This article is written by Tulip Das, currently perusing BBA L.L.B(H) from Amity University Kolkata. In this article, the author aims to describe judgement in India and the application of the same as per the Criminal Procedure Code 1973.
“The safety of people shall be the highest law” – Marcus Tullius Cicero
The Indian Judicial System is one of the most prominent and upright judicial systems in the world. The function of the judiciary is to interpret and apply the laws of the land to cases coming before it and deliver speedy and fair justice to all. Judgement means the ability to make free, fair, and considered decisions or to come to a sensible conclusion. The concept of judgement in India is properly defined in Section 2 (9) of the Civil Procedure Code (CPC). It says, “judgment” is the statement given by the Judge on the grounds of a decree or order.
However, there is no proper definition of judgement mentioned in the Criminal Procedure Code, 1973. In the case of Surendra Singh v. State of UP [1954 AIR 194, 1954 SCR 330], the Supreme Court defined said that “A judgement is a final decision of the court intimated to the parties and the world at large by formal “pronouncement” or “delivery” in open court and until a judgment is delivered the judges have a right to change their mind”.
Application of Judgment in India under the Criminal Procedure Code, 1973
Chapter XXVII, Section 353 to 365 of the Criminal Procedure Code, 1973, deals with The Judgement. However, there is no definition of “judgement” present in the Code, but it is to be understood as the final order of the Court.
In the case of Ismail Amir Seikh vs. the State of Maharashtra, it was held that a judgment is the act of judging. It was pointed out that judgment should distinctly mention the reason for accepting an argument and rejecting the other.
This chapter sheds light on the various provisions related to “judgement” in a Criminal proceeding.
This chapter applies all across India.
SECTION 353 – Judgment
Ratio decidendi and Obiter dicta form an important part of the judgement. Ratio decidendi of a judgement may be defined as the principles of law formulated by the Judge to decide the problem before him whereas, obiter dicta means observations made by the Judge, but are not essential for the decision reached. These two are very important as they define the legal principles which are useful to the legal fraternity.
If the judgement is of acquittal: –
- Whether the evidence of the prosecution failed to prove the guilt of the accused or merely failed to prove it beyond a reasonable doubt.
- If the act or omission from which the liability might arise doesn’t exist.
If the judgement is of conviction: –
- The essential elements of the offense committed by the accused and the intervening circumstances which led to the commission of this offense.
- Participation of the accused as the principal perpetrator, or accomplice or accessory.
- The penalty that is imposed on the accused.
The absence of a pleader during the pronouncement of a judgement shall not be deemed to be enough reason for causing any delay in judgement.
SECTION 354 – Language and Contents of the Judgment
1. Under Section 354, of CrPC, it is stated that every judgement should be:
- In the language of the Court.
- Shall contain the points of determination and the reason for the same.
- The offense should be specified and the reason for the same should be given for the same.
- The offence committed must be mentioned in the IPC or any other law under which the crime is committed and the punishment is given.
- If the offender is acquitted, the offense for which he is acquitted, the reason for the same and it must be specified that a person is now a free man.
2. If the judgment is passed under the IPC and the judge who is delivering the judgement is not certain about under which Section the offence is committed or under which part of the Section, the judge should mention the same in the judgement and should pass orders in both the alternate situations.
3. The judgement shall give a proper reason for the conviction if it is a sentence for life imprisonment and in case of death penalty the special reason has to be given.
SECTION 355 – Metropolitan Magistrate’s Judgment
Under Section 355 of the CrCP, it is mentioned that the judge instead of giving the judgement in an above-mentioned way, can deliver it in an abridged version that would contain-
- The serial number of the case,
- Date of the commission of the offence,
- Name of the complainant,
- Name of the accused person, his parentage and residence,
- Offence complained of or proved,
- Plea of the accused and his examination,
- Final order,
- Date of the order,
- In cases when the appeal lies from the final order either under S.373 or S.374(3) of this Code, a brief statement of reasons for the decision.
This section has its mention in the Allahabad High Court case of State v. Mahipal And Others, 25th October, 2013.
SECTION 356 – Order for Notifying Address of a Previously Convicted Offender
This section tells us about the order regarding notification of the address of a previously convicted person.
In cases decided by the Court of Session or a Chief Judicial Magistrate, the Court or such Magistrate as the case may be shall forward a copy of its or his finding and sentence (if any) to the District Magistrate within whose local jurisdiction where the trial was held.
SECTION 357 – ORDER TO PAY COMPENSATION
Under Section 357 of the Code, when a Court imposes a sentence or fine or a sentence in which fine is also included then the Court while passing judgment may order the whole or any part of the fine recovered to be used:
- In defraying the expenses incurred during the prosecution.
- In the payment to any person as compensation for any loss or injury caused by the offence, when compensation is recoverable in the Civil Court.
- When a person is convicted of any offence for causing the death of another person or have encouraged the commission of such an offence, have to pay compensation to the persons who are, under the Fatal Accidents Act, 1855 entitled to recover damages from the person sentenced for the loss resulting to them from such a death.
- When a person is convicted of any offence including criminal misappropriation, theft, criminal breach of trust, cheating, dishonestly receiving or retaining, or willingly assisting in the disposal of any stolen property knowing that the property has been stolen then compensation has to be given to the bona fide purchaser of such property for the loss of the same if such property is restored to the person who is entitled to the possession of it.
If the fine is imposed in a case which is appealable, no such payment shall be made before the period allowed for presenting the appeal has lapsed, or if an appeal is presented then before the decision of the appeal is delivered.
Moreover, when a Court imposes a sentence, in which fine is not included, the Court while passing judgment may order the accused person to pay, in the form of compensation, the amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. An order can also be made by an Appellate Court or by the High Court or Sessions Court while exercising its powers of revision.
It is important to note that at the time of awarding compensation in any civil suit relating to the same subject matter, the Court will take into consideration any sum paid or recovered as compensation under this Section.
- S.357A describes victim compensation scheme
- S.357B deals with compensation to be in addition to fine under S.326A and S.376D of the Indian Penal Code
- S.357C deals with treatment of victims
SECTION 358 – Compensation for Wrongful Arrest
Under Section 358, it is stated that in case a person compels the police to arrest another person, which the Magistrate thinks that there is no ground for such arrest, the Magistrate may order compensation not exceeding Rs 1000, to be paid by the person who causes such arrest. The fine is given as a way of compensation for the loss of time and expenses or other matters, as the judge may think fit. If more than one person is arrested on such a basis, then each of them should be awarded a compensation not exceeding Rs 100, as the Magistrate thinks fit. Such compensation shall be recovered as a fine and if the person does not pay the compensation then the Magistrate can sentence him to imprisonment not exceeding 30 days unless the compensation is sooner paid.
SECTION 359 – Order to Pay Costs in Case of Non-Cognizable Offence
In Section 359 of the Code, it is held that whenever the Court convicts the offender in a non-cognizable offence, then along with the sentence of the crime, it can also order the payment of expenses that are borne by the complainant, these expenses would include the fees of the witness, pleaders fees or any other which the Court deems fit. The payment could be made in full or in installments. In case of default of such payment, the Magistrate may order imprisonment not exceeding thirty days.
SECTION 360 – ORDER TO RELEASE ON PROBATION OF GOOD CONDUCT OR AFTER ADMONITION
Section 360 of the CrPC mentions a provision in which a person could be released on good conduct or after admonition. In this, if a person is not under the age of 21 years and is not convicted of an offence which is punishable with a fine or a term which is seven years or less. Also if a person is more than 21 years of age or a woman is convicted of an offence which is not punishable with a death sentence or life imprisonment and no previous conviction is there against the person then if the Court thinks it is fit as per the age, character, antecedents of the offender and the circumstance under which the offence was committed, that it is expedient to release the person on good conduct and the Court instead of punishing him, may or may not order him to be released in the sureties. Such a person has to appear before the Court to receive the sentence of the punishment not exceeding 3 years and in the meantime peace and good behaviour, must be exercised.
If the first offender is convicted by the magistrate of the second class then the magistrate has to record its opinion to that effect and submit it to the first class magistrate. The first class magistrate will hear the case in the same manner as if it originally came to his Court and he may order further inquiries if he feels that it is necessary to do so. He may order to record evidence or do it by himself.
Suppose a person is convicted of theft, misappropriation, cheating, or any other offence under the IPC, and is punishable with not more than two years of imprisonment or fine. Then, in this case, the person is not previously convicted of any other offence, the Court may if it deems fit can release the person based on his age, antecedent, mental and physical condition, character, the trivial nature of the offence, or any circumstances which took place. The Court may release him after due admonition. An order under this Section could be given by the Appellate Court or High Court or Court of Session while exercising its power of revision.
The Court should ensure that the offender and his sureties must get a place of living and a regular occupation of observation as specified by the Court.
SECTION 361 – Special Reasons to be Recorded in Certain Cases
The Code through Section 361 makes the application of Section 360 necessary wherever possible and in cases in which there is an exception to state clear reasons. The judge must give specific reasons for awarding the punishment which is below the minimum prescribed under the relevant laws of the country. The act of recording the specific reason is an irregularity and can set aside the sentence passed on the ground of failure of justice. The Probation of Offenders Act, 1958 is very similar to Section 360 of the CrPC. It is more elaborate in the sense that it explicitly provides for conditions of release order, a supervision order, payment of compensation to the affected party, powers and predicaments of the probation officer, and other particulars that might fall in this field. Moreover, Section 360 would cease to have any force in the States or parts where the Probation of Offenders Act is in force.
Sub-section (b) of S.361 says that, a youth offender under the Children Act 1960 (S.60 of 1960), or any other law for the time being which is in force for the treatment, training and rehabilitation for young offenders, but has not done so, it shall also record in its judgement the reason for not having done so.
SECTION 362 – Court not to Alter Judgment
This section tells us that once a judgement is pronounced, no change shall be made by the court or the presiding officer on such judgement. Unless the appeal is filed at a higher court.
In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736, the Supreme Court held that the prohibition in Section 362 of CrPC, against the Court altering or reviewing its judgment on this case, is subject to what is “otherwise provided by this Code or by any other law for the time being in force”. Those words, in turn, refer to those provisions only where the Court has been expressly authorized by the Code or other law to alter or review its judgment. The power inherited by the Court is not contemplated by the saving provision contained in Section 362 of the CrPC.
SECTION 363 – Copy of the Judgment to be Given to the Accused and Other Persons
Section 363 of the CrPC states that when the sentence of imprisonment is pronounced, the guilty must be immediate, given a copy of judgement-free of cost. If the accused applies, the copy of the judgment in his language (if possible) or in the language of the Court shall be translated and given to him in every instance where such a case is appealable. This copy should be given to him free of cost. However, if the High Court confirms the death sentence of the accused, then he should be given a copy of the judgement even if he has not applied for the same. Except for these cases, the accused will get a copy of the judgement or order, once he makes the payment of the specified charges, or in special cases, as the Court shall deem fit, will be given to him free of cost. Furthermore, if the appeal to the judgement lies in the higher Court, then the accused must be informed of the time within which he should appeal, and his appeal must be preferred. Moreover, other persons who are not affected by the judgment of the High Court shall get a copy of the same after payment of specified prices and following certain conditions as ascertained by the High Court in the rules made by it.
In the case of Shree Lal Sarof v. State of Bihar, the Court held that when a person is affected by a judgement or an order passed by a criminal court, then on the application made in this behalf under S. 363(5), and on the payment of the prescribed fees, he has to be provided a copy of the order, disposition or other parts of the record irrespective of whether he has appeared in the court or not.
SECTION 364 – Judgment when to be Translated
This section provides that every judgement pronounced by a court must be recorded. In an instance where such judgement is not in the language of the court and the accused requires so, then the judgement should be translated into the language of the court and stored accordingly.
SECTION 365 – Session Court to Send a Copy of Finding and Sentence to the District Magistrate
This section tells us that in case a judgement is pronounced by a Court of Session or by a Chief Judicial Magistrate, then a copy of such a judgement should be sent to the office of the District Magistrate, under whose local jurisdiction the trial is held.
Judgement forms an important part of any legal proceedings as it mentions the decisions that are taken after hearing the argument from both sides and the reason for the same. Chapter XXVII of the Criminal Procedure Code, 1973, lays down a detailed description of the judgement in criminal matters. Provisions relating to the language, contents, etc are provided. Separate provisions are present for delivering judgement in cases relating to the death sentence, fine or imprisonment.
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