sentences in the absence of specific
legislation, Judges must consider variety of factors
and after considering all those factors and taking an
overall view of the situation, impose sentence which
they consider to be an appropriate one. Aggravating
factors cannot be ignored and similarly mitigating
circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the crime;
the conduct of the criminal and the defenceless and
unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to
the society’s cry for justice against the criminals. Justice
demands that courts should impose punishment befitting
the crime so that the courts reflect public abhorrence of
the crime. The courts must not only keep in view the rights
of the criminal but also the rights of the victim of crime
and the society at large while considering imposition of
appropriate punishment.”
(emphasis supplied)
Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767
[2024] 5 S.C.R. 721
Sunita Devi v. The State of Bihar & Anr.
“48. That is not the end of the matter. Coupled with the
deficiency of the criminal justice system is the lack of
consistency in the sentencing process even by this
Court. It is noted above that Bachan Singh [(1980) 2
SCC 684 : 1980 SCC (Cri) 580] laid down the principle
of the rarest of rare cases. Machhi Singh [(1983) 3 SCC
470 : 1983 SCC (Cri) 681] , for practical application
crystallised the principle into five definite categories
of cases of murder and in doing so also considerably
enlarged the scope for imposing death penalty. But
the unfortunate reality is that in later decisions neither
the rarest of rare cases principle nor the Machhi Singh
[(1983) 3 SCC 470 : 1983 SCC (Cri) 681] categories
were followed uniformly and consistently.
xxx xxx xxx
50. The same point is made in far greater detail in a
report called “Lethal Lottery, The Death Penalty in
India” compiled jointly by Amnesty International India
and People’s Union for Civil Liberties, Tamil Nadu &
Puducherry. The report is based on the study of the
Supreme Court judgments in death penalty cases
from 1950 to 2006. One of the main points made in
the report (see Chapters 2 to 4) is about the Court’s
lack of uniformity and consistency in awarding death
sentence.
51. The truth of the matter is that the question of death
penalty is not free from the subjective element and the
confirmation of death sentence or its commutation by this
Court depends a good deal on the personal predilection
of the Judges constituting the Bench.
52. The inability of the criminal justice system to deal
with all major crimes equally effectively and the want
of uniformity in the sentencing process by the Court
lead to a marked imbalance in the end results. On
the one hand there appears a small band of cases
in which the murder convict is sent to the gallows
on confirmation of his death penalty by this Court
and on the other hand there is a much wider area of
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cases in which the offender committing murder of
a similar or a far more revolting kind is spared his
life due to lack of consistency by the Court in giving
punishments or worse the offender is allowed to slip
away unpunished on account of the deficiencies in the
criminal justice system. Thus the overall larger picture
gets asymmetric and lopsided and presents a poor
reflection of the system of criminal administration of
justice. This situation is a matter of concern for this
Court and needs to be remedied.”
(emphasis supplied)
Soman v. State of Kerala, (2013) 11 SCC 382
“15. 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. In State of Punjab v. Prem Sagar [(2008) 7 SCC
550 : (2008) 3 SCC (Cri) 183] this Court acknowledged
as much and observed as under: (SCC p. 552, para 2)
“2. In our judicial system, we have not been
able to develop legal principles as regards
sentencing. The superior courts except making
observations with regard to the purport and
object for which punishment is imposed upon
an offender, have not issued any guidelines.
Other developed countries have done so. At
some quarters, serious concerns have been
expressed in this behalf. Some committees
as for example Madhava Menon Committee
and Malimath Committee have advocated
introduction of sentencing guidelines.”
Section 354 of the CrPC, 1973
“354. Language and contents of judgment.—
(1) Except as otherwise expressly provided by this Code,
every judgment referred to in section 353,—
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Sunita Devi v. The State of Bihar & Anr.
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination,
the decision thereon and the reasons for the
decision;
(c) shall specify the offence (if any) of which, and
the section of the Indian Penal Code (45 of
1860) or other law under which, the accused
is convicted and the punishment to which he
is sentenced;
(d) if it be a judgment of acquittal, shall state the
offence of which the accused is acquitted and
direct that he be set at liberty.
(2) When the conviction is under the Indian Penal Code
(45 of 1860) and it is doubtful under which of two
sections, or under which of two parts of the same
section, of that Code the offence falls, the Court shall
distinctly express the same, and pass judgment in
the alternative.
(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life
or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded,
and, in the case of sentence of death, the special
reasons for such sentence.
(4) When the conviction is for an offence punishable
with imprisonment for a term of one year or more,
but the Court imposes a sentence of imprisonment
for a term of less than three months, it shall record
its reasons for awarding such sentence, unless the
sentence is one of imprisonment till the rising of the
Court or unless the case was tried summarily under
the provisions of this Code.
(5) When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead.
(6) Every order under section 117 or sub-section (2) of
section 138 and every final order made under section
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125, section 145 or section 147 shall contain the point
or points for determination, the decision thereon and
the reasons for the decision.”
42. Section 354 of the CrPC, 1973 though merely deals with the
language and contents of judgment, also sheds light on the fact
that a judgment contains two distinct parts, wherein the first part
deals with the conviction and the second deals with the sentence.
Sub-section (1)(c) of the aforesaid provision has to be understood
to mean that a Judge is expected to consider the aggravating and
mitigating circumstances. In such view of the matter, sub-section (3)
of the aforesaid provision is more clarificatory, keeping in mind the
nature of the offence committed. As a convict is heard on sentence,
it follows that any decision on sentence has to indicate the reasons
for exercise of judicial discretion by the Judge.
ON FACTS
Criminal Appeal No. 3924 of 2023 and Criminal Appeal Nos.
3926-3927 of 2023.
43. An FIR was registered in Crime No. 137 of 2021 for the occurrence
that took place on 01.12.2021. The said complaint was filed by
the mother of the victim on 02.12.2021. Accordingly, the case was
registered under Section 376AB of the Indian Penal Code, 1860
(hereinafter referred to as the “IPC, 1860”) and Section 4 of the
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as the “POCSO Act, 2012”) read with Section 3(2)(v) of
the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as “SC/ST Act, 1989”). The case
of the prosecution in nutshell is that the accused took advantage of
a minor girl child and committed the offence of rape.
44. The accused was arrested on 12.12.2021. He was produced before
the concerned Judicial Magistrate on 13.12.2021 and remanded to
judicial custody till 24.12.2021. The remand was further extended
by the orders dated 24.12.2021 and 05.01.2022 through video
conferencing. On 12.01.2022, the charge-sheet was filed for the
offences aforestated. The accused was once again produced
through video conferencing on 15.01.2022. There was no advocate
representing the accused, and the case was put up on 24.01.2022
for his production.
[2024] 5 S.C.R. 725
Sunita Devi v. The State of Bihar & Anr.
45. On 20.01.2022, without the FSL report, the charge-sheet filed
was taken on record. Accordingly, the cognizance was taken. The
prosecutor was directed to ensure the presence of the accused
through video conferencing. The accused feigned his inability
to engage a lawyer as he was behind the bars. The case was
adjourned to 22.01.2022 for framing of charges and for the supply
of documents.
46. On that day i.e. 22.01.2022, the counsel appearing for the accused
was provided with the documents, without being given any time
and without ensuring that these documents were in fact shown to
the accused, followed by due consultation with his lawyer, directly
arguments were heard on framing of charges. Thereafter, the charges
were framed and explained to the accused through the virtual mode.
On the very same date, an order was passed for summoning the
prosecution witnesses. Strangely enough, an application was filed
by the Investigating Officer to record the evidence of four witnesses
in a single day, as a confidential information obtained, indicated that
there was pressure from the family members of the accused. No
notice was served either on the accused or his counsel, and the
order was apparently passed, without taking into consideration the
Witness Protection Scheme, 2018. In disregard of the provisions of
the Rules for Video Conferencing for Courts, 2020, the statements
of the witnesses were recorded.
47. After two days i.e. 24.01.2022, the remaining witnesses, including
the Investigating Officer, were examined. There was no material to
show that the accused was present at that point of time. The plea
made by the counsel for the defence for deferment by one week was
rejected, sans any substantial reason. For the purpose of questioning
under Section 313 of the CrPC, 1973 alone, the accused was brought
through video conferencing. In a hurried manner, the questioning was
done. The repeated plea of adjournment by one week made by the
counsel for the defence was once again rejected, while ultimately
facilitating a day’s adjournment.
48. On the next day i.e. 25.01.2022, an application was filed by the
defence praying for time for production of witnesses. The matter
was passed over, with a direction to produce the witnesses on that
day itself. Arguments were heard, during which time, the prosecution
made submissions for 10 minutes, whereas the defence argued for 3
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hours. It was accordingly concluded at 6.30 p.m. The judgment was
delivered at about 7.00 pm, running into about 27 pages consisting of
59 paragraphs. It is not known as to how the copies of the witnesses
statements were made ready and kept for perusal. Admittedly, even
the counsel for the defence did not have those copies.
49. Two days thereafter i.e. 27.01.2022, the case was posted for
sentencing. Upon hearing the accused, death sentence was imposed
by the trial court. The High Court, by the impugned judgment, called
for the records and went through them thoroughly, finding that there
is non-compliance of Sections 207, 226, 227 and 230 of the CrPC,
1973, set aside the conviction and sentence awarded by the trial
Court, and ordered for a de novo trial. Incidentally, the approach
adopted by the Trial Court was found fault with.
50. Assailing the impugned judgment on merit, the informant has filed
Criminal Appeal No. 3924 of 2023. Aggrieved over the observations
made by the High Court, the learned Trial Judge has filed Criminal
Appeal Nos. 3926-3927 of 2023.
Criminal Appeal No. 3925 of 2023
51. Criminal Appeal No. 3925 of 2023 has been filed by the very same
learned Judge who rendered a similar conviction and sentenced the
accused to life imprisonment for remainder of natural life, without
any remission, against the observations made by a Coordinate
Bench of the High Court, which took note of the earlier judgment
rendered by the Coordinate Bench. It has been brought to our
notice that the disciplinary proceedings initiated were dropped on
the administrative side. However, an application in I.A. No. 29814
of 2023 has been filed by the learned Judge inter alia alleging
that certain administrative work has been taken away from him,
apparently on the basis of the impugned judgments, and therefore,
he should either be restored with the said power or transferred to
some other place.
52. Insofar as the Criminal Appeal No. 3925 of 2023 is concerned,
there is no appeal filed on behalf of the victim. Therefore, the only
question for consideration is as to whether the observation made
against the appellant, is justified or not, especially when he has not
been heard. On facts, even in this case, the trial had commenced
and concluded in a single day.
[2024] 5 S.C.R. 727
Sunita Devi v. The State of Bihar & Anr.
SUBMISSIONS ON BEHALF OF THE APPELLANT
Criminal Appeal No. 3924 of 2023 and Criminal Appeal Nos.
3926-3927 of 2023.
53. Mr. Vikas Singh, learned senior counsel appearing for both the
informant and the learned Trial Judge, submitted that the procedure
established by law has been followed. The appellant has kept in
mind the rigour of Section 309 of the CrPC, 1973 read with the
provisions contained under the POCSO Act, 2012. Even assuming
that there is a procedural flaw, in view of the mandate contained
under Section 465 of the CrPC, 1973 there is no need for remittal.
During the course of trial, the counsel for the respondent-accused
has not raised any serious objection.
Criminal Appeal No. 3925 of 2023
It is further submitted that the appellant has discharged his judicial
function and, therefore, any action without hearing him is contrary to
law. Though the charges have been dropped, the observations made
would be detrimental to his future career progression. The accused
had antecedents and, therefore, the Trial Court rightly exercised
due caution. It is a case where no witness was produced on behalf
of the defence. To buttress his submission, learned senior counsel
appearing for the appellant has relied upon the following decisions,
● Munna Pandey v. State of Bihar, AIR 2023 SUPREME COURT
5709.
● Akil v. State (NCT of Delhi), (2013) 7 SCC 125.
● Sakshi v. Union of India, (2004) 5 SCC 518.
● State of Maharashtra v. Mahesh Kariman Tirki, (2022) 10 SCC
207.
● Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
54. Per contra, Mr. C. U. Singh, learned senior counsel appearing for
the High Court and the accused submitted that admittedly there are
serious procedural violations. Prejudice was sufficiently demonstrated
before the court. It would be impossible for a Judge to deliver the
judgment within such a short span of time. No opportunity was given
at every stage of the trial to the accused. It is a clear case of “justice
728 [2024] 5 S.C.R.
Digital Supreme Court Reports
hurried is justice buried”. There is no question of giving an opportunity
to the appellant, the judicial officer, as no action is pending against
him. In any case, the accused is still under incarceration.
DISCUSSION
55. On perusal, we find that the High Court, while passing both the
impugned judgments, has not only called for the records and
rendered findings of fact, but has also considered them in detail.
At every stage, the accused was denied due opportunity to defend
himself. The appellant judicial officer was obviously acting in utmost
haste. Every trial is a journey towards the truth and a Presiding
Officer is expected to create a balanced atmosphere in the mind of
the prosecution and the defence. It seems to us that the decision
was rendered in utmost haste. It would be humanly impossible
to deliver the judgment within half an hour’s time running into 27
pages consisting of 59 paragraphs in the first case and similarly in
the other. The lawyer for the defence cannot fight against the court.
It is the court which has to follow a balanced approach. At every
stage, including framing of charges, there was a constant denial of
due opportunity and hearing. The accused was not able to consult
his lawyer. He was not even served with the copies, though his
lawyer received the same before framing of the charges. Receiving
of documents by his lawyer would not be sufficient compliance,
unless there was sufficient time given for him to peruse them and
thereafter have a consultation. Admittedly, neither the provisions
of the Witness Protection Scheme, 2018 have been invoked nor
the Rules for Video Conferencing for Courts, 2020 were followed.
The accused was merely shown the court’s proceedings and the
writing was on the wall for him. We are not willing to say anything
on the merits of the case. On facts, even in Criminal Appeal No.
3925 of 2023, the trial had commenced and concluded in a single
day. Additionally, no lawyer could be engaged by the accused and,
therefore, as per the recommendations of the prosecutor, another
one was engaged. Otherwise, the facts are more or less similar in
both the cases and, therefore, we are not inclined to go into it in
detail. When the charges are very serious, Courts should be more
circumspect in discharging their solemn duty.
56. We do not think that the decisions relied upon by the learned senior
counsel for the appellant have any bearing on the present case. The
appellant judicial officer is fortunate that no action was taken against
[2024] 5 S.C.R. 729
Sunita Devi v. The State of Bihar & Anr.
him. We do not wish to say anything more on this, except by stating
that in the absence of any proposed action, there is no question of
hearing the appellant. Thus, we are not inclined to interfere on the
merits of the case with respect to non-compliance of the mandatory
provisions, as the accused is still under incarceration.
57. On the application filed seeking intervention over the action taken
on the administrative side, it is for the appellant to approach the
High Court. It is an administrative action taken and, therefore, the
same does not require any interference on the judicial side by us,
especially in light of the discussion made above. Suffice it is to state
that liberty is given to the appellant to approach the High Court on
the administrative side.
58. For the foregoing reasons, the appeals stand dismissed with the
following directions :
(1.) The trial court shall keep in mind the mandate of POCSO Act,
2012 while recording the evidence of the victim.
(2.) The trial court shall conduct and complete the trial expeditiously
in view of Section 35 of the POCSO Act, 2012.
(3.) The Government of India represented by the Secretary for
the Ministry of Law and Justice shall file an affidavit on the
feasibility of introducing a comprehensive sentencing policy
and a report thereon, within a period of six months from today,
as indicated above.
(4.) The Registry shall forward a copy of this judgment to the
Department of Justice, Ministry of Law and Justice, Government
of India.
59. Consequently, IA No. 29814/2023 stands dismissed.
60. Pending application(s), are allowed.
Result of the case: Appeals dismissed.
†
Headnotes prepared by: Divya Pandey
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