Whether Judgment delivered by the court without hearing the accused on the point of the sentence would vitiate proceedings?

  The learned counsel for appellant Sunilkumar submitted that the appellant was not heard in the matter of sentence before the learned Magistrate slapped a harsh sentence on him. The learned counsel submitted that the judgment is vitiated because the appellant was not heard, and hearing on the question of sentence is not confined to oral submissions but also intended to allow the accused to produce material bearing on the sentence. For this purpose, he relied on the judgment of the Supreme Court in Santa Singh v. The State of Punjab, reported at AIR 1976 SC 2386; that of Delhi High Court in Baburao Chandavar and others v. The State, reported at 1977 Cri.L.J. 1980; and that of Surai Prasad Sahu and others v. State, reported at 1972 Cri.L.J. 1346. {Para 37}

38. I have gone through the record. It may be seen that on 9-1-2007, the case was ordered to be fixed for judgment on 10-1-2007. It was, therefore, necessary for the appellant to remain present in the Court, if he wanted to be heard on the matter of sentence. When the learned Magistrate pronounced judgment of conviction on 10-1-2007, appellant Sunilkumar was not present. An application for exemption was moved on behalf of the appellant vide Exhibit 126, which was rejected. The learned Magistrate then proceeded to deliver the judgment, since the appellant did not remain present. It is not that the learned Magistrate was not willing to hear the appellant on the matter of sentence. It may be seen from the judgment that appellant Madhukar Smarth was actually heard by the learned Magistrate on the matter of sentence.

39. While it would have been undoubtedly ideal for the learned Magistrate to adjourn the pronouncement of judgment to a future date and to secure the presence of the appellant by causing a warrant to be issued against him, the appellant's absence is not a very serious infraction, particularly since he was represented by a counsel. It has not been stated by the learned counsel for appellant Sunilkumar before this Court that the appellant wanted to tender any specific evidence or produce any material at the hearing on the question of sentence. Therefore, whatever the appellant's counsel could have argued or submitted before the learned Trial Magistrate, he could have and, has, in fact, submitted before this Court also. Therefore, the sentence is not vitiated on account of failure of the learned Magistrate to hear the appellant.

Bombay High Court

Sunilkumar vs State Of Maharashtra on 6 February, 2009

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Whether trial will be vitiated if the court fails to hear accused on the point of sentence?

 From the above abstract, it may be seen that the Apex Court, as a general Rule, has held that the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. However, in the instant case, the learned Trial Court proceed to pronounce the sentence immediately after convicting the appellant on the same day. {Para 8}

[9.] The Apex Court in Santa Singh Vs. State of Punjab (1976) 4 SCC 190, held that hearing contemplated by Section 235 (2) of the Cr.PC 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 various factors bearing on the question of sentence and if they are contested by other side, then to produce evidence for the purpose of establishing the same. At the same time, care would have to be taken by the Court to see that 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 harmonized with the requirement of expeditious disposal of proceedings.

The non-compliance with the mandatory provisions of Section 235 (2) cannot be treated as a mere irregularity curable under Section 465 of the Code of Criminal Procedure, 1973. 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 said to be that contemplated in the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial. It goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence.

THE GAUHATI HIGH COURT

Case No. : CRL.A(J)/8/2020

Zothanpuia Council Veng Vs State of Mizoram Aizawl

BEFORE

 MR. JUSTICE NELSON SAILO

 MRS. JUSTICE MARLI VANKUNG

Author: (Nelson Sailo, J)

Date of Judgment : 31.01.2022.

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When it is not necessary for court to hear accused on the point of sentence?

(1) When the conviction is under Section 302, I.P.C. (with or without the aid of Section 34 or 149 or 120B of I.P.C.), if the Sessions Judge does not propose to impose death penalty on the convicted person, it is unnecessary to proceed to hear the accused on the question of sentence. Section 235 (2) of the Code will not be violated if the sentence of life imprisonment is awarded for that offence without hearing the accused on the question of sentence.

(2) In all other cases, the accused must be given sufficient opportunity of hearing on the question of sentence.

(3) The normal rule is that after pronouncing the verdict of guilty, the hearing should be made on the same day and the sentence shall also be pronounced on the same day.

(4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence (especially when the Judge propose to impose death penalty), the proviso to Section 309 (2) is not a bar for affording such time.

(5) For any reason, the Court is inclined to adjourn the case after pronouncing the verdict of guilty in grave offences, the convicted person shall be committed to jail till the verdict on the sentence is pronounced. Further detention will depend upon the process of law.

IN THE SUPREME COURT OF INDIA

Decided On: 10.05.2001

Ram Deo Chauhan @ Raj Nath vs. State of Assam
Coram: 

K.T. Thomas, R.P. Sethi and S.N. Phukan, JJ.

Citation;  AIR2001SC2231, 2001CriLJ2902, 2001(3)Crimes77(SC), (2001)5SCC714, 

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