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NO NEED TO FIX A SEPARATE DATE FOR PRE-SENTENCE HEARING: Supreme Court

Team SoOLEGAL 18 Apr 2019 12:37pm

NO NEED TO FIX A SEPARATE DATE FOR PRE-SENTENCE HEARING: Supreme Court

In a criminal case, one of the contentions which were raised in the Review petitions was that the Trial Court had not given the Petitioner a separate hearing while awarding the sentence, in direct contravention of Section 235(2) CrPC. The bench said: 
"We are of the opinion that as long as the spirit and purpose of Section 235(2) is met, inasmuch as the accused is afforded a real and effective opportunity to plead his case with respect to sentencing, whether simply by way of oral submissions or by also bringing pertinent material on record, there is no bar on the pre-sentencing hearing taking place on the same day as the pre-conviction hearing. Depending on the facts and circumstances, a separate date may be required for hearing on sentence, but it is equally permissible to argue on the question of sentence on the same day if the parties wish to do so." 
The Supreme Court bench comprising of Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee made an observation that the object of Section 235 (2) of the Code of Criminal Procedure is to provide an opportunity for accused to adduce mitigating circumstances. But, on the other hand, it does not mean that to fulfill the requirements of Section 235(2) of CrPC, the Trial Court has to adjourn the matter for one or two days to hear the parties on sentence. Even if there is commission of procedural irregularity on part of the trial Court to a certain extent on the question of hearing on sentence, the alternate remedy to such violation is the Appellate Court providing sufficient opportunity of being heard on sentence.

It was also noted that the accused was given a separate hearing for imposition of sentence. Some of the principles laid down by the Appellate Court are as follows:

·         That the term 'hearing' occurring under Section 235 (2) requires the accused and prosecution at their option, to be given a meaningful opportunity.

·         Meaningful hearing under Section 235 (2) of CrPC, in the usual course, is not conditional upon time or number of days granted for the same. It is to be measured qualitatively and not quantitatively.

·         The trial court need to comply with the mandate of Section 235 (2) of CrPC with best efforts.

·         Non-compliance can be rectified at the appellate stage as well, by providing meaningful opportunity.

·         If such an opportunity is not provided by the trial court, the appellate court needs to balance various considerations and either afford an opportunity before itself or remand back to trial court, in appropriate case, for fresh consideration.

·         However, the accused need to satisfy the appellate courts, inter alia by pleading on the grounds as to existence of mitigating circumstances, for its further consideration.

·         Being aware of certain harsh realities such as long protracted delays or jail appeals through legal aid etc., wherein the appellate court, in appropriate cases, may take recourse of independent enquiries on relevant facts ordered by the court itself.

·         If no such grounds are brought by the accused before the appellate courts, then it is not obligated to take recourse under Section 235 (2) of CrPC.

Tagged: Supreme Court   Section 235(2)   Code of Criminal Procedure   Justice NV Ramana   Justice Mohan M. Shantanagoudar   Justice Indira Banerjee  
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