Punjab Vs. Prem
Sagar & Ors.  INSC 913 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 [Arising out of SLP
(Crl.) No.4285 of 2007] State of Punjab ...Appellant Versus Prem Sagar & Ors. ...
S.B. SINHA, J :
1. Leave granted.
2. 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.
2 At some quarters, serious
concerns have been expressed in this behalf.
Some Committees as for example
Madhava Menon Committee and Malimath Committee have advocated introduction of
3. Before, however, we delve into
the said question, we may notice the fact of the matter.
Respondents herein were convicted
for commission of an offence under Section 61(1) of the Punjab Excise Act for
carrying 2000 litres of rectified spirit. They were sentenced to undergo an
imprisonment for a period of one year.
4. The High Court, however, by
reason of the impugned judgment purported to be upon taking into consideration
the fact that the offence was committed in the year 1987 and the appeal was
dismissed in the year 1992, thought it fit to give an opportunity to the
respondents to reform themselves, observing:
"...The accused have suffered
lot of agony of protracted trial. They having joined the main stream must have
expressed repentance over the misdeed done by them about 19 years back. In 3
the aforesaid circumstances and in the absence of any of their bad antecedents,
it will not be appropriate to deny them to the benefit of probation under the
Probation of Offenders Act, 1958 and to send them to jail at this stage."
5. On the said premise, the
respondents were directed to be released on probation on their executing a bond
of Rs. 20,000/- with one surety each of the like amount to the satisfaction of
the Trial Judge.
No report of the Probation Officer
was called for. The social background of the respondent had not been taken into
What was their occupation was not
6. Whether the court while
awarding a sentence would take recourse to the principle of deterrence or
reform or invoke the doctrine of proportionality, would no doubt depend upon
the facts and circumstance of each case.
While doing so, however, the
nature of the offence said to have been committed by the accused plays an
important role. The offences which affect public health must be dealt with
severely. For the said purpose, the courts must notice the object for enacting
Article 47 of the Constitution of India.
7. There are certain offences
which touch our social fabric. We must remind ourselves that even while
introducing the doctrine of plea bargaining in the Code of Criminal Procedure,
certain types of offences had been kept out of the purview thereof. While
imposing sentences, the said principles should be borne in mind.
8. A sentence is a judgment on
conviction of a crime. It is resorted to after a person is convicted of the
offence. It is the ultimate goal of any justice delivery system. The
Parliament, however, in providing for a hearing on sentence, as would appear
from Sub-section (2) of Section 235, Sub-section (2) of Section 248, Section
325 as also Sections 360 and 361 of the Code of Criminal Procedure, has laid
down certain principles. The said provisions lay down the principle that the
court in awarding the sentence must take into consideration a large number of
relevant factors; sociological backdrop of the accused being one of them.
Although a wide discretion has
been conferred upon the court, the same must be exercised judiciously. It would
depend upon the circumstances in which the crime has been committed and his
mental state. Age of the accused is also relevant.
5 What would be the effect of the
sentencing on the society is a question which has been left unanswered by the
legislature. The Superior Courts have come across a large number of cases which
go to show anomalies as regards the policy of sentencing. Whereas the quantum
of punishment for commission of a similar type of offence varies from minimum
to maximum, even where same sentence is imposed, the principles applied are
found to be different. Similar discrepancies have been noticed in regard to
imposition of fine.
9. In Dhananjoy Chatterjee Alias
Dhana v. State of W.B. [(1994) 2 SCC 220], this Court held:
"15...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..."
Gentela Vijayavardhan Rao and
Another v. State of A.P. [(1996) 6 SCC 241], following Dhananjoy Chatterjee
(supra), states the principles of deterrence and retribution but the same
cannot be categorized as right or wrong. So much depends upon the belief of the
10. In a recent decision in
Shailesh Jasvantbhai and Another v. State of Gujarat and Others [(2006) 2 SCC
359], this Court opined:
7. The law regulates social
interests, arbitrates conflicting claims and demands.
Security of persons and property
of the people 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 law which must be achieved by
imposing appropriate sentence.
Therefore, law as a cornerstone of
the edifice of "order" should meet the challenges confronting the
society. Friedman in his Law in Changing Society stated that: "State of
criminal law continues to be--as it should be--a decisive reflection of social
consciousness of society."
Therefore, in operating the
sentencing system, law should adopt the corrective machinery or deterrence
based on factual matrix. By deft modulation, sentencing process 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 commission of the crime, the
conduct of the accused, the nature of weapons used and all other attending
circumstances are relevant facts which would enter into the area of
7 Relying upon the decision of
this Court in Sevaka Perumal v. State of T.N. [(1991) 3 SCC 471], this Court
furthermore held that it was 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.
11. It is interesting to note that
this Court in some cases severely criticized the pattern adopted in the matter
of passing of sentence on the accused. [See State of M.P. v. Bala @ Balaram,
(2005) 8 SCC 1 and State of M.P. v. Govind, (2005) 8 SCC 12].
12. Recently, in State of
Karnataka v. Raju [2007 (11) SCALE 114], where the facts of the case were that
the Trial Court imposed custodial sentence of seven years after convicting the
respondent for rape of minor under Section 376 of the Indian Penal Code; on
appeal, the High Court reduced the sentence of the respondent to three and half
This Court held that a normal sentence
in a case where rape is committed on a child below 12 years of age, is not less
than 10 years' rigorous imprisonment, though in exceptional cases "for
special and adequate reasons" sentence of less than 10 years' rigorous
imprisonment can also be awarded. It was, thus, opined that socio-economic
status, 8 religion, race, caste or creed of the accused or the victim are
irrelevant considerations in sentencing policy. To what extent should the
judges have discretion to reduce the sentence so prescribed under the statute
has remained a vexed question.
However, in India, the view always
has been that the punishment must be proportionate to the crime. Applicability
of the said principle in all situations, however, is open to question. Judicial
discretion must be exercised objectively having regard to the facts and
circumstances of each case.
13. We may also notice that in
Dalbir Singh v. State of Haryana [(2000) 5 SCC 82], this Court opined:
"13. Bearing in mind the
galloping trend in road accidents in India and the devastating consequences
visiting the victims and their families, criminal courts cannot treat the
nature of the offence under Section 304A IPC as attracting the benevolent
provisions of Section 4 of the PO Act. While considering the quantum of sentence,
to be imposed for the offence of causing death by rash or negligent driving of
automobiles, one of the prime considerations should be deterrence. A
professional driver pedals the accelerator of the automobile almost throughout
his working hours. He must constantly inform himself that 9 he cannot afford to
have a single moment of laxity or inattentiveness when his leg is on the pedal
of a vehicle in locomotion. He cannot and should not take a chance thinking
that a rash driving need not necessarily cause any accident; or even if any
accident occurs it need not necessarily result in the death of any human being;
or even if such death ensues he might not be convicted of the offence; and
lastly that even if he is convicted he would be dealt with leniently by the
court. He must always keep in his mind the fear psyche that if he is convicted
of the offence for causing death of a human being due to his callous driving of
vehicle he cannot escape from jail sentence. This is the role which the courts
can play, particularly at the level of trial courts, for lessening the high
rate of motor accidents due to callous driving of automobiles."
In Rattan Singh v. State of Punjab
[(1979) 4 SCC 719], this Court held:
"5. Nevertheless, sentencing
must have a policy of correction. This driver, if he has -to become a good
driver, must have a better training in traffic laws and moral responsibility,
with special reference to the potential injury to human life and limb.
Punishment in this area must, therefore, be accompanied by these components.
The State, we hope, will attach a course for better driving together with a
livelier sense of responsibility, when the punishment is for driving offences.
Maybe, the State may consider, in cases of men with poor families, occasional
parole and reformatory courses on appropriate application, without the rigour
of the old rules which are subject to Government discretion."
14. The Ministry of Law,
Government of India, Committee on Reforms of the Criminal Justice System, 2003
was established by the Government of India to recommend changes to the criminal
justice system in India.
It had observed that the judges
were granted wide discretion in awarding the sentence within the statutory
limits. It was also of the opinion that as there was no guidance in selecting
the most appropriate sentence in the fact situation thereof, there was no
uniformity in awarding sentence as the discretion was exercised according to
the judgment of every judge. Thus, the committee emphasized the need for having
sentencing guidelines to minimize uncertainty in awarding sentences. It
recommended the appointment of a statutory committee to lay down the sentencing
15. Don M. Gottfredson in his
essay on "Sentencing Guidelines" in "Sentencing: Hyman Gross and
Andrew von Hirsch" opines:
"It is a common claim in the
literature of criminal justice- and indeed in the popular press- that there is
considerable "disparity" in sentencing.. The word
"disparity" has become a prerogative and the concept of "sentencing
11 disparity" now carries with it the connotation of biased or insidious
practices on the part of the judges. This is unfortunate in that much otherwise
valid criticism has failed to separate justified variation from the unjustified
variation referred to as disparity. The phrase "unwarranted
disparity" may be preferred; not all sentencing variation should be
considered unwarranted or disparate. Much of it properly reflects varying
degrees of seriousness in the offense and/or varying characteristics of the
offender. Dispositional variation that is based upon permissible, rationally
relevant and understandably distinctive characteristics of the offender and of
the offense may be wholly justified, beneficial and proper, so long as the
variable qualities are carefully monitored or consistency and desirability over
Moreover, since no two offenses or
offenders are identical, the labeling of variation as disparity necessarily
involves a value judgment- that is, disparity to one person may be simply justified
variation to another. It is only when such variation takes the form of
differing sentences for similar offenders committing similar offenses that it
can be considered disparate."
[Emphasis supplied] The learned
author further opines:
"In many jurisdictions,
judicial discretion is nearly unlimited as to whether or not to incarcerate an
individual; and bound only by statutory maxima, leaving a broad range of
discretion, as to the length of sentence."
16. Kevin R. Reitz in Encyclopedia
of Crime and Justice, Second edition "Sentencing guidelines" states:
"All guideline jurisdictions
have found it necessary to create rules that identify the factual issues at
sentencing that must be resolved under the guidelines, those that are
potentially relevant to a sentencing decision, and those viewed as forbidden
considerations that may not be taken into account by sentencing courts. One
heated controversy, addressed differently across jurisdictions, is whether the
guideline sentence should be based exclusively on crimes for which offenders
have been convicted ("conviction offenses"), or whether a guideline
sentence should also reflect additional alleged criminal conduct for which
formal convictions have not been obtained ("nonconviction offenses").
Another difficult issue of
fact-finding at sentence for guideline designers has been the degree to which
trial judges should be permitted to consider the personal characteristics of
offenders as mitigating factors when imposing sentence. For example:
Is the defendant a single parent
with young children at home? Is the defendant a drug addict but a good
candidate for drug treatment? Has the defendant struggled to overcome
conditions of economic, social or educational deprivation prior to the offense?
Was the defendant's criminal behavior explicable in part by youth,
inexperience, or an unformed ability to resist peer pressure? Most guideline
states, once again including all jurisdictions with voluntary guidelines, allow
trial courts latitude to sentence outside of the guideline ranges based on the
judge's assessment of such 13 offender characteristics. Some states, fearing
that race or class disparities might be exacerbated by unguided consideration
of such factors, have placed limits on the list of eligible concerns. (However,
such factors may indirectly affect the sentence, since judges are permitted to
base departures on the offenders particular "amenability" to
probation (Frase, 1997).)"
17. Andrew von Hirsch and Nils
Jareborg have divided the process of determining sentence into stages of
determining proportionality while determining a sentence, namely:
1. What interest are violated or
threatened by the standard case of the crime- physical integrity, material
support and amenity, freedom from humiliation, privacy and autonomy.
2. Effect of violating those
interests on the living standards of a typical victim- minimum well-being,
adequate well-being, significant enhancement
3. Culpability of the offender 4.
Remoteness of the actual harm as seen by a reasonable man.
[See Andrew Ashworth, Sentencing
and Criminal Justice, 2005, 4th edition] 14
18. Guidelines in United Kingdom
originated from two separate sources in the 1980s. The first was the
Magistrates' Association, which took the first steps in producing road traffic
offence guidelines for the lower courts. This process has widened and deepened,
so that the latest set of sophisticated guidelines, effective from 2004, covers
all the main offences likely to be encountered in those courts. The second
source of guidelines was the Court of Appeal which, of its own initiative,
developed guideline judgments as a means of providing assistance to Crown Court
sentencers in the disposal of particular types of offence, mainly the most
serious forms of crime which attract long prison sentences. The Crime and
Disorder Act 1998 created the Sentencing Advisory Panel (SAP), a body with a
diverse membership, to assist and advise the Court of Appeal in the
promulgation of sentencing guidelines.
The Panel and the Court of Appeal
worked together effectively in this way from 1999 to 2003, at which point the
Sentencing Guidelines Council (SGC) was established. One of the most
significant innovations introduced by the Criminal Justice Act 2003 was the
setting up of the Sentencing Guidelines Council. The Council, composed mainly
but not exclusively of sentencers, took over the task of issuing sentencing 15
guidelines, with the Panel performing much the same function as before, but now
advising the Council rather than the Court of Appeal. The personnel on the
SGC/SAP all work on guidelines in a part-time capacity, but supported by a
joint full-time secretariat.
19. The idea of a "commission
on sentencing" can be traced to Marvin's Frankel's influential writings of
the early 1970's , most notably his 1973 book Criminal Sentences: Law Without
He also advocated:
"Greater uniformity in
punishments imposed upon similarly situated offenders , with a concomitant
reduction in inexplicable disparities, including racial disparities in punishment
and widely varying sentences based simply on the predilections of individual
[See Encyclopedia of Crime and
Justice, Second edition "Sentencing guidelines" Kevin R. Reitz]
20. The Sentencing Reform Act of
1984 created the U.S. Sentencing Commission to promulgate binding sentencing
guidelines in response to a regime of indeterminate sentencing characterized by
broad judicial 16 discretion over sentencing and the possibility of parole. The
Act sought to create a transparent, certain, and proportionate sentencing
system, free of "unwarranted disparity" and able to "control
crime through deterrence, incapacitation, and the rehabilitation of
offenders" by sharing power over sentencing policy and individual
sentencing outcomes among Congress, the federal courts, the Justice Department,
and probation officers.
21. The heart of the Guidelines is
a one-page table: the vertical axis is a forty-three-point scale of offense
levels, the horizontal axis lists six categories of criminal history, and the
body provides the ranges of months of imprisonment for each combination of
offense and criminal history. A sentencing judge is meant to use the
guidelines, policy statements, and commentaries contained in the Guidelines
Manual to identify the relevant offense and history levels, and then refer to
the table to identify the proper sentencing range. Though in all cases a
sentence must be at or below the maximum sentence authorized by statute for the
offense, in certain circumstances the Guidelines allow for both upward and
downward departures from the sentence that would otherwise be recommended.
22. In `THE FAILURE OF THE FEDERAL
SENTENCING GUIDELINES: A STRUCTURAL ANALYSIS' [III 105 Colum.L. Rev.
1315], Frank O. Bowman criticised
thee Federal Sentencing Guidelines in the following terms:
"The severity and
frequency of punishment imposed by the federal criminal process during the
guidelines era is markedly greater than it had been before.
crimes it is difficult, and perhaps impossible, to isolate the effect of federal
prosecutorial and sentencing policies from effects of state policies and
practices, not to speak of the broader economic, demographic, and social trends
that influence crime rates.
process of making sentencing rules and imposing sentences on individual
defendants has gone astray."
23. In United States v. Booker
[125 S. Ct. at 757] Booker found the federal guidelines unconstitutional as
previously applied, but upheld them as a system of "effectively
advisory" sentencing rules.
24. In the recent United States
Supreme Court decision of Gall v.
United States [552 U.S. 2007], the
court had to determine the correctness of the decision of the Eight Circuit
court that reversed the decision of the district court on sentencing Gall to 36
months probation 18 period on the ground that a sentence outside the Federal
sentencing Guidelines range must be and was not in this case, supported by
Reversing the decision of the
court, it was opined:
" While the extent of the
difference between a particular sentence and the recommended Guidelines range
is relevant, courts of appeals must review all sentences--whether inside, just
outside, or significantly outside the Guidelines range--under a deferential abuse-of-discretion
(a)Because the Guidelines are now
advisory, appellate review of sentencing decisions is limited to determining
whether they are "reasonable," United States v. Booker, 543 U. S. 220
, and an abuse-of-discretion standard applies to appellate review of sentencing
decisions. A district judge must consider the extent of any departure from the
Guidelines and must explain the appropriateness of an unusually lenient or
harsh sentence with sufficient justifications. An appellate court may take the
degree of variance into account and consider the extent of a deviation from the
Guidelines, but it may not require "extraordinary" circumstances or
employ a rigid mathematical formula using a departure's percentage as the
standard for determining the strength of the justification required for a
(b) A district court should begin
by correctly calculating the applicable Guidelines range.
19 The Guidelines are the starting
point and initial benchmark but are not the only consideration.
After permitting both parties to
argue for a particular sentence, the judge should consider all of 18 U. S. C.
'3353(a)'s factors to determine whether they support either party's proposal.
He may not presume that the Guidelines range is reasonable but must make an
individualized assessment based on the facts presented. If he decides on an
outside-the- Guidelines sentence, he must consider the extent of the deviation
and ensure that the justification is sufficiently compelling to support the
degree of variation."
25. Andrew von Hirsch in "The
Sentencing Commission's functions", The Sentencing Commission and its
Guidelines (Northeastern University Press, 1987), Ch.1.] more than twenty years
ago summarised the central tasks of a sentencing commission by observing that
the function was:
"(1) to decide the future
direction of sentencing policy, informed by the study of past sentencing
(2) to structure judicial
discretion, rather than to eliminate it, allowing judges to interpret and apply
the guidelines and to deviate from them in special circumstances; and (3) to
select a predominant rationale for sentencing, and to base guidelines upon it,
so as to promote consistency in sentencing and to reduce disparity."
20 The High Court does not rest its
decision on any legal principle.
No sufficient or cogent reason has
We have noticed the development of
law in this behalf in other countries only to emphasise that the courts while
imposing sentence must take into consideration the principles applicable
thereto. It requires application of mind. The purpose of imposition of sentence
must also be kept in mind.
26. Although ordinarily, we would
not interfere the quantum of sentence in exercise of our jurisdiction under
Article 136 of the Constitution of India, but in a case of this nature we are
of the opinion that the High Court having committed a serious error, interest
of justice would be subserved if the decision of the High Court is set aside
and the respondent is sentenced to undergo simple imprisonment for a period of
six months and a fine of Rs. 5,000/- is imposed, in default to undergo
imprisonment for a further period of one month.
27. The Appeal is allowed to the
extent mentioned hereinbefore.
[V.S. Sirpurkar] New Delhi;
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