Right to Fair Sentence Hearing Under CrPC

Hearing of the accused on the question of sentence is discussed in sections 235, 248(2) and 325 of the Criminal Procedure Code. This law note explains it for you.

Section 235 of CrPC Judgment of Acquittal or Conviction

  1. Following the presentation of arguments and points of law, if any, the judge will render a judgment in the case.
  2. If the accused is found guilty, unless the judge chooses to proceed under the provisions of section 360 of the CrPC, the accused will have an opportunity to be heard on the question of the appropriate sentence. After considering the accused’s input, the judge will pass a sentence per the law.

Scope of Section 235 of CrPC

Now, we will discuss the scope of section 235 CrPC.

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Scope of Section 235(1) of CrPC

This provision made it clear that the judge is to try the case from day to day, record the evidence, and, after hearing the argument, deliver the judgment on the evidence he recorded.

It is not contemplated that a judge would deliver the verdict on the evidence recorded wholly or partly by his predecessor. It is based on the principle that the judge who records the evidence and sees the witnesses is better positioned to evaluate their evidence.

The cancellation of the charge on full trial is unknown in law. The accused must either be convicted or acquitted on full trial, and cancellation of alternative charges on convicting the accused on the main charge is illegal. It also does not amount to an acquittal. Appreciation of evidence by the Sessions Judge in a session triable case can only be made to conclude whether the prosecution was able to bring home the charge against the accused or not after the whole evidence is brought on record.

Scope of Section 235(2) of CrPC

The provision in clause (2) was newly added and did not exist in the old Code of 1898. This provision is according to the new trend in penology. It envisages that after a court holds a person guilty, it must consider the question of sentencing in the light of various factors such as the prior criminal record of the offender, his age, employment, educational background, home life, sobriety of social adjustment and emotional and mental condition and the prospects of his returning to the normal path of life in conformity with the law.

Therefore, the accused and the prosecution should be allowed to put forward their viewpoints on the question of sentence. The court must give a hearing to the accused on the question of sentence. It is mandatory. On convicting an accused, the court must unquestionably hear him on the sentence question.

In case the Magistrate, for any reason, fails to pass a sentence upon the accused after finding them guilty, and the accused raises this issue in a higher court, the higher court has the authority to rectify the omission by granting a hearing to the accused on the question of the appropriate sentence. Returning the case to the lower court that recorded the conviction is not always necessary. Remanding the case is an exception and should be avoided whenever possible to ensure a prompt and fair resolution.

The application of section 235(2) comes into play after the conviction has been recorded and the question of the sentence arises. The sentence is a crucial aspect where the interests of the accused and society are at stake. When considering the question of the sentence, the court operates in a different realm, where various facts and factors of a distinct nature come into play compared to those involved in determining the conviction question.

Case Laws for Section 235 CrPC

Now, let us discuss some important cases related to section 235 CrPC.

Muniappan vs State of Tamil Nadu

In Muniappan vs State of Tamil NaduAIR 1981 SC 1220, the Supreme Court observed:

The obligation to hear the accused on the question of the sentence, which is imposed by section 235(2) of CrPC, is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The judge must genuinely try to elicit from the accused all information that will eventually bear on the sentence question. Since the provision is intended to allow the accused to place before the court all the relevant material having a bearing on the question of the sentence, there can be no doubt that the provision is beneficial and must be strictly followed. It is mandatory and should not be treated as a mere formality.

Allauddin Mian vs State of Bihar

In Allauddin Mian vs State of Bihar (1989) 3 SCC 5, the court also considered the effect of non-compliance with section 235(2) and held that the provision is mandatory.

The SC observed:

“The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. That is all the more necessary since the courts are generally required to choose from a wide range of discretion in sentencing. The legislature introduced this provision, which satisfies a dual purpose; it satisfies the rule of natural justice by giving the accused an opportunity of being heard on the question of sentence and, at the same time, helps the court choose the sentence to be awarded.”

Malkiat Singh vs State of Punjab

Later, three judges Bench in Malkiat Singh vs State of Punjab(1991) 4 SCC 341, indicated the necessity of adjourning the case to a future date after convicting the accused and observed:

“On finding that the accused committed the charged offences, Section 235(2) empowers the judge that he shall pass sentence on him according to the law on hearing him. The hearing contemplated is not confined merely to oral hearing but also intended to allow the prosecution as well as the accused to place before the Court facts/material relating to various factors on the question or sentence and, if interested by either side, to have evidence adduced to how mitigating circumstances to impose a lesser sentence or aggravating grounds to impose the death penalty. Therefore, sufficient time must be given to the accused/prosecution on the question of sentence to show grounds on which the prosecution may plead, or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.”

Gurdev Singh vs State of Punjab

In Gurdev Singh vs State of Punjab(2003) CriLJ 3764 (SC), the accused was convicted of murder and was punished with a death sentence. The order of sentence was pronounced on the same day on which the order of conviction was passed. The same was challenged. It was held that where the court passes the order of conviction and sentence on the same day, it cannot be said to be illegal. It is more so when there is no material on record to show that the accused made any request to the trial court for adjournment of hearing for the hearing case for sentencing after the order of conviction was pronounced.

Ajay Pandit vs State of Maharashtra

Ajay Pandit vs the State of Maharashtra(2012) 8 SCC 43 case deals with the legal implications of section 235(2). It makes it clear that the court must hear the explicitly accused on the question of sentence after passing the judgment of conviction and before imposing the sentence. The accused had a right to lead evidence to prove why a lesser sentence should be awarded. Even though the accused had his chance to make arguments under section 234 of the CrPC, a subsequent opportunity has been given to make separate submissions as to the nature of the quantum of the sentence with regard to his circumstances, which might not have been brought to the notice of the court so far, e.g., that he is the breadwinner of the family.

Section 248(2) of CrPC – Acquittal or Conviction

In any case, under this chapter, if the Magistrate finds the accused guilty but decides not to proceed under the provisions of section 325 or section 360 of the CrPC, the Magistrate will then proceed to hear the accused on the question of the appropriate sentence. After considering the accused’s arguments for the sentence, the Magistrate will pass a lawful sentence upon the accused.

It was held in the State of Madhya Pradesh vs Saleem, 2005 Cr.L.J. 3435 SC, that the sentence imposed should respond to society’s cry for justice against criminals. Liberal attitude by imposing meagre sentences will be counterproductive.

Section 325 of CrPC

Section 325 of the Criminal Procedure Code outlines the procedure to be followed when a Magistrate, after hearing both the prosecution and the accused, believes that the accused deserves a punishment different from or more severe than what the Magistrate is authorized to impose.

In such cases, the Magistrate records their opinion, submits the case, and forwards the accused to the Chief Judicial Magistrate to whom they are subordinate. When multiple accused individuals are being tried together, and the Magistrate decides to proceed under this section for any of them, all such guilty accused are forwarded to the Chief Judicial Magistrate.

Upon receiving the case, the Chief Judicial Magistrate may choose to examine the parties, recall and re-examine witnesses, gather additional evidence, and then pass a judgment, sentence, or order that they deem appropriate and in accordance with the law.

Conclusion

An opportunity of hearing to the accused on the question of sentence is necessary. No opportunity of hearing to the accused on the question of sentence is essential where the judge proceeds by the provisions of section 360 of the CrPC. Section 360 of the Code empowers the court to pass an order of release on probation of good conduct or after admonition.

Dinesh Verma
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