Fairness demands a Pertinent Time

Fair Conviction and Passing of sentence demands a pertinent time

There are various precedents which shows the effort made by appellate court in maintaining a balance between two important rights: Right to fair trial and Right to speedy trial
On one part this section  provides a procedural right to the accused and on the other part it can be misused by delaying a trial.  

Thanks to our experienced Indian Judges who have enough expertise to distinguish, between the orders for protracting trials from that of genuine causes in order to protect rights of the accused.

  INTRODUCTION

The right of Pre-sentencing is affirmed by SC in Bachan Singh v. State of Punjab (1980) and in galore of other cases.

Its germane to look over the point that other countries are following common law tradition. Historically prosecution does not play vital role in sentencing process and usually it left over to the Judges to decide.

In India, under the previous code ,no time was provided, post conviction, for the accused to submit any relevant facts before the court. Now, its necessary to quote Sec.235 (2) which not only provides an accused an opportunity of Pre-sentence hearing but also other things too.

• LAW-Sec.235 provides that after hearing arguments u/s.234 and points of law if any, the judge shall give the judgement in the case. Such judgements may be either as an acquittal or as a conviction.

Judgement of Conviction- It will be made , If both of the required things will be done: 

 Firstly, the session judge should reach to the conclusion that the accused has committed the offence. Secondly, prosecution has been successful in proving his guilt beyond reasonable doubt. 

 Judgement of Acquittal-It will be made, if any of the required thing will be done: 

Either,the session judge believes that there are no evidence which shows that the offence is committed by an accused. 

Or, prosecution could not prove the guilt beyond reasonable doubt.

• PRE-SENTENCE HEARING- Sec. 235(2) provides that if the accused is convicted the judge shall hear the accused on the question of sentence unless he proceeds in accordance with the provision of sec.360. The judge shall pass sentence on accused person only after hearing on question of sentence and such sentence must be according to law. 

Therefore, Section 235 (2) of CRPC mandates Pre-Sentence Hearing for the accused and imbibes a cardinal principle that the sentence should be based on 'reliable, comprehensive information relevant to what the Court seeks to do'. X vs. state of Maharashtra 2019

Cardinal Ruling

The first case on this topic was of Santa singh v. State of Punjab 1976 which was decided by division bench presided by Bhagwati J. and Fazal Ali J. 

Justice Bhagwati interpreted Section 235 (2) of CrPC in the following manner" This 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 and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court.

 We are therefore of the view that the hearing contemplated by section 235 (2) 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 to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings." (emphasis supplied) Justice Fazal Ali, agreed with the aforesaid conclusion, and made observations along the same lines.

 Bhagwati J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings."

 Ample Time 

After such analysis, question arises-  How much time should be provided before pre-sentence hearing?  

This question was addressed by SC in Allauddin Mian v. State of Bihar, (1989) and recommended that  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". The aforesaid proposition was also reiterated in Malkiat Singh v. State of Punjab, (1991).

No Review

As keeping in mind of misuses, if court thinks fit on the basis of facts and circumstances that no date should given in any particular case, then no adjournment will be made and such decison will not be reviewed.

Even in case of B.A. Umesh v. Registrar General, High Court of Karnataka, (2017), wherein it was held that a review petition cannot be allowed merely because no separate date was given for hearing on the sentence. This Court held that Section 235(2) of CrPC does not mandate separate date for the hearing of the sentence, rather, it is dependent on the facts and circumstances of the case, for instance, if parties insist to be heard on separate dates.

Pre-sentence Hearing is not mandatory

The main objective of this section is the  case must be heard on the question of sentence and such sentence must be according to  law, if the above condition is fulfilled in the case, then adjourning the matter for further hearing is not necessary, even after all of this, if court does, it will vitiate rule of speedy trial.

If the accused is ready to submit his arguments 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.

Even in cases like Tarlok Singh v. State of Punjab, (1977) ; Ramdeo Chauhan v. State of Assam, (2001). It has been shown  that in case the minimum sentence is proposed to be imposed upon the accused, the question of providing an opportunity under Section 235(2) would not arise.

 Justice will not be barred

The procedure provide u/s, 235(2) is not mandatory and non-compliance of it by the trial court will not leads to Injustice. Assuming if any procedural irregularity is made by the trial court to a certain extent regarding hearing on question of sentence, such violation can be easily remedied by an appellate court by providing an opportunity of being heard on sentence.

We always have Sec. 465 of CRPC with us, which provides the provision which mandates that no finding, sentence or order passed by the Court of competent jurisdiction shall be reversed or altered by the Court of appeal on account of any error, omission or irregularity in the order, judgment and other proceedings before or during trial unless such error, omission or irregularity results in a failure of justice.

So even a non- compliance will not bar the justice it can also be remedied by an appellate court either by remand or by giving an opportunity to the accused.  

Curious
What if Pre-sentence hearing becomes mandatory for serious cases? 

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