EXECUTION OF SENTENCE UNDER THE CR.P.

CODE OF CRIMINAL PROCEDURE

Submitted by:

Siddhant Mathur

(SM0118052)

3rd Year, 5th Semester

Faculty in charge:

Mr. Ishrat Hussain

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

INTRODUCTION

Sentencing is about the way courts deal with a person after he or she has pleaded guilty or has
been found guilty, in other words, it is about what happens from the moment when a person
charged with an offence ceases to be merely ‘the accused’ and becomes ‘the offender’. 1There
is no statutory or case law definition of ‘Sentence’. Certainly, it must include the punishment,
such as fine or a custodial sentence, which the court imposes upon an offender for the
offence. It should also include orders imposed upon the offender on conviction which cannot
properly be described as punishments. For instance, the ancillary orders are made against the
offender to benefit individuals who have suffered loss or have been put to expense by reason
of the offence like compensation orders. The objectives of sentencing, to which the courts are
required to have regarded when dealing with the offenders, are:

• Punishment of offenders

• Reduction of Crime

• Reform and Rehabilitation of offenders

• Protection of the public

• Making of reparation by offenders to persons affected by their offences.

In the country, there are various constitutional and statutory provisions which suspend, remit
or commute sentences, given to the convict. Under the Indian Constitution, 1950, Article 72
and Article 161 empower the Governor and the President to grant pardon, suspend, remit, or
commute the sentence. Meanwhile in the Criminal Procedural Code, 1973, there is a whole
Chapter XXXII dedicated to the suspension, remission, and commutation of sentence. The
power to remit, suspend or commutate a sentence is exercised by the head of the state. The
executive can show mercy on the convict by way of remission, suspension, or commutation
etc. The basic purpose of the suspension, remission, commutation, and other forms of
showing mercy, is to take into consideration certain aspects of the case which do not arise
during the proceedings in the court of law. Just like the other Chapters of Cr.P.C., this is
applicable to the whole of India.

EXECUTION OF SENTENCE OF DEATH

1
Martin Wasik, Emmins on Sentencing, Oxford University Press, New York, (2007), p. 2.
Execution of order passed under Section 368

Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence
without the confirmation of the High Court, till that time the convict has to be in jail custody.
The High Court, under Section 368 of the Cr.P.C, looks into the case. The High Court can:

 Confirm the sentence given by the Session Court.

 Annul the conviction and convict the accused of the same charges as that of the
Session Court or may order for fresh proceedings on the same or altered charges.
 May acquit the person, as the time for the appeal has not lapsed yet or the appeal has
been disposed of.

Any order received by the Session Court from the High Court has to be executed by the
Session Court by way of issuance of a warrant. (Section 413 of the Cr.P.C).

Execution of sentence of death passed by High court

Under Section 414 of the Cr.P.C, if the High Court, passes the order of death sentence in
appeal or revision, the Session Court has to carry on the order by issuing a warrant.

Duty of the jail superintendent in certain cases

When the High Court certifies to the Sessions Judge, any information regarding the
confirmation, annulment of charges of the accused in the case that was sent by way of an
appeal or revision, the Session judge will send a warrant to the Superintendent of Jail of
which the prisoner was originally committed. If the prisoner is transferred to another jail,
then, in that case, the Superintendent of Jail has to send back the warrant to the Sessions
Judges who in turn will give the warrant to the Superintendent of the Jail in which the
prisoner is transferred.

In case of alteration of the charges by the appellate courts by way of an appeal or revision,
the same would be informed to the Superintendent of Jail to which the prisoner is committed.
Even in the case of immediate release of the prisoner from the jail, the Sessions Judge by way
of a warrant would inform the Superintendent of the Jail. the superintendent after such
execution will give the original warrant, duly filled to the district magistrate in which the trial
was held.
Following the formula laid down in the Bachan Singh's case2, the Supreme Court held that
the death sentence should not be passed except in rarest of the rare cases. In a subsequent
case the Supreme Court has laid down some further guidelines on the question of imposing
death sentence: "The extreme penalty of death need not be inflicted except in gravest cases of
extreme culpability. Before opting for the death penalty, the circumstances of the 'offender'
also required to be taken into consideration along with the circumstances of the 'crime'. Life
imprisonment is the rule and death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the relevant
circumstances of the and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.

In Alister Anthony Pareira v. State of Maharashtra3, the Supreme Court observed that; “One
of the prime objectives of the criminal law is 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.”

POSTPONEMENT OF EXECUTION OF DEATH SENTENCE

In case of appeal to the Supreme Court

Under Section 415 of the Cr.P.C, 1973, the High Court may order for the postponement of
the execution of death sentence, if the case has been sent to the Supreme Court for appeal
(Article 134 of the Indian Constitution). The postponement would be until the time for
preferring such appeal has been lapsed or the appeal has been disposed of, altogether. If the
death sentence has been confirmed by the High Court, the person so sentenced may ask the
High Court, by way of an application for the grant of a certificate under article 134 or 132 of
the Indian Constitution. The High Court has to postpone the execution of the death sentence
until such demand is disposed of by the High Court or such certificate of appeal has been
2
AIR (1980) SC 898
3
AIR (2012) SC 3802
granted before the time of considering such appeal by the Supreme Court has not lapsed.
When the death sentence has been confirmed by the High Court, but the High Court is
satisfied that the person so sentenced intends to file a Special Leave Petition to the Supreme
Court under Article 136 of the Indian Constitution. The High Court will order the
postponement of the execution of the death sentence till the time which is reasonable for the
person who is sentenced, to file such appeal in the Supreme Court.

Postponement of capital sentence on a pregnant woman

Under Section 416 of the Cr.P.C, if the woman who is sentenced is found to be pregnant, then
the High Court, in that case, can postpone the sentence or if it deems fit, the High Court can
also commute the sentence to life imprisonment.

Place of imprisonment

The State Government unless provided has the power to direct the place of imprisonment for
any person who is convicted under Cr.P.C. Moreover, if the person who is convicted under
the provisions of Cr.P.C, is confined in the civil jail, then the magistrate of the court shall
order that the person so convicted, should be shifted to a criminal jail. However, if the person
who was transferred to the criminal jail from the civil jail, will be sent back to the civil jail
unless-

 Three years have lapsed, the person, in this case, shall be released under Section 58 of
the CPC, 1908 or Section 23 of the Provincial Insolvency Code.
 The which ordered the imprisonment of the person in the civil jail orders the officer in
charge to release of the convicted person under Section 58 of CPC or Section 23 of
the Provincial Insolvency Code.

EXECUTION OF SENTENCE OF IMPRISONMENT

Under Section 418 of the Cr.P.C, a person who is imprisoned for life or for terms other than
those mentioned in Section 413 of the Cr.P.C, the court passing such sentence has to give a
warrant to the place where the person has to be confined unless such person is confined to
such place. However, it must be the person who is imprisoned till the court is rising, then
there is no need to forward a warrant to the jail and the person shall be confined as per the
direction of the court. Under Section 418(2) of the Cr.P.C, if the accused is not present in the
court at the time when he is sentenced to such imprisonment, then, in that case, the court has
to order for the arrest of that person, by way of an arrest warrant, for forwarding him to jail or
any other place where he shall be confined, and the sentence will start from the time of arrest
of the accused.

In the case of Ishwarbhai Hirabhai Chunara vs the State of Gujrat 4, this Section is held to
be mandatory. Moreover, under this Section, the court also owes a duty to ensure that the
sentence is executed, otherwise, the accused may avoid it. The warrant issued is non –
bailable, as it empowers the authority to arrest the person, after the issuance of this warrant.
Such a warrant is necessary in case the sentence was pronounced in the absence of the
accused.

A warrant for the execution of sentence of imprisonment

Under Section 419 of the Cr.P.C, the warrants for the execution of the sentence of
imprisonment has to be directed to the in-charge of the jail or of any place in which the
accused is to be confined. But if the person is to be confined in the jail, then the warrant
needs to be given to the jailor.

EXECUTION OF THE SENTENCE OF FINE

A warrant for the levy of fine

When the court sentences to levy the fine on the offender, it can recover it through either or
both of these methods:

 Issue of warrant for the levy of amount through the attachment of the movable
property of the offender.
 Issue of a warrant to the district collector and order him to collect it as an arrear of
land revenue accruing from a movable or immovable property or both. The collector,
in this case, shall collect the arrears of revenue as per the prevailing laws with respect
to the collection of revenue in the country. The warrant here will only serve the
purpose of a certificate.

It is important to note that in case it is mentioned that there shall be imprisonment if default
of payment happens, and if the offender has already served the default sentence, then no court
shall issue such warrant, unless there are some special circumstances which have to be

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recorded in writing, or if there is an order for the payment of compensation of fine that arose
as per the provisions of Section 357. The state government can make rules in regard to how
the execution of the recovery of the fines would take place and the summary claims made by
a person other than the offender himself would be considered accordingly. No such warrant
shall be executed by the arrest or detention of the person in the prison.

Effect of such warrant

The court shall order the attachment of property for the recovery of fines within the local
limits of its jurisdiction; however, it could order such attachment outside its jurisdiction too if
it is endorsed by the District Magistrate of the area in which the property to be attached is
present.

A warrant for the levy of fine issued by a court in any territory to which this Code does
not extend

If the offender has been sentenced to pay the fine in the territory where this code does not
apply, then the court would issue a warrant to the District Collector of the area where the
code applies and order him to collect the fine by way of arrears of revenue. This warrant shall
be treated as if it is issued under Section 421 of the Code and all the conditions would apply
accordingly.

Suspension of execution of the sentence of imprisonment in default of payment of fine

When the offender has been sentenced to fine only and in case of default of payment he shall
be imprisoned, and if the fine is not paid then:

 The order that the fine shall be made in full within 30 days of such order or in
instalments in which the first instalments shall be made within 30 days of such order
and the next instalments within the intervals of not more than 30 days.
 The court may order the suspension of imprisonment order, if the offender gives a
bond with sureties or not, depending upon the court, for the payment of the fine in full
or in instalments. If the offender fails to furnish the fine at the latest date on which
such instalments has to be made, then the court shall order the execution of the
imprisonment order.
  This shall also apply in the case where the order for the payment of money has been
made for the non- recovery of which imprisonment may be made. And if the person
fails to furnish a bond for the payment of the fine, the court may order the execution
of the imprisonment immediately

GENERAL PROVISIONS REGARDING THE EXECUTION

Who may issue a warrant?

Under Section 425, every warrant which is issued for execution is to be given by the
Magistrate or the Judge or Magistrate who passed the sentence or by their successor in-
charge.

The sentence on an escaped convict

If a sentence of death, life imprisonment or fine is passed under the provisions of this code,
on an escaped convict, then the execution of such sentence should take effect immediately.
When the sentence is passed on the escaped convict then:

 When this sentence is more severe than the previous sentence from which the convict
escaped, then the sentence shall take place immediately.
 If the present sentence is less severe than the sentence from which the convict escape,
then the accused has to serve the term which is remaining of the sentence he escaped
from.
 The sentence of rigorous imprisonment will be more severe than the imprisonment of
the simple nature.

The sentence on offender already sentenced for another offence

If a person has been previously convicted for a sentence and then is subsequently convicted
for another, then the person has to serve his former punishment first and then will serve the
punishment sentenced later. Or if the court orders that both the punishment are to be served
concurrently. The punishment could be imprisonment or imprisonment for life. It is also to be
noted that where a person who has been sentenced to imprisonment by an order under Section
122 in default of furnishing security is while undergoing such sentence, sentenced to
imprisonment for an offence committed prior to the making of such order, the latter sentence
shall commence immediately. However, if a person is already sentenced to life imprisonment
and then subsequently is punished for a term or for life imprisonment, then the former
sentence would run concurrent to the latest imprisonment.

Period of detention undergone by the accused against the sentence of imprisonment

Where an accused is serving a sentence, other than the one on the default of payment of fine,
and the term of detention undergone by him during the investigation and trial of the same
case shall be set off against the term imposed on him from such conviction. The person shall
be liable only for the term of imprisonment left if in case the sentence of imprisonment is
given to him. In case of a sentence given under Section 433A, such period of detention shall
be set off against fourteen years referred to in that Section. But nothing in Section 426 and
Section 427 shall be the reason to excuse any person from the term he is sentenced to in his
former or subsequent conviction. When an award of imprisonment in default of payment of a
fine is added to a substantive sentence of imprisonment and the person undergoing the
sentence is after its execution to undergo a further substantive sentence or substantive
sentences of imprisonment. In this case, the sentence accruing to the default of payment of
fine should be served by the person only after he has undergone the subsequent sentences.

Return of warrant on execution of sentence

When the sentence has been executed fully, the officer executing such a sentence will have to
return the warrant to the court which has issued it. The warrant that is returned has to be
undersigned by the respective officer. The method of execution of the sentence must also be
specified by the officer in charge.

Money ordered to be paid recoverable as a fine

Any money which is payable (other than fine) under the provision of this act, and the method
of recovery of such money is not expressly given in the Code, then it shall be collected in the
manner as if it is fine. It is to be noted that Section 421 shall, in its application to an order
under Section 359, by virtue of this Section, be construed as if in the proviso to Sub-Section
(1) of Section 421, after the words and figures “under Section 357”, the words and figures “or
an order for payment of costs under Section 359” had been inserted.

CONCLUSION

The primary reason for establishing a sentencing guideline system is to maximize the
application of the rule of law to decisions which are of great significance to the public insofar
as they convey the degree of censure of the offender for the offence, to victims and to the
offender themselves. These decisions may involve considerable deprivation of liberty,
restrictions on liberty, or deprivation of money or assets. It is therefore absolutely right that
the rule of law should apply to them so far as possible: although the sentencing decision will
always require an element of judgment, that judgment should be exercised within a
framework of rules, applying principles and guidelines set out in advance, such that court
decisions are consistent in their approach and reasonably predictable. The essence of
guidelines is to provide different ranges of sentence for different levels of seriousness of each
type of offence and within each range. The aim of the technique is to structure judicial
discretion- not to take it away, but to provide a framework within which the court can locate
the particular offence with which it is dealing and then reflect the facts of that case (the
aggravating and mitigating factors) by placing it appropriately within or outside the relevant
range. The judicial approach to sentencing should be one of compassion and understanding,
all doubts should be resolved in favour of the offender; reformation and rehabilitation should
be the main target of a sentencing process. Nevertheless, while a judge should be
compassionate and understanding, he must not lose sight of the fact that the whole criminal
process is for the protection of the public and that the criminal law must be administered and
enforced to attain that purpose and at the same time, maintain the confidence and respect of
the public.