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.

Print Page

Whether sentence given to accused is vitiated if Magistrate has not heard him on the point of sentence?

  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. {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

Print Page

Whether court can reduce sentence given to accused if there is compromise between victim and accused?

Giving punishment to the wrongdoer is the heart of the

criminal delivery system, but we do not find any legislative or

judicially laid down guidelines to assess the trial Court in meeting out the just punishment to the accused facing trial before it after he is held guilty of the charges. Nonetheless, if one goes through the decisions of this Court, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc. {Para 28} 

29. The compromise if entered at the later stage of the incident or

even after conviction can indeed be one of the factor in interfering the sentence awarded to commensurate with the nature of offence being committed to avoid bitterness in the families of the accused and the victim and it will always be better to restore their relation, if possible, but the compromise cannot be taken to be a solitary basis until the other aggravating and mitigating factors also support and are favourable to the accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand.

30. As already observed, we have not be able to record our

satisfaction in reference to the kind of compromise which has now been obtained and placed on record after 28 years of the incident and this Court cannot be oblivious of the sufferings which the victim has suffered for such a long time and being crippled for life and the leg and arm of the victim are amputated in the alleged incident dated 13th December, 1993 and since then he has been fighting for life and is pursuing his daily chores with a prosthetic arm and leg and has lost his vital organs of his body and became permanently disabled and such act of the appellant is unpardonable.

31. In totality of the facts and circumstances of the case, we are

not inclined to give any benefit of the alleged compromise dated 13th July, 2021 for interfering in the sentence awarded by the High Court in the impugned judgment which at least does not call for interference of this Court.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1039 OF 2021

BHAGWAN NARAYAN GAIKWAD Vs THE STATE OF MAHARASHTRA AND ORS.

Author: Rastogi, J.

Dated: SEPTEMBER 20, 2021

Print Page

Whether residual doubt is a mitigating circumstance leading to reduction of sentence of accused?

 We are convinced that the crime alleged was committed

 but not with

the severity and frequency projected. This raises a 'residual

doubt' in our minds, which the Hon'ble Supreme Court has

found to be a state of mind existing somewhere between

'beyond reasonable doubt' and 'absolute certainty'. We

respectfully rely on Ashok Debbarma v. State of Tripura,

(2014) 4 SCC 747.

22.Ashok Debbarma (supra) was interalia considering

the death sentence awarded to the appellant and the concept

of 'residual doubt' was raised as a mitigating factor in the

consideration of whether the case was one of the rarest of

the rare kind. The concept originated in the United States

and the Court observed: “'Residual doubt' is a mitigating

circumstance, sometimes used and urged before the jury in the

United States and, generally, not found favour by the various

courts in the United States"(sic). This is for the reason

that having instructed the Jury to find the accused guilty

beyond reasonable doubt, there cannot be a further

instruction at the time of sentencing that the higher

standard of elimination of 'all doubts' should have been

employed [Franklin v. Lynaugh 487 US 164 (1988)]. Proof

beyond reasonable doubt was expressed in the following words

in Krishnan v. State, (2003) 7 SCC 56:

“[d]oubts would be called reasonable if they are free

from a zest for abstract speculation. Law cannot

afford any favourite other than truth. To constitute

reasonable doubt, it must be free from an

overemotional response. Doubts must be actual and

substantial doubts as to the guilt of the accused

persons arising from the evidence, or from the lack

of it, as opposed to mere vague apprehensions. A

reasonable doubt is not an imaginary, trivial or a

merely possible doubt, but a fair doubt based upon

reason and common sense. It must grow out of the

evidence in the case”. (SCC p. 63, para 23)

Ashok Debbarma spoke thus on these concepts : 'In our

criminal justice system, for recording guilt of the accused,

it is not necessary that the prosecution should prove the

case with absolute or mathematical certainty, but only beyond

reasonable doubt. Criminal courts, while examining whether

any doubt is beyond reasonable doubt, may carry in their

mind, some “residual doubt”, even though the courts are

convinced of the accused persons’ guilt beyond reasonable

doubt." (sic) The Court further elaborated on 'residual

doubt' as per the following extract:

"33. In California v. Brown, 93 L Ed 2d 934: 479 US

538 (1987) and other cases, the US courts took the

view, “residual doubt” is not a fact about the

defendant or the circumstances of the crime, but a

lingering uncertainty about facts, a state of mind

that exists somewhere between “beyond a reasonable

doubt” and “absolute certainty”. The petitioner’s

“residual doubt” claim is that the States must permit

capital sentencing bodies to demand proof of guilt to

“an absolute certainty” before imposing the death

sentence. Nothing in our cases mandates the

imposition of this heightened burden of proof at

capital sentencing.

34. We also, in this country, as already indicated,

expect the prosecution to prove its case beyond a

reasonable doubt, but not with "absolute certainty".

But, in between "reasonable doubt" and "absolute

certainty", a decision-maker's mind may wander,

possibly in a given case he may go for "absolute

certainty" so as to award death sentence, short of

that he may go for "beyond reasonable doubt". Suffice

it to say, so far as the present case is concerned,

we entertained a lingering doubt as to whether the

appellant alone could have executed the crime singlehandedly,

especially when the prosecution itself says

that it was the handiwork of a large group of people.

If that be so, in our view, the crime perpetrated by

a group of people in an extremely brutal, grotesque

and dastardly manner, could not have been thrown upon

the appellant alone without charge-sheeting other

groups of persons numbering around 35. All the

element test as well as the residual doubt test, in a

given case, may favour the accused, as a mitigating

factor."

23. We are quite conscious of the fact that the

concept of 'residual doubt' was reckoned by the Hon'ble Supreme

Court in the aforesaid decision as a mitigating factor to avoid

death sentence. We would respectfully adopt the said concept,

even in the present case of rape as a mitigating factor in

sentencing. As we observed, there is evidence of sexual

molestation; but not with the severity and frequency as spoken

of by the prosecutrix. The family also has a different version

and there is the compelling factor of the prosecutrix having

informed the family after the very first instance and the family

having shifted her residence. These aspects give rise to the

residual doubts as spoken of by the Hon'ble Supreme Court and

hence we are compelled to modify the sentence. We think that the

sentence can be modified to 10 years under Section 377 of the

I.P.C. while upholding the fine imposed by the trial court with

a default sentence as ordered in the impugned judgment. The

conviction and sentence under Section 376 of I.P.C. are

reversed. The Criminal Appeal stands partly allowed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A NO. 1208 OF 2016

NARAYANAN KUNJAPPAN Vs STATE OF KERALA

PRESENT

 MR.JUSTICE K.VINOD CHANDRAN

&

MR.JUSTICE ZIYAD RAHMAN A.A.

Dated, this the 8th September 2021

Author: Vinod Chandran, J.

Print Page

Whether the court can reduce punishment imposed on accused in the non-compoundable offence if there is a settlement between the parties?

In our considered opinion, it would not be appropriate to order

compounding of an offence not compoundable under the Code

ignoring and keeping aside statutory provisions. In our judgment,

however, limited submission of the learned counsel for the

appellant deserves consideration that while imposing substantive

sentence, the factum of compromise between the parties is indeed a

relevant circumstance which the Court may keep in mind.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.24/2021

Murali  Vs State rep. by the Inspector of Police

 DATED : 05-01-2021

Print Page

P& H HC: Trial court can not award life imprisonment with the rider that it shall continue for rest of his natural life or rule out remission

 The legal position with regard to the power of the trial Courts to award

sentences with riders has been made explicit in the Constitution Bench

judgment of the Supreme Court in V. Sriharan (supra) in paras 103 to 105,

in the following words:

“103. That apart, in most of such cases where death

penalty or life imprisonment is the punishment imposed

by the trial Court and confirmed by the Division Bench of

the High Court, the concerned convict will get an

opportunity to get such verdict tested by filing further

appeal by way of Special Leave to this Court. By way of

abundant caution and as per the prescribed law of the

Code and the criminal jurisprudence, we can assert that

after the initial finding of guilt of such specified grave

offences and the imposition of penalty either death or life

imprisonment when comes under the scrutiny of the

Division Bench of the High Court, it is only the High

Court which derives the power under the Penal Code,

which prescribes the capital and alternate

punishment, to alter the said punishment with one

either for the entirety of the convict's life or for any

specific period of more than 14 years, say 20, 30 or so

on depending upon the gravity of the crime committed

and the exercise of judicial conscience befitting such

offence found proved to have been committed.

104. We, therefore, reiterate that, the power derived from

the Penal Code for any modified punishment within the

punishment provided for in the Penal Code for such

specified offences can only be exercised by the High

Court and in the event of further appeal only by the

Supreme Court and not by any other Court in this

country. To put it differently, the power to impose a

modified punishment providing for any specific term

of incarceration or till the end of the convict's life as

an alternate to death penalty, can be exercised only by

the High Court and the Supreme Court and not by

any other inferior Court.

11. Thus, after the judgment of the Constitution Bench of the Supreme

Court in V. Sriharan (supra), it is not open to a court inferior to the High

Court and Supreme Court, while awarding a sentence of life imprisonment

under the Indian Penal Code to further provide for any specific term of

incarceration, or till the end of a convict’s life, or to direct that there shall

be no remission, as an alternate to the death penalty. That power is

available only with the High Courts and the Supreme Court. Consequently,

the trial Court, in the instant case, while awarding the Petitioner the

sentence of rigorous imprisonment for life could not have added the riders

that it should be for the rest of her natural life or that she would not be

entitled to any remission.

IN THE HIGH COURT OF PUNJAB AND

HARYANA AT CHANDIGARH

CRWP-5238-2020 (O&M)

Date of Decision: 19th August, 2020

SAVITRI Vs  STATE OF HARYANA 

CORAM: JUSTICE S. MURALIDHAR

JUSTICE AVNEESH JHINGAN

Author:  Dr. S. Muralidhar, J.

Print Page

Whether Appellate Court and the Revisional Court may pass a direction, that sentence granted to accused to run concurrently?

 It is settled position of the law that the direction to run the sentence concurrently may be passed by the Trial Court, Appellate Court and the Revisional Court.

13. Full Bench of Kerala High Court in Mani & Anr. vs. State of Kerala, has held that "when no direction is given by the trial court that the sentences were to run concurrently, direction can be issued by the High Court under inherent powers even if the stage of exercising discretion under section 427(1) of the Code is over, in circumstances which would serve the purposes mentioned in Section 482".

IN THE HIGH COURT OF DELHI

Crl. A. 611/2018, Crl. M.A. 40714/2019 and Crl. M.B. 5926/2020

Decided On: 12.06.2020

 Pankaj Verma  Vs.   State

Hon'ble Judges/Coram:

Suresh Kait, J.

Citation: MANU/DE/1232/2020

Print Page

Supreme Court: Three tests for sentencing in Criminal case

Sentencing for crimes has to be analyzed on the touch stone of

three tests viz., crime test, criminal test and comparative

proportionality test. Crime test involves factors like extent of

planning, choice of weapon, modus of crime, disposal modus (if any),

role of the accused, antisocial

or abhorrent character of the crime,

state of victim. Criminal test involves assessment of factors such as

age of the criminal, gender of the criminal, economic conditions or

social background of the criminal, motivation for crime, availability

of defense, state of mind, instigation by the deceased or any one

from the deceased group, adequately represented in the trial,

disagreement by a judge in the appeal process, repentance,

possibility of reformation, prior criminal record (not to take pending

cases) and any other relevant factor (not an exhaustive list).

13. Additionally, we may note that under the crime test,

seriousness needs to be ascertained. The seriousness of the crime

may be ascertained by (i) bodily integrity of the victim; (ii) loss of

material support or amenity; (iii) extent of humiliation; and (iv)

privacy breach.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 690 OF 2014

STATE OF MADHYA PRADESH  Vs  UDHAM 

N.V. RAMANA, J .

Dated:October 22, 2019.

Print Page

How to grant set off to accused on conviction if he is simultaneously arrested and detained in two or more cases?

Various High Courts have expressed on this question. A Division Bench of Delhi High Court has dissented from a contrary view taken by a Single Judge of that High Court and held in K.C. Das vs. The State (1979 Criminal Law Journal

362) that the statute does not make any distinction between the first case and the second case for application of Section 428 of the Code. A Division Bench of the High Court of Gauhati in Lalrinfela vs. State of Mizoram and ors. (1982 Criminal Law Journal 1793) has adopted the same view. Lahiri and Hansaria, JJ, said in the said decision that if the accused is simultaneously arrested and detained in two or more cases and on conviction obtains set off for the period of his detention in the first case he is not ineligible to obtain set off for the period in the subsequent cases; in each case the court is to count the number of days the accused was in such detention separately and the liability to undergo imprisonment on conviction should be restricted to the remainder of the terms of the imprisonment imposed on him in that case.

A Division Bench of the Andhra Pradesh High Court in Gedala Ramulu Naidu vs. State of A.P. and anr. (1982 Criminal Law Journal 2186) and a Division Bench of the Madras High Court in Chinnasamy vs. State of Tamil Nadu and ors. (1984 Criminal Law Journal 447) have also adopted the same view in tune with the interpretation given by us. While speaking for the Division Bench of the Madras High Natarajan, J (as he then was) has made a survey of most of the decisions thus far rendered by different High Courts and opted to flow with the view adopted by all the other High Courts almost uniformly.

We have no reason to think that the High Courts mentioned above have gone wrong in taking the view that Section 428 of the Code permits the accused to have the period undergone by him in jail as an under-trial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period. We therefore, respectfully dissent from the view expressed by the two Judge Bench of this Court in Raghbir Singh vs. State of Haryana(supra).

Supreme Court of India

State Of Maharashtra And Anr vs Najakat Alia Mubarak Ali on 9 May, 2001

Hon'ble Judges/Coram:
K.T. Thomas, R.P. Sethi and S.N. Phukan, JJ.

Citation:AIR 2001 SC 2255

Print Page

Whether sentence of imprisonment awarded to accused can be waived on payment of additional compensation?

Considering the fact that the Appellant has complied with the direction given by this Court vide order dated 15th January, 2018 and taking overall view of the matter, we are of the opinion that interest of justice would be subserved if the order regarding simple imprisonment of three months is modified and in lieu thereof, additional compensation amount of Rs. 1,00,000/- (Rupees One Lac only), already deposited by the Appellant before the Trial Court, is directed to be made over to Respondent No. 2. In other words, Respondent No. 2 is free to withdraw the additional compensation amount of Rs. 1,00,000/- (Rupees One Lac only) already deposited by the Appellant before the Trial Court. This amount be paid to Respondent No. 2 subject to verification of his identity.

9. We are conscious of the fact that Respondent No. 2 (Complainant) has not appeared before this Court, but the order which we propose to pass is to his advantage and, in all probability, the same would be acceptable to him. We make it clear that if Respondent No. 2-original Complainant is not satisfied with this order, he will be free to apply for recall of the same, which request can be considered appropriately.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 271 of 2018 (Arising out of SLP (Crl.) No. 57 of 2013)

Decided On: 19.02.2018

 P. Ramadas Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 3 SCC 287,2018(6) MHLJ 945

Print Page

When court should not set aside entire jail sentence while upholding conviction of accused?

Section 325 of Indian Penal Code

325. Punishment for voluntarily causing grievous hurt.-Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

22. So far as Section 325 Indian Penal Code is concerned, its reading would show that once the Accused is held guilty of commission of offence punishable Under Section 325 Indian Penal Code, then imposition of jail sentence and fine on the Accused is mandatory. In other words, the award of punishment would include both, i.e., jail sentence and fine. So far as jail sentence is concerned, it may extend upto 7 years as per Court's discretion whereas so far as fine amount is concerned, its quantum would also depend upon the Court's discretion.

25. In our considered opinion, the High Court was, therefore, not right in setting aside the entire jail sentence of Respondent No. 1 while upholding his conviction Under Section 325 Indian Penal Code. The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs. 10,000/-.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2437 of 2010

Decided On: 06.11.2017

The State of Uttar Pradesh Vs.Tribhuwan and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: AIR 2017 SC 5249,(2018)1 SCC 90

Print Page

Whether criminal appeal can be dismissed in default?

It is seen that the learned Judge has dismissed the appeal for
default. It means the conviction and sentence are confirmed without a
hearing. It is not a merit disposal. A suit can be dismissed for default. But
not a criminal appeal. So, the impugned judgment passed by the learned I
Additional Sessions Judge is vitiated.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED : 13.06.2016  

CORAM   
 DR.JUSTICE P.DEVADASS            

C.R.L.RC(MD) No.190 of 2016  
and Crl.M.P.(MD) No.2672 of 2016 

Kalaiselvi  Vs    Sivasubramanian                               

Print Page

When it is not permissible for court to substitute fine in place of imprisonment?

 In this context and factual background, two points arise for consideration, viz.:

(i) Whether the High Court was permitted, in law, to do away with the punishment of imprisonment altogether and substitutes the same with fine alone?

(ii) Whether the circumstances pleaded by the Respondent were so mitigating that punishment of fine alone could be justified?

14. Coming to the first question, as can be seen from the language of Sections 307, 328 and 392 of Indian Penal Code, all these Sections provide for imprisonment 'and' fine. In fact, after specifying particular term of imprisonment, all these Sections use the words 'and shall also be liable to fine'. This expression came up for consideration in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. MANU/SC/0453/1999 : (1999) 7 SCC 409 and the Court explained that in such circumstances, it is imperative to impose both the sentences i.e. imprisonment as well as fine. Thus, there has to be punishment of imprisonment in respect of these offences, and in addition, the convict is also liable to pay fine. Therefore, awarding the punishment of imprisonment is a must and there cannot be a situation where no imprisonment is imposed at all. The High Court was, therefore, clearly wrong in not inflicting a sentence of imprisonment, by modifying the sentence awarded by the trial court and obliterating the sentence of imprisonment altogether. Thus, the very approach of the High Court in substituting the sentence by fine alone is impermissible in law.

15. Section 386 of the Code of Criminal Procedure enlists the powers of the appellate court while hearing the appeals from the trial court. In an appeal from conviction, if the conviction is maintained, the appellate court has the power to alter the nature or the extent, or the nature and extent, of the sentence (though it cannot enhance the same). However, such a power has to be exercised in terms of the provisions of Indian Penal Code etc. for which the Accused has been convicted. Power to alter the sentence would not extend to exercising the powers contrary to law. It clearly follows that the High Court committed a legal error in doing away with the sentence of imprisonment altogether.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 667 of 2017 (Arising out of SLP (Crl.) No. 8983 of 2012

Decided On: 10.04.2017

State of Himachal Pradesh Vs. Nirmala Devi

Print Page

Whether court can reduce sentence if legislature has prescribed minimum sentence without discretion?

When the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and Amitava Roy, JJ.)

Mohd. Hashim v.  State of U.P. & Ors. 

Criminal Appeal No. 1218 of 2016

(Arising out of S.L.P. (Crl) No. 6104 of 2014)

Decided on November 28, 2016

Citation:2016 SCC OnLine SC 1440,(2017) 2 SCC 198

Print Page

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, 

Print Page

Whether case for dishonour of cheque can be compounded after conviction and sentence?

The learned Counsel for the appellant has placed
reliance on a decision of this Court in Criminal Application (Main)
No. 247/2008, Shri Satish Vaman Madkaikar Vs. Shri Xavier
D'Sozua and Another, dated 07.10.2008, in which this Court after
placing reliance on the judgment of the Hon'ble Gujarat High
Court, in Kirpalsingh Pratapsingh Vs. Balvinder Kaur Hardipsingh
Lobana and Another, reported in 2004 Criminal Law Journal 3786,
had granted permission for compounding in similar circumstances,
namely after the judgment of conviction and sentence was
confirmed by this Court.
 I have heard the learned Counsel for the parties and
perused record. This Court in Criminal Application (Main) No.
247/2008 has inter alia held that compounding of the offence can
be permitted in the interest of justice, even after the conviction
and sentence is confirmed by this Court.
9. The appellant has deposited an amount of Rs.3,375/- in
Goa State Legal Services Authority, in view of the decision of the
Hon'ble Supreme Court in the case of Damodar S. Prabhu Vs.
Sayed Babalal H., reported in (2010) 5 SCC 663.
10. In the circumstances, the following order is passed:
(a) The criminal application is allowed.
(b) The parties are permitted to compound the
offence.
(c) The impugned conviction and sentence is
set aside on account of the offence being
permitted to be compounded.
(d) The complaint filed by the respondent no.
1 stands dismissed.
(e) The appellant is acquitted of the offence

punishable under Section 138 of the N.I. Act.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPLICATION (MAIN) NO. 98 OF 2015

Kashinath Balu Gaonkar V  Sunita Krishnajirao Dessai,

CORAM:- C. V. BHADANG, J.
 DATE:- 18thAPRIL, 2015
Citation; 2016 ALLMR(CRI)1087

Print Page

Whether accused can be permitted to adduce evidence on the point of sentence after conviction?

We have noticed the decision of this Court in
Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5.
In the said decision, this Court held as under:-
“10. Even a casual glance at the provisions of
the Penal Code will show that the punishments
have been carefully graded corresponding with
the gravity of offences; in grave wrongs the
punishments prescribed are strict whereas for
minor offences leniency is shown. Here again
there is considerable room for manoeuvre because
the choice of the punishment is left to the
discretion of the judge with only the outer
limits stated. There are only a few cases where
a minimum punishment is prescribed. The question
then is what procedure does the judge follow for
determining the punishment to be imposed in each
case to fit the crime? The choice has to be made
after following the procedure set out in
sub-section (2) of Section 235 of the Code. That
sub-section reads as under:
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.
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. This is all the
more necessary since the courts are generally
required to make the choice from a wide range of
discretion in the matter of sentencing. To
assist the court in determining the correct
sentence to be imposed the legislature
introduced sub-section (2) to Section 235. The
said provision therefore satisfies a dual
purpose; it satisfies the rule of natural
justice by according to the accused an
opportunity of being heard on the question of
sentence and at the same time helps the court to
choose the sentence to be awarded. Since the
provision is intended to give the accused an
opportunity to place before the court all the
relevant material having a bearing on the
question of sentence there can be no doubt that
the provision is salutary and must be strictly
followed. It is clearly mandatory and should not
be treated as a mere formality. Mr Garg was,
therefore, justified in making a grievance that
the trial court actually treated it as a mere
formality as is evident from the fact that it
recorded the finding of guilt on 31-3-1987, on
the same day before the accused could absorb and
overcome the shock of conviction they were asked
if they had anything to say on the question of
sentence and immediately thereafter the decision
imposing the death penalty on the two accused
was pronounced. In a case of life or death as
stated earlier, the presiding officer must show
a high decree of concern for the statutory right
of the accused and should not treat it as a mere
formality to be crossed before making the choice
of sentence. If the choice is made, as in thisPage 12
case, without giving the accused an effective
and real opportunity to place his antecedents,
social and economic background, mitigating and
extenuating circumstances, etc., before the
court, the court’s decision on the sentence
would be vulnerable. We need hardly mention that
in many cases a sentencing decision has far more
serious consequences on the offender and his
family members than in the case of a purely
administrative decision; a fortiori, therefore,
the principle of fair play must apply with
greater vigour in the case of the former than
the latter. An administrative decision having
civil consequences, if taken without giving a
hearing is generally struck down as violative of
the rule of natural justice. Likewise a
sentencing decision taken without following the
requirements of sub-section (2) of Section 235
of the Code in letter and spirit would also meet
a similar fate and may have to be replaced by an
appropriate order. The sentencing court must
approach the question seriously and must
endeavour to see that all the relevant facts and
circumstances bearing on the question of
sentence are brought on record. Only after
giving due weight to the mitigating as well as
the aggravating circumstances placed before it,
it must pronounce the sentence. We think as a
general rule 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. In the present
case, as pointed out earlier, we are afraid that
the learned trial Judge did not attach
sufficient importance to the mandatory
requirement of sub-section (2) of Section 235 of
the Code. The High Court also had before it only
the scanty material placed before the learned
Sessions Judge when it confirmed the death
penalty.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1953 OF 2009
STATE OF HARYANA … Appellant
:Versus:
ASHA DEVI AND ANR. … Respondents
Citation;(2015) 8 SCC39

Print Page

Whether session Judge can assign cases to assistant session Judge in which sentence to be awarded is more than ten years?

We are, therefore, of the view that in cases where the
sentence which has to be awarded is more than 10 years, the
Sessions  Judge  is  not authorized  to  assign  such  cases to
Assistant Sessions Judge in view of section 28 of the Criminal
Procedure  Code  which  is  a  substantive  provision  in  the

Criminal Procedure Code and, therefore, section 28 will have
to be construed as a provision which imposes a bar on the
Sessions Judge in assigning cases to the Assistant Sessions
Judge where the sentence above 10 years can be awarded.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL  APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.428 OF 2012

Prabhakar @ Babu Laxman Pawar  v state of maharashtra 

     Judgment  pronounced on 02/07/2012

JUDGMENT: (Per V.M. Kanade, J.)

Print Page

Whether offences which affect public health must be dealt with severely?

Whether the court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstance of each case.

While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution of India.

Supreme Court of India

State Of Punjab vs Prem Sagar & Ors on 13 May, 2008

Bench: [ Sirpurkar], [ Sinha]

Print Page