MODULE 3

SENTENCING POLICY, INTERNATIONAL TREND, TREND OF THE

INDIAN JUDICIARY, FACTORS TO ADJUDICATE ON SENTENCE

Sentencing in India

What is meant by ‘sentence’?

“Sentences” are declarations in judgments that specify the legal penalty to be applied to a
certain offence. When the same is put in action, and is operationalized, it would be termed as
‘punishment’. A sentence is considered to be the predecessor of the actual inflicting of
punishment if any. Any country that has sentencing laws has them in place to deter crime and
punish offenders. The sentencing guidelines represent how society views and justifies a
certain offence. Guidelines for sentencing can be viewed as a method for determining the
appropriate punishment for a certain offence.

Both the legislature and the judiciary in India have not established formal sentencing
guidelines. Numerous committees have realised the importance of well-considered
guidelines. Recognizing the need for such a policy, the judiciary has occasionally laid out
certain principles and criteria that courts should take into account when determining
punishments. It has also been noted that the absence of sentencing guidelines is resulting in
broad discretion, which ultimately results in uncertainty in the awarding of sentences.

Aim of sentencing

The main objective of a criminal trial is sentencing. When the victim is satisfied, justice
through punishment serves as a symbol for the current and subsequent generations.
Therefore, the ultimate focus of the sentencing policy is to keep an eye on crime and punish
offenders.

The development of civilization brought about many forms of punishment that were
sanctioned by various societies. For instance, the punishment for offences under
Mohammedan law included blood, money, and revenge. For instance, the punishment for
offences under Mohammedan law included blood, money, and revenge. According to Hindu
law, discretionary punishment was required and favoured Brahmins. The use of harsh trials as
a form of punishment was widely known in English law. But penology steadily changed as
society developed. Several judicial systems began to explain their punishments, and they
eventually came to a point where the emphasis was more on reforming the offender, than on
deterring him.

The type of punishment imposed for various offences can be used to determine the
underlying philosophy of any criminal justice delivery system. But it is impossible to expect
everyone in a system like ours, with so many players, engaged besides the accused and
victim, to respond to a specific crime in the same way. For example, the victim might display
more emotion than the judge, who is an absolute stranger to both sides. The accused may also
come to believe that his actions were justified by stressing the circumstances surrounding
them. Judges and other legal professionals are appointed in order to reach an agreement over
a certain incident.

The decision here must consider not only whether a wrong was done or not, but also—and
perhaps more importantly—what must be done in the event that a wrong was done. There
are lots of choices. The best course of action in a victim-centred system would be to put the
victim back in the same situation that existed before the mistake was committed. This is
typically utilised in economic crimes and tort situations. In situations of physical, emotional,
and psychic harm where rehabilitation is rarely achievable, this cannot be consistently
applied. Retribution and rehabilitation are the two choices available in these situations.

In the former, the system focuses on condemnation of the crime as a more important rationale
for penalising than any other. Rehabilitation, on the other hand, is more accusation-friendly
and advocates reintegrating the subject into society at large. Deterrence, whose core principle
is to stop the same event from occurring again, is another prevalent justification for
punishment.

According to the White Paper (the sentencing policy, which was introduced into the British
parliament), the object of sentencing guidelines should be “dissuading and safeguarding
society from evils”. Not only does a lack of a fair conviction policy violate the rights of
victims and convicts, but it also breaches the Constitution’s core human right – the right to be
treated equally under the law. It is impossible to entirely eliminate the judges’ discretionary
authority. However, certain guiding principles that limit a judge’s authority and establish a
penalty-based principle can be adopted, allowing the Indian criminal justice system to take a
more rights-based approach.

The aim of a punishment framework should be to reform juvenile delinquents or first-time

offenders, while acting as a deterrent for repeat offenders or habitual offenders. It is
important to strike a balance between the severity and leniency of these penal provisions. In
addition, compensation to victims should be provided. The rationale of criminal laws may
strike a balance between social norms that apply to both the individual and society as a
whole.

Fundamentals of sentencing

Typically, sentencing is considered one of the most important components of criminal laws
and is seen as the State’s most invasive and powerful tool. Sentencing is that stage of the
criminal justice system where the actual punishment of the convict is decided by the judge.
As a result, punishment and sentencing go hand in hand. The main purposes of punishment
are to deter criminal activity and to repress antisocial elements in order to safeguard society.
Theories of punishment suggest that there are four possible goals for punishment: retribution,
prevention, reformation, and deterrence.
The Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian
Evidence Act, 1872 make up the majority of the criminal justice system in India. A number
of special and local laws, such as those prohibiting animal cruelty, defending civil rights, and
counterterrorism, supplement the Indian Penal Code, 1860. It’s crucial to remember that
substantive penal laws can be effective only when the procedural laws for enforcing them are
efficient. The function of the criminal justice system is essentially this.

Although many factors must be taken into account when determining which acts or omissions
are punishable, who should receive what punishment, and how severe it should be, these
factors include the applicable law, the offender’s role in the commission of the crime, its
nature or severity, the availability of evidence against the accused, how the judicial
authorities will evaluate this evidence, the offenders’ criminal histories, and eyewitness
testimony.

Judges should ideally be interchangeable and mutually consistent, rendering comparable

judgments in comparable cases, preventing anyone from unfairly influencing the judge or the
proceedings in any way. But because the law cannot foresee every circumstance or determine
which laws may apply in a certain circumstance, some discretion is inevitable. Standard
principles of justice and due process, reason, and the specifics of each case are expected to
fill any gaps in the law’s guidance.

Sentencing in India
The reformative theory is used to administer punishment in India. The punishment imposed
shouldn’t be so severe or so light that it fails to have an effect on the offender and serve as a
wake-up call for others. It is believed that punishment should be administered in a way that
results in changes to a person’s personality and way of thinking.

Penalties in India were defined under Section 53 of the Indian Penal Code of 1860.

The provision discusses the various punishments that the courts may impose for certain
offences. The following is a list of them:

1. Death

2. Imprisonment for life

3. Imprisonment, which is of two descriptions: Rigorous and simple

4. Forfeiture of property

5. Fine

The fundamental law of the country, the Indian Constitution, has given both the Central and
State governments the authority to pass laws governing criminal justice, criminal procedure,
and preventive detention. In accordance with Articles 72 and 161 of the Indian
Constitution as well as Sections 432 or 433 of the Code of Criminal Procedure, 1973, the
Government may commute, condone, or pardon any sentence, including capital punishment
and life in prison, that has been imposed and affirmed by a court of law. Even a life sentence
may be reduced to a sentence of no more than 14 years in prison.

The judges have complete discretion over how sentences are distributed, and it has been
observed that this leads to drastically unequal sentencing practices. In addition, the Cr.P.C.
1973 gives the judge a lot of latitudes after the verdict has been reached. Sections
235, 248, 325, 360, and 361 of the Criminal Procedure Code deal with sentencing.

To ensure that the offender is given the opportunity to speak for himself and offer input on
the sentence to be imposed on him, this section offers a quasi-trial. The reasons given by the
criminal might not be relevant to the offence or be legitimate under the law. It is merely for
the court to gain a sense of the convict’s social and personal background and determine
whether anything will have an impact on the sentencing. A sentence that does not follow
Section 235 (2) may be overturned because it violates natural justice. However, this
procedure is not required in cases where the sentencing is done according to Section 360.

The main part of judicial discretion comes in S.360 which provides for release of the convict
on probation. When there is no immediate threat to society, the section’s goal is to attempt
and reform those criminals. This is demonstrated by limiting the section’s application
exclusively to situations in which the following circumstances exist:

1. A woman convicted of offence the punishment of which is not death or life imprisonment

2. A person below 21 years of age convicted of offence the punishment of which is not
death or life imprisonment

3. A male above 21 years convicted of an offence the punishment of which is fine or

imprisonment of not above 7 years.

Additionally, the court may leave the convict without any punishment at all after a simple
warning if the crime committed is of a nature that the maximum sentence allowable is 2 years
or a simple fine. The court will take into account the different factors related to the convict in
making this decision. The court may also order the offender to be arrested again if they fail to
follow the rules established at the time of release as described in this section. The offender or
the surety must reside or be regularly engaged within the court’s jurisdiction in order to be
released under these requirements.

The application of Section 360 is mandated by the Code through Section 361, and in cases
when an exception applies, it must be justified clearly. The judge must explain any instances
where the punishment imposed falls short of the minimum required by the applicable laws.
The failure to record the special reason is an irregularity that has the potential to overturn the
judgment on the grounds of injustice. Only trials before the Court of Sessions and warrants
cases are eligible under these rules.
Issues associated with the sentencing system in India

The Supreme Court observed, in Soman v. State of Kerala (2021) that “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.”

The discretion provided for under the existing procedure is guided by vague terms such as
‘circumstances of the crime’ and ‘mental state and age’. It is true that they can be determined,
but the legislature has not specified when these determinations will affect the punishment.
Every crime, for instance, is accompanied with circumstances, but the court has the discretion
to determine which circumstances are mitigating and which serve as aggravating. Therefore,
if one court finds a certain circumstance to be mitigating, another judge would still be free to
disregard it as irrelevant (apart from its value as a precedent). Due to this inconsistent
application of the law, some judges have abused their discretion on the basis of their personal
prejudices and biases.

Judges in India consider many aspects of the case, such as severity, liability, guilt, and
sentence. This punishment is solely the consequence of the judge’s thinking, personal bias,
and judgment. Section 354(1)(b) of the Criminal Code states that a judge shall state the
reasons for the judgment in an awarded sentence. The law’s solution to this question led to a
specific logic, such as aggravating and mitigating circumstances, in the decision of the case
and in supporting their position regarding the penalty imposed.

Multiple scholarly works on this subject assert that lawmakers should legislate even on such
areas wherein the quantum of punishment to be meted out of the offence is prescribed. The
majority of criminal laws specify the minimum and maximum punishment/fine that may be
imposed in specific circumstances. Complete objectivity in this case, however, is also not
acceptable. No two cases would have the same grounding in criminal law. This is because
various cases may need different punishments depending on the circumstances surrounding
the conduct of the offence, the presence of aggravating and mitigating elements, and other
variables.

After the trial is completed, the need for a sentencing policy does not end. Section 360 and
Section 361 govern the release of convicts for good behaviour, and the recording of special
reasons in cases where the orders are passed by a Magistrate of the second class. Again, every
prison authority, each prison circumstance and the type of crime committed by the offender
depends on the concept of good.

The Malimath Committee, a panel created by the Ministry of Home Affairs, released a report
in March 2003 that underlined the necessity to develop sentencing criteria in order to reduce
ambiguity when imposing punishments. It stated, “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 according to his own judgment. There is
therefore no uniformity. Some Judges are lenient and some Judges are harsh. The exercise of
unguided discretion is not good even if it is the Judge who exercises the discretion. In some
countries, guidance regarding sentencing option[s] is given in the penal code and sentencing
guideline laws. There is a need for such a law in our country to minimise uncertainty in the
matter of awarding sentences. There are several factors that are relevant in
prescribing alternative sentences. This requires a thorough examination by an expert
statutory body.”

The Committee advised further that, in order to bring “predictability in the matter of
sentencing,” a statutory committee should be established to lay guidelines on sentencing
under the Chairmanship of a former Judge of the 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.

In 2008, the Committee on Draft National Policy on Criminal Justice (the Madhav Menon
Committee), reiterated the necessity of developing a policy and prescribing sentence
standards. The Law Minister was mentioned in an October 2010 news story as saying that the
government is looking into establishing a “uniform sentencing policy” in line with that of the
US and the UK to ensure that judges do not impose varying sentences.

The Supreme Court of India, in State of Punjab v. Prem Sagar & Ors (2008), also noted the
absence of judiciary-driven guidelines in India’s criminal justice system, stating, “In our
judicial system, we have not been able to develop legal principles as regards sentencing. The
superior courts, except [for] making observations with regard to the purport and object for
which punishment is imposed upon an offender, had not issued any guidelines.” The Court
stated that the superior courts have come across a large number of cases that “show
anomalies as regards the policy of sentencing,” adding, “Whereas the quantum of
punishment for the commission of a similar type of offence varies from minimum to
maximum, even where the same sentence is imposed, the principles applied are found to be
different. Similar discrepancies have been noticed in regard to the imposition of fines.”

No formula of a foolproof nature is possible that would provide a reasonable criterion in

determining just and appropriate punishment in the infinite variety of circumstances that may
affect the gravity of punishment.

In Alister Anthony v. State of Maharashtra (2012), the Court held that sentencing is an
important task in matters of crime. “One of the prime objectives of the criminal law is
the imposition of an appropriate, adequate, just and proportionate sentence commensurate
with the nature and gravity of [the] crime and the manner in which the crime is done. There
is no straitjacket formula for sentencing an accused on proof of crime. The courts have
evolved certain principles, the twin objective of the sentencing policy is deterrence and
correction.” What sentence would meet the ends of justice depends on the facts and
circumstances of each case and the court must keep in mind the gravity of the crime, motive
for the crime, nature of the offence and all other attendant circumstances.
Graduation of punishments
The Indian Penal Code provides us with a broad classification and gradation of punishments.
This has been further carved by various judicial decisions on sentencing. However, the
following drawbacks apply to these court decisions:

1. Facts specific:
Although these rules are stated as Obiter Dicta, the application of such rules in the succeeding
judgments is unclear. This argument is illustrated by the use of this test in the case of A.
Devendran v. State of Tamil Nadu (1997). There were three murders in this case. The
Supreme Court said that the trial court was not justified in issuing the death penalty as the
accused had no premeditated plot to kill anyone and the primary goal was to commit robbery.
This case should be compared with Gentela Vijayavardhan Rao v. State of Andhra Pradesh
(1996), in which the appellant burned a bus full of passengers to death while acting with the
intent to rob the vehicle. The sentence provided by the judges of the lower court was the
death penalty for convict A and 10 years of rigorous imprisonment for convict B. This was
challenged by the convict. The deterrence and retribution theories are reflected in this verdict.

In both cases, the motive is to rob the victim. However, it has been utilised as a mitigating
factor in one case and an aggravating element in the other. This demonstrates how the same
test has been used in conflicting ways.

2. Not followed by lower courts:

Lower courts do not adhere to these rules since they are not legally required to do so.
Precedents are typically disregarded or distinguished from the current factual situation so as
to give the judge his space to rule on the case.

3. More of a legislative job:

It is the job of the legislature to make rules and of the judiciary to interpret and enforce it. It
would not be fulfilling or correct to expect and allow the judges to frame the rules by
themselves.

4. Another reason the judiciary should not frame the rules is that it once again comes
down to the whims and fancies of the judge framing it. This would merely be a
manifestation of the idea that one judge had superiority over all others.
Andrew von Hirsch proposed that while determining proportionality, the process can be
divided into steps in order to reach a sentence. These four steps are:

1. What interests—physical integrity, financial security and comfort, freedom from

humiliation, privacy, and autonomy—are at risk or infringed in the typical criminal case?

2. Effects of violating such interests on a typical victim’s standard of living: minimum well-
being, adequate well-being, significant improvement

3. Culpability of the offender

4. Remoteness of the actual harm as seen by a reasonable man

Depending on which of the following methods one chooses, different factors determine
responsibility.

1. Determinism: When external causes, such as self-defence or duress, control a person’s

behaviour. However, most people have enough autonomy to choose their own course of
action, therefore this won’t always be true.

2. Social and familial background: Low family income, large family, parental criminality,
low intelligence and poor parental behaviour.

3. Individuals are significantly impacted by economic, educational, and employment

policies. They have negative effects including deprivation and marginalisation, which
encourage the emergence of criminals in society.

The main criticism of this process is that it once more gives the judge broad discretion in
evaluating the degree of culpability. The overall effect is that sentencing policy continues to
be a mess, with several well-known cases simply elucidating general rules rather than
offering courts a comprehensive standard by which to determine the wrongdoers.

Need for sentencing in India

In India, there is no standard method for imposing sentences. A statute or set of guidelines
that balances and outlines the consideration to be given as to the aggravating as well as the
mitigating elements involved in the committing of an offence will enable the legal system in
meting out the accused the appropriate penalty. Additionally, it will also be in parlance with
the common law countries from where we have borrowed most of the laws.

Uncertainty of sentencing

Different provisions of the IPC govern the punishment and sentencing aspects for various
offences. The sections specify the minimum and/or maximum penalties that may be imposed
for the offences. The difference between these two ranges, however, offers judges
considerable room in deciding the punishment in cases where a sentencing range is available
and broad discretion in cases where it is not, for instance, in cases of theft where no
maximum punishment is specified. As a result, the sentencing process is unpredictable
because some Judges are lenient while others are harsh in their judgment. Hence, there is no
certainty or predictability in the quantum of punishment and sentencing that could be granted
to the offender. The same was also recognised by the Malimath Committee in the year 2003,
which was reasserted by the Madhav Menon Committee suggesting the need for a statutory
framework for sentencing guidelines in India.
Appeals

India has witnessed an increase in appeals as a result of the lack of any laws that regulate
sentencing. The party appealing believes that the Judge may have had a prejudicial opinion
while passing judgment on the issue of the sentence because of the broad discretion granted
to judges, which is one of the reasons for doing so.

Affects the fundamental rights of the offender

All citizens in India are guaranteed the right to equality under the constitution. The right to
equality, which ensures that everyone is treated equally before the law, as well as the right to
a quick trial are both protected by Article 21 of the Constitution. However, in the absence of
sentencing guidelines, the Judges may pass judgments where in the case of similar facts the
consequences might differ thus affecting the offender’s entitlement to both rights.

A proper set of sentencing guidelines will therefore aid in guaranteeing uniformity and the
administration of justice, thereby building public confidence in the legislature and the
judiciary.

Sentencing in the UK and the US

The United States system

The Guidelines are the product of the United States Sentencing Commission and are part of
an overall federal sentencing reform package that took effect in the mid-1980s. The
Guidelines are now discretionary as a result of US v. Booker (2004), which means that judges
may take them into account but are not obligated to use them as a guideline when deciding on
a sentence. Despite this, when sentencing criminal defendants, federal judges nearly always
utilise the Guidelines at least as a starting point. The judge must provide a written
justification for each sentence that deviates from the recommended parameters. The two main
considerations under the Guidelines to calculate punishments are:

1. The conduct associated with the offence and,

2. The defendant’s criminal history.
The relationship between these two criteria is illustrated by the Sentencing Table[xxviii] in
the Guidelines Manual. The Table offers a sentencing range, in months, within which the
court may sentence a defendant for each pairing of offence level and criminal history
category. There are six criminal history categories and 43 offence levels, and each category
carries a different number of criminal history points. For instance, the Guidelines suggest a
sentence of 41–51 months for a person found guilty of an offence with a total offence level of
22 and a criminal history category of I. The Guidelines would suggest a sentence of 84–105
months, however, if a person with a significant criminal history (Category VI) committed the
same crime in the same way in the same current timeline and not during the earlier guideline
periods.

The statutory mission as stated in the 2005 Federal Sentencing Guideline Manual is “…
deterring crime, incapacitating the offender, providing just punishment, and rehabilitating
the offender. It delegates to the Commission broad authority to review and rationalise the
federal sentencing process.” Once again discretion though guided is not completely removed
in the case of the US as well.

The United Kingdom system

The Coroners and Justice Act, 2009 governs the sentencing process in the UK. The system
provides a guiding principle for the judiciary to use when determining the appropriate level of
punishment for a certain offence. The policy’s primary goal is to achieve uniformity while
promoting public confidence and proportionality in sentencing.

The rules are strict in that they prevent judges from imposing sentences that fall outside of the
range that is specified in the guidelines. However, the particular range is flexible because the
courts have the option to diverge from it whenever necessary in the interest of justice.

Apart from the offence-specific guidelines for punishment, the guidelines also provide for
general guidelines where the specific offence is not mentioned and the factors that ought to
be taken into account by the courts while sentencing the offender. The rules promote clarity
in sentencing with regard to the offences committed by the offender by incorporating
provisions that ensure transparency in the sentencing process.

The Sentencing Council’s general guidelines contain guiding principles that work together
with the offence-specific guidelines. These guidelines are in addition to the offence-specific
guidelines, and their application would cover both offences for which there are offence-
specific guidelines as well as offences for which there are not.

According to the guidelines, the court must consider Section 164 of the Criminal Justice Act
of 2003 while determining the fine to be imposed on the offender. Section 164 states that the
fine must be proportionate to the crime committed and must also convey the gravity of the
offence. The fine should be set fairly and proportionately so that it justifies the purpose of the
punishment and discourages the offender from committing similar offences or obtaining any
financial benefit in lieu of such commission of offence. This means that it shouldn’t be less
expensive to break the law than to follow it. The fine imposed must be quantified in a manner
so as to obligate the shareholders to comply with the provisions of the law.

The Act’s sentencing guidelines have a prescriptive tone due to the way they are written. The
courts are required under Section 59(1) of the Coroners and Justice Act, 2009, to adhere to
the punishment range indicated in the guidelines while taking into account that justice is
done. [10] As a result, the guidelines draw the judiciary’s focus to the significance of
guidelines while still allowing the courts to use their discretion to impose an appropriate
penalty.

Suggestions

The appointment of a permanent committee

The Coroners and Justice Act established the Sentencing Council, which has a variety of
duties, including introducing new guidelines and determining whether existing guidelines are
serving their intended purpose. Similar to the preceding suggestion, India may create an
ongoing ad hoc group that would be tasked with duties resembling those of the Sentencing
Council.

Preparation of a Table for certain offences as against the commission of offence

The General Guidelines should be supplemented with a table listing all of the offences, along
with columns listing the possible sentences for each offence, including the maximum and
minimum fines.

A special committee headed by a criminal law expert should prepare the offense-specific
table while taking into account precedents relating to sentencing, the gravity of the offence
committed, and aggravating and mitigating circumstances surrounding the commission of the
offence.

Preparation of General Guidelines in conjunction with the offences and penalties

already laid down under IPC and CrPC

According to the requirements of Indian society, the legal framework in India may adopt
some of the clauses found in the General Guidelines, 2019 published by the Sentencing
Council. The centralised guidelines would aid the judiciary in deciding on the sentence for
those crimes for which there is no sentencing range established.

Conclusion
The Indian criminal justice system urgently needs an appropriate sentencing policy given the
rising crime rates in the country. The goal of introducing such a policy is to reduce the
subjectivity that judges use to a minimum while still allowing them the necessary discretion
needed in the interest of justice, hence it must not be a strict one. The courts in India currently
have to rely on precedents, which also vary depending on the judge’s discretion and the
existence of additional aggravating and mitigating circumstances surrounding the offence. If
these rules are applied, this will prove to be very helpful. The intention of the sentencing
guidelines is to create a just and equitable society in which the rights of victims and criminal
defendants, who are now being weakened by the sentencing system, are protected.

STAGES OF CRIMINAL PROCEEDING IN INDIA

Introduction
The Code of Civil Procedure, 1973 governs the procedure concerned with criminal
proceedings in general, along with the Indian Evidence Act, 1872, both of which are
procedural laws. The Indian Penal Code, 1860 contains the substantial law involved in a
criminal proceeding. The entire proceedings can be categorized into three stages, namely the
pre-trial stage, trial stage and post-trial stage. It is not necessary that a criminal case has to go
through all three stages mandatorily. For instance, a case can get dismissed in the pre-trial
stage itself.
Each of the three sections are discussed in detail.
Pre-Trial Stage
A criminal suit is instituted by way of a First Information Report (FIR) under Section 154 of
the CrPC or a complaint on the commission of an offence. In the pre-trial stage, at first, it has
to be distinguished if the offence is cognizable or non-cognizable. If the offence is
cognizable, then FIR has to be filed by Police. If the Police refuse to file FIR, then a criminal
complaint can be filed to the Magistrate, who in turn will order the Police to register the FIR.
Once a FIR is registered against the accused for a cognizable offence, the accused can apply
for anticipatory bail or file an application for quashing the FIR before the Court.
After FIR is registered, charge sheet has to be filed under Section 173 by the Police after
investigation. If the Court is of the view that there is reasonable ground for initiating trial,
then processes are issued and accused is mandated to appear. If the accused fails to appear,
then he is declared absconder and evidence is recorded under Section 299 of CrPC.
If the offence is non-cognizable, then a complaint can be filed to the appropriate authority.
The accused person can be released on bail in case of non-cognizable offence, if arrested. The
procedure to be followed while making an arrest has been laid down in the landmark case
of D.K. Basu v. State of West Bengal (1997).
The Magistrate sends the complaint to the Police Station under Section 156 (3) for
registration of FIR. The Magistrate can also conduct an inquiry under Section 200. After the
Magistrate’s inquiry, there are three possibilities.
Firstly, the case can be dismissed under Section 204(4) for default.
Secondly, the case can be dismissed under Section 203.
Thirdly, the Court can take cognizance and issue summons under Section 204. If the accused
fails to appear, then like in case of cognizable offence, here too, he is declared as an
absconder, and evidence is recorded.

Trial Stage
On filing of charge sheet and issuance of processes, in case of a cognizable offence, if the
accused appears, then there two possibilities. The case can be discharged or charges can be
framed. If the accused pleads guilty, then he is convicted on the plea of guilt. However, if the
accused does not plead guilty, then prosecution can take evidence, accused can be examined
and his statement can be recorded under Section 313, after which defence side evidence is
taken. After both side evidence is completed, arguments happen, and judgement is
pronounced.
When the accused appears after issue of summons in a summons trial, that is, a trial where
the offence is punishable with imprisonment for less than two years, evidence is taken,
statement is recorded, arguments are advanced and judgement is pronounced. The accused
can either be acquitted or convicted and sentenced.
In case of a warrant trial, that is, a trial where the offence:
(i) punishable with death,
(ii) life imprisonment or,
(iii) imprisonment for a term exceeding two years,
there is a possibility for the case being discharged before charges are framed. Apart from that,
rest of the procedure followed in case of trial is similar to that of the previous instances.

Post- Trial Stage

The post-trial stage of criminal proceedings is simple. After the trial stage, the judgement can
be appealed or revised. In the absence of an appeal or revision, a hearing for deciding the
quantum of punishment happens, post which the sentence is executed.
Conclusion
A criminal proceeding, therefore, starts with the registration of FIR or complaint and ends
with the execution of sentence or provision to appeal. Though the criminal proceedings are
detailed in nature, they are built upon the lucid structure elaborated here. The Code of
Criminal Procedure has provisions to guide each of the stages of the criminal proceeding, all
of which ensure that the proceeding happens seamlessly and without any inordinate delay.
Other References to Study
1. https://criminalnotebook.ca/index.php/
Purpose_and_Principles_of_Sentencing#:~:text=The%20process
%20of%20sentencing%20involves,harm%20they%20have%20done
%20(s.
2. https://www.scconline.com/blog/post/2023/04/07/sentencing-in-
indian-penal-system-aggravating-and-mitigating-factors/
#:~:text=FAQs%20around%20Sentencing%20Policy%20in
%20India&text=A%2D%20The%20various%20types%20of,fine
%20and%20forfeiture%20of%20property.
3. https://jlrjs.com/wp-content/uploads/2023/01/1.-Tanu-Mehta.pdf
4. https://www.probono-india.in/blog-detail.php?
id=152#:~:text='Sentences'%20are%20statements%20in
%20judgements,the%20actual%20inflicting%20of%20punishment.
5. https://blog.ipleaders.in/criminal-justice-sentencing-policy-india/
#:~:text=In%20India%2C%20punishments%20are
%20defined,forfeiture%20of%20property%20and%20fine.