Judgement means the expression of the opinion of the judge or magistrate arrived at after due consideration of the evidence and of the arguments[1]. Judgement involves judgement of conviction or acquittal, but not an order of discharge under section 245 of the Code of Criminal Procedure, 1973[2] (hereinafter referred to as “ The Code”.)
It is a fundamental rule of criminal jurisprudence that the judge who hears the evidence should write the judgement. When a sessions judge hands over charge to his successor, the former becomes Functus Officio and has no jurisdiction to write a judgement. The successor has no jurisdiction to pronounce a judgement of his predecessor, who heard the sessions case. What is pronounced by succeeding sessions judge would be merely an expression of the opinion of his predecessor on the evidence that he has heard, and the defect, if it may be called, cannot be cured by the application of s.465[3].
If a judge who prepared the judgement died before it was delivered, another judge cannot deliver it. No expression of opinion by a judge becomes a judgement until it is pronounced.[4]. Allahabad and Madras HC have ruled that sentence is illegal is there is no written judgement when it is passed[5]. However Kolkata high court has held that such a sentence is not illegal if there is no failure of justice.
The presiding officer means the presiding officer at the trial who is assumed in the section to have written and pronounced his judgement while still holding the same office[6]. An omission to sign and date a judgement by a magistrate in open court at the time pronouncing it amounts to mere irregularity curable by s. 465[7]. A magistrate has discretion to date, sign and pronounce his predecessors judgement if a new trial is not demanded[8].
Every judgement of a criminal court must contain a clear statement of the points for determination, the decision thereon, and the reason for the decision. It should state sufficient particulars to enable a court of appeal to know what facts are proved and how[9].
An order which does not embody the reasons which weigh with a court in arriving at a decision may open the court to the charge that it did not apply its mind to the case and therefore the order is capricious and arbitrary. The order finally deciding a case must be self-contained and should be what is called a speaking order[10]. Where the judgment shows that the presiding judge or magistrate has perused the evidence, heard arguments, and come to an independent opinion on the merits of the case, it will not be set aside although it does not strictly comply with the provisions of this section unless there is some reason to believe that there has been a failure of justice[11].
In a case of sexual offence, the name of the victim is not to be mentioned in the judgement[12]. An order of discharge is not a judgement and no reasons are necessary where such an order is passed but it is desirable that the magistrate should record his reasons for discharge[13].
Where a judgement of an appellate court stated merely that the lower courts order contained a full statement of facts, its appreciation of evidence was correct and the leaders arguments were not convincing, it was held that the judgement failed to satisfy the requirements of this section, and the irregularity vitiated the judgement[14].
Where an accused was acquitted but no orders were passed to set him at liberty and he remained confined in jail without any fresh remand, the Allahabad High court held that it is mandatory to pass an order to set the person at liberty where he is acquitted of the charge and any further detention was illegal[15].
Section 354(3) casts a duty on the court to give special reasons for awarding sentence of death in a capital case in order that the high court is in a position to judge whether the lower court has exercised its discretion judicially and also to provide material to the authorities concerned at the time of considering the mercy petition by the condemned accused.
Under the present code the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception to be resorted for reasons to be stated[16]
Death Sentence is ordinarily ruled out and is resorted to only for “special reasons” as provided in S.354(3). 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. Special reasons must have some linkage to these factors. A judge has to balance the personality of the offender with the circumstances and situations to choose the appropriate sentence to be imposed[17].
In the case of Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra[18]. The trial court found the accused guilty of waging war and committing large scale-murder. The said terrorist attack was of unprecedented enormity The court found that the accused showed no remorse for the acts done and continued to consider himself a patriot. His confession was only made with a view to motivate others to follow. Since the attack had shocked the collective conscience of Indian people and the possibility of reform was foreclosed the option of life imprisonment thus stood excluded.
The SC has held that when sentence is imposed, it has to be based on sound legal principles, regard being had to the command of the statute, nature of the offence, collective cry and anguish of the victim and above all, the collective conscience and doctrine of proportionality. Neither the vanity of the judge nor his pride of learning in other fields should influence his decision or imposition of sentence.
In the case of Lenient or short term sentence under 354(4) it requires the court to give reasons for awarding a short term sentence. This enables the high court to judge whether the lower court has exercised its discretion properly. Supreme court has observed that undue sympathy in imposing inadequate sentence does harm to the justice system. The sentence is to be decided as per facts and circumstances of each case. The social impact of crime is relevant to deciding sentence[19].
Undue leniency may undermine public confidence. This was a case involving grievous hurt which amounted to attempt to murder. The order of the high court reducing the sentence to the period already undergone by the accused which ran from a few days to some months and only in 2 cases to two years was held as improper by the supreme court[20].
In case of rape, the minimum sentence is prescribed by section 376(1) and 2. Any sentence, lesser than the prescribed minimum sentence, can be imposed only by reasoned order. Reasons should be adequate and special and not fanciful[21].
In a recent judgement, the apex court held that counsel’s ineffectiveness in conducting a criminal trial, if established from record, can be mitigating circumstance in favour of accused where question of awarding death penalty arises[22]. This is a comment on the sad state of defence counsels specially for indigent..
Supreme court has observed that in the field of sentencing the method of community service should be adopted in place of jail term to suit the society in changing times. Convicts in various countries, now, voluntarily come forward to serve the community specially in crimes related to motor vehicles. Recently it ordered an accused to plant 1000 trees in his locality.
[1] Damu Senapati v. Sridhar Rajwar (1893) 21 CAL 121
[2] Dwarka Nath v. Beni Madhab, 1901 28 Cal 652; Maheshwara Kondaya (1908) 31 Mad 543
[3] Uttam Chand v. State of Rajasthan (1960) Raj 1292
[4] Nandeeput Mahta v Alexander Shaw ( 1870) 13 WR 209
[5] Bandanu atchayaa v. State of Karnataka 1903 27 Mad 237.
[6] Ali Khan (1947) Mad 365.
[7] Mahomed Hayer Mulla v. State (1929) 7 Ran 370, Sodawala 1975 3 SCC 140.
[8] Savarimuthu Pilai v. State of Karantaka (1916) 40 Mad 108
[9] Shankar v. State of Maharashtra, 1915, Bom LR 890
[10] Balwant Rai v Chhangi Ram, AIR 1963 Punj 124
[11] Tippanna Karigar, 1932 34 Bom LR 1110
[12] Ramakrishna V State AIR 2009 SC 885
[13] Nabi Fakira v. State of Mharashtra ( 1907 9 Bom LR 250)
[14] Jamait mullick , 1907 35 Cal 138.
[15] State of Gujarat v Rajubhai Dhamirbhai Bariya 2004 CrLj 771
[16] Ediga Anamma v. State of AP, AIR 1974 SC 799
[17] Lehna v state of Haryana (2002 3 SCC 76
[18] AIR 2012 SC 3104
[19] Ankush Maruti Shinde v State of Maharashtra, AIR 2009 SC 2609
[20] State of Madhya Pradesh v. Kashiram , AIR 2009 SC 1642
[21] State of MP v. Munna Choubey, AIR 2005 SC 682
[22] Ashok Debbarama v State of Tripura, 2014 4 SCC 747
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.
We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge