Report No. 47

7.41. Applications for enhancement not frequent.-

From the paucity of reported cases as to enhancement, it would appear that applications for enhancement are not frequent. It may be noted that the Law Commission has, in its Report1 on the Criminal Procedure Code recommended a provision for an appeal at the instance of the State Government (in case of conviction) on the ground of inadequacy of sentence. One would hope that the prosecuting agencies and the State Governments will make increasing use of this provision when enacted.

1. 41st Report, Vol. 2.

7.42. Public welfare prime consideration.-

The prime consideration in proper sentencing is the public welfare. Two major problems that face the sentencing Judge are-

(a) to what extent and for what time does the community welfare require protection from the offender with respect to the offence; and

(b) what sentence will permit the offender to take his place in society as a useful citizen at the earliest time consistent with protection of the public.

7.43. Protection of the community requires incarceration.-

The protection of the community from confirmed and habitual criminal not reasonably suspectable or rehabilitation as useful citizens requires the incarceration of such offenders for maximum periods. The protection of the community also requires that, to the extent agiven sentence may be expected to serve as an effective deterrent to the commission of similar offences by others, this element should be given great weight in the determination of the proper sentence. The public welfare also require, in general, the maximum use of probation and institutionalised training in respect to offenders who are not confirmed criminals and who manifest a capacity for probable return to the community as useful citizens. The sentencing judge must, therefore, determine the proportionate worth, value and requirements of each of these elements in imposing a sentence in each case.

7.44. Proper sentence a compromise.-

A proper sentence is a composite of many factors, including the nature of the offence, the circumstances-extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of a return of the offender to a normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need, if any, for such a deterrent in respect to the particular type of offence involved.

7.45. Factors variable and unpredictable.-

The variables in each case, including the accused prior criminal record, his background and the condition of his health, the prospect of rehabilitation and many other factors are unpredictable, and it is for this reason that a discretion should preferably vest with the judicial officer.

7.46. Mathematical identity not desirable.-

Sentences which are merely mathematically identical for violations of the same statute are improper, unfair and undesirable. Indeed, mathematically identical sentences may in substance be themselves disparate.

7.47. Discretion to be retained.-

For these reasons, we do not think that the discretion of the court to award a sentence below the minimum should be totally abolished. In fact, even some of the officers concerned with enforcement of the Acts agreed that it was impossible to conceive of every possible situation which might operate in mitigation.

7.48. Recommendation to exclude certain grounds of mitigation.-

At the same time, and notwithstanding our hesitation to introduce provision as limiting the discretion of the court to award a punishment below the minimum, we are constrained to recommend provisions as to certain specific matters, having regard to the general complaint voiced in that regard. It has been represented to us, during the oral discussions which we have held with responsible officers, that a very mild punishment is awarded by the courts on the ground that

(1) the case is one of first conviction, or

(2) that the matter has been already dealt with by severe departmental penalty, or

(3) that the convicted person is a young man of, say, twenty-five years, or

(4) that the offender is merely a carrier.

7.49. We are of the view that, by themselves whether singly or together, none of these grounds should be regarded as sufficient for awarding a punishment below the minimum. The first ground1, namely, that the case is one of first conviction, turns out to be unsatisfactory in the case of social and economic offences, because what has been detected and brought before the court is, more often than not, a surface manifestation of a poisonous spring of habitual misconduct running underground. Detection is particularly difficult in the case of social and economic offences. Gathering of information leading to prosecution is equally difficult, and conviction in much more so. Whatever may be the position as regards conventional crimes, the odds here are that it was by sheer luck and the offender has ewaped detection for other crimes.

1. Para. 7.48, supra.

7.50. As regards the second ground prior award of departmental penalties,-which is sometimes regarded as sufficient in itself to justify a mild punishment in the criminal trial, we wish to point out that the very object of a criminal prosecution is to invoke punishments which could not have been imposed in administrative adjudication. No doubt, successive imposition of administrative penalties and criminal prosecutions may be found to be unnecessary in many cases, and could even be avoided to prevent hardship. But these matters would be taken note of by the appropriate agency when initiating or sanctioning a prosecution. They should not weigh with the court in awarding punishment.

7.51. The next ground of mitigation which requires to be dealt with is that of youth of the offender. We have been told that courts have regarded this as a mitigating factor even where the accused was aged 25 years or so. We are of the view that this ought not to be so. No doubt, where a case falls within the Probation of Offenders Act, 1958, the provisions of that Act are to be complied with.1 But, in cases outside the Act, there is justification for treating the young of the convicted person as in itself justifying a punishment below the minimum.

1. The question whether probation itself should be excluded is dealt with separately

7.51. We are also of the view that the minimum punishment should not be relaxed merely on the ground that the offender is merely a 'carrier.' Such a plea is often taken, and succeeds in cases under the Customs Act and the like. While it could be argued in general that a person whose contribution to an offence is as an originator of the offence should receive a higher punishment than a person who is a mere go-between, practical considerations as well as the special nature of the offences in question, require that even he should be given a substantial punishment.

7.52. There is another aspect to be discussed. Criminal responsibility attracts "measures" to meet it. If the punishable act has caused no harmful effects, punishment may be mild. If it has caused some harm but the offender can repair the damage done to society, probation would be appropriate. If the harm is serious, imprisonment, would, of course, be required. These considerations are implicit in most codes, and are stated explicitly in some of the foreign Codes1. In the present context, it becomes desirable to provide that if the harm is nominal, the provision for minimum punishment should not be binding.

1. E.g. Articles 25, 28, 33, 38 etc. of the GDR Penal Code.

7.53. In the light of the above discussion, we recommend the insertion of suitable Explanations on the following lines in the relevant provision in the various Acts:

"Explanation.1-The following are not, by themselves, special and adequate reasons for awarding a sentence of imprisonment for less than six months, namely,-

(a) the fact that the accused has been a convicted for the first time of an offence under this Act, or

(b) the fact that in proceedings under this Act other than a prosecution, the accused has been ordered to pay a penalty or his goods have been ordered to the confiscated or other penal action has been taken against him for the same offence, or

(c) youth of the accused:

Provided that nothing in this Explanation shall be construed as affecting in any way the provisions of the Probation of Offenders Act, 1958, or of section 562 of the Code of Criminal Procedure or of any enactment relating to children or any special provision of law applicable to juvenile offenders.

Explanation 2.-The fact that the offence has caused no substantial harm to society or to any individual is a special and adequate reason for awarding a sentence of imprisonment less than six months."

1. This form is suitable for a provision worded like section 135, Proviso (1), Customs Act. The form may require change in other cases.