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Report No.264

5.11 This offence-centric approach to punishment may also be seen in allied jurisprudence regarding probation, for example in Dalbir Singh v. State of Haryana,27:

"Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence. In State of Gujarat v. Jamnadas G. Pabri and Ors. [1975] 2 SCR 330 a three Judge Bench of this Court has considered the word "expedient". Learned Judges have observed in paragraph 21 thus:

Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view'; 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conductive to special advantage rather than to what is universally right' (see Webster's New International Dictionary).

10. It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence.". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct."

5.12 State of Uttar Pradesh v. Sanjay Kumar,28 is yet another case of the Supreme Court that presents a clear picture of the role of sentencing policies:

"The principle of proportionality, ...., prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus, the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.

Ultimately, it becomes the duty of the courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed, etc. The courts should impose a punishment befitting the crime so that the courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise."

5.13 Articulating upon the policy surrounding death sentence and life imprisonment punishments, the case explains the objective for guidelines to sentencing. In doing so, it also explains the aspect of criminal justice that allows it to reflect the public nature of the consequences of criminal activity. It is difficult to gauge the extent of damage caused by a crime to society as a whole; and yet, this very public effect must be considered in determining punishments. Where the public abhorrence for a crime is significantly higher, sentencing policy should be moulded to reflect the source of the abhorrence.

In the instance of food adulteration, it is the risk that such offence creates for all persons. Those who adulterate food often do so behind a perverse veil of ignorance that makes their victims into faceless, unseen sources of profit. By linking the punishment to the gravity of the injury resulting from the adulteration, the proposed provision brings home to the criminal the reality of the consequences of crime.

5.14 The objective in all such endeavours has been to bolster the deterrent effect of the punishment. The inadequacy of the judicial response to a particular form of crime is difficult to gauge, when working case to case, as the effects of leniency are seen finally when crime levels as a whole are altered due to encouragement or discouragement of criminals. Such foreclosure of lenient judicial behaviour through the application of proportionality was pointed out by the Supreme Court in State of Madhya Pradesh v. Babulal & Ors.29, later reiterated in State of Madhya Pradesh v. Surendra Singh,30:

"that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing misplaced sympathy to the Accused on any consideration whatsoever including the delay in conclusion of criminal proceedings.

The Punishment should not be so lenient that it shocks the conscience of the society being abhorrent to the basic principles of sentencing. Thus, it is the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages a criminal and as a result of the same society suffers.".

5.15 A leading case on the matter is Sevaka Perumal, etc. v. State of Tamil Nadu,31 which makes an illuminating discussion on the social function of punishments. The case draws our attention to the existing and felt needs of society with regards to a particular crime:

"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 corner-stone 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 the 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 consideration. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

5.16 The above proposition is reproduced in Shailesh Jasvantbhai & Anr. v. State of Gujarat & Ors.32 which further elaborates upon the principle of proportionality and also presents an incisive and sincere examination of judicial discretion which is ordinarily a necessary evil:

"After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court.

Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of California (402 US 183: 28 L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.".

5.17 A similar view has been reiterated in Bantu v. State of U.P33. In the case of State of Punjab v. Bawa Singh,34 the significance of the burden of judicial discretion in sentencing is highlighted and, relying upon the judgment in Hazara Singh v. Raj Kumar,35 the importance of the principle of proportionality in alleviating that burden is also set out.

5.18 Similarly, the Supreme Court in Jameel v. State of Uttar Pradesh36, also describes the process of proportional sentencing when it explains that "[b]y deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be." It further highlights the relevant criteria and facts that are significant in carrying out this modulation process.

5.19 These cases all raise the important question of the relationship between the demands of a deterrent theory of criminal justice and a principle of proportionality. The Supreme Court in State of Punjab v. Prem Sagar & Ors.37 while dealing with the case affecting the public health referred to the object of enacting Article 47 of the Constitution and held: "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.".

5.20 Arguably, the two principles are not in opposition to each other and should indeed be applied together. After all, the measure of a proportionate response to crime cannot be taken with a blinkered view only to the specific circumstances of a case but keeping in mind the effect of the crime upon society, specifically the deterrent effect. This form of proportionality ensures that punishments are meted out in a forward-looking manner. Nonetheless, it is true that proportionality forms an alternative to a uniformly harsh policy aimed purely at deterrence.

This is, however, eschewed for a more measured response because, as noted in Shailesh Jasvantbhai, "uniformly disproportionate punishment has some very undesirable practical consequences". This understanding highlights the manner in which uniformity of harsh punishments inequitably places the burden of deterrence on perpetrators of less grave crimes and also incentivizes petty criminals to scale up their operations as the punishment remains the same in any case.

5.21 In Dhananjoy Chatterjee @ Dhana v. State of West Bengal,38 the Supreme Court has stated: "In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. 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 fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment."

5.22 In Ahmed Hussein Vali Mohammed Saiyed & Anr. v. State of Gujarat,39, the Supreme Court explained the scope of considerations involved in terms of taking a view to the long term effects of leniency and the holistic effects on society as opposed to the individual criminal and victim:

"Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.".

5.23 In Guru Basavaraj @ Benne Settapa v. State of Karnataka,40, the Apex Court explained the demands upon courts when faced with a question that requires them to consider the needs of society over those of particular persons:

"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored.".

5.24 A similar appeal is made in Gopal Singh v. State of Uttarakhand,41, but is appropriately placed alongside a counterpoint on the necessity of proportionality:

"The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles.".

5.25 In conclusion, it is clear that punishment schemes and sentencing policies must adhere to a general principle of proportionality and as such the required deterrence be achieved without arbitrary slips into leniency; and at the same time unnecessary distress is not created through uniformly high punishments.

5.26 Much of the case law makes a listing of relevant criteria to be considered when determining appropriate punishment. However, notably, the proposed amendment limits these relevant criteria and forwards the gravity of harm resulting from the offence as the foremost standard of differentiation. The reasons for this have been made clear above: the appropriate level of deterrence has not been achieved by allowing for judicial discretion and the consideration of all relevant criteria. The low quantum of punishment and uncertainty surrounding sentencing lends itself to and encourages the commission of food safety offences. Raising the overall limit of punishment cannot be enough, however, and a graded framework is hence proposed. At the same time, the relevant criteria for the quantum of the punishment have been limited so as to achieve the requisite certainty that would ensure that the increased quantum of punishment is inflicted without exceptions.

Criminal Law (Amendment) Bill, 2017 - Provisions dealing with Food Adulteration Back

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