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Make sentencing sensible

  • Published at 06:14 pm May 22nd, 2018
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Mehedi Hasan

Section 367 (5) of the Code of Criminal Procedure (CrPC) states that “If the accused is convicted of an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded.”

Scrutinizing Section 367 (5) of the CrPC will exhibit three purposes of the section. Firstly, to reduce unwarranted sentencing disparity; secondly, to provide rationalization; and finally, consistency in sentencing. One of the prerequisites in achieving these purposes is the requirement that the presiding judges state their reason for sentence. The said section provides the presiding judges the opportunity to contend that whatever s/he has done, is done in accordance with law, and has duly complied with the relevant provisions of the law, hence, the reason given by her/him are valid and adequate. Without reasons, it would be simply impossible to determine whether similarly situated defendants are sentenced similarly and consistency in sentencing is maintained. But, does section 367 (5) of the CrPC fulfill its purposes? 

Sukur Ali was barely a boy of 14 years of age at the time of occurrence and 16 years old at the time of the trial (State v. Sukur Ali, 9 (2004) BLC (HCD) 238). Despite confirming Sukur Ali’s age, the High Court Division along with Appellate Division confirmed his death sentence. Although in August 2015 the Appellate Division commuted Sukur Ali’s death sentence to imprisonment for life “till natural death”, it confined itself from declaring Sukur Ali’s trial by the Bishesh Adalat as void ab-inito or without Jurisdiction. 

Similar inconsistencies are visible in cases dealing with Section 57 of the Penal Code. For instance, Rokeya Begum V. State [4 CLR (AD) 147], based on which many decisions were made. However, in Ataur Mridha and Ors vs. The State [14ADC (2017) 333], the Appellate Division refused to adhere its own precedent. A similar disparity also exists when considering the period of time spent by the accused in the condemned cell as a mitigating circumstance.

Analysing many such cases directs us towards two aspects of our criminal justice system, firstly, the obvious ambiguities in sentencing and secondly, a judge-centric approach that might lead to a miscarriage of justice. The emerging question now is - what is the solution? 

The answer is a sentencing guideline. Due to the lack of a sentencing guideline, there is no standard approach set out for our learned judges, and as a result, there is inconsistency in sentencing. Sentencing guidelines play a key role in this by setting out a standard approach for all judges and magistrates to follow, and it is high time one was created for our justice system. 

Sadiya S Silvee is a Research Assistant, Death Penalty Research Project (DPRP) at Bangladesh Institute of Law and International affairs (BILIA) and Adjunct Lecturer at Green University of Bangladesh. She is also associated with Centre for International Sustainable Development Law (CISDL) as a Legal Researcher