PETITIONER:
SANTA SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT17/08/1976
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1976 AIR 2386 1977 SCR (1) 229
1979 SCC (4) 190
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 acquit-
ting 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 adminis-
tration 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 pros-
pects for his rehabilitation; the possibility of his return
to a normal life in the community; the possibility of treat-
ment 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 of-
fence. The material relating to these factors may be placed
before the court by means of affidavits. The hearing contem-
plated 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 con-
tested 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 in-
strument 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 sen-
tence. 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 sec-
tion 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 diso-
bedience of an express provision of the Code as to the mode
of trial and hence cannot be regarded as a mere irregulari-
ty. [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 Commis-
sion and the statement of objects and reasons of the 1973-
Code of Criminal Procedure show that s. 235(2) is a very
salutary provision. It contains one of the cardinal fea-
tures 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-econonmic 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 inte-
gral 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 undoubt-
edly 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 ques-
tion 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 consider-
ation by the court while awarding the sentence, particularly
a sentence of death. The accused must be given an opportu-
nity of making his representation and placing such materials
which have a bearing on the question of sentence. Parlia-
ment has not intended that the accused should adopt dilatory
tactics under the cover of this new provision but contem-
plated 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 F-
G]
(3) Non-compliance with the section is not a mere irreg-
ularity 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 in-
serted, 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 manifest-
ly 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-eco-
nomic laws and in modern methods and techniques of
decision-making and sentencing procedures]
JUDGMENT
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 ad-
journed 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 appel-
lant, 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 convict-
ing 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 appel-
lant. 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 Crimi-
nal 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 proce-
dures. 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 ulti-
mately going to be convicted. This was most unsatisfacto-
ry. 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 adminis-
tration of criminal justice as important as the adjudica-
tion of guilt--and it should not be consigned to a subsidi-
ary 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 sen-
tencing the criminal offender is receiving increasing atten-
tion 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 crimi-
nal, 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 possi-
bility 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 there-
fore, the legislature felt that, for this purpose,
a separate stage should be provided after convic-
tion 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 interpreta-
tion 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, hal-
lowed 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 sen-
tence 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 sen-
tence. This material may be placed before the court by
means of affidavits, but if either party disputes the cor-
rectness 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 bring-
ing 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 fac-
tors 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 circum-
stances relevant to sentencing should be encouraged and both
the prosecution and the accused should be allowed to cooper-
ate in the process." The Law Commission strongly recommend-
ed 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, inas-
much 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, in-
stead of sentencing him to death, imposed on him sentence of
life imprisonment, the appellant could have made no griev-
ance 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 appel-
lant 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 contemplat-
ed 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 jus-
tice 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 intro-
236
duced 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 tech-
niques 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 posi-
tive 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 per-
petuating 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 by-
passing 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 consti-
tutes disobedience to an express provision of the Code as to
the mode of trial, and as pointed out by the Judicial Com-
mittee 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 interfer-
ing 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 pro-
posed 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 impor-
tant 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---hereniafter
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 provi-
sions 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 includ-
ing 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 ac-
cused. 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 Commis-
sion,. 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 re-
quires 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 evi-
dence as to the circumstances relevant to sentenc-
ing 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 sen-
tence. 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 in-
tended 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 bear-
ing 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 frus-
tration due to subconscious reactions and is, therefore, to
be cured and corrected rather than to be killed or de-
stroyed. 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
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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 re-
cruits or even to serving judges with the changing trends
of judicial thoughts and the new ideas which the new judi-
cial approach has imbibed over the years as a result of the
influence of new circumstances that have come into exist-
ence.
The next question that arises for consideration is
whether noncompliance with s. 235(2) is merely an irregular-
ity 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 contem-
plated 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 sen-
tence 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 oppor-
tunity 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."
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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 Bhag-
wati, 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.
242