Doctrine of Statutory Elasticity : Discretion The basis for this is that in a proper and fit case, the Court must have more discretion having nexus and relevance with the "Doctrine of Statutory Elasticity" for power of imposing punishment or sentence than the rigidity or orthodoxy in treating all the guilty, of all the cases; upon conviction, with the same yardstick or standard of minimum sentence, on account of there being or in presence of any special and adequate reasons, in a given case and peculiar to the each accused.The quantum of sentence, is thus, in the discretion of the trial Court. Where the legislature has stepped in and circumscribed and fettered, partially, the discretion by directing the imposition of minimum sentence, the Court can exercise its discretion within the minimum sphere left open by the legislature. The Minimum Sentence in the context of Criminology and Penology:- A person who is an accused who has been found guilty of a criminal offence is liable to be sentenced by the Court. The exercise of process of sentencing is of considerable significance for the contours of criminal liability; when legislatures create a crime, they authorise not only a stigma or affixing a labour of censor, on the offender or perpertrator, but also, the impostition of the certain deprivations by means of sentence. There are many forms of sentence. The most serious sentence is custodial one, and in number of cases, custodial sentence should be imposed, where the offence is so serious that only custodial sentence can be justified in terms of relevant law. The length of any custodial sentence should in most case be : "commensurate with the seriousness of the offence". In deciding on the sentence in particular cases, the Court should take note and cognizance of various factors, including aggravating and mitigating the offence, and also other extenuating circumstances relevant to, in the given case. It is in this context, intimate interactions between sentencing process and criminal law policy and the legislative mandates must be kept live on mental radar. Doctrine of Proportionality :
In sentencing terms, one consequences of this is that there are more broad offences with high maximum sentences, giving more discretion to the Courts at the sentencing stage. No doubt, criminal law itself proclaims individual responsibility for actions, maintaining strict standards of contact and setting its phase publicly against idea that social or other circumstances can excuse incriminating behaviour or conduct. Whereas, at the sentencing stage, Courts do not recognize from time to time exculpatory by proceeding or surrounding circumstances. It is in these context, in criminal law in certain provisions and in certain criminal enactments statutory and judicial discretion is invested in the Courts, so that, upon exercising the sentencing process the Court can take into consideration, write upon circumstances, special and adequate reasons for each accused emanating from the record and peculiar to the each accused so that idea of 'proportionality' can be considered and maintained. Whilst the notion is cruel as an underlying justification for the punishment system, the idea of proportionality ought to have been of central importance to the choice and quantum of sanction in a particular case and keeping in mind the special and adequate reasons attributable and referable peculiar to the each accused. Therefore, 'proportionately' in this sense, also finds a place in and several other views and approaches to sentence.
The aims of sentence are not simply part background of the criminal law : they have implications for the sake of the criminal law itself. Thus, 'proportionately' should be a key factor in the structure of the criminal law. It is a major function of the criminal law not, only, to divide the criminal from the non-criminal, but also, to grade offence and to brand or label them 'proportionately'. There is a deep divergence between desert theories and deterrence on the question of culpability and excuses for causing harm or resultant injury. The answer to the question "Does this person deserve punishment?", sometimes differs from the answer to the question, "Would the punishment of this person deter others in similar situation?"
There are, also, frequent references to search and research that as material appearing of criminal justice, to give some interaction of social context in which the criminal law operates. Much more coverage given to this contextual issues, such as enforcement policy, police powers, the pre-trial concession of case, and sentencing but within the confines of this, where these issues have been treated, as less important than the constitution of doctrine. It is, therefore, an execise to recognise the constitutional responsibility of the Courts in developing the law and interpreting legislations. There is, also an endeavour to remain allert to the implications for law enforcements of living areas of discretion when formulating laws.
Characteristics of sentencing doctrine :
18. The guilt once established, the sentencing dilemma commences. The statutory discretion is given to the Courts in sentencing the offenders. Needless to reiterate that the determination of appropriate sentence for the convicted persons is, as important as the adjudication of the guilt of the accused in the modern sentencing system. The importance of the modern sentencing system lies in the individualisation of the punishment, which itself lends to rehabilitation and reformation of the offenders in the modem sentencing system in the realm of Neo-Penology and Modern Criminology.
19. Indeed, in the process of sentencing or deciding the punishment, relevant circumstances, special and adequate reasons, peculiar to each of the accused, including aggravating or mitigating factors are important. There cannot be an exhaustive list of special and adequate circumstances and reasons, peculiar to the accused, as it would depend upon variety of circumstances. Really, there is impossibility of laying down standards for special and adequate reasons, mainly, due to the fact that it would be a domain of circumstances or reasons, special and adequate, peculiar in a given fact situation in a particular case of each accused. Pre-sentencing Policy Desideratum :
21. The very benign design and object of hearing the accused before passing the sentence is to direct the Court's attention to such matters, as to emerging from factual spectrum, including the following :
(i) The nature of offence.
(ii) The circumstances :- extenuating or aggravating of the offence.
(iii) The prior criminal record, if any, of the offender.
(iv) The age of the accused and also his dependents.
(v) The record as to the employment.
(vi) The background of the offender with reference to education, home-life, sobriety and social adjustment, emotional and mental condition of the offender.
(vii) The prospects for rehabilitation.
(viii) The possibility of return to normal life in the community.
(ix) The possibility of treatment or training of the offender.
(x) The possibility that the sentence may serve as a deterrent to crime to the offender or to others and the community needs, if any, for such deterrence in respect to the particular types of offences in the larger social interest and public good.
(xi) Anthropological reasons :
(a) Influence of social environment on the conduct.
(b) Resultant impact of the crime so as to see whether there is harm to the individual like accused or others, for keeping in mind interest and good of larger section of society.
(xii) Any other special and adequate reasons not covered in (i) to (xi).
22. The cumulative legislative mechanism and its effects of the provisions of Sections 235(2), 248(2), 354(3), 354(4), 360 and 361 of the Code of Criminal Procedure, 1973, by and large, is that the Court is to ensure, greater seriousness and awareness in examining each case with a view to determining the most appropriate sentence or for passing other post-conviction orders. It will be interesting to refer to the observations made in the Report of the "Indian Delay Committee", as early as, in 1919-1920, which are still vivid and valued even today. The Report observes :
"The Criminal Courts.....are to a great extent without reasons necessary to enable them to adjust the punishment to the offender."
"...In this country, if not in all countries, the information, which is available to the Judge at the time of trial as to the antecedents of a prinsoner, his character and environment and causes which conducted to the commission of the crime, is found very inadequate." Proportionality in Punishment and Justifiable Sentences :
24. The basic principle of Criminal Jurisprudence has been that the punishment that fits the crime is the appropriate punishment in proportion to the culpability of the criminal conduct and it is what the offender or the perpetrator deserves for his crime. Having once reached to the issue of culpability, the next question will follow will be of sentencing. It will be easy enough then to decide on greater or lesser punishment according to law, lesser criminality or culpability and to assign penalties on the scale that reflects relative culpability amongst the crimes, both different kinds of crime and for different instances of same kind of crime. But, yes, that is only step in keeping the crime and punishment in propotion. However, the scale must itself be pitched, at a level, neither too high nor too low for otherwise, even though punishments for different crimes might not be out of proportion to one another on the scale, the scale itself might be generally out of proportion as, uniformly, excessive or uniformly inadequate or deficient. Therefore, in theory, all criminal justice, it is evidently articulated by author, Mr. Hyman Gross that the Criminal law adheres in general to the principle of "proportionality" in prescribing law according to the culpability of each kind of criminal conduct.
25. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit that crime; yet in practice sentences are determined largely by other considerations. Sometimes, it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes are, desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. It is, therefore, said that, inevitably these consideration cause a departure from just desert, as the basis of punishment and create cases of apparent injustice that are serious and wide-spread.
26. In this context, it is rightly said that when there are certain reasons why a person who is punished more generously or liberally for his crime, such punishment less than what he deserves for what he has done justifiable, and punishment in excess of what is not. It be remembered that peculiar and special conditions favouring the accused or the offender are absent and he will get away with his crime to the extent that he is punished less than he deserves to be, punishment less then he deserves is fruitless and also impose and for that reason alone it may not be justifiable, though certainly there are certain important things to be said against it, as well.
27. It is, also required to be noted that disproportionately large sentences in excess of blameworthiness would be as unjustifiable as disproportionately small sentences. Disproportionately small accountability is useful because it may not maintain respect for the law amongst the law-abiding, whereas disproportionately large sentences would be also futile and useless infliction of suffering, it represents needless suffering. Therefore, with a view to keeping law efficient and effective, as a measure for the law-abiding, the Court need not give those who break law no more than they deserve for breaking it, and what they deserve is measured precisely by the criminality of the conduct that violated the law.
28. The principle of mitigation like principle of proportionality, has both, the legislative and judicial applications. Discretional dispassionate can be granted by the Court appropriately in order to make sentences right with regard these and other things, after the Court has fixed the culpability. Condemnation for the crime would be no less, though it would be accomplished in a given fact situation, in many cases by less severe measures of punishment. Utility v. Disparity :
In this context, it will be useful to mention that because of mitigating considerations, standards are uncertain. Good reasons turn out to be problematic and considerations though not be admitted at all often influence the sentencing Judge towards a more lenient sentence. The two major aspects which are exclusionary conditions for mitigating circumstances provide a foundation for suitable sentencing standards :
(i) Whether a proposed mitigating consideration would impair the utility of the sentences.
(ii) Inequitable disparity results when there is a special treatment for some that cannot be justified by principle that apply to all, and since everyone is entitled to equal standing before the law, such treatment cannot be encouraged.
30. The legislature, in one sense, has disfavoured the sentence to plummet below the minimum limit prescribed in view of the expression "shall not be less than", which is peremptory in tone. It appears, therefore, that, normally, the Court has no discretion even to award a sentence less than the said minimum. Nonetheless, the legislature was not oblivious of certain very special and adequate situational realities obtainable in a given case and peculiar to the each accused in the given case and the profile of facts and circumstances of case in which the sentence is being awarded. Speciality with or versus Adequacy of Reasons :
31. It will be really interesting to refer the expression special and adequate reasons. It, clearly, indicates and evidently manifests that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a set of conjunction, both for enabling the Court to invoke the discretion. The reasons which are general or common in many cases also cannot be regarded as "special and adequate reasons", but such reasons should be peculiar and attributable to the each accused in a case, as all the general or common reasons or grounds cannot be regarded as "special and adequate reasons". Therefore, the Court has to remain very altert and serious, and considering the overall factual profile and conspectus referable to each accused in such case, in view of the clear mandate of the proviso in a given case for admitting the case of the prescriptive periphery of the proviso and making departure from minimum sentence, by exercising discretion, the Court has an incumbency to record that there are special and adequate reasons for that and such reasons should be articulated clearly in the judgment of the Court, as statutorily prescribed. Arraignment and its Premise :
53. It is very well known that the plea of the accused is an event occurring at the general trial Court level that formally initiates the trial process. As such, it is the offence again on which the accused is given an opportunity to answer the accusation. Here, at this stage, the accused is required to enter a plea. Punishment is held in open and generally, it begins with a formal reading of the accusation or indictment or charge, by which the accused is again, formally, advised of the charges against him. The accused, is therefore, required to answer the charge by entering a plea, at this juncture. This is the right of the accused, and no doubt, the plea may take one of the two forms : One, he may deny the accusation or charge against him, or another, he may plead guilty to the crime, as charged. If the accused pleads guilty, the Magistrate shall record the plea, as nearly as possible, in the words used by the accused, and may in his discretion, convict thereon.
54. In the criminal matters as in this group of Appeals, cases are tried by the Magistrates under Chapter XX of the Code of Criminal Procedure, 1973, which deals with the trial of Summons Cases by the Magistrates, the statutory mechanism and the frame of Chapter XX, the procedures for Summary trial have been prescribed in Chapter XXI of the Code of Criminal Procedure and the principles of" Criminal Jurisprudence would not permit the prescription of the format by Judicial fiat for the purpose of mode and manner for raising the "plea of guilty". The Court of law cannot add or subtract or ignore the statutory provisions incorporated in the enactment by the legislature in its wisdom. The making of a law or an enactment is a constitutional prerogative of the competent legislatures.
55. The function of the Court is to interpret the provisions of law. Law and statute making is exclusively within the jurisdictional domain of the legislatures. The Court cannot re-write any provision of any law by any judicial fiat or direction. Even the Constitutional Court, dealing with the constitutionality of the provision, cannot create or take away by adding or substracting from any of the provisions employed by the competent legislatures. Even the Constitutional Courts, while interpreting the correct meaning and real object of the law by its constitutional jurisdictional interpretation and adjudication, can propound and interpret correct law. Therefore, it is one of the fundamental principles, that no Court can re-write or reframe the provisions contained in the enactment made by the competent legislatures. The enthusiasm with which the direction to record the "plea of guilty" and prayer for mercy by prescribing specimen profoma for pleading guilty and praying for mercy in sentence and the manner and mode in which the specimen form is required to be filled up and signed by not only the accused, but also the complainant, as well as, the prosecutor concerned in the case before the trial Magistrate, in our opinion, is nothing, but re-writing and adding in the provisions of an enactment, and therefore, such a direction or judicial prescription of a form against the specific statutory provision, obviously, would be impermissible, unsustainable and not legal. Doctrine of Nolo-Contendere : Practice and Prominence :
73. In United States, in some jurisdictions, the plea of "Nolo Contendere" is available "Nolo Contender" or "no contest" is not an 'admission of guilt', but rather a 'willingness to accept declaration of guilt', rather than to go to trial. It is treated as a guilty plea to serve one purpose not served by a guilty plea in a subsequent civil suit possibly arising out of same event. Guilty plea is admissible as evidence against the defendant (accused) but plea of "Nolo Contendere" is not. It may be stated that the expression, "defendant" is used in India in the civil dispute against whom civil action is taken whereas in United States, this expression is used in criminal trial also, and thus, the defendant is an accused. David Gorden has observed that the Latin word, 'nolo' means "I do not choose it'. This statement, variously, defined as 'plea of no contest' and 'not a plea of guilty' does not mean that defendant will not fight the same charges against him of the same as that of guilty plea. It admits the fact charged, but cannot be used as a confession of guilt in other proceedings. Acceptance of such a plea by a Court is discretionary.
74. The judgment of, conviction entered on a plea of "Nolo Contendere", may be used, by the accused as a basis of 'plea of double jeopardy', since conviction and punishment, after the "Nolo Contendere" plea operates for the protection of the accused against subsequent proceedings, is as full as a form of conviction or an acquittal after the plea of guilty or not guilty.
75. As held in "Fox v. Schedit and in State exrel Clark v. Adams, 363 US 807", the plea of "Nolo Contendere" sometimes called also "Plea of Nolvut" or "Nolle Contendere" means, in its literal sense, "I do no wish to contend", and it does not origin in early English Common Law. This doctrine, is also, expressed as an implied confession, a quasi-confession of guilt, a plea of guilty, substantially though not technically a conditional plea of quality, a substitute for plea of guilty, a formal declaration that the accused will not contend, a query directed to the Court to decide on plea-guilt, a promise between the Government and the accused, and a Government agreement on the part of the accused that the charge of the accused must be considered as true for the purpose of a particular case only.
76. Be it noted, that raising of plea of "Nolo Contendere" is not ipso facto, a matter of right of the accused. It is within the particular discretion of the Court concerned to accept or reject such a plea. However, if the Court accepts such plea, it must do so unqualifiedly. It is, therefore, clear that if such plea is once accepted, by the Court, the accused may not be denied, his right to raise such plea. The Court cannot accept such plea having rights of the accused and determination of facts on any questions of law. Of course, the discretion of the Court, if plea is accepted, has to be exercised in light of special facts and circumstances of the given case. It is, also held at times that such discretion vested in the Court has to be used only when special considerations are present. It is, also important to mention, at this stage that in the absence of statutory provisions to the contrary, consent of a prosecutor is not required as a condition for refusing the plea of 'Nolo Contendere' by the Court. And the fact that the prosecutor's consent is not generally required would not tantamount to non-consideration of his version or attitude. The Court is required to consider the prosecutor's version as an important factor in influencing the Court in deciding whether such plea should be accepted or not.
77. Upon the acceptance of a plea of "Nolo Contendere" for the purpose of the case in which such a plea is made, it becomes an implied confession of the guilt equivalent to a plea of guilty; that is the incidence of plea. So far as a particular criminal action in which the plea is offered is concerned, rather than the same, as of a plea of guilty, of course, it is not necessary that there should be adjudication by the Court that the party whose plea is accepted as guilty, but the Court may immediately impose sentence. This proposition is very well elucidated in "United States v. Risfeld, 340 US 914". However, it may be noted a new dimension was evolved in "Lott v. United States, 367 US 421", where the Court, after stating that the plea is tantamount to an admission of a guilt for the purpose of the case, added that the plea itself, does not constitute a conviction, and hence, is not a determination of guilt. As found from some of the judicial pronouncements, it is beyond the purview of the Court once a plea of "Nolo Contendere" is needed to make in adjudication to the guilt of the accused.
78. The plea of "Nolo Contendere", barring a few percentages of cases, has been recognised in the administration of criminal justice in many countries, including the United States, and has resulted into substantial reduction in the workload of the criminal justice system. Such a plea, it has been stated, has a success of practical aspect over the technical one. In the criminal justice delivery system, should India not consider the introduction and employment of such a plea when Courts are flooded with astronomical arrears, the trial life-span is inordinately long and the expenditure is very heavy, as an effective Alternative Dispute Resolution in certain identified criminal cases? This issue, undoubtedly, requires serious consideration at this juncture, and a trial on experiment basis, also, when we are at the crossroads and Courts are obliged to engage and address itself in early, easy, less expensive and simple way of disposal of criminal cases in the criminal justice system. Of course, the introduction of such a system will have to be considered at the level of Government by appropriate legislative measures. However, our voice shall not be a cry in wilderness more so when innovative and dynamic strategies are evolved for "Excellence in Judiciary" in 2005, by My Lord Chief Justice of Supreme Court, Hon'ble Mr. Justice R.C. Lahoti. We, are concerned collectively, collaboratively and constructively, and therefore, we ought to take seriously and strive assiduously and honestly for such ingeniously and innovatively ordained by My Lord, Chief Justice of Supreme Court, Hon'ble Mr. Justice R. C. Lahoti, as a novel and noble, neo-dynamics in the armoury of Judicial Reforms and Legal Rehabilitation of the ideal Fold and System, which is undoubtedly Basic and Cornerstone in the philosophy of our Constitution. We all belong to such a Fold, wherein we owe a duty to contribute for restructuring and reshaping Administration of Law and Justice, so as to provide expeditious easy and less complex and less processual, for making it easily accessible and affordable for common and pauper litigant, which is as such a heart of Judicial Anatomical Atlas and a Consumer of Justice Dispensation in our country, for the recovery and rejuvenation the faith of such litigants and resultant enhancement of the Majesty of Justice.
79. The plea of "Nolo Contendere" in our country is not used in strict sense in absence of any statutory provision or necessary enactment. However, this plea plays a very important role in many jurisdictions in United States, Scotland and other European and non-European Courts.