81

Chapter–IV

POST-TRIAL

The trial of the issue between the prosecutor and the accused ends with the

delivery of the verdict. If that verdict be ‘guilty’ two further problems then arise in the

striking of the balance between the interest of the accused and the interest of the victim

and that of the public:

1). The procedure which is to govern the imposition of Sentence.

2). The procedure that governs the making of an Appeal.

In this chapter, the former is dealt with in Part-I while the latter is dealt with in Part-II.

Part–I

SENTENCING

Criminals are ‘humans’ but they are with malevolent indifference towards their

victims. Criminals are infused with anger, envy, jealousy, resentment, vengefulness. For

the security of the society they have to be punished appropriately. Penological theories

of punishment, namely, retributive theory, deterrence theory, reformative theory, have to

be considered while arriving at a right sentence in every case. Inappropriate sentence

leads to lawlessness and waning of traditional authority of the State and breeds public

dissatisfaction. Though sentencing is the forte of courts, sentence execution is the forte of

the executive. State, as representative of public safety and their other concerns, must see

it through its Public Prosecutor that the courts hand out proper sentences to the offenders.

Sentences are passed in cases of guilty pleas and contested pleas and in plea bargaining

cases. While the punishment should be suitable to the criminal and the crime committed

by him, it should also compensate the victim at the individual level and redeem the
 82

expenses incurred by the State. The extent to which the statute and judiciary allowed the

prosecutor to speak out the above referred needs and seek for proper sentencing is to be

examined. The participation of the prosecutor at the trial court in the bail proceedings

subsequent to conviction are also to be examined. Since the law is found to be only half

baked and the prosecutor is found to be complacent reforms to remedy them are

suggested in this part.

The question of sentence is a matter of judicial discretion is what the Supreme

Court of India said112. It simply means that it is the court which determines the nature of

punishment the accused has to suffer. No other authority is there in Indian law which

could impose ‘punishment’ as understood in criminal law. Most legal systems are

prepared to leave sentence to the court which decides guilt. If sentencing is to remain the

function of the judges, should they have guidance from the Public Prosecutor, from the

probation officers and should the prosecutor advice and assists the judge in the

determination of the initial sentence is a significant area for explanation.

In the English system, the prosecutor adopts a detached attitude towards sentence.

He remains scrupulously neutral. In certain other systems, it is the duty of the prosecutor

to propose or demand a sentence. For instance in Scotland, the prosecutor shall move a

motion inviting the judge to pass sentence. The Judge does not pronounce sentence until

so invited by the prosecutor. The prosecutor is in control of the case right up to the stage

when sentence is actually pronounced and he is entitled to decline to move for sentence

even after guilty verdict is made by court and abandon the case disentitling the court from

112
D.R.Bhagare v.State of Maharastra, AIR 1974 SC 476.
 83

passing sentence113. In India, the initiative comes from convicting court when it invites

the prosecutor to make submissions about a sentence the court is expected to pass.

Though sentencing is the function of the judge, he always discharges his functions

only based on material facts available before the court. Facts could come to the court as

furnished by the prosecution and defence counsel. The judge could also ascertain facts

from the parties on his own initiative. In this process, each participant in the system, with

varied beliefs and expectations, makes submissions to the court. The police believe that

every arrest results in conviction. Prosecutors are concerned with convictions as well.

Defence lawyers are concerned with getting the best possible outcome for their clients.

Judges must make decisions which are in the best interest of society and the offender.

All these interests seem in conflict with each other. Correctional agencies like probation

officers must take the guilty persons and bring attitudinal changes in them. Parole boards

may ultimately arrange the actual duration of sentence within the court-imposed term and

release the individual to the community. Thus, the sentencing process is polycentric,

divided among several agencies and among numerous decision-makers. In exercising his

discretion, the sentencing judge has to do a balancing act.

The interactive process involving decisions of the legislature, Judicial and

executive branches of the State manifest that their goal is also to rehabilitate offenders

through an individualised, therapeutic correctional process. There is need for integration

among the policies and practices of the several criminal justice agencies to attain a

113
Noon v. H.M Advocate, 1960 J.C.52 as collected and noted by Christopher Gane and Charles Stoddart,:
Criminal procedure in Scotland cases and materials, at pages 50-52, 2nd Edition reprint 1998. W.Green/
Sweet & Maxwell.
 84

practical operating equilibrium within the system. The prosecutor’s power in sentencing

derives primarily from two aspects of the prosecutorial function:

1. Prosecution responsibility to formulate criminal charges. For example, if the

prosecutor decides to charge a lesser crime than the facts support, the Judge is

precluded from imposing the legislatively prescribed sanction for the specific

conduct actually committed.

2. Prosecutor’s ability to provide or withhold information about the social

background of the guilty person and his recommendation will have bearing on the

terms of sentence prior to the actual imposition of sentence by the court. In this

way, Prosecutor creates a direct impact on the terms of sentences actually

imposed.

In India, there are no studies made and no empirical data available about the

extent of this impact. This is one aspect that deserves to be explored for shaping

sentencing principles and guidelines.

The Prosecutor’s powers in sentencing recommendations are hedged by two factors:

1. The legislative policy as reflected in the penal provisions prescribing

sentences. The maximum sentence, the mandatory minimum sentence,

rigorous sentence where the convict is obliged to work, simple sentence where

the convict is not assigned with any work and the modes of punishments like

fine, community service orders etc.

2. The personal philosophy of the sentencing judge like conservative attitude,

liberal attitude of him in formulating the actual sentence.

Plea Bargaining

If a case is processed through plea bargaining and a mutually satisfactory

disposition is arrived at between the accused and the victim in the presence of Public

Prosecutor, the question of fixing the sentence arises. Section 265-E Cr.P.C conferred

duty on court to hear both parties and then pass appropriate sentence. Here the prosecutor

could suggest for admonition of accused and total release or he could suggest for release

on probation of good conduct but not for any substantive sentence. These suggestions

must fit in the scheme of the probation of offenders Act, 1958 or Section.360 Cr.P.C. If

the case could not be dealt with for admonition or probation by the scheme of the

probation of offenders Act, 1958 or Section.360 Cr.P.C. those options are not available to

the prosecutor or the court. Coming to substantive sentence of imprisonment or fine, the

language of the code of criminal procedure has not accommodated the prosecutor to

make any submissions.

Code of Criminal Procedure enables the convicting court to pass sentence. In

contested cases Section 248 (2) Cr.P.C. employed the words “… pass sentence upon him

according to law”. The law referred therein is the penal provision contained in the

statute. The typical language employed in penal clauses of substantive laws is in the

following format: “… shall be punished with imprisonment of either description for a

term which may extend to three years, or with fine, or with both”. Thus in the, guilty

plea cases and contested prosecutions, the offender can be visited with penalty within

those limits. Court can sentence him only for one day or it can sentence him for three full

years imprisonment.
 86

In stark contrast to the above legal language, the words are used in plea

bargaining scheme. When the accused admitted guilt and arrived at plea Bargain

settlement and the stage of sentencing the offender is reached, Section.265-E (d) Cr.P.C

provides “… may sentence the accused to one–fourth of the punishment provided or

extendable … for such offence”. If the offence is one for which the penal statue

provides a mandatory minimum punishment, Section.265-E (c) Cr.P.C provides “… may

also sentence the accused to half of such minimum punishment.”

Going by the language employed in plea bargain sentences as against normal

contest sentences it appears that the prosecutor cannot seek and the court cannot impose

less than one-fourth of the sentence on the offender. Thus in a case, the sentence

provided by statute is three years, the court has to invariably sentence the offender to nine

months of imprisonment and cannot impose lesser sentence. If the same offender is

processed through contest mechanism the court is empowered to sentence him even for as

low as one day imprisonment. Thus, legislative ineptness in choosing words is a great

impediment for Public Prosecutor to suggest sentence recommendation to the court, in

plea bargaining cases.

In India, the numerical pendency of cases in courts as well as the monetary and

financial implications in running a case over a long period are not for the botheration of

prosecutor. There are no organisational goals or institutional ethics compelling the

prosecutor to initiate plea bargains. Therefore, the concept of plea bargains remained a

dead letter in this country from the time of its inception on 05-07-2006. There are no

instructions, guidelines, polices given to the prosecutors concerning sentence recommend

actions he could make in plea bargaining cases. Therefore, prosecutors lack the ability to

influence the accused and the judge in this set-up.

It can be said that despite the reforms brought to Indian Criminal Justice System

by introducing plea bargain, the prosecutors are not adequately empowered and the

judicial discretion in sentencing is curtailed or narrowly defined and the fixed term of

sentence is a potential disincentive to the accused. Plea inducements are effective only to

the degree that they can give the criminal offender a real bargain either implicitly or

explicitly.

Contest on Sentence

Though criminals have been punished by courts since long time there have been

no legislative or executive guidelines or proclaimed policies given to the prosecutors

instructing them the factors they have to consider to seek an appropriate sentence. For

the courts also, the Code of Criminal Procedure or any other law do not mention the

factors and the policies that should guide the judge in formulating a sentence. It is the

sole business of the judge to pass a sentence he feels appropriate. It need not hear

anybody. Court need not record any reasons as to why it preferred a particular type of

sentence as against other alternative. One exception for it is of course death penalty for

imposition of which court is to assign special reasons. Therefore, formulation of

sentence often revolved on the element of guessing and proximations by each court 114.

Law Commission of India in its 48th Report, 1972, recognised the need for a rational and

consistent sentencing policy and recommended for change in the law to enable the court

to collect material relevant for sentencing and encourage prosecution and the accused to

114
Ramashraya Chakravarthi v. State of Madhya Pradesh, AIR 1976 SC 392.
 88

produce evidence concerning the characteristics and background of the offender. In

response to this, the parliament introduced Sub-section (2) of Sec.235 for session trials

and Sub-section (2) of Section 248 for trials before Magistrates in the Cr.P.C. 1973.

Now, in the event of court finding the accused guilty of any offence punishable with

imprisonment for more than two years, the court shall “hear the accused on question of

sentence, and then pass sentence on him according to law”. ‘Hearing’ provided by

these sections is not defined by Cr.P.C. Legislative mandate in these sections is to

provide hearing only to the accused and no such opportunity is provided for prosecution

to participate in at this stage of the case. Popular connotation of hearing does not take

with it, production of any evidence. However to certain extent, these legislative gaps

were bridged by the judiciary. The Supreme Court of India held that the convicting Court

has to call upon the prosecution as well as the defence to place before it, the relevant

material having bearing on the sentence and thereafter to determine the sentence to be

imposed115. Thus, the Judicial endeavour enlarged the scope of the words ‘hearing the

accused’ and provided opportunity to the prosecutor also to putforth his contention,

besides enabling both sides to adduce evidence which will have bearing in determining

the sentence. When it comes to offences punishable with imprisonment for two years or

lesser than that and for offences punishable only with fine ‘hearing on sentence’ is not

provided by Cr.P.C. either in Chapter XX (Trial of Summons–Cases) or in Chapter XXI

(Summary Trials) or in Chapter XXIV (General provision as to inquiries and Trials). It is

once again, the Judiciary which extended the rule of hearing on sentence to those above

referred categories of offences during trial. For instance, the High Court of Andhra

Pradesh held that since sentence hearing is intended to benefit the accused by

115
Alladdin Mian v. State of Bihar, AIR 1989 SC1456 at 1466.
 89

ascertaining the factors to be taken into consideration while awarding punishment, in all

summons cases (Chapter XX Cr.P.C), the Magistrate need to afford such opportunity to

the accused though Cr.P.C does not provide for it116. However, the interests or the need

to hear the prosecutor in such cases is not recognised by the courts.

In very heinous crimes while choosing either of these alternative punishments the

approach of the Judiciary is not consistent with reference to the role of the prosecutor.

For instance, for the offence of murder Section 302 of the Indian Penal Code, 1860

provides imprisonment for life as the minimum sentence and death penalty as the

maximum sentence. In such cases, the prosecutor has no choice to seek any other

punishment or punishment less than the imprisonment for life. The Supreme Court said

that the court on finding the accused guilty for the offence under Section 302 IPC, should

call upon the Public Prosecutor at the stage of sentence hearing to state to the court

whether the case is one where the accused as a matter of justice should be awarded the

extreme penalty of law or the lesser sentence of imprisonment for life. If the Public

Prosecutor informs the court the case is not the one where extreme penalty is called for

and if the court agrees with the submission, the matter should end there. If on the other

hand the Public Prosecutor states that the case falls for extreme penalty prescribed by law

the court would be well advised to call upon the Public Prosecutor to state and establish,

if necessary, by leading evidence of the facts for seeking extreme penalty prescribed by

law. Thereafter, it would be open to the accused to rebut this evidence either by oral

submissions or by leading evidence. Thereupon, it is for the Judge to determine what

116
M.Manikyam v. The State through the Sub-Inspector, Vikarabad Police Station 1993 (2) ALT (Crl) 109.
 90

would be the appropriate sentence117. This approach would clearly indicate that the

courts would select sentence only after it heard what the prosecutor wanted to say and not

otherwise. On other occasions, the Supreme Court118 held that after finding the accused

guilty under Section.302 I.P.C, if the trial court does not propose to impose death penalty

it is unnecessary to proceed to hear the accused on the question of sentence. This

approach clearly suggests that the trial court is entitled to arrive at its conclusion of lesser

penalty of imprisonment for life and no sentence hearing is needed in such a situation

since no other lesser punishment is possible. This ruling ignored the right of the Public

Prosecutor to argue for higher penalty of death sentence. On principle, it can be said that

this approach of the court permits the court to decide the sentence without allowing a

hearing to the parties. It further gives an impression that it is reluctant to hear the Public

Prosecutor who may seek for higher penalty. When the question of formulating sentence

has a penalogical significance of far reaching import119 discounting the role of Public

Prosecutor, who initiated the case, cannot be a fair approach to the matter. The approach

appeared to momentarily miss the basic concept of affording equal opportunity to both

sides of the case which is a significant component of fair trial.

For certain offences, the penal statute prescribes minimum sentence, leaving the

discretion to the court to impose lesser sentence than the prescribed minimum sentence.

That discretion can be exercised after recording adequate reasons. For example, for the

offence of rape, Section 376 of Indian Penal Code prescribes imprisonment for a term

117
Rajendra Prasad v. State of U.P ,1979 CriLJ 792 at 818.
118
Ram Deo Chauhan v. State of Assam, 2001 AIR. SCW 2159.
119
Mohammad Giasuddin v. State of Andhra Pradesh, AIR 1977 SC 1926 at 1928.
 91

which shall not be less than seven years, but on adequate or special reasons the court can

impose a term of imprisonment less than seven years.

A proper sentence is the amalgam of many factors such as 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 record of the offender

as to employment, the background of the offender with reference to education, home life,

sobriety and social adjustment, the emotion and mental condition of the offender, the

prospects for the rehabilitation of the offender, the possibility of return of the offender to

a normal life in the community, the possibility of treatment or training of the offender,

the possibility that the sentence may serve as a deterrent to crime by the offender or by

others and the current community need, if any, for such deterrence in respect of the

particular type of offences. These are factors which have to be taken into account by the

court in deciding upon the appropriate sentence 120. Thus, crime and criminal are equally

material when the right sentence has to be picked out. All the theories of punishment,

deterrent, retributive, reformative, have to be considered in approaching the sentence.

There is over jealous use of prison sentence as a measure of punishment in the

Indian Criminal Justice System. Even then, it is never seen that a Public Prosecutor takes

into account, the prison population and the availability of space in the prison and the

additional drain on the prison budget while making his submissions for prison sentence.

Moreover choice of punishment for all major offences is imprisonment and fine and

nothing more. Public prosecutors have no options to request the court to send the guilty

to Homes of correction for long detention with provision for psychological treatment of

120
Santa Singh v. State of Punjab, 1976 CrlLJ 1875.
 92

offenders or to seek for confiscation of property of the criminals or deprivation of

property rights, community service, disqualification from office, drug treatment,

attendance orders etc. Thus the varieties of sentences being very limited and archaic, the

ply for Public Prosecutor is too narrow to enthuse him for effective participation in the

system.

Probation

The Indian law lays emphasis on the reformation and rehabilitation of the

offender as a useful and self-reliant member of society without subjecting him to the

deleterious effects of jail life. To achieve this there is Section.360 Cr.P.C. and the

Probation of offenders Act, 1958. Offenders can be released on probation of good

conduct with certain conditions. All offences and all offenders, whose cases fall within

the parameters of law relating to probation, shall favourably be considered. Excluding

those offences punishable with death penalty or life imprisonment, for most of the rest of

the offences, probation is the rule and sentence is an exception. Indian Penal Code 1860

has 511 Sections. Out of them, 375 sections deal with the quantum of sentences and out

of them, only 6 sections provide penalty of death or life imprisonment 121. Thus, there are

several offences for which probation principles can be applied. If the court finds that a

particular offender shall not be released on probation, it has to record in its judgement,

the special reasons for not releasing on probation. Here lies a hitch. The law ordains the

courts to come to its own conclusions, without hearing the prosecution and the offender,

and release the offender on probation. Question of hearing parties operate only when the

judge feels not to proceed with the option of release on probation. To assist the court in

121
Madhavarao Joshi, Bleak Future for the Legal Profession 1986 CriLJ, page.49 (Journal Section).
 93

determining the most suitable method of dealing with the offender, the participation of

Public Prosecutor, who is in know of the ground realities, is of utmost importance. It is he

who could suggest to the court the moral depravity of the criminal and his mental

condition and the paramount need to protect the society and the advisability or otherwise

of probation in a given case. However, in the existing legal scheme, the Public

Prosecutor is totally disconnected at the stage when the court has to take the most crucial

decision of release of offender on probation. One consequence out of this can be seen in

the percentage of cases in which probation is used. Between the years 1980 and 1982,

out of the total number of accused found guilty only 0.28% were released on probation.

During that time it was 5% in the Third World Countries 122. Therefore, a suitable

amendment to Section.235(2) & 248(2) Cr.P.C. is to be made and hearing on sentence

must also be made to mean, hearing on question of suitability to apply principles of

probation in every case and the Public Prosecutor must be made a useful instrument in

enabling the court to arrive at a right choice of either probation or sentence.

Compensation
In the existing system, to achieve restorative justice, law provided award of

compensation to the victim to be paid by the offender in terms of Section 357 Cr.P.C.

This aspect of the case takes place during hearing on sentence. Since the Public

Prosecutor is permitted to participate at this stage, he could suggest to the court all the

travails of the victim of the crime and enable the court to arrive at a right quantification

of compensation. However, in a case where the court decided not to go for sentence

hearing but to go for probation principles, there also court has power to award

122
Nirmal Kanti Chakrabati, Decision-Making process in the Criminal Justice System & The Law of
Probation, 1991 CriLJ page 145 (Journal Section).
 94

compensation to the victim. Quantification of the compensation is left to the good sense

of the court under Section 5(a) of the Probation of Offenders Act, 1958. Since the Public

Prosecutor has no right of audience in the decision for probation order taken by the court,

there is no mechanism for the prosecutor to put forth his best case for compensation.

Thus, from the victim’s angle, the prosecutor could take care of his interest at the time of

sentencing the offender but not when the court opts for suspended sentence called

probation. This snag need be obviated suitably by amending the Code of Criminal

Procedure.

Expenses
Prosecution incurs lot of expenses during trial process in the court as well as

during investigation preceding the trial. During the course of investigation, the police

have to call several persons and record their statements as part of collecting evidence.

The expenses for those persons have to be paid by the State as per Section 160(2) Cr.P.C.

Police conduct searches, seizures of property and carry them to safe storage places and

incur expenses. State maintains sophisticated Forensic Science Laboratories, experts in

various fields, medical men, for examination of men and material and thereby gathers

scientific evidence. Police travel a great deal throughout the country and beyond it to

apprehend the accused and in this process incur huge expenses. The State has to pay

expenses to the complainant and witnesses attending the court for the purpose of any

inquiry, trial or other proceeding as provided in Section 312 Cr.P.C. If the accused

intends to examine witnesses in his defence and is unable to pay for their expenses, it is

the State which has to bear the expenses for those defence witnesses and secure their
 95

presence before the court123. It is always accepted to be a reasonable rule to award costs

and expenses to the winning party in the case. It is the Prosecutor who appears before

court and it is he who can seek for award of such costs and expenses. He can do this only

during the phase of sentence hearing. If the court is satisfied with it, the same could be

ordered to be paid from out of the fine imposed on the accused in terms of Section

357(1)(a) Cr.P.C. It is rather surprising that the law has not provided for defraying

prosecution expenses independent of fine imposed on the offender 124. If the court has

sentenced the guilty to suffer imprisonment alone and no fine is imposed on him, then

court cannot order payment of expenses to prosecution. In those cases, where court

released offender on probation also, it could order him to pay the costs of the proceedings

to prosecution125. As found earlier, when the court proceeded to provide probation, the

prosecutor had no audience and therefore he could not tell the court the amount of

expenses incurred by it in the case. Therefore, the court could not assess the expenses in

realistic terms and it goes by guess work only. Thus, the scheme of law in defraying

prosecution expenses is not full-fledged. The sore of the situation is that neither the

police nor the State nor the Public Prosecutor maintains data of expenses incurred during

investigation and trial. Therefore, the courts never receive submissions from the Public

Prosecutor about the expenses incurred by it.

Preventive Orders

During the course of sentence hearing the Public Prosecutor is expected to inform

the court in appropriate cases, the need to pass orders under Sections 356, 106 Cr.P.C.

123
Venkateswara Rao v. State, ACB 1979 CriLJ 255 at 257 (A.P).
124
See the observations in Giridhari Las v. State of Punjab 1982 CrlLJ 1742.
125
Section 5(1)(b) of the Probation of Offenders Act, 1958.
 96

For instance, if the case relates to offences against property, offences relating to coin and

Government Stamps, counterfeiting currency and the offender are a habitual one the court

has to be apprised of it by the prosecutor to pass an order concerning residence of the

offender subsequent to his release from prison. In such cases, the offender’s residence

and change of residence would be notified. This alerts the public to be watchful with this

offender and that works out as a good check on the offender pre-empting him from

indulging in crimes any further as per Section 356 Cr.P.C. For many of the offences

against public tranquillity, assaults, use of criminal force, criminal intimidations, the

Public Prosecutor can not only seek sentence of imprisonment, but also seek order from

the courts to make the offender execute bonds for keeping peace and good behaviour as

required under Sections 106 and Section 119 Cr.P.C. In the absence of any submissions

on those aspects by the Public Prosecutors, the courts do not normally exercise those

powers. In practice it is rare to see application of these principles.

Real picture

Despite of all that is said, in practice, the sentence hearing phase in the trial courts

in India is complied with only as a formality. The prosecutor, the Bar and the Bench

have not been putting their efforts in the required measure. It is the lamentation of the

Supreme Court of India, that members of the bar do not pay sufficient attention to these

legislative provisions, which relate to dealing with an offender in such manner that he

becomes a non offender. Advocates have a totally wrong approach as they do not

consider these aspects seriously and they are not rendering necessary help to the court126.

That the court merely complies with the letter of law at the sentence hearing forgetting

126
Ved Prakash v. State of Hatyana, 1981 CriLJ 161(SC).
 97

the spirit and substance of the legal obligations. Judges are failing to make genuine effort

to elicit from the accused all information which will eventually bear on the question of

sentence127.

Experience in courts show, it is the rarest of the rare events to find the presence

of the Public Prosecutor in the court hall or in its vicinity, when the court pronounces the

guilt of the accused. Thus participation of Public Prosecutor is only, and always, a legal

myth and the court deem his presence, though for all purposes he is absent. Besides their

apathy, the practices of the court are also contributory for their non-participation. During

court hours, from morning till evening, court can pronounce judgement at any time. The

defence lawyer and the prosecutor may not know the exact hour of pronouncement. If

they are engaged in other courts they could not make it convenient to attend the sentence

hearing since the Judge does not tell them as to at what time he would pronounce the

judgement. There are no rules regulating the court to pronounce judgements at a

specified hour of the day.

Eventual result is that the humane art of sentencing remains a retarded child of the

Indian Criminal Justice system128.

While all the while the criminal trial in this country is adversarial and it is the

Public Prosecutor who shall tender his witnesses and the evidence has to be recorded by

the court only in the presence of the accused or his lawyer129 and the law provided

enough measures to substitute the absentee of Public Prosecutor enabling the court to

appoint any other person to conduct the case 130 and if the defence lawyer is not

127
Muniappan v. State of Tamil Nadu, 1981 Cri.LJ 726 (SC).
128
Mohammad Giasuddin v. State of Andhra Pradesh, AIR 1977 SC 1926 at 1928.
129
Sec.273 Cr.P.C.
130
Sec.302 Cr.P.C.
 98

cooperating with the progress of the case by appointing State Legal Aid counsel to

effectively defend the accused, thereby indicating the absolute importance of legal

counsels on both sides of the case, the same approach appears to have lost its way when

the case reaches sentence hearing stage. If the prosecutor and the defence counsel by

chance happen to be available in the court hall, they do not participate in those

proceedings. If the Judge invites their submissions, they raise to their legs and mostly

keep silence indicating the judge to take his own decision on sentence in this case as if

they have absolutely no legal or social role in that affair. This frigidity on both sides is

further, to some extent, compounded by the approach adopted by the Superior courts.

Jurisprudence imparted in this area by the precedent exhorts mainly the trial judge as it

was held131 that it is the bounden duty of the judge to cast aside the formalities of the

court–scene and approach the question of sentence from a broad sociological point of

view. The questions which the judge can put to the accused and the answers, which the

accused makes to those questions are beyond the narrow constraints of the Evidence Act.

The judge must make a genuine effort to elicit from the accused all information, which

will eventually bear on the question of sentence.

Thus there is only Knee Jerk reaction. The above referred approach may be

palliative but not curative for the grave lapses in the system. The exhortations could well

be directed against the defence lawyers and the Public Prosecutors reminding them and

directing them to discharge their legitimate duties at the sentence hearing stage and by

permitting the trial courts to take coercive steps when they fail to do what they are

expected to do to the system of justice. The Indian trial judge being caught up in the

adversarial stereo type does not excel well in the role of an inquisitorial judge when

131
Muniappan v. State of Tamil Nadu, 1981 Crl.LJ 726 (SC).
 99

asked to interview the offender at the sentence hearing stage. ‘Sentence hearing’ is

crucial. If it is skipped, the sentence passed is vitiated132. Law pays lip service to this

fundamental principle as is displayed by Section.309 Cr.P.C, where it is mandated that

the court shall not grant adjournment for the purpose of only enabling the accused to

show cause against the sentence proposed to be imposed on him. Appropriate sentence

against the offender is the ultimate fruit for which the system is to strive. This is stunted

in practice. The remedy for this malady is to redraft the law providing width and breadth

at the sentence hearing stage making it obligatory for the Public Prosecutor and the

defence lawyer to put forth their versions by adducing enough evidence which would

have bearing on selecting a sentence appropriate in the given case. On the question of

seeking right sentence, there are no legislative guidelines nor are there any policy

proclamations. Even the Directorate of prosecution or the Ministry of Justice never

endeavoured to tell the courts the opinions of the civil society in the matter of sentencing.

There is absolutely no effort in India in creating uniform sentencing patterns. For the

same offence committed in similar situations one court imposes a pittance of fine while

the other court imposes a maximum term of, say, three years rigorous imprisonment. The

Supreme Court of India took note of the problem of disparity in sentences133 and said that

the problem of disparity had not been solved satisfactorily so far. In the case before it,

the court found it odd that though the two cases were identical in terms of the offence and

circumstances, four years imprisonment was awarded in one while only three months

imprisonment was given in the other. All depends on the disposition of the Judge.

Justice demands like cases are treated alike. Though sentencing disparity cannot be

132
Santa Sing v. State of Punjab, AIR.1976 SC.2386 at 2394.
133
Rameshwar Dayal v. State of U.P. (1971) 3 SCC 924.
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excluded altogether, yet efforts can be made for reducing it to the minimum level. The

Supreme Court of India said that at sentencing stage the Code of Criminal Procedure has

not provided any systematic mechanism. Meaningful collection and presentation of

penological facts bearing on the background of the individual, the dimension of damage,

the social milieu of the criminal, victim etc., are to be there with the court134. One

solution, this researcher submits, to plug the hole is to make it compulsory for every

Public Prosecutor to file a ‘pre-sentence’ report before the court during sentence hearing.

Even the Congress of the Institutional Penal and Penitentiary Commission in Brussels

held in 1951 recognised the utility of Pre-sentencing reports135. Concerning Juveniles, the

investigating authority is obliged to direct the probation officer to prepare a social

protection report of children136. This method can be taken as a cue and the Public

Prosecutor may be entrusted with a duty to secure from police a social background

Report of the accused to be used as ‘Pre-Sentence’ report. Such reports would enable the

prosecutor to bring to court’s attention the real factors that lie at the root of the crime and

the criminal.

Besides other methods, all the Public Prosecutors of a district may be formed as a

council and have discussions to arrive at a common understanding in proposing relevant

sentences to be ordered by the criminal courts. Better training for Public Prosecutor on

the aspects of relevant sentencing would improve the efficiency of them and bring

observance of law.

134
P.K.Tejani v. M.R.Dange (1978) 1 SCC 167.
135
Ahmed Siddique, Criminology, page 356, 5th Edition, Eastern Book Company, 2005.
136
Section 13 of Juvenile Justice (Care & Protection of Children) Act, 2000.
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Thus the Code of Criminal Procedure has not provided appropriate sentencing

hearing sessions and used inept language in sentence hearing in ‘Plea Bargaining’ cases

and provided opportunity only to the defence and not to the Public Prosecutor in

contested trials at the stage of sentence formulation and completely omitted any role for

the Public Prosecutor to advise the court concerning probation decisions. Because of

paucity of articulated norms in the statue, judicial contributions alone remain as

guidelines. It is well known that judicial law making suffers from factual background of

a case and cannot substitute legislative measures. Public prosecutor’s role does not end

with guilty finding of the court and his role extends even to advise the State to prefer

appeal against sentence. Therefore, ignoring the role of prosecutor in sentencing and

probation phase is a grave lapse in the system. Prosecutor holds the mantle to assure that

socially desirable decisions are made by courts. For more efficient and uniform

sentencing, the Public Prosecutors shall be empowered and obligated to file social

background reports useful as pre-sentence reports for the courts. The prosecutors must be

trained and sensitised to participate vigorously during sentence hearings. They should

organise themselves at the district level to bring out the ‘local needs’ to influence the

sentencing patterns. Necessary amendments to the Code of Criminal Procedure,

necessary sentencing guidelines from the Government, necessary orientation from the

Director of prosecutions alone could bring a head way in the area of sentencing.

Part-II

The primary function of the system of criminal appeal is to ensure that innocent

persons do not suffer from conviction for offences of which they are not guilty, and that

guilty persons do not receive inappropriate sentences. The emphasis appears to be more
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in safeguarding the interests of the accused. Recognition of the necessity to avoid

unmerited acquittals appears to be only a subsidiary consideration in the existing scheme

of things. For instance, by virtue of Section 52(2)(a) of the Juvenile Justice (Care &

Protection of Children) Act, 2000, no appeal shall lie against an order of acquittal of a

Juvenile in conflict with law, who shall have the power to decide whether an appeal is to

be preferred or not and what role is given to the prosecutor in the Appellate Court fall for

consideration in this Part–II of the chapter.

APPEALS

Sections 377 Cr.P.C speaks about appeal against sentence. Section 378 Cr.P.C

covers cases of appeal against acquittals. The decision to decide whether an appeal is to

be preferred or not is not with the Public Prosecutor or the Director of prosecution.

The decision to file appeal before a court of Sessions lies with District Magistrate,

who is executive head of the district on behalf of the State. If the appeal is to be

preferred before the High Court, the decision has to be taken by the State Government. If

the case was investigated by the Central Bureau of Investigation or other agency under a

Central Act and was prosecuted by its Public Prosecutor, the decision to appeal lies with

Central Government both in case of appeals to Sessions Courts and appeals to High

Court. One thing common in case of appeal by State Government or Central Government

is, it is their respective Public Prosecutors who alone are competent to present such

appeals. In certain States, the Central Government has only their standing counsels in the

High Court. He is not Public Prosecutor and hence he could not be asked to file appeal

before the High Court. In such a case, the Central Government requests the respective

State Governments to prefer appeal. Then the State Government authorises its Public
 103

Prosecutor in the High Court to prefer the appeal. This method is possible because

Section.378 Cr.P.C., authorises the State Government to prefer appeal ‘in any case’.

Thus whoever has prosecuted the case in the lower court, and has not preferred appeal

against acquittal or about adequacy of sentence, the State Government is competent to

order its Public Prosecutor to prefer appeal. Thus, where the prosecution in the lower

court was done on a complaint filed by a public servant or a private citizen and ends in

acquittal and the complainant does not prefer an appeal; the State Government can take a

decision and direct the Public Prosecutor to prefer appeal137.

The Public Prosecutor has no power to suo moto file an appeal. Direction from

the District Magistrate or the State Government, as the case may be, must precede the

filing of appeal. If any appeal is preferred without that prior direction, the appeal is

invalid. Any subsequent ratification by the Government for the appeal already preferred

cannot cure the defect138. Under Article 165 of the Constitution of India, the Advocate

General represents the State Government in the High Court. However, he is not entitled

to prefer appeal since he is not a Public Prosecutor appointed under Section.24 Cr.P.C139.

Though the decision to file an appeal lies with the State Government, once it filed the

appeal, it is not competent to withdraw it 140.

At the stage of hearing the appeal, the appellate court needs to hear if the Public

Prosecutor appears141 It is somewhat strange to leave the choice to the Public Prosecutor.

When it comes to cases where appeal is filed by the offender or the complainant, the

137
Khamraj v. State of MP. 1976 CriLJ 192.
138
State of Punjab v. Mohinda Singh, 1983 CrlLJ 466 at 469-470.
139
State of Kerala v. Kolarvettil Krishnan 1982 CrlLJ 301 at 302-3.
140
Lal Singh v. State of Punjab, 1981 CriLJ 1069 at 1077.
141
Section. 386 Cr.P.C.
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court need to order notice of date of hearing appeal to such officer as the State

Government may appoint in this behalf142. The State Government can instruct the Public

Prosecutor or any other officer to receive such notice.

Power to decide shall always be vested with a public authority which is competent

to decide. Competency comes from knowledge of the facts. Facts are known to one who

is actually handling the case or to his superior who is reviewing his actions. As the law

stands, the decision to prefer appeal is vested with state and in certain category of cases

with the District Magistrate. A District Magistrate is a layman since he is not from the

law branch and he holds no direct knowledge about any criminal case or a criminal and

has no inclination to read a lower court judgement and take an independent decisions to

say ‘Yes or ‘No’ for preferring an appeal. The researcher firmly submits that the District

Magistrate has to be relieved of this function and the Director of prosecutions shall be

vested with those powers concerning decisions about preferring appeals.

In case of appeal against the adequacy of sentence, Section 377 of Cr.P.C allows

the convict to argue that the sentenced passed is adequate. It also permits him either to

seek for reduction of sentence or to plead for acquittal. On the other hand, the Public

Prosecutor is not entitled to show that the accused is guilty of graver offence and

therefore the sentence should be enhanced 143. Under Section.386 Cr.P.C., the appellate

court can enhance the sentence but it shall not inflict greater punishment than might have

been inflicted for that offence by the court passing the sentence under appeal. For

instance, the offence of robbery along with hurt to human body is punishable with

imprisonment for life or with rigorous imprisonment for a term which may extend to ten

142
Section 385 (i) (ii) Cr.P.C.
143
Eknath Shankara Rao Mukkawar v. State of Maharastra, 1977 CriLJ 964.
 105

years and fine to any extent under Section.394 I.P.C. This offence is to be tried by

Judicial Magistrate of First Class as per the First Schedule in Cr.P.C. The power of this

court in imposing the sentence prescribed is limited by Section 29 (2) of Cr.P.C., as per

which the Magistrate can inflict a sentence of imprisonment for a term not exceeding

three years or fine not exceeding ten thousand rupees or of both. Therefore, even if the

accused is found guilty for the above offence the trial Magistrate cannot impose the

maximum sentence of life imprisonment or imprisonment for ten years. If the Magistrate,

for instance, imposes a sentence of imprisonment for two years, in the appeal filed by the

Public Prosecutor, the Session’s Court can enhance sentence to the extent of an additional

one year and alter the sentence of imprisonment from two years into that of three years

but not more. It is because of Section 386 Cr.P.C. In this way, the sentence provided by

penal statute which is life imprisonment is stultified by the procedural law in Section

29(2) and Section 386 Cr.P.C. Even the highest court of the land cannot impose a

sentence that is provided by the penal law. Thus, in many cases, the appeal on sentence

preferred by the Public Prosecutor does not really meet the perception of the public for

imposing a sufficiently long sentence against the offender who caused hurt and robbed

the huge wealth of the victim. Thus, the so much of the sentencing philosophy spoken to

is tasty for theory without any real value for implementation.

On an Appeal filed by the State under Section 377 Cr.P.C., the accused can show

that he is innocent. But the Public Prosecutor is not entitled to show that the accused is

guilty of a graver offence and on that basis the sentence should be enhanced 144.

144
Ibid., p.32.
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Revision

Where there is right of appeal provided but no appeal was filed then in its

discretion the Sessions Court or the High Court can entertain a revision to prevent

miscarriage of Justice occurred by the orders of the lower court. Option to hear the

Public Prosecutor is exclusively vested with the revisional court under Section.403

Cr.P.C. Public Prosecutor can present a revision but cannot argue unless permitted by the

revisional court.

Transfer of Case

On a reasonable cause, on the application of a ‘party interested’, a case can be

transferred from one court to another court. Chapter XXXI Cr.P.C. contemplates seven

types of transfers. The words ‘party interested’ includes the Public Prosecutor145. Every

such application shall be supported by affidavit or affirmation as per Sections 406(2),

407(3), 408(3) Cr.P.C. when moved before Supreme Court of India or any High Court, or

Sessions Court respectively. If the application is moved by Attorney General of India or

Advocate General of a State no such affidavit or affirmation is needed. An affidavit is a

written declaration or statement of facts, made voluntarily, and confirmed by oath or

affirmation of the party making it, taken before an officer having authority to administer

such oath. Section 297 Cr.P.C. provides the manner in which the affidavit is to be made

and the authorities before whom it has to be sworn. The affidavit shall separately state

the facts which the deponent is able to prove from his own knowledge and those facts

which the deponent has reasonable ground to believe to be true along with the grounds of

such belief. As per Rule 48 of Criminal rules of practice and Circular orders, 1990 in

145
Jag Bhusan v. State, AIR.1962, All. 228.
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Andhra Pradesh State when affidavit contain statement made on information or belief, it

shall also state the source of the information or belief. As per Rule 50, the court may at

any time direct that any person shall attend to be cross-examined on his affidavit.

If the court finds the application for transfer as frivolous or vexatious, the

applicant can be directed to pay compensation to the other party who opposed the

application as provided by section 406(3), 407(7), 408(3) of Cr.P.C. Thus, if the Public

Prosecutor applies to the court for transfer of a case and, if it is found to be frivolous or

vexatious, he may be liable to pay such compensation.

Suspension of Sentence

On conviction, when the accused prefers an appeal, the appellate court can either

suspend the lower court judgement or suspend the execution of sentence inflicted by the

lower court. Further, till the disposal of the appeal the convict can be released on bail, or

on his own bond as per Section 389(1) Cr.P.C. In all cases of conviction, the

presumption of innocence of accused comes to an end with the finding of guilt recorded

by the trial court. Inspite of it, the Public Prosecutor is not entitled to make any

submissions to the appellate court while it considers the suspension of sentence and

grating bail to the convict. There is no perceptible reason for this omission except the

lopsidedness of law in favour of criminals and suspicion against the acts of State. While

the court shall hear the prosecutor in all non-bailable offences on bail application of

accused moved during the investigation phase of the case, it is strange that the law feels

no such need after the individual is found guilty by a competent court. Only recently in

the year 2005, a proviso is added to Sub-Section (1) of Section 389 Cr.P.C. By virtue of

this amendment, if the conviction is for an offence punishable with death penalty, or life
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imprisonment or imprisonment for a term not less than ten years, the court shall give

opportunity to the Public Prosecutor for showing cause in writing against release of the

convict on bail. It is obvious that in case of rest of the sentences still the Public

Prosecutor has no right of audience. There is a dire need to allow the prosecutor in all

cases to put forth his contention, since he is representative for the state and the anxieties

of the society.

To sum-up, the law is that the decision to prefer an appeal is with the Government

and not with the Public Prosecutor or the Director of Prosecution. It appears quite

appropriate that the District Magistrate can be dispensed with and his role can be attached

to the Director of Public Prosecutions. Bail proceedings of a convict, either at the

convicting trial court or at the appellate court, have unfortunately failed to provide right

of audience to the prosecutor and the law need be suitably amended in that regard. All

the philosophy on sentencing remains rhetoric unless the prosecutor is empowered to tell

the court that the convict deserves punishment as provided by substantive penal statutes.

The limitations imposed by the procedural codes on the appellate courts in this regard

need be amended suitably.

The society is now passing through the era of ‘War against Crime’, resounding

across the globe. But, the outdated criminal jurisprudence and unreasonable legal

concepts are the major hindrances in fighting that war. Change is inevitable and sooner

the better.

*****