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TMI Blog2024 (5) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ms. Asmita Singh, Adv., Mr. Harshit Goel, Adv., Mr. K.V. Vibu Prasad, Adv. 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges 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." 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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 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 noncompliance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentiality 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (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 bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 pretrial. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility 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] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 [(198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-inchief and cross examination, both at the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 examinationin-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, unless the Court finds the adjournment 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educe 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." 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 retrial. 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 " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able (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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved 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 possibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders, 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 or a member of the victim or the offender's family, (ii.1) evidence that the offender, in committing the offence, abuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence 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, 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 offend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidelines 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; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arting point for cases within that category- (i) before taking account of the factors mentioned in subsection (6), and (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- (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-sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO ALL THE ACTS CONSIDERED "7.44. A proper sentence is a composite of many factors, including the nature of the offence, the circumstances- 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 offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, 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,- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (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. 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 confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 atmosp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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