SUNITA DEVI versus THE STATE OF BIHAR & ANR
[2024] 5 S.C.R. 629, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Facts
* Author
[2024] 5 S.C.R. 629 : 2024 INSC 448
Sunita Devi 
v. 
The State of Bihar & Anr.
(Criminal Appeal No. 3924 of 2023)
17 May 2024
[M.M. Sundresh* and S.V.N. Bhatti, JJ.]
Issue for Consideration
Need for a comprehensive sentencing policy. Trial against the 
accused under Protection of Children from Sexual Offences Act, 
2012 was conducted by the judicial officer in utmost haste and the 
accused was denied due opportunity to defend himself. Conviction 
and death sentence awarded was set aside by the High Court and 
a de novo trial was ordered, making certain observations against 
the Special Judge. Criminal Appeal Nos.3925-3927 of 2023 filed 
by the judicial officer. Criminal Appeal No.3924 of 2023 filed by the 
informant against the order of remittal for de novo trial. On facts, 
in Criminal Appeal No.3925 of 2023, the trial had commenced and 
concluded in a single day wherein the aforesaid judicial officer 
rendered a similar conviction however, the accused was sentenced 
to life imprisonment. 
Headnotes†
Sentencing – Lack of policy/legislation – Disparities in 
awarding sentence – Need for sentencing policy – Constitution 
of India – Articles 14, 21:
Held: Hearing the accused on sentence is a valuable right conferred 
on the accused – The real importance lies only with the sentence, 
as against the conviction – Unfortunately, there is no clear policy 
or legislation when it comes to sentencing – Over the years, it has 
become judge-centric and there are admitted
disparities in awarding 
a sentence – When it comes to sentencing, there are various 
factors such as age, sex, education, home life, social background, 
emotional and mental conditions, caste, religion and community that 
constitute aggravating and mitigating circumstances – A decision of 
a Judge in sentencing, would vary from person to person and also 
from stage to stage – It is controlled by the mind – The environment 
and the upbringing of a Judge would become the ultimate arbiter 
in deciding the sentence – A Judge from an affluent background
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might have a different mindset as against a Judge from a humble 
one – A female Judge might look at it differently, when compared 
to her male counterpart – An Appellate Court might tinker with 
the sentence due to its experience, and the external factors like 
institutional constraints might come into play – There is a crying need 
for a clear sentencing policy, which should never be judge-centric 
as the society has to know the basis of a sentence – Sentencing 
shall not be a mere lottery – It shall also not be an outcome of a 
knee-jerk reaction – This is a very important part of the Fundamental 
Rights conferred under Articles 14 and 21 – Various elements such 
as deterrence, incapacitation and reformation should form part 
of sentencing – The need for adequate guidelines for exercising 
sentencing discretion, avoiding unwanted disparity, is of utmost 
importance – Courts do take into consideration the mitigating and 
aggravating circumstances – However, no research has been 
undertaken for constituting what are aggravating and mitigating 
circumstances – Suggestions made – Department of Justice, Ministry 
of Law and Justice, Government of India to consider introducing 
a comprehensive policy, possibly by way of getting an appropriate 
report from a duly constituted Sentencing Commission consisting 
of experts in different fields for the purpose of having a distinct 
sentencing policy – Government of India to file an
affidavit on the 
feasibility of introducing a comprehensive sentencing policy and a 
report thereon, within six months. [Paras 29, 30, 32-36, 37, 40, 58]
Administration of Criminal Justice – Denial of due opportunity 
to defend and hearing – Trial against the accused under 
POCSO Act was conducted by appellant-judicial officer in 
utmost haste – At every stage, the accused was denied due 
opportunity to defend himself – High Court set aside the 
conviction and the death sentence and a de novo trial was 
ordered – In Criminal Appeal No.3925 of 2023 filed by the very 
same judicial officer, a similar conviction was rendered in the 
trial which was concluded in a single day and the accused 
was sentenced to life imprisonment:
Held: High Court while passing both the impugned judgments not 
only called for the records and rendered findings of fact, but also 
considered them in detail – At every stage, the accused was denied 
due opportunity to defend himself – The appellant was acting in 
utmost haste – It would be humanly impossible to deliver the judgment 
within half an hour’s time running into 27 pages consisting of 59 
paragraphs in the first case and similarly in the other – At every
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stage, including framing of charges, there was a constant denial 
of due opportunity and hearing – Accused was not able to consult 
his lawyer – He was not even served with the copies, though his 
lawyer received the same before framing of the charges – Receiving 
of documents by his lawyer would not be sufficient compliance, 
unless there was sufficient time given for him to peruse them and 
thereafter have a consultation – Admittedly, neither the provisions of 
the Witness Protection Scheme, 2018 were invoked nor the Rules 
for Video Conferencing for Courts, 2020 were followed – Further, 
the appellant was fortunate that no action was taken against him 
thus, in the absence of any proposed action, there is no question of 
hearing him – Trial court to keep in mind the mandate of POCSO 
Act, 2012 while recording the evidence of the victim and to conduct 
and complete the trial expeditiously. [Paras 32, 55, 56, 58]
Code of Criminal Procedure, 1973 – s.360 – Probation of 
Offenders Act, 1958 – ss.3, 4, 6:
Held: Section 360 speaks of releasing a convict on probation of 
good conduct or after admonition – Before passing the sentence 
on a convict, after rendering conviction, the Judge shall consider 
the feasibility of proceeding in accordance with this provision – 
Being a beneficial provision dealing with a reformative aspect, 
it is the bounden duty of the Judge to consider the application 
of this provision
before proceeding to hear the accused on 
sentence – While doing so, the Judge has to hear the accused 
and the prosecution – Similarly, the Court has to apply the salient 
provisions contained under Sections 3, 4 and 6 of the Probation 
of Offenders Act, 1958 – A trial court is duty bound to comply with 
the mandate of Section 360 of the CrPC, 1973 read with Sections 
3, 4 and 6 of the Act, 1958 before embarking into the question of 
sentence. [Para 28]
Administration of Justice – Administration of Criminal Justice – 
Conduct of a fair trial – Constitution of India – Articles 14, 
21 – Absence of a fair trial violates fundamental rights:
Held: A fair trial would include due compliance of the procedure 
with adequate opportunities for all the stakeholders – Such 
procedural safeguards and compliance are to be kept in mind by 
the Court, as any deviation might either impact the prosecution 
or the defence in a given case – A fair trial is the heart and soul 
of criminal jurisprudence – It is not only a statutory right, but also 
a human right, which would be violated when the safeguards
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provided under the Statute are not followed – The absence of a 
fair trial would seriously impair and violate the fundamental rights 
guaranteed under Articles 14 and 21 – The right to fair hearing is 
a part of Article 21 – A trial should be a real one and, therefore, 
not a mere pretence – There shall never be an impression over 
the decision of a Court that it has predetermined and pre-judged a 
case even before starting a trial, or else, such a trial would become 
an empty formality – Principle of presumption of innocence and 
concept of speedy trial, discussed. [Paras 7, 9, 10]
Code of Criminal Procedure, 1973 – ss.238, 207:
Held: Section 238 mandates that while dealing with a warrant case 
instituted on a police report, the Magistrate shall satisfy himself that 
he has complied with the provisions of Section 207 – In all these 
cases, due compliance is to be done when the accused is produced 
or appears before the Magistrate – Therefore, Section 238 reiterates 
the bounden duty of a Magistrate and, if not done, to be complied with 
at the time of commencement of the trial – Such a reiteration would 
only reinforce a renewed emphasis on due compliance being a facet 
of fair play – An accused shall be put to notice on the incriminating 
materials leading to the charges framed against him – The obligation 
so imposed is not only on the supply of the relevant documents, 
but such compliance should be at the appropriate
stage so that it 
does not brook any delay – The idea is to enable an accused to 
face the trial by thoroughly understanding the case stated against 
him – However, a mere non-supply of a part of the documents would 
not lead to the trial being vitiated, unless an accused substantiates 
before the Court that it has caused prejudice to him – It is ultimately 
for the Court to come to an appropriate conclusion by an adequate 
assessment of facts placed before it. [Para 16]
Code of Criminal Procedure, 1973 – s.465 – Rigour of, when 
not applicable:
Held: If the Appellate Court is of the view that there is a continued 
non-compliance of the substantial provisions of the CrPC, 1973 
then the rigour of Section 465 of the CrPC, 1973 would not apply 
and, in that case, an order of remand would be justified – This 
provision is meant to uphold the decision of the trial court, even 
in a case where there is an apparent irregularity in procedure – If 
the evidence available has been duly taken note of by the Court, 
then such a decision cannot be reversed on account of a mere 
technical error – This is based on the principle that a procedural
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law is the handmaid of justice – However, the ultimate issue is as 
to whether such an error or omission has constituted a failure of 
justice, which is one of fact, to be decided on the touchstone of 
prejudice. [Para 25]
Code of Criminal Procedure, 1973 – ss.227, 228 – Discharge – 
Framing of charge – Constitution of India – Article 22:
Held: Before the stage of framing of charges, the Judge is expected 
to discharge an accused, if he is of the considered view that there 
is no sufficient ground to proceed against the accused – This being 
a judicial exercise, his discretion must be supported by adequate 
reasons – In discharge of his powers, he has to consider the 
records and documents submitted by the prosecution vis-à -vis the 
arguments adduced by both sides – The words “after hearing the 
submissions of the accused” would imply an effective and meaningful 
hearing – It is not a mere procedural compliance – The duty of 
the Court is to see as to whether the materials produced by the 
prosecution are reasonably related to the offence attributed against 
the accused – What is to be seen is the existence of a prima facie 
case – The case is at a pre-framing stage and therefore, it cannot 
be a full-fledged pre-trial – Adequacy and sufficiency are the relevant 
factors to be seen – The test is one of the degree of probability – 
Section 227 gives effect to Article 22 of the Constitution – The 
right of an
accused to be heard is inalienable – For exercising 
this right, there has to be due consultation – It is the duty of the 
court to ensure that the accused is given sufficient opportunities 
to consult his lawyer – Under sub-section (2) of Section 228 of the 
CrPC, 1973, the Judge, while framing any charge, is ordained to 
read and explain it to the accused – Thereafter, the accused shall 
be asked as to whether he pleads guilty of the offence charged or 
claims to be tried – This is an occasion where the Judge avoids 
the lawyer and keeps in touch with the accused directly – Unless a 
situation so warrants otherwise, the presence of the accused shall 
be ensured. [Paras 18-21]
Code of Criminal Procedure, 1973 – ss.230, 231, 233, 309:
Held: Sections 230, 231 are to be read in consonance with 
each other – At this stage, the Court is concerned only with 
the prosecution’s evidence – To ensure fair play, as a normal 
practice, the Court has to fix a date for the examination of the 
witnesses  – The idea is to complete the examination-in-chief 
and cross examination, both at the same time – While fixing the
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date, the Court is expected to take into consideration the relative 
convenience of the parties, though the discretion lies with it – A 
balance has to be struck between the competing interests – 
Further, when an application is moved invoking Section 233, the 
Judge is duty bound to issue process, unless he is satisfied on 
the existence of the three elements, as stated – Any denial would 
be an affront to the concept of a fair trial – Section 309 places 
emphasis on the continuation of the trial as any obstruction and 
delay would hamper the process of justice – Despite a bar under 
the second and fourth proviso to Section 309, an adjournment 
can be granted, provided the party who seeks so, satisfies the 
court. [Paras 22-24]
Code of Criminal Procedure, 1973 – s.386 – Powers of the 
Appellate Court – Re-trial:
Held: An Appellate Court has got ample power to direct re-trial – 
However, such a power is to be exercised in exceptional cases – 
The irregularities found must be so material that a re-trial is the 
only option. [Para 27]
Sentencing – Sentencing policy – Sentencing policy adopted 
in countries like Israel, Canada, New Zealand and UK – 
Discussed. [Paras 38-40]
Case Law Cited
Mohd. Hussain v. State (Govt. of NCT of Delhi) [2012] 10 SCR 
480 : (2012) 9 SCC 408; State of Haryana v. Ram Mehar [2016] 
5 SCR 172 : (2016) 8 SCC 762; Talab Haji Hussain v. Madhukar 
Purshottam Mondkar [1958] 1 SCR 1226; Naresh Kumar Yadav
v. Ravindra Kumar [2007] 11 SCR 615 : (2008) 1 SCC 632; P. 
Gopalkrishnan v. State of Kerala [2019] 17 SCR 422 : (2020) 9 
SCC 161; Anokhilal v. State of M.P. [2019] 18 SCR 1196 : (2019) 
20 SCC 196; Kewal Krishan v. Suraj Bhan 1980 (Supp.) SCC 
499; Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014) 
3 SCC 92; Sajjan Kumar v. CBI [2010] 11 SCR 669 : (2010) 9 
SCC 368; Mohd. Ajmal Amir Kasab v. State of Maharashtra [2012] 
8 SCR 295 : (2012) 9 SCC 1; State of Kerala v. Rasheed [2018] 
13 SCR 587 : (2019) 13 SCC 297; State of UP v. Shambu Nath 
Singh [2001] 2 SCR 854 : (2001) 4 SCC 667; State of M.P. v. 
Bhooraji [2001] Supp. 2 SCR 128 : (2001) 7 SCC 679; Darbara 
Singh v. State of Punjab [2012] 7 SCR 541 : (2012) 10 SCC 476;
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Sunita Devi v. The State of Bihar & Anr.
Kottayya v. Emperor, AIR (34) 1947 Privy Council 67; Nasib Singh 
v. State of Punjab [2021] 13 SCR 566 : (2022) 2 SCC 89; Manoj v. 
State of M.P. [2023] 11 SCR 246 : (2023) 2 SCC 353; Dhananjoy 
Chatterjee v. State of W.B. [1994] 1 SCR 37 : (1994) 2 SCC 220; 
Swamy Shraddananda (2) v. State of Karnataka [2008] 11 SCR 
93 : (2008) 13 SCC 767; Soman v. State of Kerala [2012] 11 SCR 
1155 : (2013) 11 SCC 382 – referred to.
Munna Pandey v. State of Bihar [2023] 11 SCR 1005 : AIR 2023 
SUPREME COURT 5709; Akil v. State (NCT of Delhi) [2012] 13 
SCR 659 : (2013) 7 SCC 125; Sakshi v. Union of India [2004] 
2 Suppl. SCR 723 : (2004) 5 SCC 518; State of Maharashtra v. 
Mahesh Kariman Tirki (2022) 10 SCC 207; Pradeep S. Wodeyar 
v. State of Karnataka [2021] 11 SCR 985 : (2021) 19 SCC 62 – 
held inapplicable.
Books and Periodicals Cited
“Discretion, Discrimination and the Rule of Law, Reforming 
Sentencing in India”, authored by Mr. Mrinal Satish, published by 
the Cambridge University Press, (2017); 47th Report of the Law 
Commission of India, Report by the Committee on Reforms of 
Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003), Report 
by the Committee on Draft National Policy on Criminal Justice, 
Chaired by Dr. N.R. Madhava Menon – referred to.
List of Acts
Code of Criminal Procedure, 1973; Probation of Offenders Act, 1958; 
Code of Criminal Procedure, 1898; Rules for Video Conferencing 
for Courts,
2020; Witness Protection Scheme, 2018; Criminal 
Code (Canada); Sentencing Act 2002, New Zealand; Coroners 
and Justice Act, 2009 (UK); Sentencing Act 2020 (UK).
List of Keywords
Sentencing; Sentencing policy; Need for sentencing policy; 
Comprehensive sentencing policy; Disparities in awarding sentence; 
Denial of due opportunity to defend; Death sentence; de novo trial; 
Principle of presumption of innocence; Fair trial; Absence of a 
fair trial; Right to fair hearing; Article 21; Speedy trial; Sentencing 
discretion; Aggravating and mitigating circumstances; Lack of policy/
legislation on sentencing; Judge-centric sentencing; Deterrence; 
Incapacitation; Reformation; Sentencing Commission; Examination
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of the witnesses; Witness Protection Scheme; Examination-in-chief; 
Cross examination; prima facie case; Video Conferencing; Pre-
framing stage; Full-fledged pre-trial; Supply of relevant documents; 
Non-compliance of mandatory provisions; Discharge; Framing of 
charge; Effective and meaningful hearing; Right of an accused 
to be heard; Re-trial; Sentencing policy in Israel, Canada, New 
Zealand, UK.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3924 
of 2023
From the Judgment and Order dated 16.08.2022 of the High Court 
of Judicature at Patna in CRADB No. 203 of 2022
With
Criminal Appeal Nos. 3926-3927 and 3925 of 2023
Appearances for Parties
Vikas Singh, Sr. Adv., Ms. Deepeika Kalia, Satwik Misra, Ms. Gunjan 
Dogra, Ms. Devashree, Keshav Khandelwal, Ms. Vasudha Singh, 
Ms. Udita Singh, Mrityunjai Singh, Advs. for the Appellant.
Chander Uday Singh, Sr. Adv., Gautam Narayan, Ms. Asmita Singh, 
Harshit Goel, Samir Ali Khan, Pranjal Sharma, Abhimanyu Jhamba, 
Nishesh Sharma, Ms. Prerna Singh , Anil Kumar, Sidharth Sarthi, 
Shantanu Sagar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1.	
Criminal Appeal No.3924 of 2023 has been filed by the informant, 
against the order of remittal passed by the Division Bench of the Patna 
High Court directing the Trial Court to conduct a de novo trial, while 
making certain observations against the Special Judge,
disapproving 
his approach in the conduct of the trial. Criminal Appeal Nos.3926-3927 
of 2023 have been filed by the learned Special Judge who conducted 
the trial and thereafter delivered the judgment. Criminal Appeal No.3925 
of 2023 has been filed by the very same learned Judge, aggrieved 
over the remarks once again made by the High Court in an order of
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remittal, requesting the Hon’ble Chief Justice of the Patna High Court 
to consider whether the Judicial Officer should be assigned the function 
of holding sessions trial which have far reaching consequences, while 
sending him for fresh training to the State Judicial Academy. 
2.	
Heard Learned Senior Counsel Mr. Vikas Singh for the appellant and 
Learned Senior Counsel Mr. C. U. Singh for the respondents. We 
have perused the documents filed along with the written submissions 
made by the parties.
3.	
Before going into the submissions on merit, we shall first deal with 
the provisions governing the legal position in conducting a trial.
VIDEO CONFERENCING
Rule 6 of the Rule for Video Conferencing for Courts, 2020
“6. Application for Appearance, Evidence and 
Submission by Video Conferencing:
6.1 Any party to the proceeding or witness, save and 
except where proceedings are initiated at the instance of 
the Court, may move a request for video conferencing. A 
party or witness seeking a video conferencing proceeding 
shall do so by making a request in the form prescribed 
in Schedule II.
6.2 Any proposal to move a request to for video 
conferencing should first be discussed with the other 
party or parties to the proceeding, except where it is not 
possible or inappropriate, for example in cases such as 
urgent applications.
6.3 On receipt of such a request and upon hearing all 
concerned persons, the Court will
pass an appropriate order 
after ascertaining that the application is not filed with an 
intention to impede a fair trial or to delay the proceedings.
6.4 While allowing a request for video conferencing, the 
Court may also fix the schedule for convening the video 
conferencing.
6.5 In case the video conferencing event is convened 
for making oral submissions, the order may require the
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Advocate or party in person to submit written arguments 
and precedents, if any, in advance on the official email ID 
of the concerned Court.
6.6 Costs, if directed to be paid, shall be deposited 
within the prescribed time, commencing from the date 
on which the order convening proceedings through video 
conferencing is received.”
Rule 8 of the Rule for Video Conferencing for Courts, 2020
“8. Examination of persons.—
8.3 Where the person being examined, or the accused 
to be tried, is in custody, the statement or, as the 
case may be, the testimony may be recorded through 
video conferencing. The Court shall provide adequate 
opportunity to the under-trial prisoner to consult in privacy 
with their counsel before, during and after the video 
conferencing.”
Rule 11 of the Rule for Video Conferencing for Courts, 2020
“11. Judicial remand, framing of charge, examination 
of accused and Proceedings under Section 164 of 
the CrPC.—
11.1 The Court may, at its discretion, authorize detention 
of an accused, frame charges in a criminal trial under the 
CrPC by video conferencing. However, ordinarily judicial 
remand in the first instance or police remand shall not be 
granted through video conferencing save and except in 
exceptional circumstances for reasons to be recorded in 
writing.
11.2 The Court may, in exceptional circumstances, for 
reasons to be recorded in writing, examine a witness or 
an accused under Section 164 of the
CrPC or record the 
statement of the accused under Section 313 CrPC through 
video conferencing, while observing all due precautions to 
ensure that the witness or the accused as the case maybe 
is free of any form of coercion, threat or undue influence. 
The Court shall ensure compliance with Section 26 of the 
Evidence Act.”
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4.	
The High Court of Patna, in exercise of the powers conferred under 
Articles 225 and 227 of the Constitution of India, 1950, framed rules 
and procedures relating to the use of video conferencing for Courts. 
This was done with the concurrence of the State Government. “Rules 
for Video Conferencing for Courts, 2020” delineate the general 
principles governing video conferencing. Rule 6 provides for an 
application seeking video conferencing. When such an application is 
made, it has to be put to the other party followed by an appropriate 
order by the court indicating its satisfaction for granting approval. As 
per Rule 8, when the testimony of a person being examined is to 
be recorded through video conferencing, the court shall provide an 
adequate opportunity to the undertrial prisoner to consult in privacy 
with his counsel at different stages – before, during and after. Under 
Rule 11, an act of securing the presence of an accused through 
video conferencing at the time of judicial remand for the first time 
or police remand, is not a matter of course and, therefore, it is to 
be exercised only in exceptional circumstances for the reasons 
to be recorded in writing. Similar is the case qua recording of the 
statement of an accused under Section 313 of the Code of Criminal 
Procedure, 1973 (hereinafter referred to as the “CrPC, 1973”), in 
which case, it is obligatory on the part of the Court to make sure
that the accused is free from any form of coercion, threat or undue 
influence.
5.	
On a conjoint reading of the aforesaid rules, it is only appropriate 
that the accused has to be produced before the Court, rather than 
marking his appearance through video conferencing, the latter being 
an exception. While applying its mind, the Court has to rule out the 
possibility of any misuse.
WITNESS PROTECTION SCHEME, 2018
6.	
Witness Protection Scheme, 2018 has been introduced in the interest 
of the administration of justice, while enforcing a criminal law. It is 
meant to take care of a situation where the witnesses are made 
to depose before the Court by completely abandoning the case of 
the prosecution, either by fear or favour. The scheme provides for 
a competent authority which is the Standing Committee headed 
by a District and Sessions Judge with the head of the Police in 
the District as a Member and the head of the Prosecution as its 
Member Secretary. A witness is at liberty to seek protection before
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the competent authority. The head of the police is expected to place 
before the competent authority a “Threat Analysis Report”. The 
Scheme lays down in detail, the action proposed to be taken, once 
such an application is filed.
FAIR TRIAL
7.	
A fair trial would include due compliance of the procedure with 
adequate opportunities for all the stakeholders. Such procedural 
safeguards and compliance are to be kept in mind by the Court, as 
any deviation might either impact the prosecution or the defence 
in a given case. In an adversarial system of criminal law, which is 
being followed in India, when an accused is prosecuted on behalf 
of the State, the interest of a victim cannot be ignored. An offence 
is presumed to be against societal values and, therefore, any crime 
would constitute a deviant act by the accused. 
8.	
Every trial is a march towards the truth. It is the primary duty of 
the Court to search for the truth using the procedural law as its 
tool. Such a procedural law may have a substantive part extending 
certain inalienable rights to both, the accused and the victim. By 
non-compliance of the procedural law, justice cannot be allowed 
to derail. Anyone, who complains of an unfair trial, is duty bound 
to satisfy the Court that he stands prejudiced by it. This does not 
mean that a Court can be lackadaisical in following the rules and 
procedures meant to ensure justice. 
9.	
A fair trial is the heart and
soul of criminal jurisprudence. The principle 
of democracy lies in a fair trial. It is not only a statutory right, but 
also a human right, which would be violated when the safeguards 
provided under the Statute are not followed. The absence of a fair trial 
would seriously impair and violate the fundamental rights guaranteed 
under Articles 14 and 21 of the Constitution of India, 1950. What is 
important to be seen is the existence of a failure of justice, which 
is obviously one of fact. A mere violation per se would not vitiate 
the trial, especially when the degree of substantivity exhibited in a 
statute is minimal. 
10.	 The right to fair hearing is a part of Article 21 of the Constitution of 
India, 1950. A trial should be a real one and, therefore, not a mere 
pretence. There shall never be an impression over the decision
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of a Court that it has pre-determined and pre-judged a case even 
before starting a trial, or else, such a trial would become an empty 
formality. 
Precedents
J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401
“28. Fair trial is the main object of criminal procedure 
and such fairness should not be hampered or 
threatened in any manner. Fair trial entails the interests 
of the accused, the victim and of the society. Thus, fair 
trial must be accorded to every accused in the spirit of 
the right to life and personal liberty and the accused 
must get a free and fair, just and reasonable trial on 
the charge imputed in a criminal case. Any breach or 
violation of public rights and duties adversely affects the 
community as a whole and it becomes harmful to the 
society in general. In all circumstances, the courts have 
a duty to maintain public confidence in the administration 
of justice and such duty is to vindicate and uphold the 
“majesty of the law” and the courts cannot turn a blind eye 
to vexatious or oppressive conduct that occurs in relation 
to criminal proceedings. 
29. Denial of a fair trial is as much injustice to 
the accused as is to the victim and the society. It 
necessarily requires a trial before an impartial Judge, 
a fair prosecutor and an atmosphere of judicial calm. 
Since the object of the trial is to mete out justice and 
to convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over 
technicalities and must be conducted under such rules 
as will protect the innocent and punish the guilty. 
Justice should not only be done but should be seem 
to have been done. Therefore, free and fair trial is a 
sine qua non of Article 21 of the Constitution. Right to 
get a fair trial is not only a basic fundamental right but 
a human right also. Therefore, any hindrance in a fair 
trial could be violative of Article 14 of the Constitution. 
“No trial can be allowed to prolong indefinitely due to the
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lethargy of the prosecuting agency or the State machinery 
and that is the raison d’être in prescribing the time frame” 
for conclusion of the trial.”
(emphasis supplied)
Rattiram v. State of M.P., (2012) 4 SCC 516 
“39. The question posed by us fundamentally relates to 
the non-compliance with such interdict. The crux of the 
matter is whether it is such a substantial interdict 
which impinges upon the fate of the trial beyond any 
redemption or, for that matter it is such an omission 
or it is such an act that defeats the basic conception 
of fair trial. Fundamentally, a fair and impartial trial has 
a sacrosanct purpose. It has a demonstrable object 
that the accused should not be prejudiced. A fair trial 
is required to be conducted in such a manner which 
would totally ostracise injustice, prejudice, dishonesty 
and favouritism.
40. In Kalyani Baskar v. M.S. Sampoornam [(2007) 2 
SCC 258 : (2007) 1 SCC (Cri) 577] it has been laid down 
that “fair trial” includes fair and proper opportunities 
allowed by law to the accused to prove innocence and, 
therefore, adducing evidence in support of the defence 
is a valuable right and denial of that right means denial 
of fair trial. It is essential that the rules of procedure 
designed to ensure justice should be scrupulously 
followed and the courts should be zealous in seeing 
that there is no breach of them.
41. In this regard, we may fruitfully reproduce the 
observations
from Manu Sharma v. State (NCT of Delhi) 
[(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] wherein it has 
been so stated : (SCC pp. 79-80, para 197)
“197. In the Indian criminal jurisprudence, the 
accused is placed in a somewhat advantageous 
position than under different jurisprudence of 
some of the countries in the world. The criminal 
justice administration system in India places 
human rights and dignity for human life at a much
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higher pedestal. In our jurisprudence an accused 
is presumed to be innocent till proved guilty, the 
alleged accused is entitled to fairness and true 
investigation and fair trial and the prosecution 
is expected to play balanced role in the trial of 
a crime. The investigation should be judicious, 
fair, transparent and expeditious to ensure 
compliance with the basic rule of law. These 
are the fundamental canons of our criminal 
jurisprudence and they are quite in conformity 
with the constitutional mandate contained in 
Articles 20 and 21 of the Constitution of India.”
(emphasis supplied)
42. It would not be an exaggeration if it is stated that a 
“fair trial” is the heart of criminal jurisprudence and, in 
a way, an important facet of a democratic polity that is 
governed by rule of law. Denial of “fair trial” is crucifixion 
of human rights. It is ingrained in the concept of due 
process of law. While emphasising the principle of “fair 
trial” and the practice of the same in the course of 
trial, it is obligatory on the part of the courts to see 
whether in an individual case or category of cases, 
because of non-compliance with a certain provision, 
reversion of judgment of conviction is inevitable or it 
is dependent on arriving at an indubitable conclusion 
that substantial injustice has in fact occurred.”
(emphasis supplied)
Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 
“35. This
Court has often emphasised that in a criminal 
case the fate of the proceedings cannot always be left 
entirely in the hands of the parties, crimes being public 
wrongs in breach and violation of public rights and duties, 
which affect the whole community as a community and 
are harmful to the society in general. The concept of 
fair trial entails familiar triangulation of interests 
of the accused, the victim and the society and it 
is the community that acts through the State and
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prosecuting agencies. Interests of society are not to 
be treated completely with disdain and as persona 
non grata. Courts have always been considered to 
have an overriding duty to maintain public confidence 
in the administration of justice — often referred to 
as the duty to vindicate and uphold the “majesty of 
the law”. Due administration of justice has always 
been viewed as a continuous process, not confined 
to determination of the particular case, protecting 
its ability to function as a court of law in the future 
as in the case before it. If a criminal court is to be an 
effective instrument in dispensing justice, the Presiding 
Judge must cease to be a spectator and a mere recording 
machine by becoming a participant in the trial evincing 
intelligence, active interest and elicit all relevant materials 
necessary for reaching the correct conclusion, to find 
out the truth, and administer justice with fairness and 
impartiality both to the parties and to the community it 
serves. Courts administering criminal justice cannot turn 
a blind eye to vexatious or oppressive conduct that has 
occurred in relation to proceedings, even if a fair trial is still 
possible, except at the risk of undermining the fair name 
and standing of the judges as impartial and independent 
adjudicators.
xxx           xxx           xxx
39. Failure to accord fair hearing either to the accused 
or the prosecution violates even minimum
standards 
of due process of law. It is inherent in the concept 
of due process of law, that condemnation should be 
rendered only after the trial in which the hearing is a 
real one, not sham or a mere farce and pretence. Since 
the fair hearing requires an opportunity to preserve 
the process, it may be vitiated and violated by an 
overhasty, stage-managed, tailored and partisan trial.
xxx           xxx           xxx
54. Though justice is depicted to be blindfolded, as 
popularly said, it is only a veil not to see who the party 
before it is while pronouncing judgment on the cause
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brought before it by enforcing law and administer 
justice and not to ignore or turn the mind/attention 
of the court away from the truth of the cause or lis 
before it, in disregard of its duty to prevent miscarriage 
of justice. When an ordinary citizen makes a grievance 
against the mighty administration, any indifference, inaction 
or lethargy shown in protecting his right guaranteed in 
law will tend to paralyse by such inaction or lethargic 
action of courts and erode in stages the faith inbuilt in 
the judicial system ultimately destroying the very justice-
delivery system of the country itself. Doing justice is 
the paramount consideration and that duty cannot 
be abdicated or diluted and diverted by manipulative 
red herrings.”
(emphasis supplied)
PRESUMPTION OF INNOCENCE AND SPEEDY TRIAL
11.	 Unless a statute indicates otherwise, a criminal trial would commence 
with the presumption of innocence. This principle is of utmost 
importance as the Court embarks upon a trial in its quest for the 
truth. Though an accused is charged with an offence, it is the Court 
which has to satisfy its conscience, upon the prosecution proving 
the charges levelled beyond reasonable doubt. For the aforesaid 
purpose, an accused will have to be given a decent setting to prove 
his innocence. Compliance with the procedural safeguard is meant 
for the aforesaid purpose. However, such procedural safeguards 
would not only
ensure a fair trial, but also help the prosecution in 
confirming that it did its part fairly.
12.	 The concept of fair trial is not a vague idea, but a decisive one. While 
a speedy trial is in the best interest of everyone, including the society, 
the pace can only be set through the procedural mechanism, and it 
cannot be done at the mere dictate of the Court in ignorance of the 
procedural law. At the same time, care has to be taken with the aid of 
the law, to prevent the miscarriage of justice, when the delay is caused 
on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be 
permitted to destroy the latter by its recklessness. Any anxiety on the 
part of the Court, either to expedite the trial in contravention of law, or 
delay it unnecessarily, would seriously impede fair trial. In such a case, 
either the prosecution or the defence would bear the consequences.
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Precedents
Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408 
“40. “Speedy trial” and “fair trial” to a person accused 
of a crime are integral part of Article 21. There is, 
however, qualitative difference between the right to 
speedy trial and the accused’s right of fair trial. Unlike 
the accused’s right of fair trial, deprivation of the right 
to speedy trial does not per se prejudice the accused in 
defending himself. The right to speedy trial is in its very 
nature relative. It depends upon diverse circumstances. 
Each case of delay in conclusion of a criminal trial has 
to be seen in the facts and circumstances of such case. 
Mere lapse of several years since the commencement of 
prosecution by itself may not justify the discontinuance 
of prosecution or dismissal of indictment. The factors 
concerning the accused’s right to speedy trial have 
to be weighed vis-à-vis the impact of the crime on 
society and the confidence of the people in judicial 
system. Speedy trial secures rights to an accused but 
it does not preclude the rights of public justice. The 
nature and gravity of crime, persons involved, social 
impact and societal needs must be weighed along 
with the right of the accused to speedy trial and if the 
balance tilts in favour of the former the long delay in 
conclusion of criminal trial should not operate against 
the continuation of prosecution and if the right of the 
accused in the facts
and circumstances of the case 
and exigencies of situation tilts the balance in his 
favour, the prosecution may be brought to an end. 
These principles must apply as well when the appeal 
court is confronted with the question whether or not 
retrial of an accused should be ordered.”
(emphasis supplied)
State of Haryana v. Ram Mehar, (2016) 8 SCC 762 
“24. The decisions of this Court when analysed appositely 
clearly convey that the concept of the fair trial is not in the 
realm of abstraction. It is not a vague idea. It is a concrete
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phenomenon. It is not rigid and there cannot be any 
straitjacket formula for applying the same. On occasions 
it has the necessary flexibility. Therefore, it cannot be 
attributed or clothed with any kind of rigidity or flexibility in 
its application. It is because fair trial in its ambit requires 
fairness to the accused, the victim and the collective at large. 
Neither the accused nor the prosecution nor the victim which 
is a part of the society can claim absolute predominance 
over the other. Once absolute predominance is recognised, 
it will have the effect potentiality to bring in an anarchical 
disorder in the conducting of trial defying established legal 
norm. There should be passion for doing justice but it must 
be commanded by reasons and not propelled by any kind of 
vague instigation. It would be dependent on the fact situation; 
established norms and recognised principles and eventual 
appreciation of the factual scenario in entirety. There may 
be cases which may command compartmentalisation but 
it cannot be stated to be an inflexible rule. Each and every 
irregularity cannot be imported to the arena of fair trial. There 
may be situations where injustice to the victim may play a 
pivotal role. The centripodal purpose is to see that injustice 
is avoided when the trial is conducted. Simultaneously the 
concept of fair trial cannot be allowed to such an extent so 
that the systemic order of
conducting a trial in accordance 
with CrPC or other enactments get mortgaged to the 
whims and fancies of the defence or the prosecution. The 
command of the Code cannot be thrown to winds. In such 
situation, as has been laid down in many an authority, the 
courts have significantly an eminent role. A plea of fairness 
cannot be utilised to build castles in Spain or permitted to 
perceive a bright moon in a sunny afternoon. It cannot be 
acquiesced to create an organic disorder in the system. It 
cannot be acceded to manure a fertile mind to usher in the 
nemesis of the concept of trial as such.” 
Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 SCR 
1226 (at page 1232) 
“Now it is obvious that the primary object of criminal procedure 
is to ensure a fair trial of accused persons. Every criminal 
trial begins with the presumption of innocence in favour of
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the accused; and provisions of the Code are so framed 
that a criminal trial should begin with and be throughout 
governed by this essential presumption; but a fair trial has 
naturally two objects in view; it must be fair to the accused 
and must also be fair to the prosecution. The test of fairness 
in a criminal trial must be judged from this dual point of view. 
It is therefore of the utmost importance that, in a criminal 
trial, witnesses should be able to give evidence without 
any inducement or threat either from the prosecution or the 
defence. A criminal trial must never be so conducted by the 
prosecution as would lead to the conviction of an innocent 
person; similarly the progress of a criminal trial must not 
be obstructed by the accused so as to lead to the acquittal 
of a really guilty offender. The acquittal of the innocent and 
the conviction of the guilty are the objects of a criminal trial 
and so there can be no possible doubt that, if any conduct 
on the part of an accused person is likely to obstruct a fair 
trial, there is occasion for the exercise of the inherent power 
of the High Courts to secure the ends of justice. …”
THE CODE OF CRIMINAL PROCEDURE, 1973 (CrPC, 1973)
13.	 The CrPC, 1973, though a Code dealing with procedural law, is 
embellished with numerous substantive elements in it. The substantive 
elements give effect to Articles 14, 20, 21 and 22 of the Constitution 
of India, 1950. Any
Court that deals with a criminal case, starting at 
the magisterial level, is duty-bound to give effect to the CrPC, 1973 
which would only mean the protection of rights conferred under the 
Constitution of India, 1950. To put it differently, the CrPC, 1973 is a 
handbook introduced to maintain and uphold fair play in a criminal 
case, starting with the investigation and ending with the acquittal or 
a conviction leading to a sentence.
SUPPLY OF DOCUMENTS
Section 173 of the Code of Criminal Procedure, 1898
“173. Report of police officer.— 
xxx           xxx           xxx
(4) After forwarding a report under this section, the 
officer-in-charge of the police station shall, before the 
commencement of, the inquiry or trial, furnish or cause
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to be furnished to the accused, free of cost, a copy of 
the report forwarded under sub-section (1) and of the first 
information report recorded under Section 154 and of all 
other documents or relevant extracts thereof, on which 
the prosecution proposes to rely, including the statements 
and confessions, if any recorded under Section 164 and 
the statements recorded under sub-section (3) of Section 
161 of all the persons whom the prosecution proposes to 
examine as its witnesses.”
Section 207A of the Code of Criminal Procedure, 1898
“207A. Procedure to be adopted in proceedings 
instituted on police report. 
xxx           xxx           xxx
(3) At the commencement of the inquiry, the Magistrate 
shall, when the accused appears or is brought before 
him, satisfy himself that the documents referred to in 
Section 173 have been furnished to the accused and if he 
finds that the accused has not been furnished with such 
documents or any of them, he shall cause the same to 
be so furnished.”
Section 251A of the Code of Criminal Procedure, 1898
“251A. Procedure to be adopted in cases instituted 
on police report.
(1) When, in any case instituted on a police report, the 
accused appears or is brought before a Magistrate at the 
commencement of the trial, such Magistrate shall satisfy 
himself that the documents referred to in Section 173 
have been furnished to the accused, and if he finds that 
the accused has not
been furnished with such documents 
or any of them, he shall cause them to be so furnished.”
Section 207 of the CrPC, 1973
“207. Supply to the accused of copy of police report 
and other documents.-
In any case where the proceeding has been instituted 
on a police report, the Magistrate shall without delay
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furnish to the accused, free of cost, a copy of each of 
the following:-
(i)	
the police report;
(ii)	
the first information report recorded under section 154;
(iii)	 the statements recorded under sub-section (3) of 
section 161 of all persons whom the prosecution 
proposes to examine as its witnesses, excluding 
therefrom any part in regard to which a request for 
such exclusion has been made by the police officer 
under sub-section (6) of section 173;
(iv)	 the confessions and statements, if any, recorded 
under section 164;
(v)	
any other document or relevant extract thereof 
forwarded to the Magistrate with the police report 
under sub-section (5) of section 173 :
Provided that the Magistrate may, after perusing any such 
part of a statement as is referred to in clause (iii) and 
considering the reasons given by the police officer for the 
request, direct that a copy of that part of the statement or 
of such portion thereof as the Magistrate thinks proper, 
shall be furnished to the accused :Provided further that if 
the Magistrate is satisfied that any document referred to 
in clause (v) is voluminous, he shall, instead of furnishing 
the accused with a copy thereof, direct that he will only be 
allowed to inspect it either personally or through pleader 
in Court.”
Section 208 of the CrPC, 1973 
“208. Supply of copies of statements and documents 
to accused in other cases triable by Court of Session.-
Where, in a case
instituted otherwise than on a police 
report, it appears to the Magistrate issuing process under 
section 204 that the offence is triable exclusively by the 
Court of Session, the Magistrate shall without delay 
furnish to the accused, free of cost, a copy of each of 
the following:
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(i) the statements recorded under section 200 or section 
202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under 
section 161 or section 164;
(iii) any documents produced before the Magistrate on 
which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such 
document is voluminous, he shall, instead of furnishing 
the accused with a copy thereof, direct that he will only be 
allowed to inspect it either personally or through pleader 
in Court.”
Section 209 of the CrPC, 1973 
“209. Commitment of case to Court of Session when 
offence is triable exclusively by it.-
When in a case instituted on a police report or otherwise, 
the accused appears or is brought before the Magistrate 
and it appears to the Magistrate that the offence is triable 
exclusively by the Court of Session, he shall—
(a)	 commit, after complying with the provisions of Section 
207 or Section 208, as the case may be, the case to the 
Court of Session, and subject to the provisions of this 
Code relating to bail, remand the accused to custody until 
such commitment has been made;
(b)	 subject to the provisions of this Code relating to bail, 
remand the accused to custody during, and until the 
conclusion of, the trial;
(c)	
send to that Court the record of the case and the documents 
and articles, if any, which are to be produced in evidence;
(d)	 notify the
Public Prosecutor of the commitment of the case 
to the Court of Session.”
Section 238 of the CrPC, 1973 
“238. Compliance with Section 207.
When, in any warrant-case instituted on a police report, 
the accused appears or is brought before a Magistrate
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at the commencement of the trial, the Magistrate shall 
satisfy himself that he has complied with the provisions 
of Section 207.”
14.	 To understand these provisions, one has to go back to the Code 
of Criminal Procedure, 1898 (hereinafter referred to as the “CrPC, 
1898”). Section 173 of the CrPC, 1898 fixes the responsibility on 
the officer in charge of police station to serve a copy of the report 
of the Police Officer and of the First Information Report, along with 
the requisite documents, on the accused. As per Section 207A of 
the CrPC, 1898 a Magistrate shall, after the commencement of the 
inquiry, satisfy himself that there was due compliance of Section 
173 of the CrPC 1898 by furnishing all the requisite documents on 
the accused. Thus, the Magistrate was expected to find out due 
compliance on the part of the investigating agency and, if not done, 
must direct it to do so. A similar procedure was adopted under Section 
251A of the CrPC, 1898.
15.	 Section 207 of the CrPC, 1973 has dispensed with the role of the 
investigating agency in serving the requisite copies on the accused, 
replacing it with that of the Magistrate. Additionally, the Magistratre is 
directed to make sure that due compliance is made at the earliest. 
Section 208 of the CrPC, 1973 reiterates the aforesaid position in 
cases instituted otherwise than on a police report and triable by the 
Court of Sessions. It is only thereafter, that the
commitment of the 
case to a Court of Sessions, regarding an offence exclusively triable 
by it, shall take place.
16.	 Section 238 of the CrPC, 1973 mandates that while dealing with a 
warrant case instituted on a police report, the Magistrate shall satisfy 
himself that he has complied with the provisions of Section 207 of 
the CrPC, 1973. In all these cases, due compliance is to be done 
when the accused is produced or appears before the Magistrate. 
Therefore, Section 238 of the CrPC, 1973 reiterates the bounden 
duty of a Magistrate and, if not done, to be complied with at the 
time of commencement of the trial. Such a reiteration would only 
reinforce a renewed emphasis on due compliance being a facet 
of fair play. An accused shall be put to notice on the incriminating 
materials leading to the charges framed against him. As stated, 
the obligation so imposed is not only on the supply of the relevant 
documents, but such compliance should be at the appropriate stage
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so that it does not brook any delay. The idea is to enable an accused 
to face the trial by thoroughly understanding the case stated against 
him. However, a mere non-supply of a part of the documents would 
not lead to the trial being vitiated, unless an accused substantiates 
before the Court that it has caused prejudice to him. Obviously, it is 
ultimately for the Court to come to an appropriate conclusion by an 
adequate assessment of facts placed before it.
Precedents
Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632 
“13. The documents in terms of Sections 207 and 
208 are supplied to make the accused aware of the 
materials which are sought to be utilised against him. 
The object is to enable the accused to defend himself 
properly. The idea behind the supply of copies is to put 
him on notice of what he has to meet at the trial. The 
effect of non-supply of copies has been considered 
by this Court in Noor Khan v. State of Rajasthan [AIR 
1964 SC 286] and Shakila Abdul Gafar Khan v. Vasant 
Raghunath Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri) 
1918]. It was held that non-supply is not necessarily 
prejudicial to the accused. The court has to give a 
definite finding about the prejudice or otherwise. Even the 
supervision notes cannot be utilised by the prosecution 
as a piece of material or evidence against the accused. If 
any reference is made before any court to the supervision 
notes, as has been
noted above they are not to be taken 
note of by the court concerned. As many instances have 
come to light when the parties, as in the present case, 
make reference to the supervision notes, the inevitable 
conclusion is that they have unauthorised access to the 
official records.”
(emphasis supplied)
P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161 
“21. Be that as it may, furnishing of documents to 
the accused under Section 207 of the 1973 Code is a 
facet of right of the accused to a fair trial enshrined 
in Article 21 of the Constitution…
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22. Similarly, in V.K. Sasikala v. State [(2012) 9 SCC 771 : 
(2013) 1 SCC (Cri) 1010] , this Court held as under : (SCC 
p. 788, para 21)
“21. The issue that has emerged before us is, 
therefore, somewhat larger than what has been 
projected by the State and what has been dealt 
with by the High Court [V.K. Sasikala v. State, 
2012 SCC OnLine Kar 9209]. The question arising 
would no longer be one of compliance or non-
compliance with the provisions of Section 207 
CrPC and would travel beyond the confines of 
the strict language of the provisions of CrPC and 
touch upon the larger doctrine of a free and fair 
trial that has been painstakingly built up by the 
courts on a purposive interpretation of Article 21 
of the Constitution. It is not the stage of making of 
the request; the efflux of time that has occurred or 
the prior conduct of the accused that is material. 
What is of significance is if in a given situation 
the accused comes to the court contending 
that some papers forwarded to the court by the 
investigating agency have not been exhibited by 
the prosecution as the same favours the accused 
the court must concede a right to the accused 
to have an access to the said documents, if so 
claimed. This, according to us, is the core issue in 
the case which must be answered affirmatively. In 
this regard, we would like to be specific in saying 
that we find it difficult to agree with the view [V.K. 
Sasikala v.
State, 2012 SCC OnLine Kar 9209] 
taken by the High Court that the accused must 
be made to await the conclusion of the trial to test 
the plea of prejudice that he may have raised. 
Such a plea must be answered at the earliest and 
certainly before the conclusion of the trial, even 
though it may be raised by the accused belatedly. 
This is how the scales of justice in our criminal 
jurisprudence have to be balanced.”
(emphasis supplied)
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xxx           xxx           xxx
38. It is crystal clear that all documents including “electronic 
record” produced for the inspection of the court along with 
the police report and which prosecution proposes to use 
against the accused must be furnished to the accused 
as per the mandate of Section 207 of the 1973 Code. 
The concomitant is that the contents of the memory 
card/pen-drive must be furnished to the accused, which 
can be done in the form of cloned copy of the memory 
card/pen-drive. It is cardinal that a person tried for 
such a serious offence should be furnished with all 
the material and evidence in advance, on which the 
prosecution proposes to rely against him during the 
trial. Any other view would not only impinge upon the 
statutory mandate contained in the 1973 Code, but 
also the right of an accused to a fair trial enshrined 
in Article 21 of the Constitution of India.”
(emphasis supplied)
17.	 We make it clear that the right of an accused would arise, in 
getting the documents relied upon by the prosecution, after taking 
cognizance and before framing of the charges. Therefore, between 
taking cognizance and framing of charges, an accused should have 
sufficient window to go through the documents supplied to him as 
he is entitled to be heard at a later stage.
DISCHARGE
Section 227 of the CrPC, 1973
“227. Discharge.-
If, upon consideration of the record of the case and the 
documents
submitted therewith, and after hearing the 
submissions of the accused and the prosecution in this 
behalf, the Judge considers that there is not sufficient 
ground for proceeding against the accused, he shall 
discharge the accused and record his reasons for so doing.”
18.	 Before the stage of framing of charges, the Judge is expected to 
discharge an accused, if he is of the considered view that there is no 
sufficient ground to proceed against the accused. This being a judicial
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exercise, his discretion must be supported by adequate reasons. In 
discharge of his powers, he has to consider the records and documents 
submitted by the prosecution vis-à-vis the arguments adduced by both 
sides. The words “after hearing the submissions of the accused” would 
imply an effective and meaningful hearing. It is not a mere procedural 
compliance. A Judge has to satisfy himself that the accused had 
reasonable time to ponder over and prepare his arguments before 
seeking a discharge. At this stage, an accused gets a substantive right 
as there is a window of opportunity for him to get discharged, instead 
of facing a prolonged trial. Such an opportunity can only be exercised 
by not only supplying the documents needed, but also giving adequate 
and sufficient time to the defence to place its case. Granting time for 
the aforesaid purpose is the sole discretion of the Court.
19.	 The duty of the Court is to see as to whether the materials produced 
by the prosecution are reasonably related to the offence attributed 
against the accused. What is to be seen is the existence of a prima 
facie case. The case is at a pre-framing stage and therefore, it 
cannot be a full-fledged pre-trial. Adequacy and sufficiency are 
the relevant factors to be seen. The test is one of the degree of 
probability.
20.	 Section 227 of the CrPC, 1973, in fact, is a provision which gives 
effect to Article 22 of the Constitution of
India, 1950. The right of an 
accused to be heard is inalienable. For exercising this right, there 
has to be due consultation. Such a right can never be termed as a 
procedural one. It would be a ground to challenge the proceeding 
at that stage, but the same would not vitiate the trial. Suffice it is to 
reiterate that it is the duty of the court to ensure that the accused is 
given sufficient opportunities to consult his lawyer.
Precedents
Anokhilal v. State of M.P., (2019) 20 SCC 196 
“22. The provisions concerned viz. Sections 227 
and 228 of the Code contemplate framing of charge 
upon consideration of the record of the case and the 
documents submitted therewith, and after “hearing the 
submissions of the accused and the prosecution in 
that behalf”. If the hearing for the purposes of these 
provisions is to be meaningful, and not just a routine
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affair, the right under the said provisions stood denied 
to the appellant.
23. In our considered view, the trial court on its 
own, ought to have adjourned the matter for some 
time so that the Amicus Curiae could have had the 
advantage of sufficient time to prepare the matter. 
The approach adopted by the trial court, in our view, 
may have expedited the conduct of trial, but did not 
further the cause of justice. Not only were the charges 
framed the same day as stated above, but the trial 
itself was concluded within a fortnight thereafter. In 
the process, the assistance that the appellant was 
entitled to in the form of legal aid, could not be real 
and meaningful.
xxx           xxx           xxx
26. Expeditious disposal is undoubtedly required in criminal 
matters and that would naturally be part of guarantee of fair 
trial. However, the attempts to expedite the process should 
not be at the expense of the basic elements of fairness 
and the opportunity to the accused, on which postulates, 
the entire criminal administration of justice is founded. In 
the pursuit for expeditious disposal, the cause of justice 
must never be allowed to suffer or be sacrificed. What is 
paramount is the cause of justice and keeping the basic 
ingredients which secure that as a core idea and ideal, 
the process may be expedited, but fast tracking of process 
must never ever result in burying the cause of justice.
xxx           xxx           xxx
31. Before we part, we must lay down certain norms so 
that the infirmities that we have noticed in the present 
matter are not repeated:
xxx           xxx           xxx
31.3. Whenever any learned counsel is 
appointed as Amicus Curiae, some reasonable 
time may be provided to enable the counsel 
to prepare the matter. There cannot be any
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hard-and-fast rule in that behalf. However, a 
minimum of seven days’ time may normally be 
considered to be appropriate and adequate.
31.4. Any learned counsel, who is appointed 
as Amicus Curiae on behalf of the accused 
must normally be granted to have meetings 
and discussion with the accused concerned. 
Such interactions may prove to be helpful as 
was noticed in Imtiyaz Ramzan Khan [Imtiyaz 
Ramzan Khan v. State of Maharashtra, (2018) 
9 SCC 160 : (2018) 3 SCC (Cri) 721] .”
(emphasis supplied)
Kewal Krishan v. Suraj Bhan, 1980 (Supp) SCC 499 
“11. The proposition that in cases instituted on complaint 
in regard to an offence exclusively triable by the Court 
of Session, the standard for ascertaining whether or not 
the evidence collected in the preliminary inquiry discloses 
sufficient grounds for proceeding against the accused is 
lower than the one to be adopted at the stage of framing 
charges in a warrant case triable by the Magistrate, is 
now evident from the scheme of the new Code of 1973. 
Section 209 of the Code of 1973 dispenses with the inquiry 
preliminary to commitment in cases triable exclusively by 
a Court of Session, irrespective of whether such a case 
is instituted on a criminal complaint or a police report. 
Section 209 says: “When in a case instituted on a police 
report or otherwise the accused appears or is brought 
before the magistrate and it appears to the magistrate that 
the offence is
triable exclusively by the Court of Session, 
he shall commit the case to the Court of Session.” If the 
Committing Magistrate thinks that it is not necessary to 
commit the accused who may be on bail to custody, he 
may not cancel the bail. This has been made clear by the 
words “subject to the provisions of this Code relating to 
bail” occurring in clause (b) of Section 209. Therefore, if the 
accused is already on bail, his bail should not be arbitrarily 
cancelled. Section 227 of the Code of 1973 has made 
another beneficent provision to save the accused
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from prolonged harassment which is a necessary 
concomitant of a protracted trial. This section provides 
that if upon considering the record of the case, the 
documents submitted with it and the submissions 
of the accused and the prosecution, the judge is not 
convinced that there is sufficient ground for proceeding 
against the accused, he has to discharge the accused 
under this section and record his reasons for so doing.”
(emphasis supplied)
Hardeep Singh v. State Of Punjab, (2014) 3 SCC 92 
“100. However, there is a series of cases wherein this Court 
while dealing with the provisions of Sections 227, 228, 
239, 240, 241, 242 and 245 CrPC, has consistently held 
that the court at the stage of framing of the charge 
has to apply its mind to the question whether or not 
there is any ground for presuming the commission of 
an offence by the accused. The court has to see as 
to whether the material brought on record reasonably 
connect the accused with the offence. Nothing more 
is required to be enquired into. While dealing with the 
aforesaid provisions, the test of prima facie case is 
to be applied. The court has to find out whether the 
materials offered by the prosecution to be adduced 
as evidence are sufficient for the court to proceed 
against the accused further. (Vide State of Karnataka v. 
L. Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : 
AIR 1977 SC 1489] , All India Bank Officers’
Confederation 
v. Union of India [(1989) 4 SCC 90 : 1989 SCC (L&S) 627 : 
AIR 1989 SC 2045] , Stree Atyachar Virodhi Parishad v. 
Dilip Nathumal Chordia [(1989) 1 SCC 715 : 1989 SCC 
(Cri) 285] , State of M.P. v. Krishna Chandra Saksena 
[(1996) 11 SCC 439 : 1997 SCC (Cri) 35] and State of 
M.P. v. Mohanlal Soni [(2000) 6 SCC 338 : 2000 SCC 
(Cri) 1110 : AIR 2000 SC 2583] .)
101. In Dilawar Balu Kurane v. State of Maharashtra 
[(2002) 2 SCC 135 : 2002 SCC (Cri) 310] , this Court 
while dealing with the provisions of Sections 227 and 
228 CrPC, placed a very heavy reliance on the earlier
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judgment of this Court in Union of India v. Prafulla Kumar 
Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : AIR 1979 
SC 366] and held that while considering the question of 
framing the charges, the court may weigh the evidence 
for the limited purpose of finding out whether or not a 
prima facie case against the accused has been made 
out and whether the materials placed before the court 
disclose grave suspicion against the accused which has 
not been properly explained. In such an eventuality, the 
court is justified in framing the charges and proceeding 
with the trial. The court has to consider the broad 
probabilities of the case, the total effect of the evidence 
and the documents produced before the court but the 
court should not make a roving enquiry into the pros 
and cons of the matter and weigh evidence as if it is 
conducting a trial.”
(emphasis supplied)
Sajjan Kumar v. CBI, (2010) 9 SCC 368
“Exercise of jurisdiction under Sections 227 and 228 
CrPC
21. On consideration of the authorities about the scope of 
Sections 227 and 228 of the Code, the following principles 
emerge:
(i)	
The Judge while considering the question 
of framing the charges under Section 227 
CrPC has the undoubted power to sift and 
weigh the evidence for the limited purpose 
of finding out whether or not a prima facie 
case against the accused has been made 
out. The test to determine prima facie case 
would depend upon the facts of each
case.
(ii)	
Where the materials placed before the 
court disclose grave suspicion against 
the accused which has not been properly 
explained, the court will be fully justified 
in framing a charge and proceeding with 
the trial.
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(iii)	 The court cannot act merely as a post office 
or a mouthpiece of the prosecution but has 
to consider the broad probabilities of the 
case, the total effect of the evidence and 
the documents produced before the court, 
any basic infirmities, etc. However, at this 
stage, there cannot be a roving enquiry into 
the pros and cons of the matter and weigh 
the evidence as if he was conducting a trial.
(iv)	 If on the basis of the material on record, 
the court could form an opinion that the 
accused might have committed offence, it 
can frame the charge, though for conviction 
the conclusion is required to be proved 
beyond reasonable doubt that the accused 
has committed the offence.
(v)	
At the time of framing of the charges, the 
probative value of the material on record 
cannot be gone into but before framing a 
charge the court must apply its judicial mind 
on the material placed on record and must 
be satisfied that the commission of offence 
by the accused was possible.
(vi)	 At the stage of Sections 227 and 228, the 
court is required to evaluate the material 
and documents on record with a view to find 
out if the facts emerging therefrom taken at 
their face value disclose the existence of 
all the ingredients constituting the alleged 
offence. For this limited purpose, sift the 
evidence as it cannot be expected even 
at that initial stage to accept all that the 
prosecution states as gospel truth
even 
if it is opposed to common sense or the 
broad probabilities of the case.
(vii)	 If two views are possible and one of 
them gives rise to suspicion only, as
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distinguished from grave suspicion, the 
trial Judge will be empowered to discharge 
the accused and at this stage, he is not to 
see whether the trial will end in conviction 
or acquittal.
xxx           xxx           xxx
24. At the stage of framing of charge under Section 228 
CrPC or while considering the discharge petition filed 
under Section 227, it is not for the Magistrate or the Judge 
concerned to analyse all the materials including pros 
and cons, reliability or acceptability, etc. It is at the trial, 
the Judge concerned has to appreciate their evidentiary 
value, credibility or otherwise of the statement, veracity 
of various documents and is free to take a decision one 
way or the other.”
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 
“465. All this development clearly indicates the direction in 
which the law relating to access to lawyers/legal aid has 
developed and continues to develop. It is now rather late in 
the day to contend that Article 22(1) is merely an enabling 
provision and that the right to be defended by a legal 
practitioner comes into force only on the commencement 
of trial as provided under Section 304 CrPC.
xxx           xxx           xxx
471. The resounding words of the Court in Khatri (2) [(1981) 
1 SCC 627 : 1981 SCC (Cri) 228] are equally, if not more, 
relevant today than when they were first pronounced. In 
Khatri (2) [(1981) 1 SCC 627 : 1981 SCC (Cri) 228] the 
Court
also alluded to the reasons for the urgent need of the 
accused to access a lawyer, these being the indigence and 
illiteracy of the vast majority of Indians accused of crimes.
472. As noted in Khatri (2) [(1981) 1 SCC 627 : 1981 
SCC (Cri) 228] as far back as in 1981, a person arrested 
needs a lawyer at the stage of his first production before 
the Magistrate, to resist remand to police or jail custody 
and to apply for bail. He would need a lawyer when the
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charge-sheet is submitted and the Magistrate applies his 
mind to the charge-sheet with a view to determine the 
future course of proceedings. He would need a lawyer at 
the stage of framing of charges against him and he would, 
of course, need a lawyer to defend him in trial.
xxx           xxx           xxx
474. We, therefore, have no hesitation in holding 
that the right to access to legal aid, to consult and 
to be defended by a legal practitioner, arises when 
a person arrested in connection with a cognizable 
offence is first produced before a Magistrate. We, 
accordingly, hold that it is the duty and obligation 
of the Magistrate before whom a person accused of 
committing a cognizable offence is first produced to 
make him fully aware that it is his right to consult and 
be defended by a legal practitioner and, in case he 
has no means to engage a lawyer of his choice, that 
one would be provided to him from legal aid at the 
expense of the State. The right flows from Articles 21 
and 22(1) of the Constitution and needs to be strictly 
enforced. We, accordingly, direct all the Magistrates 
in the country to faithfully discharge the aforesaid 
duty and obligation and further make it clear that 
any failure to fully discharge the duty would amount 
to dereliction in duty and would make the Magistrate 
concerned liable to departmental proceedings.
475. It needs to be clarified here that the right to consult
and be defended by a legal practitioner is not to be 
construed as sanctioning or permitting the presence of 
a lawyer during police interrogation. According to our 
system of law, the role of a lawyer is mainly focused 
on court proceedings. The accused would need a 
lawyer to resist remand to police or judicial custody 
and for granting of bail; to clearly explain to him the 
legal consequences in case he intended to make 
a confessional statement in terms of Section 164 
CrPC; to represent him when the court examines the 
charge-sheet submitted by the police and decides
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upon the future course of proceedings and at the 
stage of the framing of charges; and beyond that, of 
course, for the trial. It is thus to be seen that the right 
to access to a lawyer in this country is not based 
on the Miranda [(1966) 16 L Ed 2d 694 : 384 US 436] 
principles, as protection against self-incrimination, 
for which there are more than adequate safeguards 
in Indian laws. The right to access to a lawyer is for 
very Indian reasons; it flows from the provisions of 
the Constitution and the statutes, and is only intended 
to ensure that those provisions are faithfully adhered 
to in practice.
xxx           xxx           xxx
477. Every accused unrepresented by a lawyer has 
to be provided a lawyer at the commencement of 
the trial, engaged to represent him during the entire 
course of the trial. Even if the accused does not ask 
for a lawyer or he remains silent, it is the constitutional 
duty of the court to provide him with a lawyer before 
commencing the trial. Unless the accused voluntarily 
makes an informed decision and tells the court, in 
clear and unambiguous words, that he does not want 
the assistance of any lawyer and would rather defend 
himself personally, the obligation to provide him with 
a lawyer at the commencement of the trial is absolute, 
and failure to do so would vitiate the trial and the 
resultant conviction and sentence, if any, given to 
the accused (see Suk Das v. UT of Arunachal
Pradesh 
[(1986) 2 SCC 401 : 1986 SCC (Cri) 166] ).
478. But the failure to provide a lawyer to the 
accused at the pre-trial stage may not have the same 
consequence of vitiating the trial. It may have other 
consequences like making the delinquent Magistrate 
liable to disciplinary proceedings, or giving the 
accused a right to claim compensation against the 
State for failing to provide him legal aid. But it would 
not vitiate the trial unless it is shown that failure to 
provide legal assistance at the pre-trial stage had
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resulted in some material prejudice to the accused in 
the course of the trial. That would have to be judged 
on the facts of each case.”
(emphasis supplied)
Section 228 of the CrPC, 1973
“228. Framing of charge.-
(1) If, after such consideration and hearing as aforesaid, 
the Judge is of opinion that there is ground for presuming 
that the accused has committed an offence which--
(a)	 is not exclusively triable by the Court of 
Session, he may, frame a charge against 
the accused and, by order, transfer the case 
for trial to the Chief Judicial Magistrate, [or 
any other Judicial Magistrate of the first 
class and direct the accused to appear 
before the Chief Judicial Magistrate, or, as 
the case may be, the Judicial Magistrate of 
the first class, on such date as he deems 
fit, and thereupon such Magistrate] shall 
try the offence in accordance with the 
procedure for the trial of warrant-cases 
instituted on a police report;
(b)	 is exclusively triable by the Court, he 
shall frame in writing a charge against 
the accused.
(2) Where the Judge frames any charge under clause (b) 
of sub-section (1), the charge shall be read and explained 
to the accused and the accused shall be asked whether he 
pleads guilty of the offence charged or claims to be tried.”
21.	 Under sub-section (2) of Section 228 of the CrPC, 1973, the Judge, while 
framing any charge, is ordained to read and explain it to the accused.
Thereafter, the accused shall be asked as to whether he pleads guilty of 
the offence charged or claims to be tried. As a matter of routine, video 
conferencing must be avoided, unless there are compelling reasons 
to do so. This is an occasion where the Judge avoids the lawyer and 
keeps in touch with the accused directly. He records the response
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of the accused. Under those circumstances, unless a situation so 
warrants otherwise, the presence of the accused shall be ensured.
EXAMINATION OF WITNESSES
Section 230 of the CrPC, 1973
“230. Date for prosecution evidence .-
If the accused refuses to plead, or does not plead, or 
claims to be tried or is not convicted under section 229, 
the Judge shall fix a date for the examination of witnesses, 
and may, on the application of the prosecution, issue any 
process for compelling the attendance of any witness or 
the production of any document or other thing.”
Section 231 of the CrPC, 1973
“231. Evidence for prosecution.- 
(1) On the date so fixed, the Judge shall proceed to take 
all such evidence as may be produced in support of the 
prosecution.
(2) The Judge may, in his discretion, permit the cross-
examination of any witness to be deferred until any other 
witness or witnesses have been examined or recall any 
witness for further cross-examination.”
22.	 These two provisions are to be read in consonance with each other. 
At this stage, the Court is concerned only with the prosecution’s 
evidence. To ensure fair play, as a normal practice, the Court has 
to fix a date for the examination of the witnesses. The idea is to 
complete the examination-in-chief and cross examination, both at 
the same time. While fixing the date, the Court is expected to take 
into consideration the relative convenience of the parties, though
the 
discretion lies with it. Sub-section (1) of Section 231 of the CrPC, 
1973 fixes a responsibility on the Court, the prosecution and the 
defence to go ahead with the examination of witnesses on the date 
so fixed. Therefore, even for this reason, the Court shall ascertain 
and then decide a convenient date for both sides, while being 
conscious about any attempt to drag the trial. Completion of such 
examination is a matter of rule as any deferment can at best be an 
exception, to the discretion of the Court. Obviously, the use of such 
a discretion, being judicial in nature, has to be on a case-to-case
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basis. Suffice it is to state that a balance has to be struck between 
the competing interests.
State of Kerala v. Rasheed, (2019) 13 SCC 297
“22. There cannot be a straitjacket formula providing 
for the grounds on which judicial discretion under 
Section 231(2) CrPC can be exercised. The exercise 
of discretion has to take place on a case-to-case 
basis. The guiding principle for a Judge under Section 
231(2) CrPC is to ascertain whether prejudice would be 
caused to the party seeking deferral, if the application 
is dismissed.
23. While deciding an application under Section 231(2) 
CrPC, a balance must be struck between the rights of 
the accused, and the prerogative of the prosecution 
to lead evidence. The following factors must be kept 
in consideration:
(i)	
possibility of undue influence on witness(es);
(ii)	
possibility of threats to witness(es);
(iii)	 possibility that non-deferral would enable 
subsequent witnesses giving evidence on similar 
facts to tailor their testimony to circumvent the 
defence strategy;
(iv)	 possibility of loss of memory of the witness(es) 
whose examination-in-chief has been completed;
(v)	
occurrence of delay in the trial, and the non-
availability of witnesses, if deferral is allowed, 
in view of Section 309(1) CrPC [ “309. Power 
to postpone or adjourn proceedings.—(1) In 
every inquiry or trial the proceedings shall be 
continued from day to day until all the witnesses 
in
attendance have been examined, unless the 
court finds the adjournment of the same beyond 
the following day to be necessary for reasons 
to be recorded: See also Vinod Kumar v. State 
of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC
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(Cri) 226 : (2015) 1 SCC (L&S) 712; and S.J. 
Chaudhary v. State (UT of Delhi), (1984) 1 SCC 
722 : 1984 SCC (Cri) 163.] .
These factors are illustrative for guiding the exercise of 
discretion by a Judge under Section 231(2) CrPC.
24. The following practice guidelines should be 
followed by trial courts in the conduct of a criminal 
trial, as far as possible:
24.1. A detailed case-calendar must be prepared at the 
commencement of the trial after framing of charges.
24.2. The case-calendar must specify the dates on which 
the examination-in-chief and cross-examination (if required) 
of witnesses is to be conducted.
24.3. The case-calendar must keep in view the proposed 
order of production of witnesses by parties, expected 
time required for examination of witnesses, availability 
of witnesses at the relevant time, and convenience of 
both the prosecution as well as the defence, as far as 
possible.
24.4. Testimony of witnesses deposing on the same 
subject-matter must be proximately scheduled.
24.5. The request for deferral under Section 231(2) CrPC 
must be preferably made before the preparation of the 
case-calendar.
24.6. The grant for request of deferral must be premised 
on sufficient reasons justifying the deferral of cross-
examination of each witness, or set of witnesses.
24.7. While granting a request for deferral of cross-
examination of any witness, the trial courts must specify a 
proximate date for the
cross-examination of that witness, 
after the examination-in-chief of such witness(es) as has 
been prayed for.
24.8. The case-calendar, prepared in accordance with 
the above guidelines, must be followed strictly, unless 
departure from the same becomes absolutely necessary.
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24.9. In cases where trial courts have granted a request 
for deferral, necessary steps must be taken to safeguard 
witnesses from being subjected to undue influence, 
harassment or intimidation.”
(emphasis supplied)
Section 233 of the CrPC, 1973
“233. Entering upon defence.- 
(1) Where the accused is not acquitted under section 232, 
he shall be called upon to enter on his defence and adduce 
any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge 
shall file it with the record.
(3) If the accused applies for the issue of any process for 
compelling the attendance of any witness or the production 
of any document or thing, the Judge shall issue such 
process unless he considers, for reasons to be recorded, 
that such application should be refused on the ground 
that it is made for the purpose of vexation or delay or for 
defeating the ends of justice.”
23.	 At this stage, the accused will be called upon to enter on his defence 
and adduce any evidence. If the accused applies for the issue of process 
to compel the attendance of any witnesses or production of document, 
the Judge shall issue such process. It is only when he comes to the 
conclusion, that an application filed for the aforesaid purpose on behalf 
of the defence is vexatious or filed to delay the proceedings or for 
defeating the ends of justice, it has to be refused. We have no hesitation 
in holding
that when an application is moved invoking Section 233 of 
the CrPC, 1973 the Judge is duty bound to issue process, unless he 
is satisfied on the existence of the three elements as aforesaid. Any 
denial would be an affront to the concept of a fair trial.
Section 309 of the CrPC, 1973
“309. Power to postpone or adjourn proceedings.— (1) 
In every inquiry or trial the proceedings shall be continued 
from day-to-day until all the witnesses in attendance have 
been examined, unless the Court finds the adjournment
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of the same beyond the following day to be necessary for 
reasons to be recorded:
Provided that when the inquiry or trial relates to an offence 
under Section 376, Section 376A, Section 376AB, Section 
376B, Section 376C, Section 376D, Section 376DA or 
Section 376DB of the Indian Penal Code (45 of 1860), 
the inquiry or trial shall be completed within a period of 
two months from the date of filing of the charge sheet.
(2) If the Court after taking cognizance of an offence, or 
commencement of trial, finds it necessary or advisable to 
postpone the commencement of, or adjourn, any inquiry or 
trial, it may, from time to time, for reasons to be recorded, 
postpone or adjourn the same on such terms as it thinks 
fit, for such time as it considers reasonable, and may by 
a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused 
person to custody under this section for a term exceeding 
fifteen days at a time:
Provided further that when witnesses are in attendance, 
no adjournment or postponement shall be granted, without 
examining them, except for special reasons to be recorded 
in writing:
Provided also that no adjournment shall be granted for the 
purpose only of enabling the accused person to show cause 
against the sentence proposed to be imposed on him:
Provided also that—
(a)	 no adjournment shall be granted at the request of a 
party, except where the circumstances are beyond 
the
control of that party;
(b)	 the fact that the pleader of a party is engaged in 
another Court, shall not be a ground for adjournment;
(c)	
where a witness is present in Court but a party or 
his pleader is not present or the party or his pleader 
though present in Court, is not ready to examine or 
cross-examine the witness, the Court may, if thinks
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fit, record the statement of the witness and pass such 
orders as it thinks fit dispensing with the examination-
in-chief or cross-examination of the witness, as the 
case may be.
Explanation 1.—If sufficient evidence has been obtained 
to raise a suspicion that the accused may have committed 
an offence, and it appears likely that further evidence may 
be obtained by a remand, this is a reasonable cause for 
a remand.
Explanation 2.—The terms on which an adjournment or 
postponement may be granted include, in appropriate 
cases, the payment of costs by the prosecution or the 
accused.”
24.	 This section places emphasis on the continuation of the trial as any 
obstruction and delay would hamper the process of justice. In a 
criminal trial, continuity is of utmost importance, as it not only helps 
the court to concentrate, but ensures quality justice. However, the 
courts are not powerless in granting adjournments if the circumstances 
so warrant. Therefore, despite a bar under the second and fourth 
proviso to Section 309, an adjournment can be granted, provided 
the party who seeks so, satisfies the court. After all, a speedy trial 
enures to the benefit of the accused. 
State of UP v. Shambu Nath Singh (2001) 4 SCC 667 
“11. The first sub-section mandates on the trial courts 
that the proceedings shall be held expeditiously 
but the words “as expeditiously as possible” have 
provided some play at the joints and
it is through 
such play that delay often creeps in the trials. Even 
so, the next limb of the sub-section sounded for a 
more vigorous stance to be adopted by the court at a 
further advanced stage of the trial. That stage is when 
examination of the witnesses begins. The legislature 
which diluted the vigour of the mandate contained in 
the initial limb of the sub-section by using the words 
“as expeditiously as possible” has chosen to make 
the requirement for the next stage (when examination 
of the witnesses has started) to be quite stern. Once
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the case reaches that stage the statutory command 
is that such examination “shall be continued from 
day to day until all the witnesses in attendance have 
been examined”. The solitary exception to the said 
stringent rule is, if the court finds that adjournment 
“beyond the following day to be necessary” the same 
can be granted for which a condition is imposed on the 
court that reasons for the same should be recorded. 
Even this dilution has been taken away when witnesses 
are in attendance before the court. In such situation the 
court is not given any power to adjourn the case except 
in the extreme contingency for which the second proviso 
to sub-section (2) has imposed another condition,
“provided further that when witnesses are in 
attendance, no adjournment or postponement 
shall be granted, without examining them, except 
for special reasons to be recorded in writing”.
(emphasis supplied)
12. Thus, the legal position is that once examination of 
witnesses started, the court has to continue the trial from 
day to day until all witnesses in attendance have been 
examined (except those whom the party has given up). 
The court has to record reasons for deviating from the 
said course. Even that is forbidden when witnesses 
are present in court, as the requirement then is that 
the court has to examine them. Only if there are 
“special reasons”, which reasons should find a place 
in the order for adjournment, that
alone can confer 
jurisdiction on the court to adjourn the case without 
examination of witnesses who are present in court.”
(emphasis supplied)
Section 465 of the CrPC, 1973
“465. Finding or sentence when reversible by reason 
of error, omission or irregularity.—
(1) Subject to the provisions hereinbefore contained, 
no finding, sentence or order passed by a Court of
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Sunita Devi v. The State of Bihar & Anr.
competent jurisdiction shall be reversed or altered by 
a Court of appeal, confirmation of revision on account 
of any error, omission or irregularity in the complaint, 
summons, warrant, proclamation, order, judgment or 
other proceedings before or during trial or in any inquiry 
or other proceedings under this Code, or any error, or 
irregularity in any sanction for the prosecution, unless in 
the opinion of that Court, a failure of justice has in fact 
been occasioned thereby.
(2) In determining whether any error, omission or 
irregularity in any proceeding under this Code, or any 
error, or irregularity in any sanction for the prosecution 
has occasioned a failure of justice, the Court shall have 
regard to the fact whether the objection could and should 
have been raised at an earlier stage in the proceedings.” 
25.	 This provision is meant to uphold the decision of the trial court, even 
in a case where there is an apparent irregularity in procedure. If the 
evidence available has been duly taken note of by the Court, then 
such a decision cannot be reversed on account of a mere technical 
error. This is based on the principle that a procedural law is the 
handmaid of justice. However, the ultimate issue is as to whether 
such an error or omission has constituted a failure of justice, which 
is one of fact, to be decided on the touchstone of prejudice. 
26.	 If the Appellate Court is of the view that there
is a continued non-
compliance of the substantial provisions of the CrPC, 1973 then the 
rigour of Section 465 of the CrPC, 1973 would not apply and, in that 
case, an order of remand would be justified.
State of M.P. v. Bhooraji, (2001) 7 SCC 679 
“15. A reading of the section makes it clear that the error, 
omission or irregularity in the proceedings held before or 
during the trial or in any enquiry were reckoned by the 
legislature as possible occurrences in criminal courts. Yet 
the legislature disfavoured axing down the proceedings 
or to direct repetition of the whole proceedings afresh. 
Hence, the legislature imposed a prohibition that unless 
such error, omission or irregularity has occasioned “a 
failure of justice” the superior court shall not quash
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the proceedings merely on the ground of such error, 
omission or irregularity.
16. What is meant by “a failure of justice” occasioned 
on account of such error, omission or irregularity? 
This Court has observed in Shamnsaheb M. Multtani 
v. State of Karnataka [(2001) 2 SCC 577: 2001 SCC 
(Cri) 358] thus: (SCC p. 585, para 23)
“23. We often hear about ‘failure of justice’ 
and quite often the submission in a criminal 
court is accentuated with the said expression. 
Perhaps it is too pliable or facile an expression 
which could be fitted in any situation of 
a case. The expression ‘failure of justice’ 
would appear, sometimes, as an etymological 
chameleon (the simile is borrowed from Lord 
Diplock in Town Investments Ltd. v. Deptt. 
of the Environment [(1977) 1 All ER 813: 
1978 AC 359: (1977) 2 WLR 450 (HL)]). The 
criminal court, particularly the superior court 
should make a close examination to ascertain 
whether there was really a failure of justice 
or whether it is only a camouflage.”
(emphasis supplied)
Darbara Singh v. State of Punjab, (2012) 10 SCC 476 
21. “Failure of justice” is an extremely pliable or facile 
expression, which can be made to fit into any situation 
in any 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 also safeguarded, but they should not be 
overemphasised 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 
respect of the protections available to him under the 
Indian criminal jurisprudence. “Prejudice” is incapable
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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 with respect 
to matters falling outside 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 criminal jurisprudence, then the accused can 
seek benefit under the orders of the court. (Vide Rafiq 
Ahmed v. State of U.P. [(2011) 8 SCC 300 : (2011) 3 SCC 
(Cri) 498: AIR 2011 SC 3114] , SCC p. 320, para 36; Rattiram 
v. State of M.P. [(2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] 
and Bhimanna v. State of Karnataka [(2012) 9 SCC 650] .)”
(emphasis supplied)
Kottayya v. Emperor, AIR (34) 1947 Privy Council 67
“[7] Even on this basis, Mr. Pritt for the accused has argued 
that a breach of a direct and important provision of the 
Code of Criminal Procedure cannot be cured, but must 
lead to the quashing of the conviction. The Crown, on the 
other hand, contends that the failure to produce the note-
book in question amounted merely to an irregularity in the 
proceedings which can be cured under the provisions of S. 
537 Criminal P.C. if the court is satisfied that such irregularity 
has not in fact occasioned any failure of justice. There are, 
no doubt, authorities in India which lend some support to 
Mr.
Pritt’s contention, and reference may be made to 49 
ALL. 475 [(’27) 49 All. 475 : 14 A.I.R. 1927 All. 350 : 100 
I.C. 371, Tirkha v Nanak], in which the court expressed 
the view that S. 537, Criminal P.C., applied only to errors 
of procedure arising out of mere inadvertence, and not 
to cases of disregard of, or disobedience to, mandatory 
provisions of the Code, and to 45 Mad. 820 [(’22) 45 Mad. 
820 : 9 A.I.R. 1922 Mad. 512 : 71 I.C. 252, In re Madura 
Muthu Vannian.], in which the view was expressed that any 
failure to examine the accused under S. 342, Criminal P.C., 
was fatal to the validity of the trial and could not be cured 
under S. 537. In their Lordships’ opinion this argument is
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based on too narrow a view of the operation of S. 537. 
When a trial is conducted in a manner different from 
that prescribed by the Code as in 28 I.A. 257 [(’01) 28 
I.A. 257 : 25 Mad. 61 : 8 Sar. 160 (P.C.), Subrahmania 
Aiyar v. Emperor], the trial is bad, and no question of 
curing an irregularity arises; but if the trial is conducted 
substantially in the manner prescribed by the Code, 
but some irregularity occurs in the course of such 
conduct, the irregularity can be cured under S. 537, 
and none the less so because the irregularity involves, 
as must nearly always be the case, a breach of one 
or more of the very comprehensive provisions of the 
Code. The distinction drawn in many of the cases in 
India between an illegality and an irregularity is one 
of degree rather than of kind. This view finds support in 
the decision of their Lordships’ Board in 5 Rang. 53 [(‘26) 
5 Rang. 53 : 14 A.I.R. 1927 P.C. 44 :54 I.A. 96 : 100 I.C. 
227 (P.C.), Abdul Rahman v. Emperor], where failure to 
comply with Ss. 360, Criminal P.C., was held to be cured 
by Ss. 535 and 537. The present case falls under S. 537, 
and their Lordships hold the trial valid notwithstanding the 
breach of S. 162.”
(emphasis supplied)
RE-TRIAL
Section 386 of the CrPC, 1973
“386. Powers of the Appellate Court.—After perusing 
such record and hearing the appellant or his pleader, if 
he appears, and the Public Prosecutor if he appears, and 
in case of an
appeal under section 377 or section 378, 
the accused, if he appears, the Appellate Court may, if it 
considers that there is no sufficient ground for interfering, 
dismiss the appeal, or may— 
(a)	 in an appeal from an order of acquittal, reverse such 
order and direct that further inquiry be made, or that 
the accused be re-tried or committed for trial, as the 
case may be, or find him guilty and pass sentence 
on him according to law;
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(b)	 in an appeal from a conviction— 
(i)	
reverse the finding and sentence and 
acquit or discharge the accused, or order 
him to be re-tried by a Court of competent 
jurisdiction subordinate to such Appellate 
Court or committed for trial, or
(ii)	
alter the finding, maintaining the sentence, 
or 
(iii)	 with or without altering the finding, alter 
the nature or the extent, or the nature and 
extent, of the sentence, but not so as to 
enhance the same— 
(c)	
in an appeal for enhancement of sentence—
(i)	
reverse the finding and sentence and acquit 
or discharge the accused or order him to 
be re-tried by a Court competent to try the 
offence, or 
(ii)	
alter the finding maintaining the sentence, 
or 
(iii)	 with or without altering the finding, alter 
the nature or the extent, or, the nature and 
extent, of the sentence, so as to enhance 
or reduce the same; 
(d)	 in an appeal from any other order, alter or reverse 
such order; 
(e)	 make any amendment or any consequential or 
incidental order that may be just or proper: 
Provided that the sentence shall not be enhanced unless 
the accused has had an opportunity of showing cause 
against such enhancement:
Provided further that the Appellate Court shall not inflict 
greater punishment for the offence which in its opinion the 
accused has committed, than might have been inflicted for 
that offence by the Court passing the order or sentence 
under appeal.”
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27.	 An Appellate Court has got ample power to direct re-trial. However, 
such a power is to be exercised in exceptional cases. The irregularities 
found must be so material that a re-trial is the only option. In other 
words, the failure to follow the mandate of law must cause a serious 
prejudice vitiating the entire trial, which cannot be cured otherwise, 
except by way of a re-trial. Once such a re-trial is ordered, the effect 
is that all the proceedings recorded by the court would get obliterated 
leading to a fresh trial, which is inclusive of the examination of 
witnesses.
Nasib Singh v. State of Punjab, (2022) 2 SCC 89 
“33. The principles that emerge from the decisions of this 
Court on retrial can be formulated as under:
33.1. The appellate court may direct a retrial only in 
“exceptional” circumstances to avert a miscarriage 
of justice.
33.2. Mere lapses in the investigation are not sufficient 
to warrant a direction for retrial. Only if the lapses are 
so grave so as to prejudice the rights of the parties, 
can a retrial be directed.
33.3. A determination of whether a “shoddy” 
investigation/trial has prejudiced the party, must 
be based on the facts of each case pursuant to a 
thorough reading of the evidence.
33.4. It is not sufficient if the accused/prosecution 
makes a facial argument that there has been a 
miscarriage of justice warranting a retrial. It is 
incumbent on the appellate court directing a
retrial 
to provide a reasoned order on the nature of the 
miscarriage of justice caused with reference to the 
evidence and investigatory process.
33.5. If a matter is directed for retrial, the evidence 
and record of the previous trial is completely wiped 
out.
33.6. The following are some instances, not intended 
to be exhaustive, of when the Court could order a 
retrial on the ground of miscarriage of justice:
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(a) The trial court has proceeded with the 
trial in the absence of jurisdiction;
(b) The trial has been vitiated by an illegality 
or irregularity based on a misconception of 
the nature of the proceedings; and
(c) The prosecutor has been disabled or 
prevented from adducing evidence as 
regards the nature of the charge, resulting 
in the trial being rendered a farce, sham 
or charade.”
SENTENCING
“If the criminal law as a whole is the Cinderella 
of jurisprudence, then the law of sentencing is 
Cinderella’s illegitimate baby”
 Nigel Walker. 
British criminologist 
Sentencing in a Rational Society 1 (1969)
Section 235 of the CrPC, 1973
“235. Judgment of acquittal or conviction.—
(1) After hearing arguments and points of law (if any), the 
Judge shall give a judgment in the case. 
(2) If the accused is convicted, the Judge shall, unless 
he proceeds in accordance with the provisions of section 
360, hear the accused on the questions of sentence, and 
then pass sentence on him according to law.”
Section 360 of the CrPC, 1973 
“360. Order to release on probation of good conduct 
or after admonition.-
(1) When any person not under twenty-one years of age 
is convicted of an offence punishable with fine only or 
with imprisonment for a term of seven years or less, or 
when any person under twenty-one years of age or any 
woman is convicted of an offence not punishable with
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death or imprisonment for life, and no previous conviction 
is proved against the offender, if it appears to the Court 
before which he is convicted, regard being had to the 
age, character or antecedents of the offender, and to 
the circumstances in which the offence was committed, 
that it is expedient that the offender should be released 
on probation of good conduct, the Court may, instead of 
sentencing him at once to any punishment, direct that he 
be released on his entering into a bond, with or without 
sureties, to appear and receive sentence when called 
upon during such period (not exceeding three years) as 
the Court may direct and in the meantime to keep the 
peace and be of good behaviour:
Provided that where any first offender is convicted by a 
Magistrate of the second class not specially empowered 
by the High Court, and the Magistrate is of opinion that 
the powers conferred by this section should be exercised, 
he shall record his opinion to that effect, and submit the 
proceedings to a Magistrate of the first class forwarding 
the accused to or taking bail for his appearance before, 
such Magistrate, who shall dispose of the case in the 
manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate 
of the first class as provided by sub-section (1), such 
Magistrate may thereupon pass such sentence or make 
such order as he might have passed or made if the 
case had originally
been heard by him, and, if he thinks 
further inquiry or additional evidence on any point to 
be necessary, he may make such inquiry or take such 
evidence himself or direct such inquiry or evidence to 
be made or taken.
(3) In any case in which a person is convicted of theft, 
theft in a building, dishonest misappropriation, cheating 
or any offence under the Indian Penal Code (45 of 1860) 
punishable with not more than two years’ imprisonment 
or any offence punishable with fine only and no previous 
conviction is proved against him, the Court before which
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he is so convicted may, if it thinks fit, having regard to 
the age, character, antecedents or physical or mental 
condition of the offender and to the trivial nature of the 
offence or any extenuating circumstances under which the 
offence was committed, instead of sentencing him to any 
punishment, release him after due admonition.
(4) An order under this section may be made by any 
Appellate Court or by the High Court or Court of Session 
when exercising its powers of revision.
(5) When an order has been made under this section 
in respect of any offender, the High Court or Court of 
Session may, on appeal when there is a right of appeal 
to such Court, or when exercising its powers of revision, 
set aside such order, and in lieu thereof pass sentence 
on such offender according to law:
Provided that the High Court or Court of Session shall 
not under this sub-section inflict a greater punishment 
than might have been inflicted by the Court by which the 
offender was convicted.
(6) The provisions of Sections 121, 124 and 373 shall, 
so far as may be apply in the case of sureties offered in 
pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender 
under sub-section (1) shall be satisfied that an offender 
or his surety (if any) has a fixed place of abode or regular 
occupation in the place for which the Court acts or in which 
the offender is likely to live during
the period named for 
the observance of the conditions.
(8) If the Court which convicted the offender, or a Court 
which could have dealt with the offender in respect of his 
original offence, is satisfied that the offender has failed to 
observe any of the conditions of his recognizance, it may 
issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, 
shall be brought forthwith before the Court issuing the 
warrant, and such Court may either remand him in custody
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until the case is heard or admit him to bail with a sufficient 
surety conditioned on his appearing for sentence and such 
Court may after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of 
the Probation of Offenders Act, 1958 (20 of 1958), or the 
Children Act, 1960 (60 of 1960), or any other law for the time 
being in force for the treatment, training or rehabilitation 
of youthful offenders.”
Section 3 of the Probation of Offenders Act, 1958
“3. Power of court to release certain offenders after 
admonition.—
When any person is found guilty of having committed an 
offence punishable under section 379 or section 380 or 
section 381 or section 404 or section 420 of the Indian 
Penal Code, (45 of 1860) or any offence punishable with 
imprisonment for not more than two years, or with fine, or 
with both, under the Indian Penal Code or any other law, 
and no previous conviction is proved against him and the 
court by which the person is found guilty is of opinion that, 
having regard to the circumstances of the case including 
the nature of the offence, and the character of the offender, 
it is expedient so to do, then, notwithstanding anything 
contained in any other law for the time being in force, the 
court may, instead of sentencing him to any punishment 
or releasing him on probation of good conduct under 
section 4, release him after due admonition. 
Explanation.—For the
purposes of this section, previous 
conviction against a person shall include any previous 
order made against him under this section or section 4.” 
Section 4 of the Probation of Offenders Act, 1958
“4. Power of court to release certain offenders on 
probation of good conduct.—
(1)	 When any person is found guilty of having committed 
an offence not punishable with death or imprisonment 
for life and the court by which the person is found guilty 
is of opinion that, having regard to the circumstances
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of the case including the nature of the offence and the 
character of the offender, it is expedient to release him 
on probation of good conduct, then, notwithstanding 
anything contained in any other law for the time being 
in force, the court may, instead of sentencing him at 
once to any punishment direct that he be released 
on his entering into a bond, with or without sureties, 
to appear and receive sentence when called upon 
during such period, not exceeding three years, as 
the court may direct, and in the meantime to keep 
the peace and be of good behaviour: 
Provided that the court shall not direct such release 
of an offender unless it is satisfied that the offender or 
his surety, if any, has a fixed place of abode or regular 
occupation in the place over which the court exercises 
jurisdiction or in which the offender is likely to live 
during the period for which he enters into the bond. 
(2)	 Before making any order under sub-section (1), the 
court shall take into consideration the report, if any, of 
the probation officer concerned in relation to the case.
(3)	 When an order under sub-section (1) is made, the 
court may, if it is of opinion that in the interests of 
the offender and of the public it is expedient so to 
do, in addition pass a supervision order directing that 
the offender shall remain under the supervision of 
a probation officer named in the order during such 
period, not being
less than one year, as may be 
specified therein, and may in such supervision order, 
impose such conditions as it deems necessary for 
the due supervision of the offender. 
(4)	 The court making a supervision order under sub-
section (3) shall require the offender, before he 
is released, to enter into a bond, with or without 
sureties, to observe the conditions specified in such 
order and such additional conditions with respect to 
residence, abstention from intoxicants or any other 
matter as the court may, having regard to the particular
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circumstances, consider fit to impose for preventing 
a repetition of the same offence or a commission of 
other offences by the offender. 
(5)	 The court making a supervision order under sub-
section (3) shall explain to the offender the terms 
and conditions of the order and shall forthwith furnish 
one copy of the supervision order to each of the 
offenders, the sureties, if any, and the probation 
officer concerned.”
Section 6 of the Probation of Offenders Act 1958 
“6. Restrictions on imprisonment of offenders under 
twenty-one years of age.—
(1) When any person under twenty-one years of age is 
found guilty of having committed an offence punishable 
with imprisonment (but not with imprisonment for life), 
the court by which the person is found guilty shall not 
sentence him to imprisonment unless it is satisfied that, 
having regard to the circumstances of the case including 
the nature of the offence and the character of the offender, 
it would not be desirable to deal with him under section 
3 or section 4, and if the court passes any sentence of 
imprisonment on the offender, it shall record its reasons 
for doing so. 
(2) For the purpose of satisfying itself whether it would 
not be desirable to deal under section 3 or section 4 with 
an offender referred to in sub-section (1), the court shall 
call for a report from the probation officer and consider 
the report, if any, and any other information available to it
relating to the character and physical and mental condition 
of the offender.”
28.	 Before passing the sentence on a convict, after rendering conviction, 
the Judge shall consider the feasibility of proceeding in accordance 
with the provisions of Section 360 of the CrPC, 1973 which speaks of 
releasing a convict on probation of good conduct or after admonition. 
Being a beneficial provision dealing with a reformative aspect, it is 
the bounden duty of the Judge to consider the application of this 
provision before proceeding to hear the accused on sentence. While
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doing so, the Judge has to hear the accused and the prosecution. 
Similarly, the Court has to apply the salient provisions contained 
under Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 
(hereinafter referred to as “Act, 1958”). If an offence is considered as 
an act against the society, the resultant action cannot be retributive 
alone, as equal importance is required, if not more, to be given 
to the reformative part. The ultimate goal is to bring the accused 
back on the rails, to once again be a part of society. Any attempt 
to ignore either Section 360 of the CrPC, 1973 or the provisions as 
mandated in the Act, 1958 would make their purpose redundant. It 
looks as if these laudable provisions have been lost sight of while 
rendering a sentence. The ultimate objective is to prevent the 
commission of such offences in future. It can never be done by a 
retributive measure alone, as a change of heart at the behest of 
the accused is the best way to prevent an act of crime. Therefore, 
we have absolute clarity in our mind, that a trial court is duty bound 
to comply with the mandate of Section 360 of the CrPC, 1973 read 
with Sections 3, 4 and 6 of the Act, 1958 before embarking into 
the question of sentence. In this connection, we may note that sub-
section (10) of Section 360 of the CrPC, 1973 makes a conscious 
effort to remind the Judge of the rigour of the beneficial provisions 
contained in
the Act, 1958.
29.	 Hearing the accused on sentence is a valuable right conferred on 
the accused. The real importance lies only with the sentence, as 
against the conviction. Unfortunately, we do not have a clear policy 
or legislation when it comes to sentencing. Over the years, it has 
become judge-centric and there are admitted disparities in awarding 
a sentence.
30.	 In a country like ours, sentencing accused persons pursuant to a 
conviction, on a uniform pattern, would also be prejudicial. When it 
comes to sentencing, there are various factors such as age, sex, 
education, home life, social background, emotional and mental 
conditions, caste, religion and community that constitute aggravating 
and mitigating circumstances.
31.	 There is a distinction between knowledge and character. Knowledge 
is acquired, while character is formed. The formation of a person’s 
character depends upon various factors. More often than not, a 
convict does not have control over the formation of his character. This
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leads to certain groups of people inheriting crime. In this connection, 
we can draw an analogy from nature itself. Before falling on the 
ground, rainwater remains the same. It is the soil which changes 
the character of the water. Rainwater partakes in the character of 
the soil, over which it does not have any control. The issues are 
extremely complex. 
32.	 A decision of a Judge in sentencing, would vary from person to 
person. This will also vary from stage to stage. It is controlled by 
the mind. The environment and the upbringing of a Judge would 
become the ultimate arbiter in deciding the sentence. A Judge 
from an affluent background might have a different mindset as 
against a Judge from a humble one. A female Judge might look at 
it differently, when compared to her male counterpart. An Appellate 
Court might tinker with the sentence due to its experience, and 
the external factors like institutional constraints might come into 
play. Certainly, there is a crying need for a clear sentencing policy, 
which should never be judge-centric as the society has to know 
the basis of a sentence. 
33.	 Sentencing shall not be a mere lottery. It shall also not be an 
outcome of a knee-jerk reaction. This is a very important part of 
the Fundamental Rights conferred under Articles 14 and 21 of the 
Constitution of India, 1950. Any unwarranted disparity would be 
against the very concept of a fair trial and, therefore,
against justice.
34.	 Various elements such as deterrence, incapacitation and reformation 
should form part of sentencing. There is a compelling need for a 
studied scrutiny of sentencing, to address in particular the reformative 
aspect, while maintaining equality between different groups. Perhaps, 
much study is also required on the occurence of repeat offences, 
which could be attributable to certain groups. The nexus between 
particular types of offences and the offenders forming their own 
groups has to be taken note of and addressed.
35.	 The concept of intuitive sentencing is against the rule of law. A Judge 
can never have unrestrictive and unbridled discretion, based upon his 
conscience formed through his understanding of the society, without 
there being any guidelines in awarding a sentence. The need for 
adequate guidelines for exercising sentencing discretion, avoiding 
unwanted disparity, is of utmost importance.
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36.	 Courts do take into consideration the mitigating and aggravating 
circumstances. As we have dealt with illustratively, no research 
has been undertaken for constituting what are aggravating and 
mitigating circumstances. While it would be appropriate to follow 
‘beyond reasonable doubt’ standard in adjudicating aggravating 
circumstances, the ‘balance of probability’ standard is required while 
construing mitigating circumstances. Courts may also be guided 
by the conduct of the convict during pre-trial stage, either under 
incarceration or otherwise. A report may well be called for from the 
designated authority. The ultimate idea is to eliminate discretion on 
the part of the Court, which obviously leads to disparity.
37.	 As we discuss the issue we have flagged, we understand that the 
issue is an extremely complex one and it is the duty of the States 
and the Union of India to deal with the situation by duly considering 
the three different modes discussed above. There has to be a 
conscious discussion and debate over this issue which might 
require constituting an appropriate Commission on Sentencing 
consisting of various experts and stakeholders. We illustratively 
suggest “the members from the legal fraternity, psychologists, 
sociologists, criminologists, executives and legislators”. Societal 
experience would come handy in coming to a correct conclusion. 
What we have at present is an imposition of
a sentence by way 
of a legislation. There are obvious errors and lacunae, which 
have been pointed out in the preceding discussion. It may also 
be imperative for a court to have an assessment to be made by 
an independent authority on the conduct and behaviour of the 
accused for the purpose of deciding the sentence. The guidelines 
which have been proposed by this Court may also be considered. 
This would include the creation of a competent authority tasked 
to give a report and its composition.
Manoj v. State of M.P., (2023) 2 SCC 353 
“230. The strength of “precedent” and “consistency” is 
perhaps, therefore, lowest when it comes to matters of 
sentencing, as long as it is within the confines of legality 
and resulting in “principled sentencing”. In other words, 
the judicial incongruence when it relates to sentencing, 
would in fact be a positive indicator, rather than a negative 
one, provided it is still within the well-defined contours of
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“principled” sentencing. For sentencing in capital offences, 
discretion to arrive at individualised sentences is encouraged, 
but must be constrained by the “rarest of rare” principle, 
wherein the court considers aggravating circumstances of 
the crime, and mitigating circumstances of the criminal (a 
“liberal and expansive” construction of the latter), which in 
turn must inform their consideration of whether the option of 
life imprisonment is unquestionably foreclosed owing to an 
impossibility [ Held to be “probability” and not “impossibility” 
in Rajendra Pralhadrao Wasnik v. State of Maharashtra, 
(2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420] to reform.
xxx            xxx            xxx
233. Therefore, “individualised, principled sentencing” — 
based on both the crime and criminal, with consideration 
of whether reform or rehabilitation is achievable (held to 
be “probable” in Rajendra Pralhadrao Wasnik [Rajendra 
Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 
SCC 460 : (2019) 4 SCC (Cri) 420] ), and consequently 
whether the option of life imprisonment is unquestionably 
foreclosed — should be the only factor of “commonality” 
that must be discernible from decisions relating to capital 
offences. With the creation of a new sentencing threshold 
in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. 
State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 
113] , and later affirmed by a Constitution Bench in
Union 
of India v. V. Sriharan [Union of India v. V. Sriharan, (2016) 
7 SCC 1 : (2016) 2 SCC (Cri) 695] , of life imprisonment 
without statutory remission (i.e. Articles 72 and 161 of the 
Constitution are still applicable), yet another option exists, 
before imposition of death sentence. However, serious 
concern has been raised against this concept, as it was 
upheld by a narrow majority, and is left to be considered 
at an appropriate time.
xxx            xxx            xxx
Practical guidelines to collect mitigating circumstances
248. There is urgent need to ensure that mitigating 
circumstances are considered at the trial stage, to avoid
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slipping into a retributive response to the brutality of the 
crime, as is noticeably the situation in a majority of cases 
reaching the appellate stage.
249. To do this, the trial court must elicit information from 
the accused and the State, both. The State, must—for an 
offence carrying capital punishment—at the appropriate 
stage, produce material which is preferably collected 
beforehand, before the Sessions Court disclosing 
psychiatric and psychological evaluation of the accused. 
This will help establish proximity (in terms of timeline), to the 
accused person’s frame of mind (or mental illness, if any) 
at the time of committing the crime and offer guidance on 
mitigating factors (1), (5), (6) and (7) spelled out in Bachan 
Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 
1980 SCC (Cri) 580] . Even for the other factors of (3) and 
(4)—an onus placed squarely on the State—conducting 
this form of psychiatric and psychological evaluation close 
on the heels of commission of the offence, will provide a 
baseline for the appellate courts to use for comparison i.e. to 
evaluate the progress of the accused towards reformation, 
achieved during the incarceration period.
250. Next, the State, must in a time-bound manner, 
collect additional information pertaining to the accused. 
An illustrative, but not exhaustive list is as follows:
(a)	 Age
(b)	 Early family background (siblings, protection of
parents, any history of violence or neglect)
(c)	
Present family background (surviving family members, 
whether married, has children, etc.)
(d)	 Type and level of education
(e)	 Socio-economic background (including conditions of 
poverty or deprivation, if any)
(f)	
Criminal antecedents (details of offence and whether 
convicted, sentence served, if any)
(g)	 Income and the kind of employment (whether none, 
or temporary or permanent, etc.);
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(h)	 Other factors such as history of unstable social 
behaviour, or mental or psychological ailment(s), 
alienation of the individual (with reasons, if any), etc.
This information should mandatorily be available to 
the trial court, at the sentencing stage. The accused 
too, should be given the same opportunity to produce 
evidence in rebuttal, towards establishing all mitigating 
circumstances.
251. Lastly, information regarding the accused’s jail 
conduct and behaviour, work done (if any), activities the 
accused has involved themselves in, and other related 
details should be called for in the form of a report from the 
relevant jail authorities (i.e. Probation and Welfare Officer, 
Superintendent of Jail, etc.). If the appeal is heard after a 
long hiatus from the trial court’s conviction, or High Court’s 
confirmation, as the case may be — a fresh report (rather 
than the one used by the previous court) from the jail 
authorities is recommended, for a more exact and complete 
understanding of the contemporaneous progress made by 
the accused, in the time elapsed. The jail authorities must 
also include a fresh psychiatric and psychological report 
which will further evidence the reformative progress, and 
reveal post-conviction mental illness, if any.
252. It is pertinent to point out that this Court in Anil v. 
State of Maharashtra [Anil v. State of Maharashtra, (2014) 
4 SCC 69 : (2014) 2 SCC (Cri) 266] has in fact
directed 
criminal courts to call for additional material : (SCC p. 
86, para 33)
“33. … Many a times, while determining the sentence, 
the courts take it for granted, looking into the facts of 
a particular case, that the accused would be a menace 
to the society and there is no possibility of reformation 
and rehabilitation, while it is the duty of the court to 
ascertain those factors, and the State is obliged to furnish 
materials for and against the possibility of reformation and 
rehabilitation of the accused. The facts, which the courts 
deal with, in a given case, cannot be the foundation for 
reaching such a conclusion, which, as already stated,
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calls for additional materials. We, therefore, direct that the 
criminal courts, while dealing with the offences like Section 
302IPC, after conviction, may, in appropriate cases, call 
for a report to determine, whether the accused could be 
reformed or rehabilitated, which depends upon the facts 
and circumstances of each case.”
(emphasis supplied)
We hereby fully endorse and direct that this should be 
implemented uniformly, as further elaborated above, for 
conviction of offences that carry the possibility of death 
sentence.”
38.	 Our thought process has been ignited from a book titled “Discretion, 
Discrimination and the Rule of Law, Reforming Sentencing in India”, 
authored by Mr. Mrinal Satish, published by the Cambridge University 
Press, (2017). The learned author has drawn extensively from the 
sentencing policy in Israel. Upon a thorough reading of the book, it 
presents an excellent insight into sentencing policy. The Israeli model 
takes into consideration numerous factors compiled in the form of 
guidelines to the Judge, in sentencing an accused. 
39.	 We have also benefitted by looking into the policy adopted in other 
countries, such as in Canada, New Zealand and UK.
CANADA
Criminal Code (Canada)
Purpose and Principles of Sentencing
Section 718 of the Criminal Code (Canada)
“Purpose
718 The fundamental purpose of sentencing is to 
protect society and to contribute, along with crime 
prevention
initiatives, to respect for the law and the 
maintenance of a just, peaceful and safe society by 
imposing just sanctions that have one or more of the 
following objectives:
(a)	 to denounce unlawful conduct and the harm done 
to victims or to the community that is caused by 
unlawful conduct;
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(b)	 to deter the offender and other persons from 
committing offences;
(c)	 to separate offenders from society, where necessary;
(d)	 to assist in rehabilitating offenders;
(e)	 to provide reparations for harm done to victims or to 
the community; and
(f)	
to promote a sense of responsibility in offenders, and 
acknowledgment of the harm done to victims or to 
the community.”
(emphasis supplied)
Section 718.1 of the Criminal Code (Canada)
“Fundamental principle
718.1 A sentence must be proportionate to the gravity 
of the offence and the degree of responsibility of the 
offender.”
(emphasis supplied)
Section 718.2 of the Criminal Code (Canada)
“Other sentencing principles
718.2 A court that imposes a sentence shall also take 
into consideration the following principles:
(a) a sentence should be increased or reduced to 
account for any relevant aggravating or mitigating 
circumstances relating to the offence or the offender, 
and, without limiting the generality of the foregoing,
(i)	
evidence that the offence was motivated by 
bias, prejudice or hate based on race, national 
or ethnic origin, language, colour, religion, 
sex, age, mental or physical disability, sexual 
orientation, or gender identity or expression, 
or on any other similar factor,
(ii)	
evidence that the offender, in committing the 
offence, abused the offender’s intimate partner
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or a member of the victim or the offender’s 
family,
(ii.1)	 evidence that the offender, in committing the 
offence, abused a person under the age of 
eighteen years,
(iii)	
evidence that the offender, in committing the 
offence, abused a position of trust or authority 
in relation to the victim,
(iii.1)	 evidence that the offence had a significant 
impact on the victim, considering their age 
and other personal circumstances, including 
their health and financial situation,
(iii.2)	 evidence that the offence was committed 
against a person who, in the performance of 
their duties and functions, was providing health 
services, including personal care services,
(iv)	
evidence that the offence was committed for the 
benefit of, at the direction of or in association 
with a criminal organization,
(v)	
evidence that the offence was a terrorism 
offence,
(vi)	
evidence that the offence was committed 
while the offender was subject to a conditional 
sentence order made under section 742.1 
or released on parole, statutory release or 
unescorted temporary absence under the 
Corrections and Conditional Release Act, and
(vii)	
evidence that the commission of the offence 
had the effect of impeding another person from 
obtaining health services, including personal 
care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed 
on similar offenders for similar offences
committed 
in similar circumstances;
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(c) where consecutive sentences are imposed, the 
combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if 
less restrictive sanctions may be appropriate in the 
circumstances; and
(e) all available sanctions, other than imprisonment, that 
are reasonable in the circumstances and consistent with 
the harm done to victims or to the community should be 
considered for all offenders, with particular attention to the 
circumstances of Aboriginal offenders.”
(emphasis supplied)
Procedure and Evidence
Section 720 of the Criminal Code (Canada)
“Sentencing proceedings
720 (1) A court shall, as soon as practicable after an 
offender has been found guilty, conduct proceedings 
to determine the appropriate sentence to be imposed.
Court-supervised programs
(2) The court may, with the consent of the Attorney General 
and the offender and after considering the interests of 
justice and of any victim of the offence, delay sentencing to 
enable the offender to attend a treatment program approved 
by the province under the supervision of the court, such 
as an addiction treatment program or a domestic violence 
counselling program.”
(emphasis supplied)
Section 721 of the Criminal Code (Canada)
“Report by probation officer
721 (1) Subject to regulations made under subsection 
(2), where an accused, other than an organization, 
pleads guilty to or is found guilty of an offence, a 
probation
officer shall, if required to do so by a court, 
prepare and file with the court a report in writing relating

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to the accused for the purpose of assisting the court 
in imposing a sentence or in determining whether the 
accused should be discharged under section 730.”
(emphasis supplied)
NEW ZEALAND
Sentencing Act 2002, New Zealand
Section 3 of the Sentencing Act, 2002
“Part 1 Sentencing purposes and principles, and 
provisions of general application
Preliminary provisions
3 Purposes
The purposes of this Act are—
(a) to set out the purposes for which offenders may be 
sentenced or otherwise dealt with; and
(b) to promote those purposes, and aid in the public’s 
understanding of sentencing practices, by providing 
principles and guidelines to be applied by courts in 
sentencing or otherwise dealing with offenders; and
(c) to provide a sufficient range of sentences and other 
means of dealing with offenders; and
(d) to provide for the interests of victims of crime.”
(emphasis supplied)
Section 7 of the Sentencing Act, 2002
“Purposes and principles of sentencing
7 Purposes of sentencing or otherwise dealing with 
offenders
(1) The purposes for which a court may sentence or 
otherwise deal with an offender are—
(a)	 to hold the offender accountable for harm 
done to the victim and the community by the 
offending; or
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(b)	 to promote in the offender a sense of responsibility 
for, and an acknowledgment of, that harm; or
(c)	 to provide for the interests of the victim of the 
offence; or
(d)	 to provide reparation for harm done by the 
offending; or
(e)	 to denounce the conduct in which the offender 
was involved; or
(f)	
to deter the offender or other persons from 
committing the same or a similar offence; or
(g)	 to protect the community from the offender; or
(h)	 to assist in the offender’s rehabilitation and 
reintegration; or
(i)	
a combination of 2 or more of the purposes 
in paragraphs (a) to (h).
(2) To avoid doubt, nothing about the order in which the 
purposes appear in this section implies that any purpose 
referred to must be given greater weight than any other 
purpose referred to.”
(emphasis supplied)
Section 8 of the Sentencing Act, 2002
“8 Principles of sentencing or otherwise dealing with 
offenders
In sentencing or otherwise dealing with an offender the 
court—
(a) must take into account the gravity of the offending in 
the particular case, including the degree of culpability 
of the offender; and
(b) must take into account the seriousness of the type 
of offence in comparison with other types of offences, as 
indicated by the maximum penalties prescribed for the 
offences; and
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(c) must impose the maximum penalty prescribed for the 
offence if the offending is within the most serious of cases 
for which that penalty is prescribed, unless circumstances 
relating to the offender make that inappropriate; and
(d) must impose a penalty near to the maximum 
prescribed for the offence if the offending is near to the 
most serious of cases for which that penalty is prescribed, 
unless circumstances relating to the offender make that 
inappropriate; and
(e) must take into account the general desirability of 
consistency with appropriate sentencing levels and 
other means of dealing with offenders in respect of 
similar offenders committing similar offences in similar 
circumstances; and
(f) must take into account any information provided 
to the court concerning the effect of the offending on 
the victim; and
(g) must impose the least restrictive outcome that is 
appropriate in the circumstances, in accordance with the 
hierarchy of sentences and orders set out in section 10A; and
(h) must take into account any particular circumstances 
of the offender that mean that a sentence or other 
means of dealing with the offender that would 
otherwise be appropriate would, in the particular 
instance, be disproportionately severe; and
(i) must take into account the offender’s personal, 
family, whanau, community, and cultural background 
in imposing a sentence or other means of dealing 
with the
offender with a partly or wholly rehabilitative 
purpose; and
(j) must take into account any outcomes of restorative 
justice processes that have occurred, or that the court 
is satisfied are likely to occur, in relation to the particular 
case (including, without limitation, anything referred to in 
section 10).”
(emphasis supplied)
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Section 9 of the Sentencing Act, 2002
“9 Aggravating and mitigating factors
(1)	
In sentencing or otherwise dealing with an offender the 
court must take into account the following aggravating 
factors to the extent that they are applicable in the case:
xxx            xxx            xxx
(2)	
In sentencing or otherwise dealing with an offender the 
court must take into account the following mitigating 
factors to the extent that they are applicable in the case:
xxx            xxx            xxx
(3)	 Despite subsection (2)(e), the court must not take into 
account by way of mitigation the fact that the offender 
was, at the time of committing the offence, affected 
by the voluntary consumption or use of alcohol or any 
drug or other substance (other than a drug or other 
substance used for bona fide medical purposes).
xxx            xxx            xxx
(4)	 Nothing in subsection (1) or subsection (2)—
(a) prevents the court from taking into account any other 
aggravating or mitigating factor that the court thinks fit; or
(b) implies that a factor referred to in those subsections 
must be given greater weight than any other factor that 
the court might take into account.”
Section 9A of the Sentencing Act, 2002
“9A Cases involving violence against, or neglect of, 
child under 14 years
(1) This section applies if the court is sentencing or 
otherwise dealing with an offender in a case involving 
violence against, or neglect of, a
child under the age 
of 14 years.
(2) The court must take into account the following 
aggravating factors to the extent that they are 
applicable in the case:
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(a) the defencelessness of the victim:
(b) in relation to any harm resulting from the offence, any 
serious or long-term physical or psychological effect on 
the victim:
(c) the magnitude of the breach of any relationship of trust 
between the victim and the offender:
(d) threats by the offender to prevent the victim reporting 
the offending:
(e) deliberate concealment of the offending from authorities.
(3) The factors in subsection (2) are in addition to 
any factors the court might take into account under 
section 9.
(4) Nothing in this section implies that a factor referred to 
in subsection (2) must be given greater weight than any 
other factor that the court might take into account.”
(emphasis supplied)
Section 24 of the Sentencing Act, 2002
“24 Proof of facts
(1) In determining a sentence or other disposition of 
the case, a court—
(a)	 may accept as proved any fact that was 
disclosed by evidence at the trial and 
any facts agreed on by the prosecutor 
and the offender; and
(b)	 must accept as proved all facts, express 
or implied, that are essential to a plea of 
guilty or a finding of guilt.
(2) If a fact that is relevant to the determination of a 
sentence or other disposition of the case is asserted 
by one party and disputed by the other,—
(a)	 the court must indicate to the parties the 
weight that it would be likely to attach to 
the disputed fact if it were found to exist,
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and its significance to the sentence or other 
disposition of the case:
(b)	 if a party wishes the court to rely on that 
fact, the parties may adduce evidence as to 
its existence unless the court is satisfied 
that sufficient evidence was adduced at 
the trial:
(c)	 the prosecutor must prove beyond a 
reasonable doubt the existence of any 
disputed aggravating fact, and must negate 
beyond a reasonable doubt any disputed 
mitigating fact raised by the defence 
(other than a mitigating fact referred to in 
paragraph (d)) that is not wholly implausible 
or manifestly false:
(d)	 the offender must prove on the balance of 
probabilities the existence of any disputed 
mitigating fact that is not related to the 
nature of the offence or to the offender’s 
part in the offence:
(e)	 either party may cross-examine any witness 
called by the other party.
(3) For the purposes of this section,—
aggravating fact means any fact that—
(a)	 the prosecutor asserts as a fact that justifies 
a greater penalty or other outcome than 
might otherwise be appropriate for the 
offence; and
(b)	 the court accepts is a fact that may, if 
established, have that effect on the sentence 
or other disposition of the case
mitigating fact means any fact that—
(a)	 the offender asserts as a fact that justifies a 
lesser penalty or other outcome than might 
otherwise be appropriate for the offence; and
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(b)	 the court accepts is a fact that may, if 
established, have that effect on the sentence 
or other disposition of the case.”
(emphasis supplied)
Section 25 of the Sentencing Act, 2002
“25 Power of adjournment for inquiries as to suitable 
punishment
(1) A court may adjourn the proceedings in respect of 
any offence after the offender has been found guilty or 
has pleaded guilty and before the offender has been 
sentenced or otherwise dealt with for any 1 or more 
of the following purposes:
(a) to enable inquiries to be made or to determine the 
most suitable method of dealing with the case:
(b) to enable a restorative justice process to occur, 
or to be completed:
(c) to enable a restorative justice agreement to be fulfilled:
(d) to enable a rehabilitation programme or course of 
action to be undertaken:
(da) to determine whether to impose an instrument 
forfeiture order and, if so, the terms of that order:
(e) to enable the court to take account of the offender’s 
response to any process, agreement, programme, or 
course of action referred to in paragraph (b), (c), or (d).
(2) If proceedings are adjourned under this section 
or under section 10(4) or 24A, a Judge or Justice or 
Community Magistrate having jurisdiction to deal with 
offences of the same kind (whether or not the same 
Judge or Justice or Community Magistrate before 
whom the case was heard) may, after inquiry into the 
circumstances of the
case, sentence or otherwise 
deal with the offender for the offence to which the 
adjournment relates.”
(emphasis supplied)
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Section 26 of the Sentencing Act, 2002
“26 Pre-sentence reports
(1) Except as provided in section 26A, if an offender who 
is charged with an offence punishable by imprisonment 
is found guilty or pleads guilty, the court may direct 
a probation officer to prepare a report for the court 
in accordance with subsection (2).
(2) A pre-sentence report may include—
(a)	 information regarding the personal, family, 
whanau, community, and cultural background, 
and social circumstances of the offender:
(b)	 information regarding the factors contributing 
to the offence, and the rehabilitative needs of 
the offender:
(c)	 information regarding any offer, agreement, 
response, or measure of a kind referred to 
in section 10(1) or the outcome of any other 
restorative justice processes that have occurred 
in relation to the case:
(d)	 recommendations on the appropriate 
sentence or other disposition of the case, 
taking into account the risk of further 
offending by the offender:
(e)	 in the case of a proposed sentence of 
supervision, intensive supervision, or 
home detention, recommendations on the 
appropriate conditions of that sentence:
(f)	
in the case of a proposed sentence of 
supervision, intensive supervision, or home 
detention involving 1 or more programmes,—
(i)	
a report on the programme or 
programmes, including a general 
description of the conditions that the 
offender will have to abide by; and
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(ii)	 confirmation that the report has been 
made available to the offender:
(g)	 in the case of a proposed sentence of 
supervision, intensive supervision, or home 
detention involving a special condition requiring 
the offender to take prescription medication, 
confirmation that the offender—
(i)	
has been fully advised by a person 
who is qualified to prescribe that 
medication about the nature and likely 
or intended effect of the medication 
and any known risks; and
(ii)	 consents to taking the prescription 
medication:
(h)	 in the case of a proposed sentence of community 
work,—
(i)	
information regarding the availability 
of community work of a kind referred 
to in section 63 in the area in which 
the offender will reside; and
(ii)	 recommendations on whether the 
court should authorise, under section 
66A, hours of work to be spent 
undertaking training in basic work 
and living skills:
(i)	
in the case of a proposed sentence of intensive 
supervision or possible release conditions for 
a proposed sentence of imprisonment for 24 
months or less, the opinion of the chief executive 
of the Department of Corrections as to whether—
(i)	
a condition that prohibits the offender 
from entering or remaining in specified 
places or areas at specified times or at 
all times (a whereabouts condition 
in this paragraph) would facilitate or 
promote the objective of reducing the
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risk of the offender reoffending while 
subject to the sentence or release 
conditions; and
(ii)	 a whereabouts condition would 
facilitate or promote the objective of 
rehabilitating and reintegrating the 
offender; and
(iii)	 a further condition requiring the offender 
to submit to electronic monitoring of his 
or her compliance with a whereabouts 
condition is warranted, having regard 
to the likelihood of non-compliance 
with the whereabouts condition.
(3) The court must not direct the preparation of a report 
under subsection (1) on any aspects of the personal 
characteristics or personal history of an offender if a report 
covering those aspects is readily available to the court and 
there is no reason to believe that there has been any change 
of significance to the court since the report was prepared.
(4) On directing the preparation of a report under 
subsection (1), the court may indicate to the probation 
officer the type of sentence or other mode of disposition 
that the court is considering, and may also give any 
other guidance to the probation officer that will assist 
the officer to prepare the report.
(5) If a court has directed the preparation of a report 
under subsection (1), the probation officer charged 
with the preparation of the report may seek the further 
directions of the court on—
(a)	
any particular item of information sought by the court; or
(b)	 any alternative sentence or other mode of
disposition that may be considered by the 
court if it appears that the sentence or other 
mode of disposition under consideration is 
inappropriate.”
(emphasis supplied)

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Section 31 of the Sentencing Act, 2002
“31 General requirement to give reasons
(1) A court must give reasons in open court—
(a)	 for the imposition of a sentence or for any other 
means of dealing with the offender; and
(b)	 for the making of an order under Part 2.
(2) The reasons may be given under this section with 
whatever level of particularity is appropriate to the 
particular case.
(3) Nothing in this section limits any other provision of this or 
any other enactment that requires a court to give reasons.
(4) The fact that a court, in giving reasons in a particular 
case, does not mention a particular principle in section 
8 or a particular factor in section 9 or a consideration 
under section 10 or section 11 is not in itself grounds 
for an appeal against a sentence imposed or an order 
made in that case.”
(emphais supplied)
UNITED KINGDOM
Coroners and Justice Act, 2009 (UK)
PART 4
SENTENCING
CHAPTER 1
Sentencing Council For England and Wales
Section 118 of the Coroner and Justice Act, 2009
“118 Sentencing Council for England and Wales
(1) There is to be a Sentencing Council for England and 
Wales.
(2) Schedule 15 makes provision about the Council.”
Schedule 15
The Sentencing Council for England and Wales
Constitution of the Council
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Schedule 15, Para 1 of the Coroner and Justice Act, 2009
“1 The Council is to consist of—
(a)	 8 members appointed by the Lord Chief Justice 
with the agreement of the Lord Chancellor 
(“judicial members”);
(b)	 6 members appointed by the Lord Chancellor 
with the agreement of the Lord Chief Justice 
(“non-judicial members”).”
Appointment of a person to chair the Council etc
Schedule 15, Para 2 of the Coroner and Justice Act, 2009
“2 The Lord Chief Justice must, with the agreement of the 
Lord Chancellor, appoint—
(a)	 a judicial member to chair the Council (“the 
chairing member”), and
(b)	 another judicial member to chair the Council in 
the absence of the chairing member.”
Appointment of judicial members
Schedule 15, Para 3 of the Coroner and Justice Act, 2009
“3(1) A person is eligible for appointment as a judicial 
member if the person is—
(a)	 a judge of the Court of Appeal,
(b)	 a puisne judge of the High Court,
(c)	
a Circuit judge,
(d)	 a District Judge (Magistrates’ Courts), or
(e)	 a lay justice.
(2) The judicial members must include at least one Circuit 
judge, one District Judge (Magistrates’ Courts) and one 
lay justice.
(3) When appointing judicial members, the Lord Chief 
Justice must have regard to the desirability of the judicial 
members including at least one person who appears to 
the Lord Chief Justice to have responsibilities relating to
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the training of judicial office-holders who exercise criminal 
jurisdiction in England and Wales.
(4) “Judicial office-holder” has the meaning given by 
section 109(4) of the Constitutional Reform Act 2005 
(c. 4).”
Appointment of non-judicial members
Schedule 15, Para 4 of the Coroner and Justice Act, 2009
“4(1) A person is eligible for appointment as a non-
judicial member if the person appears to the Lord 
Chancellor to have experience in one or more of the 
following areas—
(a)	 criminal defence;
(b)	 criminal prosecution;
(c)	
policing;
(d)	 sentencing policy and the administration of 
justice;
(e)	 the promotion of the welfare of victims of crime;
(f)	
academic study or research relating to criminal 
law or criminology;
(g)	 the use of statistics;
(h)	 the rehabilitation of offenders.
(2) The persons eligible for appointment as a non-judicial 
member by virtue of experience of criminal prosecution 
include the Director of Public Prosecutions.”
Section 120 of the Coroner and Justice Act, 2009
Guidelines
“120 Sentencing guidelines
(1)	 In this Chapter “sentencing guidelines” means 
guidelines relating to the sentencing of offenders.
(2)	 A sentencing guideline may be general in nature or 
limited to a particular offence, particular category of 
offence or particular category of offender.
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(3)	 The Council must prepare—
(a)	
sentencing guidelines about the discharge of a 
court’s duty under section 73 of the Sentencing 
Code (reduction in sentences for guilty pleas), and
(b)	 sentencing guidelines about the application of 
any rule of law as to the totality of sentences.
(4)	 The Council may prepare sentencing guidelines about 
any other matter.
(5)	 Where the Council has prepared guidelines under 
subsection (3) or (4), it must publish them as draft 
guidelines.
(6)	 The Council must consult the following persons about 
the draft guidelines—
(a)	 the Lord Chancellor;
(b)	 such persons as the Lord Chancellor may direct;
(c)	
the Justice Select Committee of the House of 
Commons (or, if there ceases to be a committee 
of that name, such committee of the House of 
Commons as the Lord Chancellor directs);
(d)	 such other persons as the Council considers 
appropriate.
(7)	 In the case of guidelines within subsection (3), the 
Council must, after making any amendments of the 
guidelines which it considers appropriate, issue them 
as definitive guidelines.
(8)	 In any other case, the Council may, after making such 
amendments, issue them as definitive guidelines.
(9)	 The Council may, from time to time, review the 
sentencing guidelines issued under this section, and 
may revise them.
(10)	 Subsections (5), (6) and (8) apply to a revision of 
the guidelines as they apply to their preparation (and 
subsection (8)
applies even if the guidelines being 
revised are within subsection (3)).
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(11)	 When exercising functions under this section, the 
Council must have regard to the following matters—
(a)	 the sentences imposed by courts in England 
and Wales for offences;
(b)	 the need to promote consistency in sentencing;
(c)	
the impact of sentencing decisions on victims 
of offences;
(d)	 the need to promote public confidence in the 
criminal justice system;
(e)	 the cost of different sentences and their relative 
effectiveness in preventing re-offending;
(f)	
the results of the monitoring carried out under 
section 128.”
Section 121 of the Coroner and Justice Act, 2009
“121 Sentencing ranges
(1)	
When exercising functions under section 120, 
the Council is to have regard to the desirability of 
sentencing guidelines which relate to a particular 
offence being structured in the way described in 
subsections (2) to (9).
(2)	
The guidelines should, if reasonably practicable given 
the nature of the offence, describe, by reference to one 
or more of the factors mentioned in subsection (3), 
different categories of case involving the commission 
of the offence which illustrate in general terms the 
varying degrees of seriousness with which the offence 
may be committed.
(3)	 Those factors are—
(a)	 the offender’s culpability in committing the 
offence;
(b)	 the harm caused, or intended to be caused or 
which might foreseeably have been caused, by 
the offence;
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(c)	
such other factors as the Council considers to 
be particularly relevant to the seriousness of 
the offence in question.
(4)	 The guidelines should—
(a)	 specify the range of sentences (“the offence 
range”) which, in the opinion of the Council, it 
may be appropriate for a court to impose on an 
offender convicted of that offence, and
(b)	 if the guidelines describe different categories of 
case in accordance with subsection (2), specify 
for each category the range of sentences (“the 
category range”) within the offence range 
which, in the opinion of the Council, it may be 
appropriate for a court to impose on an offender 
in a case which falls within the category.
(5)	 The guidelines should also—
(a)	 specify the sentencing starting point in the 
offence range, or
(b)	 if the guidelines describe different categories of 
case in accordance with subsection (2), specify 
the sentencing starting point in the offence range 
for each of those categories.
(6)	 The guidelines should—
(a)	 (to the extent not already taken into account by 
categories of case described in accordance with 
subsection (2)) list any aggravating or mitigating 
factors which, by virtue of any enactment or 
other rule of law, the court is required to take 
into account when considering the seriousness 
of the offence and any other aggravating or 
mitigating factors which the Council considers 
are relevant to such a consideration,
(b)	 list any
other mitigating factors which the Council 
considers are relevant in mitigation of sentence 
for the offence, and
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(c)	
include criteria, and provide guidance, for 
determining the weight to be given to previous 
convictions of the offender and such of the 
other factors within paragraph (a) or (b) as the 
Council considers to be of particular significance 
in relation to the offence or the offender.
(7)	 For the purposes of subsection (6)(b) the following 
are to be disregarded—
(a)	 the requirements of section 73 of the Sentencing 
Code (reduction in sentences for guilty pleas);
(b)	 sections 74, 387 and 388 of the Sentencing Code 
(assistance by defendants: reduction or review 
of sentence) and any other rule of law by virtue 
of which an offender may receive a discounted 
sentence in consequence of assistance given 
(or offered to be given) by the offender to the 
prosecutor or investigator of an offence;
(c)	
any rule of law as to the totality of sentences.
(8)	 The provision made in accordance with subsection 
(6)(c) should be framed in such manner as the 
Council considers most appropriate for the purpose 
of assisting the court, when sentencing an offender 
for the offence, to determine the appropriate sentence 
within the offence range.
(9)	 The provision made in accordance with subsections 
(2) to (8) may be different for different circumstances 
or cases involving the offence.
(10)	 The sentencing starting point in the offence range—
(a)	 for a category of case described in the guidelines 
in accordance with
subsection (2), is the 
sentence within that range which the Council 
considers to be the appropriate starting point 
for cases within that category—
(i)	
before taking account of the factors 
mentioned in subsection (6), and
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(ii)	
assuming the offender has pleaded not 
guilty, and
(b)	 where the guidelines do not describe categories 
of case in accordance with subsection (2), is the 
sentence within that range which the Council 
considers to be the appropriate starting point 
for the offence—
(i)	
before taking account of the factors 
mentioned in subsection (6), and
(ii)	
assuming the offender has pleaded not 
guilty.”
Section 128 of the Coroner and Justice Act, 2009
“128 Monitoring
(1)	 The Council must—
(a)	 monitor the operation and effect of its sentencing 
guidelines, and
(b)	 consider what conclusions can be drawn from 
the information obtained by virtue of paragraph 
(a).
(2)	 The Council must, in particular, discharge its duty 
under subsection (1)(a) with a view to drawing 
conclusions about—
(a)	 the frequency with which, and extent to which, 
courts depart from sentencing guidelines;
(b)	 the factors which influence the sentences 
imposed by courts;
(c)	
the effect of the guidelines on the promotion of 
consistency in sentencing;
(d)	 the effect of the guidelines on the promotion of 
public confidence in the criminal justice system.
(3)	 When reporting on the exercise of its functions under 
this section in its annual report for a financial year, 
the Council must include—
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(a)	 a summary of the information obtained under 
subsection (1)(a), and
(b)	 a report of any conclusions drawn by the Council 
under subsection (1)(b).”
Sentencing Act 2020 (UK)
Section 3 of the Sentencing Act, 2020
“DEFERMENT OF SENTENCE
3 Deferment order
(1) In this Code “deferment order” means an order 
deferring passing sentence on an offender in respect 
of one or more offences until the date specified in the 
order, to enable a court, in dealing with the offender, 
to have regard to—
(a) the offender’s conduct after conviction 
(including, where appropriate, the offender’s 
making reparation for the offence), or
(b) any change in the offender’s circumstances.
(2) A deferment order may impose requirements (“deferment 
requirements”) as to the offender’s conduct during the 
period of deferment.
(3) Deferment requirements may include—
(a) requirements as to the residence of the 
offender during all or part of the period of 
deferment;
(b) restorative justice requirements.”
(emphais supplied)
Section 5 of the Sentencing Act, 2020
“5 Making a deferment order
(1) A court may make a deferment order in respect of 
an offence only if—
(a)	 the offender consents,
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(b)	 the offender undertakes to comply with any 
deferment requirements the court proposes to 
impose,
(c)	
if those requirements include a restorative justice 
requirement, section 7(2) (consent of participants 
in restorative justice activity) is satisfied, and
(d)	 the court is satisfied, having regard to the 
nature of the offence and the character and 
circumstances of the offender, that it would be 
in the interests of justice to make the order.
(2) The date specified under section 3(1) in the order 
may not be more than 6 months after the date on 
which the order is made.
(3) A court which makes a deferment order must forthwith 
give a copy of the order—
(a)	 to the offender,
(b)	 if it imposes deferment requirements that include 
a restorative justice requirement, to every 
person who would be a participant in the activity 
concerned (see section 7(1)),
(c)	
where an officer of a provider of probation 
services has been appointed to act as a 
supervisor, to that provider, and
(d)	
where a person has been appointed under section 
8(1)(b) to act as a supervisor, to that person.
(4) A court which makes a deferment order may not on 
the same occasion remand the offender, notwithstanding 
any enactment.”
(emphais supplied)
Section 6 of the Sentencing Act, 2020
“6 Effect of deferment order
(1) Where a deferment order has been made in respect 
of an offence, the court which deals with the offender 
for the offence may have
regard to—

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(a) the offender’s conduct after conviction, or
(b) any change in the offender’s circumstances.”
(emphais supplied)
Section 30 of the Sentencing Act, 2020
“Pre-sentence reports
30 Pre-sentence report requirements
(1)	 This section applies where, by virtue of any 
provision of this Code, the pre-sentence report 
requirements apply to a court in relation to 
forming an opinion.
(2)	 If the offender is aged 18 or over, the court must 
obtain and consider a pre-sentence report before 
forming the opinion unless, in the circumstances 
of the case, it considers that it is unnecessary to 
obtain a pre-sentence report.
(3)	 If the offender is aged under 18, the court must obtain 
and consider a pre-sentence report before forming 
the opinion unless—
(a)	 there exists a previous pre-sentence report 
obtained in respect of the offender, and
(b)	 the court considers—
(i)	
in the circumstances of the case, and
(ii)	
having had regard to the information 
contained in that report or, if there is more 
than one, the most recent report, that it is 
unnecessary to obtain a pre-sentence report.
(4)	 Where a court does not obtain and consider a 
pre-sentence report before forming an opinion 
in relation to which the pre-sentence report 
requirements apply, no custodial sentence or 
community sentence is invalidated by the fact 
that it did not do so.”
(emphais supplied)
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Section 31 of the Sentencing Act, 2020
“31 Meaning of “pre-sentence report” etc
“Pre-sentence report”
(1) In this Code “pre-sentence report” means a report 
which—
(a)	 is made or submitted by an appropriate officer 
with a view to assisting the court in determining 
the most suitable method of dealing with an 
offender, and
(b)	 contains information as to such matters, 
presented in such manner, as may be prescribed 
by rules made by the Secretary of State.”
40.	 We find that an exhaustive and detailed exercise has been done by 
New Zealand. What we have discussed has already been substantially 
taken into consideration by the aforementioned countries. As it is an 
important aspect which has escaped the attention of the Government 
of India, we recommend the Department of Justice, Ministry of Law and 
Justice, Government of India, to consider introducing a comprehensive 
policy, possibly by way of getting an appropriate report from a duly 
constituted Sentencing Commission consisting of experts in different 
fields for the purpose of having a distinct sentencing policy. We 
request the Union of India to respond to our suggestion by way of 
an affidavit within a period of six months from today.
41.	 In this connection, we would like to place on record the 47th Report of 
the Law Commission of India, Report by the Committee on Reforms 
of Criminal Justice, Chaired by Dr. Justice V.S. Malimath, (2003), 
Report by the Committee
on Draft National Policy on Criminal Justice, 
Chaired by Dr. N.R. Madhava Menon and decisions rendered by this 
Court to indicate an emerging need for a distinct sentencing policy
47th Report of the Law Commission of India 
CHAPTER 7
DESIRABILITY OF AMENDMENTS – SUBSTANTIVE POINTS 
COMMON TO ALL THE ACTS CONSIDERED
“7.44. A proper sentence is a composite of many factors, 
including the nature of the offence, the circumstances-
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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 prospect for the 
rehabilitation of the offender, the possibility of a return of 
the offender to 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.”
Report by the Committee on Reforms of Criminal Justice System, 
Chaired by Dr. Justice V.S. Malimath, Vol. I March (2003)
“14.4 NEED FOR SENTENCING GUIDELINES 
14.4.1 The Indian Penal Code prescribed offences and 
punishments for the same. For many offences only the 
maximum punishment is prescribed and for some offences 
the minimum may be prescribed. The Judge has wide 
discretion in awarding the sentence within the statutory 
limits. There is now no guidance to the Judge in 
regard to selecting the most appropriate sentence 
given the circumstances of the case. Therefore each 
Judge exercises discretion accordingly to his own 
judgment. There is therefore no uniformity. Some
Judges are lenient and some Judges are harsh. 
Exercise of unguided discretion is not good even if 
it is the Judge who exercises the discretion. In some 
countries guidance regarding sentencing option and 
sentencing guideline laws are given in the penal code. 
There is need for such law in our country to minimise 
uncertainty to the matter of awarding sentence. There 
are several factors which are relevant in prescribing the 
alternative sentences. This requires a thorough examination 
by an expert statutory body.
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14.4.5 Sometimes the courts are unduly harsh while at 
other times they are liberal. We have already adverted 
to aspects which Supreme Court said are relevant in 
deciding as to what are the rarest of the rare cases for 
imposing death sentence. However, even in such matters 
uniformity is lacking. In certain rape cases acquittals 
gave rise to public protests. Therefore in order to bring 
about certain regulation and predictability in the matter 
of sentencing, the Committee recommends a statutory 
committee to lay guidelines on sentencing under the 
Chairmanship of a former Judge of Supreme Court or 
a former Chief Justice of a High Court experienced 
in criminal law with other members representing the 
Prosecution, legal profession, Police, social scientist 
and women representative.”
(emphasis supplied)
Report of the Committee on Draft National Policy on Criminal 
Justice, Chaired by Prof. (Dr.) N.R. Madhava Menon, July, 2007
“5.5 PUNISHMENTS AND SENTENCING 
5.5.1 Given the limited options in the choice of punishments 
now available in the statutes and the inadequate deterrence 
in the sentence often imposed, there has to be some 
serious rethinking on the philosophy, justification and 
impact of sentencing in criminal justice administration. The 
quantums of fines were prescribed more than a century 
ago. Imprisonment in practice is reduced to a much shorter 
period through a variety of practices even when it is for
life. Equality in sentencing is not pursued vigorously 
and there is no serious attempt yet to standardize 
the sentencing norms and procedures. The objects of 
punishment are not served in many cases as a result 
of such incoherent sentencing practices. 
5.5.2 What are the policy choices in the matter of 
punishments and determination of its quantum to achieve 
the goals of criminal justice? Can community service 
be made an effective punishment and how is it to be 
organized? How to make probation a dominant part of
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disposition in criminal cases? How to achieve equality and 
fairness in sentencing? These and many related questions 
are not even raised in India seriously with the result the 
system seems to be functioning as an end in itself. 
There has to be a radical change in the law and practice 
of sentencing if punishment should serve the cause 
of criminal justice. A set of sentencing guidelines may 
be statutorily evolved to make the system consistent 
and purposeful. Fixing mandatory minimum sentences 
may not be a worthwhile solution. More importantly, 
the policy should be to increase the choices in 
punishment and make the other functionaries of 
the system (like probation service and correctional 
administration) to have a voice in the sentencing 
process and administration. 
In short, sentences and sentencing require urgent 
attention of policy planners if criminal justice is to 
retain its credibility in the public mind. 
5.5.3 A national policy on sentencing shall seek to address 
the following issues: 
(i)	
The need for criminal law to offer more alternatives 
in the matter of punishments instead of limiting the 
option merely to fines and imprisonment. 
(ii)	
In respect of the quantum of punishments, the 
need for constant review to ensure that it meets the 
ends of justice and disparity is reduced in similar 
situations. 
(iii)	 A policy to avoid short-term imprisonments and to 
prevent overcrowding of
jails and other custodial 
institutions, to be rigorously pursued at all levels.
(iv)	 The need for specific sentencing guidelines to be 
evolved in respect of each punishment. 
(v)	
Also the need for an institutional machinery involving 
correctional experts for fixing proper punishment.”
(emphasis supplied)
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Precedents
Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 
“14. In recent years, the rising crime rate — particularly 
violent crime against women has made the criminal 
sentencing by the courts a subject of concern. Today 
there are admitted disparities. Some criminals get very 
harsh sentences while many receive grossly different 
sentence for an essentially equivalent crime and a 
shockingly large number even go unpunished thereby 
encouraging the criminal and in the ultimate making 
justice suffer by weakening the system’s credibility. Of 
course, it is not possible to lay down any cut and dry 
formula relating to imposition of sentence but the object 
of sentencing should be to see that the crime does 
not go unpunished and the victim of crime as also the 
society has the satisfaction that justice has been done 
to it. In imposing sentences in the absence of specific 
legislation, Judges must consider variety of factors 
and after considering all those factors and taking an 
overall view of the situation, impose sentence which 
they consider to be an appropriate one. Aggravating 
factors cannot be ignored and similarly mitigating 
circumstances have also to be taken into consideration.
15. 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 befitting 
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.”
(emphasis supplied)
Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767
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“48. That is not the end of the matter. Coupled with the 
deficiency of the criminal justice system is the lack of 
consistency in the sentencing process even by this 
Court. It is noted above that Bachan Singh [(1980) 2 
SCC 684 : 1980 SCC (Cri) 580] laid down the principle 
of the rarest of rare cases. Machhi Singh [(1983) 3 SCC 
470 : 1983 SCC (Cri) 681] , for practical application 
crystallised the principle into five definite categories 
of cases of murder and in doing so also considerably 
enlarged the scope for imposing death penalty. But 
the unfortunate reality is that in later decisions neither 
the rarest of rare cases principle nor the Machhi Singh 
[(1983) 3 SCC 470 : 1983 SCC (Cri) 681] categories 
were followed uniformly and consistently.
xxx            xxx            xxx
50. The same point is made in far greater detail in a 
report called “Lethal Lottery, The Death Penalty in 
India” compiled jointly by Amnesty International India 
and People’s Union for Civil Liberties, Tamil Nadu & 
Puducherry. The report is based on the study of the 
Supreme Court judgments in death penalty cases 
from 1950 to 2006. One of the main points made in 
the report (see Chapters 2 to 4) is about the Court’s 
lack of uniformity and consistency in awarding death 
sentence.
51. The truth of the matter is that the question of death 
penalty is not free from the subjective element and the 
confirmation of death sentence or
its commutation by this 
Court depends a good deal on the personal predilection 
of the Judges constituting the Bench.
52. The inability of the criminal justice system to deal 
with all major crimes equally effectively and the want 
of uniformity in the sentencing process by the Court 
lead to a marked imbalance in the end results. On 
the one hand there appears a small band of cases 
in which the murder convict is sent to the gallows 
on confirmation of his death penalty by this Court 
and on the other hand there is a much wider area of
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cases in which the offender committing murder of 
a similar or a far more revolting kind is spared his 
life due to lack of consistency by the Court in giving 
punishments or worse the offender is allowed to slip 
away unpunished on account of the deficiencies in the 
criminal justice system. Thus the overall larger picture 
gets asymmetric and lopsided and presents a poor 
reflection of the system of criminal administration of 
justice. This situation is a matter of concern for this 
Court and needs to be remedied.”
(emphasis supplied)
Soman v. State of Kerala, (2013) 11 SCC 382 
“15. Giving punishment to the wrongdoer is at the heart 
of the criminal justice delivery, but in our country, it is the 
weakest part of the administration of criminal justice. There 
are no legislative or judicially laid down guidelines to assist 
the trial court in meting out the just punishment to the 
accused facing trial before it after he is held guilty of the 
charges. In State of Punjab v. Prem Sagar [(2008) 7 SCC 
550 : (2008) 3 SCC (Cri) 183] this Court acknowledged 
as much and observed as under: (SCC p. 552, para 2)
“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, have not issued any guidelines. 
Other developed countries have done so. 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 sentencing guidelines.”
Section 354 of the CrPC, 1973
“354. Language and contents of judgment.—
(1)	 Except as otherwise expressly provided by this Code, 
every judgment referred to in section 353,—
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(a)	 shall be written in the language of the Court; 
(b)	 shall contain the point or points for determination, 
the decision thereon and the reasons for the 
decision; 
(c)	
shall specify the offence (if any) of which, and 
the section of the Indian Penal Code (45 of 
1860) or other law under which, the accused 
is convicted and the punishment to which he 
is sentenced; 
(d)	 if it be a judgment of acquittal, shall state the 
offence of which the accused is acquitted and 
direct that he be set at liberty. 
(2)	 When the conviction is under the Indian Penal Code 
(45 of 1860) and it is doubtful under which of two 
sections, or under which of two parts of the same 
section, of that Code the offence falls, the Court shall 
distinctly express the same, and pass judgment in 
the alternative. 
(3)	 When the conviction is for an offence punishable with 
death or, in the alternative, with imprisonment for life 
or imprisonment for a term of years, the judgment 
shall state the reasons for the sentence awarded, 
and, in the case of sentence of death, the special 
reasons for such sentence. 
(4)	 When the conviction is for an offence punishable 
with imprisonment for a term of one year or more, 
but the Court imposes a sentence of imprisonment 
for a term of less than three months, it shall record 
its reasons for awarding such sentence, unless the 
sentence is one of imprisonment till the rising of the 
Court or unless
the case was tried summarily under 
the provisions of this Code. 
(5)	
When any person is sentenced to death, the sentence 
shall direct that he be hanged by the neck till he is dead. 
(6)	 Every order under section 117 or sub-section (2) of 
section 138 and every final order made under section
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125, section 145 or section 147 shall contain the point 
or points for determination, the decision thereon and 
the reasons for the decision.”
42.	 Section 354 of the CrPC, 1973 though merely deals with the 
language and contents of judgment, also sheds light on the fact 
that a judgment contains two distinct parts, wherein the first part 
deals with the conviction and the second deals with the sentence. 
Sub-section (1)(c) of the aforesaid provision has to be understood 
to mean that a Judge is expected to consider the aggravating and 
mitigating circumstances. In such view of the matter, sub-section (3) 
of the aforesaid provision is more clarificatory, keeping in mind the 
nature of the offence committed. As a convict is heard on sentence, 
it follows that any decision on sentence has to indicate the reasons 
for exercise of judicial discretion by the Judge.
ON FACTS
Criminal Appeal No. 3924 of 2023 and Criminal Appeal Nos. 
3926-3927 of 2023. 
43.	 An FIR was registered in Crime No. 137 of 2021 for the occurrence 
that took place on 01.12.2021. The said complaint was filed by 
the mother of the victim on 02.12.2021. Accordingly, the case was 
registered under Section 376AB of the Indian Penal Code, 1860 
(hereinafter referred to as the “IPC, 1860”) and Section 4 of the 
Protection of Children from Sexual Offences Act, 2012 (hereinafter 
referred to as the “POCSO Act, 2012”) read with Section 3(2)(v) of 
the Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) 
Act, 1989 (hereinafter referred to as “SC/ST Act, 1989”). The case 
of the prosecution in nutshell is that the accused took advantage of 
a minor girl child and committed the offence of rape. 
44.	 The accused was arrested on 12.12.2021. He was produced before 
the concerned Judicial Magistrate on 13.12.2021 and remanded to 
judicial custody till 24.12.2021. The remand was further extended 
by the orders dated 24.12.2021 and 05.01.2022 through video 
conferencing. On 12.01.2022, the charge-sheet was filed for the 
offences aforestated. The accused was once again produced 
through video conferencing on 15.01.2022. There was no advocate 
representing the accused, and the case was put up on 24.01.2022 
for his production.
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45.	 On 20.01.2022, without the FSL report, the charge-sheet filed 
was taken on record. Accordingly, the cognizance was taken. The 
prosecutor was directed to ensure the presence of the accused 
through video conferencing. The accused feigned his inability 
to engage a lawyer as he was behind the bars. The case was 
adjourned to 22.01.2022 for framing of charges and for the supply 
of documents.
46.	 On that day i.e. 22.01.2022, the counsel appearing for the accused 
was provided with the documents, without being given any time 
and without ensuring that these documents were in fact shown to 
the accused, followed by due consultation with his lawyer, directly 
arguments were heard on framing of charges. Thereafter, the charges 
were framed and explained to the accused through the virtual mode. 
On the very same date, an order was passed for summoning the 
prosecution witnesses. Strangely enough, an application was filed 
by the Investigating Officer to record the evidence of four witnesses 
in a single day, as a confidential information obtained, indicated that 
there was pressure from the family members of the accused. No 
notice was served either on the accused or his counsel, and the 
order was apparently passed, without taking into consideration the 
Witness Protection Scheme, 2018. In disregard of the provisions of 
the Rules for Video Conferencing for Courts, 2020, the statements 
of the witnesses were
recorded.
47.	 After two days i.e. 24.01.2022, the remaining witnesses, including 
the Investigating Officer, were examined. There was no material to 
show that the accused was present at that point of time. The plea 
made by the counsel for the defence for deferment by one week was 
rejected, sans any substantial reason. For the purpose of questioning 
under Section 313 of the CrPC, 1973 alone, the accused was brought 
through video conferencing. In a hurried manner, the questioning was 
done. The repeated plea of adjournment by one week made by the 
counsel for the defence was once again rejected, while ultimately 
facilitating a day’s adjournment.
48.	 On the next day i.e. 25.01.2022, an application was filed by the 
defence praying for time for production of witnesses. The matter 
was passed over, with a direction to produce the witnesses on that 
day itself. Arguments were heard, during which time, the prosecution 
made submissions for 10 minutes, whereas the defence argued for 3
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hours. It was accordingly concluded at 6.30 p.m. The judgment was 
delivered at about 7.00 pm, running into about 27 pages consisting of 
59 paragraphs. It is not known as to how the copies of the witnesses 
statements were made ready and kept for perusal. Admittedly, even 
the counsel for the defence did not have those copies.
49.	 Two days thereafter i.e. 27.01.2022, the case was posted for 
sentencing. Upon hearing the accused, death sentence was imposed 
by the trial court. The High Court, by the impugned judgment, called 
for the records and went through them thoroughly, finding that there 
is non-compliance of Sections 207, 226, 227 and 230 of the CrPC, 
1973, set aside the conviction and sentence awarded by the trial 
Court, and ordered for a de novo trial. Incidentally, the approach 
adopted by the Trial Court was found fault with.
50.	 Assailing the impugned judgment on merit, the informant has filed 
Criminal Appeal No. 3924 of 2023. Aggrieved over the observations 
made by the High Court, the learned Trial Judge has filed Criminal 
Appeal Nos. 3926-3927 of 2023. 
Criminal Appeal No. 3925 of 2023
51.	 Criminal Appeal No. 3925 of 2023 has been filed by the very same 
learned Judge who rendered a similar conviction and sentenced the 
accused to life imprisonment for remainder of natural life, without 
any remission, against the observations made by a Coordinate 
Bench of the High Court, which took note of the earlier
judgment 
rendered by the Coordinate Bench. It has been brought to our 
notice that the disciplinary proceedings initiated were dropped on 
the administrative side. However, an application in I.A. No. 29814 
of 2023 has been filed by the learned Judge inter alia alleging 
that certain administrative work has been taken away from him, 
apparently on the basis of the impugned judgments, and therefore, 
he should either be restored with the said power or transferred to 
some other place.
52.	 Insofar as the Criminal Appeal No. 3925 of 2023 is concerned, 
there is no appeal filed on behalf of the victim. Therefore, the only 
question for consideration is as to whether the observation made 
against the appellant, is justified or not, especially when he has not 
been heard. On facts, even in this case, the trial had commenced 
and concluded in a single day.
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727
Sunita Devi v. The State of Bihar & Anr.
SUBMISSIONS ON BEHALF OF THE APPELLANT
Criminal Appeal No. 3924 of 2023 and Criminal Appeal Nos. 
3926-3927 of 2023. 
53.	 Mr. Vikas Singh, learned senior counsel appearing for both the 
informant and the learned Trial Judge, submitted that the procedure 
established by law has been followed. The appellant has kept in 
mind the rigour of Section 309 of the CrPC, 1973 read with the 
provisions contained under the POCSO Act, 2012. Even assuming 
that there is a procedural flaw, in view of the mandate contained 
under Section 465 of the CrPC, 1973 there is no need for remittal. 
During the course of trial, the counsel for the respondent-accused 
has not raised any serious objection.
Criminal Appeal No. 3925 of 2023 
It is further submitted that the appellant has discharged his judicial 
function and, therefore, any action without hearing him is contrary to 
law. Though the charges have been dropped, the observations made 
would be detrimental to his future career progression. The accused 
had antecedents and, therefore, the Trial Court rightly exercised 
due caution. It is a case where no witness was produced on behalf 
of the defence. To buttress his submission, learned senior counsel 
appearing for the appellant has relied upon the following decisions,

●
Munna Pandey v. State of Bihar, AIR 2023 SUPREME COURT 
5709.

●
Akil v. State (NCT of Delhi), (2013) 7 SCC 125.

●
Sakshi v. Union of India, (2004) 5 SCC 518.
●
State of Maharashtra v. Mahesh Kariman Tirki, (2022) 10 SCC 
207.

●
Pradeep S. Wodeyar v. State of Karnataka, (2021) 19 SCC 62.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
54.	 Per contra, Mr. C. U. Singh, learned senior counsel appearing for 
the High Court and the accused submitted that admittedly there are 
serious procedural violations. Prejudice was sufficiently demonstrated 
before the court. It would be impossible for a Judge to deliver the 
judgment within such a short span of time. No opportunity was given 
at every stage of the trial to the accused. It is a clear case of “justice
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hurried is justice buried”. There is no question of giving an opportunity 
to the appellant, the judicial officer, as no action is pending against 
him. In any case, the accused is still under incarceration. 
DISCUSSION
55.	 On perusal, we find that the High Court, while passing both the 
impugned judgments, has not only called for the records and 
rendered findings of fact, but has also considered them in detail. 
At every stage, the accused was denied due opportunity to defend 
himself. The appellant judicial officer was obviously acting in utmost 
haste. Every trial is a journey towards the truth and a Presiding 
Officer is expected to create a balanced atmosphere in the mind of 
the prosecution and the defence. It seems to us that the decision 
was rendered in utmost haste. It would be humanly impossible 
to deliver the judgment within half an hour’s time running into 27 
pages consisting of 59 paragraphs in the first case and similarly in 
the other. The lawyer for the defence cannot fight against the court. 
It is the court which has to follow a balanced approach. At every 
stage, including framing of charges, there was a constant denial of 
due opportunity and hearing. The accused was not able to consult 
his lawyer. He was not even served with the copies, though his 
lawyer received the same before framing of the charges. Receiving 
of documents by his lawyer would not be sufficient compliance, 
unless there was
sufficient time given for him to peruse them and 
thereafter have a consultation. Admittedly, neither the provisions 
of the Witness Protection Scheme, 2018 have been invoked nor 
the Rules for Video Conferencing for Courts, 2020 were followed. 
The accused was merely shown the court’s proceedings and the 
writing was on the wall for him. We are not willing to say anything 
on the merits of the case. On facts, even in Criminal Appeal No. 
3925 of 2023, the trial had commenced and concluded in a single 
day. Additionally, no lawyer could be engaged by the accused and, 
therefore, as per the recommendations of the prosecutor, another 
one was engaged. Otherwise, the facts are more or less similar in 
both the cases and, therefore, we are not inclined to go into it in 
detail. When the charges are very serious, Courts should be more 
circumspect in discharging their solemn duty.
56.	 We do not think that the decisions relied upon by the learned senior 
counsel for the appellant have any bearing on the present case. The 
appellant judicial officer is fortunate that no action was taken against
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Sunita Devi v. The State of Bihar & Anr.
him. We do not wish to say anything more on this, except by stating 
that in the absence of any proposed action, there is no question of 
hearing the appellant. Thus, we are not inclined to interfere on the 
merits of the case with respect to non-compliance of the mandatory 
provisions, as the accused is still under incarceration.
57.	 On the application filed seeking intervention over the action taken 
on the administrative side, it is for the appellant to approach the 
High Court. It is an administrative action taken and, therefore, the 
same does not require any interference on the judicial side by us, 
especially in light of the discussion made above. Suffice it is to state 
that liberty is given to the appellant to approach the High Court on 
the administrative side. 
58.	 For the foregoing reasons, the appeals stand dismissed with the 
following directions :
(1.)	 The trial court shall keep in mind the mandate of POCSO Act, 
2012 while recording the evidence of the victim.
(2.)	 The trial court shall conduct and complete the trial expeditiously 
in view of Section 35 of the POCSO Act, 2012.
(3.)	 The Government of India represented by the Secretary for 
the Ministry of Law and Justice shall file an affidavit on the 
feasibility of introducing a comprehensive sentencing policy 
and a report thereon, within a period of six months from today, 
as indicated above. 
(4.)	 The Registry shall forward a copy of
this judgment to the 
Department of Justice, Ministry of Law and Justice, Government 
of India.
59.	 Consequently, IA No. 29814/2023 stands dismissed.
60.	 Pending application(s), are allowed.
Result of the case: Appeals dismissed.
†Headnotes prepared by: Divya Pandey