Santa Singh Vs. State of Punjab [1976]
INSC 176 (17 August 1976)
BHAGWATI, P.N.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION: 1976 AIR 2386 1977 SCR (1) 229 1979
SCC (4) 190
CITATOR INFO:
RF 1977 SC 949 (5,23) F 1977 SC1066 (29) D
1977 SC1579 (89) RF 1977 SC1747 (4) RF 1977 SC1926 (16) R 1980 SC 898 (152) RF
1989 SC1247 (16) F 1991 SC 345 (7)
ACT:
Code of Criminal Procedure (Act 2 of 1974),
ss. 235 and 465--Scope of
HEADNOTE:
The appellant was convicted by the Sessions
Court under s. 302, IPC, and sentenced to death. On the date of the judgment
his advocate was not present. The trial court did not give the accused an
opportunity to be. heard in regard to the sentence as required by s. 235(2),
Cr.P.C., 1973.
The appellant also did not insist on his
right to be heard.
The conviction and sentence. were, confirmed
by the High Court. Even in the High Court the accused did not complain that the
trial court had committed a breach of s. 235(2).
On the question whether the sentence is
vitiated because of the violation .of s. 235(2),
HELD: The matter should be remanded to. the
trial court for giving an opportunity to the appellant on the question of
sentence.
Per Bhagwati, J: (1) Under s. 235(1) the
court must, in the first instance, deliver a judgment convicting or acquitting
the accused. If the accused is acquitted, no further question arises. If the
accused is convicted, at that stage, he must be given an opportunity to be
heard in regard to the sentence, and it is only after hearing him that the court
can pass sentence. [232 D-E] (2) Section 235(2) is a new provision in
consonance with the modern trends in penology and sentencing procedures.
Sentencing is an important stage in the
process of administration of criminal justice, and should not be consigned to a
subsidiary position. Many factors have to be considered before a proper
sentence is passed such as the nature of the offence; the
circumstances-extenuating or aggravating--of the offence; the prior criminal
record, if any, of the offender; his age; his record of employment; his
background with reference to education; home life. sobriety and social
adjustment; his emotional and mental condition; the prospects for his
rehabilitation; the possibility of his return to a normal life in the community;
the possibility of treatment or training Of the offender; the possibility that
the sentence may Serve as a deterrent to crime by the offender or by others and
the current community need, if any for such a deterrent in respect to the
particular type offence. The material relating to these factors may be placed
before the court by means of affidavits. The hearing contemplated by s. 235(2)
is not confined merely to hearing oral submissions, but .it is also intended to
give an opportunity to the prosecution and the accused to place. before the
court facts and material relating to the various factors bearing on the
question of sentence, and if they are contested by the other side, then to
produce evidence for the purpose of establishing those factors. Otherwise, the
hearing would be devoid of meaning and content. The Court must however be
vigilant to see that this hearing on the question of sentence is not abused and
turned into an instrument for unduly protracting 1he proceedings. [232 E; G 233
F; 235 A-B] Ediga Anammo v. State of Andhra Pradesh [1974] 3 S.C.R. 329
referred to.
(3) If the trial court had, instead of
sentencing the appellant to death, imposed on him the sentence of the
imprisonment, he would not be, aggrieved by the breach of s. 235(2 ), because,
even after hearing the appellant, the. trial court could not have passed a more
favourable sentence. But the trial court imposed death sentence and the
possibility cannot be ruled out that if the 230 appellant has been given an
opportunity to produce material and make submissions on the question of
sentence, he might have been able to persuade, the trial court to impose the
lesser penalty. [235 D-E] (4) Since the section is a new provision it is quite
possible that many lawyers and judges might be unaware of it. In the present
case obviously the trial court as well as the appellant's advocate in the High
Court were aware of it. No inference can, therefore, be drawn against the
appellant that he had nothing to say from his omission to raise this point in
the High Court. [236 A] (5)(a) Non-compliance with the requirement of the section
cannot be described as a mere irregularity curable under s. 465. It amounts to
by_passing an important stage of the trial so that the trial cannot be said to
be that contemplated by the Code. Such deviation constitutes disobedience of an
express provision of the Code as to the mode of trial and hence cannot be
regarded as a mere irregularity. [236 H] Subramania Iyer v. King Emperor (1901)
28 I.A. 257 referred to.
(b) The; violation goes to the root of the
matter and the resulting illegality is of such a character that it vitiates the
sentence. [237 B] Pulukuri Kotayya v. King Emperor, (1947) 74 I.A. 65 and Magga
v. State of Rajasthan, [1953] S.C.R. 973 referred to.
(c) When no opportunity has been given to the
appellant in regard to the sentence to be imposed on him, failure of justice
must be regarded as implicit and s. 465 cannot have any application. [137 B]
Per Fazal Ali J. (1) The 48th Report of the Law Commission and the statement of
objects and reasons of the 1973Code of Criminal Procedure show that s. 235(2)
is a very salutary provision. It contains one of the cardinal features of
natural justice, namely, that the accused must be given an opportunity to make
a representation against the sentence proposed to be imposed on him. It seeks
to achieve a socio-economic purpose and is aimed at attaining the ideal
principle of proper sentencing in a rational and progressive society. Section
235 is split up into two integral parts, (a) the stage which culminates in the
passing of the judgment of conviction or acquittal; and (b) the stage which, on
conviction, results in imposition of sentence on the accused. Both these parts
are absolutely fundamental and non-compliance with any of the provisions would
undoubtedly vitiate the final order passed by the Court. Section 235(2) enjoins
on the Court to stay its hands after passing a judgment of conviction and hear
the accused on the question of sentence before passing sentence. [238 H; 239 E;
C] (2) There may lye a number of
circumstances of which the Court may not be aware but which may be taken into
consideration by the court while awarding the sentence, particularly a sentence
of death. The accused must be given an opportunity of making his representation
and placing such materials which have a bearing on the question of sentence.
Parliament has not intended that the accused should adopt dilatory tactics
under the cover of this new provision but contemplated that a short and simple
opportunity has to be given to the accused to place materials bearing on the
question of sentence, if necessary by leading evidence, before the .Court, and
a consequent opportunity to the prosecution to rebut those materials. The Court
must be vigilant to exercise proper control over the proceedings so that the
trial is not unavoidably or unnecessarily delayed. [240 FG] (3) Non-compliance
with the section is not a mere irregularity which can be cured by s. 465 of the
Code. It is an illegality which vitiates the sentence. Having regard-to the
object and the setting in which the new provision was inserted, 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.
231 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 provision, since the accused has been completely deprived of an
opportunity to represent to the Court regarding the proposed sentence and this
manifestly results in a serious failure of justice. [240 B-C] [Both the learned
Judges indicated that there must be a system of training judges in the
application of socio-economic laws and in modern methods and techniques of
decision-making and sentencing procedures]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 230 of 1976.
(Appeal by Special Leave from the Judgment
and order dated 11.9.1975 of the Punjab & Haryana High Court in Crl.
Appeal No. 392 of .1975 and Murder Reference
No. 14/75).
S.K. lain, for the Appellant.
O.P. Sharma, for the Respondent.
Judgment The Judgment of the Court was
delivered by P.N. Bhagwati, J.S. Murtaza Fazal Ali, J. gave a separate Opinion.
BHAGWATI, J.--This appeal, by special leave,
raises an interesting question of law relating to the construction of section
235(2) of the Code of Criminal Procedure, 1973. The appellant was tried before
the Sessions Judge, Ludhiana for committing a double murder, one of his mother
and the other of her second husband. He was represented by a lawyer during the
trial and after the evidence was concluded and the arguments were heard, the
learned Sessions Judge adjourned the case to 13th February, 1975 for
pronouncing the judgment. It appears that on 13th February, 1975, the judgment
was not ready and hence the case was adjourned to 20th February, 1975 and again
to 26th February, 1975. The Roznamcha of the proceedings shows that on 26th
February, 1975 the appellant was present without his lawyer and the learned
Sessions Judge pronounced the judgment convicting the appellant of the offence
under section 302 of the Indian Penal Code and sentenced him to death. It was
common ground that after pronouncing the judgment convicting the appellant, the
learned Sessions Judge did not give the appellant an opportunity to be heard in
regard to the sentence to be imposed on him and by one single judgment, convicted
the appellant and also sentenced him to death. The appellant preferred an
appeal to the High Court and the case was also referred to the High Court for
confirmation of the death sentence. The High Court agreed with the view taken
by the learned Sessions Judge and confirmed the conviction as also the sentence
of death. The appellant thereupon preferred the present appeal with special
leave obtained from this Court.
The appeal is limited to the question of
sentence and the principal argument advanced on behalf of the appellant is that
in not giving an opportunity to the appellant to be heard in regard to the
sentence to 232 be imposed on him after the judgment was pronounced convicting
him, the learned Sessions Judge committed a breach of section 235 (2) of the
Code of Criminal Procedure, 1973 and that vitiated the sentence of death
imposed on the appellant. This argument is a substantial one and it rests on
the true interpretation of section 235(2). This is a new provision and it
occurs in section 235 of the Code of Criminal Procedure, 1973 which reads as
follows:
"235 (,1) After hearing arguments and
points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass sentence on him
according to law." This provision is clear and explicit and does not admit
of any doubt. It requires that in every trial before a court of sessions, there
must first be a decision as to the guilt of the accused. The court must, in the
first instance, deliver a judgment convicting or acquitting the accused.
If the accused is acquitted, no further
question arises.
But if he is convicted, then the court has to
"hear the accused on the question of sentence, and then pass sentence on
him according to law". When a judgment is rendered convicting the accused,
he is, at that stage, to be given an opportunity to be heard in regard to the sentence
and it' is only after hearing him that the court can proceed to pass the
sentence.
This new provision in section 235(2) is in
consonance with the modern trends in penology and sentencing procedures. There
was no such provision in the old Code. Under the old Code, whatever the accused
wished to submit in regard to the sentence had to be stated by him before the
arguments concluded and the judgment was delivered. There was no separate stage
for being heard in regard to sentence.
The accused had to produce material and make
his submissions in regard to sentence on the assumption that he was ultimately
going to be convicted. This was most unsatisfactory. The legislature,
therefore, decided that it is only when the accused is convicted that the
question of sentence should come up for consideration and at that stage, an
opportunity should be given to the accused to be heard in regard to the
sentence. Moreover, it was 'realised that sentencing. is an important stage in
the process of administration of criminal justice as important as the adjudication
of guilt--and it should not be consigned to a subsidiary position as if it were
a matter of not much consequence.
It should be a matter of some anxiety to the
court to impose an appropriate punishment on the criminal and sentencing
should, therefore, receive serious attention of the court.
In most of the countries of the world, the
problem of sentencing the criminal offender is receiving increasing attention
and that is largely because of the rapidly changing attitude towards crime and
criminal. There is in many of the countries, intensive study of the sociology
of crime 233 and that has shifted the focus from the crime to the criminal,
leading to a widening of the objectives of sentencing and, simultaneously, of
the range of sentencing procedures.
Today, more than ever before, sentencing is
becoming a delicate task, requiring an inter-disciplinary approach and calling
for skills and talents vary much different from those ordinarily expected of
lawyers. This was pointed out in clear and emphatic words by Mr. Justice
Frankfurter:
"I myself think that the bench we
lawyers who become judges--are not very competent, are not qualified by
experience, to impose sentences where any discretion is to be exercised. I d9
not think it is in the domain of the training of lawyers to know what to do
with a fellow after you find out he is a thief. I do not think legal training
gives you any special competence. I, myself, hope that one of these days, and
before long, we will divide the functions of criminal justice. I think the
lawyers are people who are competent to ascertain whether or not a crime has
been committed. The whole scheme of common law judicial machinery--the rule of
evidence, the ascertainment of what is relevant and what is irrelevant and what
is fair, the whole question of whether you can introduce prior crimes in order
to prove intent--I think lawyers are peculiarly fitted for that task. But all
the questions that follow upon ascertainment of guilt, I think require very
different and much more diversified talents than the lawyers and judges are
normally likely to posses." The reason is that a proper sentence is the
amalgam of many factors such as the nature of the offence, the
circumstances--extenuating or aggravating--of the offence, the prior criminal
record', if any, of the offender, the age of the offender, the record of the
offender as to employment, the background of the offender with reference to
education, home life, society and social adjustment, the emotional and mental
condition of the offender, the prospects for the rehabilitation of the
offender, the possibility of return of the offender to a normal life in the
community, the possibility of treatment or training of the offender, the
possibility that the sentence may serve as a deterrent to crime by the offender
or by others and the current community need, if any, for such a deterrent in
respect to the particular type of offence. These are factors which have to be
taken into account by the court in deciding upon the appropriate sentence, and
therefore, the legislature felt that, for this purpose, a separate stage should
be provided after conviction when the court can bear the accused in regard to
these factors bearing on sentence and then pass proper sentence on the accused.
Hence the new provision in section 235(2).
But, on the interpretation of section 235(2),
another question arises and that is, what is the meaning and content of the
words "hear the accused". Does it mean merely that the accused has to
be given an opportunity to make his submissions or he can also produce 17--1003
SCI/76 234 material bearing on sentence which has so far not come before the
Court? Can he lead further evidence relating to the question of sentence or is
the hearing to be confined only to. oral submissions ? That depends on the
interpretation to be placed on the word 'hear'. 'Now, the word 'hear' has no
fixed rigid connotation. It can bear either of the two rival meanings depending
on the context in which it occurs. It is a well settled rule of interpretation,
hallowed by time and sanctified by authority, that the meaning of an ordinary
word is to be found not so much in strict etymological propriety of language,
nor even in popular use, as in the subject or occasion on which it is used and
the object which is intended to be attained. It was Mr. Justice Holmes who
pointed out in his inimitable style that "a word is not a crystal,
transparent and unchanged: it is the skin of a living thought and may vary greatly
in colour and content according to the circumstances and the time in which it
is used". Here, in this provision, the word 'hear' has been used to give
an opportunity to the accused to place before the court various circumstances
bearing on the sentence to be passed against him. Modern penology, as pointed
out by this Court in Ediga Annamma v. State of Andhra Pradesh(1)' "regards
crime and criminal as equally material when the right sentence has to be picked
out". It turns the focus not only on the crime, but also on the criminal
and seeks to personalise the punishment so that the reformist component is as
much operative as the deterrent element. It is necessary for this purpose that
"facts of a social and personal nature, sometimes altogether irrelevant,
if not injurious, at the stage of fixing the guilt, may have to be brought to
the notice of the court when the actual sentence is determined". We have
set out large number of factors which go into the alchemy which ultimately
produces an appropriate sentence and full and adequate material relating to
these factors would have to be brought before the court in order to enable the
court to pass an appropriate sentence. This material may be placed before the
court by means of affidavits, but if either party disputes the correctness or
veracity of the material sought to be produced by the other, an opportunity
would have to be given to the party concerned to lead evidence for the purpose
of bringing such material on record. The hearing on the question of sentence,
would be rendered devoid of all meaning and content and it would become an idle
formality, if it were confined merely to hearing oral submissions without any
opportunity being given to the parties and particularly to the accused, to
produce material in regard to various factors beating on the question of
sentence, and if necessary, to lead evidence for the purpose of placing such
material before the court. This was also the opinion expressed by the Law
Commission in its Forty Eighth Report where it was stated that "the taking
of evidence as to the circumstances relevant to sentencing should be encouraged
and both the prosecution and the accused should be allowed to cooperate in the
process." The Law Commission strongly recommended that 'if a request is
made in that behalf bY either the prosecution or the accused, an opportunity
for leading "evidence on the question" of sentence "should be
given".
We are, therefore, of the view that the
hearing.
(1) [1974] 3 S.C.R. 329.
235 contemplated by section 235(2) is not
confined merely to hearing oral submissions, but it is also intended to give an
opportunity to the prosecution and the accused to place before the court facts
and material relating to various factors beating on the question of sentence and
if they are contested by either side, then to produce evidence for the purpose
of establishing the same. Of course, care would have to be taken by the court
to see that this hearing on the question of sentence is not abused and turned
into an instrument for unduly protracting the proceedings. The claim of due and
proper hearing would have to be harmonised with the requirement of expeditious
disposal of proceedings.
Now there can be no doubt that in the present
case the requirement of section 235(2) was not complied with, inasmuch as no
opportunity Was given to the appellant, after recording his conviction, to
produce material and make submissions in regard to the sentence to be imposed
on him.
Since the appellant was. convicted under
section 302 of the Indian Penal Code, only two options were available to the
Sessions Court in the matter of sentencing the appellant:
either to sentence him to death or to impose
on him sentence of imprisonment for life. It the Sessions Court had, instead of
sentencing him to death, imposed on him sentence of life imprisonment, the
appellant could have made no grievance of the breach of the provision of
section 235(2), because, even after hearing the appellant, the Sessions Court
would not have passed a sentence more favourable to the appellant 'than the
sentence of life imprisonment. In such a case, even if any complaint of
violation of the requirement of section 235 (2) were made, 'it would not have
been entertained by the appellate court as it would have been meaningless and
futile. But, in the _present case, the Sessions Court chose to inflict death
sentence on the appellant and the possibility cannot be ruled out that if the
accused had been given opportunity to produce material and make submissions on
the question of sentence, as contemplated by section 235(2), he might have been
able to persuade the Sessions Court to impose the lesser penalty of life
imprisonment. The breach of the mandatory requirement of section 235(2) cannot,
in the circumstances, be ignored as inconsequential and it must be held to
vitiate the sentence of death imposed by the Sessions Court.
It was, however, contended on behalf of the
State that non-compliance with the mandatory requirement of section 235(2) was
a mere irregularity curable under section 465 of the Code of Criminal
Procedure. 1973 as no failure of justice was occasioned by it and the trial
could not on that account be held to be bad. The State leaned heavily on the
fact that the appellant did not insist on his right to be heard under section
235(2) before the Sessions Court, nor did he make any complaint before the High
Court that the Sessions Court had committed a breach of section 235(2) and this
omission on the part of the appellant, contended the State, showed that he had
nothing to say in regard to the question of sentence and consequently, no
prejudice was suffered by him as a result of non-compliance with section
235(2). This contention is, in my opinion, without force and must be rejected.
It must be remembered that section 235(2) is a new provision introduced for the
first time in the Code of Criminal Procedure, and 1973 and it is quite possible
that many lawyers and judges might be unaware of it. Before the Sessions Court,
the appellant was not represented by a lawyer at the time when the judgment was
pronounced and obviously he could not be aware of this new stage in the trial
provided by section 235(2). Even the Sessions Judge was not aware of it, for it
is reasonable to assume that if he had been aware, he would have informed the
appellant about his right to be heard in regard to the sentence and given him
an opportunity to be heard. It is unfortunate that in our country there is no
system of continuing education for judges so that judges can remain fully informed
about the latest developments in the law and acquire familiarity with modern
methods and techniques of judicial decision-making. The world is changing fast
and in our own country, vast social and economic changes are taking place.
There is a revolution of rising expectation amongst millions of human beings
who have so far been consigned to a life of abject poverty, hunger .and
destitution. Law has, for the first time, adopted a positive approach and come
out openly in the service of the weaker sections of the community. It has
ceased to be merely an instrument providing a framework of freedom in which men
may work out their destinies. It has acquired a new dimension, a dynamic
activism and it is now directed towards achieving socio-economic justice which
encompasses not merely a few privileged classes but the large masses of our
people who have so far been denied freedom and equality-social as well as
economic--and who have nothing to hope for and to live for. Law strives to give
them social and economic justice and it has, therefore, necessarily to be
weighted in favour of the weak and the exposed. This is the new law which
judges are now called upon to administer and it is, therefore, essential that
they should receive proper training which would bring about an orientation in
their approach and outlook, stimulate sympathies in them for the vulnerable
sections of the community and inject a new awareness and sense of public
commitment in them. They should also be educated in the new trends in penology
and sentencing procedures so that they may learn to use penal law as a tool for
reforming and rehabilitating criminals and smoothening out the uneven texture
of the social fabric and not as a weapon, fashioned by law, for protecting and
perpetuating the hegemony of one class over the other. Be that as it may, it is
clear that the learned Sessions Judge was not aware of the provision in section
235(2) and so also was the lawyer of the appellant in the High Court unaware of
it.
No inference can, therefore, be drawn from
the omission of the appellant to raise this point, that he had nothing to Say
in regard to the sentence and that consequently no prejudice was caused to him.
So far as section 465 of the Code of Criminal
Procedure, 1973 is concerned, I do not think it can avail the State in the
present ease. In the first place, non-compliance with the requirement of
section 235(2) cannot be described as mere irregularity in the course of the
trial curable under section 465. It is much more serious. It amounts to bypassing
an important stage of the trial and omitting it altogether, so that the trial
cannot be aid to be that contemplated in the Code. It 237 is a different kind
of trial conducted in a manner different from that prescribed by the Code. This
deviation constitutes disobedience to an express provision of the Code as to
the mode of trial, and as pointed out by the Judicial Committee of the Privy
Council in Subramania Iyer v. King Emperor(1), such a deviation cannot be
regarded as a mere irregularity. It goes to the root of the matters and the
resulting illegality is of such a character that it vitiates the sentence. Vide
Pulukurti Kotayya v. King Emperor(2) and Magga & Anr. v. State of
Rajasthan.(3) Secondly, when no opportunity has been given to the appellant to
produce material and make submissions in regard to the sentence to be imposed
on him, failure of justice must be regarded as implicit. Section 465 cannot, in
the circumstances, have any application in a case like the present.
I accordingly allow the appeal and whilst not
interfering with the conviction of the appellant under section 302 of the
Indian Penal Code, set aside the sentence of death and remand the case to the
Sessions Court with a direction to pass appropriate sentence after giving an
opportunity to the appellant to be heard in regard to the question of sentence
in accordance with the provision of section 235 (2) as interpreted by me.
FAZAL ALI, J.--I entirely agree with the
judgment proposed by my learned brother Bhagwati, J., and I am at one with the
views expressed by him in his judgment, but I would like to add a few lines of
my own to highlight some important aspects of the question involved in this
appeal.
In this appeal by special leave which is
confined only to the question of sentence an interesting question of law arises
as to the interpretation of the provisions of s. 235(2) of the Code of Criminal
Procedure, 1973---here in after referred to as 'the 1973 Code'. In the light of
the arguments advanced before us by the parties the question may be framed
thus:
"Does the non-compliance with the provisions
of s. 235(2) of the 1973 Code vitiate the sentence passed by the Court?"
In order to answer this question it may be necessary to trace the historical
background and the social setting under which s. 235(2) was inserted for the
first time in the 1973 Code. It would appear that the 1973 Code was based on a
good deal of research done by several authorities including the Law Commission
which made several recommendations for revolutionary changes in the provisions
of the previous Code so as to make the 1973 Code in consonance with the growing
needs of the society and in order to solve the social problems of the people.
Apart from introducing a number of changes in the procedure, new rights and
powers were conferred on the Courts or sometimes even on the accused. For
instance, a provision for anticipatory bail was introduced to enable the,
accused to be saved from (1) (1901) 28 I.A. 257.
(2) (1947) 74 I.A. 65.
(3) [1953] S.C.R. 973 at pp. 983-984.
238 unnecessary harassment. In its 48th
Report the Law Commission,. while recommending the insertion of a provision
which would enable the accused to make a representation against the sentence to
be imposed after the judgment of conviction had been passed, observed as
follows:
"It is now being increasingly recognised
that a rational and consistent sentencing policy requires the removal of
several deficiencies in the present system. One such deficiency is the lack of
comprehensive information as to characteristics and background of the
offender." "We are of the view that the taking of evidence as to the
circumstances relevant to sentencing should be encouraged, and both the
prosecution and the accused should be allowed to co-operate in the
process." In the aims and objects of 1973 Code which have been given
clause by clause, a reference to this particular provision has been made thus;
"If the judgment is one of conviction,
the accused will be given an opportunity to make his representation, if any, on
the punishment proposed to be awarded and such representation shall be taken
into consideration before imposing the sentence. This last provision has been
made because it may happen that the accused may have some grounds to urge for
giving him consideration in regard to the sentence such as that he is the
bread-winner of the family of which the Court may not be made aware during the
trial." Para 6(d) of the statement of objects and reasons of the 1973
Code' runs thus:
"6. Some of the more important changes
intended to provide relief to the poorer sections of the community are :-"(d)
the accused will be given an opportunity to make representation against the
punishment before it is imposed.'' The statement of objects and reasons further
indicates that the recommendations of the Law Commission were examined
carefully keeping in view, among others, the principle that "an accused
person should get a fair trial in accordance with the accepted principles of
natural justice". In these circumstances, therefore, I feel that the
provisions of s. 235 (2) are very salutary and contain one of the cardinal
features of natural justice, namely, that the accused must be given an
opportunity to make a representation against the sentence proposed to be
imposed on him.
239 Section 235 of the 1973 Code runs thus:
"235(1) After hearing arguments and
points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge
shall, unless he proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass sentence on him
according to law." A perusal of this section clearly reveals that the
object of the 1973 Code was to split up the sessions trial or the warrant
trial, where also a similar provision exists, into two integral parts--(i) the
stage which culminates in the passing of the judgment of conviction or
acquittal; and (ii) the stage which on conviction results in imposition of
sentence on the accused. Both these parts are absolutely fundamental and
non-compliance with any of the provisions would undoubtedly vitiate the final
order passed by the Court. The two provisions do not amount merely to a ritual
formula or an exercise in futility but have a very sound and definite purpose
to achieve. Section 235 (2) of the 1973 Code enjoins on the Court that after
passing a judgment of conviction the Court should stay its hands and hear the
accused on the question of sentence before passing the sentence in accordance
with the law. This obviously postulates that the accused must be given an
opportunity of making his representation only regarding the question of
sentence and for this purpose he may be allowed to place such materials as he
may think fit but which may have bearing only on the question of sentence. The
statute, in my view, seeks to achieve a socio-economic purpose and is aimed at
attaining the ideal principle of proper sentencing in a rational and
progressive society. The modern concept of punishment and penology has
undergone a vital transformation and the criminal is now not looked upon as a
grave menace to the society which should be got rid of but is a diseased person
suffering from mental malady or psychological frustration due to subconscious
reactions and is, therefore, to be cured and corrected rather than to be killed
or destroyed. There may be a number of circumstances of which the Court may not
be aware and which may be taken into consideration by the Court while awarding
the sentence, particularly a sentence of death, as in the instant case.
It will be difficult to lay down any hard and
fast rule, but the statement of objects and reasons of the 1973 Code itself
gives a clear illustration. It refers to an instance where the accused is the
sole bread-earner of the family.
In such a case if the sentence of death is
passed and executed it amounts not only to a physical effacement of the
criminal but also a complete socio-economic destruction of the family which he
leaves behind. Similarly there may be cases, where, after the offence and
during the trial, the accused may have developed some virulent disease or some
mental infirmity, which may be an important factor to be taken into
consideration while passing the sentence of death. It was for these reasons
that s. 235(2) of the 1973 Code was enshrined in the Code for the purpose of
making the Court aware of these circumstances so that even if the highest
penalty of 240 death is passed on the accused he does not have a grievance that
he was not heard on his personal, social and domestic circumstances before the
sentence was given.
My learned brother has very rightly pointed
out that our independence has led to the framing of numerous laws on various
social concepts and a proper machinery must be evolved to educate not only the
people regarding the laws which have been made for their benefit but also the
Courts, most of whom are not aware of some of the recent and the new
provisions. It is, therefore, the prime need of the hour to set up Training
Institutes to impart the new judicial recruits or even to serving judges with
the changing trends of judicial thoughts and the new ideas which the new judicial
approach has imbibed over the years as a result of the influence of new
circumstances that have come into existence.
The next question that arises for
consideration is whether noncompliance with s. 235(2) is merely an irregularity
which can be cured by s. 465 or it is an illegality which vitiates the
sentence. Having regard to the object and the setting in which the new
provision of s. 235(2) was inserted in the 1973 Code there can be no doubt that
it is one of the most fundamental part of the criminal procedure and
non-compliance thereof will ex facie vitiate the order.
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 an
opportunity to represent to the Court regarding the proposed sentence and which
manifestly results in a serious failure of justice.
There is abundant authority for this
proposition to which reference has been made by my learned brother.
The last point to be considered is the extent
and import of the word "hear" used in s. 235(2) of the 1973 Code.
Does it indicate, that the accused should enter into a fresh trial by producing
oral and documentary evidence on the question of the sentence which naturally
will result in further delay of the trial? The Parliament does not appear to
have intended that the accused should adopt dilatory tactics under the cover of
this new provision but contemplated that a short and simple opportunity has to
be given to the accused to place materials if necessary by leading evidence
before the Court bearing on the question of sentence and a consequent
opportunity to the prosecution to rebut those materials. The Law Commission was
fully aware of this anomaly and it accordingly suggested thus:
"We are aware that a provision for an
opportunity to give evidence in this .respect may necessitate an adjournment;
and to avoid delay adjournment, for the purpose should, ordinarily be for not
more than 14 days. It may be so provided in the relevant clause." 241 It
may not be practicable to keep up to the time-limit suggested by the Law
Commission with mathematical accuracy but the Courts must be vigilant to
exercise proper control over the proceedings so that the trial is not
unavoidably or unnecessarily delayed.
I, therefore, agree with the order of my
learned Bhagwati, J., that the appeal should be allowed on the question of the
sentence and the, matter should be sent back to the Trial Court for giving an
opportunity to the accused to make a representation regarding the sentence
proposed.
V.P.S. Appeal allowed.
Back
