The Judgment

Sub-section (4), where only the operative part is read. The whole judgment or a copy shall be immediately made available for the perusal of the parties or their advocates free of cost. Proviso: the Court shall, as far as practicable, upload the copy of the judgment on its portal within seven days.

Sub-section (5), the accused in custody. He shall be brought up to hear the judgment pronounced, either in person or through audio-video electronic means.

Sub-section (6), the accused not in custody. He shall be required to attend, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only, or he is acquitted.

Proviso: where there are more accused than one and one or more do not attend on the day of pronouncement, the presiding officer may pronounce the judgment notwithstanding their absence, in order to avoid undue delay in the disposal of the case.

Sub-section (7), no invalidity for absence. No judgment shall be deemed invalid by reason only of the absence of any party or his advocate on the day or from the place notified, or of any omission or defect in serving the notice of that day and place.

Sub-section (8). Nothing in the section limits section 511, which is the section on irregularities.

Section 393: what a judgment must say

Sub-section (1). Except as otherwise expressly provided, every judgment:

(a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon, and the reasons for the decision; (c) shall specify the offence, and the section of the Bharatiya Nyaya Sanhita, 2023 or other law, under which the accused is convicted, and the punishment to which he is sentenced; (d) if it is a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.

Sub-section (2), the alternative. Where the conviction is under the Bharatiya Nyaya Sanhita and it is doubtful under which of two sections, or which of two parts of the same section, the offence falls, the Court shall distinctly express the same and pass judgment in the alternative.

Sub-section (3), reasons for sentence. Where the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of a sentence of death, the special reasons for such sentence.

Sub-section (4), the short sentence. Where the conviction is for an offence punishable with imprisonment for one year or more but the Court imposes less than three months, it shall record its reasons, unless the sentence is imprisonment till the rising of the Court, or the case was tried summarily.

Sub-section (5), the death sentence. When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

Sub-section (6), certain orders. Every order under section 136 or section 157(2), and every final order under section 144, 164 or 166, shall contain the point or points for determination, the decision and the reasons.

Sub-sections (3) and (4) together are the sentencing-reasons rule, and they run in opposite directions. Special reasons are required for the heaviest sentence, death. Reasons are required for an unusually light sentence, under three months on an offence carrying a year or more. The law wants an explanation at both extremes.

Section 394: notifying the address of a previous convict

Sub-section (1). Where a person, having been convicted by a Court in India of an offence punishable with imprisonment for three years or upwards, is again convicted of an offence punishable with imprisonment for three years or upwards, by any Court other than that of a Magistrate of the second class, that Court may, if it thinks fit, at the time of passing a sentence of imprisonment, also order that his residence and any change of, or absence from, that residence after release be notified for a term not exceeding five years from the date of the expiration of the sentence.

Sub-section (2). The same applies to criminal conspiracies to commit such offences, and to their abetment and attempts.

Sub-section (3). If the conviction is set aside on appeal or otherwise, the order becomes void.

Sub-section (4). Such an order may also be made by an Appellate Court, or by the High Court or Court of Session in revision.

Sub-section (5). The State Government may by notification make rules for the notification of residence, change or absence by released convicts.

Sub-section (6). Those rules may provide for punishment for their breach, and a person charged with a breach may be tried by a Magistrate of competent jurisdiction in the district in which the place last notified as his residence is situated.

Sections 402 to 406: reasons, finality, copies

Section 402, special reasons for not being lenient. Where the Court could have dealt with:

(a) an accused under section 401 or under the Probation of Offenders Act, 1958; or (b) a youthful offender under the Juvenile Justice (Care and Protection of Children) Act, 2015 or any other law 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.

Read that as the mirror image of section 393(3). Probation and juvenile treatment are what the law prefers where they are available; departing from the preference is what needs explaining.

Section 403, no alteration. Save as otherwise provided by the Sanhita or any other law, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

Section 404, copies.

Sub-section (1). When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after pronouncement, be given to him free of cost.

Sub-section (2). On his application, a certified copy, or, if he so desires, a translation in his own language if practicable or in the language of the Court, shall be given without delay, and free of cost in every case where the judgment is appealable by him. Proviso: where a sentence of death is passed or confirmed by the High Court, a certified copy shall be immediately given free of cost whether or not he applies.

Sub-section (3). Sub-section (2) applies to an order under section 136 as it applies to an appealable judgment.

Sub-section (4). Where the accused is sentenced to death and an appeal lies as of right, the Court shall inform him of the period within which the appeal should be preferred.

Sub-section (5). Any person affected by a judgment or order shall, on application and payment of the prescribed charges, be given a copy of the judgment, order, deposition or other part of the record. Proviso: the Court may for special reasons give it free. Further proviso: on the Prosecuting Officer's application, the Court may provide the Government a certified copy free of cost.

Sub-section (6). The High Court may by rules provide for copies to a person not affected, on payment of such fees and subject to such conditions as it prescribes.

Section 405, translation. The original judgment shall be filed with the record; and where the original is recorded in a language different from that of the Court, and either party so requires, a translation into the language of the Court shall be added to the record.

Section 406, copy to the District Magistrate. In cases tried by the Court of Session or a Chief Judicial Magistrate, that Court or Magistrate shall forward a copy of its finding and sentence, if any, to the District Magistrate within whose local jurisdiction the trial was held.

A worked example

A Sessions trial ends on 1 September. The Judge reserves judgment.

By when must he pronounce it? Not later than forty-five days, and notice of the date must be given to the parties or their advocates, section 392(1).

How may he pronounce it? By delivering the whole judgment, by reading it out whole, or by reading the operative part and explaining the substance in a language the accused or his advocate understands.

He takes the third course. Then the whole judgment or a copy must be made available immediately, free of cost, for the parties' perusal, and the Court must as far as practicable upload it on its portal within seven days, section 392(4).

The accused is in jail. He shall be brought up to hear it, in person or through audio-video electronic means, section 392(5).

One of four co-accused does not come. The Judge may pronounce anyway, to avoid undue delay, proviso to section 392(6); and the judgment is not invalid merely because a party or advocate was absent or the notice was defective, sub-section (7).

What must the judgment contain? The points for determination, the decision and the reasons; the offence and the section under which he is convicted and the punishment; and, if an acquittal, the offence acquitted of and a direction to set him at liberty, section 393(1).

The facts sit between two sections. The Court distinctly expresses the doubt and passes judgment in the alternative, section 393(2).

The sentence is death. The judgment must state the special reasons, section 393(3), and the sentence must direct that he be hanged by the neck till he is dead, sub-section (5). A certified copy must be given to him immediately, free, whether or not he applies, proviso to section 404(2), and the Court must tell him the period within which to appeal, section 404(4).

Change it: the offence carries three years and the Judge awards two months. He must record his reasons, section 393(4), unless it is imprisonment till the rising of the Court or a summary trial.

The accused was eligible for probation and the Court declined it. It must record the special reasons for not having done so, section 402.

He is sentenced to imprisonment. A copy of the judgment goes to him free of cost, immediately after pronouncement, section 404(1).

A week later the Judge notices he wrote "section 105" for "section 106". He may correct it: that is a clerical error, section 403. He may not reconsider the sentence.

He had been convicted five years ago of an offence carrying three years or more, and this conviction is of the same class. The Court may order that his residence, and any change or absence, be notified for up to five years from the expiry of the sentence, section 394(1); and if the conviction is set aside, that order becomes void, sub-section (3).

Finally, the Court of Session forwards a copy of its finding and sentence to the District Magistrate of the local jurisdiction, section 406.

Distinctions

What this does NOT mean

The forty-five days are not a target. Section 392(1) fixes the outer time for pronouncement after the termination of the trial.

Reading the operative part is not a shortcut. It obliges the Court to explain the substance in a language the accused or his advocate understands and to make the whole judgment available free of cost immediately.

A judgment is not invalid because somebody was absent. Section 392(7) says so expressly, including where the notice was omitted or defectively served.

Section 403 does not prevent an appeal or revision. It stops the same Court altering its own signed judgment, except for a clerical or arithmetical error.

And section 394 is not a sentence. It is an order for notification of residence, made at the time of sentencing, lasting up to five years from the expiry of the sentence, and void if the conviction falls.

Quick revision

• 392: pronounced in open Court, immediately or within forty-five days on notice; by delivering, reading out, or reading the operative part and explaining the substance; signed and dated, every page signed if not in his hand; whole judgment free and immediate where only the operative part is read, and uploaded within seven days as far as practicable; the accused in custody attends in person or by audio-video; absent co-accused do not stop pronouncement; absence or defective notice does not invalidate.
• 393: language of the Court; points, decision, reasons; offence, section and punishment; on acquittal, the offence acquitted of and a direction to set at liberty; alternative judgment where the section is doubtful; reasons for sentence, and special reasons for death; reasons for under three months where the offence carries a year or more, save the rising of the Court or a summary trial; a death sentence directs hanging by the neck till dead.
• 394: a second conviction of an offence carrying three years or more, by any Court other than a second class Magistrate, may carry an order to notify residence for up to five years after the sentence expires; extends to conspiracy, abetment and attempt; void if the conviction is set aside; available to an Appellate Court or in revision; State rules, with punishment for breach triable where the last notified residence is.
• 402: special reasons must be recorded for not using section 401, the Probation of Offenders Act, or the Juvenile Justice Act.
• 403: after signing, no alteration or review except a clerical or arithmetical error.
• 404: free copy immediately on a sentence of imprisonment; certified copy or translation without delay on application, free where appealable; immediate free copy on a death sentence passed or confirmed; the Court tells him the appeal period; persons affected on charges; the Government free; others by High Court rules.
• 405: the original is filed with the record, with a translation into the Court's language if either party requires.
• 406: the Court of Session or Chief Judicial Magistrate forwards the finding and sentence to the District Magistrate.

Test yourself

1. Within what time must a judgment be pronounced? Immediately after the termination of the trial, or at some subsequent time not later than forty-five days, of which notice shall be given to the parties or their advocates, section 392(1).

2. What are the three modes of pronouncement? Delivering the whole judgment; reading out the whole judgment; or reading out the operative part and explaining the substance in a language understood by the accused or his advocate.

3. What must every judgment contain? The point or points for determination, the decision on them and the reasons; the offence and the section under which the accused is convicted and the punishment; and, on an acquittal, the offence acquitted of and a direction to set him at liberty, section 393(1).

4. When must a Court record special reasons for its sentence? When it passes a sentence of death, section 393(3); and it must record its reasons for a sentence of less than three months where the offence is punishable with a year or more, section 393(4), unless the sentence is till the rising of the Court or the trial was summary.

5. When must a Court record special reasons for what it did NOT do? Where it could have dealt with the accused under section 401 or the Probation of Offenders Act, 1958, or with a youthful offender under the Juvenile Justice (Care and Protection of Children) Act, 2015 or a like law, and did not, section 402.

6. Can a Court change its own judgment? No, once signed, except to correct a clerical or arithmetical error, section 403.

7. What copy is an accused sentenced to imprisonment entitled to? A copy of the judgment, free of cost, immediately after its pronouncement, section 404(1); and on application, a certified copy or a translation without delay, free where the judgment is appealable by him.