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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 ..... hour s time running into 27 pages consisting of 59 paragraphs in the first case and similarly in the other. The lawyer for the defence cannot fight against the court. It is the court which has to follow a balanced approach. At every stage, including framing of charges, there was a constant denial of due opportunity and hearing. The accused was not able to consult his lawyer. He was not even served with the copies, though his lawyer received the same before framing of the charges. Receiving of documents by his lawyer would not be sufficient compliance, unless there was sufficient time given for him to peruse them and thereafter have a consultation. Admittedly, neither the provisions of the Witness Protection Scheme, 2018 have been invoked nor the Rules for Video Conferencing for Courts, 2020 were followed. The accused was merely shown the court s proceedings and the writing was on the wall for him. It is not possible to say anything on the merits of the case. On facts, even in Criminal Appeal No. 3925 of 2023, the trial had commenced and concluded in a single day. Additionally, no lawyer could be engaged by the accused and, therefore, as per the recommendations of the prosecutor, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chander Uday Singh, Sr. Adv., Mr. Gautam Narayan, AOR, Ms. Asmita Singh, Adv., Mr. Harshit Goel, Adv., Mr. K.V. Vibu Prasad, Adv., Mr. Chander Uday Singh, Sr. Adv., Mr. Gautam Narayan, AOR, 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. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under Section 164 of the CrPC. 11.1 The Court may, at its discretion, authorize detention of an accused, frame charges in a criminal trial under the CrPC by video conferencing. However, ordinarily judicial remand in the first instance or police remand shall not be granted through video conferencing save and except in exceptional circumstances for reasons to be recorded in writing. 11.2 The Court may, in exceptional circumstances, for reasons to be recorded in writing, examine a witness or an accused under Section 164 of the CrPC or record the statement of the accused under Section 313 CrPC through video conferencing, while observing all due precautions to ensure that the witness or the accused as the case maybe is free of any form of coercion, threat or undue influence. The Court shall ensure compliance with Section 26 of the Evidence Act. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nities for all the stakeholders. Such procedural safeguards and compliance are to be kept in mind by the Court, as any deviation might either impact the prosecution or the defence in a given case. In an adversarial system of criminal law, which is being followed in India, when an accused is prosecuted on behalf of the State, the interest of a victim cannot be ignored. An offence is presumed to be against societal values and, therefore, any crime would constitute a deviant act by the accused. 8. Every trial is a march towards the truth. It is the primary duty of the Court to search for the truth using the procedural law as its tool. Such a procedural law may have a substantive part extending certain inalienable rights to both, the accused and the victim. By non-compliance of the procedural law, justice cannot be allowed to derail. Anyone, who complains of an unfair trial, is duty bound to satisfy the Court that he stands prejudiced by it. This does not mean that a Court can be lackadaisical in following the rules and procedures meant to ensure justice. 9. A fair trial is the heart and soul of criminal jurisprudence. The principle of democracy lies in a fair trial. It is not only a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d' tre 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and 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 elici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be given a decent setting to prove his innocence. Compliance with the procedural safeguard is meant for the aforesaid purpose. However, such procedural safeguards would not only ensure a fair trial, but also help the prosecution in confirming that it did its part fairly. 12. The concept of fair trial is not a vague idea, but a decisive one. While a speedy trial is in the best interest of everyone, including the society, the pace can only be set through the procedural mechanism, and it cannot be done at the mere dictate of the Court in ignorance of the procedural law. At the same time, care has to be taken with the aid of the law, to prevent the miscarriage of justice, when the delay is caused on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be permitted to destroy the latter by its recklessness. Any anxiety on the part of the Court, either to expedite the trial in contravention of law, or delay it unnecessarily, would seriously impede fair trial. In such a case, either the prosecution or the defence would bear the consequences. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fairness cannot be utilised to build castles in Spain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 them, he shall cause the same to be so furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are supplied to make the accused aware of the materials which are sought to be utilised against him. The object is to enable the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 card/pen-drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen-drive. It is cardinal that a person tried for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in that behalf . If the hearing for the purposes of these provisions is to be meaningful, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 says: When in a case instituted on a police report or otherwise the accused appears or is brought before the magistrate and it appears to the magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session. If the Committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody, he may not cancel the bail. This has been made clear by the words subject to the provisions of this Code relating to bail occurring in clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrarily c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed has been made out and whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained. In such an eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but the court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. (emphasis supplied) Sajjan Kumar v. CBI, (2010) 9 SCC 368 Exercise of jurisdiction under Sections 227 and 228 CrPC 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Maharashtra, (2012) 9 SCC 1 465. All this development clearly indicates the direction in which the law relating to access to lawyers/legal aid has developed and continues to develop. It is now rather late in the day to contend that Article 22(1) is merely an enabling provision and that the right to be defended by a legal practitioner comes into force only on the commencement of trial as provided under Section 304 CrPC. xxx xxx xxx 471. The resounding words of the Court in Khatri (2) [(1981) 1 SCC 627 : 1981 SCC (Cri) 228] are equally, if not more, relevant today than when they were first pronounced. In Khatri (2) [(1981) 1 SCC 627 : 1981 SCC (Cri) 228] the Court also alluded to the reasons for the urgent need of the accused to access a lawyer, these being the indigence and illiteracy of the vast majority of Indians accused of crimes. 472. As noted in Khatri (2) [(1981) 1 SCC 627 : 1981 SCC (Cri) 228] as far back as in 1981, a person arrested needs a lawyer at the stage of his first production before the Magistrate, to resist remand to police or jail custody and to apply for bail. He would need a lawyer when the chargesheet is submitted and the Magistrate applies his mind to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes, and is only intended to ensure that those provisions are faithfully adhered to in practice. xxx xxx xxx 477. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh [(1986) 2 SCC 401 : 1986 SCC (Cri) 166] ). 478. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent Magistrate liable to disciplinary proceedings, or giving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution, 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 time. While fixing the date, the Court is expected to take into consideration the relative convenience of the parties, though the discretion lies with it. Sub-section (1) of Section 231 of the CrPC, 1973 fixes a responsibility on the Court, the prosecution and the defence to go ahead with the examination of witnesses on the date so fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 justifying the deferral of cross-examination of each witness, or set of witnesses. 24.7. While granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the crossexamination of that witness, after the examination-in-chief of such witness(es) as has been prayed for. 24.8. The case-calendar, prepared in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two months from the date of filing of the charge sheet. (2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him: Provided also that (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inds that adjournment beyond the following day to be necessary the same can be granted for which a condition is imposed on the court that reasons for the same should be recorded. Even this dilution has been taken away when witnesses are in attendance before the court. In such situation the court is not given any power to adjourn the case except in the extreme contingency for which the second proviso to sub-section (2) has imposed another condition, provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing . (emphasis supplied) 12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are special reasons , which reasons should find a place in the order for adjournment, that alone can confer juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment [(1977) 1 All ER 813: 1978 AC 359: (1977) 2 WLR 450 (HL)]). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. (emphasis supplied) Darbara Singh v. State of Punjab, (2012) 10 SCC 476 21. Failure of justice is an extremely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S. 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 33. The principles that emerge from the decisions of this Court on retrial can be formulated as under: 33.1. The appellate court may direct a retrial only in exceptional circumstances to avert a miscarriage of justice. 33.2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed. 33.3. A determination of whether a shoddy investigation/trial has prejudiced the party, must be based on the facts of each case pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for sentence and such Court may after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. Section 3 of the Probation of Offenders Act, 1958 3. Power of court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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, if any, and the probation officer concerned. Section 6 of the Probation of Offenders Act 1958 6. Restrictions on imprisonment of offenders under twenty-one years of age. (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence is a valuable right conferred on the accused. The real importance lies only with the sentence, as against the conviction. Unfortunately, we do not have a clear policy or legislation when it comes to sentencing. Over the years, it has become judge-centric and there are admitted disparities in awarding a sentence. 30. In a country like ours, sentencing accused persons pursuant to a conviction, on a uniform pattern, would also be prejudicial. When it comes to sentencing, there are various factors such as age, sex, education, home life, social background, emotional and mental conditions, caste, religion and community that constitute aggravating and mitigating circumstances. 31. There is a distinction between knowledge and character. Knowledge is acquired, while character is formed. The formation of a person s character depends upon various factors. More often than not, a convict does not have control over the formation of his character. This leads to certain groups of people inheriting crime. In this connection, we can draw an analogy from nature itself. Before falling on the ground, rainwater remains the same. It is the soil which changes the character of the water. Rainwater pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in adjudicating aggravating circumstances, the balance of probability standard is required while construing mitigating circumstances. Courts may also be guided by the conduct of the convict during pre-trial stage, either under incarceration or otherwise. A report may well be called for from the designated authority. The ultimate idea is to eliminate discretion on the part of the Court, which obviously leads to disparity. 37. As we discuss the issue we have flagged, we understand that the issue is an extremely complex one and it is the duty of the States and the Union of India to deal with the situation by duly considering the three different modes discussed above. There has to be a conscious discussion and debate over this issue which might require constituting an appropriate Commission on Sentencing consisting of various experts and stakeholders. We illustratively suggest the members from the legal fraternity, psychologists, sociologists, criminologists, executives and legislators . Societal experience would come handy in coming to a correct conclusion. What we have at present is an imposition of a sentence by way of a legislation. There are obvious errors and lacunae, which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles 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 slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage. 249. To do this, the trial court must elicit information from the accused and the State, both. The State, must for an offence carrying capital punishment at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o point out that this Court in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266] has in fact directed criminal courts to call for additional material : (SCC p. 86, para 33) 33. Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case. (emphasis supplied) We hereby fully endorse and direct that this should be imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act are (a) to set out the purposes for which offenders may be sentenced or otherwise dealt with; and (b) to promote those purposes, and aid in the public s understanding of sentencing practices, by providing principles and guidelines to be applied by courts in sentencing or otherwise dealing with offenders; and (c) to provide a sufficient range of sentences and other means of dealing with offenders; and (d) to provide for the interests of victims of crime. (emphasis supplied) Section 7 of the Sentencing Act, 2002 Purposes and principles of sentencing 7 Purposes of sentencing or otherwise dealing with offenders (1) The purposes for which a court may sentence or otherwise deal with an offender are (a) to hold the offender accountable for harm done to the victim and the community by the offending; or (b) to promote in the offender a sense of responsibility for, and an acknowledgment of, that harm; or (c) to provide for the interests of the victim of the offence; or (d) to provide reparation for harm done by the offending; or (e) to denounce the conduct in which the offender was involved; or (f) to deter the offender or other persons from committing the same or a similar offence; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case (including, without limitation, anything referred to in section 10). (emphasis supplied) Section 9 of the Sentencing Act, 2002 9 Aggravating and mitigating factors (1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case: xxx xxx xxx (2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case: xxx xxx xxx (3) Despite subsection (2)(e), the court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or other substance used for bona fide medical purposes). xxx xxx xxx (4) Nothing in subsection (1) or subsection (2) (a) prevents the court from taking into account any other aggravating or mitigating factor that the court thinks fit; or (b) implies that a fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false: (d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender s part in the offence: (e) either party may cross-examine any witness called by the other party. (3) For the purposes of this section, aggravating fact means any fact that (a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and (b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating fact means any fact that (a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and (b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. (emphasis supplied) Section 25 of the Sentencing Act, 2002 25 Power of adjournment for inquiries as to suitable punishment (1) A court may adjourn the proceedings in respect of any offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensive supervision, or home detention involving 1 or more programmes, (i) a report on the programme or programmes, including a general description of the conditions that the offender will have to abide by; and (ii) confirmation that the report has been made available to the offender: (g) in the case of a proposed sentence of supervision, intensive supervision, or home detention involving a special condition requiring the offender to take prescription medication, confirmation that the offender (i) has been fully advised by a person who is qualified to prescribe that medication about the nature and likely or intended effect of the medication and any known risks; and (ii) consents to taking the prescription medication: (h) in the case of a proposed sentence of community work, (i) information regarding the availability of community work of a kind referred to in section 63 in the area in which the offender will reside; and (ii) recommendations on whether the court should authorise, under section 66A, hours of work to be spent undertaking training in basic work and living skills: (i) in the case of a proposed sentence of intensive supervision or possible release conditions for a proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other enactment that requires a court to give reasons. (4) The fact that a court, in giving reasons in a particular case, does not mention a particular principle in section 8 or a particular factor in section 9 or a consideration under section 10 or section 11 is not in itself grounds for an appeal against a sentence imposed or an order made in that case. (emphais supplied) UNITED KINGDOM Coroners and Justice Act, 2009 (UK) PART 4 SENTENCING CHAPTER 1 Sentencing Council For England and Wales Section 118 of the Coroner and Justice Act, 2009 118 Sentencing Council for England and Wales (1) There is to be a Sentencing Council for England and Wales. (2) Schedule 15 makes provision about the Council. Schedule 15 THE SENTENCING COUNCIL FOR ENGLAND AND WALES Constitution of the Council Schedule 15, Para 1 of the Coroner and Justice Act, 2009 1 The Council is to consist of (a) 8 members appointed by the Lord Chief Justice with the agreement of the Lord Chancellor ( judicial members ); (b) 6 members appointed by the Lord Chancellor with the agreement of the Lord Chief Justice ( non-judicial members ). Appointment of a person to chair the Council etc Schedule 15, Para 2 of the Coroner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r guilty pleas), and (b) sentencing guidelines about the application of any rule of law as to the totality of sentences. (4) The Council may prepare sentencing guidelines about any other matter. (5) Where the Council has prepared guidelines under subsection (3) or (4), it must publish them as draft guidelines. (6) The Council must consult the following persons about the draft guidelines (a) the Lord Chancellor; (b) such persons as the Lord Chancellor may direct; (c) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs); (d) such other persons as the Council considers appropriate. (7) In the case of guidelines within subsection (3), the Council must, after making any amendments of the guidelines which it considers appropriate, issue them as definitive guidelines. (8) In any other case, the Council may, after making such amendments, issue them as definitive guidelines. (9) The Council may, from time to time, review the sentencing guidelines issued under this section, and may revise them. (10) Subsections (5), (6) and (8) apply to a revision of the guidelines as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge for each of those categories. (6) The guidelines should (a) (to the extent not already taken into account by categories of case described in accordance with subsection (2)) list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration, (b) list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the offence, and (c) include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular significance in relation to the offence or the offender. (7) For the purposes of subsection (6)(b) the following are to be disregarded (a) the requirements of section 73 of the Sentencing Code (reduction in sentences for guilty pleas); (b) sections 74, 387 and 388 of the Sentencing Code (assistance by defendants: reduction or review of sentence) and any other rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r subsection (1)(b). Sentencing Act 2020 (UK) Section 3 of the Sentencing Act, 2020 DEFERMENT OF SENTENCE 3 Deferment order (1) In this Code deferment order means an order deferring passing sentence on an offender in respect of one or more offences until the date specified in the order, to enable a court, in dealing with the offender, to have regard to (a) the offender s conduct after conviction (including, where appropriate, the offender s making reparation for the offence), or (b) any change in the offender s circumstances. (2) A deferment order may impose requirements ( deferment requirements ) as to the offender s conduct during the period of deferment. (3) Deferment requirements may include (a) requirements as to the residence of the offender during all or part of the period of deferment; (b) restorative justice requirements. (emphais supplied) Section 5 of the Sentencing Act, 2020 5 Making a deferment order (1) A court may make a deferment order in respect of an offence only if (a) the offender consents, (b) the offender undertakes to comply with any deferment requirements the court proposes to impose, (c) if those requirements include a restorative justice requirement, secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forming an opinion in relation to which the pre-sentence report requirements apply, no custodial sentence or community sentence is invalidated by the fact that it did not do so. (emphais supplied) Section 31 of the Sentencing Act, 2020 31 Meaning of pre-sentence report etc Pre-sentence report (1) In this Code pre-sentence report means a report which (a) is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender, and (b) contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State. 40. We find that an exhaustive and detailed exercise has been done by New Zealand. What we have discussed has already been substantially taken into consideration by the aforementioned countries. As it is an important aspect which has escaped the attention of the Government of India, we recommend the Department of Justice, Ministry of Law and Justice, Government of India, to consider introducing a comprehensive policy, possibly by way of getting an appropriate report from a duly constituted Sentencing Commission consisting of experts in different fiel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countries guidance regarding sentencing option and sentencing guideline laws are given in the penal code. There is need for such law in our country to minimise uncertainty to the matter of awarding sentence. There are several factors which are relevant in prescribing the alternative sentences. This requires a thorough examination by an expert statutory body. xxx xxx xxx 14.4.5 Sometimes the courts are unduly harsh while at other times they are liberal. We have already adverted to aspects which Supreme Court said are relevant in deciding as to what are the rarest of the rare cases for imposing death sentence. However, even in such matters uniformity is lacking. In certain rape cases acquittals gave rise to public protests. Therefore in order to bring about certain regulation and predictability in the matter of sentencing, the Committee recommends a statutory committee to lay guidelines on sentencing under the Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court experienced in criminal law with other members representing the Prosecution, legal profession, Police, social scientist and women representative. (emphasis supplied) Report of the Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educed in similar situations. (iii) A policy to avoid short-term imprisonments and to prevent overcrowding of jails and other custodial institutions, to be rigorously pursued at all levels. (iv) The need for specific sentencing guidelines to be evolved in respect of each punishment. (v) Also the need for an institutional machinery involving correctional experts for fixing proper punishment. (emphasis supplied) Precedents Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 14. In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the Judges constituting the Bench. 52. The inability of the criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results. On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the criminal justice system. Thus the overall larger picture gets asymmetric and lopsided and presents a poor reflection of the system of criminal administration of justice. This situation is a matter of concern for this Court and needs to be remedied. (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under section 117 or sub-section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision. 42. Section 354 of the CrPC, 1973 though merely deals with the language and contents of judgment, also sheds light on the fact that a judgment contains two distinct parts, wherein the first part deals with the conviction and the second deals with the sentence. Sub-section (1)(c) of the aforesaid provision has to be understood to mean that a Judge is expected to consider the aggravating and mitigating circumstances. In such view of the matter, sub-section (3) of the aforesaid provision is more clarificatory, k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses. Strangely enough, an application was filed by the Investigating Officer to record the evidence of four witnesses in a single day, as a confidential information obtained, indicated that there was pressure from the family members of the accused. No notice was served either on the accused or his counsel, and the order was apparently passed, without taking into consideration the Witness Protection Scheme, 2018. In disregard of the provisions of the Rules for Video Conferencing for Courts, 2020, the statements of the witnesses were recorded. 47. After two days i.e. 24.01.2022, the remaining witnesses, including the Investigating Officer, were examined. There was no material to show that the accused was present at that point of time. The plea made by the counsel for the defence for deferment by one week was rejected, sans any substantial reason. For the purpose of questioning under Section 313 of the CrPC, 1973 alone, the accused was brought through video conferencing. In a hurried manner, the questioning was done. The repeated plea of adjournment by one week made by the counsel for the defence was once again rejected, while ultimately facilitating a day s adjournment. 48. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is as to whether the observation made against the appellant, is justified or not, especially when he has not been heard. On facts, even in this case, the trial had commenced and concluded in a single day. SUBMISSIONS ON BEHALF OF THE APPELLANT Criminal Appeal No. 3924 of 2023 and Criminal Appeal Nos. 3926- 3927 of 2023. 53. Mr. Vikas Singh, learned senior counsel appearing for both the informant and the learned Trial Judge, submitted that the procedure established by law has been followed. The appellant has kept in mind the rigour of Section 309 of the CrPC, 1973 read with the provisions contained under the POCSO Act, 2012. Even assuming that there is a procedural flaw, in view of the mandate contained under Section 465 of the CrPC, 1973 there is no need for remittal. During the course of trial, the counsel for the responden-taccused has not raised any serious objection. Criminal Appeal No. 3925 of 2023 It is further submitted that the appellant has discharged his judicial function and, therefore, any action without hearing him is contrary to law. Though the charges have been dropped, the observations made would be detrimental to his future career progression. The accused had ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , unless there was sufficient time given for him to peruse them and thereafter have a consultation. Admittedly, neither the provisions of the Witness Protection Scheme, 2018 have been invoked nor the Rules for Video Conferencing for Courts, 2020 were followed. The accused was merely shown the court s proceedings and the writing was on the wall for him. We are not willing to say anything on the merits of the case. On facts, even in Criminal Appeal No. 3925 of 2023, the trial had commenced and concluded in a single day. Additionally, no lawyer could be engaged by the accused and, therefore, as per the recommendations of the prosecutor, another one was engaged. Otherwise, the facts are more or less similar in both the cases and, therefore, we are not inclined to go into it in detail. When the charges are very serious, Courts should be more circumspect in discharging their solemn duty. 56. We do not think that the decisions relied upon by the learned senior counsel for the appellant have any bearing on the present case. The appellant judicial officer is fortunate that no action was taken against him. We do not wish to say anything more on this, except by stating that in the absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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