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This article is written by Nishtha Pandey (batch 2023), student of Dr. Ram Manohar Lohiya National Law University, Lucknow. This article highlights the Judgements delivered under the Criminal Procedure Code, 1973.

Introduction

“The people’s good law is the highest law” – Cicero 

Judgement is a basic term used in our daily lives. Generally, it means analysing a certain situation and forming a notion thereafter. In a legal sense, judgement is the decision given by the Court, after hearing both sides, it contains reasons for reaching such a conclusion. The judgement thus forms an important part of a legal process. A faulty judgement has the potential to deteriorate the very foundation of the legal justice system in the country. Therefore it is imperative to study various aspects of judgement from a judicial point of view.

Object and scope

Chapter XXVII of the CrPC, 1973, deals with Judgement. However there is no definition of “judgement” present in the Code, but it is to be understood as the final order of the Court. In the case of Ismail Amir Seikh vs. the State of Maharashtra, it was held that a judgment is the act of judging. It was pointed out that judgment should clearly mention the reason for accepting an argument and rejecting the other.

This chapter is very important as it shed light on the various provisions related to “judgement” in a Criminal proceeding.

This chapter applies all across India.

Form and contents of the judgment under Section 353

In a judgement Ratio decidendi and Obiter dicta form an integral part. Ratio decidendi is the binding statement in judgement and Obiter Dicta is the “by the way” remarks delivered by the judge which is not necessary to the case at hand. These two are very important as they define the legal principles which are useful to the legal fraternity.

If the judgement is of acquittal-

  • Whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove it beyond a reasonable doubt.
  • If the act or omission from which the liability might arise doesn’t exist.

If the judgement is of conviction-

  • The essential elements of the offence committed by the accused and the intervening circumstances which led to the commission of this offence.
  • Participation of the accused as the principal perpetrator, or accomplice or accessory.
  • The penalty that is imposed on the accused.

Language and contents of judgment

  1. Under Section 354, of CrPC, it is stated that every judgement should be:
  • In the language of the Court.
  • Shall contain the points of determination and the reason for the same.
  • The offence should be specified and the reason for the same should be given for the same. The offence so committed must be mentioned in the IPC or any other law under which the crime is committed and the punishment is given.
  • If the offender is acquitted, the offence for which he was acquitted, the reason for the same and it must be specified that a person is now a free man.

2. If the judgment is passed under the IPC and the judge is not certain as to under which Section the offence is committed or under which part of the Section, the judge should specify the same in the judgement and should pass orders in both the alternate situations.

3. The judgement shall furnish a proper reason for the conviction if it is a sentence for a term of life imprisonment and in case of death sentence the special reason has to be given.

Judgment given by Metropolitan Magistrate under Section 355

Under Section 355 of the CrCP, it is mentioned that the judge instead of giving the judgement in an above-mentioned way, can deliver it in an abridged version that would contain-

  • The serial number of the case,
  • Date of the commission of the offence,
  • Name of the complainant,
  • Name of the accused person, his parentage and residence,
  • Offence complained of or proved,
  • Plea of the accused and his examination,
  • Final order,
  • Date of the order,
  • In cases where the appeal lies from the final order, a brief statement of reasons for the decision.

Post-conviction orders in lieu of punishment

Post-conviction dilemma

Under Section 357 of the Code, if the judgement is that of the conviction then the Court can order the accused to pay compensation over and above the sentence of fine or imprisonment that is awarded to him. The Court can, ask the offender, to pay compensation.

Further, under Section 358, the Court can order compensation to be given to the person who is groundlessly arrested by the one who led to such false arrest. The compensation is recovered as a fine and is given to compensate for the loss of time and money of the person.

Moreover, in the case of non-cognizable offences under Schedule 1 of the code, and the judge has received a private complaint about the same. The judge can ask the accused, after convicting him, to pay to the prosecutor the necessary amount and expenses incurred in the process of prosecution.

Under Section 360 of the Code, one of the most important forms of post-conviction order is mentioned, whereby the accused is not convicted but is led free while imposing some restrictions on his liberty as a free man.

Convict to be released on good conduct or admonition

Section 360 of the CrPC mentions a provision in which a person could be released on good conduct or after admonition. In this, if a person is not under the age of 21 years and is not convicted of an offence which is punishable with a fine or a term which is seven years or less. Also if a person is more than 21 years of age or a woman is convicted of an offence which is not punishable with death sentence or life imprisonment and no previous conviction is against the person then if the Court deems it fit in accordance with the age, character, antecedents of the offender and the circumstance under which such offence was committed, that it is expedient to release the person on good conduct and the Court instead of punishing him may order him to be released in the sureties or not, as per the Court. Such a person has to appear before the Court to receive the sentence of the punishment not exceeding 3 years and in the meantime peace and good behaviour, must be exercised.

If the first offender is convicted by the magistrate of the second class then the magistrate has to record its opinion to that effect and submit it to the first class magistrate. The first class magistrate will hear the case in the same manner as if it originally came to his Court and he may order further inquiries if he feels that it is necessary to do so. He may order to record evidence or may do it by himself. If a person is convicted of theft, misappropriation cheating or any other offence under the IPC, and is punishable with not more than two years of imprisonment or fine. In this case, the person is not previously convicted of any other offence, the Court may if it thinks fit can release the person based on his age, antecedent, mental and physical condition, character, the trivial nature of the offence, or any circumstances which took place. The Court may release him after due admonition. An order under this Section could be given by Appellate Court or High Court or Court of Session while exercising its power of revision.

The Court should ensure that the offender and his sureties must get a place of living and a regular occupation of observation as specified by the Court.

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Exercise of judicial discretion in sentencing without adequate knowledge about the offender

Currently, India does not have structured sentencing guidelines. In March 2003, the Malimath Committee issued a report that emphasized the need to introduce sentencing guidelines in order to minimize uncertainty in awarding sentences. 

In 2008, the Madhava Menon Committee asserted the need for statutory sentencing guidelines. Moreover, the government is working to establish a “uniform sentencing policy” in line with the United States and the United Kingdom to do away with varied judgements, given by the judges.

The sentencing procedure is established under the CrPC, which provides broad discretionary sentencing powers to judges. It is asserted by many authors that, in the absence of an adequate sentencing policy it comes down to the judges to decide which factors to take into account and which to ignore. Moreover, broad discretion gives a lot of room for personal prejudices of the judges to dictate the judgement.

Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents can make an application to the State or the District Legal Services Authority for compensation. Upon receipt of such recommendations or application, the State or the District Legal Services Authority after due enquiry can award adequate compensation by completing the enquiry within two months.

Decisions as to punishments

Judicial discretion in sentencing

Judicial discretion means that the judiciary is given some discretion to adjudicate certain cases accordingly. Under the doctrine of separation of power, this comes under judicial independence.

The main part of the judicial discretion is present Under Section 360 of the CrPC which gives the power to the Judges to release the convicts on probation. But this power is limited to only a few conditions:

  • Where the convict is a woman and is not punished for life imprisonment or the death sentence,
  • Where the convict is above 21 years of age and is not punished for more than 7 years of the term,
  • Where the convict is under the age of 21 years and he is not punished for the death sentence or life imprisonment.

Also if the crime committed is of such a nature that the punishment awardable cannot be more than 2 years or a simple fine then, having consideration to the various factors connected to the convict, the Court may leave the convict without a sentence at all after mere admonition. The Court also takes steps in case the person does not comply with the rules laid down at the time of release as provided under this Section such as re-arrest of the person. For release under these provisions, it is necessary that either the convict or the surety are residing or attend regular occupation in the jurisdiction of the Court.

The Code through Section 361 makes the application of Section 360 necessary wherever possible and in cases in which there is an exception to state clear reasons. The judge must give special reasons for awarding the punishment which is below the minimum prescribed under the relevant laws of the country. The omission to record the special reason is an irregularity and can set aside the sentence passed on the ground of failure of justice. The Probation of Offenders Act, 1958 is very similar to Section 360 of the CrPC. It is more elaborate in the sense that it explicitly provides for conditions of release order, a supervision order, payment of compensation to the affected party, powers and predicaments of the probation officer and other particulars that might fall in the ambit of the field. Moreover, Section 360 would cease to have any force in the States or parts where the Probation of Offenders Act is in force.

Sentence of death

The old code of 1898, before the normal punishment for the person committing murder, was death and life imprisonment was an exception. The effect was that the Court had the discretion to either give death sentence and life imprisonment. However, in the new code of 1973, which is legislated according to the current scenario, the punishment now to the one committing murder is of life imprisonment and the death sentence is to be given in an exceptional case. The death sentence should be awarded only when the sentence of life imprisonment seems inadequate. The number of victims, however, will not make a case, rarest of the rare.

Where the offence committed is vindictive and done in a pre-planned manner. The offence is committed in a cold-blooded fashion then it will amount to a crime which is rare of the rarest case. Death penalty should be imposed only where the whole society expects the judiciary to award death sentence. While giving death penalty certain conditions should be kept in mind:

  • Manner of commission of murder,
  • The motive of the commission of murder,
  • Anti-social nature of the murder,
  • The personality of the victim (more).

Sentence of imprisonment

Under Section 354 of the CrPC, when the conviction is for an offence punishable 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 the death sentence, the special reasons for it. Moreover, 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 less than three months, it shall record its reasons for the same, unless the sentence is one of imprisonment till the rising of the Court or the case was tried summarily.

Sentence of fine

Under Section 357 of the Code, when a Court imposes a sentence of fine or a sentence in which fine is also included then the Court while passing judgment may order the whole or any part of the fine recovered to be applied:

  • In defraying the expenses incurred during the prosecution.
  • In the payment to any person as compensation for any loss or injury caused by the offence, when compensation is recoverable in the Civil Court.
  • When any person is convicted of any offence for causing the death of another person or have encouraged the commission of such an offence, have to pay compensation to the persons who are, under the Fatal Accidents Act, 1855 entitled to recover damages from the person sentenced for the loss resulting to them from such death.
  • When any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or dishonestly receiving or retaining, or voluntarily assisting in disposing of stolen property knowing or believing the same to be stolen then compensation has to be given to the bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled.

If the fine is imposed in a case which is appealable, no such payment shall be made before the period allowed for presenting the appeal has lapsed, or if an appeal is presented then before the decision of the appeal is delivered.

Moreover, when a Court imposes a sentence, in which fine is not included, the Court while passing judgment may order the accused person to pay, by way of compensation the amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. An order can also be made by an Appellate Court or by the High Court or Sessions Court while exercising its powers of revision.

It is important to note that at the time of awarding compensation in any civil suit relating to the same subject matter, the Court will take into consideration any sum paid or recovered as compensation under this Section.

Precautionary and preventive orders

Certain habitual offenders required to notify their whereabouts

Under Section 356 of the CrPC, 1973, when any person, having been convicted by a Court in India of an offence punishable under Section 215, Section 489A, Section 489B, Section 489C or Section 489D or Section 506 of the IPC, 1860, or of any offence punishable under Chapter XII or Chapter XVII of IPC, with imprisonment for a term of three years or more, is again convicted of any offence punishable under any of the above-mentioned Sections or Chapters with imprisonment for a term of three years or more by any Court other than that of a Magistrate of the second class, such Court may, if it deems fit, at the time of passing a sentence of imprisonment on such person, also order that his residence and any change of, or absence from, such residence after release shall be notified as provided for a term not exceeding five years from the date of the expiration of such sentence. These provisions also apply to criminal conspiracies to commit such offences and to the abetment of such offences and attempts to commit them. However, if the conviction is set aside on appeal or otherwise then such an order will become void.

Moreover, an order under this Section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. The State Government may, by notification, make rules to carry out the provisions of this Section relating to the notification of residence or change of or absence from residence by released convicts. Such rules may provide for punishment for the breach thereof and any person charged with a breach of any such rule may be tried by a Magistrate of competent jurisdiction in the district in which the place last notified by him as his place of residence is situated.

Compensation and costs

Guilty person to compensate the victim and to pay the costs of the prosecution

Under Section 357A of the CrPC, every State Government has to coordinate with the Central Government and prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and also require rehabilitation.

Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority will decide the quantum of compensation to be awarded under the scheme.

The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.

Moreover, under Section 357B The compensation payable by the State Government under Section 357A shall be in addition to the fine to the victim under Section 326A, 376AB, 376D, 376DA, 376DB of the IPC.

In Section 357C, all hospitals, private or public, whether run by the Central Government, State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence mentioned under Section 326A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section 376E of the IPC, and shall immediately inform the police regarding the incident.

Successful complainant to get costs in non-cognizable cases under Section 359

Under Section 359 of the Code, it is held that whenever the Court convicts the offender in a non-cognisable offence, then along with the sentence of the crime, it can order the payment of expenses that are borne by the complainant, these expenses would include the fees of the witness, pleaders fees or any other which the Court deems fit. The payment could be made in full or in instalments. In case of default of such payment, the Magistrate may order imprisonment not exceeding thirty days.

Compensation for wrongful arrests under Section 358

Under Section 358, it is stated that in case a person compels the police to arrest another person, which the Magistrate thinks that there is no ground for such arrest, the Magistrate may order compensation not exceeding Rs 1000, to be paid by the person who causes such arrest. The fine is given as a way of compensation for the loss of time and expenses or other matter, as the judge may think fit. If more than one person is arrested on such basis, then each of them should be awarded a compensation not exceeding Rs 100, as the Magistrate thinks fit. Such compensation shall be recovered as a fine and if the person does not pay the compensation then the Magistrate can sentence him to imprisonment not exceeding 30 days unless the compensation is sooner paid.

Pronouncement of judgment

Modes of pronouncing the judgment under Section 353

Under Section 353, of the CrPC, the judgment in every trial in any Criminal Court of original jurisdiction must be pronounced in open Court by the presiding officer just after the termination of the trial or at some subsequent time. The notice of that time shall be given to the parties or their pleaders. The various modes of pronouncement of judgement are:

  • by delivering the whole judgment.
  • by reading out the whole judgment.
  • by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the guilty or his pleader.

If the whole judgment is delivered the presiding officer shall take it down in short-hand, sign the transcript and every page of it as soon as it is made ready, and write on it the date of the delivery of the judgment in the Open Court. However, in practice, the judgements are usually delivered in the fag end of the day so that the transcribed copy of the judgement is available to the judge in the morning itself.

However, where the whole judgment or the operative part of it is read out or as the case may be, it shall be dated and signed by the presiding officer in Open Court and if it is not written with his own hand, every page of the judgment shall be signed by him. This also takes place when the judgment is dictated to the shorthand writer.

Where the operative part of the judgment is pronounced in the manner specified under the Section then whole judgment or a copy of it shall be immediately made available to the parties, or to their pleaders (if they apply for the same) free of cost. The person who is in custody will be brought in the Court to hear the judgement.

If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been exempted and the sentence is only of fine and he is already acquitted. However if there are more than one accused and some of them are not present, the Court can pronounce the judgement in his absence to do away with the undue delay.

No judgment delivered by any Criminal Court shall be considered invalid by reason only in the absence of any party or his pleader on the day or from the place notified for the delivery of it, or of any omission to serve, or any defect in serving the parties or their pleaders, or any of them, the notice of that day and place.

This Section would not limit the extent the provisions of Section 465, of the CrPC.

Court not to alter judgment under Section 362

Under Section 362, it is categorically mentioned that except otherwise provided in the Code, the Court will not alter the Judgement or the order once signed by it to dispose of it, except to correct any clerical or arithmetical errors.

Copy of judgment to be given to the accused and some other persons under Section 363

Section 363 of the CrPC states that when the sentence of imprisonment is pronounced, the guilty must be immediately, given the copy of judgement-free of cost. If the accused applies, the copy of the judgment in his language (if possible) or in the language of the Court shall be translated and given to him in every instance where such a case is appealable. This copy should be given to him free of cost. However if the High Court confirms the death sentence of the accused, then he should be given a copy of the judgement even if he has not applied for the same. Except for these cases, the accused will get a copy of the judgement or order, would be given to him on payment of the specified charges, or in special cases, as the Court shall deem fit, will give it to him free of cost. Moreover, if the appeal to the judgement lies in the higher Court, then the accused must be informed of the time within which he should appeal, and his appeal must be preferred. Moreover, other persons who are not affected by the judgement of the High Court shall get the copy of the same after payment of specified prices and following of certain conditions as ascertained by the High Court in the rules made by it.

Translation of judgment under Section 364

Section 364 of the Code holds that the judgement needs to be filed along with the proceedings. Moreover, if the judgement is recorded in the language that is different from the Court’s language and the Court, the accused requires that the translation needs to be done in the language of the Court, then such judgement needs to be translated.

Court of Session to send a copy of finding and sentence to District Magistrate under Section 365

Under Section 365, it is stated that in cases where the proceedings are held in the Court of Judicial Magistrate or Sessions Judge, the copy of all the findings and the sentence need to be given to the District Magistrate, under whose local jurisdiction the trial is held.

Conclusion

Judgement forms an important part of any legal proceedings, it mentions the decisions that are taken after hearing the argument from both sides and the reason for the same. Chapter XXVII of the Criminal Procedure Code, 1973, gives a detailed description of the judgement in criminal matters. Provisions relating to the language, contents etc are provided. The judgement in cases of a death sentence, fine or imprisonment separate provision is present for delivering of judgement.

References


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