Dr.

Absarul Hasan Kidwai

Department of Law
Aligarh Muslim University

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE (BLLB-901)
B.A.LL.B. (HONS) IXth SEMESTER

UNIT – IV
Sentencing powers of Court
1. Sentence in default of fine and several offences S. 30
Section 30 reads as under:
1. The Court of a Magistrate may award such term of imprisonment in default of payment
of fine as is authorised by law;
Provided that the term—
a. is not in excess of the powers of the Magistrate under section 29;
b. shall not, where imprisonment has been awarded as part of the substantive
sentence, exceed one-fourth of the term of imprisonment which the Magistrate is
competent to inflict as punishment for the offence otherwise than as imprisonment
in default of payment of the fine.
2. The imprisonment awarded under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate under
section 29.
Section 30 of the Code of Criminal Procedure lays down that a Magistrate may award such
term of imprisonment in default of payment of fine as is authorized by law (viz. Sections 63 to
67 of the Indian Penal Code) provided that:
(a) the term is not in excess of the Magistrate’s powers under the Code and
(b) in any case decided by a Magistrate where imprisonment had been awarded as part of the
substantive sentence the period of imprisonment awarded in default of payment shall not
exceed one fourth of the period of imprisonment which such, Magistrate is competent to inflict
as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

The imprisonment awarded may be in addition to substantive sentence of imprisonment for the
maximum term awardable by the Magistrate.
Sections 63 to 67 of the Indian Penal Code lays down the following substantive law, viz., (i)
Where no sum is expressed to which a fine may extend the amount of fine to which the offender
is liable is unlimited, but shall not be excessive. Thus, the powers of a Sessions Court or the
High Court to impose fine are unlimited, but it should not be excessive;
(ii) Where an offence is punishable with imprisonment and fine, the imprisonment in default
of payment of fine shall not exceed one fourth of the maximum term of imprisonment that can
be imposed and may be simple or rigorous as the substantive imprisonment could be
(iii) Where an offence is punishable with fine only the imprisonment in default can only be
simple and the term of imprisonment in lieu of fine shall not exceed the following scale : for
fines not exceeding Rs. 50—imprisonment for two months, for fines from Rs. 51 to Rs. 100—
imprisonment for four months, and for fines exceeding Rs. 100—imprisonment for six months.
To the above limits placed by the Indian Penal Code on imposition of imprisonment for failure
to pay a fine, Section 30 of the Code of Criminal Procedure adds one more, viz., that the
imprisonment in default of fine shall not exceed one-fourth of the period of imprisonment
which a Magistrate is competent to inflict as punishment for the offence otherwise than in
default of payment of the fine.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

2. Modes of providing Judgment S. 354 Cr.P.C.

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 offence should be specified and the reason for the same should be given for the
same. The offence so 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 offence for which he was 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 is not certain as to under which Section
the offence is committed or under which part of the Section, the judge should specify the same
in the judgement and should pass orders in both the alternate situations.
3. The judgement shall furnish a proper reason for the conviction if it is a sentence for a term
of life imprisonment and in case of death sentence the special reason has to be given.
In Ram Bali vs. the State of U.P., (2004) 6 SCC 533, it was observed that language and content
must also be self-contained and it must reflect that the court has applied evidence and facts
while forming the judgment.
In Niranjan vs. State, 1978 CriLJ 636, it was observed that if the judgment is not signed during
the pronouncement process, the delivered judgment will be considered irrelevant and void in
nature.
Sentence of imprisonment
Under Section 354 of the CrPC, when the conviction is for an offence punishable with
imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons
for the sentence awarded, and, in the case of the death sentence, the special reasons for it.
Moreover, when the conviction is for an offence punishable with imprisonment for a term of
one year or more, but the Court imposes a sentence of imprisonment for a term less than three
months, it shall record its reasons for the same, unless the sentence is one of imprisonment till
the rising of the Court or the case was tried summarily.
Modes of pronouncing the judgment
Under Section 353, of the CrPC, the judgment in every trial in any Criminal Court of original
jurisdiction must be pronounced in open Court by the presiding officer just after the termination

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

of the trial or at some subsequent time. The notice of that time shall be given to the parties or
their pleaders. The various modes of pronouncement of judgement are:
 by delivering the whole judgment.
 by reading out the whole judgment.
 by reading out the operative part of the judgment and explaining the substance of the
judgment in a language which is understood by the guilty or his pleader.
If the whole judgment is delivered the presiding officer shall take it down in short-hand, sign
the transcript and every page of it as soon as it is made ready, and write on it the date of the
delivery of the judgment in the Open Court. However, in practice, the judgements are usually
delivered in the fag end of the day so that the transcribed copy of the judgement is available to
the judge in the morning itself.
However, where the whole judgment or the operative part of it is read out or as the case may
be, it shall be dated and signed by the presiding officer in Open Court and if it is not written
with his own hand, every page of the judgment shall be signed by him. This also takes place
when the judgment is dictated to the shorthand writer.
Where the operative part of the judgment is pronounced in the manner specified under the
Section then whole judgment or a copy of it shall be immediately made available to the parties,
or to their pleaders (if they apply for the same) free of cost. The person who is in custody will
be brought in the Court to hear the judgement.
If the accused is not in custody, he shall be required by the Court to attend to hear the judgment
pronounced, except where his personal attendance during the trial has been exempted and the
sentence is only of fine and he is already acquitted. However, if there are more than one accused
and some of them are not present, the Court can pronounce the judgement in his absence to do
away with the undue delay.
No judgment delivered by any Criminal Court shall be considered invalid by reason only in the
absence of any party or his pleader on the day or from the place notified for the delivery of it,
or of any omission to serve, or any defect in serving the parties or their pleaders, or any of
them, the notice of that day and place.
This Section would not limit the extent the provisions of Section 465, of the CrPC.
It is a written legal document which helps to resolve the dispute in a suit and finalizing the
rights and liabilities of the individual. Judgment is a final order, verdict or decision given by

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

the judge or magistrate on the ground of decree. A decree is an integral part of the judgment
which is given by the judge. It should be precise and clear containing names of the parties,
amount of money, deadline etc. Judgment is given in every trial in Criminal Court falling under
its jurisdiction. It should be pronounced in the open court by the Presiding authority just after
the termination of the trial procedure and notice should be served to each party and to its
assigned leaders.
In Yelchuri Manohar vs. State of Andhra Pradesh, 2005 (2) ALD Cry 751, it was held that
electronic media cannot give any leading element or part.
Purpose of Judgement:
 To determine whether the person is guilty or innocent– After considering all the
facts, evidence and laws, courts take the final decision in a particular matter to set the
position of the individual person whether he is guilty or innocent.
 For determining the rights and liabilities of the parties– Determination of rights and
liabilities is the main work of the court and at the end.
 For the development of legal jurisprudence– When the court has heard all the facts
and evidence from both the sides, certain new principles can be introduced which will
affect the matter and help in the development of laws in various field.
For example, Donoghue vs. Stevenson case introduced the concept of Law of Negligence.
 To serve as a Precedent– In Common Law, the doctrine of precedent depends upon a
good, relevant and honest judgment. In the future, these kinds of cases rely upon the
jurisprudence.
 Provide accountability to judicial officers– Court of law is known as a temple for
justice and the Judges are considered as God for giving justice. There is always an eye
on the work and credibility of judges and magistrates. Delivering good judgments helps
the public trust the Judiciary.
 The reason should be communicated to the parties– Both the parties along with their
lawyers will be communicated will all the reasons on the resulting judgment of the case.
Even if they lose the case, they will be informed on what grounds they lost the case.
Proper communication should be maintained.
Provide a reasonable ground for an appeal in court– If either of the parties is not satisfied with
the final decision, they can appeal to the higher court.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Failure to give a fair decision or judgment will destroy the idea of justice for an innocent person.
Writing judgments is an art where there should be no hard and fast rules, under any act whether
it’s Code of Civil Procedure or Code of Criminal Procedure.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

3. Order on Ist offenders SS. 360 –361

Object of Section 360: Section 360 is intended to be used to prevent young persons from being
committed to jail, where they may associate with hardened criminals, who may lead them
further along the path of crime, and to help even men of more mature years who for the first
time may have committed crimes through ignorance, or inadvertence or the bad influence of
others and who, but for such lapses, might be expected to be good citizens. It is not intended
that this section should be applied to experienced men of the world who deliberately flout the
law and commit offences.
In Jugal Kishore Prasad v. State of Bihar1, the Supreme Court explained the rationale of the
provision:
“The object of the provision is to prevent the conversion of youthful offenders into obdurate
criminals as a result of their association with hardened criminals of mature age in case the
youthful offenders are sentenced to undergo imprisonment in jail.”
Release On Probation of Good Conduct
Section 360(1)
Having regard to the age, character or antecedents of the offender, and the circumstances in
which the offence was committed, if the court convicting the accused person considers it
expedient to release the offender on probation of good conduct (instead of sentencing him at
once to any punishment), it may direct the offender to be released on his entering into a bond,
with or without sureties, to appear and receive sentence when called upon during such period
(not exceeding three years) as the court may fix and in the meantime to keep the peace and be
of good behaviour. Such a release is permissible only if the following conditions are satisfied:
 There is no previous conviction proved against the offender.
 When the person convicted is a woman of any age, or any male person under 21 years
of age, and the offence of which he or she is convicted is not punishable with death or
imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence of which he is
convicted is punishable with fine only or imprisonment for a term of seven years or
less.

1
(1972) 2 SCC 633.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

First Offenders
The expression first offender refers to an offender who has no previous conviction to his credit,
apart from the offence in question. It is also necessary that the offence committed by him for
the first time must be one of those mentioned in section 360, CrPC. First offenders under this
section are entitled to indulgence on the ground of their age, character or antecedents and to
the circumstances in which the offence is committed. The object of this section is to avoid
sending the first time offender to prison for an offence, which is not of a serious character and
thereby running the risk of turning him into a regular criminal.
First offenders according to sub-section (1) fall under two classes:
 When the person convicted is a woman of any age, or any male person under 21 years
of age, and the offence of which he or she is convicted is not punishable with death or
imprisonment for life.
 When the person convicted is not under 21 years of age, and the offence of which he is
convicted is punishable with fine only or imprisonment for a term of seven years or
less.
Offenders with any precious conviction or those found guilty of any offence punishable with
death or imprisonment for life are totally beyond the purview of the section. From this section
it is clear that it tries to reform the criminals by treating them leniently only in those cases
where there is no serious danger or threat to the protection of the society.
For application of this section it is necessary that the offender must not have been convicted
previously so as to bring him in the category of the first offender. On fulfilment of the above
conditions, if the court by which the offender is convicted considers it expedient that the
offender should be released on probation of good conduct, it may, instead of sentencing him at
once to any punishment, order him to be released on bond with or without sureties. The offender
may be required to furnish a bond to appear and receive sentence whenever called upon during
such period not exceeding three years as the court may direct. The offender shall be directed
by the court to keep the peace and be of good behaviour if he is released on probation under
this section. In Md. Syad Ali v. State of Guj2, when the accused was a first offender and his age
was below 21 years but the court had not applied its mind to the application of section 360, it
was held that it was a fit case for granting probation.

2
1989 Cr.L.J. 2063 (Guj).

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

No offender can as a matter of right, on fulfilling the conditions laid down in this section, claim
to be released on probation of good conduct. It is a discretionary power given under this section
to the court.
Release After Admonition
Section 360(3)
Having regard to the age, character, antecedents or physical or mental condition of the offender
and to the trivial nature of the offence or any extenuating circumstances under which the
offence was committed, the court may, after convicting the accused person, release him after
due admonition. Such a release is permissible only if the following conditions are satisfied:
 There is no previous conviction proved against the accused person.
 The offence of which he has been accused of is either theft, theft in a building or
dishonest misappropriation or is punishable under the IPC with not more than 2 years’
imprisonment or is one punishable with fine only.
Subsection (3) is applicable only in respect of the specified offences and such other offences
under the IPC that are not punishable with more than two years’ imprisonment. Under this sub-
section the court has got the discretion to release the offender after admonition instead of
sentencing him to any punishment.
Section 360(4)
An order under s. 360 directing release of the convicted offender on probation of good conduct
or release after due admonition may be made by an appellate court or by the High Court or
court of session when exercising its powers of revision.
Section 360(5)
The High Court or the Court of Session may, on appeal or when exercising its powers of
revision, set aside such order and in lieu thereof pass sentence on such offender according to
law. But the High Court shall not inflict a greater punishment than might have been inflicted
by the court by which the offender was convicted.
Breach of Recognisances
Section 360(8) & Section 360(9)
In case the offender fails to observe the conditions of his recognizance, the court which
convicted the offender or any court which could have dealt with him in respect of his original
offence may issue a warrant for his apprehension and when brought before it may either remand

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

him in custody until the case is heard or admit him to bail with a sufficient surety and after
hearing the case, pass sentence.
Section 360 And POA Exclusive of Each Other
Section 360 itself makes it quite clear that it shall not affect the provisions of the Probation of
Offenders Act. According to Section 18 of POA read with section 8(1), General Clauses Act,
1897, Section 360 of the Code would cease to apply to the States or parts thereof in which the
POA is brought into force. However, the offender can be still released after admonition or on
probation of good conduct under sections 3 and 4 POA which is wider in its scope than the
provisions of section 360. In that case also, the court will have to use discretion on the same
lines as in cases under section 360.
Chhanni v. State of Uttar Pradesh3, is a case relating to applicability of section 360, Cr.P.C. In
the instant case it was held that provisions of the two statutes regarding probation have
significant differences and they cannot coexist. Hence, provisions of section 360 are wholly
inapplicable in areas where Probation of Offenders Act is made applicable. The difference
between the two statutes is that section 360 of the Code relates only to persons not under 21
years of age convicted for an offence punishable with fine only or with imprisonment for a
term of 7 years or less, to any person under 21 years of age or any woman convicted of an
offence not punishable with sentence of death or imprisonment for life. The scope of section 4
of the probation of offenders act is much wider. It applies to any person found guilty of having
committed an offence not punishable with death or imprisonment for life. Therefore, the court
held that the provisions in the two statutes with significant differences could not be intended to
co-exist at the same time in the same area.
The order under this section follows a conviction and can be substituted for a sentence.
361. Special reasons to be recorded in certain cases. Where in any case the Court could have
dealt with, -
(a) an accused person under section 360 or under the provisions of the Probation of Offenders
Act, 1958 (20 of 1958), or
(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the
time being in force for the treatment, training or rehabilitation of youthful offenders, but has
not done so, it shall record in its judgment the special reasons for not having done so.

3
2006 Cri. L.J. 4068 (S.C.).

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Special Directive in Case of Non-Punitive Measures

The discretion to sentence a convicted person to any punishment has been narrowed down by
section 361. This section requires that the court shall normally deal with the offenders under
section 360 or under the POA, or in case of youthful offenders under the laws of treatment,
training or rehabilitation, of such youthful offenders; and that in case the court decides to pass
any sentence on the offender, it shall record special reasons for doing so. Thus, section 361
clearly shows that the courts while dealing with the convicted persons are to adopt, as a matter
of policy, non punitive measures for the reformation and rehabilitation of offenders, and as far
as possible, to avoid awarding deterrent and retributive punishments.
Where the accused may be given benefit of provisions contained in the POA or section 360,
but he is not given that benefit, section 361 requires the court to gives its reasons for not doing
so.
Section 361 of the code casts a duty upon the court to extend the benefit of the Probation Act
to the accused wherever it is possible and to state ‘special reasons’ if it does not do so. The
section makes it mandatory for the court to record in its judgment ‘special reasons’ for not
extending the benefit of the Probation Act to the accused. The ‘special reasons’ must be such
as to compel the court to hold that it is impossible to reform and rehabilitate the offender after
examining the matter with due regard to the age, character and antecedents of the offender and
circumstances in which the offence was committed. This is some indication by the Legislature
that reformation and rehabilitation and not mere deterrence, are now among the foremost
objects of the administration of criminal justice in our country.
The omission to record special reasons as required by section 361 is an irregularity and may
require the court of appeal or revision to set aside the sentence passed by the lower court if the
irregularity has occasioned a failure of justice. In Santa Singh v. State of Punjab4, it was
observed by the Supreme Court:
“Having regard to the object … there can be no doubt that it is one of the most fundamental
parts of criminal procedure and non-compliance thereof will ex-facie vitiate the order [of
sentence]. Even if it be regarded as an irregularity the prejudice caused to the accused would
be inherent and implicit because of the infraction of the rules of natural justice which have been
incorporated in this statutory provision, because the accused has been completely deprived of

4
(1976) 4 SCC 190.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

an opportunity to represent to the court regarding the proposed sentence and which manifestly
results in a failure of justice.”

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

4. Confirmation of Death Sentence SS. 366 – 371 Cr.P.C.

Sections 366-371 of the Code of Criminal Procedure, 1973 deals with the ‘Submission of death
sentences for confirmation’.
Submission for conformation to High Court (Section 366)
Section 366 partially answers the question of who can pass a verdict. This section provides that
if a Session Court passes the death sentence against the accused(s) then the High Court needs
to confirm it before it comes into effect. Thereby, it is necessary to submit the proceedings
before the High Court and only after confirmation from the High Court the execution can be
brought into effect, and not before that.
The death penalty is the highest level of punishment and it follows the principle of ‘rarest of
rare’ (uncommon crime or that is unusual to a person of ordinary prudence, the one which
shocks and causes tremors throughout the judiciary and the society). This section works as a
precautionary step to minimize the error while meeting the ends of justice.
In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that under
Section 366(2) of CrPC the court while passing the conviction shall grant the jail custody of
the convicted person under a warrant i.e. the person shall be kept in custody and not as a
punishment. The ‘safe keeping’ in jail custody is the limited jurisdiction of the jailor. It is a
trusteeship in the hands of the Superintendent, and not an imprisonment in a real sense.
The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006) was submitted to the
Allahabad High Court from Agra’s Sessions Court under Section 366 of CrPC. The accused
had committed the offence of rape, murder and kidnapping. The rape was so gruesome that
during the postmortem a stem of more than a feet was retrieved from her vagina which was
inserted by the accused while committing the offence. Allahabad High Court upheld the death
penalty of the accused stating that it was the rarest of rare case.
Further Sections provide the powers the High Court has in regard to cases submitted under
Section 366 of the CrPC.
Power to direct further inquiry to be made or additional evidence to be taken (Section
367)
Sub-section (1) of Section 367 of the CrPC provides that when the proceeding for confirmation
of the death penalty is submitted to the High Court and it notices any point of innocence or
guilt of the accused, it may either direct the Sessions Court or itself to make further inquiry

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

into it or take additional evidence into consideration. It is usually done when the High Court
feels that the Sessions Court has missed some points or factors.
Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her
presence during such inquiry or taking of the evidence unless the High Court otherwise directs.
Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the
High Court) makes the enquiry or takes into consideration such evidence then it shall be
certified by the Sessions Court.
In the case of Balak Ram Etc vs The State of U.P. (1974) the Supreme Court in the final
judgment stated that High Court had failed in properly considering the pieces of evidence of
the prosecutor’s witnesses and held that while inquiring against a death penalty case or taking
into consideration different pieces of evidence, the High Court shall take into consideration all
the pieces of evidence itself as it is its duty.
Power to the High Court to confirm sentence or annul conviction (Section 368)
Section 368 provides that when a case is submitted to the High Court under Section 366 of the
Code of Criminal Code, the High Court may;
 confirm the sentence passed by the Sessions Court, or pass a sentence other than the
one provided it is warranted by the law, or
 annul the conviction passed by the Sessions Court, and instead either convict the
accused under any other offence for which the Session’s Court had convicted him/her
or order for a trial on an amended charge or on the same charge, or
 acquit the accused of the charges made against him.
The proviso to the section states that till the time the limitation period to file an appeal against
the verdict is not expired, or the appeal is still pending or is not disposed of, the Court cannot
pass an order of confirmation.
In the case of Kartarey and Ors. vs The State of Uttar Pradesh (1975), the Sessions Court had
passed the verdict announcing the death sentence which was later altered by the High Court.
When the case reached the Supreme Court it was observed that the High Court has committed
a grave error in examining the evidence or additional evidence.
It states that it is the duty of the High Court to ‘reap-praise’ the evidence in totality and it shall
come to a conclusion on the merits of the case only after considering the proceedings in all

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

their aspects. It is important and crucial to consider the defence evidence equally and not to
neglect it as this is contradictory to the settled rule of practice and law.
Confirmation or new sentence to be signed by two judges (Section 369)
Section 369 provides that whenever a case is submitted to the High Court under Section 366
of CrPC it shall be heard by a divisional bench i.e. at least by two or more judges. For
confirmation of:
 the sentence, or
 any new sentence, or
 any order.
Passed by the High Court shall be ‘made, passed and signed’ by either two or more judges. It
is an essential condition that cannot be ignored.
Procedure in case of difference of opinion (Section 370)
A question that arises now is what happens when the judges in equal proportion have
conflicting opinions? Section 370 of CrPC provides the answer to it and states that the manner
provided in Section 392 of CrPC shall be followed in the case when sitting judges that heard
the case are equally divided in opinion about the case. The parties do not have to specify it to
the court, the court takes the suo-moto and follows the procedure as per Section 392 of CrPC.
The Section 392 of states that when a High Court bench hears a case and ends up having divided
opinions, in such case the appeal along with the diverging opinions shall be laid before a judge
of the same Court. That judge shall deliver his/her opinion only after hearing the judges, and
that opinion shall be followed by the judgment or order in question.
The proviso to the section states that if any of the sitting judge, or the judge before whom the
judgment or order in question is laid under this section, requires the appeal to be heard again
or be heard by a larger bench of judges then it shall be done accordingly.
In various cases, this section has been applied including the case of Sri D N Srinivash Reddy
vs State of Karnataka (2018). In this case, the judges while deciding the case were not able to
pass a majority decision due to difference in opinion therefore, the procedure described under
Section 392 was followed. The judge who heard the matter under Section 370 of CrPC quashed
the proceedings against the accused who were arrested during a raid.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Procedure in a case submitted to the High Court for confirmation (Section 371)
Section 371 of the Code of Criminal Procedure provides that cases of the death penalty which
are submitted to the High Court by the Sessions Court after being decided upon shall be sent
to the Sessions Court. The order passed by the High Court shall be one of the options provided
in Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the accused
among others. It is the duty of the concerned officer of the High Court to send a copy of the
order passed by the High Court to the Sessions Court without any delay, under the seal of the
High Court and attested with his/her official signature.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

5. Suspension Remission and commutation of Sentence SS. 418 – 435 Cr.P.C.

Execution of sentences of imprisonment
Under Section 418 of the CrPC, a person who is imprisoned for life or for terms other than
those mentioned in Section 413 of the CrPC, 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 CrPC, 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 Churana vs the State of Gujrat, 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 CrPC, 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

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

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 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 regards 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

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

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.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

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.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Suspension and remission of sentences

Constitutional provisions
The Constitution of India, vests a large amount of sovereign power in the President and the
Governor. Centre and the State are governed in the name of President and Governor
respectively. Under Article 72 of the Indian Constitution, the President has the power to pardon,
remit, suspend or commute any sentence.
Under Article 72, the President has the power to pardons, reprieves, respites or remission of
punishment or to suspend remit or commute the sentence of any person convicted of any
offence:
 In cases where the punishment is given by the court-martial. The Governor’s power to
remit, suspend or commute the sentence under the laws of the State, shall be given
precedence.
 In cases where the power of executive extends.
 In cases where the punishment is a death sentence.
Similarly, under Article 161 of the Constitution of India, these powers are conferred on the
Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend,
remit or commute the sentence, which is given on the basis of the laws prevalent in the State,
to which the executive power of the State extends.
The difference between the pardoning power of the President and that of the Governor is that
the Governor does not enjoy the power to grant pardon to a death sentence.
However, this power of the President is not absolute and depends on the consultation with the
council of ministers. This is not present in the Constitution but practically this process is
followed. Further, the Constitution does not provide for any mechanism to check the legality
of the decision taken by the President and the Governor while exercising their mercy power.
However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is
provided for judicial review of the mercy granting power of the President and the Governor to
rule out any sort of arbitrariness.
Suspension or remission of sentences
The suspension is the stay or postponement of the execution of the sentence. In remission, the
duration of the sentence is reduced, without changing the nature of the sentence. Remission
and suspension differ to a large extent. In remission, the nature of the sentence is remained

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
For example, a person sentenced for a term of two years, his sentence is now reduced to one
year. The effect of the remission is that the prisoner is given a certain date on which he shall
be released and the eyes of the law he would be a free man. However, in case of breach of any
of the condition of remission, it will be cancelled and the offender has to serve the entire term
for which he was originally sentenced.
The procedure followed is given under Section 432 of CrPC, 1973. The government would ask
the opinion of the court which gave such a sentence. The court would revert with proper
records. The government can grant or reject the application for remission and suspension if in
its view all the conditions necessary for such a grant are not fulfilled. the offender may if at
large, be arrested by any police officer without a warrant and is to undergo the unexpired
portion of the sentence. The power of remission is wholly an executive action. There is no law
as such to question the legality of this action, but the government should use this power fairly
and not in an arbitrary manner. However, the court must consider the limitation provided under
Section 433A of the CrPC, 1973. The power of remission and suspension should not in any
way interfere with the conviction of the court, it should affect the execution of the sentence.
Commutation of sentence
In contrast to Suspension and Remission, which only affect the duration of the punishment
without interfering with the nature of the punishment, Commutation, on the other hand,
changes the nature of the punishment and converts it into a less severe form of punishment.
There is nothing to restrict the government to commutate a sentence, even if it is as low as a
fine. Under Section 433 of the CrPC, the appropriate government gets the power to commutate
the sentence in an appropriate case. Various sentences are eligible for commutation, one of
them is death sentence i.e.mercy plea.
 Death sentence to any other punishment provided in the IPC.
 Imprisonment for life to any other imprisonment not exceeding fourteen years or fine.
 Sentence of rigorous imprisonment for simpler imprisonment which the person has
been sentenced or a fine.
 Sentence for a simple sentence to a fine.
Commutation of death sentence has always been in the controversy, it raises an issue regarding
the basic human rights of the accused and on the other hand the impact of the grave crime on

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

the society. Section 433 of the CrPC gives the power to the government to commutate the death
sentence to a simpler sentence.
Most of the convicts of the death sentence, get their sentence reduced to 14 years of life
imprisonment in accordance with the provisions of CrPC.
Restriction on powers of remission or commutation in certain cases
Section 433A of the CrPC puts a restriction on the power of the President and the Governor
that they can’t commutate the death sentence to less than 14 years of life imprisonment. In
absence of any order under Section 51 of the IPC or Section 433A of the CrPC, the convicts
are not released even after the expiry of 14 years of imprisonment.
Moreover, remission can be granted under Section 432 of the CrPC in case of a definite term
of sentence. The power is to grant “additional” term of imprisonment which is over and above
the remission granted to convict under the jail manual or statutory rules. In case of an indefinite
sentence, like that of life imprisonment, may remit or suspend the sentence of the person but
not on the basis that such imprisonment is arbitrary or on the assumption that it is for twenty
years.
Concurrent power of the Central Government in case of death sentences
Under Section 434 of the CrPC, it is stated that the powers under Section 432 and Section 433,
which are given to the State government, can be exercised by the Central government in case
of a death sentence.
State government to act after consultation with the Central Government in certain cases
Under Section 435 of the CrPC it is stated that the power given to the state government to remit
or commutate a sentence in an offence:
 Which is investigated under the Delhi Special Police Establishment or by any other
agency which is constituted under any Central Act other than this Code.
 Which involves misappropriation or destruction of, or damage to any property
belonging to the Central government.
 Which was committed by the person who is working under the Central government and
was discharging his official duty.
Such offences, as mentioned above, shall not be discharged by the state government except
after the consultation of the central government. Moreover, no order of remission,
commutation, or suspension by the state government shall apply where the executive power of

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

the Central government also extends, or where the terms of imprisonment of a person have to
run concurrently. Such orders will have effect only where the central government has passed
the same sentence with regard to the subject matter on which the executive power of the centre
extends.
According to the 41st Report of the Law Commission of India, it was stated that there are some
matters on which the centre is vitally concerned although on those subject matters the laws of
the State government would apply. It is thus necessary that the central government should have
a say on those matters and the state government should work only in consultation of the central
government otherwise the administration of law and justice would be very difficult for the
central government.

Prepared by MSK