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                                                      REPORTABLE

                 IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION

             CRIMINAL APPEAL NO.                OF 2008               [Arising out of SLP (Crl.) No.4285 of 2007]

State of Punjab                                        ...Appellant

                                   Versus

Prem Sagar & Ors.                                            ... Respondents

                           JUDGMENT

S.B. SINHA, J :

1.    Leave granted.

2.    In our judicial system, we have not been able to develop legal

principles as regards sentencing.

     The superior courts except making observations with regard to the

purport and object for which punishment is imposed upon an offender,

had not issued any guidelines. Other developed countries have done so.

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At some quarters, serious concerns have been expressed in this behalf.

Some Committees as for example Madhava Menon Committee and

Malimath Committee have advocated introduction of sentencing

guidelines.

3.    Before, however, we delve into the said question, we may notice

the fact of the matter.

     Respondents herein were convicted for commission of an offence

under Section 61(1) of the Punjab Excise Act for carrying 2000 litres of

rectified spirit. They were sentenced to undergo an imprisonment for a

period of one year.

4.    The High Court, however, by reason of the impugned judgment

purported to be upon taking into consideration the fact that the offence

was committed in the year 1987 and the appeal was dismissed in the year

1992, thought it fit to give an opportunity to the respondents to reform

themselves, observing:

             "...The accused have suffered lot of agony of               protracted trial. They having joined the main               stream must have expressed repentance over the               misdeed done by them about 19 years back. In

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            the aforesaid circumstances and in the absence              of any of their bad antecedents, it will not be              appropriate to deny them to the benefit of              probation under the Probation of Offenders              Act, 1958 and to send them to jail at this stage."

5.    On the said premise, the respondents were directed to be released

on probation on their executing a bond of Rs. 20,000/- with one surety

each of the like amount to the satisfaction of the Trial Judge.

     No report of the Probation Officer was called for. The social

background of the respondent had not been taken into consideration.

What was their occupation was not noticed.

6.    Whether the court while awarding a sentence would take recourse

to the principle of deterrence or reform or invoke the doctrine of

proportionality, would no doubt depend upon the facts and circumstance

of each case.

     While doing so, however, the nature of the offence said to have

been committed by the accused plays an important role. The offences

which affect public health must be dealt with severely. For the said

purpose, the courts must notice the object for enacting Article 47 of the

Constitution of India.

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7.    There are certain offences which touch our social fabric. We must

remind ourselves that even while introducing the doctrine of plea

bargaining in the Code of Criminal Procedure, certain types of offences

had been kept out of the purview thereof. While imposing sentences, the

said principles should be borne in mind.

8.    A sentence is a judgment on conviction of a crime. It is resorted to

after a person is convicted of the offence. It is the ultimate goal of any

justice delivery system. The Parliament, however, in providing for a

hearing on sentence, as would appear from Sub-section (2) of Section

235, Sub-section (2) of Section 248, Section 325 as also Sections 360

and 361 of the Code of Criminal Procedure, has laid down certain

principles. The said provisions lay down the principle that the court in

awarding the sentence must take into consideration a large number of

relevant factors; sociological backdrop of the accused being one of them.

     Although a wide discretion has been conferred upon the court, the

same must be exercised judiciously.           It would depend upon the

circumstances in which the crime has been committed and his mental

state. Age of the accused is also relevant.

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     What would be the effect of the sentencing on the society is a

question which has been left unanswered by the legislature.           The

Superior Courts have come across a large number of cases which go to

show anomalies as regards the policy of sentencing.         Whereas the

quantum of punishment for commission of a similar type of offence

varies from minimum to maximum, even where same sentence is

imposed, the principles applied are found to be different.         Similar

discrepancies have been noticed in regard to imposition of fine.

9.    In Dhananjoy Chatterjee Alias Dhana v. State of W.B. [(1994) 2

SCC 220], this Court held:

               "15...Imposition of appropriate punishment             is the manner in which the courts respond to the             society’s cry for justice against the criminals.             Justice demands that courts should impose             punishment befitting the crime so that the             courts reflect public abhorrence of the crime..."

     Gentela Vijayavardhan Rao and Another v. State of A.P. [(1996) 6

SCC 241], following Dhananjoy Chatterjee (supra), states the principles

of deterrence and retribution but the same cannot be categorized as right

or wrong. So much depends upon the belief of the judges.

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10.   In a recent decision in Shailesh Jasvantbhai and Another v. State

of Gujarat and Others [(2006) 2 SCC 359], this Court opined:

               7. The law regulates social interests,             arbitrates conflicting claims and demands.             Security of persons and property of the people             is an essential function of the State. It could be             achieved through instrumentality of criminal             law. Undoubtedly, there is a cross-cultural             conflict where living law must find answer to             the new challenges and the courts are required             to mould the sentencing system to meet the             challenges. The contagion of lawlessness would             undermine social order and lay it in ruins.             Protection of society and stamping out criminal             proclivity must be the object of law which must             be achieved by imposing appropriate sentence.             Therefore, law as a cornerstone of the edifice of             "order" should meet the challenges confronting             the society. Friedman in his Law in Changing             Society stated that: "State of criminal law             continues to be--as it should be--a decisive             reflection of social consciousness of society."             Therefore, in operating the sentencing system,             law should adopt the corrective machinery or             deterrence based on factual matrix. By deft             modulation, sentencing process be stern where             it should be, and tempered with mercy where it             warrants to be. The facts and given             circumstances in each case, the nature of the             crime, the manner in which it was planned and             committed, the motive for commission of the             crime, the conduct of the accused, the nature of             weapons used and all other attending             circumstances are relevant facts which would             enter into the area of consideration.

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     Relying upon the decision of this Court in Sevaka Perumal v. State

of T.N. [(1991) 3 SCC 471], this Court furthermore held that it was the

duty of every court to award proper sentence having regard to the nature

of the offence and the manner in which it was executed or committed etc.

11.   It is interesting to note that this Court in some cases severely

criticized the pattern adopted in the matter of passing of sentence on the

accused. [See State of M.P. v. Bala @ Balaram, (2005) 8 SCC 1 and

State of M.P. v. Govind, (2005) 8 SCC 12].

12.   Recently, in State of Karnataka v. Raju [2007 (11) SCALE 114],

where the facts of the case were that the Trial Court imposed custodial

sentence of seven years after convicting the respondent for rape of minor

under Section 376 of the Indian Penal Code; on appeal, the High Court

reduced the sentence of the respondent to three and half years.

     This Court held that a normal sentence in a case where rape is

committed on a child below 12 years of age, is not less than 10 years’

rigorous imprisonment, though in exceptional cases "for special and

adequate reasons" sentence of less than 10 years’ rigorous imprisonment

can also be awarded. It was, thus, opined that socio-economic status,

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religion, race, caste or creed of the accused or the victim are irrelevant

considerations in sentencing policy. To what extent should the judges

have discretion to reduce the sentence so prescribed under the statute has

remained a vexed question.

     However, in India, the view always has been that the punishment

must be proportionate to the crime. Applicability of the said principle in

all situations, however, is open to question. Judicial discretion must be

exercised objectively having regard to the facts and circumstances of

each case.

13.   We may also notice that in Dalbir Singh v. State of Haryana

[(2000) 5 SCC 82], this Court opined:

            "13. Bearing in mind the galloping trend in              road accidents in India and the devastating              consequences visiting the victims and their              families, criminal courts cannot treat the nature              of the offence under Section 304A IPC as              attracting the benevolent provisions of Section              4 of the PO Act. While considering the              quantum of sentence, to be imposed for the              offence of causing death by rash or negligent              driving of automobiles, one of the prime              considerations should be deterrence. A              professional driver pedals the accelerator of the              automobile almost throughout his working              hours. He must constantly inform himself that

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             he cannot afford to have a single moment of               laxity or inattentiveness when his leg is on the               pedal of a vehicle in locomotion. He cannot and               should not take a chance thinking that a rash               driving need not necessarily cause any               accident; or even if any accident occurs it need               not necessarily result in the death of any human               being; or even if such death ensues he might               not be convicted of the offence; and lastly that               even if he is convicted he would be dealt with               leniently by the court. He must always keep in               his mind the fear psyche that if he is convicted               of the offence for causing death of a human               being due to his callous driving of vehicle he               cannot escape from jail sentence. This is the               role which the courts can play, particularly at               the level of trial courts, for lessening the high               rate of motor accidents due to callous driving of               automobiles."

       In Rattan Singh v. State of Punjab [(1979) 4 SCC 719], this Court

held:

             "5. Nevertheless, sentencing must have a policy               of correction. This driver, if he has -to become               a good driver, must have a better training in               traffic laws and moral responsibility, with               special reference to the potential injury to               human life and limb. Punishment in this area               must, therefore, be accompanied by these               components. The State, we hope, will attach a               course for better driving together with a livelier               sense of responsibility, when the punishment is               for driving offences. Maybe, the State may               consider, in cases of men with poor families,               occasional parole and reformatory courses on               appropriate application, without the rigour of               the old rules which are subject to Government               discretion."

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14.   The Ministry of Law, Government of India, Committee on

Reforms of the Criminal Justice System, 2003 was established by the

Government of India to recommend changes to the criminal justice

system in India.

     It had observed that the judges were granted wide discretion in

awarding the sentence within the statutory limits. It was also of the

opinion that as there was no guidance in selecting the most appropriate

sentence in the fact situation thereof, there was no uniformity in

awarding sentence as the discretion was exercised according to the

judgment of every judge. Thus, the committee emphasized the need for

having sentencing guidelines to minimize uncertainty in awarding

sentences. It recommended the appointment of a statutory committee to

lay down the sentencing guidelines.

15.   Don M. Gottfredson in his essay on "Sentencing Guidelines" in

"Sentencing: Hyman Gross and Andrew von Hirsch" opines:

           "It is a common claim in the literature of             criminal justice- and indeed in the popular             press- that there is considerable "disparity" in             sentencing.. The word "disparity" has become a             prerogative and the concept of "sentencing

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     disparity" now carries with it the connotation of       biased or insidious practices on the part of the       judges. This is unfortunate in that much       otherwise valid criticism has failed to separate       justified variation from the unjustified variation       referred to as disparity.           The phrase       "unwarranted disparity" may be preferred; not       all sentencing variation should be considered       unwarranted or disparate. Much of it properly       reflects varying degrees of seriousness in the       offense and/or varying characteristics of the       offender. Dispositional variation that is based       upon permissible, rationally relevant and       understandably distinctive characteristics of the       offender and of the offense may be wholly       justified, beneficial and proper, so long as the       variable qualities are carefully monitored or       consistency and desirability over time.       Moreover, since no two offenses or offenders       are identical, the labeling of variation as       disparity necessarily involves a value       judgment- that is, disparity to one person may       be simply justified variation to another. It is       only when such variation takes the form of       differing sentences for similar offenders       committing similar offenses that it can be       considered disparate."                                      [Emphasis supplied]

The learned author further opines:

     "In many jurisdictions, judicial discretion     is       nearly unlimited as to whether or not          to       incarcerate an individual; and bound only      by       statutory maxima, leaving a broad range        of       discretion, as to the length of sentence."

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16.   Kevin R. Reitz in Encyclopedia of Crime and Justice, Second

edition "Sentencing guidelines" states:

           "All guideline jurisdictions have found it             necessary to create rules that identify the             factual issues at sentencing that must be             resolved under the guidelines, those that are             potentially relevant to a sentencing decision,             and those viewed as forbidden considerations             that may not be taken into account by             sentencing courts. One heated controversy,             addressed differently across jurisdictions, is             whether the guideline sentence should be based             exclusively on crimes for which offenders have             been convicted ("conviction offenses"), or             whether a guideline sentence should also reflect             additional alleged criminal conduct for which             formal convictions have not been obtained             ("nonconviction offenses").

           Another difficult issue of fact-finding at             sentence for guideline designers has been the             degree to which trial judges should be             permitted     to    consider     the    personal             characteristics of offenders as mitigating             factors when imposing sentence. For example:             Is the defendant a single parent with young             children at home? Is the defendant a drug             addict but a good candidate for drug treatment?             Has the defendant struggled to overcome             conditions of economic, social or educational             deprivation prior to the offense? Was the             defendant’s criminal behavior explicable in part             by youth, inexperience, or an unformed ability             to resist peer pressure? Most guideline states,             once again including all jurisdictions with             voluntary guidelines, allow trial courts latitude             to sentence outside of the guideline ranges             based on the judge’s assessment of such

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                offender characteristics. Some states, fearing                  that race or class disparities might be                  exacerbated by unguided consideration of such                  factors, have placed limits on the list of eligible                  concerns. (However, such factors may                  indirectly affect the sentence, since judges are                  permitted to base departures on the offenders                  particular "amenability" to probation (Frase,                  1997).)"

17.      Andrew von Hirsch and Nils Jareborg have divided the process of

determining sentence into stages of determining proportionality while

determining a sentence, namely:

     1. What interest are violated or threatened by the standard case of the

        crime- physical integrity, material support and amenity, freedom

        from humiliation, privacy and autonomy.

     2. Effect of violating those interests on the living standards of a

        typical victim- minimum well-being, adequate well-being,

        significant enhancement

     3. Culpability of the offender

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

      [See Andrew Ashworth, Sentencing and Criminal Justice, 2005, 4th       edition]

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18.   Guidelines in United Kingdom originated from two separate

sources in the 1980s. The first was the Magistrates’ Association, which

took the first steps in producing road traffic offence guidelines for the

lower courts. This process has widened and deepened, so that the latest

set of sophisticated guidelines, effective from 2004, covers all the main

offences likely to be encountered in those courts. The second source of

guidelines was the Court of Appeal which, of its own initiative,

developed guideline judgments as a means of providing assistance to

Crown Court sentencers in the disposal of particular types of offence,

mainly the most serious forms of crime which attract long prison

sentences. The Crime and Disorder Act 1998 created the Sentencing

Advisory Panel (SAP), a body with a diverse membership, to assist and

advise the Court of Appeal in the promulgation of sentencing guidelines.

The Panel and the Court of Appeal worked together effectively in this

way from 1999 to 2003, at which point the Sentencing Guidelines

Council (SGC) was established. One of the most significant innovations

introduced by the Criminal Justice Act 2003 was the setting up of the

Sentencing Guidelines Council. The Council, composed mainly but not

exclusively of sentencers, took over the task of issuing sentencing

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guidelines, with the Panel performing much the same function as before,

but now advising the Council rather than the Court of Appeal. The

personnel on the SGC/SAP all work on guidelines in a part-time

capacity, but supported by a joint full-time secretariat.

19.      The idea of a "commission on sentencing" can be traced to

Marvin’s Frankel’s influential writings of the early 1970’s , most

notably his 1973 book Criminal Sentences: Law Without Order.

     He also advocated:

             "Greater uniformity in punishments imposed               upon similarly situated offenders , with a               concomitant     reduction   in    inexplicable               disparities, including racial disparities in               punishment and widely varying sentences based               simply on the predilections of individual               judges"

       [See Encyclopedia of Crime and Justice, Second edition

"Sentencing guidelines" Kevin R. Reitz]

20.      The Sentencing Reform Act of 1984 created the U.S. Sentencing

Commission to promulgate binding sentencing guidelines in response to

a regime of indeterminate sentencing characterized by broad judicial

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discretion over sentencing and the possibility of parole. The Act sought

to create a transparent, certain, and proportionate sentencing system,

free of "unwarranted disparity" and able to "control crime through

deterrence, incapacitation, and the rehabilitation of offenders" by

sharing power over sentencing policy and individual sentencing

outcomes among Congress, the federal courts, the Justice Department,

and probation officers.

21.   The heart of the Guidelines is a one-page table: the vertical axis is

a forty-three-point scale of offense levels, the horizontal axis lists six

categories of criminal history, and the body provides the ranges of

months of imprisonment for each combination of offense and criminal

history. A sentencing judge is meant to use the guidelines, policy

statements, and commentaries contained in the Guidelines Manual to

identify the relevant offense and history levels, and then refer to the

table to identify the proper sentencing range. Though in all cases a

sentence must be at or below the maximum sentence authorized by

statute for the offense, in certain circumstances the Guidelines allow for

both upward and downward departures from the sentence that would

otherwise be recommended.

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22.   In ‘THE FAILURE OF THE FEDERAL SENTENCING

GUIDELINES: A STRUCTURAL ANALYSIS’ [III 105 Colum.L. Rev.

1315], Frank O. Bowman criticised thee Federal Sentencing Guidelines

in the following terms:

           "(1) The severity and frequency of             punishment imposed by the federal criminal             process during the guidelines era is markedly             greater than it had been before.             (2) For most crimes it is difficult, and             perhaps impossible, to isolate the effect of             federal prosecutorial and sentencing policies             from effects of state policies and practices, not             to speak of the broader economic, demographic,             and social trends that influence crime rates.             (3) The federal process of making sentencing             rules and imposing sentences on individual             defendants has gone astray."

23.   In United States v. Booker [125 S. Ct. at 757] Booker found the

federal guidelines unconstitutional as previously applied, but upheld

them as a system of "effectively advisory" sentencing rules.

24.   In the recent United States Supreme Court decision of Gall v.

United States [552 U.S. 2007], the court had to determine the

correctness of the decision of the Eight Circuit court that reversed the

decision of the district court on sentencing Gall to 36 months probation

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period on the ground that a sentence outside the Federal sentencing

Guidelines range must be and was not in this case, supported by

extraordinary circumstances.

     Reversing the decision of the court, it was opined:

           " While the extent of the difference between a             particular sentence and the recommended             Guidelines range is relevant, courts of appeals             must review all sentences--whether inside, just             outside, or significantly outside the Guidelines             range--under a deferential abuse-of-discretion             standard.

           (a)Because the Guidelines are now advisory,             appellate review of sentencing decisions is             limited to determining whether they are             "reasonable," United States v. Booker, 543             U. S. 220 , and an abuse-of-discretion standard             applies to appellate review of sentencing             decisions. A district judge must consider the             extent of any departure from the Guidelines and             must explain the appropriateness of an             unusually lenient or harsh sentence with             sufficient justifications. An appellate court may             take the degree of variance into account and             consider the extent of a deviation from the             Guidelines, but it may not require             "extraordinary" circumstances or employ a             rigid mathematical formula using a departure’s             percentage as the standard for determining the             strength of the justification required for a             specific sentence.

           (b) A district court should begin by correctly             calculating the applicable Guidelines range.

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          The Guidelines are the starting point and initial            benchmark but are not the only consideration.            After permitting both parties to argue for a            particular sentence, the judge should consider            all of 18 U. S. C. ’3353(a)’s factors to            determine whether they support either party’s            proposal. He may not presume that the            Guidelines range is reasonable but must make            an individualized assessment based on the facts            presented. If he decides on an outside-the-            Guidelines sentence, he must consider the            extent of the deviation and ensure that the            justification is sufficiently compelling to            support the degree of variation."

25.   Andrew von Hirsch in "The Sentencing Commission’s functions",

The Sentencing    Commission      and its Guidelines       (Northeastern

University Press, 1987), Ch.1.] more than twenty years ago summarised

the central tasks of a sentencing commission by observing that the

function was:

          "(1) to decide the future direction of            sentencing policy, informed by the study of past            sentencing practice;            (2) to structure judicial discretion, rather            than to eliminate it, allowing judges to interpret            and apply the guidelines and to deviate from            them in special circumstances; and            (3) to select a predominant rationale for            sentencing, and to base guidelines upon it, so as            to promote consistency in sentencing and to            reduce disparity."

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     The High Court does not rest its decision on any legal principle.

No sufficient or cogent reason has been arrived.

     We have noticed the development of law in this behalf in other

countries only to emphasise that the courts while imposing sentence must

take into consideration the principles applicable thereto.    It requires

application of mind. The purpose of imposition of sentence must also be

kept in mind.

26.   Although ordinarily, we would not interfere the quantum of

sentence in exercise of our jurisdiction under Article 136 of the

Constitution of India, but in a case of this nature we are of the opinion

that the High Court having committed a serious error, interest of justice

would be subserved if the decision of the High Court is set aside and the

respondent is sentenced to undergo simple imprisonment for a period of

six months and a fine of Rs. 5,000/- is imposed, in default to undergo

imprisonment for a further period of one month.

27.   The Appeal is allowed to the extent mentioned hereinbefore.

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                   ...............................J.                     [S.B. Sinha]

                   ................................J.                     [V.S. Sirpurkar]

New Delhi; May 13, 2008