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Report No. 14

11. Special cases: section 106, Evidence Act.-

There are, however, some special situations which call for the application of section 106 of the Indian Evidence Act. In such cases, one may justifiably demand that the accused should be required to undertake the burden of proving a fact which is specially within his knowledge. The proved or admitted possession by the accused of an incriminating object or stolen property would call for an application of this special provision. Where the prosecution has proved facts necessary to establish the connection between the incriminating object and the offence and its possession by the accused, the onus will be on the accused person to explain how he came to be in possession of that object. It would be for the court to determine whether the explanation given by the accused is one that can be believed.

Preventions of Corruption Act (Limitations).- In another class of cases such as those under the Prevention of Corruption Act, the law expressly provides that on the proof of certain facts particular presumptions shall be drawn against the accused person. The fact that the accused person is in possession of pecuniary resources or property disproportionate to his known sources of income has to be proved by the prosecution.

On such proof, a presumption that the accused person was guilty of criminal misconduct in the discharge of his official duties shall be made, unless the accused proves the contrary, namely, that the property in his possession is not disproportionate to his sources of income. This, in substance, is an express extension of the principle contained in section 106, because the possession of the resources or the property and the manner by which the accused came to be in possession of such resources or property, would be facts specially within the knowledge of the accused person.

These special laws which throw the burden of proof of particular facts upon the accused persons, or which provide for certain limited presumptions being drawn against accused persons on certain facts being established by the prosecutors do not in fact derogate from the principle of the presumption of innocence of an accused person. Even in these cases, though the burden is laid upon the accused to prove facts within his special knowledge failing which certain presumptions arise against him, the overall burden still lies on the prosecution to prove the guilt of the accused; thus the presumption of the innocence of the accused governs even these cases. As has been said, "But while the prosecution must prove the guilt of the prisoner there is no such burden laid on the prison to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence."

12. Minimum sentence.-

The protection of the public, the prevention of crime, the deterrent effect of the physical suffering imposed on the offender and his reformation are broadly the bases of the theory of infliction of punishment on an offender. The view has increasingly been accepted that punishment should not be regarded as a measure of retaliation. How far the imposition of bodily suffering has a reformative effect upon the offender is a psychological question which is not capable of an easy answer. But, it is generally conceded that for the protection of the public and the prevention of crime, some kind of punishment needs to be inflicted upon the offender.

Sentence a matter of judicial discretion.- The determination of what should be the proper sentence in a particular case has always been left to the court for the very weighty reason that no two cases would ever be alike and the circumstances under which the offence was committed and the moral turpitude attaching to it would be matters within the special knowledge of the court which has tried the case. There can be no rule of general application laying down a specific quantum of punishment that should be inflicted in the case of a particular offence. A sound judicial discretion on the part of the trial judge in awarding punishment can alone distinguish between case and case and fit the punishment to the crime in each individual case.

13. Legislation prescribing minimum sentences: recent trends.-

Of late, an increasing tendency has been shown by the legislature towards prescribing a minimum sentence in the case of some offences. The principal reason underlying this change appears to be a feeling that courts seldom award sentences which would have a deterrent effect, particularly, in certain types of offences which are necessary to be dealt with sternly in the interests of society. If, therefore, it is argued, a minimum sentence were to be prescribed for certain offences or classes of offences, the award of the really needed deterrent punishment would be assured in these cases.

Its value.- The theory that the more severe the punishment the greater the deterrent effect is itself a matter of controversy. It has not been ascertained whether there has been a fall in the commission of those offences where an enhanced penalty has been assured by prescribing minimum sentences. In dealing with the deterrent effect of really severe sentences, Puttkammer observes:-

"If we are hopeful of the curative effects of a threat, we have to make the threat unpleasant, which is another way of saying that we have to be severe. But we tend to lose sight of a factor which is at the very least as important as severity and which is probably more)important. That factor is certainty of punishment1."

1. Administration of Criminal Law, pp. 16 and 17.

He proceeds to point out:

"A survey made in Illinois disclosed that in a given type of felony only one of every twenty-six ever resulted in any body's being tried. By no means all of those who were tried were convicted, but only one in every twenty-six was ever brought even to the trial stage. If, then, one puts one's self into the position of someone who is coldly calculating whether to commit the crime or not, as the deterrence advocates believe one does coldly calculate, he is going to figure out not only what he stands a chance to get but also how big the chance is that he is going to get that. And, if there is only one chance in twenty-six against him, he will probably not be worried too much, no matter how bad the fate for that twenty-sixth chance may be."1

1. Administration of Criminal Law, p. 17.

He concludes:

"Deterrence will really be tested only if we can so far increase the efficiency of our machinery as to produce, if not absolute certainty of punishment, at any rate, a high degree of certainty, by improving our police forces, by improving our judicial machinery, by improving our jury system, by improving the whole line of procedure. And, in analysing how far such an improvement is possible, we should never forget that to some extent at least severity and certainty tend to be mutually exclusive-not absolutely mutually exclusive, but that they tend so to be-because the more severe punishment is the greater the precautions that have to be taken to make sure, that an innocent person does not undergo that punishment."1

1. Ibid., pp. 17 and 18.

It thus seems to be a matter of doubt whether fixing a minimum term of imprisonment, which is only another way of saying that the punishment be made more severe, will have the effect of reducing the incidence of particular kinds of crime.

14. Comparative rarity of such provisions.-

In the entire body of the Indian Penal Code there are only a few sections which prescribe a minimum penalty. Section 121 prescribes death or imprisonment for life. Section 302 provides for the punishment of imprisonment for life or death. Under section 303, where a person who is under a sentence of imprisonment for life commits murder, he shall be punished with death. There is no alternative punishment prescribed for such a case. Under section 397, a minimum sentence of seven years has been provided in the case of a person who uses a deadly weapon and causes grievous hurt to any person at the time of committing robbery. Under section 398, if a person, attempting to commit robbery or dacoity is armed with a deadly weapon, he shall be punished with not less than seven years' imprisonment.

Recent Legislation.- But, during recent years, several enactments have been passed by the State Legislatures, or Parliament providing for minimum sentences. It is true that in some of these enactments the discretion of the court has not been, completely fettered. Though the section provides for a minimum sentence, the court has been given the liberty, for sufficient reasons to be recorded, to award a lower sentence. For instance, in the Prevention of Food Adulteration Act, 1954 (XXXVII of 1954), in respect of certain specified offences, the law provides that the convicted person shall be punishable?

(i) for the first offence, with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees or with both;

(ii) for a second offence with imprisonment for a term which may extend to two years and with fine: provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such sentence shall not be less than one year and such fine shall not be less than two thousand rupees;

(iii)for a third and subsequent offences with imprisonment for a term which may extend to four years and with fine: provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees. (Section 16).

Analogous provisions exist in the Bombay Prohibition Act, 1949. It is also to be noted that in that Act, it is mandatory that both imprisonment and fine should be imposed on conviction whether for the first or the subsequent offence.

Recently, section 5 of the Prevention of Corruption Act, 1947, has been amended by the Criminal Law (Amendment) Act (II of 1958), by providing for a minimum term of imprisonment of one year for any public servant convicted of criminal misconduct in the discharge of his duty. The maximum punishment prescribed is seven years. There is a proviso to the effect, that the court may, for special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year. During the discussion in Parliament, it was stated, that the tendency on the part of judges to impose inadequate sentences had made it necessary to amend the law in this respect. Though figures relating to the number of prosecutions and convictions of public servants under the Prevention of Corruption Act were given, the number of instances in which the sentences awarded was considered to be low, was not indicated.

The Suppression of Immoral Traffic in Women and Girls Act (CIV of 1956) is an instance where even the limited discretion of the court, available under the Acts referred to, has been taken away from the court. An offence under section 3(1) of this Act, for keeping a brothel or allowing premises to be used as a brothel, "shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees".

Similarly, an offence under section 5(1) viz. the procuring, inducing or taking a woman or a girl for the sake of prostitution "shall be punishable with rigorous imprisonment for a term not less than one year and not more than two years and also with fine which may extend to two thousand rupees. In the event of a second or subsequent conviction for an offence under this section, a person shall be punishable with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees".

15. Proper in special cases.-

We are aware that desperate ills such as these and other enactments of a like nature are intended to cure, call for desperate remedies and that the punishments prescribed and imposed should be such as to have a deterrent effect on others likely to engage themselves in such anti-social and infamous activities. We, therefore, entirely approve of the provisions requiring imposition of a minimum sentence in enactments designed to prevent anti-social acts and intended to further social advancement.

Generally not advisable (Proper remedy).- However, the placing of restrictions on judicial discretion in the matter of the award of a sentence is, on principle, to be deprecated as a general practice. If the law provides for enhanced sentences for a second or subsequent offence, only prescribing an upper limit, the duty will be cast on the courts to consider judicially the need for a heavier penalty in any particular case. As already stated, the court would be best able to judge the adequacy of the punishment in each case.

If, in the opinion of the State, an adequate sentence has not been imposed (or as required under some Acts, special and adequate reasons for awarding lesser sentence have not been given by the courts), provisions exist in the Code for invoking the powers of the High Court for enhancement of the sentence and they should be resorted to. Instances might have occurred occasionally where judges have failed to award sentences proportionate to the gravity of the offences. This cannot, however, warrant the assumption that the judiciary as a whole has failed to award adequate sentences or overlooked the need for passing deterrent sentences in appropriate cases.

16. Objections as to misjoinder of charges.-

We propose to deal with two types of objections in regard to criminal trial, namely, a failure to observe the rules laid down by the Code in regard to joinder of the charges, and a failure to obtain sanction prior to the institution of a prosecution in cases where law requires such sanction.

Present position.- The general principle that a failure to observe the provisions of the Code in regard to joinder of charges will not necessarily result in making the proceedings void has been laid down therein. Such a failure will have that consequence only if it has occasioned a failure of justice. The position has recently been clarified by the amendment of section 537 by Act XXVI of 1955 which has made it clear that any error, omission or irregularity in the charge, including any misjoinder of charges, shall not lead to a finding, sentence or order being reversed or altered unless such error, omission or irregularity has in fact occasioned a failure of justice.

It was suggested that the recent amendment which has placed an irregularity in the charge on the same footing as other irregularities mentioned in section 537 of the Code of Criminal Procedure did not go far enough and that a general rule should be laid down to prevent questions as to error, omission or irregularity in the charge being raised at any stage of the proceeding except in the courts of the first instance. It was said that in a majority of cases an accused person becomes aware of the defect in the charge during the trial but chooses not to put forward such an objection in the trial court on the calculation that in the event of a conviction such an objection may help him in the court of appeal or revision.

Such a manner of dealing with the court is undoubtedly most unfair and amounts to taking liberties with the court. It is said that in many cases the objection in regard to the irregularity in the framing of the charge is now raised sometimes for the first time in the Supreme Court. It may be that those advising the accused in the trial court have failed to apply their minds to the question at the initial stage or may be that those advising him in the court of appeal have thought of the alleged irregularity in the trial in an attempt to obtain a setting aside of the conviction on technical grounds. There is no doubt that in many cases considerable delays are sometimes occasioned by a retrial being ordered, and that sometimes the accused person is acquitted on these points being raised in the higher courts.

It has, therefore, been suggested that once the trial stage has been closed, no points as to any irregularity in joinder of charges should be allowed to be raised in any superior court. We think that the proposal is very drastic. The test in all criminal cases regulating an interference by a superior court must be that laid down in section 537. If a disregard of the contravention of the provisions of the law causes a failure of justice, it is manifestly unfair that merely because the point was not taken by those who advised the accused at an earlier stage he should be deprived of the opportunity of raising it and denied the relief to which he is entitled when the trial has in fact not been a fair and just one.

In the framing of the charge, the initial responsibility rests upon the court. The law lays down the circumstances under which there can be a joinder of charges and the court is expected to see that the charges are not joined in a manner which will handicap the accused in defending himself.

17. Duty of the court.-

We have already referred to the provisions in the Criminal Procedure Code which limit the extent to which a misjoinder can lead to a reversal of the order of the trial court. Only cases which have led to a failure of justice invite interference by the superior court. It does not, therefore, appear to be necessary to have a special provision whereby the duty to take an objection as to joinder of charges at the earliest opportunity is cast upon the accused person. Even if an objection is not taken by a convicted person in appeal, it would be the duty of the appellate court to examine whether a failure of justice has been occasioned by reason of misjoinder of charges. If the appellate court comes to an affirmative conclusion, it will be its further duty to interfere with the finding of the trial court.

Change unnecessary.- We do not, therefore, think that it would be desirable to cast a burden upon the accused to raise this objection at the trial stage. We are of the view that the existing provisions are more consonant with the rules which should normally govern the administration of justice.

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