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Sentencing Discretion and IPC
by V.R.K.K. Sagar

Punishment is the suffering in person or property, inflicted on the offender under the sanction of law. Punishment of the wrongdoer for the offence one has committed is that which makes criminal law awe-inspiring and deterrent.

Indian Penal Code seems to measure the gravity of the violation by the seriousness of the crime and its general effect upon public tranquillity. There is correlation between measure of guilt and measure of punishment. Section 53 of the IPC in Chapter III deals with the kinds of punishments which can be inflicted on the offenders. They are as follows:

Death penalty, imprisonment for life, imprisonment, forfeiture of property and fine.

As far as imprisonment is considered, for majority of the offences the Code prescribes the maximum penalty and leaves the infliction of the appropriate term within that set limit to judicial discretion1. For some offences minimum sentence is fixed by the Code and infliction of sentence beyond that is left to the discretion of the Judges.2 For some other offences the Code prescribes alternatives and the Court is free to choose either of them.3 Thus, generally speaking, the IPC gives much sentencing discretion to the judicial officer. As this approach helps the Court to take an informed decision it is in accordance with the constitutional principles also. Since Section 303 IPC did not fall in line with this policy it was struck down by the Supreme Court in Mithu v. State4. There are, however, some more provisions like Sections 311, 363A(2) which fall foul of the constitutional scheme. In the light of Mithu their validity remains doubtful.

Similarly there is a clause in Section 307 IPC which conforms neither to law nor to logic. The section defines attempt to murder and prescribes penalty. A person attempting to murder might, if hurt was caused, be imprisoned for life or imprisonment for ten years. But where the offender was already imprisoned for life then, he may be punished with death penalty. So the Code maintains different punishments for those who are undergoing life sentence and any sentence other than life sentence or those who have served out life sentence or others. This classification of offenders is not in conformity with constitutional principles. There is no nexus between the classification made and the objective of deterrence to be achieved. And it is not a reasonable classification as well. Moreover the relevant part of the section leads one to some awkward situations. Now after Mithu case, if a life convict is found guilty of murder he will be convicted under Section 302 and may get life imprisonment or death penalty. But a life convict, if failed to commit murder but caused only hurt to the victim he would be given death penalty under Section 307.

These anomalies call for revision of the section.

† Lecturer-in-Law, Siddhartha Law College, Vijayawada, Andhra Pradesh Return to Text

  1. For example, see S. 309 IPC Return to Text
  2. For example, see Ss. 397, 398 IPC Return to Text
  3. See S. 302 IPC Return to Text
  4. (1983) 2 SCC 277 Return to Text
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