April 15, 2019:
Supreme Court has held that as long as the spirit and purpose of Section 235(2) is met there is no bar on the pre sentencing hearing taking place on the same day as the pre conviction hearing.
Justice Ramana speaking for a three judges bench has passed the judgment in case titled ACCUSED ‘X’ vs STATE OF MAHARASHTRA on 15.04.2019.
Accused was awarded certain sentences including a death penalty. His counsel primarily argued that trial court failed to grant pre sentence hearing to the accused wherein he could have produced relevant materials for showing mitigating factors.
Supreme Court observed that the same is not always fatal and that the appellate court itself can give adequate opportunity.
It observed “Now we need to consider the impact of noncompliance of procedure provided under Section 235 (2) of CrPC by the trial court. Even assuming that 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 must be kept in mind that Section 465 of the CrPC 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. Such noncompliance can be remedied by the appellate Court by either remanding the matter in appropriate cases or by itself giving an effective opportunity to the accused”.
It further observed “The narrative provided by numerous cases on this aspect portrays a picture of the appellate Court trying to balance two important rights, viz., right to fair trial and right to speedy trial. On one side, is the procedural right granted to the accused under Section 235 (2) of CrPC, and on the other side is the possibility of misuse to delay the trial. The experienced judges in India have enough expertise to distinguish, between the schemes for protracting trials from that of genuine causes in order to protect rights of the accused”.
The Court held “In light of the above discussion, 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 presentencing 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”.
Read the judgment here:
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