“The sentence of the law is to the ethical sentiment of the general public what a seal is to hot wax”.
Prevention of crime is the principal object of punishment and the measure of punishment consequently varies from time to time according to the prevalence of a particular form of crime and other different circumstances.
Punishment is in itself an evil and might be even only by its effect in deterring the offender from committing the offence in future and deterring others by his example from the commission of it.
In the Indian panorama the crime oriented Penal Code 1860; the guilt finding procedure of the Criminal Procedure Code 1898 and the Evidence Act 1872 formed the foundation of British Administration of Criminal Justice in India.
The individualisation of punishments in the course of the experiments of correctional measures has resulted in a widespread impression of sacrifice of uniformity, objectivity, clarity and severity, resulting in lack of faith in criminal law.
It is in the light of these developments that an earnest attempts were made to unfold the many ‘whys’, ‘hows’ and ‘whats’ close the advanced downside of sentencing.
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In India, there is no uniform policy for sentencing but the sentencing depends upon the individual philosophy of the Judges. The sentencing policy has been explained by the Supreme Court in the case of State v. Sanjeev Nanda, that it has to be proportional to gravity of offence, so that it must afford sufficient deterrence and protect public from crime.
The essential thrust of sentencing policy is that the reformation ought to be the dominant objective of social control and through captivity, each effort ought to be created to recreate the good man out of convicted prisoners.
SENTENCING PROCESS:
The winds of reformative theory started its way into India in the late fifties and the ideal of social justice gave a nucleus (impetus) to the progressive movements. Reformation theory reflected its presence by the Probation of Offenders Act, on the legislative horizons. Several proposals for jail reforms and establishment of correctional institutions corresponded with the legislative spirit. Still the crime-guilt finding oriented Penal Code and Criminal Procedure Code remains the foundation of sentencing law. In the meanwhile, several special enactments to check the socio-economic crimes have been enacted proposing an enhanced punishment for these offenders. The result is that the sentencing process has become a complex problem. The complexness will be understood by a thought of obtainable punitive measures, classification of offenders and classification of courts. The following are the punishments in force.
Custodial
- Capital punishment
- Imprisonment for life
- Imprisonment for a term i.e.
a. Rigorous – with hard labour (Section 53 of IPC)
b. Simple (Section 53 IPC)
Non-Custodial
- Fine
- Forfeiture of property
- Confiscation (Foreign Exchange Regulation Act and Customs Act)
- Payment of compensation of victim
In case of women offenders, under the Suppression of Immoral Traffic in Women and Girls Act there is a provision to send way-ward and convicted women to Welfare Homes and other correctional institutions. Law provides that all offenders below the age of 16 years, in case of boys & 18 years, in case of girls should be tried by only a Juvenile Court; they should be confined only in correctional institutions; during their confinement the young offenders should be given such industrial training and different directions or ought to be subject to such discipline and influences as can conduce them to reformation.
The electronic equipment system of criminal trial consists of 2 bolt separated phases:-
1. The determination of criminal liability leading to an acquittal or conviction.
2. The determination of the way in which a person convicted should be dealt with.
The sentencing method has nothing to try with the primary of the on top of phases. It begins where the first ends.
When an offender is found guilty, the question of applying the ‘sanctions’ of Criminal Law has to be decided. Whether the convict should be ‘punished’ or otherwise should be treated, if he is to be punished what type of punishment is appropriate and if he is to be treated what measures are to be taken, all falls for consideration.
Therefore, any consequence, which flows from conviction, can be looked upon as sentence. Sentencing, which is the cutting edge of the judicial process, is the crucial strategy of the criminal law in achieving social defiance and delinquent rehabilitation.
The main purpose of the sentence loosely declared is that the defendant should realise that he has committed an act is not only harmful to the society to which he forms an integral part but also to his own future both as an individual and as a member of society.
In India the sentencing power of the courts is derived from the Code of Criminal Procedure (CrPC), 1973. The offenses are divided into two groups:
1. Offences under the Indian Penal Code (IPC)
2. Offences under any Special Laws.
The expression ‘sentencing’ incorporates a shut proximity with sanctions.
The term ‘sanctions’ however, has a synthetic and narrow meaning. Prof. H. L. A. Hart’s proposition that ‘sanction’ must always involve some pain, is based on the narrower meaning. Corresponding to this, ‘sentencing’ additionally incorporates a generic and narrower that means.
So where the convict is treated under the reformative theory either by probation or by sending him to a correctional institution, it is not sentencing in the strict sense of the term.
In its generic sense however, ‘sentencing’ means that “all things that the court might neutralise respect of a guilty wrongdoer.” So where a convict is released upon admonition, probation, etc., all such determinations are sanctions and hence, falls within the meaning of sentencing. Sentencing process may be defined accordingly as, “the process where by the State determines the criminal law sanctions and apply it to a person convicted of an offence.”
