CHAPTER - II

CONCEPTUALISING SENTENCING POLICY IN INDIA:

PROBLEMS AND PERSPECTIVES
. "....Trying a man is easy, as easy as falling off a log,
compared with deciding what to do with him when he has
been found guilty1
Henry Alfred Mc Cardie
2.1 Introduction
Sentencing in India is governed by substantive criminal laws,2 special
legislations creating special offence,3 procedural laws, major among which is
Criminal Procedure Code 1973,4 Constitution of India5 judicial interpretation and
guidelines6 laid down by the superior courts7 etc.

1
Quoted with approval in Jasvir Kaur v. State of Punjab (2013) 11 SCC 401 : see also Rekha Sharma
v. Central Bureau of Investigation 218 (2015) DLT 1
2
As for example, Indian Penal code which prescribes various punishments ranging from fine to death
penalty. See sections 53 to 75 of the IPC.
3
As for example, Prevention of Corruption Act 1988, Protection of Children from Sexual Offences
Act, 2012, Maharashtra Organized Crimes Act 1999, creates separate offences and prescribes different
procedure for trial.
4
Criminal Procedure Code 1973 is a procedural law pregnant with substantive rights, which governs
almost all types trials of offences. The said code classifies the offences depending upon their nature as
bailable non bailable, compoundable non compoundable, cognizable and non cognizable. The code
provides for four types of trials and the procedure for the same. Further, this code establishes various
categories of courts by which offences are triable. The usual provisions of appeal review and revision
are provided in the code. This code is a Magana Carta of criminal trials in India. The provisions of this
Act are applicable to all trials unless specifically excluded.
5
By virtue of Article 72 and 161, President of India and Governors of states can interfere into
judicially awarded sentences, by way of pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any offence, respecting each
other’s constitutional limitations. Further the sentence has to withstand the test of reasonableness
ingrained in Article 21 of the constitution.
6
In India we do not have sentencing guidelines issued by the courts as is prevailing in Canada and New
Zealand, England, Western Australia and New South Wales etc, where apex courts issue guidelines in
cases setting out principles of sentencing and the range of penalties that may be applied to a given
offence. However, in some of the offences like, murder, rape, dowry death etc, Supreme Court has tried
to lay down guidelines to be followed by the lower courts. However these guidelines, as the research
would unfold, have been not followed for number of reasons. Further not for all offences that the courts
have laid down judgment guidelines. The position is best described by S.B. Sinha, J. in State of Punjab
v. Prem Sagar & Ors, (2008) 7 S.C.C. 550, where he observes
“In our judicial system, we have not been able to develop legal principles as regards
sentencing. The superior courts except making observations with regard to the
purport and object for which punishment is imposed upon an offender, had not
issued any guidelines. Other developed countries have done so…”
7
The Constitution Bench in Union of India v. Raghubir Singh (Dead) by L.Rs (1989) 2 SCC 754 noted
about the nature and scope of Judicial review in India as
".....It used to be disputed that Judges make law. Today, it is no longer a matter or
doubt that a substantial volume of the law governing the lives of citizens and
regulating the functions of the State flows from the decisions of the superior courts."
There was a time, observed Lord Held, "when it was thought almost indecent to
suggest that Judges make law--they only declare it.....But we do not believe in fairy
tales anymore."
 21

There is great interplay between judiciary and other organs in respect of

sentencing in India. Judiciary proceeds on the basis of parameters set for the crimes.
The legislature defines offences and prescribes the punishment for the same.8 It lays
down ingredients to be fulfilled before the courts sentence. However, once the
ingredients of the offences are fulfilled, the courts have enough flexibility to- select
appropriate punishment for the crime. In the absence of sentencing guidelines, judges
in India enjoy considerable discretion to fix the crimes in the range of punishments
provided. Judges in India enjoy sentencing discretion at two levels. Firstly, whether to
invoke or not the benefits of welfare legislation where alternative sentencing is
provided is decided by the judges. As for example the Probation of Offenders Act,
1958 should be invoked or not for certain crimes is decided by the judges.9 The
second level discretion is when the judge does not invoke the benefits of welfare
legislation but proceeds to punish him with traditional punishments. There the judge
has again a considerably choice between minimum to maximum punishments or to
decide what punishment when only maximum is prescribed.10 The sentencing policy
in India is thus mainly based on the individualisation of punishment. In this chapter,
therefore, an attempt has been made to discuss the process of sentencing, the matrix of
punishments, checks and balances in punishments and sentencing safeguards etc.

2.2 The Matrix of Punishment in India

The quantum of punishment in India is essential decided by substantive laws
depending upon the gravity of the crime. Indian Penal Code, 1860 is a kingpin in this

8
For the role of Parilament in prescribing punishments see the Constitutional bench of the Supreme
Court in Vikram Singh @ Vicky & Anr. v. Union of India & Ors (2015) available at
http://judis.nic.in/supremecourt/imgs1.aspx?filename=42876
9
Though section 3 and 4 of the Probation of Offenders Act, 1958 impose obligation on the judge to
consider the benefits of those sections at the time of sentencing, such obligation is not mandatory in
view of the word ‘may’. The position is different in respect of accused below 21 years. They are
governed by Section 6 of the said Act. However, even section 6 confers wide discretion not to invoke
the benefits in view of “it would not be desirable to deal with him under section 3 or section 4,”
appearing in the said section.
10
Committee on Reforms of Criminal Justice system notes
“The Judge has wide discretion in awarding the sentence within the statutory limits…
[t]herefore each Judge exercises discretion accordingly to his own judgment. There
is therefore no uniformity. Some Judges are lenient and some Judges are harsh.
Exercise of unguided discretion is not good even if it is the Judge that exercises the
discretion...”
See Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice
System Report (2003), 170, available at http://www.mha.nic.in/hindi/sites/upload_files/mhahindi
/files/ pdf/ criminal_justice_ system.pdf.
 22

respect.11 Section 53 of IPC prescribes five types of punishments namely,

1. Death penalty,
2. Imprisonment for life,
3. Imprisonment:
a) Rigorous imprisonment
b) Simple imprisonment
c) Solitary imprisonment
4. Forfeiture of property
5. Fine
Death sentence is imposable in twelve offences.12 Mandatory death sentences
have been either read down13 or declared unconstitutional.14 Life imprisonment is
imposable as highest punishment in term imprisonment15 or as alternative to death
sentence16 with exception being section 311 of IPC, where life imprisonment is stand
alone imprisonment.17
Imprisonment other than life imprisonment under the IPC is 20 years.18
Imprisonment may be simple19 or rigorous20 or both.21 Certain offences under the IPC

11
According to National Crimes Records Bureau total cases reported under IPC (Total Cognizable
Crimes) were 2949400. As many as 4376699 cases were registered under special laws in 2015. See
http://ncrb.gov.in/StatPublications/CII/CII2015/Table%20of%20Contents.htm
12
Section 120B (criminal conspiracy to commit any of these offences ), Section 121 (Treason, for
waging war against the Government of India Section), 132 (Abetment of mutiny actually committed),
Section 194 (Perjury resulting in the conviction and death of an innocent person Section), 195A
(Threatening or inducing any person to give false evidence resulting in the conviction and death of an
innocent person), Section 302 (Murder), Section 305 (Abetment of a suicide by a minor, insane person
or intoxicated person), Section 307(2) (Attempted murder by a serving life convict), Section 364A
(Kidnapping for ransom), Section 376A (Rape and injury which causes death or leaves the woman in a
persistent vegetative state), Section 376E (Certain repeat offenders in the context of rape), Section 396
(Dacoity with murder).
13
Indian Harm Reduction Network v. Union of India https://indiankanoon.org/doc/993388/
14
Mithu v. State of Punjab (1983) 2 SCC 277, similarly, Section 27(3) of the Arms Act has recently
been struck down by the Supreme Court in State of Punjab v. Dalbir Singh (2012) 3 SCC 346. See also
Justice S.B. Sinha “To Kill Or Not To Kill: The Unending Conundrum” National Law School of India
Review, Vol. 24(L), 2012, Pp7-8
15
See for example, section 376 as amended by Criminal Law Amendment Act, 2013, , sections 376D,
394, 396, 400, of IPC
16
Under Section 302 (murder) and Section 121 (waging war against Government of India), 376-E,
(punishment of repeat offenders), alternative punishments of death or imprisonment for life are
available and these are the two sections, where the maximum punishments is death and the minimum is
imprisonment for life.
17
Section 311. Punishment:
“ Whoever is thug shall be punished with [imprisonment for life] and shall also be liable to fine.”
18
Before the introduction of Criminal Law Amendment Act, 2013, the highest punishment in the term
imprisonment was 14 years. By virtue of the said amendment, section 376 introduces 20 years as
minimum term imprisonment for rape.
19
In 22 sections of IPC the offences are punishable with simple imprisonment only. These are sections,
168,169,172,173,174,175,176,178,179,180,187,188,223,225A, 228 291,341,500,501,502,509,510.
20
Rigorous imprisonment without the alternative of simple imprisonment is prescribed in the two
sections i.e., sections 194 and 449. Life imprisonment is necessarily rigorous. See Suresh v. State of
Kerala 2006 (1) KLT 78
21
See section 60 of the Indian Penal Code,1860
 23

are punishable with fine alone22 some are punishable with fine as well as
imprisonment;23 and some are punishable with imprisonment or fine or both.24 If fine
is not so specified, the fine is unlimited, as per section 63, but it should not be
excessive.25 The age old provisions relating to fine need immediate revisions.26
Solitary confinement is also a part of imprisonment. However, procedural safeguards
have been introduced by the judiciary in the imposition of solitary confinement.27

The same four patterns of punishments are continued in other special laws
with variations in degrees.28 Therefore the above four punishments can be considered
as set of punishments India believes in. Though suggestions were made to include
other form of punishments in the existing structure,29 no such suggestions have been

22
Sections 171-G, 171-H, 171-1, 278 and 283 Indian Penal Code, 1860
23
Sections 153-A, I53-B, 302, 376, and 494 of Indian Penal Code, 1860
24
Offences under most of the sections including sections 378, 383, 497, IPC
25
G.Kameswari and V. Nageswara Rao “The Sentencing Process - Problems and Perspectives” Journal of
The Indian Law Institute, Vol. 41, 1999, p 455
26
Supra note 10 it was observed that
“14.9.1 So far as sentences of fine are concerned, time has come to have a fresh look on
the amounts of fine mentioned in the IPC and the mode of recovery.”
“14.9.3 The amount of fine as fixed in 1860 has not at all been revised. We live in an age
of galloping inflation. Money value has gone down. Incomes have increased and crime
has become low risk and high return adventure particularly in matters relating to
economic offences and offences like misappropriation breach of trust and cheating. …”
27
See Shatrughan Chauhan v. Union of India (2014) 3 SCC 1, Dharam Pal v. State of Haryana Etc (2015)
http://indiankanoon.org/doc/153007779/
28
The Criminal Law Amendment Act 2013 introduces a new life imprisonment with a rider that life
imprisonment shall mean imprisonment till the reminder of the life. Similar rigorous imprisonment of 20
years is introduced. Mandatory compensation is also introduced.
29
Supra note 10 where it is observed that
“14.5.1 Different kinds of punishments are the need of the hour. Disqualification from
holding public office, removal from the community etc. are some of the measures that
should be introduced and not punishment in a prison. These punishments are not custodial
in nature. Far reaching reforms have taken place in England and the year 2000 is a
watershed and enactments like the Powers of the Criminal Court Sentencing Act, 2000
modifying earlier laws were enacted introducing a whole range of new and novel
punishments, postponement of sentencing, suspended sentence of imprisonment,
supervision during suspension, community sentences, community rehabilitation order,
financial penalties and reparation orders, parenting orders for children, confiscation order,
disqualification orders etc., are any of the changes that have been brought out. Even in
India under the Motor Vehicle’s Act a disqualification for holding a license can be a part
of punishment. Dismissal of a public servant from service for criminal misappropriation
and breach of trust is an additional measure of punishment. Under the Representation of
the People’s Act there is disqualification in the event of proved electoral mal practices or
on account of conviction.
14.5.4 IPC Amendment Bill of 1978 was the first attempt made to bring about certain
changes in sentencing which remained static from the time IPC was enacted. Prior to this
a bill had been enacted in 1972 which suggested 3 new forms of punishment externment
Section 17(A) compensation for victims-14(8) and Public Censure 74(C). However, in
1978 externment as a form of punishment was rejected. Community service [74(A)],
compensation to victims [74(B)] and Public Censure [74(C)] and disqualification for
holding office 74(D) were proposed. Community Service is in vogue in many countries
UK., USSR, Zimbabwe uses it. Recently Government of Andhra Pradesh has initiated a
move to introduce the same. However, in community sentences certain restrictions
regarding age etc are suggested. The accused must be less than 18 years.”
 24

legislatively incorporated. Victim compensation, which has been conferred by the

procedural law, has also now been included in substantive laws.30
2.3 Sentencing Powers and Procedural Limitations
Lower courts in the sentencing process work in hierarchy in terms of power to
pass sentences.31 The judicial magistrates have limited powers to sentence. Whereas
judicial magistrate second class can only sentence up to one year,32 Judicial
Magistrate First Class can sentence up to three years.33 Interestingly however, most of
the cases are triable by the Judicial Magistrate First Class though his sentencing
powers are limited. Power to take cognizance of offence is vested with judicial
magistrates even though such crimes may be triable by the court of sessions. Chief
Judicial Magistrate34 cannot pass sentence of imprisonment exceeding seven years.35
An Assistant Sessions Judge may pass any sentence up to ten years.36 A Sessions
Judge or Additional Sessions Judge may pass any sentence including death.37 A High
Court may pass any sentence authorised by law.38 Every death sentence awarded by
the session’s court has to be confirmed by the high court.39 The powers of the courts
are however unfettered by virtue of inherent powers and therefore high courts have
been trying out of the box sentence to individualise the punishments. The recent
controversy of weather high courts can choose between life imprisonment and death
penalty and award life imprisonment with fixed term of 20, 25, 30 or 35 years has
been constitutionally settled.40 High courts, equally with powers of Supreme Court,

30
Section 357 of Criminal Procedure Code, 1973 has been supplemented with various provisions by
Criminal Law Amendment Act, 2013 wherein payment of fine and compensation has been made
compulsory for many offences.
31
See Code of Criminal Procedure, 1973 sections 15 and 19
32
Ibid, section 29(3)
33
Ibid, section 29(2)
34
Ibid, section 29(4)
35
Ibid, section 29(1)
36
Ibid, section 28(3)
37
Ibid, section 28(2)
38
Ibid, section 28(1)
39
However, sentences passed by special courts like TADA are not subject to jurisdiction of high court for
their confirmation. Direct appeal lies to the Supreme Court only.
40
For 20 years life imprisonment see Shri Bhagwan v. State of Rajasthan (2001) 6 SCC 296, Prakash
Dhawal Khairnar (Patil) v. State of Maharashtra (2001) 6 SCC 296, State of Maharashtra v. Sandeep @
Babloo Prakash Khairnar (Patil) (2002) 2 SCC 35, Ram Anup Singh and Ors. v. State of Bihar (2002) 6
SCC 686, Nazir Khan and Ors. v. State of Delhi (2003) 8 SCC 461, Ramraj @ Nanhoo @ Bihnu v. State of
Chhattisgarh (2010) 1 SCC 573
For 30 years of imprisonment see Neel Kumar @ Anil Kumar v. The State of Haryana (2012) 5 SCC 766,
Sandeep v. State of UP (2012) 6 SCC 107, Gurvail Singh @ Gala and Anr. v. State of Punjab (2013) 2 SCC 713
For 35 years of actual jail sentence see Haru Ghosh v. State of West Bengal (2009) 15 SCC 551
For no release from prison till the rest of his life see Swamy Shraddananda @ Murali Manohar Mishra v.
State of Karnataka AIR 2008 SC 3040
 25

can now award term life imprisonment where high courts would fix the minimum
term of life imprisonment before the expiry of which executives cannot exercise
remission powers. In the interest of justice high court can also quash the FIRs where
amicable settlement has been reached by the parties.41 On the appellate side, high
courts can reverse, modify, enhance or reduce the sentence awarded by the lower
courts42 including enlarging the accused on bail if his confinement is otherwise not
warranted for.43 The role of the high courts in India to a greater extent has been of a
‘modifier’ and ‘moderator’ of lower court judgments. The Supreme Court plays the
role of a moderator of high court as the high court checks proportionality and legality
of sentences passed by the lower courts. Judicial guidelines have been issued by the
Supreme Court44 to check arbitrary sentencing by lower courts and smaller benches.
Apart from this traditional sentencing structure, few legislations establish
separate courts for trial of special offences. Such special courts are also bound by
criminal procedure code, 1973 unless specially so excluded.45 Special legislations
may confer jurisdictions on the courts as mentioned above.
2.4 The Sentencing Procedure under Criminal Procedure Code, 1973
The Code talks about sentencing chiefly in S.235, S.248, S.254, S.325, S.354,
S.360 and S.361.
S.235 is a part of Chapter 18 dealing with a proceeding in the Court of
Session. It directs the judge to pass a judgment of acquittal or conviction and in case
of a conviction to follow clause 2 of the section. Clause 2 of the section gives the
procedure to be followed in cases of sentencing a person convicted of a crime. The
section provides a hearing to ensure that the convict is given a chance to speak for
himself and give an opinion on the sentence to be imposed on him. The reasons given
by the convict may not be pertaining to the crime or be legally sound. It is just for the
judge to get an idea of the social and personal details of the convict and to see if any
of these will affect the sentence.46 Facts such as the convict being a breadwinner

41
See section 482 of the Code of Criminal Procedure, 1973
42
Ibid section 386
43
Ibid sections 389 and 439
44
The Supreme Court has been instrumental in issuing directions and formulating uniform
interpretation to arrest arbitrary sentencing by other courts. The rarest of rare doctrine evolved by the
Supreme Court is land mark, (so much so that, other countries have adopted this formula in their
legislative and judicial prescriptions to) in arresting arbitrary sentencing in murder cases.
45
See section 26 of the Code of Criminal Procedure, 1973
46
K.N. Chandrasekharan Pillai, R. V. Kelkar, Criminal Procedure, 4th ed., (Lucknow: Eastern Book
Company, 2001) Pp 500-503
 26

might help in mitigating his punishment or the conditions in which he might work.
This section plainly provides that every convicted accused must be given a chance to
put forth his viewpoint post conviction about the kind of punishment which deserves
to be imposed. The section just does not stop at allowing the convict to speak but also
allows the defence counsel to bring to the notice of the court all possible factors
which might mitigate the sentence and if these factors are contested then the
prosecution and defence counsel must prove their plea.47

Section 248 comes under Chapter 19 of the Code dealing with warrants case.

The provisions contained in this section are very similar to the provisions under

S.235. However this section ensures that there is no prejudice against the accused. For

this purpose it provides in clause 3 that in case where the convict refuses previous

conviction, then the judge can, based on the evidence provided determine if there was

any previous conviction.48

Section 354(3) of the Code of Criminal Procedure, 1973, makes it obligatory

in cases of conviction for offences punishable with death or with imprisonment for

life to assign reasons in support of the sentence awarded to the convict and further

ordains that in case the Judge awards death penalty, “special reasons” for such

sentence shall be stated in the judgment. Thus, the Judge is under a legal obligation to

explain his choice of the sentence. The legislature in its supreme wisdom thought that

in some “rare cases” for “special reasons” to be recorded it will be necessary to

impose the extreme penalty of death to deter others and to protect the society and in a

given case even the sovereignty and security of the State or country. It, however, left

the choice of sentence to the judiciary with the rider that the court may impose the

extreme punishment of death for “special reasons”.

The sentencing court has, therefore, to approach the question seriously and

make an endeavor to see that all the relevant facts and circumstances bearing on the

question of sentence are brought on record. It is only after giving due weight to the

47
Mr. Justice Mukul Mudgal and Nitin Mishra “Need for Sentencing Policy in India” Nyaya Kiran
Vol. II Issue IV, 2008, p 4
48
Ibid.
 27

mitigating as well as the aggravating circumstances, that it must proceed to impose

the appropriate sentence.49

Section 31(1) of the Code vests discretion in the Court to direct the
punishment to run concurrently or consecutively when a person is convicted at one
trial of two or more offences. The Court may sentence the accused for such offences
to the several punishments prescribed there which such Court is competent to inflict.
Such punishments would consist of imprisonment to commence the one after the
expiration of the other in such order as the Court may direct subject to the limitation
contained in Section 71 of the Indian Penal Code.50
2.5 Individualization of Punishment: The Anchor of Indian Sentencing Policy
Sentencing in the common law world has long been characterised by its
discretionary nature.51 Sentencing in India falls squarely within the tradition of
common law jurisdictions: courts are provided with wide discretion to determine a fit
sentence, with appellate review constituting the only institutional mechanism to
promote consistency, fairness and principled sentencing.52 The discretionary nature of
Indian sentencing policy is aptly noted by Justice S B Sinha when he notes

49
Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353, at page 360
50
Section 31 of Code of Criminal Procedure , 1973, provides as under
“31. Sentence in cases of conviction of several offences at one trial
(1) When a person is convicted at one trial of two or more offences, the Court may,
subject to the provisions of section 71 of the Indian Penal Code (45 of 1860),
sentence him for such offences, to the several punishments, prescribed therefor which
such Court is competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration of the other in such order as
the Court may direct, unless the Court directs that such punishments shall run
concurrently
(2) In the case of consecutive sentences, it shall not be necessary for the Court by
reason only of the aggregate punishment for the several offences being in excess of
the punishment which it is competent to inflict on conviction of a single offence, to
send the offender for trial before a higher Court:
Provided that-
(a) in no case shall such person be sentenced to imprisonment for a longer
period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of
punishment which the Court is competent to inflict for a single offence
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive
sentences passed against him under this section shall be deemed to be a single
sentence.”
51
See J.V. Roberts and E. Baker, Sentencing in Common Law Jurisdictions, in S. Shoham, Ori. Beck,
and M. Kett (eds.,) International Handbook of Penology and Criminal Justice, (Florida: CRC Press
LLC, 2007). See also Andrew Ashworth, Sentencing, in Maguire, M., Morgan, R. and Reiner, R. (Eds.)
The Oxford handbook of criminology 4th ed.,( Oxford: Oxford University Press, 2007)
52
Julian V. Roberts et al “Structured Sentencing In England And Wales: Recent Developments And
Lessons For India” National Law School of India Review, Vol. 23(l), 2011, p 28
 28

“ [j]ustice process in India, however, seems to be a series of discretions and

decision making process through which the suspects may pass. The police,
prosecution, and the courts exercise too much discretion with least
accountability. Many a time, discretion is exercised in a selective and
discriminatory manner prejudicial to the interests of the poor, undereducated
and powerless persons. In our criminal justice system, the police officer has
first to exercise discretion whether or not to arrest, investigate, search or use
force if necessary. Perhaps much greater discretion is permitted to the
prosecuting authority who may decide not to prosecute the offender and may
ask the Court to alter, dismiss or withdraw charges leveled against the
accused. Thus, in criminal cases, the prosecuting officer has greater power
over the freedom and liberty of individuals who came into his contact than
any other agency. He has also the power to discontinue the prosecution on the
ground that the State has insufficient evidence to win the case. If the accused
is found guilty, the prosecuting authority may recommend leniency in the
sentence or most server sentence as the case may be.”53

Indian courts have enjoyed immense sentencing discretion, though at times,

such sentencing discretion has been frowned upon.54 Courts in India have believed in
the philosophy that ‘[c]riminal trial is meant for doing justice not only to the victim
but also to the accused and the Society at large.’55 The modern trend in penology and
sentencing procedures is to emphasise the humanist principle of individualising
punishment to suit the offender and his circumstances.56 The principle is given effect
to in the Cr.PC by providing for post conviction hearing under sections 235(2) and
248(2). Under section 235(2), if the accused is convicted, the judge shall hear the
accused on the question of sentence and then pass the sentence on him according to
law. Under section 248(2), opportunity is given to both parties, to bring to the notice
of the court, facts and circumstances which will help individualise the sentence from a
reformative angle.57 A sentencing process without discretion may be more consistent,

53
Justice S B Sinha “Criminal Justice System” (2004) 4 SCC (Jour) 35
54
Supra note 52 p 35 where it is noted
“[t]he system of unfettered discretion leaves the sentencing system open to the
vagaries of individual judges, negating nationwide or even courthouse-wide
consistency - the consistency that is a cardinal aim in any sentencing model. It thus
seems that the primary controlling influence on sentences that are imposed by Indian
trial courts is that of appellate review, as provided for in the 1973 Code in
circumstances in where a sentence passed is excessive, where a sentence is
insufficient, or where there has been an error of law in the sentencing process.”
In Gopal Singh v. State of Uttarakhand 2013 (2) SCALE 533 The Apex Court while dealing with the
philosophy of just punishment a two Judge Bench has stated that
“just punishment would depend on the facts of the case and rationalised judicial
discretion. Neither the personal perception of a Judge nor self-adhered moralistic
vision nor hypothetical apprehensions should be allowed to have any play.”
55
Ambika Pd. v. State (Delhi Administration) 2000 SCC Crl.522
56
G.Kameswari And V. Nageswara Raot “The Sentencing Process -Problems And Perspectives”
Journal of Indian Law Institute Vol.41, 1999, p 455
57
Ibid.
 29

but will also be equally arbitrary for ignoring relevant differences between cases.58 As
would be unfolded in the next chapter,59 sentencing discretion has caused more
problems than the facilitation of sentencing. Courts themselves have acknowledged
that sentencing discretion needs to be regulated failing which disparity in sentencing
cannot be ruled out.60
2.6 Hearing on Sentence and Reasons for the Sentence- The Twin Safeguards
The sentencing policy in India basically rests on the procedure of hearing on
the sentencing and reasons provided in the judgment by judges. In the absence of
structured guidelines, these twin safeguards serve the purpose of just sentencing.
Section 235 provides that

“235. Judgment of acquittal or conviction -

(1) After hearing arguments and points of law (if any), the
Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360
hear the accused on the question of sentence, and then pass
sentence on him according to law.”

Section 235 thus imposes a duty on the court to hear the accused on the
sentence to be imposed.61 It may so happen that the consideration which did not
weigh in favour of accused at the time of proving guilt may play vital role in deciding
quantum of punishment.62 Section 235, therefore, serves dual purposes, namely, (i) it
acts as the rule of natural justice inasmuch as it gives the offender an opportunity of

58
See The Law Commission of India, 262nd Report on “The Death Penalty” 2015, where it notes
sentencing discretion in the context of death penalty as:
“…A sentencing process without discretion may be more consistent, but will also be
equally arbitrary for ignoring relevant differences between cases. In such a system
sentencing is likely to be severely unfair and would definitely not remain a judicial
function.”
59
See Infra chapter III, “Sentencing Discretion in India: Arbitrary Sentencing and Modalities to Arrest
Arbitrariness- A Comparative Study”, point 3.7
60
See following judgments where the courts have underscored for the rational sentencing policy by
structuring sentencing discretion. Mohammad Giasuddin v. State of Andhra Pradesh 1977 AIR 1926,
Shiva Prasad v. State of Kerala 1969 Ker. L.T. 862, Tanaji Alias Tillya Dinkar v. The State of
Maharashtra And Anr (2016) available at https://indiankanoon.org/doc/197006238/, Narinder Singh &
Ors v. State of Punjab https://indiankanoon.org/doc/98425580/, State of Punjab v. Prem Sagar &
Ors (2008) 7 S.C.C. 550, Satya Prakash v. State available at https://indiankanoon.org/doc/135464464/,
Soman v. State of Kerala2012 (12) SCALE 719, Rameshbhai Chhaganbhai Navapariya v. State of
Gujarat, available at https://indiankanoon.org/doc/146065626/, State GNCT of Delhi v. Mukesh
available at https://indiankanoon.org/doc/1956456/, State v. Raj Kumar Khandelwal available at
https://indiankanoon.org/doc/177807969/, Sangeeta & Ors v. State of Haryana (2013) 2 SCC 452
61
See Santa Singh v. State of Punjab 1976 AIR 2386
62
Justice Bhagwati in Santa Singh v. State of Punjab 1976 AIR 2386, observed,
“[t]here may be a number of circumstances of which the Court may not be aware and
which may be taken into consideration by the Court while awarding the sentence,
particularly a sentence of death”
 30

being heard on the question of sentence and (ii) it seeks to assist the Court in
determining the appropriate sentence.63 The section also casts additional obligations
(i) to give the offender an opportunity to make a representation on the question of
sentence and (ii) to take into consideration such representation while determining the
appropriate sentence to be awarded to the offender.64
Section 354 further supplements section 235 by mentioning that the court shall
record the reason for sentence awarded and, in the case of sentence of death, the
special reasons for such sentence. It reads
“(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence.”

The reasons for the sentence unfold the choice of punishment and reasons
behind it. Therefore, the judicial officer cannot wantonly sentence anyone. He has to
bestow his mind to the case, assess all aggravating and mitigating factors, and then
settle on a particular approach and pass the sentence. All this exercise is seen from his
speaking orders and judgments. Such reasons furnish enough material to the apex
courts to correct sentence if passed arbitrarily or disproportionately.65

2.7 Alternate Sentencing Policy

Apart from the trial and sentencing as prescribed by the Criminal Procedure
Code, 1973, other welfare legislations prescribe differential sentencing policy in
respect of certain crimes and criminals. To speak of such crimes, crimes committed
on weaker sections of the society like crimes against women, children and schedule
castes etc are dealt with differently prescribing different punishments. Crimes against
the weaker sections of the society are dealt with on a higher plane with highest
possible punishments. The recent enactment of Protection of Children from Sexual
Offences Act, 201266 amendment to the Atrocity Act,67 and Criminal Law

63
Allauddin Mian & Ors. Sharif Mian v. State of Bihar 1989 AIR 1456
64
For detailed discussion on quality and content of hearing at the sentencing see Rose Varghese
“Sentence Hearing : Intent And Scope In Criminal Proceedings”, Journal of Indian Law Institute, Vol.
34:3, 1992, pp 456-465
65
For further details, see infra chapter number IV, “A Critical Analysis of Capital Sentencing:
Riddles, Riders and Resolutions” point 4.8
66
In this Act minimum punishment is provided for offences punishable under section 4, 6, 8, 10, 12,
14, 15, 17 and 19 of the Act.
67
See The SC And The ST (Prevention Of Atrocities) Act, 1989, as amended in 2015
 31

Amendment Act 2013,68 prescribe highest punishment for the offences which
offences otherwise carry lighter sentences under Indian Penal Code 1860.

Conversely certain offenders are to be death with differentially. A juvenile

cannot be put into the machine of ordinary laws nor can a first offender be mixed with
hardened criminals. To arrange for this, therefore, Indian criminal justice provides for
different sentencing policy for certain individuals as different from certain crimes
mentioned above.
Children below eighteen years of age are termed ‘juveniles’ if they conflict
with law. A separate sentencing policy for juveniles is prescribed under newly re-
enacted Juvenile Justice (Care and Protection of Children) Act, 2015 wherein offences
by juveniles have been classified on the basis of seriousness as petty offences,69
serious offences70 and heinous offences.71 For first two offences a complete
rehabilitative package is made available wherein such juveniles escape rigours laws in
the process of rehabilitation.72 However, for heinous offences, a mixture of term
imprisonment73 and rehabilitation is prescribed to take care of symptoms of
recidivism and prospects of rehabilitation.
Probation of offenders Act, 1958 has a pivotal role to play in individualisation
of punishment and rehabilitation of offenders. Offenders below 21 years cannot be
punished unless compelling reasons weigh up with the courts.74 Offenders who have
committed offences punishable with less than 2 years cannot be punished and shall
have benefits of admonition, unless of course, court is otherwise of different
opinion.75 Releasing persons under supervision of probation officers for offences
punishable with less than life imprisonment is contemplated.76 The disqualifications
attached with convictions are taken care of by section 12 of the said Act.77
Under the Code of Criminal Procedure, 1973 also some alternate sentencing
and alternatives to sentencing are prescribed. Offences of private nature are allowed
to be compounded facilitating parties to avoid the legal enigma.78 Even the

68
See punishments for rape and sexual harassment provisions.
69
See section 2 (45) of Juvenile Justice (Care and Protection of Children) Act, 2015
70
Ibid, section (54)
71
Ibid, section 2 (33)
72
Ibid, section 18
73
Ibid, section 19 (1)
74
Section 6 of the Probation of Offenders Act, 1958
75
Ibid, section 3
76
Ibid, section 4
77
Ibid, section 12
78
See section 320 of Code of Criminal Procedure, 1973
 32

government is empowered to withdraw the case in circumstances warranting public

interest.79 Private complaint too can be withdrawn if a mutual disposition is arrived
at. Sui generis plea bargaining is also provided wherein the parties and prosecutor can
strike a mutual disposition and bargain for punishment that suits the crime.80 Courts
are sufficiently empowered to deal with first offenders under section 360 of the
Criminal Procedure Code, 1973. Using powers under probation Act, 1958, lower and
high courts are experimenting unstated forms of punishments such as community
services etc.81

Victim compensation and restitution of victims had been on back foot in

Indian sentencing system for a long time. This predicament is the result of two

reasons. Firstly, legislature laid more emphasis on the retributive part of the
punishment where it prescribed rigours punishment but turned blind eyes to victim

compensation. Secondly, judiciary also did not press for rehabilitation schemes in

spite of few legislations speaking for compensation and rehabilitation. However, we

have a changed scenario now, where both the institutions are focusing primarily on

the rehabilitation of the victims apart from sternly dealing with criminals in the form

of long incarceration. Compensation is increasingly being used as alternative to

imprisonment82 and additions to imprisonment. 83

2.8 Safeguards in Sentencing Policy

Sentences passed by the courts are safeguarded by multiple methods. Except

few all sentences are appealable.85 Multiple layers of appeals are provided under the
84

79
Ibid section 321 Cf section 257 of the same Act which provides for Withdrawal of complaint.
80
Ibid Chapter XXIA
81
See Smitha Verma “Reform, New Age Style” The Telegraph Wednesday, July 16, 2008 available at
http://www.telegraphindia.com/1080716/jsp/opinion/story_9555498.jsp.(last seen on 5 March 2017)
82
Under the Probation of Offenders Act, 1958, courts may ask offenders to pay compensation in return for admonition as
punishment or release on probation. Section 3 and 4 of the Probation of Offenders Act have to be read with section 5 which
mandates
83
Recent legislations like Protection of Children from Sexual Offences Act 2012, Criminal Law Amendment Act,
2013 etc compulsorily prescribe compensation as mandatory part of substantive sentence.
84
See sections 372, 375,376 of Code of Criminal Procedure, 1973
85
Appeal against conviction and acquittal are provided both to the accused and prosecutors. The victim also has a
right to appeal in circumstances. By the Criminal Procedure Code (Amendment) Act, 2008 the following proviso
was inserted into Section 372:-
"Provided that the victim shall have a right to prefer an appeal against any order passed by the
Court acquitting the accused or convicting or a lesser offence or imposing inadequate
compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against
the order of convict ion of such Court."
 33

code.86 Courts have the powers to review their own judgments also.87 Sentences
passed by the judiciary can be tempered with mercy by the executive. A unique
interplay is contemplated between judiciary and executive in Indian sentencing
policy. Clemency powers are vested with constitutional dignitaries i.e., President and
Governors.88 Clemency powers include power to wipe out sentences89 or modify
sentences.90 Apart from clemency powers executives have also been empowered to
cut short sentences passed by the judiciary in the form of remission and
commutations. Humanity and Karuna developed in the prisoners may be hampered by
the judicial sentences passed years back. To take care of such situations, section
432,91 43392 of the Criminal Procedure Code 1973, provide exercise of remission
powers, occasionally and or periodically, to reassess the crime, repentance and
productivity of such criminals. However the remission and commutation powers are
again subject matter of judicial review.93

2.9 Coherent Philosophy of Sentencing- A Vital Miss-Out

There are many philosophies behind sentencing justifying penal consequences.

The philosophical/jurisprudential justification can be retribution, incapacitation,
specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above

86
CHAPTER XXIX of the Code of Criminal Procedure, 1973 provides for appeals in sections 372 to
394
87
Ibid CHAPTER XXX sections 395 to 405
88
See articles 72 and 161 of the Constitution of India, 1950. For detailed context specific discussion on
these articles see chapter VI.
89
Power of pardon if exercised in that way absolves the convict from all infirmities and
disqualifications and makes him new man in the eyes of law.
90
Articles 72 and 161 of the Constitution first refer to the power to grant pardons, reprieves, respites or
remissions of punishments, and then to the power to suspend, remit or commute, of any person
convicted of any offence. Except the power of pardon, all other exercises modify the penalty from one
form to another.
91
Section 432 of Code of Criminal Procedure, 1973 provides that
“[w]hen any person has been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his sentence or remit the whole or
any part of the punishment to which he has been sentenced.”
92
Section 433 Code of Criminal Procedure, 1973 provides that
“The appropriate Government may, without the consent of the person sentenced
commute—
(a) a sentence of death, for any other punishment provided by the Indian Penal Code
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen
years or for fine;…”
93
See State of Haryana and Ors. v. Jagadish (2010) 4 SCC 216, Kehar Singh and another v. Union of
India (1989 AIR 653), K.M. Nanavati v. State of Bombay 1961 AIR 112, Union of India v. V. Sriharan
@ Murugan & Ors 2014 (11) SCC 1, Epuru Sudhakar & Another v. Govt. of A.P. & Ors. AIR 2006 SC
3385.
 34

or a combination thereof can be the goal of sentencing.94 Unlike other jurisdictions95

as discussed elsewhere, in India, however, there is no single unifying sentencing aim
that judges must give priority to when passing sentences. Instead, Indian judges may
choose any of the different sentencing aims including deterrence to suit the offender.96
This leads to the proposition that different judges can legitimately adopt different
sentencing approaches when sentencing the same case.97 In other words, they can treat
like cases differently and can justify their decisions according to sentencing law.98

In the pursuit of justice and just desert, courts have adopted fluctuating
variables of elusive aims of sentencing in India.99 Sometimes, deterrence100 has held

94
Shiva Prasad v. State of Kerla 1969 Ker. L.T. 862
95
Cf Section 3A Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court can impose a
sentence.
Section 3A sets out the following seven purposes “for which a court may impose a sentence on an offender:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and to the community.”

In England and Wales, The Criminal Justice Act 2003 sets out five purposes of sentencing. These are the:
1. punishment of offenders
2. reduction of crime (including its reduction by deterrence)
3. reform and rehabilitation of offenders
4. protection of the public
5. making of reparation by offenders to people affected by their offences
When dealing with an offender aged 18 or over the court must have regard to these purposes of sentencing.
96
Dr. Niamh Maguire “ Consistency In Sentencing” Judicial Studies Institute Journal, Vol.2, 2010, p19
97
State of U.P v. Satish 2005 (3) SCC 114, A Pasayat J. observed
“Judges in essence affirm that punishment ought always to fit the crime; yet in practice
sentences are determined largely by other considerations. 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 tragic results of crime. Inevitably these
considerations cause a departure from just desert as the basis of punishment and create cases of
apparent injustice that are serious and widespread.”
98
See Indian Law Institute, New Delhi “Punishment”, 1961, available at http://hdl.handle.net /123456789/168,
Pp 244-245
99
Narinder Singh & Ors v. State of Punjab (2014) 6 SCC 466, Justice A.K.Sikri observed in the context of rape
conviction
“There are many philosophies behind such sentencing justifying these penal consequences.
The philosophical/jurisprudential justification can be retribution, incapacitation, specific
deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination
thereof can be the goal of sentencing.”
100
It is interesting to note that justice Krishna Iyer who is defender of human rights and an abolitionist from the
Bench once favoured the death penalty in the name of deterrence.
In Ediga Anamma v. State of Andhra Pradesh 1974 AIR 799, R. Krishna Iyer, J., speaking for the Bench observed
that “deterrence through threat of death may still be a promising strategy in some frightful areas of murderous
crime.”
Similar views were expressed by him in a host of other cases like, Shiv Mohan Singh v. State (Delhi
Administration) [1977] 3 S.C.R. 172, Charles Sobraj v. The Superintendent, Central Jail, Tihar, New Delhi (1978)
4 S.C.C. 104
 35

the field whereas reformation101 has played part in some of the cases. Society’s cry for
justice102 has also held the field especially for heinous crimes. Public abhorrence,103
preferred retributions104 and corrections105 “collective conscience,106 “public
abhorrence of the crime”107 etc have all played decisive roles in sentencing policy.108
However in the absence of stated sentencing aims judges would be “go by their own
perception about the philosophy behind the prescription of certain specified penal
consequences for particular nature of crime.”109 “[t]he humane art of sentencing
[therefore] remains a retarded child of the Indian criminal system”110

2.10 Challenges in Sentencing Policy in India

Given the fact that the phrase sentencing policy covers array of sentencing
dimensions ranging from legislature to executive via judiciary, hundreds of problems
affront when one charts the problems of sentencing policy in India. The scope of this
research is however limited to few areas of the sentencing policy only. Right from the

101
In Mohammad Giasuddin v. State of Andhra Pradesh 1977 AIR 1926 Justice V.R. Krishnaiyer,
observed
“…It is a truism, often forgotten in the hidden vendetta in human bosoms, that
barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally
or morally maimed or malformed man (found guilty) is the goal, awakening the inner
being, more than torturing through exterior compulsions, holds out better curative
hopes.”
See also Munna & Others Etc v. State of U.P. 1982 AIR 806, State of Madhya Pradesh & Anr. v. Bhola
@ Bhairon Prasad Raghuvanshi 2003 (3) SCC 1
102
In Dhananjoy Chatterjee v. State of WB (1994) 2 SCC 220, the court observed
“Imposition of appropriate punishment is the manner in which the courts respond to
the society's cry for justice against the criminals. Justice demands that courts should
impose punishment befitting the crime so that the courts reflect public abhorrence of
the crime.”
103
Dinesh @ Buddha v. State of Rajasthan (2006 Cri.L.J.1679 ) Justice A Pasayat remarked
“Courts must hear the loud cry for justice by the society in cases of the heinous crime
of rape on innocent helpless girls of tender years … and respond by imposition of
proper sentence. Public abhorrence of the crime needs reflection through imposition
of appropriate sentence by the Court. …To show mercy in the case of such a heinous
crime would be a travesty of justice and the plea for leniency is wholly misplaced.”
104
See Smt. Vijay Shri v. Devender Kumar available at https://indiankanoon.org/doc/60529180/
105
In Satto v. State of U.P (1979) 4 SCC 413 para 3 the court observed that
“ [c]orrection informed by compassion not incarceration leading to degeneration, is
the primary aim of this field of criminal justice”
106
Machhi Singh v. State of Punjab (1983) 3 SCC 470, at para 32.
107
See Bantu v. State of U.P. (2008) 11 SCC 113, Mohan Anna Chavan v. State of Maharashtra (2008)
7 SCC 561, State of Madhya Pradesh v. Saleem (2005) 5 SCC 554, State of U.P. v. Sri Krishan (2005)
10 SCC 420, Jai Kumar v. State of Madhya Pradesh (1999) 5 SCC 1, Ravji v. State of Rajasthan
(1996) 2 SCC 175, Bheru Singh v. State of Rajasthan (1994) 2 SCC 467, State of Madhya Pradesh v.
Sheikh Shahid (2009) 12 SCC 715, State of U.P. v. Sattan @ Satyendra (2009) 4 SCC 736, State of
Madhya Pradesh v. Santosh Kumar (2006) 6 SCC 1, Shailesh Jasvantbhai v. State of Gujarat (2006) 2
SCC 359.
108
See Santa Singh v. State of Punjab 1976 AIR 2386
109
Narinder Singh & Ors v. State of Punjab https://indiankanoon.org/doc/98425580/
110
Mohammad Giasuddin v. State of Andhra Pradesh 1977 AIR 1926
 36

appointment of judges to the integrity of a judge, from legislative malice to the

executive inefficiency, everything can be contributing factor in the quality of sentence
dispensed. However as mentioned in the first chapter, only few areas of the border
arena are intended to be covered. The choices of these areas are supported by the
convincing evidence. The problem of disparity in sentencing is chosen for a reason
that right from the judiciary to legislature and from the criminal to common,
everybody has acknowledged that sentencing disparity is hunting the justice delivery
system and therefore checks and balances should be introduced at the earliest. Other
jurisdictions have done this or are in the process of. India, however, lacks coherent
sentencing policy coupled with legislative or judicial regulations. Therefore this area
has been chosen to explore the existing mechanism which can be conveniently
adopted or at least experimented upon in India.

The problem and debate of death penalty is not basically resting on retention
versus abolition stand. The real wood that is missed for the tree is: if comprehensive
sentencing policy is followed in respect of death penalty, there is no need to engage in
futile and unproductive exercises of retentionist versus abolitionist arguments.
However, as the research would unfold, India lacks comprehensive sentencing policy
in respect of death penalty in absolute sense bringing the highest impartial institution
into embarrassment of highest order! Death sentences have been totally read to be
Judge centric, least regard being had to its own standards of highest care laid down by
the same institution.

The alternative of life imprisonment to death penalty can be assumed safe

when the disparity in death sentence is so apparent. However, the shift from death
penalty to life imprisonment also shifted the controversy when judiciary started fixing
the meaning of life imprisonment. Traditionally, life imprisonment in India is taken to
be indeterminate where executive would remit the sentence normally after 14 years on
the basis of rehabilitative jurisprudence. This prerogative of executive has been
circumscribed by the judiciary wherein it fixes the ‘term’ for life convicts who cannot
be released before actually serving such term! This has led to a new chapter in
sentencing policy being argued as ‘judicially fashioned’ but ‘executively shunned’!

The executives have a greater control over sentencing policy. This control is
two sided. Weather to prosecute or not, weather to agree for plea bargaining or to
bargain further is left with the prosecution in India, however, this control is not
 37

unbridled and sufficient checks and balances are available. The bone of contention is,
however, the post sentencing control the executive exercise over the convicts.
Benefits of remission and short sentencing are at the command and mercy of the
executive which exercise can also be subject matter of disparity in the same way the
judiciary has been accused of.

Restoration and rehabilitation are the emerging facets of the sentencing policy.
In the absence of stated sentencing policy, judiciary would roam wildly in perusing
justice which roaming may further lead to and appear as disparity in sentencing
policy. Bearing this drawback, Indian judiciaries have shed their traditional
sentencing policies and experimenting milder forms of sentences such as community
sentences. However, we do not find uniformity in this exercise either. Further, the
sentencing policy in respect of juveniles has kept changing every decade roughly
which fact is evident from the recent enactment of Juvenile Justice Act 2015. The
benefits of probation also have not been made use of increasingly though that is the
purpose of that legislation. Even this benefit is also judge centric which is witnessed
across the judicial institutions.

The crux of the sentencing policy lies in its economics apart from the
deterrence and rehabilitation. The somber interpretation of section 357 of Criminal
Procedure Code 1973 in recent past has rekindled the compensatory jurisprudence in
India. The problem, however, lies with the use of salutary provision. Judicial
reminders and legislative supplements in the form of recent amendments have brought
different dimensions to this exercise which needs to be systematically synthesized.

2.11 Conclusion
Sentencing in India is largely based on individualisation of punishment rather
than stated goals of punishments. Criminal trial in our country is largely devoted only
to finding out whether the man in the dock is guilty. It is a major deficiency in the
Indian system of criminal trials that the complex but important sentencing factors are
not given sufficient emphasis and materials are not presented before the Court to help
it for a correct judgment in the proper personalised, punitive treatment suited to the
offender and the crime. The words of justice V.R. Krishna Iyer better summarises the
sentencing policy in India sans Indian Penal code, as
“Unfortunately, the Indian Penal Code still lingers in the somewhat
compartmentalised system of punishment viz. imprisonment, simple or
 38

rigorous, fine and, of course, capital sentence. There is a wide range of choice
and flexible treatment which must be available with the Judge if he is to fulfil
[sic] his tryst with curing the criminal in a hospital setting. Maybe in an
appropriate case actual hospital treatment may have to be prescribed as part
of the sentence. In another case, liberal parole may have to be suggested and,
yet in a third category, engaging in certain types of occupation or even going
through meditational drills or other courses may be part of the sentencing
prescription. The perspective having changed, the legal strategies and judicial
resources, in their variety, also have to change. Rule of thumb sentences of
rigorous imprisonment or other are too insensitive to the highly delicate and
subtle operation expected of a sentencing Judge. Release on probation,
conditional sentences, visits to healing centres, are all on the cards. We do not
wish to be exhaustive. Indeed, we cannot be.”111

111
Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287