Judgment of acquittal or conviction :
Section – 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.
COMMENTS
LAW COMMISSION REPORTS
The Law Commission merely observed (in a foot-note) that “the requirement about hearing the accused on the question of sentence before passing sentence has been added as a desirable provision”. This 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”.
GENERAL
Supreme Court on true construction of section 235(2) – The Supreme Court has in Santa Singh v. State of Punjab AIR 1976 SC 2386 brought out “true construction” of section 235(2) of the new Code and held that it requires that in every trial before a Court of Session, 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.
Hearing provision mandatory – The hearing as contemplated by section 235(2) is not confined merely to hearing oral submissions, but is intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the sentence. If these materials and facts are contested by either side, hearing contemplates production of evidence for establishing the same. This provision is “mandatory” and deviation from it “cannot be described as mere irregularity in the course of trial”. The court set aside the sentence of death imposed on the accused (appellant) by the trial court on the ground that the requirement of this new provision “was not complied with inasmuch 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”. The non-compliance with the new provision the court observed, “amounts to by passing an important stage of the trial” and by omitting it altogether the trial cannot be said to be as contemplated in the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of the trial and hence cannot be regarded as a mere irregularity. It goes to the root of the matter and the resulting irregularity is of such a character that it vitiates the sentence. As such, failure of justice must be regarded as implicit and section 465 cannot in the circumstances have any application in such case.
No such provision in old Code – There was a no such provision in the old Code of Criminal Procedure and under it, whatever the accused wished to submit in regard to the sentence had to be stated by him before the arguments in the case concluded and the judgment was delivered and “there was no separate stage for being heard in regard to sentence”. The accused under the old Code had to produce material and make his submissions in regard to sentence “on the assumption” that he was ultimately going to be convicted and as this was “most unsatisfactory” the Legislature introduced the new provision in the new Code.
Importance of sentencing – Describing section 235(2) as one in consonance with the modern trends in penalogy and sentencing procedures, the court observed: In modern criminal jurisprudence, “sentencing is an important stage in the process of administration of criminal justice—as important as the adjudication of guilt and that (sentencing) should received serious attention of the court. A proper sentence was the amalgam of many factors such as the nature and circumstances of the offence—extenuating or aggravating—the prior criminal record of the offender, his age, employment, educational background, home life, sobriety and social adjustment, emotional and mental condition, prospects for rehabilitation and possibility of return of the offender to normal life in the community. It was because of these factors in the matter of sentencing that the Legislature felt, in introducing this new provision for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors and then pass a proper sentence on the accused”.
Hearing how done – It is necessary for this purpose that facts of 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. The relevant material “may be placed before the court by means of affidavits, but if either party disputes the correctness 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 bringing 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, particularly to the accused, to produce material in regard to various factors having a bearing on the question of sentence.
Social purpose of section 235(2) – The imperative language of sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations having a bearing on the sentence can, in the exercise of that right, be placed before the court. The social compulsions, the presence of property, the retributive instinct to seek an extra-legal remedy, the sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity—all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of section 235(2) must, therefore, be obeyed in its letter and spirit