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This article is written by Yug Gambhir, from Amity Law School, Noida.


The term sentencing refers to the punishment given to the convicts by the judges in the criminal proceedings. In other words, we can say that it is the process of not only penalizing the wrongdoer but also a way of avoiding future crimes. In the legal aspect, punishment is the imposition of pain or loss upon the person for his misdeed. There are various kinds of punishments. The main issue arises is that judges have wide discretion in awarding the punishment to the offenders i.e. they have a wide range in sentencing the punishment within the statutes. Unlike England, Wales and America, in India there are no specific guidelines established regarding the sentencing policy. Whereas, at the time of sentencing, the judges should look upon the aggravating and mitigating factors so that justice is done to the victim. Also, while discretion judges should follow the doctrine of proportionality. In this research paper, we will be dealing with few sections relating to sentencing under The Code of Criminal Procedure (CrPC), 1973 & Probation of Offenders Act (POA), 1958 & The Indian Penal Code (IPC), 1860. We will be studying the reports submitted by the Malimath Committee and law commission regarding criminal justice. The purpose of the study is to understand why it is important to set up guidelines for sentencing by the legislature or the judiciary. Based on my research, meanwhile, the legislature or the judiciary should explore and pass some orders/laws on various possibilities which can be exercised in the absence of the guidelines regarding the sentencing policy and also focus on the need for establishing the specific directions regarding the same.

Sentencing is the process of awarding punishment to the offenders by the hon’ble judges. Whereas, sentencing guideline reviews upon what bases the judgement should be done. The sentencing policy can be considered as the formula for calculating what is right for a particular crime. The term “punishment” is interpreted as the process of not only penalizing the wrongdoer but also a way of avoiding future crimes. Punishment in legal aspects is the imposition of pain or loss upon the person for his misdeed. S.53 of The Indian Penal Code, 1860 prescribes various punishments to which offenders are liable i.e. death, imprisonment for life, imprisonment which can be simple or rigorous, forfeiture of property and fine. Earlier in the ancient period, “a tooth for tooth, an eye for an eye” was the rule of law. With the advancement of time, various laws were passed to figure out what is to be done with the anti-social peoples. The procedure of sentencing in the ancient period was influenced by the Dharamshastras, Arthshastras, Manusmriti, and Yajnavalkya. The punishments for the offences like violation of religious and social rules, offences against the king were public disgrace, beating/whipping, fine and imprisonment whereas the punishments for the offences like wrong act by lower caste against the upper caste or the murder of a Brahmin were death, mutilation and fines. There are four ideologies for awarding sentences namely – deterrent ideology, preventive ideology, reformative ideology, retributive ideology. According to the concept of deterrent, the main belief is to create fear among the offender from repeating that crime. Concept of retribution states that the belief is to end the crime itself. The main reason behind this theory is to provide pleasure to the victim and his/her family. In preventive theory, the aim is to prevent crime rather than avenging it. It is said that extreme penalties will prevent the offender from repeating heinous crimes. In Reformative Theory, the aim is to re-educate and reshape the personality of the offender. Under this theory punishment performs the function of medicine.

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There are few sections relating to sentencing provided under the statutes such as S.53 of IPC, 1860; S.28, S.354 (3), and S.360 of CrPc,1973; S.4 of POA, 1958. Judges need to state “special reasons” while awarding the death sentence or imprisonment for life. Whereas, Order can be passed to release a young offender on the probation of good conduct with a warning. S. 4 of POA, 1958 and subsections (1) & (7) of S.360 of the CrPc, 1973 are similar.

In India, judges continue to have the freedom to decide what should be done in the particular case or situation .ie. there aren’t any specific guidelines for the sentencing of the convicts. Since, there are no guidelines established in India for the sentencing policy, judges have wide discretion in awarding the punishment to the convict which leads to uncertainty. For example, the punishment for theft of bread or of Rs.5,000 remains the same i.e. “imprisonment extendable to 3 years, with fine or both”. Here the judge can select any of the punishment according to his own perception. But while passing judgment, judges may look into the mitigating factors and the degree of crime committed. Judgment should be passed in consideration of aggravating and mitigating factors. Aggravating factors are provided by the prosecutors that would merit a harsh sentence during trial. Examples of aggravating factors are as follow: – Repeat Offenses, Vulnerability of Victim, and Leadership Role. Whereas, mitigating factors are provided by the defense that would support leniency in sentencing. Criminal statutes pay less attention to factors that might mitigate a defendant’s sentence. Examples of mitigating factors are as follow: – Lack of a prior criminal record, Minor role in the offense, Circumstances at the time of the offense, such as provocation or stress.
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Report by Malimath Committee on reforms of criminal justice system

The punishment should be in such a manner that it acts as a deterrent. In a similar way, punishments must not be that harsh, rather it should be moderate enough to be effective. This report has discussed various aspects such as sentencing considerations, need for sentencing policy, reform in punishments, an alternative to the death penalty, revision on fines, etc.

According to Emmins, while sentencing, the judge should take both the aggravating and mitigating factors into account. Excessive violence, committing the crime in front of a child, weapons used to frighten or injure victims, etc. are all cited as aggravating factors. Whereas, Offence committed under grave provocation, age & no previous criminal record, etc. are all cited as mitigating factors. Punishments for some of the offences may be both extreme and moderate at the same time, which empowers judges to award any sentence to the convict within the statutory limits. There is no uniformity in sentencing as there is no guidance to the judge on how to exercise discretion. Some judges are very harsh or strict, whereas some of them are very lenient in passing judgment. The Judges award death penalty or refuse to award it according to their own philosophy. In some countries like England, Wales and America guidelines regarding sentencing have been established. There is a need to establish sentencing policy in India to ensure uniformity and to avoid uncertainty.

The Law Commission in its 47th report states that an appropriate penalizing process comprises different numerous elements such as the nature of the offence committed, circumstances; the age, character, mental health of the offender, beginner or the professional, rehabilitation, training or treatment can be considered or not. For more clarification, judges should classify the offender as the regular criminal i.e. professional or the beginner or maybe the mafia i.e. terrorist or gangster. At present, IPC, 1860 prescribes death penalty is the highest punishment and the second highest is life imprisonment. The SC held that capital punishment shall be awarded only in the “rarest of rare cases” stating special reasons. The report summarized saying that there should be a punishment harsher than imprisonment for life but at the same time it should be lenient than that of capital punishment.

Probation of Offenders Act, 1958

POA, 1958 broadly discusses the powers of the court to let go certain offenders, benefits for those whose age is below 21 years, mention special officers along with their duties. Probation is a sentence imposed by a court in lieu of imprisonment. This act prescribes a minimum sentence to the offender on the probation of good conduct. The term “probation” is an alternative to prison i.e. it is the criminal sentence in the interest of the offender. This act tries to stop the turning of young offenders to professional criminals. Court has the power to release certain offenders after admonition and on the promise of good conduct prescribed under S.3 & S.4 of POA, 1958 respectively. There is a very popular quote by Mahatma Gandhi that “hates the crime, not the criminal”. Through this act, a fair chance is given to the young offender to become a better human being. We say young kids learn bad things 10 times faster than good things, so in this case it’s good not to sentence them with imprisonment, rather give them a chance of improvement with a warning. We can’t guarantee that after being released from jail, the offender will act well because he might learn more heinous crimes within the jail.

The salient characteristics of POA, 1958 are as follow:

  • The main goal of this act is to let go 1st time offenders, after warning, these offenders include who have committed an offence such as theft, theft in dwelling house, theft by servant or clerk, dishonest misappropriation of property, cheating and whereas, punishment for such acts is imprisonment for less than two years, fine, or maybe both.
  • Court is authorized to let go certain offenders on probation of good conduct only when the wrongful act committed isn’t punishable with death or captivity. Whereas, the offender should be kept under supervision.
  • Broadly, The Act provides benefit i.e. special protection to offenders who are under the age of twenty-one by not sentencing them to imprisonment.

Analysis with relevant case judgements

  1. Bachan Singh vs. State of Punjab (AIR 1980 SC 898)

The Supreme Court in its landmark judgement upheld constitution validity for death sentence. It lay down that the supreme sentence shall be awarded only within the “rarest of rare cases”. With the help of the principle, “rarest of rare cases” court imposed certain limitations on awarding death sentences. Whereas, “rare cases” weren’t elaborated during this judgement. If a person convicted of murder, “capital punishment” would be an exception with special reasons.

  1. Alister Anthony Pareira vs. State of Maharashtra (AIR 2012 SC 3802)

This case highlighted important objectives of criminal justice namely – deterrence and, proportionality and correction. The doctrine of proportionality shall be followed which says that the degree of punishment shall fit the degree of crime. Also, while passing the judgement, factors such as the nature and circumstances of the crime should be considered. This case also throws light upon the fact that while deciding the sentence, not only the rights of the victim should be taken care of but also the rights of the accused. In other words, the rights of the victim and accused shall be considered equally.

  1. Bisikesan Suna vs. State of Orissa

In this case, an offender below the age of 21 was found guilty for the offence “theft in dwelling house”. The court held that since the accused had no criminal record and no preparation was found to commit such offence, therefore section 3 of the probation of offender act, 1958 can be applied. Hence the judgement released the offender on the probation of good conduct after admonition.

  1. Devki Alias Kala vs. The State of Haryana

The Supreme Court rejected the plea for benefit under section 3 of probation of offenders act, 1958 price and sentenced to three years rigorous imprisonment as the offender has shown sufficient excellence in abduction, seduction and sale of girls to others for tempting price.


In India, sentencing is dominated by individual philosophy of the judge and discretion. IPC, 1860 have prescribed five punishments for the law breakers. Law provides a wide range in selecting the appropriate sentence, which leads to uncertainty in judgements. There are various irrelevant considerations influencing the judge while passing judgement, such as caste and poverty. Unlike India, US England and Wales have established sentencing councils. The case “Bachan Singh v. State of Punjab” has laid down the Doctrine of rarest of rare cases in its landmark judgement. While passing the judgement, aggravating and mitigating factors should be taken in account. Legislature or the judiciary should explore and pass some orders /laws on various possibilities which can be exercised in the absence of the guidelines regarding the sentencing policy and also focus on the need for establishing the specific directions regarding the same. 

Also, there should be proper guidelines for judges as to how to use their power while sentencing. Some judges are lenient and few are extremely harsh in deciding sentences. The most troubling truth highlighted is the non-consideration of mitigating factors while sentencing. The study reveals half of the death sentence was given on the grounds of collective conscience of the society. Whereas, collective conscience is the collective set of ideology which prevails in the society. There are many cases in which mitigating factors are not taken into account.

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