PETITIONER:
NARPAL SINGH & OTHERS
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT01/02/1977
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION:
1977 AIR 1066 1977 SCR (2) 901
1977 SCC (2) 131
ACT
Sentence--Right to be heard by the accused on the ques-
tion of sentence and the duty of the court to pass a
sentence after conviction--Code of Criminal Procedure (Act 2
of 1974), 1973--Section 235(2)--De novo trial not necessary
in such cases on the question of convictions.
HEADNOTE
Appellants Nirpal Singh, Gurdev Singh and Jagmohan Singh
were convicted under s. 302 J.P.C. and sentenced to death
while the appellants Devinder Singh, and Maha Singh were
convicted under s. 302 but sentenced to imprisonment for
life by the Sessions Judge. The High Court upheld the
convictions as also the sentences while accepting the refer-
ence under s. 366 made by the Sessions Judge and dismissing
the appeals by the accused.
On appeal by special leave, the appellants contended
inter alia, that the sentence passed against them was bad
as the Sessions Judge, after delivering the judgment of
conviction has not given any opportunity to them of being
heard on the question of sentence separately.
Dismissing the appeals of Devinder Singh and Maha Singh
and partly allowing the appeals of the other three appel-
lants, the Court maintained their convictions set aside the
sentence of death passed on them and remitted their cases
to the trial Court for passing sentences on them afresh
under s. 235(2) of the Criminal Procedure Code. The Court
HELD: (1) Though the commitment inquiry was held under
the Code of Criminal Procedure, 1973, since the procedure
under s. 235(2) has not been adopted by the Sessions Judge,
the sentence of death passed on the appellants, Narpal
Singh, Gurdev Singh and Jagmohan Singh in the instant case
cannot be sustained. Since Devinder Singh and Maha Singh
have already been given sentences of life imprisonment which
is the minimum sentence that could be passed under s. 302,
remetting their cases to the Sessions Judge was not neces-
sary. [902 F-G, 903 E]
Santa Singh v. State of Punjab [1977] 1 S.C.R. 229, reiter-
ated.
(2) When a case is remitted by this Court to the Ses-
sions Court for giving a hearing on the question of sentence
under s. 235(2) of the Code of Criminal Procedure 1973.
there would be fresh evidence and the principle that the
Sessions Judge may not act on evidence already recorded
before his predecessor and must conduct de novo trial would
not be violated. The ratio of Pyare Lal’s case [1962] 3
S.C.R. 328 cannot be applied or projected into the facts and
circumstances of the present case or to cases where the
trial has ended in a conviction but the matter has been
remitted to the trial Court for hearing the case only on the
question of sentence. [903 A-D]
Pyare Lal v. State of Punjab [1962] 3 S.C.R. 328, distin-
guished.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 149
of 1976.
Appeal by Special Leave from the Judgment and Order
dated 19-7-1975 of the Punjab & Haryana High Court in Crimi-
nal Appeal No. 1205 of 1974 and Murder Reference No. 60 of
1974.
902
Frank Anthony, Hatbans Singh and Harjender Singh for
Appellants Nos. 1, 2 and 4.
A.N. Mulla, and Harbans Singh for Appellants Nos. 3 and 5.
R.L. Kohli for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.--After having gone through the entire
evidence on the record and the judgment of the courts below
and after hearing counsel for the parties and for the rea-
sons that we have already given, we are fully satisfied and
convinced .that the prosecution case against the appellants
has been proved beyond reasonable doubt and that the appel-
lants were rightly convicted by the Sessions Judge and the
High Court.
This, however, does not dispose of the matter
completely, because it appears that the commitment inquiry
was held under the Code of Criminal Procedure, 1973 and the
Sessions Judge after delivering the judgment of conviction
has not given any opportunity to the accused of being heard
on the question of sentence separately. In Santa Singh v.
State of Punjab(1) this Court has taken the that under the
provisions of the Code of Criminal Procedure, 1973, it is
incumbent on the Sessions Judge delivering a judgment of
conviction to stay his hands and hear the accused on the
question of sentence and give him an opportunity to ,lead
evidence which may also be allowed to be rebutted by the
prosecution. This procedure has not been adopted by the
learned Sessions Judge and, therefore, the sentences of
death passed on the appellants Narpal Singh, Gurdev
Singh and Jagmohan Singh cannot be sustained although the
convictions recorded against them are confirmed by us and
will not be reopened under any circumstance whatsoever.
Counsel for the State has drawn our attention to the
fact that in some cases the accused have raised the question
that once the case is remitted to the Sessions Judge, then
the accused is entitled to claim a de novo trial on the
question of conviction also. In this connection, reliance
was placed on Pyare Lal v. State of Punjab(2). In the first
place, this case was based on an interpretation of ss. 251
to 259 of the Code of Criminal Procedure, 1898, and the
reason why this Court held that the proceedings by a succes-
sor Judge cannot be started from the stage left out by his
predecessor was that a Judge who had heard the whole of
the evidence before had the advantage of watching the demea-
nour of the witnesses which would be lost if the successor
Judge was to proceed from the stage left by his predecessor.
It is true that under s. 326 of the Code of Criminal Proce-
*Only pages 33 to 36 of the Judgment are reported as .per
directions of the Court.
(1) [1976] s.c.c. 190.
(1) [1962] 3 S.C.R. 328.
903
dure, 1973, there is a discretion given to the successor
Magistrate to act on the evidence already recorded and not
to hold a de novo trial and no such provision is made in
case of a trial by the Sessions Judge or a Special Judge.
The ratio of Pyare Lal’s case (supra), however, is not
applicable to the present case. Once the judge who hears
the evidence delivers a judgment of conviction, one part of
the trial comes to an end. The second part of the trial is
restricted only to the question of sentence and so far as
that is concerned, when a case is remitted by us to the
Sessions Court for giving a hearing on the question of
sentence under s. 235(2) of the Code of Criminal Procedure,
1973, there would be fresh evidence and the principle that
the Sessions Judge may not act on evidence already recorded
before his predecessor and must conduct a de novo trial
would not be violated. In these circumstances, therefore,
the ratio of Pyare Lal’s case mentioned above cannot be
applied or projected into the facts and circumstances of the
present case or to cases where the trial has ended in a
conviction but the matter has been remitted to the Trial
Court for hearing the case only on the question of sentence.
So far as the case of Devinder Singh and Maha Singh are
concerned as they have already been given sentences of life
imprisonment and this is the minimum sentence that could be
passed under s. 302 I.P.C. it is not necessary to remit
their cases to the Sessions Judge. The convictions and
sentences of these two accused are, therefore, confirmed and
their appeals are dismissed. As regards the appeals by the
three other appellants, namely, Narpal Singh, Jagmohan
Singh and Gurdev Singh, we confirm their convictions
which would not be reopened under any circumstances, but set
aside the sentence of death passed on them and remit their
cases to the Trial Court for passing sentences on them
afresh after hearing the accused in the light of the
observations made by us and to this extent only the appeals
of the three appellants are allowed so far as their sen-
tences are concerned.
S.R. Appeals partly
allowed.
904