1

CHAPTER - 1
INTRODUCTION
Punishment
Tough on crime, tough on the causes of crime was more than a clever sound bite; it was a
successful approach to criminal justice policy that left crime 43 per cent lower when Labour
departed office than when it entered. The challenge now is to build on this legacy and further
reduce crime, but within the tough spending constraints imposed by straitened times.
To inform the conclusions of the Labour Party policy review, Sadiq Khan MP brings together
a group of experts from across the criminal justice field to investigate reform. Their essays do
not represent Labour Party policy, but are suggestions and inspiration from some of the most
respected figures in the area. The authors think creatively about how to get the balance right
between deterrent, punishment and rehabilitation and how to create a criminal justice system
that lowers crime and protects communities whilst breaking the cycle of re-offending. One
aspect that is often overlooked is the experience of the victim. Victims should be at the heart
of our criminal justice system, not only because they deserve to be treated with respect and
dignity, but also because their co-operation and trust is vital for it to function effectively and
bring offenders to justice. But victims are often treated as mere bystanders as their cases
proceed through the courts. This needs to change.
Punishment is a means of social control. It is given to the offenders with the aim to check
them from committing crimes again. It deters not only the actual offenders but also others
from doing the same kind of acts in future. On the one hand, it is some solace to the victim or
to his relatives if the offender is punished and on the other hand it serves a social purpose to
prevent the people from indulging in criminal acts. So that the punishment may be a
reasonable means to check the crime, three things are essential for it. The first is the speedy
and inescapable detection and prosecution, the second is a fair chance of a fresh start after
the punishment and the third is that the State which claims the right to punish must uphold
the superior values to be reasonably expected from the prisoner for being acknowledged. The
concept of punishment is that of inflicting some sort of pain on the offender for his violation
of law. The idea of inflicting pain or suffering in awarding punishment has been modified in
view of the modern reformatory methods introduced recently in dealing with the criminals.
For instance, probation, parole or pardon is treated as substitute for the punishment. Even in
the prison, the basic idea is not to inflict pain or suffering but to teach the convict the
methods and techniques including technical training, to make the prisoner a law abiding
citizen.
All punishments take place within a societys ordinary legal and penal systems. In the past,
several reasons have been given for the justification of punishment. One of these reasons is
retributive. Another reason, historically associated with utilitarianism, is that punishment
serve to deter others from offending i.e., deterrence. A third reason is partly that punishment
or a practice of treatment, secures the fewer offences will be committed in the future, but not

through deterrence. This could be as reformative aspect, recommending the moral

regeneration of individuals as an end itself and also a means to the prevention of crime.
Modern society considers various objectives in order to control crime and it considers
imprisonment a means to attain the twin aims, i.e., reform and treatment of the criminals so
that they will commit no crime after their release. Society also seeks protection from
criminals and for this purpose prison isolates criminals from the community for a certain
time. All these objectives- reformation, retribution and deterrence, within the prison result in
cross conflict. This conflict between reformative, deterrent and retributive measures has been
a controversial issue from the point of correctional administration as well as treatment of the
offender. Some criminologists have even gone to the extent of suggesting that introducing
new reformative techniques in the correctional field should ultimately eliminate prisons.
Special mention may be made of the Probation, fine, collective labour, etc. With the advent of
social science to the arena of punishment, however, a new clearly defined school of thought
has arisen whose insistence on the reform of the convict as the central theme of criminal
theme of criminal sanctions excludes or subordinates all other ends of punishment. Certainly
the ideal of complete reform has not been reached, although there is wide agreement on the
value of this goal of punishment.

The choice between punishment and reformation:

The choice between punishment and reformation is a difficult one and it requires a judicious
application of mind by the person dealing with such offender. This decision must be guided
by the ultimate aim of providing justice to the victim, society and the offender. Justice is
supreme and justice ought to be beneficial for the society so that the society is placed in a
better-off situation. Law courts exist for the society and ought to rise up to the occasion to do
the needful in the matter, and as such ought to act in a manner so as to sub serve the basic
requirement of the society. The greatest virtue of the law is its flexibility and its adaptability;
it must change from time to time so that it answers the cry of the people, the need of the hour
and
the
order
of
the
day.
One school of thought propagates that the function of the law court is that of a social
reformer and as such in its endeavour to act as such, the question of deterring punishment
would not arise since the society would otherwise be further prone to such violent acts or
activities by reason of the fact that with the advancement of the age the mental frame of boys
of tender age also go on changing and in the event of any arrogance being developed or a
sense of revenge creeping into the society, the society would perish to the detriment of its
people. The other school, however, has expressly recorded and emphatically that unless the
severest of the severe punishments are inflicted on an offender, the society would perish.
The other school professes that since one has taken the life of another that does not mean that
his life shall have to be taken, but during the trial if it transpires the method and manner or

the nature of the activities which have resulted in the elimination of a human being from this
world, there should not be any laxity on the part of the law courts, otherwise the society
would be engulfed in a false sense of security of life in the event of their being the most
heinous crime of the earth. An inadequate sentence would fail to produce a deterrent effect on
the society at large. Punishments are awarded not because of the fact that it has to be an eye
for an eye or a tooth for a tooth, rather having its due impact on the society; while undue
harshness is not required but inadequate punishment may lead to sufferance of the community
at large.
In T.K. Gopal v State of Karnataka 1 the Supreme Court observed: In the matter of
punishment for offence committed by a person, there are many approaches to the problem.
On the commission of the crime, three types of reactions may generate. The traditional
reaction of universal nature is known as punitive approach. The other approach is the
therapeutic approach; the third is the preventive approach. Under the punitive approach, the
rationalization of punishment is based retributive and utilitarian theories. Deterrent theory
which also part of the punitive approach proceeds on the basis that the punishment should act
as a deterrent not only to the offender but also to others in the community. The therapeutic
approach aims at curing the criminal tendencies, which were the product of a diseased
psychology. The therapeutic approach has since been treated as an effective method of
punishment which not only satisfies the requirements of law that a criminal should be
punished and the punishment prescribed must be meted out to him, but also reforms the
criminal through various processes, the most fundamental of which is that inspite of having
committed a crime, may be a heinous crime, he should be treated as a human being entitled to
al the basic human rights, human dignity and human sympathy.
Similarly, in State of M.P v. G. Singh2 the Supreme Court observed: The law regulates the
social interests, arbitrates conflicting claims and demands security of persons and property of
the people and is an essential function of the state. It could be achieved through
instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living
law must find answer to the new challenges and the courts are required to mould the
sentencing system to meet the challenges. The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of society and stamping out criminal proclivity
must be the object of the law, which must be achieved by imposing appropriate sentence.
Therefore, law as a corner stone of the edifice of order should meet the challenges
confronting the society. In operating the sentencing system, law should adopt the corrective
machinery or the deterrence based on factual matrix. The sentencing process should be stern
where it should be, and tempered with mercy where it warrants to be. The facts and given
circumstances in each case, the nature of the crime, the manner in which it was planned and
committed, the motive for the commission of the crime, the conduct of the accused, the
nature of weapons used and all other attending circumstances are relevant facts which would
1 AIR 2000 SC 1669
2 AIR 2003 SC 3191

enter into the arena of consideration. The undue sympathy to impose inadequate sentence
would do more harm to the justice system. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offence and the manner in which it was
executed or committed, etc. The imposition of sentence without considering its effects on the
social order may be in reality a futile exercise. The social impact of the crime, e.g. where it
relates to offences against women, dacoity, kidnapping and other offences involving moral
turpitude or moral delinquency which have great impact on social order and public interest,
cannot be lost sight of and per se require exemplary treatment. The following factors are
relevant for determining whether a deterrent or reformative approach should be adopted:
(1) the facts and circumstances of each case,
(2) the nature of the crime,
(3) the manner in which it was planned or committed,
(4) the motive for the commission of the crime,
(5) the conduct of the accused,
(6) the nature of the weapons used,
(7) prior criminal record of the offender,
(8) age of the accused,
(9) home life of the accused,
(10)
emotional and mental condition of the accused,
(11)
the prospects for rehabilitation,
(12)
the possibility of return to normal life in the community,
(13)
the possibility of treatment and training of the offender,
(14)
the social impact of the crime, and
(15)
all other attending circumstances.
These factors are, however, illustrative and not exhaustive in nature. Thus, there is no fixed
formula or guidelines which can be used to determine whether the offender should be
punished by sentencing him to imprisonment or he should be given a chance to reform
himself and to start a fresh life. Each case has to be decided on its own facts and
circumstances. It is submitted that unless the court is undoubtedly of the opinion that the
offender is a threat and menace to the society, he should be given a chance to reform himself
and to contribute positively towards the betterment and development of the society at large.
Further, whenever the court is divided on the issue of punishment or reformation, the benefit
of such a situation should be extended to the offender and he should be given a chance to
correct and reform himself.

CHAPTER - 2
REHABILITATION AND REFORMATION TECHNIQUES
The process of rehabilitation and reformation has to take care of both the offender and the
victim. The scope of rehabilitation and reformation cannot be confined to either the offender
or to the victim. If we consider the interest of the offender alone then it would give rise to
extreme dissatisfaction among the victims and they may not feel satisfied with the
performance and efficaciousness of the criminal justice system. Similarly, too much emphasis
on the rehabilitation of victim may not be practical and effective since the offender may not
be in a position to pay the required compensation to the victim and thus has to undergo
imprisonment in default of such payment. Thus, rehabilitative and reformative techniques
have to take care of the interests of both the offenders and the victims.
The discussion for this purpose can be classified under the following headings:
(1) Rehabilitative techniques for victims, and
(2) Rehabilitative and reformative techniques for offenders.

(1) Rehabilitative techniques for victims

The following are the rehabilitative techniques for victims, which can effectively be used for
the betterment and rehabilitation of the victims:
(1) Compensation:
The role of compensation as a rehabilitative technique cannot be undermined in the modern
criminal law jurisprudence. The present criminal law justice system is a mixture of punitive
as well as rehabilitative ideals. These ideals are, however, not sufficient to bring justice to the
victims of the crimes. The welfare and rehabilitation of these victims is grossly ignored on
almost all fronts. Though the judiciary has shown concerns about these victims, but it is
limited to higher level only. The lower judiciary is still struggling to do the needful one. In
Hari Shankar v Sukhbir Singh3 the Supreme Court directed the trial courts to exercise the
power of awarding compensation to the victims of the crime U/S 357(3) of the Cr.P.C
liberally, so as to meet the ends of justice in a better way. The court observed: Section
357(3) is an important provision but courts have seldom invoked it perhaps due to ignorance
of the object of it. It empowers the court to award compensation to victims while passing
judgment of conviction. In addition to conviction the court may also order the accused to pay
some amount by way of compensation to victim who has suffered by the action of the
accused. It may be noted that the power to award compensation is not ancillary to other
3 AIR 1988 SC 2127

sentences, but is in addition thereto. This power was intended to do something to reassure the
victim that he or she is not forgotten in the criminal justice system. It is a measure of
responding appropriately to the crime as well as reconciling the victim with the offender. It is,
to some extent, a constructive approach to the crime. It is indeed a step forward in our
criminal justice system. The payment by way of compensation must, however, be reasonable.
The quantum of compensation may be determined by taking into account the nature of crime,
the justness of the claim by the victim and the ability of the accused to pay. If there are more
than one accused they may be asked to pay in equal terms unless their capacity to pay varies
considerably. The payment may also vary depending upon the acts of each accused.
Reasonable period for payment of compensation, if necessary, by installments, may also be
given. The court may enforce the order by imposing sentence in default.
In State of Punjab v Ajaib Singh4 the Supreme Court went a step further in granting a huge
compensation to the victim even after acquittal of the accused as during the pendency of the
trial the accused had offered to pay a sum of Rs 5 Lakhs to avoid litigation.
In Bodhisattwa Gautam v Subhra Chakraborty5 the Supreme Court held that it has the
jurisdiction to pass orders compelling the accused to pay maintenance to the victim during
pendency of the criminal proceedings. This case was unique because it held that the court had
jurisdiction to award compensation to victim under such conditions even when the accused is
not convicted, due to the slow progress of the proceedings. It further emphasized that when
the court trying a rape case has the jurisdiction to award compensation in the final stage, there
is no reason to deny the court the right to award interim compensation.
In D. K. Basu v State of W.B 6 the Supreme Court observed: It is now a well accepted
proposition in most of the jurisdiction, that the monetary and pecuniary compensation is an
appropriate and indeed and effective and sometimes perhaps the only suitable remedy for
redressal of the established infringement of the fundamental right to life of a citizen by a
public servants. The State is vicariously liable to which the defence of sovereign immunity is
not available and the citizen must receive the amount of compensation from the State, which
shall have the right to be indemnified from the wrongdoer. The award of compensation in the
public law jurisdiction is also without prejudice to any other action like civil suit for
damages, which is lawfully available to the victim or heirs of the deceased victim with
respect to the same matter for the tortuous act committed by the functionaries of the State. In
the assessment of the compensation the emphasis is to be on the compensatory and not the
punitive element.

4 1995 (2) SCC 486

5 1996 (1) SCC 450
6 AIR 1997 SC 610

In Chairman, Railway Board v Chandrima Das 7 the Supreme Court observed: When rape
was committed by railway employees on a woman in a building belonging to railways, a writ
petition filled by the victim against government for compensation would be maintainable and
it cannot be said that she should have approached a civil court for damages and the matter
should not have been considered in a writ petition U/A 226 of the constitution. Where public
functionaries are involved and the matter relates to the violation of the fundamental rights or
the enforcement of public duties, the remedy would still be available under the public law
notwithstanding that a suit could be filed for damages under the private law. It was more so
when it was not a mere matter of violation of an ordinary right of a person but the violation of
fundamental rights which was involved as the petitioner was a victim of rape which is
violative of the fundamental right of a person as guaranteed U/A 21 of the Constitution.
In Rachhpal Singh v State of Punjab8 the trial court awarded death sentence and a fine of Rs
5,000/ in respect of the offence u/s 302. The High Court altered the sentence of death to life
imprisonment without awarding any fine or confirming the fine awarded by the trial court.
The Supreme Court held that in such cases where the court does not award a fine along with a
substantive sentence, section 357(3) comes into play and it is open to court to award
compensation to the victim or his family members. The court further observed:
Compensation should be commensurate with the capacity of the accused to pay as also other
facts and circumstances of the case like the gravity of the offence, needs of the victims
family, etc. Where material on record is scanty, the court will have to access the quantum
from the material available and also take into consideration the facts, judicial notice of which
the court can take note of.
In Mangilal v State of M.P9 the Supreme Court dealt with the scope of Section 357(3) of
Cr.P.C in detail. The Court observed: The power of the court to award compensation to the
victims U/S 357 is not ancillary to other sentences but is in addition thereto. Section 357(1)
deals with a situation when a court imposes a fine or a sentence (including sentence of death)
of which fine also forms a part. It confers discretion on the court to order as to how the whole
or any part of fine recovered is to be applied. If no fine is imposed, section 357(1) has no
application. The basic difference between sub-section (1) and (3) of Section 357 is that in the
former case, the imposition of fine is the basic and essential requirement; while in the latter
even the absence thereof empowers the court to direct payment of compensation. Such power
is available to be exercised by an appellate court or by the High Court or Court of Sessions
when exercising revisional powers.
The court further discussed the necessity of affording a hearing before granting of
compensation. The court observed: An opportunity of hearing has to be granted before
7 AIR 2000 SC 988
8 AIR 2002 SC 2710
9 2004 (1) SCALE 42

directing payment of compensation U/S 357(4) of the Code. Thus, if the appellate court
intends to award compensation, it must grant an opportunity of hearing so that the relevant
aspects like the need to award compensation, capacity of the accused to pay and several other
relevant factors can be taken note of. Even if a statute is silent and there are no positive words
in the Act or the Rules made there under, there could be nothing wrong in spelling out the
need to hear the parties whose rights and interests are likely to be affected by the order that
may be passed, and making it a requirement to follow a fair procedure before taking a
decision, unless the statute provides otherwise.10
(2) Fine:
Usually fines are prescribed as punishments for petty offences as an alternative to
imprisonment. This alternative course of imposition of fine has the potential for rehabilitation
of both the victim and the offender. As far as the victim is concerned, the amount of fine
imposed can be utilized for his rehabilitation and survival. It can further be used for
indemnifying the victim for the loss and damage done to him by the offender. The money
award can be calculated only to make good the financial loss. It is not an award for the
sufferings already undergone, which are incapable of calculation in terms of money. Money
compensation is awarded so that something tangible may be procured to replace something of
the like nature, which has been destroyed or lost. Money award cannot, however, renew a
physical frame that has been battered and shattered due to callous attitude of others.
Similarly, the imposition of fine instead of imprisonment also gives a chance to the offender
to reform and rehabilitate himself. The fine is imposed keeping in mind the nature of the
offence, the nature of injury, the paying capacity of the accused, the number of accused
involved, the role played by each accused, etc. If the court chooses to impose sentence
instead of the fine, then the victim of the offence is at the loss since he got nothing to
rejuvenate himself. Similarly, mere imposition of fine will not serve the purpose unless the
court liberally uses the beneficial provisions of Section 357(1) and pay a substantial amount
of
fine
to
the
victim
out
of
the
fine
imposed.
The following considerations are relevant for determining the quantum of fine to be imposed
upon the offender:
(1) the nature of the offence,
(2) the nature of the injury,
(3) the paying capacity of the accused,
(4) number of accused involved,
(5) role played by each accused,
(6) relationship of the accused with the victim,
10 R.D. Upadhyay v State of A.P, (2001) 1 SCC 437

(7) period of imprisonment already undergone,

(8) settlement between the parties,
(9) rehabilitation of the victim,
(10) rehabilitation of the offender,
(11) prior criminal record, if any, of the accused,
(12) age of the accused,
(13) home life of the accused,
(14) emotional and mental condition of the accused, and
(15) the social impact of the crime.
In Brij Lal v Prem Chand11 the Supreme Court in the facts and circumstances of the case
substituted the sentence awarded to the accused with sentence of imprisonment for period
already undergone by him and enhanced the sentence of fine from Rs 500 to Rs 20,000/. The
court also directed that out of the fine amount, a sum of Rs 18,000 should be paid to the
father of the deceased for bringing up deceaseds minor son.
In Dr Jacob George v State of Kerala 12 the Supreme Court reduced the sentence of 4 years
rigorous imprisonment imposed by the High Court to 2 months imprisonment already
undergone. The court, however, enhanced the fine amount of Rs 1,000/ awarded by the high
Court to Rs 1,00,000/ to be paid to deceaseds minor son. The sentence was modified, as the
ultimate aim was rehabilitation of victims minor son.
In Murugesan v Ganpathy Velar13 the parties entered in to a compromise for the offences as
specified under sections 323/343/ 355& 365 of I.P.C. The Supreme Court maintaining the
conviction of the appellants under the said sections reduced the sentence to the period already
undergone. The sentence of fine was, however, not interfered with and out of the fine paid; Rs
25,000/ was directed to be paid to each of the two injured victims U/S 357.
In State of Punjab v Gurmej Singh14 The Supreme court refused to invoke section 357(3)
because fine was imposed by the High court along with the sentence. The Supreme Court
11 AIR 1989 SC 1661
12 1994 (3) SCC 430
13 (2001) 10 SCC 504
14 AIR 2002 SC 2811.

10

observed: In Rachhpal Singh case this court allowed compensation u/s 357(3) of the Cr.P.C
to the victims but it would not be applicable to the present case since a sentence of fine has
also been imposed. A reading of section 357(3) would show that the question of award of
compensation would arise only where the court imposes a sentence of which fine does not
form a part of it. In the present case a sentence of fine has also been imposed. Out of the fine,
a sum of Rs 1,000/ had been ordered to be given to the three injured persons. The balance
amount is to go to the legal heirs of the Jagjit Singh. Gurmeet Kaur also lost both her parents
as well as he brother in the incident and now she is alone and would have become of
marriageable age or may have to start some work of her own. She would need some money.
In case she cannot be compensated, the amount of fine may be enhanced to some extent
which has to be paid to Gurmeet Kaur.
(3) Compounding of offences
The modern criminal justice system enforces itself through the might of the state. It is the
state, which prosecutes the offenders and punishes them. Thus, the parties to the dispute have
little say in the matter of punishment or pardon. Section 320 of Cr.P.C is an exception to this
general rule of state prosecution. The section empowers the parties to the dispute to
compound the offence on their own and without the permission of the court incases of minor
offences and with the permission of the court in other specified offences. The judiciary in
India has recognized the need of participation of the parties to the dispute. To give it a thrust
the judiciary is supporting the parties who enter into a compromise to resolve the dispute
among them. The parties estimate a reasonable amount of compensation to be paid by the
offender to the victim and such agreement is enforced through the process of court of law.
There may be, however, cases where the offence in question may be a non-compoundable
one. In such a situation the court generally reduces the sentence to the period of
imprisonment
already
undergone
by
the
accused.
In Jalaluddin v State of U.P15 the Supreme Court held that the offence U/S 326 I.P.C is not
compoundable U/S 320 of Cr.P.C. The court, however, observed: Having regard to the facts
of the case that the occurrence had taken place a long time back on a trivial issue and that the
complainant and the accused are close relations who are now living amicably, the sentence of
18 months rigorous imprisonment is reduced to the period already undergone.
In Bachhu Singh v State of U.P16 the Supreme Court held that since the incidence took place
a long time back and subsequently the parties arrived at an amicable settlement, it would be a
fit case for reducing the sentence to the period already undergone.
In B.S.Joshi v State of Haryana17 the Supreme Court observed that if for the purpose of
securing the ends of justice, quashing of FIR becomes necessary, section 320 of Cr.P.C would
15 (2002) 9 SCC 561
16 (2002) 10 SCC 313

11

not be a bar to the exercise of power of quashing. The court considering the special features
of the matrimonial matters observed that it is the duty of the court to encourage general
settlement of matrimonial disputes U/S 498-A by quashing the criminal proceedings under
that section. Further, it would not be wrong to assume that the personality of the offender as
revealed by his age, character, antecedents and other circumstances and the tractability of the
offender to reform must necessarily play the most prominent role in determining the sentence
to be awarded.
Thus, it is apparent that Section 320 of Cr.P.C has great potential for rehabilitation of the
victim and the offender. The victim of the offence can be compensated adequately for the
injuries sustained by him due to the act of the offender. This arrangement benefits the victim
not only by providing monetary resources but also by preventing harassment due to attending
court proceedings, which normally takes years to conclude. The concern for the victim under
the modern criminal justice system should not be confined only to the monetary aspects but
to the overall rehabilitation of the victim. On the other hand, the offender is also benefited by
this arrangement as he is given another chance to reform and mend his ways.
(2) Rehabilitative and reformative techniques for offenders
The following are the relevant rehabilitative and reformative techniques, which can be used
to eliminate the aberration and deviant behaviour of the offender:
(1) Pre-Sentence hearing
Sections 235(2) and 248(2), dealing with pre-sentence hearing, were inserted in the Cr.P.C,
1973 to ensure a great awareness on the part of the courts to examine each case more closely,
so as to determine the most appropriate sentence. The purpose of hearing before sentencing is
to direct the courts attention to such matters as the nature of the offence, the circumstance in
which it was committed, the prior criminal record, if any, of the offender, the age, home life,
emotional and mental condition of the accused, the prospects for rehabilitation, the possibility
of return to normal life in the community, the possibility of treatment or training of the
offender, etc. These are the factors, which have to be taken into account by the court, and
therefore the legislature felt that, for this purpose, a separate stage should be provided after
conviction when the court can hear the accused in regard to these factors bearing on sentence
and then pass proper sentence on the accused.18
It must be noted that these sections have great rehabilitative and reformative potentials, which
can be effectively utilized, by the courts. The court while deciding the fate of the accused has
to balance various aggravating circumstances against the mitigating circumstances. If the
mitigating circumstances outweigh the aggravating circumstances, then the court should try
to extend the benefits of rehabilitative and reformative ideals to the accused. On the other
17 AIR 2003 SC 1386
18 Santa Singh v State of Punjab, AIR 1976 SC 2386

12

hand, if the aggravating circumstances are overshadowing the mitigating circumstances, then
the accused should be sternly dealt with.19
In Muniappan v State of T.N20 the Supreme Court took a serious note of the practice of the
lower judiciary of taking the mandate of pre-sentence hearing in a casual manner. The court
observed: We are not satisfied that the learned Sessions Judge made any serous effort to
elicit from the accused what he wanted to say on the question of sentence. The obligation to
hear the accused on question of sentence, which is imposed by section 235(2) of Cr.P.C, is not
discharged by putting a formal question to the accused as to what he has to say on the
question of sentence. The judge must make a genuine effort to elicit from the accused all
information which will eventually bear on the question of sentence-questions which the judge
can put to the accused U/S 235(2) and the answers which r\the accused makes to those
questions are beyond the narrow constraints of the Evidence Act. The court, while on the
question of sentence is in an altogether different domain in which facts and factors which
operate are of an entirely different order than those which come into play on the question of
conviction.
In Allaudin Mian v State of Bihar 21 the Supreme Court observed: The requirement of
hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental
requirement of fair play that the accused that has hither to concentrating on the prosecution
evidence on the question of guilt should, on being found guilty, be asked if he has anything to
say or any evidence to tender on the question of sentence. This is all the more necessary since
the courts are generally required to make the choice from a wide range of discretion in the
matter of sentencing. To assist the court in determining the correct sentence to be imposed,
the legislature introduced section 235(2). The said provision therefore satisfies a dual
purpose; it satisfies the rule of natural justice and at the same time helps the court to choose
the sentence to be awarded. There can be no doubt that the provision is salutary and must be
strictly followed. It is clearly mandatory and should not be treated as a mere formality. 22
In Ramdeo Chauhan v State of Assam 23 the Supreme Court summarized the position in the
following words: The submission that as the sentence and conviction were recorded on the
same day, the judgment of the trial court was against the law cannot be accepted. The third
proviso to section 309(2) Cr.P.C mandates that no adjournment can be granted for the purpose
19 Gurdev Singh v State of Punjab, (2003) 7 SCC 258.
20 AIR 1981 SC 1220
21 AIR 1989 SC 1456
22 http://india.indymedia.org
23 AIR 2001SC 2231.

13

only of enabling the accused person to show cause against the sentence proposed to be
imposed upon him. In a case punishable with death or imprisonment for life, there is no
difficulty for the court where the sentence proposed to be imposed is an alternative sentence
of life imprisonment but if it proposes to impose death sentence it has the discretion to
adjourn the case in the interest of the justice. Despite the bar of third proviso to section
309(2), the court, in appropriate cases, can grant adjournment for enabling the accused
persons to show cause against the sentence proposed to be imposed on them particularly if
such proposed sentence is a sentence of death.24
The court further observed: The legal position regarding the necessity to afford opportunity
for hearing to the accused on the question of sentence may be reiterated as follows:
(1) When the conviction is U/S 302 I.P.C (with or without the aid of section 34 or 149 or120B), if the Sessions judge does not propose to impose death penalty on the convicted person, it
is unnecessary to proceed to hear the accused on the question of sentence, section 235(2) of
the Code will not be violated if the sentence of life imprisonment is awarded for the offence
without hearing the accused on the question of sentence. Two alternative sentences alone are
permitted for imposition for an offence U/S 302 imprisonment for life or death. Thus, no
court is permitted to award a sentence less than imprisonment for life as for the offence of
murder.
(2) In all other cases the accused must be given sufficient opportunity of hearing on the
question sentence.
(3) The normal rule is that after pronouncing the verdict of guilty, the hearing should be made
on the same day and the sentence shall also be pronounced on the same day.
(4) In cases where the judge feels or if the accused demands more time for hearing on the
question of sentence (especially when the judge proposes to impose death penalty), the
proviso to section 309(2) is not a bar for affording such time.
(5) If for any reason the court is inclined to adjourn the case after pronouncing the verdict of
guilty in grave offences, the convicted person shall be committed to jail till the verdict on the
sentence is pronounced. Further detention will depend upon the process of law.
(2) Set-off of the period of detention (Section 428, Cr.P.C)
Section 428 of the Cr.P.C was brought on the statute book for the first time in 1973. It was
incorporated in the light of the proposal put forward by the Joint Selection Committee. It was
noticed by the Committee that in many cases the accused persons are kept in prisons for a
very long period as under trial prisoners and in some cases the period spent in jail by under
trial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also
noticed by the Committee that large number of prisoners, in the overcrowded jails of the
country, were under trial prisoners. This provision was introduced to remedy the
24 Per Sethi.J, Pukhan . J Concurring.

14

unsatisfactory state of affairs, by providing for setting off the period of detention as under
trial prisoners against the sentence of imprisonment imposed on the accused.
In M.A. Azeez v Asst. Collector, Kerala 25 the Supreme Court defined the scope of the
application of this provision in the following words: The two requisites postulated in section
428 of the Code are:
(i)
(ii)

During the stage of investigation, enquiry or trial of a particular case the prisoner
should have been in jail at least for a certain period, and
He should have been sentenced to a term of imprisonment in that case.

If the above two conditions are satisfied then the operative part of the provision comes into
play, i.e. if the sentence of imprisonment awarded is longer than the period of detention
undergone by him during stage of investigation, enquiry or trial, the convicted person nee to
undergo only the balance period of imprisonment after deducting the earlier period from the
total period of imprisonment awarded.
It is sad to note that the courts do not liberally use this provision. This provision has a
tremendous potential for the rehabilitation and reformation of the offender. The courts can
reduce the sentence of the offender to the period of imprisonment already undergone by him.
If the offence is of trivial nature and it is the first offence of the offender, then the courts
should give him another chance to start his life as a useful and productive member of the
society.
(3) Probation
The probation system plays a very important role in the rehabilitation and reformation of the
offender. The benefit of probation is available under the provisions of the Probation of
Offenders Act, 1958 and Section 360 and 361 of the Cr.P.C, 1973.
The Probation of Offenders Act, 1958 was enacted by the Parliament to provide for the
release of offenders on probation or admonition and for matters connected therewith. The Act
shifts emphasis from deterrence to reformation and from crime to the criminal in accordance
with the modern outlook on the punishment.26 Reformation and rehabilitation are the keynote
of the Act. The object of the Act is to prevent turning of youthful offenders into criminals by
their association with hardened criminals of the mature age within the walls of the prisons.
The method adopted is to attempt their possible reformation instead of inflicting on them the
normal punishment for their crime. It must be noted that with the enactment of the Juvenile
Justice (Care and Protection) Act, 2000 a juvenile cannot be tried by the ordinary criminal
justice system. The Act mandates that only a Juvenile Justice Board duly constituted can try
the cases of offences committed by the juveniles. The Juvenile Justice Act also contains
25 AIR 2003 SC 928.
26 Ramji Misir v State, AIR 1963 SC 1088

15

provisions like admonition and probation for the rehabilitation and reformation of the
juveniles. The Probation of Offender Act is, however, wider in scope as compared to the
Juvenile Justice Act since the court can extend the benefits of the provisions of the former to
young offenders up to the age of 21 years as compared to 18 years as provided in the latter
Act. The Supreme Court has emphatically not only stated the object of Act but also the
categories of person on the basis of their age and nature of the offence that are to be dealt
differently.
In Rattan Lal v State of Punjab 27 the court observed: The Act is a milestone in the progress
of the modern liberal trend of reform in the field of penology. It is the result of the
recognition of the doctrine that the object of the criminal law is more to reform the individual
offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years
of age and those above that age and offenders who are guilty of having committed an offence
punishable with death or imprisonment for life and those who are guilty of lesser offence.
While in the case of offenders who are above the age of 21 years absolute discretion has been
given to the court to release them after admonition or on probation of good conduct subject to
the conditions laid down in the appropriate provisions of the Act, in the case of offenders
below the age of 21 years, an injunction is issued to the court not to sentence them 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 is not desirable to deal
with him U/S 3 or 4 of the Act.
The benefit of probation cannot be claimed as a matter of right but its conferment depends
upon the positive exercise of the discretion in favour of the accused by the court. The court,
generally, does not exercise its discretion in favour of the accused when he has committed
heinous crimes, which shake the conscience of the court. The court is also slow to come to
the rescue of the offender when he has committed economic offences.
In P.K.Tejani v M.R.Dange28 the Supreme Court observed: The kindly application of the
probation principle is negatived by the imperatives of social defence. No chances can be
taken by the society with a man whose anti-social operations imperil numerous innocents. He
is a security risk. Secondly, these economic offences committed by the white-collar criminals
are unlikely to be dissuaded by the gentle probationary process. It is not without significance
that the 47th report of the Law Commission of India has recommended the exclusion of the
Act to social and economic offences by suitable amendments. We cannot accede to the
invitation to let off the accused on probation in offences under the Prevention of Food
adulteration Act.
The enabling provisions of the Act cannot be extended to Strict liability offences. Further,
the benefit of the Act cannot be claimed where the legislature has prescribed a minimum
sentence for the concerned offence. This is generally done in cases where the legislature
27 AIR 1965 SC 444
28 AIR 1974 SC 228.

16

considers certain offences a great threat and menace to the society at large.
In Supdt, Central Excise v Bahubali29 the Supreme Court observed: Though generally
speaking the benefit of sections 3,4 and 6 of the Act, which is a milestone in the progress of
the modern liberal trend of reform in the field of penology, can be claimed subject to the
conditions specified therein by all offenders other than those found guilty of offence
punishable with death or imprisonment for life unless the provisions of the said Act are
excluded by section 18 thereof, in case of offences under the Special Act enacted after the
Probation of offenders Act which prescribes a minimum sentence of imprisonment, the
provisions of the Probation of Offenders Act cannot be invoked if the Special Act contains
provision similar to Section 43 of the Defence of India Act, 1962. Accordingly, recourse to
the provisions of the Probation of Offenders act cannot be had by the court where a person is
found guilty of any of the offences specified in Rule126-P of the Defence of India Rules
relating to gold control which prescribes a minimum sentence in view of the emphatic
provisions of section 43 of the defence of India Act.
The Supreme Court in Commandant, ITB v Sanjay, discussed the scope and applicability of
the provisions of the Act in the following words:
The Probation of Offenders Act has been enacted in view of the increasing emphasis on the
reformation and rehabilitation of the offenders as a useful and self-reliant member of the
society without subjecting them to the deleterious effects of the jail life. The Act empowers
the court to release on probation an offender found guilty of having committed an offence not
punishable with death or imprisonment for life or for the description mentioned in section 3
and 4 of the said Act. It is true that nobody can claim the benefit of section 3 and 4 of the Act
as a matter of right and the court has to pass appropriate orders in the facts and circumstances
of each case having regard to the nature of the offence, its general effect on the society and
the character of the offender, etc. There are laws, which separately direct that the provisions
of the Act shall not apply to the person convicted for those offences and there may be cases
under other laws as well, which may not justify the exercise of power under the Act. Even
apart from such exclusions the court should be wary of extending benefit of the Act to
offences relating to corruption, narcotic drugs, etc. However, in cases of trivial nature as the
respondent is stated to have committed and keeping in view its peculiar circumstances, we
find it to be a fit case where powers u/s 3 of the Act can be exercised.
In Ramchandra v State of Bihar 30 during the pendency of appeal, parties entered into a
compromise and as a result appellants were acquitted of the offence U/S 323. The affidavit of
complainant clearly stated that she had no wish to pursue the case and that she had remarried
by then. The Supreme Court held that conviction U/S 498A is to be maintained, but the
sentence of imprisonment (1year) to be reduced to period already undergone and the
appellant was released on probation.
29 AIR 1979 SC 1271
30 (2003) 10 SCC 234

17

There may be cases where the court may come to a conclusion that the offender could be
released after due admonition and there is no need of putting him under the probation.
Section 3 of the Act takes care of such an eventuality. The sole intention of section 3 is that
the accused should be given a chance of reformation without even subjecting him to the
probation system. It cannot be disputed that even when a person is released after granting him
the probation, he still remains under the constructive control of the court through the
probation officer. He is required to comply with the conditions of his release and is kept
under constant supervision of the probation officer. This takes away his liberty and freedom
to a certain degree. To take care of such situations, the legislature has incorporated section 3
in the Act which empowers the court to release an offender after due admonishing. Section 3
of the Probation of offender Act corresponds to section 360 of the Cr.P.C.
In State of Haryana v Prem Chand31 dealing with a case of attempt to rape the Supreme Court
observed: If the conviction of the appellant were to be one U/S 376, I.P.C, he could have
been awarded imprisonment for life or one extending to 10 years. But the offence for which
the respondent was found guilty is for attempt to rape. Therefore, it is idle to contend that the
respondent has been guilty for an offence, which would attract imprisonment for life,
disentitling him to the benefit of probation under Probation of Offender Act and section 360
of the Cr.P.C. Section 57 of the I.P.C clearly points out that in calculating fractions of terms of
imprisonment, imprisonment for life shall be reckoned as imprisonment for 20 years.
Therefore, for offence U/S 376/511 I.P.C, the respondent could be awarded imprisonment up
to 10 years. On this reasoning, his case for the probation was clearly made out, be it U/S 360
Cr.P.C or U/S 4 of the Probation of Offenders Act.
In Om Prakash v State of Haryana32 defining the nature of section 360 and 361 of the Cr.P.C
the Supreme Court observed: In view of the peremptory nature of section 361, lower courts
ought to have considered whether appellants, who were convicted u/s 323 and section 325
read with sections 148/149 I.P.C, deserved release on probation under section 360. The
offence in this case took place 11 years ago and the appellant did not indulge in misbehaviour
or mischief while they remained in jail. This was a fit case for invoking section 360.
A comparative study of Section 3 of the Probation of offenders Act and section 360 of Cr.P.C
reveals that the former has a greater potential for rehabilitation and reformation of the
offender than the latter, because under the latter statute in addition to the offence of theft,
cheating, dishonest misappropriation, only the offences punishable under the I.P.C bearing
punishment of not more than 2 years are to be considered for admonition while under the
former, in addition to the offences mentioned U/S 360 of Cr.P.C, those punishable under any
other and carrying punishment of not more than 2 year imprisonment also falls within the
scope of admonition. Thus, U/S 3 of the Probation of Offenders Act, the power to release first
31 (1997) 7 SCC 756
32 (2001) 10 SCC 477

18

offender after admonition is available in respect of other laws also, and it is not confined to
offences under I.P.C only.
The reformation and rehabilitation of the offender is incomplete unless he can live a life free
from stigma. The stigmatization is bound to occur to an offender once a court convicts him.
On the conviction, the chances of survival through earning are jeopardized to a greater extent.
Section 12 of the Act gives effect to this rehabilitative concern by removing the
disqualification attached to the conviction of an offender who has been released U/S 3 or
section 4 of the Act. This provision is of vital importance as contributes significantly to the
rehabilitation and reformation of the offender. The proviso to section 12, however, makes it
clear that benefit of this provision cannot be extended to a person who after his release on
probation is subsequently sentenced for original offence.
(4) Work release
Work release is considered to be a very effective rehabilitative and reformative tool in the
modern criminal justice system. In the work release method the prisoner is allowed to work
for pay in the society on part time basis. Thus, for a certain period of time he is inducted into
the society in the normal social conditions. This gives him an opportunity to mix up with the
society in a normal manner without the limitations and restrictions of the penal system. The
control of the prison authorities in, however, not completely taken away since he has to work
within the permitted parameters and during the non-working hours he has to return to the
correctional institution. The correctional authorities collect his earnings, which are paid to the
prisoner on the completion of his sentence.
Work release is in between probation and imprisonment, and between parole and
imprisonment in another sense. Work release resembles parole in the sense that the intimate
usually has served a portion of his sentence and that he is released under the supervision into
the community. However, it differs from the parole as the inmate continues to live in and
subject to the control of prison authorities, except for working hours in the community. The
work release, however, provides a sound base for testing the desirability and reasonableness
for releasing the inmate on parole.
Thus, work release works as a useful link between the society and the inmate and maintains
the delicate balance between the penal confinement and work in free and familiar society. The
work undertaken by the inmate accustom him to the work place, working conditions and
social environment of work which could possibly be faced by him after his release.
(5) Remission, Commutation, pardon, etc
The rehabilitation and reformation of the offender is not the sole responsibility of the
judiciary. The Legislature and Executive have also to play their respective roles. The
Legislature can contribute in the rehabilitation and reformation of the offender by enacting
suitable legislations dealing with the subject. For that purpose, it can rely upon and take clue
from various landmark judgments delivered by the judiciary. It can also utilize its own
specialized knowledge, as acquired from various organizations and committees, for the

19

purpose of legislating on the much desired and needed subject. It must be noted that for the
ultimate success of the rehabilitative and reformative need, suitable legislation is the ultimate
recourse.
Similarly, the Executives also have to play an active role in this regard. The Executives can
do the needful one by a judicious exercise of the powers of remission, commutation, pardon,
etc in deserving cases. There may be instances where the existing legal system may prove to
be inadequate for meeting the needs of rehabilitation and reformation of the offenders. In
such circumstances, the executives can fill in the vacuum by exercising their sovereign and
constituent powers. The Executive has the following options in this regard:
(A) Remission: The term remit as used in section 432 of Cr.P.C is not a term of art. Some
of the meanings of remit are to pardon, to refrain from inflicting, to give up. Remission is
reduction of the amount of a sentence without changing its character. In the case of remission
the, the guilt of the accused is not affected, nor is the sentence of the court, except in the
sense that the person concerned does not suffer incarceration for the entire period of sentence,
but is relieved from serving out a part of it.
Section 432 of Cr.P.C confines the power of the government to the suspension of the
execution of the sentence or the remission of the whole or any part of the punishment. The
conviction under which the sentence is imposed remains unaffected. The section gives no
power to the government to revise the judgment of the court. It only provides the power to
remit the sentence. Remission of the punishment assumes the correctness of the conviction
and only reduces the punishment in part or whole. A remission of the sentence does not mean
acquittal and an aggrieved party has every right to vindicate himself or herself. 33
In State of Haryana v Jai Singh 34 the Supreme Court observed: Gravity of the offence can
form the basis of a valid classification if the object of such classification is to grant or not to
grant remission. To grant or not to grant is the power vested in the appropriate government
U/S 432 which the said government can exercise either by granting remission to all the
convicts except those mentioned in section 433A or by restricting the remission to a class of
convicts
provided
such
classification
is
valid
In Sanabona v Govt of A.P35 the Supreme Court held that where the government refused to
extend the benefit of the remission to the convicts who have committed crime against women
and extended it to other convicts, it would not be violative of Article 14 of the Constitution of
India. The court further observed: The remission to be granted was in respect of only a
specified class of convicts and that too subject to the conditions specified in the government
order. Consequently, the claim for remission cannot be made or countenanced dehors the
33 State (Govt of NCT of Delhi) v PremRaj, (2003) 7 SCC 121
34 AIR 2003 SC 1696
35 AIR 2003 SC 3074

20

specific conditions subject to which only it has been accorded and inasmuch as the grant of
concession by way of remission, pregnated with a policy designated in public interest and the
safety and interest of the society, either the remission could be availed of only subject to the
conditions stipulated or the entirety of the scheme fails as a whole, and there is no scope for
the judicial modification of the same so as to extend the concession in excess of the very
objective of the maker of the order which seems to have been guided by considerations of
state policy. When keeping into consideration the societal needs and dictates of the gruesome
events happening on large scale all over the State, a conscious decision has been taken by the
policy maker to keep out a class of anti-social from availing the benefits of remission, courts
cannot by stretching the language confer an undeserving benefit upon the class of convicts,
who were kept out of the scheme for according the benefit of remission. As to what classes of
persons or category of offenders to whom the remission has to be extended is a matter of
policy particularly when it is also a constituent power conferred upon the Constitutional
functionary and the Head of the State government, larger area of latitude is to be conceded in
favour of such authority to decide upon the frame and limits of its exercise U/A 161 itself.
In K.Pandurangan v S.S.R. Velusamy36 the Supreme Court discussed the scope of the right to
grant remission in the following words: The right to grant remission is governed by the
provisions of section 432 of the Cr.P.C which vests the said power with appropriate
government and not in any court. Even that power is subject to conditions enumerated in that
section and one such condition is that an accused person who is being granted remission of
sentence will have to be custody when the decision to grant remission is made by the
government concerned.
(B) Commutation: The term commutation is in essence the alteration of a sentence of one
kind into a sentence of less severe kind. The powers of commutation exclusively vests with
the appropriate government. The term appropriate government means Central Government
in cases where the sentence or order relates to a matter to which the executive power of the
Union extends, and the State Government in other cases. The powers conferred upon the
appropriate government U/S 433 have to be exercised reasonably and rationally keeping in
view the reasons germane and relevant for the purpose of law, mitigating circumstances or
commiserative facts necessitating the commutation and factors like interest of the society and
public interest.37
In State (Govt of NCT of Delhi) v Prem Raj 38 the Supreme Court set aside the order of the
High Court, which commuted the sentence of the accused. The court held that the power to
commute exclusively vest with the appropriate government. The court, however, observed
that it is open to the accused to move the appropriate government for such relief as is
36 AIR 2003 SC 3318.
37 41st Report of the Law Commission.
38 (2003) 7 SCC 121

21

available in law. The court further clarified that it would be at the sole discretion of the
appropriate government to exercise the power conferred on it in accordance with law.
(C) Pardon: Pardon is one of the many prerogatives, which have been recognised since time
immemorial as being vested in the sovereign, wherever the sovereignty might lies. This
sovereign power to grant a pardon has been recognised in our Constitution in Articles 72 and
161, and also in sections 432 and 433 of the Cr.P.C grant of pardon to an accomplice under
certain conditions as contemplated by section 306 of the Code is a variation of this very
power.
The grant of pardon, whether it is under Article 161 or 72 of the Constitution or U/Ss 306,432
and 433 of the Code is the exercise of sovereign power. A pardon is an act of grace,
proceeding from the power entrusted with the execution of the laws, which exempts the
individual on whom it is bestowed from the punishment the law inflicts for a crime he has
committed. It affects both the punishment prescribed for the offence and the guilt of the
offender. In other words, a full pardon may blot out the guilt itself. It does not amount to an
acquittal unless the court otherwise directs. Pardon is to be distinguished from amnesty
which is defined as general pardon of political prisoners. As understood in common parlance,
the word amnesty is appropriate where political prisoners are released and not in cases
where those who have committed felonies and murders are pardoned.39

CHAPTER - 3
CONCLUSION
The purpose of sentence is that the accused must realize that he has committed an act which
is not only harmful to the society of which he forms an integral part but is also harmful to his
own future, both as an individual and as a member of the society. Punishment is designed to
protect society by deterring potential offenders as also by preventing the guilty party from
repeating the offence; it is also designed to reform the offender and reclaim him as a lawabiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive
aspects of the punishment thus play their due part in judicial thinking while determining this
question. In modern civilized societies, however, reformatory aspect is being given somewhat
greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness.
One does not deter and the other may frustrate thereby making the offender a hardened
39 State (Govt of NCT of Delhi) v Prem Raj, (2003) 7 SCC 121.

22

criminal. The court must also keep in mind the principle of proportionality while awarding
the sentence. The principle of proportion between crime and punishment is a principle of just
deserts that serves as the foundation of every criminal sentence that is justifiable. It ordinarily
allows some significant discretion to the judge in arriving at a sentence in each case,
presumably, to permit sentences that reflect more subtle considerations of culpability that are
raised by the special facts of each case. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him
out of circulation, and sometimes even the terrific result of the crime. For instance, there are
cases where the alleged incident took place a long time back and the parties arrived at an
amicable settlement, in those cases the courts have reduced the punishment to the period
already undergone. This approach of the court shows the rehabilitative preference of the court
over the punitive option. The court may also consider various mitigating factors before
awarding punishment. The age of the accused is one of the most important considerations
while awarding the sentence, particularly in cases of young offenders. In fact, the Juvenile
justice (Care and Protection Act), 2000 strictly prohibits the awarding of imprisonment to the
juveniles deviants. The Apex Court has held that where the age of the accused is on the
border of attaining majority, then a hyper technical approach should not be adopted. Thus,
while appreciating the evidence adduced on behalf of the accused in support of the plea that
he was a juvenile and if two views are possible on the said evidence, the court should lean in
favour of holding the accused to be a juvenile.
There may be various theories of punishment, but none of them is individually sufficient
enough to eliminate crime from the society. The need of the hour is to maintain a delicate and
optimum equilibrium between the various theories. The primary responsibility to achieve this
noble purpose lies upon the judiciary. The law courts are required to keep this objective in
mind while dealing with the criminals or deviants. Further, law cannot stand still; it must
change with the changing social concepts and values. The courts are required to keep in mind
these two essential mandates. Thus, whether to apply deterrent theory or reformative theory
would depend upon facts and circumstances of each case but the ultimate aim of the courts
should be to do complete justice to the society, victim and the offender.

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