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Analysis of Criminal Jurisprudence

It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.

Satyameva Jayate (Literally: "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem.

The meaning of full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides."

In the unfortunate litigation, the Court's serious Endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth.

That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him.

He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

The pre-eminence of truth is the guiding star in a judicial process forming the foundation of justice, had been aptly propounded by Supreme Court of India . It was ruled that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same.

Emphasizing that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest.
  • Ritesh Tewari v. State of U.P. [Ritesh Tewari v. State of U.P., (2010) 10 SCC 677,
  • Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2 QB 55
  • Maria Margarida case [Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370
  • Pooja Pal v. Union of India and others, (2016) 3 SCC 135

Introduction:
Sole motive of every investigation and trial is not only to administer and secure the ends of justice but also to find out the truth, as the real justice can be imparted only after arriving at the truth, which can be achieved only by Fair, Just and proper investigation, which is essence of fair trial. Investigation is the structure on which the trial is based. Fair and proper investigation is an attribute of Article 21 of the Constitution of India The expression "fair and proper investigation" in criminal jurisprudence Connotes to encompass two imperatives:
  1. firstly, the investigation must be unbiased, honest, just and in accordance with law; and
  2. secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.
Unfortunate part is when the investigating agency starts playing the role of either the complainant or the accused and in that way, truth is left behind, which leads to faulty & biased investigation.

From the data with regard to presentation of final report either by way of cancellation report or by way of putting the report against the accused under section 173 Code of Criminal Procedure, the ratio of finding the guilt of accused by the courts is very low and similarly, as regards the cancellation reports, the courts on the protest petition filed by the complainant in many cases have exercised the jurisdiction to order further investigation or treating the protest petition as complaint under section 190 Cr. P.C, which ultimately have lead to conviction of the accused.

This all leads to the conclusion that the investigation did not reveal the truth & thus the basic canons of Criminal Jurisprudence were not followed. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused.

The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth.

In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair.

In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality.

It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
  • Babubhai v. State of Gujarat, (2010) 12 SCC 254
  • Vinay Tyagi v. Irshad Ali , (2013) 5 SCC 762
  • Vinubhai Haribhai Malaviya and others v. State of Gujarat and another ,(2019) 17 SCC 1,
  • Kali Ram v. State of Himachal Pradesh, AIR 1973 Supreme Court 2773

Accountability and responsibility are the two factors, which are generally missing in the investigating agencies, which lead to flow of litigation in the courts. Criminal trials are flooded like anything in the courts. Any Criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibility and committedly, always accountable to the law-abiding citizenry for any lapse.

There is indeed a need to protect society from criminals. The society intent in safety will suffer if persons who commit crime are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. State of Punjab v. Baldeo Singh, 1999(39) ACC 349)

Presumption of Innocence:

It is well settled Law that according to the Indian Criminal Jurisprudence every person accused of an offence is presumed to be innocent till he is proved guilty beyond a Reasonable doubt. The onus, therefore, is heavily on the prosecution to prove and establish the offence against the person beyond a reasonable doubt and that the burden never shifts on to the accused to disprove the charge framed against him. In the event of a doubt, the benefit thereof is to be given to the accused.

Besides, if from the evidence coming on record two views are possible, then the one favourable to the accused has to be accepted. However Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes Inder Singh and another v. State (Delhi Administration), AIR 1978 Supreme Court 1091,)

Maxim:
" let hundred guilty persons be acquitted, but not a single innocent be convicted". "Falsus in uno falsus in omnibus"

The maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing world over and courts have been compelled to accept that "Society suffers by wrong convictions and it equally suffers by wrong acquittals. The courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth.

So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free.

If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.
  • Mohan Singh and anr. v. State of M.P, (1999)1 Supreme Court Reports 276,
  • Krishna Mochi v. State of Bihar, (SC), 2002 SCC(Cri) 1220, AIR 2009 SC 1344
  • Munna @ Pooran Yadav v. State of Madhya Pradesh , (SC)

The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution.
  • Jakki @ Selvaraj v. State Rep. by the IP, Coimbatore, (SC), 2007(9) SCC 589,
  • C.S.D. Swami v. State, (SC),AIR 1960 SC 7
 

Locus of Complainant:

It is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enact or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court.

Even for the most serious offence of murder, a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision.

Numerous statutory provisions, can be referred to in support of this legal position under as:
  1. Section 187A of Sea Customs Act, 1878,
  2. Section 97 of Gold Control Act, 1968,
  3. Section 6 of Imports and Exports Control Act, 1947,
  4. Section 271 and Section 279 of the Income Tax Act, 1961,
  5. Section 61 of the Foreign Exchange Regulation Act, 1973,
  6. Section 621 of the Companies Act, 1956 and
  7. Section 77 of the Electricity (Supply) Act.

This list is only illustrative and not exhaustive. While Section 190 of the Criminal Procedure Code permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Criminal Procedure Code.

These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See section 2(n), Criminal Procedure Code, 1973) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society.

The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or, omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary.

Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.

To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision.

The scheme underlying Criminal Procedure Code clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence.

Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is 'competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to Court.

Chapter XII of the Criminal Procedure Code, 1973 bears the heading 'Information to the police and their powers to investigate' Section 154 provides for information to police in cognizable cases. It casts a duty on the officer in charge, of a police station to reduce to writing every relating to commission of a cognizable offence given to him and the same will be read over to the informant and the same shall be signed by the informant and a copy thereof shall be given to him.

If information given to an officer in charge of a Police Station disclosed a non-cognizable offence, he has to enter the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and to refer the informant to the Magistrate (Section 155(1).) Sub-section (2) puts an embargo on the power of the police officer-in-charge of police station to investigate a non-cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial. Section 156 sets out the powers of the officer in charge of police station to investigate cognizable cases.

Sub-section (2) of Section 156 may be noticed. It says that 'no proceeding of a Police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under the section to investigate.' Sub-section (3) confers power on the Magistrate empowered under Section 190 to take cognizance of an offence, to order an investigation as set out in sub-sections (1) and (2) of Section 156.

Section 167 enables the Magistrate to remand the accused to police custody in the circumstances therein mentioned; Section 173 provides that 'every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, setting out various things enumerated in the section. Sub-section (8) of Section 173 provides that despite submission of the report on completion of the investigation, further investigation can be conducted in respect of the same offence and further evidence so collected has to be forwarded to the same Magistrate.

The report of this further investigation shall by and large conform with the requirements of sub-sections (2) to (6). Fasciculus of sections in Chapter XIV prescribed conditions requisite for initiation of proceedings Section 190 provides that subject to the provisions of the Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence:
  1. Upon receiving a complaint of facts which constitute such offence;
  2. Upon a police report of such facts, and
  3. Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed Section 191 obliges the Magistrate when he takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190, to inform the accused when he appears before him, that he is entitled to have the case inquired into or tried by another Magistrate. Section 193 provides that 'except as otherwise expressly provided in the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.'

Cognizable offence has been defined in Section 2(c) of the Criminal Procedure Code to mean 'an offence' for which, and "cognizable case" means a case in which, a police officer may in accordance with the First Schedule or under any law for the time being in force, arrest without warrant'. Complaint is defined in Section 2(d) to mean 'any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report.' There is an explanation appended to the section which has some relevance.

'A report made by a police officer in a case which disclosed, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be complainant.' Section 2(e) defines 'non-cognizable offence' to mean 'an offence for which' and "non-cognizable" case means a case in which, a police officer, has no authority to arrest without warrant'.

Police report is defined in Section 2(r) to mean 'a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.' officer-in-charge of a police station' has been defined in Section 2(o) to include any police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.

In other words, a Head-constable of Police that is one step higher from a constable can be in charge of a police station., A.R. Antulay v. Ramdas Sriniwas Nayak (Larger Bench), AIR 1984 SC 718

Fair Trial

A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution of India, would be a hollow promise if the investigation in a case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity.

The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. Mohan Lal v. State of Punjab (SC), AIR 2018 SC 3853

Sterling worth: a witness worthy of credence

'Sterling worth' is not an expression of absolute rigidity. The use of such an expression in the context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable and truthful. This has to be gathered from the entire statement of the witnesses and the demeanor of the witnesses, if any, noticed by the Court. Linguistically, 'sterling worth' means 'thoroughly excellent' or 'of great value'.

This term, in the context of criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any falsehood. Kuria v. State of Rajasthan (SC), AIR 2013 SC(Crl) 162

Voice:

Every individual has a distinctive style of speaking which makes identification by those acquainted possible. Identification of a known person by voice in the darkness has been well recognized in criminal jurisprudence. Even if a person tries to camouflage his voice in one call, given the limitations of human nature there will be a tendency to state certain words or sentences in an inimitable style exposing the identity. AIR 2019 SC 3524, Sanjay Rajak v. State of Bihar (SC)

Suspicion

Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be? proved and 'will be proved?. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be? and 'must be? is quite large and divides vague conjectures from sure conclusions.

In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be? true and 'must be? true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be? true and 'must be? true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record.

The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
  • Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan (SC), AIR 2013 SC 3150;
  • Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 Supreme Court 343;
  • Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, AIR 1973 Supreme Court 2622;
  • Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622;
  • Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702;
  • Ashish Batham v. State of M.P., AIR 2002 Supreme Court 3206;
  • Narendra Singh & Anr. v. State of M.P., AIR 2004 Supreme Court 3249;
  • State through CBI v. Mahender Singh Dahiya, AIR 2011 Supreme Court 1017; and
  • Ramesh Harijan v. State of U.P., AIR 2012 Supreme Court 1979)

Standard of Proof

Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.

Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused.

However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.
  • Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622
  • Babu v. State of Kerala, (2010) 9 SCC 189
  • C.S.D. Swami v. State, (SC), AIR 1960 SC 7

Private Defence

The following principles emerge on scrutiny of the judgments:
  1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
  2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
  3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
  4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
  5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
  6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
  7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
  8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.
  9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
  10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

Failure of Justice

The superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non-explanation of it has contributed to penalizing an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was failure of justice on account of non compliance with the principles of natural justice. The expression failure of justice is an extremely pliable or facile an expression which can be made to fit into any situation of a case.

The court must Endeavour to find the truth. There would be failure of justice not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under Indian Criminal Jurisprudence.

Prejudice, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court.
  • Bhimanna v. State of Karnataka (SC), AIR 2012 SC 3026,
  • Shamnsaheb M. Multtani v. State of Karnataka, 2001(1) RCR (Criminal) 617

Bail

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences.

Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. Dataram Singh v. State of Uttar Pradesh, (SC), AIR 2018 SC 980

Sentence

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.

The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment.

Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

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 the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
  • Sevaka Perumal etc. v. State of Tamil Naidu, (AIR 1991 Supreme Court 1463),
  • Bikram Dorjee v. State of West Bengal, (SC), AIR 2009 SC 2539

Death Penalty

Death penalty jurisprudence in India has been widely debated and differently perceived. The essential principles in this sphere of jurisprudence has been laid down by two Constitution Benches of Supreme Court of India in which dealt with the law after deletion of Section 367(5) of the old Code but prior to the enactment of Section 354(3) of the present Code). Subsequent opinions on the subject indicate attempts to elaborate the principles of law laid down in the aforesaid two decisions and to discern an objective basis to guide sentencing decisions so as to ensure that the same do not become judge centric.
  1. Life imprisonment is the rule and death penalty is the exception.
  2.  Death sentence must be imposed only in the gravest cases of extreme culpability, namely, in the "rarest of rare" where the alternative option of life imprisonment is "unquestionably foreclosed
  3. The sentence is a matter of judicial discretion to be exercised by giving due consideration to the circumstances of the crime as well as the offender.
    2014(4) SCC 292, Mahesh Dhanaji Shinde v. State of Maharashtra (SC), Jagmohan Singh v. The State of U.P., 1973 (1) SCC 206

Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs.,: 2012(2) RCR (Civil) 441 :

A timely reminder of that solemn duty was given, in the following words:
"What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice."

The Criminal Jurisprudence is the backbone of Criminal Investigations & trials, however, the same is not being followed at times, resulting into failure of justice. Time has come that the legislature, investigating agencies are courts are reminded of their solemn duty to establish the truth, so that neither the complainant nor the accused dare to take law in his hands.

Written By: Rajinder Goyal, Advocate - Former Addl. Advocate General, Punjab
Punjab & Haryana High Court, Office:S.C.ONo.19 (2nd Floor),Sector10-,Chandigarh
Email: [email protected], ph:+91 9814033663

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