Chapter XXII- JUDGMENTS
SECTION- 353- 365 CRPC
Synopsis:
1) Meaning of Judgment
2) Contents of Judgment [Section 354, 355]
3) Special components of Judgment [Section 356- 359, 357A]
4) Pronouncement of judgment [Section 353]
5) Proceedings after the judgment [Section 362- 365]
What is judgment ?
The Judgment as a concept has not been defined in the Code of Criminal Procedure.
Therefore getting help of case law : Judgment means the expression of the opinion of judge or magistrate arrived after due consideration of evidence and of the arguments # Damu Senapathi v. Sridhar Rajwar
Features to be noted :
a) It terminates the judicial proceedings or put an end to those proceedings after consideration of evidence on record by both parties and arguments of the concerned parties.
b) It is final or definitive in nature unless appeal is preferred in that case.
Contents of Judgment: Section 354 provides the following contents of Judgment-
Before content what should be the language of the judgment ?
Language of the judgment | Judgment shall be in the language of court and can be translated if required as per Section 364 CrPC.
Section 364 CrPC provides that when judgment is recorded in a language different from language of the court, then it must be translated into the language of the court if accused requires so.
What is language of court then ? Section 272 deals with language of the court. It provides that the State government may determine what shall be, for purposes of this Code, the language of each Court within the State other than the High Court.
Language of record of evidence is provided under Section 277 CrPC. It provides that if witness gives any evidence in the language of the court, it must be taken down in that language.
CONTENTS OF JUDGMENT – Section 354 and Section 355
COMPONENT 1 : It shall contain:
· Points to be determined in that case
· Findings on both the points, or decision on both points as per evidence on record.
· Reasons given by the court for these findings or decisions. If the appellate court agree with findings of the lower court reasons need not be repeated
On conviction ! The judgment shall specify the offence by mentioning Section of IPC or any other law for the time being in force for which accused is convicted and sentenced.
On Acquittal ! If judgment is of acquittal, the offence for which accused is acquitted shall be mentioned and direction be given that he be set free at liberty.
COMPONENT 3 : REASON FOR PUNISHMENT
WHEN DEATH PENALTY AWARDED : In cases where offence is punishable with death or alternative with life imprisonment or any other imprisonment, the court shall record the reasons for that and in case of death sentence, special reasons are to be given making it rarest of rare case as per Supreme Court Judgment.
WHEN LESSER PUNISHMENT GIVEN THAN PRESCRIBED BY LAW : When imprisonment for offence punishable with one year or more is there and accused is given imprisonment of less than 3 months in that case, court has to record reasons for that except in cases of summary trial or imprisonment till the rising of the court.
a) In case of death sentence, court will pass an order to hang him by neck till he is dead.
b) When court is to pass an order under Section 117, 138, 125, 145, 147, the court must mention the points to be determined for disposal of case and reasons for the final decision after determination of points involved in each case.
POINT TO BE NOTED | The decision of trial court sentencing the accused with death penalty is not final unless it is confirmed by the High Court under Section 368 of CrPC. Court need to state special reasons also while passing such sentence and shall award death penalty in rarest of rare cases.
When and how special reasons should be recorded ? RELEVANT CASE LAW | Bachan Singh v. State of Punjab (1980) 2 SCC 684
In this case, the Supreme Court observed:
“As we read Sections 354(3) and 235(2) and other related provisions of Criminal Procedure Code, 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of ‘special reasons’ in that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case.
More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man’. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator.
That is why, it is not desirable to consider the circumstances of the crime and circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that ‘special reasons’ can legitimately be said to exist.
Kumar v. Inspector of Police (2015) 2 SCC 346 If death sentence is awarded, special reasons shall be recorded by the court and also consider special circumstances under which death penalty is imposed.
Judgment in abridged form: Section 355
Metropolitan magistrate is required to record the following particulars at the time of passing a judgment:
a) Serial number of the case.
b) Date on which offence has been committed.
c) Complainant’s name.
d) Name of accused and his parents and residence.
e) What offence is complained of or proved.
f) Plea of accused and his examination.
g) Final order passed
h) Date on which that order is passed.
i) Cases in which appeal lies from final order under Section 373 or under Section 374(3), along with brief statement of the reasons of such decision.
Special Components of judgments
Order to notify address | Section 356
On whom it applies ? Accused who has been previously convicted by any court other than Magistrate of 2nd class of
1. Offence punishable U/s 215, 489A, 489B, 489C, 489D, 506
2. Any offence under chapter XII or Chapter XVI or Chapter XVII – imprisonment for 3 years or upward
Then the court – While convicting can order to notify any change or absence from residence after the release
Rationale | Provision of section 356 is enacted for keeping an eye on the activities of persons who are indulged in different criminal activities, i.e. habitual offenders such as thief, thug, one who counterfeits coins and currency notes, one who cheats etc.
Follow up | Section 356 provides that information and all details about such person must be notified to the court for a period of five years from the date of his release.
Effect of acquittal | If conviction in such case is set-aside later on appeal etc, then order passed under this section will become void.
Scope of section: 356
· An order under this section can also be made by an appellate court, or by High Court or Court of Session when it exercises its power of revision.
· The section applies not only to the offences mentioned above but also to abatement, attempt and conspiracy of offences mentioned above.
· Other to notify address is not mandatory – only if the court thinks necessary it could order for the same.
ORDER TO PAY COMPENSATION | SECTION 357
Introduction : As per section 357, order to pay compensation under Clause 1 and clause 3 to victim of the offence has to be made as per amendment of 2009. Compensation under this section is awarded irrespective of the fact that offence is one which is punishable with fine and that fine is actually imposed in the case but compensation in that will be ordered only if conviction is passed against the offender.
Power given to Court U/s 375 | Court can order the whole or even part of the fine to apply
1. for prosecution expenses
2. compensation to any person who suffered loss or injury on account of offence committed – provided the compensation is recoverable from civil court
3. When accused is convicted for causing death or abetted such death compensation could be ordered to be paid to the person entitled for benefit as under Fatal Accidents Act
4. Compensation to pay the purchaser when accused convicted for theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen.
When such order for compensation could be made ? It can be done by Court when it imposes a sentence of fine or a sentence - including a sentence of death of which fine forms a part.
Wide power of court | Court can order payment of compensation even if fine is not the part of punishment
Condition | Fine need not be paid till expiry of appeal period and if appeal made then till its judgment is passed fine need not be paid
Scope | Power U/s 357 can be enjoyed by Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
Inter- link with civil suit | When a subsequent civil suit to recover compensation on same issue is successful then the money paid under this section must be taken into account.
OTHER SECTIONS ON COMPENSATION | Section 357 A provides that state shall prepare for compensation to victims.
Victim Compensation Scheme: Section 357A
This section has been inserted in 2009 by amendment and came into effect from 31 december, 2009. Victim compensation schemes are to be prepared by State government in coordination with Central government.
What does this scheme do ? These schemes, provides for funds which are awarded as compensation to victims of offences or his dependants, who require rehabilitation.
Who is a victim ? ‘victim’ is defined under Section 2(wa) as-
A person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir # this definition has been in the Criminal Procedure Code in 2009 by way of amendment, with effect from 31 december, 2009.
How it works ?
Clause 1 : State government in co-ordination with Central government prepare “victim compensation scheme”
Purpose of the Scheme : It is formed to provide funds for compensation to victim
Who are beneficiaries of this scheme ? Victim or dependents of victim
Condition 1: They must have suffered loss/ injury from such offence
Condition 2 : They must require rehabilitation
Above both conditions must be satisfied
How the process starts ?
By recommendation | Clause 2 : On recommendation of court – compensation amount will be decided by District Legal Service authority of State legal Service authority
By application | Clause 4 : If offender is not known or identified but victim is known and trial does not take place, then an application may be made to State or District Legal Services Authority for award of compensation.
When court can recommend ?
Clause 3 : If trial court feels compensation U/s 357 is not adequate or accused acquitted / discharged but victim needs rehabilitation then it can make such recommendation.
What happens next ?
On recommendation of court or by application of victim under clause (4 ) District or State legal service authority will made enquiry then award compensation based on it.
Power to provide immediate relief | The concerned legal service authority can award initial immediate payment for first –aid or medical benefits or other appropriate relief for free of cost under clause (6)
BUT ! A certificate must be obtained on this regard from any officer not below rank of Officer in charge of police station or magistrate.
How it works ?
Clause 1 : State government in co-ordination with Central government prepare “victim compensation scheme”
Purpose of the Scheme : It is formed to provide funds for compensation to victim
Who are beneficiaries of this scheme ? Victim or dependents of victim
Condition 1: They must have suffered loss/ injury from such offence
Condition 2 : They must require rehabilitation
Above both conditions must be satisfied
How the process starts ?
By recommendation | Clause 2 : On recommendation of court – compensation amount will be decided by District Legal Service authority of State legal Service authority
By application | Clause 4 : If offender is not known or identified but victim is known and trial does not take place, then an application may be made to State or District Legal Services Authority for award of compensation.
When court can recommend ?
Clause 3 : If trial court feels compensation U/s 357 is not adequate or accused acquitted / discharged but victim needs rehabilitation then it can make such recommendation.
What happens next ?
On recommendation of court or by application of victim under clause (4 ) District or State legal service authority will made enquiry then award compensation based on it.
Power to provide immediate relief | The concerned legal service authority can award initial immediate payment for first –aid or medical benefits or other appropriate relief for free of cost under clause (6)
BUT ! A certificate must be obtained on this regard from any officer not below rank of Officer in charge of police station or magistrate.
Section 357B and 357 C has been added in 2013 by Criminal law (Amendment) Act, 2013 with effect from 3 February, 2013.
· Section 357B provides that the compensation to be paid under Section 357A is awarded in addition to fine imposed on accused under Section 326A or 376D i.e. in case of Acid attacks or in case of gang rape, this fine is also paid to victim.
· Section 357 C deals with treatment of victims of offences under Section 326A, 376, 376 (A-E) of Indian Penal Code.
Any hospital – private or public run by state government, central government or local body must provide first aid immediately ( mandatory ) and inform police immediately.
· Section 358 provides that compensation to groundlessly arrested persons in cases where person is arrested without sufficient reasons earlier to this section, there are many cases where Supreme Court has awarded compensation to persons groundlessly arrested.
Note : In such cases, the magistrate may award compensation not exceeding rupees 1000. If there are more offenders than one, then magistrate shall award each to pay amount upto Rs. 1000. The compensation under this section shall be recovered as if it were fine and if no amount is paid then person would be imprisoned with simple imprisonment of up to thirty days.
· Section 359 lays down the provision for payment of cost of litigation in non-cognizable cases to complainant where accused is convicted of the offence.
· Section 360 provides for probation of offender. If conditions of probation are fulfilled, probation will be granted to the offender as per rules of Probation of Offenders Act.
Following factors are considered in order to release a person on probation:
i. If he is not below 21 years of age and is convicted for offence which is punished with fine only
ii. If person is not below 21 years of age and is punished with imprisoned upto seven years or for less than 7 years
iii. or person is below 21 years of age,
iv. any woman is convicted for an offence punishable other than with death sentence or imprisonment for life.
v. No previous conviction has been proved against the accused.
Under Section 361 CrPC special reasons must be recorded in the judgment when court deals with following cases-
i. An accused person under Section 360, or under the provisions of the Probation of Offenders Act, 1958, or
ii. A youthful offender under the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
PRONOUNCEMENT OF JUDGMENT : SECTION 353
What section says ?
a) The criminal court of original jurisdiction shall pronounce the judgment.
b) It shall be pronounced in open court.
c) The presiding officer of the court shall pronounce the judgment.
d) The judgment shall be pronounced immediately after determination of trial or within some subsequent time of which notice shall be given to the party or its pleader.
Manner of delivery of judgment
v By delivery of judgment, it means whole of the judgment. In that case, Presiding officer shall cause it to be taken in short hand and sign the transcript and every page thereof as soon as made ready, write on it date of delivery of judgment in the open court.
The Presiding officer may pronounce the judgment by reading whole of the judgment or by reading only the operative part of the judgment in the language understood by accused or his pleader. In both cases, it must be dated and signed by presiding officer in open court and if the judgment is not in written form, then in his hand writing he must sign every page of the judgment. Copy of judgment must be made available to the parties or his pleader. If accused is in custody, then he shall be brought to hear the judgment and its pronouncement. If accused is not in custody, then he shall be required by the court to attend the hearing when judgment is to be pronounced, except in cases where personal experience of the accused is dispensed with and sentence is fine only or acquittal order. When there are more than one accused, if one or more than one is not present on date of judgment, the presiding officer may pronounce judgment in the absence of accused, the reason behind it is to prevent unnecessary delay. The judgment pronounced by criminal court is not considered invalid by reason of absence of party or pleader or any omission to serve the notice of any person.The provisions of this section would not affect Section 465 CrPC unless it results in failure of justice.
Case law | Ajay Singh and others v. State of Chattisgarh, Criminal appeal nos. 32-33 of 2017
In this case, Supreme Court held that Judge need to be diligent-
a) Although term ‘judgment’ is not defined but provisions for pronouncement of judgment are laid under Chapter XXVII of the Code. It provides that judgment must be pronounced in open court y delivering whole of the judgment or by reading operative part of the judgment. The substance of the judgment shall be explained to accused or his pleader in the language which he understands.
b) Judge must be diligent while dealing with the case so that no dent remains in the trial or injustice does not occur.
PROVISIONS AFTER JUDGMENT IS PRONOUNCED
As per section 362- once judgment is pronounced, no alteration in that can be made except relating to clerical or arithmetic error.
Section 363-
i. Where accused is sentenced to imprisonment, copy of judgment has to be given immediately after pronouncement of judgment, free of cost.
ii. On application of accused, certified copy must be given without delay, free of cost, where it’s an appealable case. However, where death sentence is awarded, copy of judgment must be given immediately whether accused has applied for it or not.
Where judgment is not in the language of court, then if accused so desires, judgment be translated in language of court and copy of that be made available as part of record.
Section 365: District Magistrate is to be informed by copy of findings and sentence within whose jurisdiction trial was held.
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