Sunita Devi vs The State of Bihar & Anr.

Held: Hearing the accused on sentence is a valuable right conferred on the accused – The real importance lies only with the sentence, as against the conviction – Unfortunately, there is no clear policy or legislation when it comes to sentencing – Over the years, it has become judge-centric and there are admitted disparities in awarding a sentence – When it comes to sentencing, there are various factors such as age, sex, education, home life, social background, emotional and mental conditions, caste, religion and community that constitute aggravating and mitigating circumstances – A decision of a Judge in sentencing, would vary from person to person and also from stage to stage – It is controlled by the mind – The environment and the upbringing of a Judge would become the ultimate arbiter in deciding the sentence – A Judge from an affluent background might have a different mindset as against a Judge from a humble one – A female Judge might look at it differently, when compared to her male counterpart – An Appellate Court might tinker with the sentence due to its experience, and the external factors like institutional constraints might come into play – There is a crying need for a clear sentencing policy, which should never be judge-centric as the society has to know the basis of a sentence – Sentencing shall not be a mere lottery – It shall also not be an outcome of a knee-jerk reaction – This is a very important part of the Fundamental Rights conferred under Articles 14 and 21 – Various elements such as deterrence, incapacitation and reformation should form part of sentencing – The need for adequate guidelines for exercising sentencing discretion, avoiding unwanted disparity, is of utmost importance – Courts do take into consideration the mitigating and aggravating circumstances – However, no research has been undertaken for constituting what are aggravating and mitigating circumstances – Suggestions made – Department of Justice, Ministry of Law and Justice, Government of India to consider introducing a comprehensive policy, possibly by way of getting an appropriate report from a duly constituted Sentencing Commission consisting of experts in different fields for the purpose of having a distinct sentencing policy – Government of India to file an affidavit on the feasibility of introducing a comprehensive sentencing policy and a report thereon, within six months. [Paras 29, 30, 32-36, 37, 40, 58] Administration of Criminal Justice – Denial of due opportunity to defend and hearing – Trial against the accused under POCSO Act was conducted by appellant-judicial officer in utmost haste – At every stage, the accused was denied due opportunity to defend himself – High Court set aside the conviction and the death sentence and a de novo trial was ordered – In Criminal Appeal No.3925 of 2023 filed by the very same judicial officer, a similar conviction was rendered in the trial which was concluded in a single day and the accused was sentenced to life imprisonment:

Held: High Court while passing both the impugned judgments not only called for the records and rendered findings of fact, but also considered them in detail – At every stage, the accused was denied due opportunity to defend himself – The appellant was acting in utmost haste – It would be humanly impossible to deliver the judgment within half an hour’s time running into 27 pages consisting of 59 paragraphs in the first case and similarly in the other – At every stage, including framing of charges, there was a constant denial of due opportunity and hearing – Accused was not able to consult his lawyer – He was not even served with the copies, though his lawyer received the same before framing of the charges – Receiving of documents by his lawyer would not be sufficient compliance, unless there was sufficient time given for him to peruse them and thereafter have a consultation – Admittedly, neither the provisions of the Witness Protection Scheme, 2018 were invoked nor the Rules for Video Conferencing for Courts, 2020 were followed – Further, the appellant was fortunate that no action was taken against him thus, in the absence of any proposed action, there is no question of hearing him – Trial court to keep in mind the mandate of POCSO Act, 2012 while recording the evidence of the victim and to conduct and complete the trial expeditiously. [Paras 32, 55, 56, 58] Code of Criminal Procedure, 1973 – s.360 – Probation of Offenders Act, 1958 – ss.3, 4, 6:

Held: Section 360 speaks of releasing a convict on probation of good conduct or after admonition – Before passing the sentence on a convict, after rendering conviction, the Judge shall consider the feasibility of proceeding in accordance with this provision – Being a beneficial provision dealing with a reformative aspect, it is the bounden duty of the Judge to consider the application of this provision before proceeding to hear the accused on sentence – While doing so, the Judge has to hear the accused and the prosecution – Similarly, the Court has to apply the salient provisions contained under Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 – A trial court is duty bound to comply with the mandate of Section 360 of the CrPC, 1973 read with Sections 3, 4 and 6 of the Act, 1958 before embarking into the question of sentence. [Para 28]

Administration of Justice – Administration of Criminal Justice – Conduct of a fair trial – Constitution of India – Articles 14,

21 – Absence of a fair trial violates fundamental rights: Held: A fair trial would include due compliance of the procedure with adequate opportunities for all the stakeholders – Such procedural safeguards and compliance are to be kept in mind by the Court, as any deviation might either impact the prosecution or the defence in a given case – A fair trial is the heart and soul of criminal jurisprudence – It is not only a statutory right, but also a human right, which would be violated when the safeguards provided under the Statute are not followed – The absence of a fair trial would seriously impair and violate the fundamental rights guaranteed under Articles 14 and 21 – The right to fair hearing is a part of Article 21 – A trial should be a real one and, therefore, not a mere pretence – There shall never be an impression over the decision of a Court that it has predetermined and pre-judged a case even before starting a trial, or else, such a trial would become an empty formality – Principle of presumption of innocence and concept of speedy trial, discussed. [Paras 7, 9, 10] Code of Criminal Procedure, 1973 – ss.238, 207: Held: Section 238 mandates that while dealing with a warrant case instituted on a police report, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 – In all these cases, due compliance is to be done when the accused is produced or appears before the Magistrate – Therefore, Section 238 reiterates the bounden duty of a Magistrate and, if not done, to be complied with at the time of commencement of the trial – Such a reiteration would only reinforce a renewed emphasis on due compliance being a facet of fair play – An accused shall be put to notice on the incriminating materials leading to the charges framed against him – The obligation so imposed is not only on the supply of the relevant documents, but such compliance should be at the appropriate stage so that it does not brook any delay – The idea is to enable an accused to face the trial by thoroughly understanding the case stated against him – However, a mere non-supply of a part of the documents would not lead to the trial being vitiated, unless an accused substantiates before the Court that it has caused prejudice to him – It is ultimately for the Court to come to an appropriate conclusion by an adequate assessment of facts placed before it. [Para 16] Code of Criminal Procedure, 1973 – s.465 – Rigour of, when not applicable:

Held: If the Appellate Court is of the view that there is a continued non-compliance of the substantial provisions of the CrPC, 1973 then the rigour of Section 465 of the CrPC, 1973 would not apply and, in that case, an order of remand would be justified – This provision is meant to uphold the decision of the trial court, even in a case where there is an apparent irregularity in procedure – If the evidence available has been duly taken note of by the Court, then such a decision cannot be reversed on account of a mere technical error – This is based on the principle that a procedural law is the handmaid of justice – However, the ultimate issue is as to whether such an error or omission has constituted a failure of justice, which is one of fact, to be decided on the touchstone of prejudice. [Para 25]

Code of Criminal Procedure, 1973 – ss.227, 228 – Discharge – Framing of charge – Constitution of India – Article 22: Held: Before the stage of framing of charges, the Judge is expected to discharge an accused, if he is of the considered view that there is no sufficient ground to proceed against the accused – This being a judicial exercise, his discretion must be supported by adequate reasons – In discharge of his powers, he has to consider the records and documents submitted by the prosecution vis-à -vis the arguments adduced by both sides – The words “after hearing the submissions of the accused” would imply an effective and meaningful hearing – It is not a mere procedural compliance – The duty of the Court is to see as to whether the materials produced by the prosecution are reasonably related to the offence attributed against the accused – What is to be seen is the existence of a prima facie case – The case is at a pre-framing stage and therefore, it cannot be a full-fledged pre-trial – Adequacy and sufficiency are the relevant factors to be seen – The test is one of the degree of probability – Section 227 gives effect to Article 22 of the Constitution – The right of an accused to be heard is inalienable – For exercising this right, there has to be due consultation – It is the duty of the court to ensure that the accused is given sufficient opportunities to consult his lawyer – Under sub-section (2) of Section 228 of the CrPC, 1973, the Judge, while framing any charge, is ordained to read and explain it to the accused – Thereafter, the accused shall be asked as to whether he pleads guilty of the offence charged or claims to be tried – This is an occasion where the Judge avoids the lawyer and keeps in touch with the accused directly – Unless a situation so warrants otherwise, the presence of the accused shall be ensured. [Paras 18-21]

Code of Criminal Procedure, 1973 – ss.230, 231, 233, 309: Held: Sections 230, 231 are to be read in consonance with each other – At this stage, the Court is concerned only with the prosecution’s evidence – To ensure fair play, as a normal practice, the Court has to fix a date for the examination of the witnesses – The idea is to complete the examination-in-chief and cross examination, both at the same time – While fixing the date, the Court is expected to take into consideration the relative convenience of the parties, though the discretion lies with it – A balance has to be struck between the competing interests – Further, when an application is moved invoking Section 233, the Judge is duty bound to issue process, unless he is satisfied on the existence of the three elements, as stated – Any denial would be an affront to the concept of a fair trial – Section 309 places emphasis on the continuation of the trial as any obstruction and delay would hamper the process of justice – Despite a bar under the second and fourth proviso to Section 309, an adjournment can be granted, provided the party who seeks so, satisfies the court. [Paras 22-24]

Code of Criminal Procedure, 1973 – s.386 – Powers of the Appellate Court – Re-trial:

Held: An Appellate Court has got ample power to direct re-trial – However, such a power is to be exercised in exceptional cases – The irregularities found must be so material that a re-trial is the only option. [Para 27]

Sentencing – Sentencing policy – Sentencing policy adopted in countries like Israel, Canada, New Zealand and UK – Discussed. [Paras 38-40]