The Supreme Court on April 12, 2019, in the case of Accused X v. State of Maharashtra, has observed that it is not mandatory under Section 235(2) of the Code of Criminal Procedure, 1973, to adjourn the matter for pre-sentence hearing and the hearing can take place on the same day after passing the judgment of conviction, it the parties are ready to submit their arguments.
A Bench comprising of Justice N.V. Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee was hearing a review petition wherein one of the contentions raised was that the Trial Court had not given the Petitioner a separate hearing while awarding the sentence, in direct contravention of Section 235(2) of CrPC.
Section 235(2) of CrPC implies that once the judgment of conviction is pronounced, the court will hear the accused on the question of sentence and at that stage, it is open to the accused to produce such material on record as is available to show the mitigating circumstances in his favor.
Taking into consideration the object of Section 235(2) of CrPC, the Bench said 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 it does not mean that the Trial Court can fulfil the requirements of Section 235(2) of the Cr.P.C. only by adjourning the matter for one or two days to hear the parties on sentence. If the accused is ready to submit his arguments on this aspect on the very day of pronouncement of the judgment of conviction, it is open for the Trial Court to hear the parties on sentence on the same day after passing the judgment of conviction.”
The Bench held that there is no bar on the pre-sentencing hearing taking place on the same day as the pre-conviction hearing as long as the spirit and purpose of Section 235(2) is fulfilled and the accused is given effective opportunity to plead his case with respect to sentencing.
"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, the Bench said.
Further, the Bench also observed that even if a procedural irregularity is committed by the trial court to a certain extent on the question of hearing on sentence, the violation can be remedied by the appellate Court by providing sufficient opportunity of being heard on sentence. It laid down the following principles to be followed by the appellate court while dealing with such irregularities:-
- 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.
Referring to the facts and circumstances of the present case and the settled legal position, the Bench observed that the Trial Court has fully complied with the requirement of Section 235(2) of CrPC.